BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.162 of 2022
Date of Instt. 18.05.2022
Date of Decision: 01.04.2024
Ankit Aggarwal aged 22 years son of Ajay Aggarwal son of Shri Lajpat Rai Aggarwal R/o 337-A, New Kalgidhar Avenue, 66 Ft. Road, Opposite Curo High Street, Jalandhar.
..........Complainant
Versus
1. SDA BOCCONI, Asia Center, School of Management, 9th Floor, Hiranandani Knowledge Parkm, Opposite Hiranandani Hospital, Powai, Mumbai. Through its Dean David Bardolet.
2. M/s Innovative and Technology Learning Services Pvt. Ltd. 9th Floor, Hiranandani Knowledge Park, Hirandani, Powai, Mumbai, Mumbai City, Maharashtra-400076 Through its Managing Director/Incharge.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Rakesh Dhir, Adv. Counsel for the complainant.
Sh. Hatinder Sharma, Adv. Counsel for OPs.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the OP is in the business of running the management institute under the name and style of SDA Bocconi Asia Centre. The complainant No.1 has enrolled for international master in business Program of the OP and the complainant No.2 has paid a sum of Rs.25,95,023.60 from his saving bank account No.550393222992 with State Bank of India, Jalandhar to the OP by way of bank transfer on 28.02.2022. However, due to acute financial constrains the complainant No.1 decided to not to go in for pursuing the course and decided to withdraw from the program due to unforeseen circumstances and vide email dated 19.03.2022, the complainant No.1 informed the OP on their official email ID for admissions. The session for the said programme was to start from 13.06.2022 whereas the complainant has informed the OP on 19.03.2022 for not pursuing the course i.e. well in advance. Thereafter, the complainant again sent reminder email on 24.03.2022 and 25.03.2022 requesting for refund of the amount. In the email dated 25.03.2022 the complainant No.1 also requested the OP to refund the said amount in their same account from where the payment was made to the OP i.e. the bank account of complainant No.2 and also gave the bank details in the said email. The OP vide its reply through email dated 30.03.2022 refused to return the said fee. The complainant No.1 thereafter through another email cited that the amount of fee has been paid by his grandfather from his hard earned saving and it was also stated that the grandfather of the complainant No.1 i.e. complainant No.2 is suffering from serious ailments and is a paralytic patient. The complainant further submitted in his said email that the family fo the complainants is in urgent needs of funds and there is acute paucity of funds meaning thereby that financially the complaint are too weak and made a humble request for refund of the admission fee. But no reply has been made by the OP to the said email despite passage of more than a month’s time. By the above said acts, the OPs have not only committed unfair trade practice, but have rendered deficient and negligent services, by not refunding the amount of the admission fee despite repeated requests by the complainant 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 pay admission/enrolment fee amounting to Rs.2,95,000/- to the complainants and Rs.5,00,000/- as compensation and Rs.35,000/- as litigation expenses.
2. Notice of the complaint was sent to the OPs, who appeared and filed written reply and contested the complaint by taking preliminary objections that the complainants have not come before the Commission with clean hands and have suppressed material facts in the present complaint. The complainants have failed to disclose that the complainant no.1 had vide his email dated 30.03.2022 informed the OP that the complainant no.1 would not like to withdraw from the Program and that the loan for the Program was sanctioned and everything was sorted. The complainants have relied only on emails dated 19.03.2022, 24.03.2022, 25.03.2022 and 16.04.2022 asking for a refund of the Admission Fee but have not disclosed the mail dated 30.03.2022. The present complaint is liable to be dismissed on this ground alone. It is further averred that the present complaint is liable to dismissed on the ground that this Commission has no jurisdiction to entertain the present complaint. The complainant No.1 has duly signed the Registration Form and the General Terms and Conditions The back side of the Registration Form and is accordingly bound by the terms and conditions mentioned in the Registration Form and General Terms and Conditions as well as the IMB Rules. Clause 11 of the duly signed General Terms and Conditions clearly mentions that the Court of Mumbai shall have sole jurisdiction with respect to any disputes arising out of this Contract. The Plaintiff remitted the Admission Fee to the bank account of Defendant No.1, which was situated in Mumbai, Maharashtra. The said Admission Fee was payable in Mumbai and was received in relevant bank account in Mumbai. Further, the Admission Fee amount was deposited by the complainants in the OP's bank account at Mumbai. The course to which the complainant no.1 sought admission to was also to be taught in Mumbai. Accordingly, no cause of action can be said to have arisen within the local limits of this Commission. Accordingly, it is submitted that this Commission has no jurisdiction to entertain the present complaint filed by the complainants and the present complaint is liable to be dismissed on this ground alone. It is further averred that the present complaint is liable to be dismissed on the ground of non-joinder of necessary party. In the Registration Form duly signed by the complainant no.1 that the total fee has to be paid to "Innovative and Technological Learning Services Private Limited" ("ITLS"). Accordingly, admittedly, the Admission Fee of Rs.2,95,000/- was deposited by the complainants in the bank account of ITLS. Further, the details of ITLS were also provided in the Registration Form and ITLS was also mentioned as the licensee of the brand "SDA Bocconi Asia Center". Thus, ITLS being a necessary party has not been arrayed as an Opposite Party by the complainants in the present case. The arrayed OP is not a legal person in the eyes of law and as such the present complaint is liable to be dismissed on this ground alone. It is further averred that the complainant no.2 has been wrongly made a party to the present complaint. It is submitted that the complainant no.1 is an Indian adult and has expressly signed and accepted the Registration Form and the Offer Letter in his own capacity as a prospective student for the IMB Program. It is the Participant who has signed and accepted the terms of and has agreed to be bound by the Registration Form, the Offer Letter and the IMB Rules. There is no privity and dealings with the complainant no.2 except in so far as the Admission fee was paid from the bank account of complainant no.2 by complainant no.1. No promises or representations were made to the complainant no.2 by OP. The complainant no.2 health condition as stated cannot circumvent the terms and conditions of admission applicable and duly agreed to by the complainant no.1. In view of the abovementioned averments, it is submitted that since the present complaint is liable to be dismissed on the ground of mis-joinder of parties alone.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
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 as well as written arguments submitted by counsel for the OPs very minutely.
6. It is admitted that the complainant No.1 was enrolled for the IMB program with the OPs. The complainant has proved on record Ex.C-3, the statement of account to show that the amount of Rs.2,95,023.60 was paid to the OP as the admission fee, which is mentioned in the document Ex.OP-6. As per Ex.OP-6, the admission fee of Rs.2,95,000/-was to be paid upon registration and which were paid by the complainant as per Ex.C-3. It is also admitted that the complainant had sent the email dated 19.03.2022, 24.03.2022 and 25.03.2022 for withdrawal from the program due to unforeseen circumstances. It is also not disputed that vide email dated 25.03.2022, he made request to the OPs for the refund of the amount, which was denied and refused by the OPs. Perusal of the emails Ex.C-4 to Ex.C-8 show that the complainant has been making the request to the OPs to refund the amount of Rs.2,95,000/- as he would have to withdraw from the program. The amount of Rs.2,95,000/- was paid by the complainant on 28.02.2022.
7. The OP has also relied upon Ex.C-10/Ex.OP-4, Ex.OP-5, Ex.OP-6, wherein it has specifically been mentioned that the fee once paid will not be refunded if the withdrawal is after 14 days from the expiry date of enrollment. The OP has categorically alleged that the present complaint cannot be filed by the complainant as the complainant is not a consumer and the complaint is not maintainable. The OP has contended that as per 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.
8. 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];
As per the law laid down by the Hon'ble National Commission in a case titled as ‘Manu Solanki & 8 Ors Vs. Vinayaka Mission University’, the Hon'ble National Commission has observed that ‘conduction of Coaching Classes does not fall within the ambit of definition of 'Education' as defined by the Hon'ble Seven Judge Bench of the Supreme Court in P.A. Inamdar (Supra). Coaching Centres cannot be equated to regular schools or colleges which are regulated by a Regulatory Authority and also confer a Degree/Diploma on the student who has passed in the examinations conducted as per the Rules and norms specified in the statute and also by the concerned Universities. Therefore, strictly speaking Coaching Centres cannot fall within the definition of Educational Institutions.’
Further, the Hon'ble National Commission has held that ‘the Institutions rendering Education including Vocational courses and activities undertaken during the process of pre-admission as well as post-admission and also imparting excursion tours, picnics, extra co-curricular activities, swimming, sport, etc. except Coaching Institutions, will, therefore, not be covered under the provisions of the Consumer Protection Act, 1986’.
The Hon'ble National Commission has relied the observation of the Hon’ble Supreme Court defining the meaning of Vocational Courses in a case titled as ‘Principal, L. D. R. P. Institute of Technology and Research Vs. Apoorv Sharma’ that ‘The Hon'ble Supreme Court in State of Punjab & Ors. Vs. Senior Vocational Staff Masters Association & Ors., 2017 (9) SCC 379, in para 22 observed that Vocational Courses are those Courses in which teaching is not on regular basis, though they play an important role in the grooming of students in the different fields. Vocational education can also be termed as job oriented education and trains young people for various jobs and helps them acquire specialize skills.’
It has been held by the Hon'ble National Commission that Principal, L. D. R. P. Institute of Technology and Research is rendering education to all the persons, including the Complainant/Respondent, and is not running a Coaching Institute. Therefore, the law laid down by the Larger Bench of this Commission in the Case of Manu Solanki (Supra), which I am bound to follow, is fully applicable and the Institute does not fall within the purview of the Consumer Protection Act, 1986 as it is not rendering any services.
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.
In the present case, as per the brochure of the OP Ex.OP-2, the OP is a university and is a leading school of management. The international master in business is a specialized program fully equivalent to post graduate program. This shows that this is an educational institution and is rendering education on regular basis to the students and is not running a coaching institute, therefore, as per the law laid down by the Hon’ble Supreme Court and the Hon’ble National Commission, this institute does not fall within the preview of the Consumer Protection Act as it is not rendering any service and complaint is accordingly, not maintainable and the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
9. 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
01.04.2024 Member Member President
