MRS. NEENA SANDHU, PRESIDING MEMBER

1.       This is an appeal filed by OP against order dated 2.8.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 168 of 2010.

2.       Briefly stated, the facts of the case are, that the OP No.1 through their advertisement and pamphlets invited applications from the students who were desirous of getting admission to “pinnacle two year integrated programme” for IIT-JEEE in the month of February, 2009 in order to prepare the students for competition for admission to the session starting in IIT from the year 2011 and offered concessions to the meritorious students of class 10^th on the basis of marks secured in the Board Examination. The complainant No.2 Master Dhiraj Khurana, son of complainant No.1 had scored 94.5% marks in 10^th Board examination and joined the said course in the month of February, 2009. He deposited Rs.59,185/- vide demand draft bearing No.6050 dated 13.2.2009 for Rs.21,629/- and three postdated cheque bearing Nos. 300614, 300615 and 300616 dated 25.3.2009 and 25.4.2009 for Rs.8400/-, Rs.11,798/;- and Rs.25,759/- respectively, which were got encashed by the OP. It was submitted that a sum of Rs.8400/- was also charged by the OPs towards the books and study material in addition to the fee. The complainant No.2 was allotted enrolment No.1110160910006 and registration No.110116162812080201. It was further submitted that the aforesaid “pinnacle to year integrated programme” were to commence in the month of June, 2009.  The complainant no.2 attended the classes for few days and thereafter discontinued the studies in June, 2009. While discontinuing the studies, the complainants made oral request for refund of the fee. The complainants made number of visits to the OP No.2 from 15.6.2009 onwards and also gave in writing on 1.7.2009 making a request for refund of the tuition fee but to no effect. It was further submitted that after the complainant No.2 withdrew from the studies with the OP, the seat which fall vacant has been filled by another student and the OP earned for the same seat from the two students and the OP has no right to retain the tuition fees paid by the complainant. The complainant No.1 also served a legal demand notice through counsel on 29.7.2009 for refund of tuition fees but to no effect. The aforesaid acts of OP amounts to deficiency in service and hence, the complaint was filed.

3.       Reply was filed by the OP and admitted that the complainant No.2 took admission in “pinnacle two year integrated programme” course and deposited Rs.59,185/- as tuition fee as well as Rs.8400/- towards books and study material. It was denied by OP that any request for refund of the tuition fee was ever received from the complainants. It was pleaded that to ensure quality education, uniform teaching standard and also keeping in mind the student interest, OP do not fill the vacancy created against any student who leave the course midway and no new student introduced in the batch in place of complainant’s son who left the course midway.  It was further pleaded that as per Clause 6 and 7 of the declaration signed by complainant No.1, fee once paid is non-refundable. All other allegations leveled by the complainant in the complaint were controverted and pleaded that there was no deficiency in service on its part and prayed for dismissal of the complaint.

4.       The parties led their evidence in support of their contentions.

5.       The learned District Forum allowed the complaint and directed the OP jto refund the entire amount paid by the complainant at the time of admission after deducting Rs.1,000/- as administration charges as per UGC Guidelines and Proportionate fees for one month i.e. June, 2009. In addition to this, the complainant also entitled for the compensation of Rs.20,000/- for mental agony and litigation charges amounting to Rs.5,000/-. The OP also directed to return to the complainant all the original documents submitted by him at the time of admission.

6.          Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OP.  Sh.Roopesh Kanwar, Advocate has appeared on behalf of appellant and Sh.Yogesh Jain, Advocate has appeared on behalf of respondents

7.       In appeal, it is submitted that the impugned order passed by the learned District Forum is highly prejudicial and is miscarriage of justice as the same is contrary to the facts and circumstances of the case and also to the evidence placed on record. The learned District Forum wrongly applied the ratio laid down by the Hon’ble National Commission in the matter of “Sehgal School of Competition Vs. Dalbir Singh III(2009) CPJ 33 (NC) mainly because of two reasons. Firstly, the UGC Guidelines are applicable only on the universities established or incorporated by or under the Central Act, a Provincial Act or a State Act or such institute as may be recognized by the commission. Secondly, the appellant does not main a waiting list as the students joining later will not be able to cope up with the course content. It is categorically stated that the appellant is a self financed and self managed institute and runs from the fees collected from the students and that the UGC Guidelines are not applicable and binding on the appellant institute. The learned District Forum failed t appreciate the facts of the case and the evidence placed on record and erred in holding the appellant liable for refund of fee. The learned District Forum failed to see that no deficiency of any kind was specifically pointed out or provide against the appellant for which it could be unreasonably and extraorbitantly penalized and particularly when the appellant was never at fault and was always ready and willing to teach the respondent but he voluntarily left the course mid-way. The learned District Forum has failed to appreciate the fact that the respondent No.2 left the classes voluntarily and other students continued in the batch. The deficiency in quality of teaching, if any, has to be considered taking into consideration the whole of the batch and not at the allegation of one student. Since, there is no deficiency in service and real reason of desertion of the course by the respondent No.2 is voluntary then the appellant cannot be held liable to pay any amount whatsoever. The learned District Forum passed the impugned order without taking into consideration the overwhelming documentary evidence existing in favour of appellant. The learned District Forum has ignored the fact that while seeking admission with appellant, the respondents had duly signed, acknowledged and accepted the terms and conditions/declarations contained in the enrollment form. Now once after according their consent to the declarations, as mentioned hereinabove, they cannot be permitted to turn back, as both of them are duly bound by the same. Since the respondent No.2 had voluntarily withdrawn himself from the classes, without any valid or plausible reason, she is in no case entitled for any refund of fee. The learned District Forum ignored the well settled law that the Consumer Forum cannot go beyond the contract. The Hon’ble Supreme Court of India and the Hon’ble National Commission while discussing the issue have categorically held as follows :-

1)          Bharathi Knitting Col. Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. AIR 1996 SC 2508, 1996(5) Scale 142.

2)          Polymat India (P) Ltd. & Anr. Vs. National Insurance Co. Ltd. & Other (2005) 9 SCC 174.

3)          T.V.Sundaram Iyengar & Sons Ltd. Vs. Dr. Muthuswamy Dorajswamy & Anr. – NC 2004(2) CPJ (NCRIX) 176.

4)          Bhandari Construction Company Vs. Narayan Gopal Upadhye AIR 2007 SC 1441, 2007(2) Scale 386, (2007) 3 SCC 163.

5)          Sh.Ramadeobaba Engg. College Vs. Sushrant Yuvaraj Rode [III(1994) CPJ 160 (NC)].

The impugned order is also directly in contravention with the law as has been laid down, from time to time, by different State Commissions namely in the following cases :-

1)          Anshuman Das Gupta Vs. FIITJEE (IV (2008) CPJ 4.

2)          Secretary, Pala Municipality (Principal) I.T.C. Vs. Biju Joseph 1996(2) CPR 228(NC).

3)       Ms. Swati Aneja Vs. Dev Sanjay College for Women and Anr. [IV (2003) CPJ 120].

4)       K.Siva Prasad Vs. Correspondent, Smt.Y.Krishna Rao [I(2004) CPJ 20].

5)          International Institute of Information & Technology & Ors. Vs. Sumer Singh [1(2004) CPJ 522].

8.       The learned counsel for the respondents/complainants argued that OP is running coaching centre to prepare the candidates to face entrance examination for admission in engineering colleges. The complainant No.2 joined the two years course known as  “pinnacle two year integrated programme” with the OP in order to get coaching/guidance for appearing in enterance examination for admission in IIT/Engineering College. The complainant joined the said course in the month of February, 2009 and paid Rs.59,185/- and also deposited a sum of Rs.8400/- with the OP for purchase of books and study material. The complainant No.2 attended the classes for few days and thereafter discontinued the studies due to unavoidable circumstances in June, 2009. For this reason, the complainants requested the OP for the refund of the tuition fee orally as well made written request but to no effect. It is further submitted that the seat vacated by Master Dhiraj Khurana (complainant No.2) has also been filled up by OP by admitting another candidate. Even to this effect, the complainants also sent a legal notice but nothing has been done by the OP. Thus, the non-returning of the tuition fee amounts to deficiency in service on the part of OP and the learned District Forum after going through the facts has rightly allowed the complaint by directing the OP to refund the entire amount paid by the complainant after making all the necessary deductions. The OP was also directed to pay compensation for Rs.20,000/- for mental agony and litigation charges amounting to Rs.5,000/- along with other relief. Therefore, he prayed that the appeal may kindly be dismissed as devoid of merit. In support of his contention, the learned counsel for the complainant has placed on record the copy of the order dated 29.7.2010 passed by the Hon’ble National Commission in Revision Petition No. 1976 of 2010 titled as FITT JEE (Hyderabad Classes) Ltd. Vs. Rohit Binjarika wherein it was held that the complainant should be allowed to withdraw the entire amount of Rs.55,000/- which shall be towards the refund and the expenses incurred by the complainant in litigation.

9.       The learned counsel for the appellant/OP in rebuttal contended that there is no deficiency in service on the part of OP. It is the complainant who has left the course mid-way voluntarily whereas other students continued in the batch. Moreover, the deficiency in quality of teaching, if any, has to be considered taking into consideration the whole of the batch and not at the allegation of one student. It is further contended that the learned District Forum has ignored this fact that while seeking admission, the complainants had duly signed, acknowledged and accepted the terms and conditions/declaration contained in the enrollment form. It means the complainants have given a consent after going through the conditions/declarations. Since, the complainant No.2 had voluntarily withdrawn himself from the classes without any valid or plausible reason, so, the complainant No.2 is not at all entitled for any refund of the fee. It is further contended that the learned District Forum has ignored the fact that in a coaching for IIT/JEE, it is impossible to induct a fresh student in the middle of the batch and teach him along with already existing students in order to maintain the high standard of teaching, the OP has a policy of not inducting a new student into the batch in the middle of the course. Therefore, this allegation regarding the induction of a new student into the already existing course is false. In support of his contention,  the learned counsel for the appellant has quoted many case laws rendered by the Hon’ble National Commission and State Commissions and prayed for the dismissal of the complaint and setting aside the impugned order passed by the learned District Forum.

10.     We have gone through the record and heard the learned counsel for the parties.

11.     In this case, the classes for the “pinnacle two year integrated programme” were to commence from June, 2009 and Master Dhiraj Khurana, complainant No.2 attended the classes for few days and thereafter discontinued the studies in June, 2009 due to unavoidable circumstances and requested the OP for the refund of the amount deposited with the OP, which the OP refused to refund the said amount. On the refusal of the OP for the refund of the amount, the complainants filed the complaint in the learned District Forum. The learned District Forum allowed the complaint in favour of the complainants relying on the case law titled as  Sehgal School of Competition Vs. Dalbir Singh, III (2009) CPJ 44 (NC). After going through the order placed on record by the learned counsel for the complainant passed by the Hon’ble National Commission in Revision Petition No. 1976 of 2010 titled as FITT JEE (Hyderabad Classes) Ltd. Vs. Rohit Binjarika wherein it has been held that the complainant should be allowed to withdraw the entire amount of Rs.55,000/- which shall be towards the refund and the expenses incurred by the complainant in litigation, in our opinion even in this present case the ends of justice will be met if the OP refunds the amount deposited by the complainant. Hence, the learned District Forum has rightly directed the OP for refund of the amount deposited by the complainant after making necessary deductions and there is nothing wrong by directing the OP to return to the complainant all the original documents submitted by him at the time of admission. However, in view of the order passed in Revision Petition by the Hon’ble National Commission dated 29.7.2010, the direction given for compensation on account of mental agony of Rs.20,000/- along with litigation expenses of Rs.5,000/- is not required for. Therefore, we quash the order of the learned District Forum to this extent. With this observation, we dismiss the appeal filed by the OP with the modification in the impugned order as mentioned above.  Rest of the order passed by the learned District Forum is upheld. Parties are left to bear their own costs. 

12.       Copies of this order be sent to the parties, free of charge.   

Pronounced.                                                                        

28^th January, 2011.