BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

DATED 16^TH DAY OF JANUARY 2016

O R D E R

SRI.P.V.SINGRI, PRESIDENT

One Mrs. Sonal Agrawal, (herein after referred to as complainant) admitted her daughter, aged 3 years by name Baby Mauli Agrawal to a preschool institution run by M/s.Blooming Kids Pvt. Ltd., situated at Abbaiah Reddy Layout, C.V.Raman Nagar, Bangalore, managed by its Director Mr.Ashok Vadhwani (herein referred to as OPs).  At the time of admission the complainant paid a fee of Rs.18,000/- by cheque drawn on HDFC Bank vide receipt No.031 dated 16.02.2013 issued by OP-1.  That the said admission was for the academic year 2013-14.  Few days after paying the fee to the OP-1, the complainant was compelled to shift her residence to Varthur which is situated far away from the said preschool institution run by the OPs.  Therefore, the complainant approached the OPs for refund of the said fee of Rs.18,000/- as she was shifting her residence to Varthur and wanted to get her daughter admitted to a school nearby in Varthur.  The OPs informed the complainant that the fee paid is not refundable and advised her to seek admission in the OPs Whitefield Franchisee/branch and accordingly the complainant approached the head of the Whitefield franchisee/branch of OPs, but they told the complainant that they are discontinuing the franchisee/branch of OPs preschool and are starting a new preschool of their own and therefore, they cannot admit any one.  Pursuant to the same the complainant again approached OPs with a request to refund a fee of Rs.18,000/-, but OPs have flatly and mercilessly refused to refund the fee on the ground that the fee paid is not refundable. 

2.  That the conduct of the OPs in refusing to refund the fee of Rs.18,000/- is illegal, unjust, improper and arbitrary in nature and amounts to restrictive trade practice.  That the  complainant though has made the request for refund well in advance before the commencement of preschool for the academic year 2013-14, the OPs refused to refund the amount.  Therefore, the complainant got issued a legal notice dated 01.04.2013 to the OPs and despite the service of the same, the OPs have failed to refund the fee.  Therefore, the complainant has approached this Forum by way of filing this complaint under section 12 of Consumer Protection Act, 1986 praying for an order directing the OPs to refund the said fee of Rs.18,000/- together with interest at 12% per annum and compensation of Rs.50,000/- for causing mental agony and tension together with litigation cost.

3.  The OPs in their version admitted the payment of fee of Rs.18,000/- by the complainant and also admitted issuance of receipt to the complainant for having received the said fee for admission of her daughter Bady Mauli Agrawal, aged 3 years for the academic year 2013-14.  The OP further contended that the complainant along with her husband have voluntarily paid the said fee after having agreed to all the terms and conditions.  Payment term and condition No.4 provides that all payment paid towards admission are non-refundable, non-negotiable and non-transferable.  That since, the complainant and her husband have paid the fee after having signed the application form having understood the terms and conditions of the admission,  the OPs are not liable to refund the said sum of Rs.18,000/-.  The OPs are not responsible for the shifting of the residence of the complainant to some other locality.  The non-refunding of the fee in terms and conditions of the admission does not amounts to deficiency in service.  Therefore, the OPs prays for rejection of the complaint.

4.  The complainant to substantiate the allegations made in the complaint filed her affidavit evidence in lieu of oral evidence in which she reiterated the allegations made in the complaint. The complainant has produced the copy of the receipt for having paid fee of Rs.18,000/- to the OPs.  In support of the averments made in the version OP-2 filed his affidavit evidence together with certain documents including copy of the preschool application form submitted by the complainant with her husband, copy of the receipt dated 16.02.2013 issued in favour of the complainant. Both the parties have submitted their written arguments and placed reliance on certain judgment in support of their respective contention. 

5. On the rival contention of both the parties, the points that arises for our determination are as under:

1. Whether, the complainant proves the deficiency in service on the part of the OPs as alleged in the complaint?

2. If so, what order or relief the complainant is entitled to?

6. Our answer to the above points:

7. POINT NO.1: As already stated above it is not in dispute that the complainant paid fee of Rs.18,000/- to the OPs for admission of her daughter to a preschool run by the OPs for the academic year 2013-14 on 16.02.2013.  The OPs have acknowledged the receipt of the said amount by issuing a fee receipt, the copy of which is produced by both.  Now, the question is as to whether the conduct of the OPs in refusing to refund the said amount of Rs.18,000/- amounts to deficiency in services?.  It is contended by the OPs that in pursuance of the condition No.4 mentioned in preschool application form signed and submitted by the complainant along with her husband, payment made towards admission are non-refundable, non-negotiable and non-transferable.  Therefore, he argued that the complainant is not entitled for refund of the said fee, since she has paid the fee after having read and understood all the terms and conditions governing the admission of her daughter to their preschool. 

8. The learned advocate for the OPs placing reliance on judgement rendered in a case between Ramdeobaba vs. Sushant Yuvraj, reported in (1995) 1 JCR 111(NC) argued that non refund of admission fee is not deficiency in service.  He also placed reliance on judgement reported in I (2002) CPJ 428 rendered by the Hon’ble  Delhi State Consumer Disputes Redressal Commission, New Delhi and contended that the non-refundable of the fee does not amounts to any deficiency of services or default on the part of the OPs.   Perused the judgement referred supra. The facts of the case dealt in the said authorities are entirely different from the facts of the case on hand.  The complainant in the instant case on hand seeks refund of the fee for the reason that she has shifted her residence to a different locality within few days from the date of payment of fee and it is impossible for her daughter to attend the said preschool as it is situated far away from her new residence.  The complainant in this case got the admission for the academic year 2013-14.  Admittedly, the daughter of the complainant did not attend the school even for a day as course is not yet commenced for the said academic year. The request for refund has been made much earlier to the commencement of the academic year 2013-14 that too within few days from the date of the payment of fee. 

9.  It is pertinent to note here that the complainant seeks to withdraw her admission only because she has shifted her residence too far of place from where her daughter could not commute from there to preschool of the OPs.  It is also not the case of the OPs that the complainant is trying to get the admission to some other preschool in the same locality without their being any justifiable cause.  According to the complainant she has shifted her residence to Varathur because her husband is transferred and now working in a company, located in ITPL, Whitefield.  The complainant has also tried for the admission of her daughter to a franchisee/branch of the OPs situated in Whitefield, as advised by the OPs, but the said franchisee/branch have refused admission on the ground that they are ending their franchisee with the OPs and continuing preschool independently of their own.  Therefore, there is no reason to believe that the complainant is seeking the refund of the fee without any ulterior motive. 

10. The learned advocate for the complainant placing reliance on a judgement rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in a case between Sehgal School of Competition vs. Dalbir Singh reported in III (2009) CPJ 33 (NC) argued that refusal of refund of fee by education institution amounts to deficiency in service as defined under the C.P. Act.  Perused, the said judgement wherein the Honb’le National Commission while dealing with a case with facts similar to the case on hand have opined as under, referring to non-refundable clause in the admission form para 6 & 7:-

“Para 6: The above condition is one sided and biased totally in favour of the petitioner and against the principle of equity and natural justice and it is not a fair trade practice.  The learned Counsel quoted the judgment of the Commission in Homoeopathic Medical College and Hospital, Chandigarh vs. Miss Gunita Virk, I (1996) CPJ 37 (NC), wherein it is held that For constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal.

Para 7: This judgement is 13 years old.  Subsequent to this judgement this Commission in a catena of judgments has held that it is unjust to collect the fees for the total period of the course.  In Nipun Nagar vs. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC), Revision Petition No.1336 of 2008, decided by this Commission on 7^th November, 2008, after quoting the public notice issued by the University Grants Commission, it was held that the institute was unfair and unjust in retaining the tuition fee of Rs.1 lakh even after the student withdrew from their institute.  Further, if a student leaves before attending a single day of the college or school, he is entitled for total refund except for a small registration fee, say Rs.1,000/-.  Even the University Grants Commission had issued a public notice directing all the institutions to refund the money of the students for the period, they have not attended the college/institution, the extracts of the public notice is reproduced in extenso:……………….

11. The ratio laid down in the above cited authority squarely applies to the case on hand.  In the instant case the daughter of the complainant has not attended the school even for one day.  When the request for the refund was made, the academic year 2013-14 had not yet commenced.  Moreover, the request for refund has been made within few days from the date of payment of fee.  Therefore, we do not find any reasons to believe that the OPs have been put to any inconvenience or loss because of withdrawal of the admission by the complainant. Since, the academic year 2013-14 had not yet commenced, the OPs could very well admit another student in the place of the daughter of the complainant for the same fee.  Therefore, we are of the opinion that the OPs would not been put to any loss or inconvenience by refunding fee to the complainant. 

12. Moreover we feel that the non-refundable clause is one sided and arbitrary. In the given circumstances of the case and in view of the principles laid down in the above referred authority, we are of considered opinion that the conduct of the OPs in refusing to refund the fee amounts to deficiency in service.  The principle laid down in the judgement relied upon by the OPs in our humble opinion is not applicable to the facts of the case on hand.  The OPs are not at all justified in refusing to refund the fee to the complainant referring to one sided and arbitrary, non-refundable condition mentioned in the application form.  Therefore, we find it necessary to direct the OPs to refund the said fee of Rs.18,000/- to the complainant forthwith.  Further the conduct of the OPs must have put the complainant to hardship, inconvenience and mental agony for which OPs shall have to be directed to pay compensation of Rs.5,000/- together with Rs.4,000/- towards cost of litigation.

13. POINT NO.2:  The order could not be passed within the stipulated time due to heavy pendency.  In the result we proceed to pass the following:-

ORDER

1. The complaint filed by the complainant u/s.12 of the Consumer Protection Act 1986 is allowed.

2. OPs are directed to refund a sum of Rs.18,000/- to the complainant within eight weeks from the date of communication of this order, in default they shall pay interest at the rate of 9% per annum on the said amount till the date of realization.

3. Further OPs are directed to pay compensation of Rs.5,000/- towards deficiency in service resulting in hardship, inconvenience and mental agony to the complainant together with litigation cost of Rs.4,000/-.
4. Furnish free copy of this order to both the parties.

 (Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Forum by us on this the 16^th day of January 2016)

MEMBER                               MEMBER                              PRESIDENT

NRS* 

C.C.No.943/2013

Witness examined on behalf of the complainant dated 29.10.2013 

1. Smt.Sonal Agrawal

Witness examined on behalf of the OP dated 27.11.2013

1. Sri.Ashoka Wadwani.B

MEMBER                               MEMBER                              PRESIDENT