OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.36/15
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
Mr. P.Raju - Complainant
BSF Ftr HQ, Patgaon, Azara,
Guwahati, Dist: Kamrup, Assam.
Pin.781017.
-vs-
M/S Perception, III-floor,
McDonald tower,Bhangagorh, G.S,Road - Opp.party
Represented by Mr.Saikia and Mr.Gupta as
Directors of the Coaching Institute
Guwahati-7,Assam
Appearance-
Learned advocates for the complainant- Mr.Deepan Borah.
Learned advocates for the opp.party- Mr.Zeehan Islam
Date of argument- 28.2.2017
Date of judgment- 24.3.2017
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Mr.P.Raju against M/S Perception, III Floor, McDonald Tower,Bhangagorh, Guwahati, Opp.party, represented by its Directors, Mr.Saikia and Mr.Gupta was admitted as a proceeding u/s 12 of Consumer Protection Act,1986 on 13.5.15, and notices was served on the opp.party; and its partner, Mr. Ankit Gupta, on 29.7.15, filed written statement on behalf of the opp.party.
The complainant Mr.P.Raju filed his evidence in affidavit on 27.1.16 and he was cross-examined by the Ld counsel of the opp.party on 9.2.16. Thereafter, on 3.3.16, the complainant filed his additional affidavit and again he was cross-examined on the additional affidavit by the Ld counsel of the opp.party on 30.3.16. Thereafter, on 31.5.16, Mr.Ankur Saikia, one of the directors of the opp.party filed evidence in affidavit on behalf of the opp.party, and he was also cross-examined by the Ld counsel of the complainant on 4.8.16. Finally, on 21.9.16,Ld advocate Mrs.Ranu Borah filed written argument for the complainant, and the counsel of the opp.party, Ld advocate Mr.Zeehan Islam filed his written argument on 3.11.16. After receipt of both sides’ written argument ,we, on 23.2.2017, heard the oral argument of ld advocate Mr.Deepan Borah, forwarded for the complainant and of Ld advocate Mr.Zeehan Islam, forwarded for the opp.party, and today, we deliver our judgment which is as below.
2) The complain of the complainant, Mr.P.Raju is that, he had enrolled his daughter namely, Ms R.Latiha Shree in JEE coaching institute “Perception, III-floor, McDonald Tower, Bhangagorh, G.S,Road,Guwahati-7” in one year course P1-JEE on 9.7.2014 by paying Rs.35,000/- as first installment in advance and his daughter also attended the above said coaching for about two weeks, but they found it was not up to the mark, and having been not satisfied with the quality of the training being imparted particularly lack of personalized attention and the schedule of the course being completed in a hurried manner, and as assured them they could not get the service and it was deficient; and then they decided to withdraw his daughter from the said course and they also imtimated the same to the authority of M/S Perception and finally withdrew his daughter from the coaching before 31.7.2014; and he requested the directors of the said institute, Mr.A.Gupta and Mr.Saikia to refund the fees after deducting the proportionate amount , which is amount for two weeks coaching and initially they said that no amount can be paid to him as it had being already mentioned in the application form regarding non-refund in the case of withdrawal from the course ; and thenafter he requested them on many occasions over phone to refund the proportionate amount and they asked him to contact them after Puja holidays of 2014 and that way they did dilly dallying since August 2014, but finally conveyed the same to him, and never refunded the money to him. The terms with “fees once paid is not refundable” is unconscionable as well as voidable, and a student or a trainee may leave in the midstream if he/she finds the service deficient and sub-standard and non-yielding, and in such situation telling him or her that fees once paid is not refundable is uncalled for and unfair trade practice as no service provider can take or charge the consideration of the service which it has either not being given or has not been availed. He requested to the directors of the opp.party at many occasions over phone and requested them to refund proportionate amount, but it is in vain and that conduct of the directors amount to unfair-trade-practice to earn money and a case of deficiency of service, and in result of which, the complainant had to suffer a lot. He prays for directing the opp.parties to refund Rs.32,708/- deducting Rs.2292/- which is fee for two weeks, from the fees (Rs.35,000/-) already paid to them.
3) The gist of the written statement of the opp.party side is that the complaint is not maintainable in law and facts; the complaint is false, frivolous and vexatious, the complaint is not a consumer under them and the complaint is not a consumer dispute under Consumer Protection Act, 1986; in the admission form which was duly filled up by the complainant , it has specifically mentioned that the instructions are to be read carefully before filling up the form and the declaration section of the form, where it has also been clearly stated that any applicant filling up the form shall duly abide by rules and regulations laid down by the opp.party and under these conditions fees paid is not refundable and in case the applicant is not in a position to join or to continue after submission, the applicant shall not claim refund of fees and thereby the complaint is liable for rejection. Their organization is a renown coaching institute of North East /and offering courses in JEE and AIPMT and it has a good track record and its student have regularly been securing good ranks in the entrance examination; it also provides quality , standard and excellent education and each student hold rank and come out with flying colors in national level entrance examination wherein each student have been securing good rank and positions enabling them to get into top colleges in the country and therefore the allegation of deficiency in service on their part towards them is wholly incorrect and misconceived; and therefore, the complaint is liable to be dismissed u/s 26 of Consumer Protection Act, 1986 with cost. The complaint has been filed with an ulterior motive to extract money from them without justified cause. Withdrawing from the course of midstream does not entitle to the complainant to refund of money paid in advance inasmuch as it was clearly provided in the terms and conditions and declaration of admission form , which was filled up by the complainant, that fees once paid is non refundable. The request for refund of fees cannot be entertained at any cost on the ground that they would suffer loss because by paying the first installment in advance, the complainant secured a seat in the coaching institute for an academic year and once seat is booked for the entire duration of the course, which the complainant has chosen and hence no further application were entertained or taken into consideration as the seat was booked for the complainant in the entire academic year and withdrawal from of the course in the midyear will not only result in loss for the entire academic year, but will also lose out a student as no student can be made to join in the mid of the academic year, and in result they have already incurred loss amounting to Rs.19,905/- for withdrawal of the daughter of the complainant from the mid of the course, which they would have earned , if his daughter had continued the course. They have not taken the whole course fee in advance, but taken only one installment. Charging fees in advance beyond the current semester/ year would certainly amount to unfair-trade-practice and in the instant case they have not charged beyond current semester year and therefore, case laws cited by the complainant does not apply in the present complaint. They will not indulge either unfair-trade-practice or deficiency in service towards the complainant. The complainant wrongly demanded Rs.32,708/- along with compensation for deficiency of service. The complaint is liable to be dismissed.
4) We have perused the evidence of the parties and it is found that it is both sides’ admitted fact that the complainants’ daughter Ms R.Latiha Shree had got admission in the institute of the opp.party on 9.7.14 by paying Rs.35,000/- only as advance installment, and the second installment which is Rs.19,995/- was due by Oct,2014 and his daughter attended the course. It is also both sides’ admitted fact that at the time of admission, the complainant filled up the admission form. The complainant states that his daughter attended the class for the said course about two weeks only, but after finding the quality of the training being imparted is not upto to the standard, particularly lack of personalized attention and the schedule of the course being completed in a hurried manner, and as assured, they could not get the service, they decided to withdraw from the said coaching course, and intimated the same to the authorities of the oopp.party and finally withdraw from the said course before 31.7.2014. It is also found that the opp.party side stated that the daughter of the complainant left from the course in the midway. The complainant side states that his daughter attended the course about two weeks, and thenafter left the course. The opp.party side witness (OPW) Sri Ankur Saikia admits that the complainants’ daughter had attended the class only for 15 days. This version of the OPW infers that the complainants’ daughter left the course after attending only for 15 days, meaning thereby that the version of the complainant that his daughter, after attending in the coaching course of the opp.party only for two weeks, left the said institute.
5) The complainant sides’ plea is that his daughter left the said coaching course on the ground that the course was not up to mark and having been not satisfied with the quality of the training being imparted particularly lack of personalized attention and the schedule of the course being completed in a hurried manner and as assured she could not get service. Rebutting these allegations the opp.party side in their written statement states that their institution is a premier coaching institute of this region where the quality, standard and excellent education is provided and each year each student hold ranks and come out with flying colors in the national level entrance examination and each student also get admission into top colleges in the country and therefore, the allegation raised by the complainant is false and baseless. The opp.party , Mr.Ankur Saikia also states in the same thing in his evidence, but now question is that whether the opp.party side has succeeded to prove their assertion that their institution has been imparting quality, standard and excellent education to each student and every year students hold ranks in national level entrance examination and get admission in top colleges. It is found that the opp.party sides files no documents as to efficiency the excellency of their institution . So, in such situation, it must be held that they have failed to prove their plea as to that effect meaning thereby the plea of the complainant is true. Therefore, the daughter of the complainant that has totally left the institution of the opp.party after attending the course for 15 days on the ground that it is the institute which is not up to mark, and it is not imparting quality education to each student and it is not taking personalized attention and the course being completed in a hurried manner, is a true fact. Therefore, we hold that the ground of leaving the course by the daughter of the complainant after attending the course for 15 days are justified ground.
6) The institute of the opp.party is admittedly is a coaching course for IIT/JEE/AIPMT and the daughter of the complainant got admitted in the coaching course for pre-engineering test on 9.7.2014 and the complainant paid first installment to the tune of Rs.35,000/- to the opp.party and second installment to the tune of Rs.19,995/- was due in the month of Oct, 2014 and actually the tution fees are to be cleared in four installment. It is also found that M/S Perception is a partnership firm, which was started in the year 2013, and it has also trade license issued by Guwahati Municipal corporation, but it does not have any affiliation under any educational controlling body and it is purely a coaching institute for medical and engineering tests, and that is admitted by opp.party witness , Sri Ankur Saikia. So, it is established that M/S Perception is a partnership firm dealing in business of imparting coaching to the students who are intending to appear in IIT/JEE/AIPMT, but it is not the formal institution for giving educational qualification and degree, and it is a profit making establishment and its course is a purely coaching course.
7) The complainant sides’ plea is that as the daughter of the complainant was not satisfied with the coaching provided by the opp.party side institution on the ground that it is not imparting quality and excellent coaching and it is not giving personalized attention to each student and it is hurried to complete the course, hence the departure of the complainants’ daughter from the course is justified and in result the complainant is entitled to get back the remaining amount of the fees deposited by him deducting the proportionate fees for 15 days which is Rs.2,292/-. We have already found that the daughter of the complainant had justified ground to leaving the course midway. Here in the case the opp.party side plea is that they have no refund policy to refund the coaching fee paid by the student if any student leaves the course midway, and that at the time of admission the complainant knew about the said condition, and after knowing that condition they filled up the admission form, and therefore, the complainant is not entitled to get back the fees he had paid to them. We have perused the admission form filled up by the complainant and his daughter. In the said form there is one column where it is reading “I will abide by the rules and regulations laid down by Perception and agree that misbehavior /omission of facts will result in the cancellation of admission or expulsion. The fees paid is non-refundable under these condition.” There is also another column which is in “In case I am not in a position to join or continue my course after admission I will not claim refund of fees.” From these terms which are written in the admission form it is seen that if any student fails to continue his course after payment of fees he or she, cannot claim refund of such fees. Now , question is that whether these conditions are lawful . The complainant sides’ ld counsel submits that enshrining these conditions in the admission form is not lawful having the premier coaching institute like “Akash Foundation” has refund policy which lays refund of 70% of tution fees. Ld advocate Mr.Deepan Borah further submits that Hon’ble Supreme Court observed that “Reasonableness or Fairness in a clause in a contract where there is inequality of bargaining power. In such cases it is recognised that the freedom of contract is absent and the judicial review of such action is permitted and consequential relief can be allowed in those circumstances. It will apply where the inequality is a result of circumstances, whether of the creating of the parties or not” The Ld advocate Mr. Deepan Borah referring to above judgment of Supreme court submits that the agreement between the daughter of the complainant and the opp.party is not a fair and reasonable agreement as at the time of admission she is compelled to accept said conditions in the fear of non-getting the seat, and in result the condition as to non-refund of tution fees on leaving the institute is not a fair and lawful condition. We have also perused the decision of Hon’ble National Commission in the common judgment dtd. 14.11.2011 given in Revision Petition No.3365/2006 (FIIT JEE Ltd. –vs-Dr.(Mrs.) Minathi Rath; Revision Petition No.1805/2007 (FIIT JEE Ltd. –vs- B.P.Popli; Revision Petition No.2660/2007 (Brilliant Tutorials –vs- Rahul Das; Revision Petition No.3496/2006 (P.T.Education & Training Services Ltd.-vs-Dr.Minathi Rath & others and Revision Petition No.3497/2006(Carrier Launcher India Ltd.-vs- Dr.(Mrs.) Minathi Rath and others, observes that the petitioner being establishment of providing coaching course for different test examinations are service provider and students and their guardians are consumer of the said service and disputes between them fall within perview of CPAct ,1986. In view of above decision , we hold that the dispute between the complainant and opp.pary is a consumer dispute and this forum has jurisdiction to adjudicate upon said dispute . In this case the opp.party sides’ ld advocate refers to the decision of the Supreme Court in Adarsh Mahavidyalaya vs. Subash Rahangdale( 2012) 2 SCC 425 . We have perused said decision of the Supreme Court and it is found that the Apex Court holds that if a student does not intend to prosecute studies in the institution they would be entitled to claim refund of their fees, and the institution shall refund the fees on the receipt of proper application. Ld advocate Mr. Zeehan Islam submitis that the complainant side has not filed any application within a period of six months from the date of continuance of the course, the complaint is liable for rejection. Ld advocate Mr. Zeehan Islam also refers another judgment which is Manmeet Singh –vs-M/S FIIT JEE F.A.379/2010 and submits that if a student paid only one installment, but left the institution, then he is not entitled to refund of the said fees. After perusing the decision of National Commission in Revision Petition No.3365/2006, Revision Petition No.1805/2007, Revision Petition No.2660/2007, Revision Petition No.3496/2006, Revision Petition No.3497/2006 of which judgment was pronounced on 14th Nov.2011, it appears to us that the dispute between the coaching institution and the students are consumer dispute and that dispute are to be disposed of by the consumer forums etc. We have also perused the judgment of State Commission, Delhi, the Brilliant Tutorials Pvt.Ltd,-vs-N.N.Batabyal, F.A.2009/30 Date of judgment -4.2.2009 and found that if a term agreed by the coaching centre and the student that fees once paid shall not be refund is not conscionable and void ad-initio for the reason that when service provider has to provide service after it has received consideration thereof and taking lumsum fees for the whole duration is a unfair trade practice because and no service provider can charge consideration in advance for the service which it has yet to provide and by taking lumsum fees they not only bind the student for all time to come to get the coaching from the said institution, even if he finds the coaching is sub-standard, at the cost of his carrier prospect. From this view of the State Commission, Delhi, it is crystal clear that the institution providing coaching course cannot take fees for the period which it has yet to provide coaching and it cannot bind any student taking lumsum fees for the whole course even if he finds the course is sub-standard. In view of above decision of State Commission, Delhi, we hold that the condition written in the admission form of the opp.party which is fees once paid is not refundable is a contract void ab-initio and is unconstitutional and hence it has no binding force. Therefore, we hold that the complainant is entitled to get back the fees he had paid after deducting the fees for the period his daughter attending the class on the ground that the coaching centre cannot get advance fees for the period it has yet to provide service and also on the ground that the complainants’ daughter left the said institution finding the coaching is sub-standard. It is already found that the complainant, on several occasions, verbally requested the opp.party to refund the fees he paid after deducting the fees for the period his daughter had attended the course but ; found that the opp.party never attempted to refund the fees, as per his request . So, the act of the opp.party not refunding the said amount to the complainant is a deficiency of service to the complainant, and is also an act of unfair trade practice. In view of above discussion, we are in opinion that the opp.party is liable to pay refund Rs.32,708/- to the complainant with interest @6% from the date of filing the complaint(13.5.15). Secondly, it is also found that the opp.party by refusing to refund the said amount has caused harassment and mental agony to the complainant, and therefore, the opp.party is also liable to pay atleast Rs.5,000/- as compensation. Thirdly, the opp.party is also liable to pay atleast Rs.5,000/- as cost of proceeding as for no fault of him, the complainant has to prosecute the opp.party in this forum.
8) Because of what has been discussed as above, the complaint against the opp.party is allowed on contest and the opp.party, M/S Perception, Represented by its directors Mr.Saikia and Mr.Gupta is directed to refund Rs.32,708/- to the complainant with interest @6% per annum from 13.5.15 and also to pay Rs.5,000/- as compensation for causing harassment and mental agony to him as well as Rs.5,000/- as cost of proceeding. The opp.party is directed to make payment of the awarded amounts within two months, and, in default, the other two amounts shall also carry interest at the same rate.
Given under our hands and seals in this day of the 24th March, 2017.
Smti Archana Deka Lahkar (Md.S.Hussain)
Member President
