BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.496 of 2019

      Date of Instt. 14.10.2019

      Date of Decision: 31.07.2023

1.       Rajveer Kaur Daughter of Sh. Surjit Singh.

2.       Surjit Singh son of S. Piara Singh

          Both residents of Village Samrari Via Bara Pind Tehsil Phillaur         District Jalandhar.

..........Complainants

Versus

1.       M/s Frankfinn 201, Suneja Tower-41, District Centre, Janak Puri,     New Delhi-110058. Through its Managing Director.

2.       M/s Frankfinn, Best Building, ‘A’ Wing, 5^th Floor, S. V. Road,        Opp. Andheri Railway Station, Andheri (W) Mumbai-400058:   through its Managing Director.

3.       M/s Frankfinn, 1^st Floor, Panesar Complex, Opposite Kings    Hotel, 20 G. T. Road, Jalandhar City, Through its Manager Branch Incharge.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. K. L. Dua, Adv. Counsel for the Complainants.

                   Mr. Virendra Singh, Auth. Rep. for the OPs No.1 to 3.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant Rajveer Kaur along with her mother visited the Jalandhar office of the OPs for making enquiry regarding the Course of Air Hostess in the month of April 2018 on 28-04-2018. On enquiry the Incharge of the Jalandhar Office/OP No.3, told that the OPs are running the said course at their Jalandhar Centre, which is a Diploma in Aviation, Hospitality and Travel Management (FDAHTM) and the Incharge of the Jalandhar Office further told that the duration of the same is 12 months. The complainant No.1 was further told that the said Diploma is duly approved/recognized one and the institute where the training is imparted is very fine having all the facilities of 4 Star Hotel as the Diploma Course is for the Training of the Air Hostess. The complainant No.1, was minor at that time, and her Mother was not well educated. They wanted to see the institution where the training was being provided. At this the complainant was told by the Incharge of the Jalandhar Office/OP No.3, to deposit the initial fee, and in case the place of the training is not suitable then the initial fee would be refunded and the complainant No.1 was directed to deposit a sum of Rs.15,000/- as initial fee. The complainant deposited the said amount on the asking of the Incharge of the OP No.3, and the two receipts of the same were issued i.e. for a sum of Rs.5700/- alleged to be on account of Admission fee and for a sum of Rs.9300/-; alleged to be on account of Part Payment of Course Fee. As such the complainant is the consumer of the OP. The complainant was directed to come on 2-5-2018 along with the remaining charges required for the course and only then the complainant would be sent to the institution. The complainant No.1, along with her mother again visited the office of the OP No.3 on 2-5-2018, to see the institution where the training was to be provided. The OP No. 3, again got deposited Rs.23.000/- and issued a Receipt of the same alleging to be part payment of the Course fee. The OP also obtained two cheques for Rs.56,000/- each dated 15-06-2018 and 15-07-2018, drawn on the Punjab National Bank, Apra (Jalandhar) with the clear cut understanding that in case, the study, situation is not of the standard and choice of the complainant then the entire amount charged on account of admission and course fees and the cheques would be returned/refunded. The complainant No.1, attended the said course for two days only. There were no amenities and the trained staff as required for the course of Air Hostess. The atmosphere was also not up to the standard for the course of Air Hostess, for which the fees were charged from the complainant. As the atmosphere and the facilities were not up to the mark, and as such the complainant told the Incharge of the Jalandhar Office, OP No.3, that the atmosphere where the training is imparted is not up to the Mark, and the Staff was also not trained as explained at the time of the alleged admission and the complainant informed that she is not interested in the said Training and informed the OP No.3, that she is not going to attend the course anymore, so requested for the refund of the amounts charged from her as promised at the time of receiving the amounts for the first time, when she visited the office of the OP No.3 along with her mother. The complainant also gave in writing for the refund of the amounts charged as she informed the OP No.3, that she is not going to attend the said course any more as the amenities provided by OPs are not Standard of the training of the Air Hostess. The OPs lingered on the matter on one pretext or on the other. After the ¾ visits, the incharge of the Jalandhar Office i.e. the OP No.3, returned the chequres, received from the complainant and told to come later to take the refund of the amounts deposited by her. The complainant No.1 visited the office of the OP No.3. So many times, but the OP No.3 lingered on the matter on one pretext or on the other, to refund the amounts charged from the complainant. The complainant also sent two letters through E-mail but without any positive results. This lingering on without any reasonable cause amounts to refusal to refund the amounts, illegally charged from the complainant by the opposite parties. The complainant paid the amounts as per the assurance of the OP No.3 that the place of training is fine and the training is being provided by the competent Staff. The complainant No.1, has attended the Diploma Course for only two days, which was on trial basis, and as such the OPs are not entitled to retain the amounts charged from the complainant and the OPs are liable to refund the said amounts. The OPs have illegally retained the amount of the complainants and used the same for their business purposes without any reasonable cause as such the complainant is also entitled for interest at the rate of 12% prevailing in the Commercial market, from the date of deposit till the date of actual realization of the entire amount along with interest up to date i.e. the date of the realization of the entire amount. Due to the negligent and deficient services and illegal trade practice of the OPs, the complainants have suffered mentally and have been illegally harassed and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of Rs.38,000/- alongwith interest @ 18% per annum till the actual realization of the amount in question. Further, OPs be directed to pay a compensation of Rs.50,000/- for causing mental tension and harassment to the complainant and Rs.25,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs, who filed joint written reply and contested the complaint by taking preliminary objections that the complaint under Reply is not maintainable before this Forum on account of lack of territorial jurisdiction to try and entertain the complaint under the Consumer Protection Act. Further, the Complainant had executed an Online Student Agreement before taking admission in the OP institute, and as per Clause 40 of the said Agreement, the Complainant had categorically agreed to be subject to the exclusive jurisdiction of Courts/Forums at Delhi for any dispute arising between the parties. It is further averred that the Complaint under Reply is wholly misconceived and not maintainable in the facts and circumstances of the present case. The Complaint is gross abuse of the process of law and tantamount to making mockery of the legal process for wasting the precious time of this Forum. It is further averred that the present Complaint is without any basis and without any cause of action and has been filed by concocting a totally false story as an afterthought which is contrary to the true facts on records, and as such, the same deserves dismissal by this Forum. It is further averred that before adverting on the merits of the Complaint, it is submitted that the Complainant herein is not a 'consumer' as she does not fall within the definition of "consumer" as envisaged under the Consumer Protection Act. Further, no 'service' as defined under the said Act has been provided to the Complainant by the OP as such the Complaint is liable to be dismissed on this ground alone. On merits, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder not filed by the complainant.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.

6.                It has been admitted by the OPs that the complainant approached the OPs and joined their institution for aviation, hospitality and travel management course. It has also been proved by the complainant that she paid Rs.5700/-, Rs.9300/- and Rs.23,000/- to the OP No.3 vide Ex.C-1 to Ex.C-3. The complainant attended the course for two days as per her own submission, but thereafter she did not attend rather wrote a letter to the OP that she does not want to continue the diploma due to certain family circumstances and she wants to drop the diploma and sought the refund of the money as per Ex.OP-1.

7.                The OP has relied upon Clause-19 of the Student Agreement, which reads as under:

                   ‘That in the event of the student leaving the Course at any point of time before the completion of the Course, for any reason. whatsoever, the student shall pay the balance Course fees as it would otherwise cause loss of one seat and corresponding revenue in the said Course/Class/ Batch for none of its fault, which cannot be filled and revenue loss cannot be made good subsequently. That no claim of refund of fee paid by the student shall be entertained in such a case and the same shall stand forfeited.’

                   The OP has further contended that as per the settled proposition of law as laid down by the Hon’ble Supreme Court and Hon'ble National Commission, it has been categorically held that ‘education is not a commodity neither the educational institutions are providing any services, thus a Student is not a consumer, and therefore, the complaint filed by the complainant is not maintainable.

                   As per Section 2(1)(d) of the Consumer Protection Act, 1986, the definition of the consumer reads as under:-

(d) “Consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) ¹² [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ¹² [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person ¹³ [but does not include a person who avails of such services for any commercial purpose];

8.                The law referred by the OP titled as ‘Manu Solanki & Ors. Vs. Vinayaka Mission University & Ors’ shows that there are number of parties in this revision petition and all these OPs are universities of different states.

9.                It has been brought to our notice that this order has been challenged and the same is pending before the Hon’ble Supreme Court for decision and has not attained the finality as yet. The appeal was admitted by the Bench comprising of Hon’ble Mr. Justice Dr. D. Y. Chandrachud and Hon’ble Mrs. Justice Indu Malhotra on 15.10.2020 observing that there are divergent views on the point whether the educational institutions are covered under Consumer Protection Act or not, therefore the appeals were admitted. The Hon'ble National Commission in a Revision Petition No.3052 of 2018, decided on 04.04.2019, titled as ‘Frankfinn Institute of Air Hostess and Anr. Vs. Aashima Jarial’ has held that ‘the educational institutions, which are imparting education of any kind within the admissible legal frame work of the country can be covered under the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra).  In other words, educational institutions covered under UGC, AICTE, State Universities, Central Boards and State Boards etc. can claim immunity from the provisions of Consumer Protection Act, 1986 for educational services.  The Hon’ble State Commission in Appeal No.30 of 2021, decided on 10.05.2022, case titled as ‘Frankfinn Institute of Air Hostess Training Vs. Ritika Rana’ has held that the Franfinn Institution is a service provider and the complainant in that case was held to be consumer.

10.              The OP has pointed out the condition mentioned in Student Agreement, which shows condition No.40 of Annexure E that ‘this agreement shall be governed by and construed in all respects in accordance with, the laws of India and the parties agree to submit to the exclusive jurisdiction of the Courts at New Delhi (India) to the exclusion of all other Courts. But this contention is not tenable as per Section-100 of Consumer Protection Act, 2019 which stipulates that the provisions of this Act shall be an addition to and not in derogation of the provisions of any other law for the time being in force. Thus, as per Section-2(1) (d), the complaint is maintainable.

11.              Thus, the educational Institutions which are governed by statutes like UGC, State Universities, Boards etc. can claim immunity from the provisions of Consumer Protection Act for imparting educational services. However, institutions like OPs which provide vocational training and are not governed by any legal framework cannot be exempted from liability under Consumer Protection Act. The complainant had hired the services of the OPs for consideration, therefore, she very well falls into the ambit of consumer.     

12.              The complainant has alleged that there were no amenities and trained staff as required for the course of airhostess and no facilities were there upto the mark, but she has not produced on record any document to show that she has ever made the representations to the OP that the facilities and amenities are not upto the mark nor there is any trained staff to impart the training to the complainant. She herself has discontinued the training due to family circumstance and as per the Clause-19, she is not entitled to refund. Therefore, there is no deficiency in service nor any unfair trade practice on the part of the OPs.

13.              So, from all the angles the complainant has failed to prove any deficiency in service and unfair trade practice on the part of the OPs and thus, the complaint of the complainant is without merits and the same is dismissed with no order of cots. Parties will bear their own costs.  This complaint could not be decided within stipulated time frame due to rush of work.

14.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

31.07.2023         Member                          Member           President