Complaint filed on: 06-04-2013
Disposed on: 24-05-2014
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.756/2013
DATED THIS THE 24th MAY 2014
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.H.JANARDHANA, MEMBER
Complainant: -
Mr.Deepak Hemadri
453, 12th Main Road,
MC Layout, Vijayanagar,
Bangalore - 40
Bangalore-03
V/s
Opposite party: -
Ms.Benegal, Principal,
The Brigade School,
Brigade Gateway Enclave,
No.26/1, Railway Parallel Road,
Malleshwaram West,
Bangalore – 55
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, praying to pass an order, directing the OP to refund Rs.45,000=00 and other relief as prayed in the complaint, in the interest of justice and equity.
2. The brief facts of the complaint can be stated as under.
On 16-10-2012 an application for LKG admission was submitted to the OP by complainant for admission of his daughter Ritu Deepak Hemadri for the year 2013-14. On 20-11-2012 the school sent an invitation letter for admission with a schedule of fees to be paid to the school, this schedule of fees included a processing free of Rs.10,000=00 and five installments of Rs.35,000=00, Rs.45,000=00, Rs.28,255=00, Rs.28,255=00 and Rs.28,255=00 amounting to Rs.1,74,675=00 in total for LKG. On 25-11-2012 Rs.45,000=00 was paid to school via a deposit into their account Bank of India, Milk Colony branch, Bangalore to secure admission. The next installment of Rs.45,000=00 was due on 2-4-2013. On 19-3-2013 an email was sent to the school communicating his desire not to admit his daughter to the Brigade School due to personal reasons and he requested in the same email to refund of fees paid. The school replied to the email of complainant that since the complainant has signed an application where he agreed that no refund of fees would be made, they would not be refunding the fees paid. Since the school term has not started and no service was yet received by complainant’s daughter, the complainant requested the school to reconsider the refunding of fees as no service was received for the consideration paid to the school. On 19-3-2013 the school sent an email stating that they are cancelling the complainant’s daughter admission and offering the seat to another candidate. On 5-4-2013 after repeated follow ups the school over the telephone informed that they will not be refunding the fees at all and he was free to approach the court of law. Hence the complainant has come up with the present complaint.
3. After service of the notice, the OP has appeared through its counsel and filed version contending inter-alia as under:
The complaint of complainant is not maintainable and it is filed solely with mala-fide intention to unjustly harass the OP and there is not cause of action to file the complaint. Granting admission to a child in an educational institution by itself does not amount to rendering service as per the provisions of the CP Act. The complainant has deposited the amounts with the OP only after being satisfied with the quality of education rendered by the OP and the OP clearly conveyed to the complainant that any amounts paid towards admission fee shall not be refunded and the complainant has also agreed to the same by signing the declaration as stipulated in the form for expression of interest. The complainant by seeking to cancel the admission of his daughter after having expressed his interest to seek admission for his daughter in LKG in the institution of the OP and having paid the admission fee after having understood the fee structure and being aware of the fact that the amounts paid towards admission would not be refunded has filed this complaint only with a view to harass the OP. The complainant having entered into a contract with the OP has committed a breach of the terms of the contract and as such the action of the complainant amounts to breach of contract. On this ground alone the complaint is liable to be dismissed. The expression of interest form filled and signed by the complainant clearly shows the interest and the complainant had in the school and the intention of the complainant to secure admission for his daughter. The OP informed the complainant of the fees structure and made the complainant aware of the fact that fees once paid would not be refunded as per the policy of the school, and accordingly the complainant has signed the declaration in the expression of interest form. The complainant deposited the said amount with complete knowledge that once the amount was deposited it could not be refunded. On 19-3-2013 the complainant sent an email to the OP requesting to withdraw his admission application and requesting a refund of the fees paid. No reasons were given by the complainant and the wife of the complainant other than circumstances beyond their control for revoking admission of their daughter. In response to the email sent by the complainant the OP addressed an email dated 19-3-2013 wherein it is informed to the complainant that as per school policy fees once paid cannot be refunded and the complainant without furnishing any reasons for the same is strongly indicative of the conduct of the complainant in resorting to school shopping, so the complaint of complainant is not maintainable. Since the contract was unilaterally terminated by the complainant even when it was repeatedly and categorically conveyed by the OP to the complainant that the fees once paid could not be refunded. There is no negligence and deficiency of service on the part of the OP. So it is prayed to dismiss the complaint of complainant with cost.
4. So from the averments of the complaint of complainant and version of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP in not refunding his amount as prayed in the complaint?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Affirmative
Point no.2: The complainant is entitled to claim a
Sum of Rs.45,000=00 along with cost of litigation of Rs.2,000=00
Point no.3: For the following reason
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced seven copies of documents. On the other hand, one C.P.Raphel Thomas, Admin coordinator working in the OP has filed his affidavit on behalf of the OP and produced no documents. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides scrupulously.
7. One Deepak Hemadri, who being the complainant has stated in his affidavit that, on 16-10-2012 an application for LKG admission was submitted to the Brigade School for his daughter Ritu Deepak Hemadri for the year 2013-14. On 20-11-2012 the school sent an invitation letter for admission with a schedule of fees to be paid to the school, this schedule of fees included a processing fee of Rs.10,000=00 and five installments of Rs.35,000=00, Rs.45,000=00, Rs.28,255=00, Rs.28,255=00 and Rs.28,255=00 amounting to Rs.1,74,675=00 in total for LKG. On 25-11-2012 Rs.45,000=00 i.e. processing fee of Rs.10,000=00 and first installment of Rs.35,000=00 was paid to school via a deposit into their account Bank of India, Milk Colony branch, Bangalore to secure admission. The next installment of Rs.45,000=00 was due on 2-4-2013. On 19-3-2013 an email was sent to the school communicating his desire not to admit their daughter to the Brigade School due to personal reasons and he requested in the email to refund of fees paid. The school replied to his email that since he has signed an application wherein he agreed that no refund of fees would be made, they would not be refunding the fees paid. Since the school term has not started and no service was yet received by his daughter, he requested the school to reconsider the refunding of fees as no service was received. On 19-3-2013 the school sent an email stating that they are cancelling his daughter’s admission and offering the seat to another candidate. On 5-4-2013 after repeated follow ups the school over the telephone informed that they will not be refunding the fees at all and he was free to approach the court of law, so the complaint is filed, so the complaint be allowed and pass an order as prayed in the complaint. .
8. Let us have a look at the relevant documents of complainant. Exhibit-A is the copy of expression of interest form filled up and signed by the complainant and his wife dated 16-10-2012 seeking admission of their daughter Ritu Deepak Hemadri for LKG and in the declaration column it is stated that fees once paid will not be refunded. Exhibit-B is the copy of letter of OP dated 20-11-2012 addressed to the complainant stating that they are happy to invite his child to join their school for the year 2013-14 and in order accept the invitation the complainant as to pay Rs.10,000=00 as process fee to be paid to Bank of India, Milk Colony branch and this letter to be produced at the bank to receive a specific fee challan and submitted fee paid challan and photocopy of the report card of latest exam. Exhibit-C is the copy of Bank challan for having paid Rs.45,000=00 to the OP, processing fee of Rs.10,000=00 and Rs.35,000=00 towards first term fee for LKG. Exhibit-D is the copy of email letter of complainant addressed to the OP dated 19-3-2013 stating that they had admitted their daughter Ritu Deepak Hemadri to OP institution to the LKG class of 2013-14 and due to certain circumstances beyond their control they are forced to withdraw their admission application and requested to refund the fee paid. Exhibit-E is the copy of email letter of OP addressed to the complainant stating that it is the policy of the school that fees once paid cannot be refunded and the complainant has signed expression of interest form wherein in the declaration it is stated that fees once paid cannot be refunded. Exhibit-F is the copy of email letter of complainant addressed to the OP stating that since school has not started yet and requested the OP to refund the amount paid. Exhibit-G is the copy of email letter of OP addressed to the complainant stating that their offer for admission dated 20-11-2012 stands cancelled and the seat offered to another candidate and fees once paid cannot be refunded.
9. At this juncture, it is relevant to have cursory glance at the material evidence of the Ops. One C.P.Raphel Thomas, Admin Co-ordinator of the OP has stated in his affidavit that, the complainant does not fall within the scope of the definition of consumer as defined in section 2 (d) of the CP Act. The complainant has deposited the amounts with them only after satisfied with the quality of education and they clearly conveyed to the complainant that any amounts paid towards admission fee shall not be refunded and the complainant has also agreed to the same by signing the declaration in the form for expression of interest and being aware of the fact that, the amounts paid towards admission would not be refunded has filed this complaint only with a view to harass them. The said action of the complainant amounts to breach of contract and on this ground alone the complaint is liable to be dismissed. The complainant has signed a contract with them and is guilty of termination of this contract by sending email. So the complaint of complainant is not sustainable, so the complaint be dismissed with cost. But unfortunately no documentary evidence is produced by the OP in support of evidence of its employee.
10. On making careful scrutiny of the oral evidence of both parties and documentary evidence of complainant, it is made unambiguously clear that, the complainant has filed an application i.e. Expression of Interest Form of OP for getting admission of his daughter Ritu Deepak Hemadri to LKG to the OP institution for the year 2013-14 by paying amount of Rs.45,000=00 out of Rs.1,74,675=00, during the month of Nov.2012 and after paying the amount Rs.45,000=00, the OP has sent a letter to the OP expressing thanks to the complainant showing interest to join his daughter to the OP institution for LKG and the complainant was informed that his child name will be added to the rolls when the process is completed, required documents to be submitted and all the fees paid as per the details given in the letter and in order to accept the invitation, the OP called upon the complainant to give processing fees of Rs.10,000=00 to be paid to the Bank of India, Milk Colony branch, Bangalore and this letter to be produced at the bank to receive a specific fee challan and photocopy of the report card of the latest exam and before doing all the formalities the complainant took decision not to send his daughter to the OP school and requested the OP by sending email to refund the amount paid by him, but the OP has refused to refund the amount to the complainant alleging that once fees paid is nonrefundable as per the declaration of expression of interest form which was filled and signed by the complainant and his wife and this fact was known to the complainant duly and this made the complainant to come up with the present complaint before the forum, but the OP after putting appearance has taken up stand of non-refundable clause mentioned in the expression of interest form.
11. One of the email letter of the OP produced by the complainant at Exhibit-F makes it clear that, the offer of OP for admission dated 20-11-2012 stands cancelled and the seat was offered to another candidate. The act of the OP in making cancellation of offer for admission of child of the complainant and giving that seat to another candidate makes it clear that, the child of the complainant was not yet admitted to the LKG of OP school and the OP has offered LKG seat to the complainant for admission of his child and the complainant has not yet accepted the offer as he has taken up the decision not to send his child to the school of OP. Since the complainant has not completed the admission process of his child to LKG by paying full amount and sending his child to the OP school, so the OP is not justified in refusing to refund the amount of complainant. Moreover the OP did not sustain any loss as the OP allotted that seat to another candidate. As the OP has not given any service to the complainant after receiving part fees of Rs.45,000=00 out of it Rs.1,74,675=00, so the OP cannot retain the amount of complainant for no reason and as such we are of the opinion that, the oral and documentary evidence of the complainant placed before the form are more believable trustworthy and acted upon than the material evidence of Ops.
12. The learned counsel for the OP has relied on the following authorities.
1) The decision rendered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition no.270/2006 dated 29-1-2010 (Brilliant Classes –vs- Shri.Ashbel Sam)
2) The decision rendered by the Hon’ble High Court of Punjab and Haryana in Civil Writ Petition no.11819/1993 dated 31-1-1994 (Raj Singh –vs- The Maharshi Dayanand University and Ors)
3) The decision rendered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition no.4464/2012 dated 31-5-2013 (Globsyn Business School –vs- Mayuri Ghosh)
4) The decision rendered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition no.231/2002 dated 1-3-2002
13. We are in respectful agreement with the guidelines of the said decisions given by the Hon’ble High Court and Hon’ble National Commission. Looking to the present case on hand on the back ground of the said decisions admittedly, the complainant has not yet paid the entire fees to the OP towards admission of his child to LKG and academic year for 2013-2014 was not yet started and child was not sent to the school of OP by complainant. In the meantime, the complainant took decision not to send his child to the OP school and the OP has given only offer to complainant for admission to the LKG of his child and that offer has not been accepted by the OP by paying full amount and sending his child to the OP school. In the meantime, the OP cancelled the offer given to the complainant for admission and gave that seat to another candidate, in view of claim submitted by the complainant for refund of the amount. So there is no monetary loss to the OP as the OP has allotted that seat to another candidate. Since, no service has been taken by the complainant from the OP there is no question of retaining the amount of complainant by OP under guise of nonrefundable clause. So under the circumstance, we are of the view that, the fact of present case on hands and facts and circumstances of the above decisions quoted by learned counsel for the OP are totally different, so the said citations will not come to rescue of the OP. So from the material evidence placed by both parties before the forum we are inclined to come to straight conclusion that, the complainant who comes to forum seeking relief has proved with believable material evidence that, the OP is negligent and there is deficiency of service on the part of the OP in not refunding the amount to him, and accordingly, we answer this point in a affirmative.
14. In view of our affirmative finding on point no.1, the complainant is entitled to refund of Rs.45,000=00 from OP. The Op is directed to refund Rs.45,000=00 to the complainant within 30 days from the date of this order failing which, the Op shall pay the said amount to the complainant along with 6% interest per annum on the said amount from the date of this order to till the date of realization and the Op is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation, and accordingly, we answer this point. In the result, for the foregoing reason, we proceed to pass the following order.
ORDER
The complaint of the complainant is partly allowed. The Op is directed to refund Rs.45,000=00 to the complainant within 30 days from the date of this order failing which, the Op shall pay the said amount to the complainant along with 6% interest per annum on the said amount from the date of this order to till the date of realization.
The Op is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this, 24th day of May 2014).
MEMBER PRESIDENT
