Tamil Nadu

South Chennai

CC/67/2019

Domnic Savio & Another - Complainant(s)

Versus

M/s FITJEE Ltd., & Another - Opp.Party(s)

M/s B Sundar

07 Nov 2019

ORDER

                                                                                 Date of filing  : 19.03.2019

                                                                                   Date of Order : 07.11.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.67/2019

DATED THIS THURSDAY THE 07^TH DAY OF NOVEMBER 2019

                                 

1. Mr. S. Dominic Savio,

S/o. Mr. Selvaraj,

No.7-A, Natwest Paradise,

10^th Cross Street,

A.G.S. Colony,

Velachery,

Chennai – 600 042.   

 

2. Ms. D. Benita Marlene,

Represented by her father & natural guardian

Mr. Dominic Savio,

No.7-A, Natwest Paradise,

10^th Cross Street,

A.G.S. Colony,

Velachery,

Chennai – 600 042.                                                       .. Complainants.                                                     

..Versus..

 

1. The Director Operations (Tamil Nadu & Kerala),

M/s. Fiitjee Limited,

No.3, Fiitjee Towers, First Lane,

Nungambakkam High Road,

Nungambakkam,

Chennai – 600 034.

 

2. The Chairman & Managing Director,

M/s. FIITJEE Limited,

At its registered office at:

No.29A, Kalu Sarai,

Sarvapriya Vihar,

New Delhi – 110 016.                                             ..  Opposite parties.

Counsel for the complainants :  M/s. B. Sundar & others

Opposite parties 1 & 2            :  Exparte

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants against the opposite parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 prays to refund the partial refundable fees amount of Rs.3,82,915/-, to pay a sum of Rs.1,55,000/- towards interest at the rate of 12% p.a. on the outstanding amount and to pay a sum of Rs.2,00,000/- towards compensation for mental agony and deficiency in service with cost of Rs.25,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

                The 1^st complainant is father and the 2^nd complainant is his daughter.  Based on the advertisements of the opposite parties 1 & 2 promising professional coaching for admission to Indian Institute of Technology (IIT) she opted for a course named “Three year classroom program for IIT-JEE (IIT Joint Entrance Exam)- Weekend Contact Classes” that commenced from April 2015. After a year in order to allow the complainant to attend the course as a part of her regular school she upgraded the course to “PinnacleTwo year Integrated School Program for IIT”.  Her enrolment details with the opposite party educational institution were as follows:-

• Enrollment Number : 1062621580011
• Enrollment Date      : 19.02.2015
• Study Center          : Adyar, Chennai

The complainants submit that a total sum of Rs.4,71,145/- was collected from her for the entire three year course even before the commencement of the course.   The entire fees was paid very earlier but actual Pinnacle course commenced only from 1^st June 2016.   The complainants submit that within a month from the start of the two year Pinnacle course the 2^nd complainant informed the 1^st complainant that she do not want to continue the course since there is no proper coaching, the standard of faculty is not satisfied, there is no proper classroom and infrastructure provided by the opposite parties.  The complainants submit that the 2^nd complainant’s mother sent an email to the Center Co-ordinator of Adyar Branch on 29.06.2019 informing that her daughter, 2^nd complainant wants to discontinue the course and requested to refund the course fee. 

2.     The complainants submit that there are several email correspondence between the complainants and the opposite parties representatives but received no proper response regarding the refund of fees.  Hence, the 1^st complainant sent an email dated:02.12.2017 for refund of fees stating that in order to reserve the issue no arbitrator also appointed as per the terms and conditions. The complainants submit that on 29.06.2019, the complainant’s mother namely Mrs. Clotine Marie wrote an email to the center co-ordinator of Adyar Branch, Mr. Guddeti VRSKV Prasad informing about the complainant’s decision to discontinue the court and requested for the refund of the course fees.  For about six months Mr. Prasad was dodging about refund citing delay in Administrative process and subsequently avoided even attending the phone calls of the complainant’s parents.  The complainants submit that even after repeated emails on various dates the opposite party has not come forward to settle the demand of the complainants.   The act of the opposite parties caused great mental agony and inconvenience to the complainants.  Hence, the complaint is filed.

3.     After receipt of notice, Advocate Mr. A. Palaniappan undertakes to file Vakalath but has neither filed Vakalath nor written version within the stipulated time and hence, the opposite parties 1 & 2 were set ex-parte.

4.     Though the opposite parties remained Ex-parte, this Forum is to dispose of this compliant fully on merits with available materials evidences before this Forum. 

5.     In such circumstances, in order to prove the allegations made in the complaint the proof affidavit is filed by the complainants as their evidence, and also documents Ex.A1 to Ex.A16 are marked.  

6.      The points for consideration is:-

 

1. Whether the complainant is entitled to get refund of the partly refundable fees amount of Rs.3,82,915/- and to pay a sum of Rs.1,55,000/- towards interest on the above amount at the rate of 12% p.a. as prayed for?
2. Whether the complainant is entitled to a sum of Rs.2,00,000/-  towards compensation for deficiency in service and unfair trade practice and a sum of Rs.25,000/- towards cost as prayed for?

 

7.      On point:-

The opposite parties 1 & 2 after receipt of notice entered appearance through Advocate Mr. A. Palaniappan and has not filed Vakalath and written version before this Forum and remained ex-parte.  The complainants 1 & 2 filed their proof affidavit and written argument.  Heard the complainant’s Counsel also.  Perused the records namely; the complaint, proof affidavit and documents of the complainants.  The 1^st complainant is father and the 2^nd complainant is his daughter.  The complainants pleaded and contended that the 2^nd complainant opted for a course named “Three Year Classroom program for IIT-JEE” (IIT Joint Entrance Exam) Weekend contact classes; commenced from April 2015.  After one year, in order to attend the course the 2^nd complainant she attended this course to upgraded the school in “Pinnacle” Two Year Integrated School Programme for IIT”.   Her enrolment details with the opposite party:

• Enrolment Number      :       1062621580011
• Enrolment Date           :       19.02.2015
• Study Center              :       Adyar, Chennai as per Ex.A1.

8.     Further the complainants contended that the entire three years course fee is of Rs.4,71,145/- paid to the opposite parties for the entire three year course even before the commencement of the course as per Ex.A1 (S) from 23.01.2015 to 12.02.2016.  But the actual “Pinnacle” course commenced from 1^st June 2016. But no document produced to prove the commencement of course as alleged by the complainant.  Further the contention of the complainants is that within a month from the start of the two year Pinnacle course, the 2^nd complainant informed the 1^st complainant that she do not want to continue the course since there is no proper coaching, the standard of faculty is not satisfied there is no proper classroom and infrastructure provided by the opposite parties.   But there is no record.   Further the contention of the complainants is that the 2^nd complainant’s mother sent an email to the Center Co-ordinator of Adyar Branch on 29.06.2019 informing that her daughter, 2^nd complainant wants to discontinue the course and requested to refund the course fee.  But the complainants has not filed any such document / letter / email.  

9.     Further the contention of the complainants is that there are several email correspondence between the complainants and the opposite parties representatives as per Ex.A2 to Ex.A11 received no proper response regarding the refund of fees.  Hence, the 1^st complainant sent an email dated:02.12.2017 as per Ex.A13 for refund of fees stating that in order to reserve the issue no arbitrator also appointed as per the terms and conditions.   Hence, the complainants without any other option except filing this complaint before the Consumer Forum filed this case. Further the contention of the complainants is that the conduct of the opposite parties proves the deficiency in service and unfair trade practice.   

 

10.    As per the decision reported in:

IN THE HIGH COURT OF DELHI AT NEW DELHI

FAO 490/2011

Between

FIITJEE LTD.

-Versus-

DN KOCHHAR

Held that

          “Fees refund: Should students sue education institutes and can they do so? Yes!

Law is on the side of students who want to leave an institute or course midway and are seeking refund of fees.   This also means, education institutes should not be charging upfront fees for the entire course and refuse refund, in case the student wants it.

Consider a typical scenario: A student takes admission to a coaching institute for a two year course, broken into four semesters.   The student signs the enrolment / admission form containing various conditions.   The institute collects upfront fees for the entire course.   After attending classes for a few days/weeks, the student is dissatisfied and wants to opt out, but the institute refuses to refund the fees.  It cites a clause in the admissions form that says, “Fees once paid shall not be refunded under any circumstances”.

When the student persists with the demand, the institute cites another clause in the form:  “In case of any dispute, matter shall be referred to arbitration and institute shall appoint the Arbitrator.  The decision of the arbitrator shall be final and binding on the parties”.

What is the solution? Here are two real life resolutions.

In one case, Mr. Minathi Rath, a student’s father, dragged the coaching institute to the Consumer Forum.   The State Commission held in 2006, that the clause “fees once paid is not refundable” was unconscionable and voidable”.   It further directed all educational institutes not to charge fees for the whole duration of the course in advance by way of lumpsum payment.   In another case, a student paid an upfront fee of Rs.1.8 lakh for a two-year coaching programme for the IIT-JEE entrance test.  After a few classes, he wanted to opt out and sought a refund.  As expected, FIIT-JEE (the coaching institute) refused, citing the non-refund clause which he had signed.

When the student’s father persisted with the request to refund the fee (after deducting a portion for the duration he attended the classes) FIIT-JEE initiated arbitration proceedings.   The Arbitrator declined to grant the refund and agreed with FIIT-JEE’s submission that once the student signed the admission form, he was bound by its clauses.

I entered the scene after the arbitration proceedings and filed an objection in the District Court against the order of the Arbitrator.   The District Judge reversed the order of the Arbitrator with detailed reasons.   The judge specifically noted that when a student signs the admission form, he has no bargaining power to negotiate, or refuse to sign any particular clause in the admission form.  Hence, these clauses should not be held against the student.  The District Judge also directed Arbitrator to refund the proportionate fee to the student.

The matter did not end there.  FIIT-JEE hired a big law firm and challenged the order in the High court, although the amount involved was only Rs.2 Lakh.   The matter came up before the High Court on 21 November 2011.

At the hearing, FIIT-JEE conceded that the non-refundable fee clause can be challenged as unconscionable under Section 23 of the Indian Contract Act, 1872, besides being in violation of the principles of public policy.   The High Court agreed with the District Judge’s view and remanded the matter to the Arbitrator for a decision after taking into account all the recent precedents on the point of law.  The order is available here.  Settled the fee issue in the case of Islamic Academy of Education Vs. State of Karnataka (2003) 6 SCC 696.  The Apex Court had expressed unhappiness with educational institutes charging the entire fees upfront and had said that students should only be asked to pay fees for a semester/year to begin with.

But FIIT-JEE argued before the NCDRC that the ruling of Islamic Academy was not applicable to it since it is not an educational institute but only a coaching institute.   The NCDRC was not impressed and upheld the order of the State Commission, directing FIIT-JEE to refund the fees.  The order is available here.

We now began a second round of arbitration in the second FIIT-JEE case as directed by the High Court, by providing all the rulings on the dispute.   This time the Arbitrator awarded the refund of fees for one year after deduction of statutory fees like Service Tax, etc.

In situations like these, students who want to leave an institute or course mid-way, usually hesitate to appoint a lawyer to argue their case.  On the other hand, institutes have the resources for good legal representation.  My advice to students is that the law is on your side if you want to fight.  And educational institutes should be prudent, desist from charge upfront fees for the entire course, and if they do, should not refuse a refund.

(Dushyant K Mahant, is Founding Partner of Mahant & Mahant and Intellectual Property Lawyer.  He did his Masters in IP Law from Brisbane.  Does pro bone work as well.  Mr. Mahant is active on social media to exchange views and news about politics, law and common sense).

11.    Further the contention of the complainants is that the opposite parties shall refund two year fees namely; Rs.3,82,914/- with interest at the rate of 12% amounting to Rs.1,55,000.81.  But on a careful perusal of the records, the 2^nd complainant studied one year and one month.  The total fees of Rs.4,71,145/- paid for Three Year course.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 & 2 are jointly and severally shall refund Two Years’ fees i.e. Rs.3,14,096.66/- with a compensation of Rs.25,000/- with cost of Rs.10,000/-.

In the result, this complaint is allowed in part.   The opposite parties 1 & 2 are directed to refund a sum of Rs.3,14,096.66/- (Rupees Three lakhs fourteen thousand and ninety six and sixty six paise only) being course fee for the two years and to pay a sum of Rs.25,000/- (Rupees Twenty five thousand only) towards compensation for mental agony with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainants.      

      The above said amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 07^th day of November 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	19.05.2015	Copy of enrolment form of the complainant with opposite party
Ex.A2	13.02.2017	Copy of email by the complainant’s father to Mr. Rajan
Ex.A3	13.02.2017	Copy of response from Mr. Prasad to contact Mr. Rajan
Ex.A4	15.02.2017	Copy of email by the complainant’s father to Mr. Rajan
Ex.A5	15.02.2017	Copy of email by the complainant’s father to Mr. Rajan & Mr. Prasad
Ex.A6	17.02.2017	Copy of email by the complainant’s father to Mr. Rajan
Ex.A7	17.02.2017	Copy of response from Mr. Rajan
Ex.A8	17.02.2017	Copy of email by the complainant’s father to Mr. Goel
Ex.A9	18.02.2017	Copy of email by the complainant’s father to Mr. Ankur Jain
Ex.A10	18.02.2017	Copy of email by the complainant’s father by Mr. Ankur Jain
Ex.A11	02.03.2017	Copy of email by the complainant’s father for arbitration
Ex.A12	10.03.2017	Copy of email by the complainant’s father for arbitration
Ex.A13	0212.2017	Copy of email by the complainant’s father for refund
Ex.A14	18.10.2018	Copy of email by the complainant’s father for settlement of dues
Ex.A15	28.02.2019	Copy of details of refundable fees amount
Ex.A16	28.02.2019	Copy of details of interest calculation on refundable fees amount

 

 

 

MEMBER                                                                                                                                                                                      PRESIDENT