DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.
CC.No.475 of 19-09-2012
Decided on 18-04-2013
Rekha Bansal aged about 29 years W/o Sandeep Bansal R/o House No.4221, Gurudwara Singh Sabha Wali Gali, Qila Road, Bathinda.
........Complainant
Versus
Mount Litera Zee School, Opp. Sushant Lok-1, Kotshamir, Mansa Road, Bathinda, through its Principal/MD/Authorized Signatory.
.......Opposite party
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President.
Sh.Amarjeet Paul, Member.
Smt.Sukhwinder Kaur, Member.
Present:-
For the Complainant: Sh.Narinder Singla, counsel for complainant.
For Opposite party: Sh.Varun Gupta, counsel for opposite party.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant approached the office of the opposite party and enquired about the school faculty and procedure of the admission in the opposite party school for her children. Mr.Nitin Incharge of the said office informed the complainant that the new school building is under the construction and the office is being operated in the Mall and is likely to be shifted/started in the new school building in the new session. The said office Incharge further informed the complainant that the school will give incentive for the fresh admission in any class, if the admissions are booked in advance before the commencement of the session. The complainant further enquired about the admission of her children in 3rd and 4th class, the incharge told the complainant that the prospectus regarding detailed conditions is still under printing and assured her that the same would be supplied shortly. On 6.1.2013 the complainant alongwith her husband Sandeep Bansal went to the office of the opposite party at Mittal Mall, Bathinda, where the office incharge Mr.Nitin induced them that if they will deposit Rs.20,000/- for each student as full fee for the year in advance for confirming or reserving their seats within 10 days, then they would be able to save Rs.10,000/ for each student as incentive from their school. On the allurement of Mr.Nitin Incharge of the opposite party, the complainant and her husband Sandeep Bansal went to the office of the opposite party on 12.1.2012 in the Mittal Mall, Bathinda and deposited full fee of Rs.20,000/- for each child in advance. The opposite party told the complainant that their seats had been reserved and also assured that in case of cancellation of the seats by any reason or even in case of surrendering of the seats before the admissions is complete, their fee will be refunded. The opposite party further asked the complainant to visit its office in the month of February 2012 for allocation of section of class & Roll No's of their children. Thereafter the complainant again approached the school faculty/opposite party and requested it to supply the prospectus and receipts of fees deposited by her but the faculty of the school has failed to supply the same and kept the matter pending on one or the other pretext. In the first week of February 2012, the complainant again approached the opposite party and demanded the original receipts of fee and prospectus but it has failed to supply the prospectus and original receipts deposited by her but it gave her only the photocopy of the receipt Nos.1091 and 1092 dated 12.1.2012 after getting her signatures on the originals. The opposite party further asked the complainant to deposit Rs.12,000/- before 12.2.2012 and the IInd installment of Rs.12,000/- before 7.3.2012 in case of Chirag Bansal and Rs.12,000/- before 12.2.2012 and IInd installment of Rs.9600/- before 7.3.2012 in case of Sneha Bansal. The complainant told the opposite party that she has already deposited the entire fees for one year of both the children as per its demand and their seats for admission are also confirmed by it. Now the demand of Rs.24,000/- for Chirag Bansal and Rs.21,600/- for Sneha Bansal is illegal and not proper. The complainant requested the opposite party to refund the deposited fee and told that she is not interested to admit her children in its school. The complainant also made a written request to the opposite party to refund the amount on the same day. The official Mr.Nitin of the opposite party told the complainant that her case for refunding the deposited amount will be sent to the Head Office, Bombay for approval and after approval they will pay her deposited amount and further informed that it will take ¾ months time. The complainant approached Mr.Nitin Incharge of the school number of times but everytime he gave the same reply that matter is pending before the Head Office, Bombay and in the last month of August the opposite party flatly refused to refund the said amount. Hence the complainant has filed the present complaint to seek the directions to the opposite party to refund Rs.40,000/- alongwith interest, cost and compensation.
2. Notice was sent to the opposite party. The opposite party after appearing before this Forum has filed its written statement and pleaded that it is an educational institution and is parting education only to its students and has given the reference of Chairman Desh Bhagat Dental College & Ors Vs. Archita Vedi, petition No.13472 special leave to appeal (civil) of 2012 of Hon'ble Supreme Court of India. The complainant has not availed any service from the opposite party. They have entered into an agreement for providing the service in future subject to fulfillment of certain terms and conditions, duly printed on cash receipt Nos.1091 and 1092 as such the complainant is not consumer of the opposite party qua her children. The opposite party further pleaded that the complainant was fully explained about the building, spot campus and modern way of teaching by highly trained teachers by Zee Learn Academic team. The complainant was also fully explained about the fee structure of the opposite party. The opposite party admitted that on 6.1.2012 the complainant alongwith her husband visited the office of the opposite party but denied the payment of Rs.20,000/- that was charged towards the full fee for the year/academic session. However, it was told to the complainant and her husband by Mr.Nitin that being the founder session of Mount Litera Zee School at Bathinda an incentive of Rs.10,000/- in admission fee will be given to each student who seeks admission for academic session 2012-13, otherwise the full admission fee is Rs.30,000/- to be changed in 1st year only in each case of admission. The complainant alongwith her husband Mr.Sandeep Bansal again visited the office of the opposite party at Mittal Mall, Bathinda on 12.1.2012 and deposited Rs.20,000/- for each child. The true facts of the case are that on 12.1.2012 the complainant and her husband Mr.Sandeep Bansal visited the office of the opposite party and on their visit, a copy of booklet containing the details of Mount Litera Zee School, Bathinda was given. After going through the booklet, the complainant and her husband were felt fully satisfied and deposited Rs.20,000/- as admission fee for their each child. Two cash receipts bearings Nos.1091 and 1092 dated 12.1.2012 for Rs.20,000/- each were got signed from the complainant and were also signed by the authorized signatory of the opposite party and were handed over to the complainant. Since the said cash receipts bearing Nos.1091 and 1092 dated 12.1.2012 were signed by the complainant as well as the opposite party, it took a shape of legally valid agreement, as such both the parties were legally bound to the terms and conditions printed on these receipts. On deposit of the admission fee, two student admission forms bearing Nos.1091 and 1092 were given to the complainant for filling the same but she submitted incomplete form. The complainant promised to complete the student admission forms on her next visit as required information and photographs were not in her possession at that time. But the complainant neither approached the opposite party for completion of student admission forms nor for depositing the term fee and tuition fee being the first installment. The Mount Litera Zee School has been established just from the academic session 2012-13, as such the numbers of the students are less and seats in each class are still lying vacant, as such no waiting list exists for admission in any class. The complainant was also advised to deposit Rs.12,000/- and Rs.12,000/- before 7.3.2012 in case of Chirag Bansal and Rs.12,000/- before 12.2.2012 and Rs.9600/- before 7.3.2012 in case of Sneha Bansal. An endorsement regarding this was made on the respective receipts bearing Nos.1091 and 1092 dated 12.1.2012.
3. The parties have led their evidence in support of their respective pleadings.
4. Arguments heard. The record alongwith written submissions submitted by the parties perused.
5. Admittedly the complainant had paid Rs.20,000/- each for the admission of her children and the opposite party gave the concession of Rs.10,000/- in the fees of both the students. The opposite party was holding its temporary office in Mittal Mall Bathinda and the office incharge was Mr.Nitin. For the payment of Rs.20,000/- each for both the students photocopy of the receipt Nos.1091 and 1092 dated 12.1.2012 were issued after getting the signatures of the complainant on the originals receipts by the opposite party. The opposite party further asked the complainant to deposit Rs.12,000/- before 12.2.2012 and also IInd installment of Rs.12,000/- before 7.3.2012 in case of Chirag Bansal and Rs.12,000/- before 12.2.2012 and IInd installment of Rs.9600/- before 7.3.2012 in case of Sneha Bansal.
6. The submission of the complainant is that Mr.Nitin Incharge of the opposite party informed the complainant that the school will give incentive for the fresh admission in any class, if the admissions are booked in advance before the commencement of the session and she was also informed that the prospectus regarding detailed conditions is still under printing and assured her that the same would be supplied shortly. After getting the deposit of Rs.20,000/- for each child in advance the opposite party conveyed the complainant that their seats had been reserved and also assured that in case of cancellation of the seats by any reason or even in case of surrendering of the seats before the admissions is complete, their fee will be refunded but it has failed to issue the receipt despite asking for the same. In the month of February 2012 the complainant approached the office of the opposite party for allocation of section of class & Roll No's of her children and requested it to supply the prospectus and receipts of fees deposited by her but it has failed to supply the prospectus and original receipts and gave her only the photocopy of the receipt Nos.1091 and 1092 dated 12.1.2012 after getting her signatures in the originals. The opposite party started demanding more amount as fee for the children and it has demanded Rs.24,000/- for Chirag Bansal and Rs.21,600/- for Sneha Bansal whereas at the time of getting deposit of Rs.20,000/- it was conveyed by the opposite party that the fee deposit by the complainant is of the entire year. The complainant requested the opposite party to refund the deposited fee as she is not interested to admit her children in its school as it demanded more fee despite receiving of full fee in advance. A written request for the refund of the deposited fee was also given on the same day. The complainant was conveyed by the official Mr.Nitin of the opposite party that her case for refunding the deposited amount will be sent to the Head Office, Bombay for approval and after approval they will pay her deposited amount and further informed that it will take ¾ months time. The complainant has approached Mr.Nitin Incharge of the school many times but the opposite party has failed to refund the fee of Chirag Bansal and Sneha Bansal as the children of the complainant have not attended any class and admission be cancelled.
7. The opposite party has taken the legal objection that this Forum has no jurisdiction to try and entertain the present complaint and has referred the special leave to Petition (Civil) of 2012 of Hon'ble Supreme Court of India titled as Chairman Desh Bhagat Dental College & Ors Vs. Archita Vedi. At the time of applying for the admission the complainant was fully explained about the building, spot campus and modern way of teaching by highly trained teachers by Zee Learn Academic team and also explained about the fee structure of the opposite party. On 6.1.2012 the complainant alongwith her husband approached the office of the opposite party for academic session 2012-13 and being the founder session of Mount Litera Zee School at Bathinda an incentive of Rs.10,000/- in admission fee and is being given to each student who seeks admission for academic session 2012-13, otherwise the full admission fee is Rs.30,000/- which is to be changed in 1st year in each case of admission. The amount of Rs.20,000/- for each child was deposited on 12.1.2012 and the receipt for getting deposit was issued to the complainant. The complainant and her husband Mr.Sandeep Bansal visited the office of the opposite party on 12.1.2012, a copy of booklet containing the details of Mount Litera Zee School, Bathinda was given to them. The fee of Rs.20,000/- as admission fee in each case has been deposited by the complainant after being fully satisfied and after going through the booklet/brochure/prospectus and two cash receipts bearings Nos.1091 and 1092 dated 12.1.2012 for Rs.20,000/- each were issued to her. The receipts were signed by the complainant as well as the opposite party, it became a valid agreement between both the parties and the parties are legally bound to the terms and conditions printed on these receipts. The complainant promised to complete the student admission forms on her next visit as required information and photographs were not in her possession at that time. But thereafter the complainant neither approached the opposite party for completion of student admission forms nor for depositing the term fee and tuition fee being the first installment. As the Mount Litera Zee school has been established just from the academic session 2012-13, as such the numbers of the students are less and seats in each class are still lying vacant, as such no waiting list exists for admission in any class. The complainant was also advised to deposit Rs.12,000/- and Rs.12,000/- before 7.3.2012 in case of Chirag Bansal and Rs.12,000/- before 12.2.2012 and Rs.9600/- before 7.3.2012 in case of Sneha Bansal.
8. The opposite party taken the legal objection that this Fora has no jurisdiction to decide and entertain this complaint and has given the reference of special leave petition titled as Chairman Desh Bhagat Dental College & Ors Vs. Archita Vedi. The application for interim relief filed in petition (s) for the special leave to appeal (Civil) No.13472/2012, in this the Hon'ble Supreme Court of India has given the reference of Maharishi Dayanand University Vs. Surjeet Kaur reported in 2010 (11) SCC 159 and the stay was granted in this case. The basic law laid down by the Hon'ble Supreme Court in case titled Bihar School Examination Board Vs. Suresh Prasad Sinha, 2009(4) R.C.R (Civil) 9: 2009(5) R.A.J 502:(2009) 8 SCC 483 has been referred in Maharishi Dayanand University Vs. Surjeet Kaur (Supra), wherein it has been held:
“11) The Board is a statutory authority established under the Bihar School Examination Board Act, 1952. The function of the Board is to conduct school examinations. This statutory function involves holding periodical examinations, evaluating the answer scritps, declaring the results and issuing certificates. The process of holding examinations, evaluating answer scritps, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative.
(12) When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services” to any candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination.
(13) The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi-commercial activity). But the Act does not intend to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in course of conduct of the examination, or evaluation of answer scrips, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not covert the Board into a service-provider for a consideration, nor covert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a 'service provider' and a student who takes an examination is not a 'consumer' and consequently, complaint under the Act will not be maintainable against the Board.”
The reference of the case titled as Maharishi Dayanand University Vs. Surjeet Kaur has been given in special leave petition titled as Chairman Desh Bhagat Dental College & Ors Vs. Archita Vedi, in that case the University by mistake allowed a student to pursue B.Ed course against the regulations-The students cleared B.Ed examination-University refused to award the degree when mistake came to notice-Consumer Forum has no jurisdiction to direct the University to issue degree but in the present case the matter is regarding the fee obtained by the opposite party in advance and the children of the complainant have not attended even a single class. The complainant has filed an application for seeking the record but no record has been produced till date by the opposite party despite repeated adjournments, even the original receipts were not issued to the complainant. The only thing is written on the receipt is 'Fees once paid is not refundable; cheques are subject to realization'. Regarding the condition 'Fees once paid is not refundable' does not contain any further condition to show why this fee should not be refundable or in what circumstances this is not refundable. The condition mentioned on the receipts Ex.C1 and Ex.C2 is vague, any vague document cannot be read in favour of the party who have generated it. In case of any ambiguity the same is read in favour of the complainant hence this condition does not indicate that why the fees once paid is not refundable and moreover in the receipt Ex.C1 and Ex.C2 it has been mentioned that Rs.20,000/- in each case has been received towards the admission fees and nothing is mentioned in the column of tuition fee, term fee or regarding any balance is to be deposited by the complainant and also nothing is mentioned regarding the concession of 10%.
The opposite party has produced only one affidavit and two receipts and except these no other document has been placed on file by it. Not only this no fee structure has been produced by the opposite party to prove its version that it was the admission fee or tuition fee that was charged from the complainant. Moreover when the complainant has paid Rs.20,000/-, no Roll number is issued to the students and no infrastructure has been shown to her where the classes will be conducted, this amounts to unfair trade practice as well as deficiency in service on the part of the opposite party.
9. From the facts, circumstances and evidence placed on file by the parties it is proved that the opposite party in the view to collect money from the innocent parents of the students by alluring them to give the admission in its school without providing them complete infrastructure, faculty, building even prospectus and original receipts tried to mislead them and asked for the more amount for its own purpose. Hence this complaint is accepted with Rs.10,000/- as cost and compensation and the opposite party is directed to refund the amount of Rs.40,000/- alongwith interest @ 9% per annum since its deposit i.e. 12.1.2012 till realization. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.
10. A copy of this order be sent to the parties concerned free of cost and the file be consigned to the record.
Pronounced
18-04-2013
(Vikramjit Kaur Soni)
President
(Amarjeet Paul)
Member
(Sukhwinder Kaur)
Member
