Delhi

South Delhi

CC/336/2019

MANAS MEHRA - Complainant(s)

Versus

M/S FIITJEE LIMITED - Opp.Party(s)

10 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

 

Case No.336/2019

Sh. Manas Mehra

Acting through his father and

Natural Guardian

Gp. Capt. Manoj Mehra,

Resident of 6/1, Old Willingdon Camp,

Indian Air Force, Race Course,

New Delhi-110003

 

….Complainant

Versus

M/s FIITJEE Limited

FIITJEE House

29-A, Kalu Sarai

Sarvapriya Vihar

(Near Hauz Khas Bus Terminal)

New Delhi-110016

 

      ….Opposite Party

    

 Date of Institution    : 05.12.2019      

 Date of Order            :10.02.2023      

 

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

 

ORDER

 

 

Member: Ms. Kiran Kaushal

 

1. Briefly put, complainant being a minor has filed the complaint through his father and natural guardian, Group captain Manoj Mehra.
2. The complainant took admission in FIITJEE (OP) for a two year weekend class programme for JEE advance 2021,which was to commence from April, 2019. Complainant paid fees of Rs. 4,01,493/- on 29.10.2018 for the same. Receipt of the same is annexed as Annexure-C/2.
3. It is stated that the complainant attended two weekend classes and after attending the same, found the coaching to be unsatisfactory. Therefore he desired to discontinue the coaching and sent a withdrawal letter through his father on 21.05.2019. It was informed through the said letter that the complainant would be withdrawing from the aforesaid course w.e.f. 25.05.2019. Refund of the fee paid i.e Rs. 4,01,493/- was sought after proportion deduction for two weekend classes which the complainant had attended.
4.  Complainant was surprised to receive reply  dated 31.05.2019 from OP denying refund of the fees after relying upon the declaration made in the enrollment form.
5. It is next stated by the complainant that after sending the legal notice dated 25.06.2019, OP vide email dated 19.07.2019 informed the father of the complainant that payment of Rs. 24,780/-was credited to his bank account through NEFT without giving any details. Complainant’s father sent another letter dated 03.09.2019 seeking details as to why only part payment was refunded. Balance amount was sought to be refunded however OP neither responded nor refunded the balance amount to the complainant. Hence the instant compliant. 
6. Alleging deficiency of service and unfair trade practice complainant prays for direction to OP to refund Rs. 4,01,493/- after making deduction of the proportionate amount of two weekend classes and further deduction of Rs. 24,780/- paid by OP to the complainant. Additionally, compensation of 2 lac is sought, for harassment and mental agony. It is further prayed that OP be directed to pay interest @ 18% p.a. on the monetary relief sought for and Rs. 22,000/- towards the litigation cost.
7. OP resisted the complaint and filed its reply stating inter alia that  complainant is not a consumer in view of the observation of Hon’ble Supreme Court in  PT Koshi Vs L.N. Charitable Trust wherein it has been  held that education is not a commodity. Educational institutions are not providing any kind of service therefore there cannot be any question of deficiency in service.
8. It is next stated by OP that the complainant had chosen the fee payment Plan-I for the course. The total fee of the said course programme is Rs. 3,47,399/- including GST of Rs. 52,993/- Copy of the fee receipt is annexed as Annexure OP-4. It is also stated that the amount of Rs. 24,780/- has been refunded to the complainant on account of ‘Success guarantee challenge fee'.
9. It is next stated that complainant and his son were made aware of the terms & conditions of OP’s institute before enrolling. It was made clear that as per the terms & conditions of the enrollment form, fees once paid shall not be refunded under any circumstances and they would have to give undertaking to that effect. It is stated that complainant has signed the enrollment agreement without any coercion or duress. Having signed the enrollment form complainant is now bound by the terms contained in the enrollment form. OP relying on revision Petition No.270/2006 Brilliant Class Vs. Sh. Ashbel Sam decided on 29.01.2010 by Hon’ble National Commission states that OP by not refunding the fees is neither deficient in rendering service nor indulging in unfair trade practice.
10. It is further stated that if the fee  of the complainant  is refunded it would cause  irreparable loss and injury to OP as OP does not fill  the vacancy created against any student who leaves the course midway. It is stated that seat vacated by the complainant has remained vacant throughout the course .It has not been filled to maintain the quality and uniformity, therefore the institution is entitled for the fee of the programme.
11. It is further stated that OP is a self-financed and self-managed institute and runs from the fees collected from the student most of the expenditure is incurred advanced in and is also fix nature OP has to bear expenditures like lease rent of premises, salary of faculty members and non faculty staff, electricity and other allied expenditures, preparation and printing of study material, etc.

In view of  the aforesaid premises it is prayed that the complaint be dismissed, being non-maintainable.

Rejoinder is filed on behalf of the complainant. Evidence and written arguments are filed on behalf of both the parties.  Submissions made are heard. Material placed on record is perused.

 

12.     The first objection raised by OP  that complainant is not a consumer in view of the observation of Hon’ble Supreme Court taken in case title as PT Koshi Vs L.N. Charitable Trust wherein it has been held that education is not a commodity, is not maintainable. Distinguishing the above law laid, a three judge bench of Hon’ble National Commission in Deepak Tyagi and others v/s Sh. Chatrapati Shivaji pronounced on 20.01.2020, in para 46 held:

 

 

“We are of the opinion that any defect or deficiency or unfair trade practice pertaining to a service provider like coaching centres does fall within the jurisdiction of the Consumer Forum.”

 

13.    Therefore, in view of the law laid down in the case (supra) the institute of OP, does fall within the jurisdiction of this commission and complainant does fall within the definition of consumer.

 

14.    The next objection raised by OP is that the Consumer Commission cannot go behind the terms of the contract .As complainant and his son had accorded their consent to the terms and conditions contained in the enrollment form without any coercion or undue influence therefore, they cannot agitate the same now. Regarding this, we feel it is pertinent to look into the clauses mentioned in the enrollment form. A clause in the Enrollment Form  is reproduced as under for perusal -

 

Para 8: “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 the 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.”

 

15. Mere reading of the Paragraph above shows that agreement clause is arbitrary and unreasonable. We do not find any merit in the above assertion of OP, as the contract is evidently one sided and Complainant was not in position to negotiate the terms. We are of the view that the terms of the agreement are not invincible or indestructible, if the same are unreasonable or unfair.

 

16.  The following extracts from the judgment of Hon’ble Supreme Court in the matter of LIC of India Vs Consumer Educational & Research Centre (1995) 5 SCC 482  are worthy of consideration:-

 

“ 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. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forego the service forever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract.”

 

17.    Further it is noticed that no exit clause has been provided in the agreement in case the students finds the services of OP unsatisfactory and wishes to withdraw from the Institute. Absence of the exit clause makes the agreement unconscionable as it is one sided.

 

18.   Similar, view has been taken in Brilliant Tutorial Vs Rahul Das reported as Appeal no. 509/2006 decided on 09.01.2017 wherein the view of the Hon’ble State Commission, Delhi was 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 service.”

 

19.     Therefore, we are of the opinion that OP cannot draw any benefit from the consent of the Complainant as the terms of the contract are arbitrary, unreasonable and one sided.

20.    As regards OP not filling the vacancy, nothing has been placed on record by OP to substantiate the same. Even if we consider the fact that OP must have incurred costs prior to commencement of the said course, OP cannot forfeit the full fee of the complainant on the pretext of financial loss when the student has attended only two weekend classes. It would not be just and proper for OP to retain the full two years course fee from the student/complainant’s son who attended only two weekend classes.

 

For refund of fee, we are guided by FIITJEE Ltd. V/s Minathi Rath and anr 2012 (1) CPJ 194 (NC) and Islamic Academy of Education V/s State of Karnataka (2003) 6 SCC 696, wherein inter alia it is observed as follows:

“16.1 In our view an educational institution can only charge prescribed fees for one semester/year, if an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream.

If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalized bank (emphasis supplied). As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance”

21. Therefore, we are of the considered view that OP is entitled to deduct fee for the period, services of OP were availed and proportionate reasonable fee from the advance fee collected, for the cost incurred by them and refund the remaining amount to the complainant. As per the 'Instrument Acknowledgement' issued by OP, appended at Page 14 of the complaint, Complainant had paid total amount of Rs 4,01,493/-. OP in their pleadings have nowhere stated that the said instruments have not been encashed therefore it is assumed that OP has received the said amount.
22. In view of the above, OP is directed to refund the above stated amount after deducting the amount paid by OP towards  tax i.e. Rs. 52,993/-, amount already paid to the complainant i.e. Rs. 24,780/- and proportionate deduction for the two weekend classes. Therefore OP is directed to pay Rs 3,20,000/- with interest @ 6% p.a. from the date of filing of complaint within three months from the date of order. Failing which OP shall pay the above stated amount @ 9%p.a. Additionally OP is directed to pay Rs 25,000/-compensation for harassment and litigation charges.

 

Parties to be provided copy of order as per rules. Order be uploaded on the website.

 

File be consigned to the record room.