STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

M/S FIITJEE LIMITED, SCO No.321-322, First and Second Floor, Sector 35-B, Chandigarh-160022 through its Director.

……Appellant.

V E R S U S

Sh. Sunny Sharma father of Sh.Vipin Mohan Sharma, Resident of House No.1040, Sector-8C, Chandigarh – 160009.

....Respondent

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    MR. JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

                   SH.JAGROOP SINGH MAHAL, MEMBER

Argued by:  Sh.Roopesh Kumar, Advocate for the applicant/appellant.

              Respondent in person.

PER JUSTICE SHAM SUNDER, PRESIDENT

1.               This appeal is directed against the order dated 04.04.2011, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint and directed the OP(now appellant) as under:-

“In view of the foregoing discussion, the present complaint is allowed.  The OP is directed to refund an amount of Rs.34,214/- to the complainant. In addition to this, the Complainant is also entitled to compensation of Rs.10,000/- for mental agony and litigation charges amounting to Rs.7,000/-.

The aforesaid order be complied with by the OP, within a period of one month from the receipt of its certified copy, failing which the OP shall pay the above said amount (excluding cost of litigation) along with interest @12% per annum from the date of complainant making application for refund i.e. 04.08.2010, till the date of realization, along with the cost of litigation mentioned above”.

2.               The facts, in brief, are that Sh. Vipin Mohan Sharma, son of the complainant, approached the OP(now appellant) and took admission in 2 Year Classroom Programme [2010-2012], after getting himself registered with it (OP) vide Regd. No.1101041612712090134 and Enrollment No.1151161020007. It was stated that after attaining good rank in FIITJEE Talent Reward Examination, he was offered admission, in the said course, and was asked to deposit, the total fee for two years in advance by 25.2.2010. It was further stated that a total sum of Rs.46,319/-, was deposited by way of demand drafts, towards admission fee, Infrastructure Cost Fee, Tuition Fee and Books & Study Material, for two years coaching, in advance. It was further stated that the coaching classes started from 20.4.2010. In the meantime, the son of the complainant, was selected in Mohindra United World College, Pune (Maharashtra), which offered him full scholarship for the complete course, including boarding and lodging expenses. The son of the complainant took admission, in the said College, at Pune. The OP was requested by the complainant vide letter dated 4.8.2010, for refund of the balance fee paid, by his son, by making proportionate deductions. The complainant also wrote letters/reminders dated 26.8.2010, 4.10.2010, 27.10.2010, 27.11.2010 and 9.4.2010, seeking the refund of fee, but to no avail. It was further stated that the aforesaid acts of the OPs, amounted to deficiency, in rendering service, and indulgence into unfair trade practice.

3.               When the grievance of the complainant, was not redressed, left with no other alternative, a Complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed against the OP(now appellant).

4.               The OP, in its reply, admitted that the son of the complainant, took admission, in the course, mentioned above.  It was stated that he deposited the fee of Rs.43,569/-, after availing 75% scholarship, which included Rs.10,000/- as admission fee, Rs.4,069/- as Service Tax and Rs.2,750/- for study material. It was further stated that it was known to the complainant, that the fee once deposited was non-refundable, and the declaration containing the terms and conditions, in this regard, was duly signed by the complainant, and his son, after going through the same, at the time of taking admission. It was further stated that, neither the complainant, nor his son, ever complained of anything. It was further stated that, after three months of study, the son of the complainant himself, voluntarily left the course midway, and the seat, so vacated by him, remained vacant. It was further stated that, to ensure quality education, uniform teaching standards and keeping in mind, the interests of the students, the OP did not fill up the seat vacated by any student, who left the course midway. It was further stated that, as such,  the complainant was not entitled to the refund of fees. It was further submitted, that neither there was any deficiency, in rendering service, on the part of the OP, nor it indulged into unfair trade practice.

5.               The Parties led evidence, in support of their case.

6.               After hearing the Counsel for the OP, as well as, the complainant in person, and on going through the evidence and record, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

7.               Feeling aggrieved, the instant appeal, has been filed by the appellant/OP.

8.               We have heard the Counsel for the appellant, as well as, the respondent in person, and, have gone through the evidence and record of the case, carefully. 

9.               The Counsel for the appellant, submitted that, no doubt, the son of the complainant took admission, in the aforesaid course of the OP. He further submitted that a total sum of Rs.43,569/-, which included Rs.10,000/-, as admission fee, Rs.4,069/- as Service Tax and Rs.2,750/- for study material, was deposited by the complainant. He further submitted that, as per the terms and conditions, of the declaration, if a candidate leaves the course, in the midway, he was not entitled to the refund of fee. He further submitted that the terms and conditions were clearly understood by the complainant and his son, and thereafter, they signed the same. He further submitted that since the son of the complainant, left the course, after studying for about 3 months, of his own accord, there was no deficiency, in service, on the part of the OP, in non-refunding the fee. He further submitted that the case law, on which the reliance, was placed by the District Forum, is not applicable to the facts of the present case. He further submitted that the District Forum, fell into an error, in ordering the refund of fees of Rs.34,214/-, after deducting proportionate fee for a period of 4 months. He further submitted that the appellant is ready to refund, half of the fee, deposited by the complainant.

10.           On the other hand, the respondent, in person, submitted that once the son of the complainant, left the course, after studying for a period of 3 months, it was the duty of the OP, to refund the fees, after making proportionate deductions, therefrom, for the period he (son of the complainant), attended the course. He also submitted that a number of letters were written to the OP, to refund the same, but no avail, and, ultimately, the complainant was forced to file this complaint. He further submitted that, he and his son suffered a lot of physical harassment and mental agony, on account of non-refund of the proportionate fee, by the OP. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.

11.            After giving our thoughtful consideration, to the rival contentions, raised by the Counsel for the appellant, as well as, the respondent, in person, the evidence and record, we are of the considered opinion, that the appeal is liable to be partly accepted, for the reasons to be recorded hereinafter. There is, no dispute, between the parties, about the factum, that the son of the complainant/respondent, took admission, in the aforesaid course, the duration whereof was 2 years. There is also, no dispute, about the factum, that the entire fee alongwith other charges, for the duration of 2 years, was deposited by the complainant, at the time, his son took admission. No doubt, at the time of taking admission, in the course, a declaration was signed, by the complainant, and his son, to the effect that, if the latter left the course, in the midway, the fee shall not be refunded. In paras 3 and 4 of the written statement, the OP admitted that a sum of Rs.43,569/-, towards fee and other charges, was deposited by the father of the complainant, at the time his son took admission. The Counsel for the appellant placed reliance on FIITJEE (Hyderabad Classes) Limited & Ors., Vs. Rohit Binjrajka, II (2010) CPJ 45, Revision Petition No.1976 of 2010, decided on 29.07.2010, by the National Consumer Disputes Redressal Commission, New Delhi, to support his contention that, at the most, the OP was liable to refund only half of the fee. A perusal of the facts of FIITJEE (Hyderabad Classes) Limited`s case (supra), goes to reveal that the complainant, therein, joined 2 years integrated course started by the OP(petitioner) in July, 2004, and paid a sum of Rs.1,04,000/-. After studying the course for 3 months, he left the same, of his own accord. When he asked the OP for refund of the amount of fee, it was not refunded. He, thus, filed a complaint. The District Forum ordered the refund of fee, after deducting Rs.32,000/-. Feeling aggrieved, an appeal was filed before the State Consumer Disputes Redressal Commission, which was dismissed. Ultimately Revision Petition, was filed by FIITJEE (Hyderabad Classes) Limited, in the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. The National Consumer Disputes Redressal Commission, in the aforesaid case, held that taking into consideration, the equities, on both sides, it was of the opinion, that the petitioner(OP), should refund 50% of the amount of fee taken for 2 years course, since the complainant had left the course, in the first year, itself. The observations made in FIITJEE (Hyderabad Classes) Limited`s case (supra), are fully applicable to the facts of the instant case. Getting the fees deposited, in advance beyond the current semester/year, from the complainant and refusal to refund half of the fees, when the son of the complainant left the course after studying for three monthly only, amounted to indulgence into unfair trade practice on the part of the appellant/OP. Relying on the aforesaid judgment, it is held that the son of the complainant was only entitled to the refund of half of the fee, as he had left the course, in the first year itself, which comes to Rs.21,784/-. As stated above, even the Counsel for the appellant, at the time of arguments, submitted that the appellant, at the most, was liable to refund half of the fee. The order of the District Forum, is liable to be modified, to this extent.

12.            The next question, that arises for consideration, is, as to whether, the complainant was entitled to compensation for physical harassment, and mental agony, caused to him and his son, on account of non-refund of half of the amount of fee, immediately, after his son left the course, and for forcing him (complainant) to file the complaint. The answer to this question, must be in the positive. It was the duty of the OP, to refund half of the fee, since the son of the complainant left the course, in the midway, after studying for about 3 months. Why did not it do so, has not been explained, at all. The judgment  in FIITJEE (Hyderabad Classes) Limited`s case (supra), was rendered on 29.07.2010, by the  National Consumer Disputes Redressal Commission, New Delhi, and it was well in the knowledge of the OP. Once half of the fee was not refunded to the complainant, he had no alternative, than to file a complaint, on 03.12.2010. The OP was requested, many a time, by the complainant, and his son, regarding the refund of fee, but to no avail. Under these circumstances, the District Forum was right in awarding compensation to the complainant.

13.            The penal interest @12% P.A., awarded by the District Forum, in our opinion, can certainly, be said to be on the higher side in the context of the facts and circumstances prevailing in this case. In our considered opinion, if penal interest @8% p.a., is granted, it shall serve the ends of justice.  The order of the District Forum, is liable to be modified to this extent.

14.            No other point, was urged, by the Counsel for the appellant, as well as, the respondent..

15.            For the reasons, recorded above, the appeal, is partly accepted, with no order as to costs, and the impugned order is modified, in the following manner:-

i)         The appellant/OP, is directed to refund Rs.21,784/-, being half of the fee, which was deposited by the respondent/complainant.

ii)       The appellant/OP, shall pay penal interest @8% P.A., instead of 12% P.A., as directed by the District Forum.

iii)     The remaining directions given and reliefs granted by the District Forum shall remain unaltered.

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

17.         The file be consigned to Record Room, after completion

Pronounced.

4^th October, 2011

Sd/-

 [JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

 [NEENA SANDHU]

MEMBER

Sd/-

 [JAGROOP SINGH MAHAL]

 MEMBER

Rg