Chandigarh

StateCommission

A/36/2023

FRANKFINN INSTITUTE OF AIR HOSTESS TRAINING & ORS - Complainant(s)

Versus

TANYA - Opp.Party(s)

K S KOHLI & ASSOCIATES

28 Mar 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	36 of 2023
Date of Institution	:	01.03.2023
Date of Decision	:	28.03.2023

 

 

 

1]      Frankfinn Institute of Air Hostess Training, SCO No.118-120, 1st Floor, Sector 34-A, Chandigarh.

2]      Frankfinn Institute of Air Hostess Training, Jaini Soda Water, main Market, 2^nd Floor, Opposite Grace Hotel, Ambala Cant.-133001.

3]      Frankfinn Aviation Services Private Limited, 201, Suneja Tower-II, District Centre, Janakpuri, New Delhi – 110057.

……Appellants/Opposite Parties.

Versus

Tanya D/o Sh. Nand Kishore, 6717/2, 12 Cross Road, Ahata Shiv Mandir, Ambala Cantt.

…..Respondent/Complainant.

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   MR. RAJESH K. ARYA, MEMBER

                  

Argued By:-      

Ms. Meenakshi Midha, Advocate for the appellants.

Ms. Tanya, respondent/complainant in person.

 

 

 

 

 

PER  RAJESH K. ARYA, MEMBER

                    This appeal has been filed by the opposite party, namely, Frankfinn Institute of Air Hostess Training (appellant herein) against order dated 03.01.2023 passed by District Consumer Disputes Redressal Commission-I, U.T., Chandigarh [in short ‘District Commission’], whereby consumer complaint bearing No.854 of 2019 filed by the complainant, namely, Ms. Tanya (respondent herein) has been allowed by the District Commission in the following manner:-

“15.    In the light of above, the present consumer complaint succeeds and the same is accordingly allowed. OPs are directed as under:-

1. to pay Rs. 1,54,000/-  (after deducting Rs.10,000/-as administrative charges/service charges) to the complainant alongwith interest @9% per annum from the date of payment.
2. to pay Rs.10,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.10,000/-  to the complainant as costs of litigation.

16.     This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.”

2.                The brief facts, as culled from the impugned order passed by the District Commission, were as under:-

“1.     Briefly stated, the complainant approached the OPs for the course of Air Hostess and on the assurances and rosy picture projected by the OPs that after completion of course students will get 100% job placement she took the admission with the OPs in Frankfinn Diploma in Aviation, Hospitality and Travel Management for the period of one year and paid Rs.1,54,000/-on 22.6.2016 after obtaining Education Loan from Punjab National Bank, Ambala cantt. The complainant started attending the classes of the Opposite Party No.1 and for this she had to incur Rs.150/- per day as fair to attend the classes from Ambala to Chandigarh. It is stated that when the complainant attended the classes of Opposite Party No.1 for about one month, one day  the Teacher of the Institute saw burn mark on the right wrist of the complainant and told her that with that mark the complainant cannot be selected for the post of Air Hostess and she will not have any benefit of doing the said course with them. Accordingly the complainant requested the Opposite Party No.1 institute to refund the fee which was paid by her but they told her that they cannot refund the same to her directly as the same can be refunded with the permission of Opposite Party No.3.  The complainant made several requests to the OPs to refund the amount and also sent legal notice which was replied by them but nothing fruitful came out. Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2.      The Opposite Parties in their reply took preliminary  objection that the complainant is not a consumer and this Commission has no territorial jurisdiction. It is stated that before taking admission, apart from E prospectus, issued to the complainant by the Opposite Parties, the complainant also executed a fully legally valid and enforceable contract i.e. an online Student Agreement out of her own free will and only after fully understanding and accepting the terms and conditions stipulated therein and all its terms and conditions are binding on both the parties. In Annexure C of the said agreement eligibility information for airlines cabin crew aspirants has been provided wherein amongst others it has been clearly mentioned that there should not be any mark and/or scar on the face/forearm/neck/legs (uncovered area) for cabin  crew job in Airlines. One is advised to consult skin specialist if she/she has mark(s) in the body areas as mentioned here above and take treatment for the same and check if these marks/scars can be treated/removed.  Thus, the complainant was fully aware at the time of taking admission that she was not eligible for cabin crew job but was eligible for Aviation Ground Staff, Hospitality, Travel Management and Customer Service sector Job. Moreover as per Clause 7(1) of the Student Agreement duly executed by the complainant she had given undertaking that she had already received the Annexure C pertaining to eligibility criteria. The complainant also gave undertaking as per 7(II) of the Student Agreement that she had read the Frankfinn e-prospectus completely and fully understood its contents. Hence,  the complainant was fully aware at time of taking admission that she  did not meet the minimum requirement for the cabin crew and she was also aware about the non-refund clause. It is averred that there is no deficiency on the part of the Opposite Parties.. All other allegations made in the complaint has been denied being wrong.”

3.                The order passed by District Commission has been assailed on the ground that the District Commission acted with material irregularity in recording its findings and conclusions against the appellants and the same are contrary to law and facts on record. It has further been stated that the District Commission also erred in passing the impugned order without dealing with the propositions of law involved in deciding the subject issue and the judgment is based on surmises and conjectures. By placing reliance on Manu Solanki & Ors. vs. Vinayaka Mission University & Ors., I (2020) CPJ 210 (NC), FIIT JEE Ltd. Vs. S. Balavignesh, III (2015) CPJ 112 (NC) & Mayank Tiwari Vs. M/s FIITJEE Ltd., Revision Petition No.4335 of 2014 decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 08.12.2014, it has been argued that educational institutions are not service providers because education is not a commodity and educational institutes are not providing any kind of service. Ld. Counsel for the appellants further argued that in Manu Solanki Case (surpa), the Larger Bench of Hon’ble National Commission has observed 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.” She submitted that as per RECITAL ‘A’ of Student Agreement, at page 65 of the complaint file, since the appellants are providing various vocational courses of different durations in the subject area of Aviation, Hospitality, Travel Management and Customer Services including the course titled as “Frankfinn Diploma in Aviation, Hospitality and Travel Management” of 12 months duration – Part Time, in which the complainant took admission, therefore, is not covered under the provisions of the Consumer Protection Act, 1986. Further reliance is placed on Prof. K. K. Ramachabdran Vs. S. Krishnaswamy & anr., S.L.P(c) No.3789 of 2012 decided by Hon’ble Supreme Court on 29.04.2013, wherein it has been held that imparting education is not rendering service and therefore, these matters cannot be subject matters under the Consumer Protection Act, 1986. It has been argued that in the matter of admission, fees, etc., there cannot be a question of deficiency of service and such matters cannot be entertained by Consumer Forum under the Consumer Protection Act, 1986. It has further been stated that it has been clearly mentioned in the e-Prospectus that leaving the course in between would make the student liable to pay the balance course fee and in such case, no claim of refund of fee paid by the student shall be entertained and the same shall stand forfeited. It has further been stated that the respondent attended the classes at the appellant – Institute for few days and she left the course abruptly at her own sole discretion. The appellant – Institute has also raised certain questions of law to the effect that (i) Is Education a commodity and are the educational institutes providing any service?; (ii) Is student a consumer as per the Consumer Protection Act?; (iii) Is student entitled to refund of fee once he/she has been informed by way of executed documents/undertaking/declaration that fees once paid will not be refunded under any circumstances? & (iv) Whether the District Commission has the jurisdiction to entertain the matter in view of specific clause to the effect that the Courts at Delhi have the sole jurisdiction to entertain the matter? Lastly, prayer for setting aside of the impugned order has been made by the appellant – Institute.

4.                On the other hand, the respondent/complainant, while herself arguing her case, submitted that her father who is a e-Rikshaw driver paid the fee for the course i.e. Rs.1,54,000/-on 22.6.2016 after obtaining Education Loan from Punjab National Bank, Ambala Cantt. and it was on the assurances of 100% job placement given by the appellants that she took the admission in the said course for a period of one year. However, one day, when the teacher of the Institute noticed burn mark on her right wrist, told her that she could not be selected for the post of Air Hostess as she is having a burn mark and she would not have any benefit of doing the said course, she (respondent) left the course and sought refund.  

5.                After giving our thoughtful consideration to the contentions raised by the Counsel for the appellant and the respondent in person and going through the record and the impugned order very carefully, we are of the considered view that the appeal is liable to be dismissed for the reasons to be recorded hereinafter.

6.             Before dealing with the grounds raised in the appeal, we would like to first decide the objections raised by the appellant – Institute with regards to the respondent not being a consumer and the District Commission not having the jurisdiction to entertain the matter in existence of specific clause that the Courts at Delhi will have the sole jurisdiction to entertain the matter.

7.                So far as the contention raised on behalf of the appellant – Institute that the respondent is not a consumer and they (appellants) are not service provider, it may be stated here that this objection of the appellants has no legs to stand in view of pronouncement of Hon’ble National Commission vide order dated 04.04.2019 in Revision Petition No.3052 of 2018 – Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial, wherein, it has been held by Hon’ble National Commission that the complainant is a consumer and the opposite parties are the service provider. Relevant Paras 14 & 15 of the said judgment read thus:-

“14.   From the above, it can be concluded 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.  Moreover, the State Commission has relied upon the decision of the Hon'ble Supreme Court in Budhist Mission Dental College & Hospital Vs. Bhupes Khurana & Others, wherein the following has been observed:-

"32. The Commission also held that this Court in Bangalore Water Supply and Sewerage Board (supra) held as under: [para 118 at page 583]:-

"...In the case of the University or an educational institution, the nature of the activity is, ex hypothesi, education which is a service to the community. Ergo, the University is an industry..."

The Commission further held as under:

    "Imparting of education by an educational institution for consideration falls within the ambit of ‘service’ as defined in the Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The complainants had hired the services of the respondent for consideration so they are consumers as defined in the Consumer Protection Act."

15.    From the above discussion, it is clear that the petitioner institution cannot be given advantage of the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra).

16.    Based on the forgoing discussions, it is concluded that the complainant is a consumer and the petitioner institution is a service provider in the present case.”   

Not only above, the Hon’ble National Commission in a recent judgment in the case of L.B.S. Group of Education Vs. Arjun Singh & Ors., Revision Petition No.544 of 2020 decided on 31.08.2020 has held in Paras 44 & 45 as under:-

          “45. We are of the considered view 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'. We refrain from making any comments on the submissions of the learned Counsel for the Complainants with respect of Coaching Institutions indulging only in 'rote learning'.

          46. For all the afore-noted reasons, we are of the opinion that any defect or deficiency or unfair trade practice pertaining to a service provider like 'Coaching Centres' does fall within the jurisdiction of the Consumer Fora.”

8.                Ld. Counsel for the appellants argued that the Hon’ble Supreme Court vide order dated 09.08.2019, while dismissing SLP(c) No.24134/2019 titled ‘Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial’, has kept the question of law, if any, open for being decided in appropriate cases. We are of the considered view that as on today, the judgment of Hon’ble National Commission in Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial (supra) is applicable and binding on this Commission. Therefore, the argument raised that since as per RECITAL ‘A’ of Student Agreement, the appellants are providing various vocational courses of different durations in the subject area of Aviation, Hospitality, Travel Management and Customer Services including the course titled as “Frankfinn Diploma in Aviation, Hospitality and Travel Management” of 12 months duration – Part Time, in which the complainant took admission, therefore, subject matter does not come under the purview of the provisions of the Consumer Protection Act, 1986 is devoid of merit and is accordingly stands rejected.

9.                The next objection raised by the appellant that the District Commission does not have the jurisdiction to entertain the matter in existence of specific clause that the Courts at Delhi have the sole jurisdiction to entertain the matter, stands rejected being not sustainable in view of Section 3 of Consumer Protection Act, 1986, which stipulates that 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 in force.

10.              As regards the contention raised by the appellant – Institute that education is not a commodity and in the matter of admission, fees, etc., there cannot be a question of deficiency of service and such matters cannot be entertained by Consumer Forum under the Consumer Protection Act, 1986 in view of judgments in the case of Manu Solanki  & Ors. vs. Vinayaka Mission University & Ors. (supra), Regional Institute of Cooperative Management versus Naveen Kumar Chaudhary, Shitanshu Ranjan (supra), FIIT JEE Ltd. Vs. S. Balavignesh (supra) & FIITJEE Ltd. Vs. Daya Chand Prasad (supra), it may be stated here that in L.B.S. Group of Education’s case (supra), the Hon’ble National Commission has made it very clear that conduction of Coaching Classes does not fall within the ambit of definition of 'Education' and they 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. Even in Manu Solanki  & Ors. vs. Vinayaka Mission University & Ors. (supra), whereupon reliance has been placed by the appellants, it has been held that conduction of Coaching Classes does not fall within the ambit of definition of 'Education'. Therefore, admittedly, the present appellants – Institute being a coaching centre does not come under the ambit of education and can very well be tried for deficiency in rendering service or unfair trade practice on its part in so far as the respondent/complainant is concerned. The argument raised stands rejected. 

11.              Now coming to the main contention raised by the appellants to the effect that since valid e-contract had been executed between the parties, wherein, as per Clause (4) of Annexure C forming part of the said  contract (at Page 74 of the complaint file), it has been clearly understood that there should not be any mark and/or scar on face/forearm/neck/ legs (uncovered areas) for Cabin Crew Jobs, yet, on the other hand, despite the fact that the complainant was having burning scar on her right wrist, she willfully took admission in the said course, for which she in fact was not eligible and therefore, she is not entitled to any refund of the fees paid by her. In Para 2 of their reply, the appellants have only pleaded that before taking admission, the complainant had executed an online Student Agreement out of her own free will and accepted the terms and conditions thereof, which are binding on both the parties. In this regard, it may be stated here that it is not the case of the appellants that the draft of this e-contract had been sent to the complainant for going through the terms and conditions contained therein, before making payment of course fees, so that she is able to make up her mind accordingly.  However, on the other hand, admittedly, the entire course fee of Rs.1,54,000/- had been received by the appellant by 22.06.2016, whereas, the e-contract was sent to the complainant vide email dated 11.07.2016, (at page 63 of paper book), meaning thereby that there was no option left with the complainant than to accept the same. Had the said e-contract been sent to the complainant in advance, the matter would have been different, as she would have visited the doctor to get removed the said scar on her wrist, after taking treatment and then joined the said course. However, the complainant was deprived of this opportunity because she was not made aware of the Clause (4) of Annexure C before making payment of fee towards the said course. In other words, it can easily be said that the appellants thrust the said terms and conditions by way of standard format e-contract by sending the same (which are unfair and unreasonable), through email dated 11.07.2016 i.e. after 22 days of receipt of consideration from the  complainant, with an ulterior motive that even if she wanted to withdraw from the course on account of any reason, she would not be able to ask refund of the amount paid, under the garb of terms and conditions mentioned in the said contract. Mere sending e-contracts loaded with one sided terms and conditions based on inequality of bargaining power for the complainant, which has resulted into great disparity for her, has no value in the eyes of law.  It is well settled law that, the courts have power to strike down the unfair and unreasonable clause(s) contained in a standard format contract, especially, when the parties are not equal in bargaining power. It is also well settled law that the terms and conditions of the contract should be reasonable and if the same are unreasonable and opposed to public policy, they will not be enforced. Under similar circumstances, in the case Central Inland Water Transport Corporation Ltd. & Anr. Etc. vs Brojo Nath Ganguly & Anr. 1986 AIR 1571, 1986 SCR (2) 278, the Hon’ble Supreme Court struck down unfair and unreasonable clause in a contract while holding as under:-

“……The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances……”

Similar view was taken by the Hon’ble Punjab and Haryana High Court in IFFCO TOKIO General Insurance Company Ltd. Vs. Permanent Lok Adalat (Public Utility Services), LPA No.1537 of 2011 decided on 26.08.2011, wherein also it was held as under:-

“….The law is well settled with regard to the exclusion clauses in standard forms of contracts. When the bargaining powers of the parties is unequal and a consumer has no real freedom to contract then such a power may be considered unfair. The principle deducible from various precedents is that the Courts would not enforce and when called upon to do so, strike down such an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. For instance, the above principle would apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It would also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. The types of contract to which the principle formulated above applies to terms which are so unfair and unreasonable that they shock the conscience of the Court.…”.

12.              In our considered opinion, in the present case also, the conditions contained in the standard form of e-contract which were not made aware to the complainant at the time of taking admission and also making payment towards the said course, is against the public policy and required to be adjudged as void and ignored, especially, when it has not been proved by the appellants, as to what loss they have suffered, on account of withdrawal by the complainant from the said course. Apart from it, if these conditions are allowed to continue, it will amount to undue enrichment to the appellant, which will go against the interests of the consumer and public policy.

13.           Furthermore, it is also significant to mention here that it has not been clarified by the appellants that in case such a stringent requirement has been provided in the said e-contracts, then why they are not conducting any medical examination of the students through doctors before giving admission in the courses or on the other hand, why they are not seeking medical certificates from the intending students to declare as to whether they are meeting the medical criteria qua having any skin problems etc., as referred to in the contracts or not. Thus, the act of the appellants, in the first instance, receiving fees from the complainant/intending students and thereafter binding them under one sided terms and conditions qua non refund of fees etc. is nothing but an unfair trade practice on their part, which needs to be deprecated.  In this view of the matter, we are of the concerted view, that the Ld. District Commission has rightly allowed the complaint of respondent/ complainant.

14.           Therefore, in our considered view, the Ld. District Commission has rightly allowed the complaint vide the order impugned, which does not suffer from any infirmity or material irregularity and is based upon true appreciation of facts and settled law on the subject.

15.              For the reasons recorded above, the appeal being devoid of merit is dismissed with no order as to costs.

16.              Miscellaneous application(s), if any, in this case stands disposed of having become infructuous.

17.              Certified copies of this order be sent to the parties free of charge.

18.              File be consigned to Record Room after completion.

Pronounced

28.03.2023.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (RAJESH K. ARYA)

MEMBER

 

 

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