Delhi

StateCommission

A/459/2017

TEAMWORK EDUCATION FOUNDATION/ISBF - Complainant(s)

Versus

MR. ESHAN JAIN - Opp.Party(s)

V.S. DUBEY

27 Sep 2017

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:09.10.2018

 

First Appeal-459/2017

 (Arising out of the order dated 03.08.2017 passed in Complainant Case No. 229/2015 by the District Consumer Disputes Redressal Forum (II), Udyog Sadan, New Delhi)

 

Teamwork Education Foundation/ISBF,

15-A, Ring Road, Lajpat Nagar-IV,

New Delhi-110024.

…..Appellant

 

Versus

Mr. Eshan Jain,

S/o Shri Ramendra Jain,

R/o House No.284-F, “B’ Block,

Sushant Lok-I,

Gurgaon (Haryana).

.….Respondent

 

 

CORAM

 

Justice Veena Birbal, President

Salma Noor, Member

 

 

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) wherein challenge is made to order dated 3.8.17 passed by the Consumer Disputes Redressal Forum (II), Udyog Sadan, New Delhi (in short, the “District Forum”) in Complaint Case No.229/2015 whereby the aforesaid complaint has been allowed and appellant/OP is directed as under:

“Accordingly, we allow the complaint and direct the OP to refund the fees of Rs.2,21,237/- along with interest @ 6% per annum from the date of filing of complaint till the date of refund, Rs.10,000/- as compensation towards mental pain and agony Rs.5,000/- towards cost of litigation to the complainant within 30 days from the date of receipt of copy of this order failing which OP shall become liable to pay Rs.2,21,237/- to the complainant along with interest @ 9% p.a. from the date of filing of the complaint till realization.”

 

2.       Briefly the facts are that a complainant under Section 12 of the Act was filed by the respondent herein i.e. complainant before the District Forum stating therein that in the month of August, 2014 respondent/complainant had passed 12^th standard examination conducted by ISC Board and had taken admission in appellant/OP institute in BSC Business and Management (Hons.) At the time of admission, appellant/OP had made vide publicity and also represented that it was imparting world class education. It was also represented that appellant/OP offered undergraduate (honours) degree programmes and postgraduate diploma programmes from the University of London (UoL) with academic directions from London School of Economics and Political Science (LSE).  Allured with the publicity of appellant/OP, respondent/complainant had applied for BSC (Hons.). At that time, he was minor. Respondent/complainant had deposited Rs.2,21,237/- and was asked to sign certain documents.  The classes were to commence from 11.8.14.  While taking admission, respondent/complainant was told that he could take three trial classes and on being satisfied he could continue with his study or else the amount paid would be refunded to him. It was alleged that the respondent/complainant had attended three classes in the month of August, 2014 and found that the representation made by appellant/OP about the Institute was false.  It was alleged that teaching staff was not even competent to teach 12^th standard students whereas the claim of the appellant/OP was that they were providing world class quality education. Therefore, the respondent/complainant asked for refund of fee paid by him but the same was not refunded.  In the month of December, respondent/complainant had sent a letter dated 17.12.14 and thereafter had sent a legal notice dated 1.5.15 but the fee was not refunded.  Alleging unfair trade practice and deficiency in service on the part of appellant/OP, a complaint was filed before the District Forum seeking directions for the refund of amount of Rs.2,21,237/- along with interest @ 18% p.a. from the date of deposit till the realization and Rs.25,000/- on account of mental torture and agony being caused to him.

 

3.       Appellant/OP had filed written statement wherein it was stated that respondent/complainant had applied for the aforesaid course at other places also and had left the course mid way after getting admission somewhere else.  It was stated that after taking admission and paying requisite fee, the respondent/complainant had blocked the seat which could have been given to other candidate in the waiting list.  It was stated that the appellant/OP had lost out on the deserving candidate for the entire year and balance tuition fee payable for the academic session 2014-15.  It was denied that the teaching staff was not competent to teach 12^th standard students as was alleged.  It was further denied that any assurance for refund of fee was given to him in case respondent/complainant was not satisfied after attending three trial classes.  It was stated that there was an acceptance of offer which was signed by mother of the respondent/complainant wherein she had accepted the terms and conditions of the contract and as per the terms of the contract, the fee was not refundable.  It was stated that in these circumstances, fee was not refunded to respondent/complainant and there was no deficiency in service on the part of the appellant/OP as was alleged.

 

4.       Both the parties filed evidence in the form of affidavits.  Parties also filed written arguments.  After hearing the parties, Ld. District Forum held that by not refunding the fee, appellant/OP had committed deficiency in service. Ld. District Forum held that the contract was not binding on the respondent/complainant and appellant/OP was not entitled to claim that fee once paid by the respondent/complainant was not refundable.  Ld. District Forum found discrepancies in the documents i.e. Offer of Letter (Ex-RW-1/3 Colly) and copy of Application Form and Undertaking (Ex-RW-1/5 Colly) and came to the conclusion that by not refunding fee, the appellant/OP had committed deficiency in service.  Accordingly the complaint was allowed and appellant/OP was directed to refund the fee along with interest, compensation and litigation cost as has been stated above.

 

5.       Aggrieved with the aforesaid order, present appeal is filed.

 

6.       Ld. Counsel for appellant/OP has contended that finding about the attendance record of respondent/complainant has been wrongly given by Ld. District Forum.  It is contended that respondent/complainant had attended classes for 2-3 months. It is also contended that there is nothing on record to substantiate that respondent/complainant was assured that he could take three trial classes and in case he was not satisfied, in that event he could leave the course and fee was agreed to be refunded to him.  It is contended that there is no such clause in the letter of Offer of Admission as well as Declaration of Acceptance, Ex-RW-1/3 (Colly) placed on record. It is contended that appellant/OP had issued letter of Offer of Admission wherein it is clearly mentioned that fee was to be paid by 10^th of July, 2017 and there was also a clause of ‘Declaration of Acceptance’ wherein it is written that fee paid is not refundable.  The said declaration is duly signed by mother of respondent/complainant as such respondent/complainant cannot ask for refund of fee.  It is also contended that respondent/complainant after taking admission had blocked the seat which could not have been offered to other candidate in the waiting list and appellant/OP had lost the deserving candidate for the entire year and balance tuition fee payable in the said year. It is contended that there was a valid contract between the parties as such the District Forum ought not have allowed the complaint for refund of fee.

 

7.       On the other hand, Ld. Counsel for respondent/complainant has contended that District Forum has rightly passed the impugned order.  It is contended that Ld. District Forum has rightly held on the basis of material on record that the contract is not binding on the respondent/complainant.  It is further contended that even the finding on the attendance is also correctly given.  Respondent/complainant has prayed for dismissal of appeal.

 

8.       The contention of the appellant/OP that no trial classes were promised and respondent/complainant had attended classes for 2-3 months and thereafter had left in the mid stream is considered.  For substantiating the said contention, appellant/OP has relied upon attendance sheet i.e. Ex-RW-1/1 (colly).  We have seen the attendance sheet.  As per aforesaid attendance sheet, respondent/complainant had attended the classes in the month of August, 2014 to December, 2014 irregularly.  The Lecture Attendance Record, subject wise of each faculty is also seen.  The same do not tally with consolidated attendance sheet referred above. There is a discrepancy between the two.  The District Forum has also examined the same and has observed as under:

“The OP has filed the attendance sheet as Ex. RW-1/1 (Colly).  We have very carefully gone through the attendance sheet.  As per the attendance sheet the complainant had attended class/es on 12.08.14.  The attendance sheet for the months of August, 2014 to December, 2014 shows that the complainant had attended the classes during these months irregularly.  The Lecture Attendance Record of the faculty of Sh. Tuhin Chatterjee for the month of August shows that the complainant had attended his classes on 12.08.14 & 13.08.14 only.  The Lecture Attendance Record of the faculty of Ms. Princy Jain for the month of August, 2014 shows that the complainant had attended her classes on 12.08.14 & 14.08.14 only. The Tutorial Attendance Record of the faculty of Ms. Vandana Munjal for the month of August, 2014 shows that the complainant had attended her class on 12.08.14, 13.08.14 and 19.08.14.  The Tutorial Attendance Record of the faculty of Sh. Vaibhav Chauhan for the month of August, 2014 shows that the complainant had attended his class on 13.11.14 only.  The Lecture Attendance Record of the faculty of Sh. Gaurav Dhamija for the month of August, 2014 shows that the complainant had attended his class on 13.08.14 only.  Lastly, the Lecture Attendance Record of the faculty of Sh. Aryapriya Ganguly shows that the complainant had attended his class on 20.08.14.  The attendance sheet for the month of August, 2014 to December, 2014 is vague and does not lead to any definite conclusion.  The percentage of the attendance of the complainant has been shown to be 13%, 26%, 54%, 25%, 4% & 20% in the subjects while the present percentage has been shown as 23.48%.  The same does not tally with the Lecture Attendance Record of different faculties discussed hereinabove.  Therefore, the authenticity of the attendance record submitted on behalf of the OP is highly doubtful and, therefore, we hold that the OP has failed to prove that the complainant had in fact attended the regular classes for 2-3 months or till the month of December, 2014.”

 

9.       We find no infirmity in the said finding.  The finding given is based on the material on record.  Considering the attendance record placed on record, it cannot be conclusively said that the respondent/complainant had attended regular classes for 2-3 months as has been contended. Further no such stand is also taken in written statement. Considering the material on record, respondent/complainant has attended very few classes in the beginning.

 

10.     As regards the contention of appellant/OP that the mother of respondent/complainant had given a Declaration of Acceptance wherein it is categorically stated that fee paid to institute is non-refundable, appellant/OP has relied upon Offer Letter/Acceptance, Ex-RW-1/3 (Colly); Copy of Application Form along with the Note of Understanding with Parents i.e. Ex-RW-1/5 (Colly). We have gone through the aforesaid documents. The Application Form, Ex-RW-1/5 Colly (Mark A-5) for admission with appellant/OP taken from respondent/complainant also contains a declaration that the fee once paid will not be refunded under any circumstances.  The said declaration has not been got signed from the respondent/complainant or his mother.  The Offer of Admission, RW-1/3(Colly) also has ‘Declaration of Acceptance’ which is signed by mother of respondent wherein she has accepted that fees of ISBF are not refundable.

 

11.     As discussed above, respondent/complainant has attended only 2-3 classes and was not satisfied with the quality of education being provided there.  As per his evidence while taking admission, he was assured that he could take 2-3 trial classes and if not satisfied, fee was agreed to be refunded to him. There is also nothing on record to show that the respondent/complainant had blocked the seat for the entire year as is alleged.  The appellant/OP was free to fill up said seat from the other deserving candidates when respondent/complainant requested for refund of fee. Nobody had stopped appellant/OP to fill up the seat.  It appears no efforts were made by appellant/OP in this regard.  In these circumstances such a term in the contract is an unfair trade practice and is not binding upon respondent/complainant in any manner. Without providing service, appellant/OP cannot refuse to refund the fee. In coming to above conclusion, reliance is placed on the judgement of National Commission in Birla Institute of Technology and Science, Pilani & Ors vs Abhishek Mengi, II (2013) CPJ 681 (NC).  The relevant portion of same is as under:

“It is admitted fact that on 29.7.2009, respondent appeared before the Admission Counselling Committee.  At that time, respondent told the Counselling Committee that he is not interested in admission in the petitioner’s institute because, he has to attend counselling at PEC, University of Technology on 31.7.2009. Consequently, respondent got admission in PEC, University of Technology and asked for refund of the advance fee.  It is also the case of respondent, that he never attended classes in the petitioner’s Institute except on 31.7.2009.  As already observed, petitioners have not placed any document to show that seat vacated by the respondent was not filled up at all.  There is no evidence to this effect.”

 

12.     In view of above discussion, no infirmity or illegality is seen in the order of the District Forum whereby it is held that appellant/OP has committed deficiency in service by not refunding fee.

 

13.     We may mention that during course of arguments, Ld. Counsel for appellant/OP has pointed that fee deposited by respondent/complainant included service tax also.  If any service tax is charged, the same be deducted by appellant/OP while refunding the fee.  The other directions given by Ld. District Forum about interest, compensation, cost are upheld.

 

14.     Appeal stands disposed of accordingly.

         

15.     A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information.  The record of the District Forum be also sent back forthwith.  Thereafter the file be consigned to record room.   

 

 

 

 (Justice Veena Birbal)

• President

 

 

(Salma Noor)

Member