DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.726/09
Siddharth Sharma
S/o Arun Kumar Sharma
B-7/76, Safar Jung Enclave,
New Delhi.
….Complainant
Versus
Director,
Narayana IIT Academy
Kalu Sarai
New Delhi-110016.
….Opposite Party
Date of Institution : 23.09.2009
Date of Order : 09.05.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms.Kiran Kaushal
1. On the strength of his complaint, complainant Siddharth Sharma through his father approached this Commission for directions to OP to refund the entire amount of Rs.60,000/- along with interest at rate of 18% p.a. and additionally for directions to OP to pay Rs.15,000/- towards mental agony and harassment.
2. Complainant’s father approached Narayana IIT Academy (hereinafter referred to as OP) for admission of his son Siddharth Sharma in a coaching class, for a two year program which was divided in five semesters and paid Rs.60,000/- towards admission fee vide receipt No.568577-BOI and 055060-HDF dated 1.5.2008 and 17.5.2008 respectively. Acknowledgment of the receipt of the fee paid by the complainant is annexed as Annexure-A.
3. It is stated that OP at the time of admission had made tall claims regarding the OP institute stating that it has expert faculties, very good library, updates and other study materials and students can get extra slot of time whenever required. Also that OP conducts seminars for students so as to provide better knowledge in the subject for better preparation.
4. However, after joining the institute of OP, complainant came to know that the quality of the courses provided were not as per the standards claimed by OP. The complainant was not happy with the progress of study in the OP’s coaching institute because OP changed its teachers every two or three weeks and also library did not possess sufficient books. It is also stated by the complainant that complainant’s batch was the slowest in terms of completion of syllabus because the teachers were changed frequently and some teachers also left the academy. Dissatisfied with the deficient services provided by OP, complainant left the coaching institute of OP on 24.3.2009 and requested OP to refund the fee which he deposited at the time of taking admission but in vain. Complainant made several visits to the institute for the same but OP refused to entertain requests of the complainant.
5. Per contra, OP raised preliminary objections stating that the complainant had agreed to and accepted the Arbitration Clause in the enrolment form therefore any dispute between the parties shall be addressed before an Arbitrator. Hence the present complaint is barred by Arbitration and Conciliation Act.
6. The next objection raised by OP is that the complainant and the guardian had signed the terms and conditions in the enrolment form whereby they undertook that the student will not leave the institute before completing the full course. It is next stated by the OP that the complainant lost interest in studies hence did not attend his coaching classes of his free will and wish. The complainant blocked one seat in the coaching course of OP whereupon one aspiring students lost chance of coaching thus the complainant should be penalized for using the coaching course as per his convenience.
7. OP has relied on Islamic Academy and Anr. Vs. State of Karnataka & Ors.(2003) 6SCC697 where Hon’ble Supreme Court had held that educational institutions are entitled for advance collection of fee to the extent of semester/year. It is stated that following the dicta of Hon’be Supreme Court OP too is entitled for deposit of fee for semester/year .
8. It is next stated that the complainant applied for admission in OP institute for a two year programme. Fee of the said course is Rs 90,000/- plus service tax. Out of which complainant has paid only Rs.60,673/-
Break up of the fee is given below:-
1. Admission Fee Rs. 1,977.60
2. Study material Rs. 16,000.00
3. Tuition Fee Rs. 72,022.40
4. Service Tax Rs. 8,901.90
Total Rs. 98,901.90
9. Complainant has filed rejoinder and Evidence by way the affidavit. Though OP has also filed it’s Affidavit but it is not taken on record. It is noticed from the records that OP was given an opportunity to file it’s evidence but as OP failed to file it’s evidence it was proceeded against Ex-parte. Thereafter, OP filed an application to get the Ex-parte order set aside which was dismissed, as in CPA, 1986, District Forum did not have any power to set aside the Ex-parte orders. As OP did not approach the State Commission to get the order set aside, the Ex parte order dated 2.07.2012 has attained its finality. Therefore, OP’s evidence cannot be taken on record as OP was proceeded ex-parte at that stage. Since factual averments have not been supported by evidence, facts in written arguments cannot be considered.
10. Since the case pertains to the year 2009 and none appeared for addressing oral arguments despite opportunities, also as the written arguments of the complainant are on record, case is reserved for orders. Material placed on record is perused.
11. OP has raised preliminary objection stating that complainant had agreed to and accepted the arbitration clause in the Enrolment Form. Hence the complaint is barred by Arbitration and Conciliation Act and the matter should be referred to an arbitrator to be appointed by OP. The said objection raised by OP is rejected as Section 100 of the Consumer Protection Act, 2019 states -
“Act not in derogation of any other law:- the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being enforce”.
Therefore, instant complaint is maintainable under Consumer Protection Act ,2019.
12. Another objection raised by OP is that the complainant and his guardian has signed and consented to the declarations in the Enrolment Form and after giving consent to the said declarations , complainant cannot walk away from this undertaking. We are of the opinion that the terms of the agreement are not invincible or indestructible if same are unreasonable or unfair. On perusal of the clauses in the Enrolment Form it is noticed that certain clauses are arbitrary. Moreover since this is a factual averment, not supported by Evidence Affidavit, this cannot be considered. It is also noticed that no exit clause has been provided in the agreement, in case the students finds the services of OP unsatisfactory and wishes to withdraw the institute. Absence of the exit clause makes the agreement unconscionable, as it is one sided.
13. Similar view has been taken in Brilliant Tutorial Vs. Rahul Das reported as appeal No. 509/2006, decided on 9.1.2017, wherein the view of Hon’ble State Commission, Delhi was that :-
“any such term between the parties which allows the provider of service to forfeit the amount of service, which he has not provided is against the public policy and good conscious, unjust and unconscionable as the provider of service has the right to charge consideration only if it provides the services. Hence this commission is of the opinion that OP cannot draw any benefit from the consent of the complainant as the terms of the contract are arbitrary, unreasonable and one sided”.
Complainant has annexed, a letter dated 12.4.2009 as Annexure B wherein the complainant has mentioned that the reason for withdrawing from OP’s institute was that OP failed on many accounts and was deficient in services, which were not in accordance to what was promised. As the complainant had attended OP’s Institute for approximately one year of the two year programme,it would not be just and proper for OP to retain full fee paid by the complainant.
14. For refund of fee we are guided by FIITJEE Ltd. Vs. Dr. Minathi Rath and anr 2012 (1)CPJ 194 (NC) and Islamic Academy of Education V/s State of Karnataka (2003) 6SCC 696, wherein inter-alia it is observed as follows:
“In our view an education institution can only charge prescribed fees for one semester/year, if an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a band/bank guarantee that the balance fee for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fee in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalised banks (emphasis supplied). As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance.
15. Thus, we think it appropriate that OP retains the proportionate reasonable fee from the advance fee collected for the period services were availed and refund the remaining amount to the complainant. As stated by OP the fee of course for the two year programme was Rs.90,000/- plus service tax and after including the service tax the fee payable wasRs. 98,901.90/- out of which the complainant had paid only Rs. 60,673.24/-. As the complainant took classes in OP institute for about ten months out of the two year programme we think it would be proper for OP to refund Rs.15,000/- to the complainant and retain the remaining amount towards fee for one year and the costs incurred by the OP.
16. Accordingly, the complaint is allowed and OP is directed to refund Rs.15,000/- alongwith Rs10,000/- towards mental agony and litigation cost within three months from the date of order, failing which OP shall have to pay Rs.15,000/- @ 6% from filing of complaint till realisation.
File be consigned to the record room after giving a copy of the order to the parties as per rules.
