DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No. 429/2012
Mr. Kishan Dhoot
S/o Sh. Purushotam Dhoot
R/o 106/2, Govind Puri,
Kalkaji, New Delhi-110019
….Complainant
Versus
M/s FIIT JEE Limited,
Through
Mr. R.K. Thakur Chairman,
Having its registered office at,
FIIT JEE House,
29-A, Kalu Sarai,
Sarvapriya Vihar,
New Delhi-110016
….Opposite Party
Date of Institution : 23.08.2012
Date of Order : 23.03.2023
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
- On the strength of his complaint, Complainant has prayed for directions to OP to refund the amount of Rs. 1,47,591/- received towards fee alongwith interest @18% p.a. Additionally, it is prayed that OP be directed to pay compensation to the tune of Rs. 50,000/- for mental pain agony and Rs. 25,000/- towards litigation cost.
- Complainant’s son who was a minor took admission in FIITJEE (hereinafter OP) and paid Rs. 1,47,592/- in two installments towards fee for two year classroom course which included the material to be supplied by OP. Complainant deposited sum of Rs. 60,635/- and issued Post Dated Cheque to the tune of Rs. 86,405/- dated 24.04.2012 to OP, at the time of admission.
- It is stated by the Complainant that due to illness of his son and even as per doctor’s advice who was treating the Complainant’s son for acute migraine, Complainant decided not to send his son to OP institute. Accordingly complainant informed OP telephonically regarding Complainant’s son’s decision to discontinue with OP institute prior to the commencement of classes. Complainant on 07.04.2012 submitted a letter to OP alongwith certificate of doctor stating therein the situation which forced the Complainant to withdraw his son from OPs institute. As OP did not respond to the said letter, he wrote another letter dated 15.04.2012 showing the inability of his son to attend the classes and request for refund of the amount paid to OP. It is stated that despite oral as well as written requests OP preferred not to refund the hard earned money of the Complainant, instead OP presented the cheque of the Complainant lying with them and got the same encashed.
Alleging deficiency of service and unfair trade practice on behalf of OP, Complainant approached this Commission for relief.
- OP filed its written version stating interalia that the Complainant has agreed and accepted the arbitration clause forming part of declaration attached to the enrollment form. Hence this complaint is barred by the arbitration agreement and the matter be referred to the sole arbitrator.
- It is next stated that the Complainant and his son have signed the enrollment form and as per the terms & conditions of the enrollment form fees once paid is not refundable. The Complainant and his son have read, understood and thereafter accorded their consent to the terms & conditions in the enrollment form, without any coercion or undue influence. Thus by signing those declarations both of them have accorded their unconditional and free consent and are now bound by them as per law.
- It is further stated that Complainant has failed to show any deficiency of the terms & conditions of the contract on part of OP. It is next stated that OP to ensure quality education and uniform teaching standard and also keeping in mind the student’s interest does not fill the vacancy created against any student who leaves the course midway. It is also stated that OP is a self-financed and self-management institute and runs from the fees collected from the students. Most of the expenditure is incurred in advance and is also of fixed nature. OP has to bear expenditure like lease rent of the premises, salary of faculty members and non faculty staff, electricity and other allied expenditures, preparation and printing of study materials etc. irrespective of number of student and batches. Further total fee includes taxes as applicable and cost of study materials supplied to the students.
In view of the aforesaid premises, it is prayed that the complaint be dismissed being not maintainable.
- Rejoinder is filed on behalf of the Complainant, evidence by way of affidavit and written submissions are filed on behalf of parties. Arguments of learned counsels are heard. Material placed on record is perused.
- Preliminary objection raised by OP as regards the arbitration clause finds no merit with this Commission. As per Section 100 of Consumer Protection Act,2019 the provisions of this Act are in addition and not in derogation of the provisions of any other law for the time being in force. Therefore, availability of arbitration as a remedy does not debar the Complainant from approaching Consumer Commission in case of deficiency rendered to him/her.
- The second preliminary objection of OP is that the Complainant and his son had accorded their consent to the terms and conditions contained in the admission form, without any coercion or undue influence, therefore they are bound by those terms and conditions as per law. On perusal of the agreement, it is observed that no exit clause has been provided in the agreement in case the student finds the service of OP unsatisfactory and wishes to withdraw from the institute. Therefore, absence of the exit clause makes the agreement unconscionable, as it is one sided.
Hon’ble State Commission in Brilliant Tutorial V/s Rahul Das reported as Appeal No. 509/2006, decided on 09.01.2017, held that:
“Any such term of contract between the parties, which allows the provider of service to forfeit the amount of service, which he has not provided is against the public policy and good conscious, unjust and unconscionable as the provider of service has the right to charge consideration only if it provides the services.”
A declaration in the enrollment form mentioned in Written Statement of OP reads as under:
Para.6 – I understand that if I leave the institute before completing the full course for any reason whatsoever, including transfer of parents/guardians/ill health of self or any other member of family or my admission in any Institute/Engineering college etc., or my studentship is cancelled because of misconduct etc., I or My parents/guardian shall have no claim for refund of fees.
The Supreme Court has further held in LIC of India & Anr. Vs Consumer Education & Research Centre &Ors. (1995) 5 SSC 482 (hereinafter, ‘LIC of India’) that-
“It is, therefore, the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties”.
- Above condition on mere reading shows that the terms and conditions are arbitrary and unreasonable. Also the fact that the Complainant /Parent was in no position to negotiate the terms and had no option but to sign on the dotted lines, we opine that OP cannot draw any benefit from the consent of the Complainant as the agreement is unjust, unconscionable and one sided. It is settled that the terms of the agreement are not invincible or indestructible, if the same are unreasonable or unfair.
- As regards the seat of OP which had remained vacant during the duration of the said batch, nothing has been placed on record to substantiate the said averment. It is next noticed that OP was unjust and not fair in presenting the cheque dated 24.04.2012 for the value of Rs 86,405/- and getting it encashed despite having knowledge on 7.04.2012 of Complainants’ son not continuing with the classes.
- However, considering the fact that OP is a self- financed and self managed institute, we think it appropriate that OP retains proportionate reasonable fee the costs incurred by them and refund the remaining amount to the Complainant. Therefore it would be proper and just if out of Rs.1,47,591/- paid by complainant to OP towards fee, OP retains Rs 35,000/- for books, study material and taxes etc. and refund the remaining amount to the complainant.
- Accordingly, OP is directed to refund Rs. 1,12,591/- @ 6% per annum from the filing of the complaint within three months from the date of receipt of the order, failing which OP shall pay Rs.1,12,591/- @ 9% per annum till realization.
Parties to be provided copy of order as per rules. Order be uploaded on the website.
File be consigned to the record room.
