Chandigarh

DF-II

CC/671/2018

Kamlesh Kumar - Complainant(s)

Versus

The British School (Senior Secondary) - Opp.Party(s)

V.N. Sachdeva Adv. & Vinod Kanwar Adv.

16 Apr 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	671 of 2018
Date  of  Institution	:	28.11.2018
Date   of   Decision	:	16.04.2019

 

 

 

 

Kamlesh Kumar s/o Sh.Sheo Parson Bhagat (Natural Guardian & father of Aryan Kumar and Pooja Kumari) R/o House NO.2601, sector 44-C, Chandigarh    

 

             ……..Complainant

Versus

 

1]  The British School (Senior Secondary), Sector 44-B, Chandigarh, through its Principal

2]  The Principal, British School (Senor Secondary), Sector 44-B, Chandigarh

 

………. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN        PRESIDENT

SMT.PRITI MALHOTRA    MEMBER

            SH.RAVINDER SINGH     MEMBER

 

Argued By:  Sh.Vinod Kanwar, Adv. for complainant.

 Ms.Manpreet Kaur, Adv. for OPs.

 

  

PER PRITI MALHOTRA, MEMBER

 

                                The case, in brief, is that the complainant in response to the advertisement of OPs, visited Opposite Parties for admission of his two children i.e. son Arayan Kumar in 7^th class and daughter Pooja Kumari in 9^th class and deposited registration charges of Rs.1000/- each vide receipts dated 12.12.2017.  Thereafter, the complainant deposited fee for the months of April & May, 2018 to the tune of Rs.9000/- each in cash vide receipts dated 13.12.2017.  The complainant also issued a cheque of Rs.81,000/- in favour of OPs towards admission of his children. 

         It is stated that after two days the complainant came know that the school of the OPs is a Middle School and there is no 9^th class and as such the complainant decided to withdraw his children and moved an application date 14.12.2017 to Opposite Parties for refund of the fee after deduction of registration fee (Annexure C-6).  Accordingly, the complainant also stopped the payment of cheque issued to OPs towards fee. However, the OPs did not refund the amount paid despite being served with legal notice.  Hence, this complaint has been filed alleging deficiency in service and unfair trade practice on the part of OPs.

 

2]       The OPs have filed reply and while admitting the factual matrix of the case, stated that the complainant is not a ‘consumer’ and thus the complaint is not maintainable.  It is stated that the complainant after going through the prospectus and admission guidelines, got his ward admitted in their school.  It is also stated that it was made clear to the complainant at the time of admission as per admission form duly signed by him that the fee is non-refundable.  It is submitted that after taking admission, the children of the complainant never turned up to attend classes for the best reasons known to complainant inspite of number of calls from Opposite Parties and thus the seat which the children of complainant occupied remained occupied for the whole year and in the whole session the complainant neither intimated the Opposite Party regarding their admission in any other school/institution nor served any notice or application for cancellation/withdrawal of their seat in the school of Opposite Party.  It is also submitted that the school of the OPs is affiliated with CBSE upto Senior Secondary level as per affiliation certified (Ann.OP-4). It is further submitted that the alleged request for refund of fee has never been made to the OPs and that Ann.c-6 is false/fabricated document.  Denying all other allegations and pleading no deficiency in service, the OPs have prayed for dismissal of the complaint.

 

3]       The complainant has also filed rejoinder thereby reiterating the assertion as made in the complaint and controverting that of the reply filed by Opposite Parties.

 

4]      Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and have also perused the entire record.

 

6]       Counsel for the Opposite Parties claimed that the OPs are protected by the judgment of ‘Maharashi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159 and P.T. Koshy Vs. Ellen Charitable Trust 2012 (3)CPC 615 SC’ and also the catena of judgments passed by the Hon’ble National Commission holding that the ‘education’ is not a commodity and there is no relation of ‘service provider’ and ‘consumer’.

 

7]       The objection raised by the ld.Counsel for the OPs that the matter under consideration is squarely covered by the judgment of’ Maharashi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159 and P.T. Koshy Vs. Ellen Charitable Trust 2012 (3)CPC 615 SC, has been overruled by the Hon’ble National Commission, in the latest pronouncement vide order dated 04.04.2019 in Revision Petition No.3052 of 2018 – Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial, wherein after giving due consideration to the judgments, referred above and discussing the issue at length, as involved in the present complaint, it has been concluded that the complainant is a ‘consumer’ and petitioner institution is a ‘service provider’ and thus uphold the order of the District Forum regarding refund of Rs.14,000/- and payment of Rs.5000/- as litigation cost.  Thus, the objection raised by the counsel for the Opposite Parties is hereby rejected.  However, the relevant extract of said judgment is reproduced as under:-

“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.”

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.”  

 

         It is not disputed that the complainant approached OPs for admission of his children i.e. son Arayan Kumar in 7^th class and daughter Pooja Kumari in 9^th class.  As regards the payment of registration charges of Rs.1000/- each vide receipts dated 12.12.2017 and thereafter, the deposit of fee for the months of April & May, 2018 to the tune of Rs.9000/- each in cash vide receipts dated 13.12.2017, is duly admitted and well proved on record.

 

8]       In view of the admitted facts, the dispute in the present complaint pertains to the refund of an amount of Rs.18,000/- paid  in cash i.e. Rs.9000/- each, by the complainant towards fee for his children for the months of April & May, 2018.

 

9]       Though the complainant in his complaint has alleged that the OP School is operational till middle school only and there is no 9^th class, so he decided to withdraw the admissions of his children, but we do not find force in this allegation of the complainant as the OPs have placed on record the copy of provisional affiliation letter dated 24.2.2017 issued to it by Central Board of Secondary Education (CBSE) for Secondary School Examination and Senior School Certificate Examination extended upto the year 31.3.2022 (Ann.OP-4).

 

10]      Simultaneously, it has been observed that the complainant after depositing the disputed amount of Rs.18,000/- immediately on the next date applied for the refund of the amount and the said demand is duly followed by legal notice dated 22.12.2017. In contradiction, the Opposite Parties claimed that there is no policy for refund of the amount once paid and it has duly been brought to the notice of the complainant, who had also signed the declaration to that effect and it has also been mentioned in the prospectus containing guidelines that the fee once paid is non-refundable.   The Opposite Parties also took plea that the children of the complainant, after taking admission, never turned up to attend the classes and the seat remained occupied for the whole year, as the complainant has not served any notice or application to the OPs for the withdrawal of his children from the school. 

 

12]      The evidence placed on record by the complainant i.e. letter dated 14.12.2017  (Ann.C-6) asking for the refund of the amount as well as copy of legal notice dated 22.12.2017 (Ann.C-7) claiming refund, negates the stand taken by the Opposite Parties.

 

13]      It is admitted case that the complainant has also issued one cheque of Rs.81,000/- in favour of the OPs with regard to admission of his two children, but the complainant thereafter issued instruction to his banker for stop payment of that cheque.  Due to stop payment instructions of the complainant, the OPs could not encash the said cheque of Rs.81,000/- which too shows that the complainant had decided to withdraw the admissions of his children from the OPs School and thus Opposite Parties were having knowledge about this fact.

 

14]      In the present scenario, we are of the considered opinion that the OPs cannot retain the amount paid by the complainant under the garb of provision incorporated in the prospectus pertaining to the non-refund of fee once paid.

 

15]      It has been held in catena of judgments of the Hon’ble Apex Court that the terms & conditions, which are one sided, unilateral and unconscionable, are not reasonable and unsustainable and deserves to be struck down. 

 

16]      Our view is also well supported by the judgment of the Hon’ble National Commission i.e. Nipun Nagar Vs. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC) wherein it has bene held that any clause saying that fee once paid shall not be refundable, are untenable and unfair and therefore not enforceable.  In the said judgment, the Hon’ble National Commission has also held that in cases where the fee for the two years has been deposited and the seat remained vacant due to withdrawal of the candidate, the institution is required to refund the fee, as per the public notice issued by the UGC, whereby all the institutions are directed to refund money of student for the period college/institution not attended. 

 

17]      By not refunding the fee to the complainant, the OPs have also acted in defiance of the order of the Hon’ble National Consumer Disputes Redressal Commission, UT, Chandigarh in case titled as “Sehgal School of Competition Vs. Dalbir Singh, III (2009) CPJ 33 (NC)”, wherein the Hon’ble National Commission has held as under:-

 

“5.  We have heard the learned counsel for the Petitioner. He submitted that the student had withdrawn voluntarily and, therefore, there was no deficiency of service. The Petitioner’s School has shown excellent results. Hence, it is wrong to observe that their coaching was not upto the mark. He also submitted that one of the conditions imposed by their School which accepting lump sum fees for two years is that ‘refundability/ transferability of seat/ fee is not possible under any circumstances’.

 

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 this Commission in Homeopathic Medical College & Hospital, Chandigarh Vs. Miss Gunita Virk, I(1996) CPJ 37 (NC), wherein it is held that Fora constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal.

 

7.   This judgment is 13 years old. Subsequent to this judgment 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 7th 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.

 

“It has come to the notice of the University Grants Commission (UGC) that institutions and Universities including institutions deemed to be Universities are admitting students to various programmes of studies long before the actual starting of academic session, collecting full fee from the admitted students, and retaining their schools/institutions leaving certificate in original. The institutions and Universities are also reportedly confiscating the fee paid if a student fails to join by such dates.

 

The Commission is of the view that the Institutions/ Universities, by way of retaining the certificate in original, force retention of admitted students, which limits the opportunities for the candidates from exercising other options of joining other institutions of their choice. However, it would not be permissible for institutions and Universities to retain the school/institution leaving certificate, mark sheets, caste certificate and other documents in original.

 

The Ministry of Human Resource Development and University Grants Commission have considered the issue and decided that the institutions and Universities, in the public interest, shall maintain a waiting list of students/candidates. In the event of a student/candidate withdrawing before the starting of the course, the wait-listed candidate should be given admission against the vacant seat. The entire fee collected from the student, after a deduction of the processing fee of not more than Rs.1,000 (one thousand only) shall be refunded and returned by the institution/University to the student/candidate withdrawing from the programme. Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable.

 

The Universities/institutions are requested to abide by the instructions issued by the UGC. The UGC shall on its own or on receipt of specific complaints from those affected, take all such steps as may be necessary to enforce these directions.

 

Institutions/Universities are also required to convey these instructions to the colleges affiliated to them.

 

This notice has been reiterated subsequently also.”

 

8.   Therefore, we do not see any material irregularity or jurisdictional error in the order passed by the State Commission. Accordingly, this Revision Petition is dismissed. There shall be no order as to cost.”

 

         In the light of the above, we are of the view that non-refund of fee in the garb of unilateral, unfair and one sided conditions, pertaining to refund, is altogether an act of unfair trade practice and the Opposite Parties are liable to make the refund of the same. 

18]      The Hon’ble Supreme Court of India in Islamic Academy of Education Vs. State of Karnataka (2003) 6 SCC 697, has inter alia observed as follows: -

“It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view an educational 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 bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees 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 nationalized bank. 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”.

 

19]      The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Fiit Jee Ltd. Vs. Dr.Minathi Rath, 2012(1) CPJ 194 while considering the revision petition on identical facts, as involved in the present complaint, has categorically held that Fiit Jee Ltd. could not charge full advance fee for Two years and held the complainant entitled for receipt of refund of fee taken in advance from him by FIIT JEE.  It is further held by the Hon’ble National Commission that such cases are consumer disputes within the meaning under the Consumer Protection Act.  The Hon’ble National Commission in Jai Preet Singh Kaushal Vs. FIIT JEE Ltd., decided on 14.11.2017 – 2018(I) CON LT 536 relying upon the judgment of Hon’ble Supreme Court in Islamic Academy of Education Vs. State of Karnataka, has also held the charging of fee full in advance for two years course as illegal.

 

20]      The plea has also been raised by the Opposite Parties that since the complainant and her ward had signed the declaration’s in the form after having gone through the conditions of non-refund of the fee in any case, so their claim for the same is not tenable. 

 

21]      Such like plea of the Opposite Parties has duly been discussed & dealt with in the latest order passed by our Hon’ble State Commission, UT, Chandigarh, in Appeal Nos.223, 292, 316 of 2018 – FIITJEE Ltd. Vs. Vikram Seth, Ashok Gupta & Sudha Katyal & Anr., respectively, decided by common order dated 5.4.2019.  The following observations has been made in this regard:-   

“15.   Not only above, in Brilliant Tutorials Pvt. Ltd. Vs. Ashwani Verma, 2010 (4) CPJ 396, the Hon’ble National Commission while placing reliance on the judgment of Hon’ble Apex Court in Islamic Academy of Education and Another Vs. State of Karnataka and others, (2003) 6 SCC 697, held that charging fees in advance beyond the current semester/year would certainly amount to unfair trade practice and the same cannot be countenanced. In Islamic Academy of Education and Another’s case (supra), the Hon’ble Apex Court had expressed unhappiness with educational institutes charging the entire fees upfront and had said that students should only be asked to pay fees for a semester/year to begin with. The argument of FIIT-JEE that the ruling of Islamic Academy was not applicable to it since it is not an educational institute but only a coaching institute was not negated by the Hon’ble National Commission and order of the State Commission was upheld, directing FIIT-JEE to refund the fees. We may add here that Hon’ble Supreme Court of India condemned the practice of the educational institutes of collecting fee in advance for the entire course i.e. for all the years and also debarred them to claim any interest on the fee deposited. Further the Hon’ble National Commission in FIIT JEE Ltd. Vs. Dr.Minathi Rath, 2012(1) CPJ 194 while considering the revision petition on identical facts, as involved in the present complaint, has categorically held that FIIT JEE Ltd. could not charge full advance fee for Two years and held the complainant entitled for receipt of refund of fee taken in advance from him by FIIT JEE.

16.     In our opinion, the plea of the appellants by way of affidavit that the vacancy created by the complainant(s) was never filled up and remained vacant, cannot be read against the respondent(s)/complainant(s). The appellant cannot be allowed to be on an advantageous position, keeping in mind the interest of poor consumer. It (appellant – Institute) cannot gulp whole of the fee paid, being the hard earned money. When a student or his/her parents signs the admission form, they have no bargaining power to negotiate, or refuse to sign any particular clause in the admission form. Hence, such clauses should not be held against the student. The appellant is continuing with an unfair trade practice of collecting huge amount to get itself enriched, which is totally against public interest at large, specially the parents, who send their children by putting a big cut on their stomach and giving each and every penny of their earnings to the coaching institute like the appellant, for imparting coaching, which does not guarantee or assure success in getting admission in IIT/NIT. Sometimes, after paying such hefty coaching fee, it becomes difficult for them to meet out their daily needs. Every parent, whether rich or poor or from any mediocre family, would desire that their children should get better education for which, sometimes, they have to obtain loan for paying fees etc. from Banks or Private Financiers. The appellant – Institute is not only a structure made up of bricks and cement where the students go and get coaching after paying hefty fees. The Institutes imparting coaching are also supposed to bear in mind that a child/student, who is coming to them, is also a future of our country, who at some stage is to contribute towards nation building or serve the country by entering into some field of his/her choice at some stage. Every student may not be so lucky to crack the entrances, after getting coaching etc. but it is a fact which cannot be denied that every student puts his/her best effort to clear these entrance exams. The coaching institutions should not act like money collection machines, without keeping in mind the feelings and future prospects of the student. The student may not be comfortable with the teaching methods/skills and attitude of some of the teachers at the coaching centre. In case, the student leaves in between or midsession or after attending for few days or months, in our opinion, he/she should not be denied refund of the fee for the remaining period, which he/she did not attend. If the student is given refund, he/she can pay the said amount to some other educational institute, where he/she wants to pursue coaching or education. The student is not supposed to pay another hefty amount to other coaching institute after leaving the appellant - institute. Parents may not be in a position to afford another heavy fee of another coaching institute and the student will be deprived of precious opportunity and formative years of career building. In case, the fee is refunded, the student can further move on with that amount to explore much better avenues of education, as per his/her desire. We may also add here that Consumer Protection Act, 1986, which is Consumer Oriental Legislation, is meant to protect the interest of consumers who show their courage to come forward and put forth their grievance against the unfair trade practices adopted by such like educational institutions. Future of an aspiring student, who will certainly contribute towards the development of our nation at some stage of his/her life, is of paramount importance and cannot be put at stake like this. Educational Institutions like the appellant must bear in mind the feelings and sentiments of an aspiring student who took admission with such like institutions with an aim and hope to achieve some better prospects and positions in their future. In our opinion, educational institutes should be prudent, desist from charging upfront fees for the entire course, and if they do, should not refuse a refund. A student or a trainee may leave midstream if he finds the service deficient, substandard and non-yielding, and to tell him that fees once paid are not refundable was an unfair trade practice, as no service provider can take or charge the consideration of the service which it has either not given or has not been availed. The existing practice in many institutions of collecting advance payment and not refunding this should be done away with. Such blatant act of the appellant(s) is a clear example of unfair trade practice, which has to be stopped by exercising a moral responsibility especially when seen in the light of the above facts and circumstances of this case.”

 

22]      In the light of the above, it has been observed that the Opposite Parties were aware of the law laid down by the Hon’ble Supreme Court as well Hon’ble National Commission, however, it has blatantly violated the dictum of the Hon’ble Apex Court. The Opposite Party undoubtly is in dominating position and as such maneuvered to get the signature of parents of students on pre-settled printed enrollment undertaking.

 

23]      The objection of the Opposite Parties qua the seat remained vacant & unutilized by the children of the complainant, causing loss to the OPs, is also untenable as the Opposite Parties have not placed on record any waiting list of the candidates or the number of students etc., so the question of seats remained vacant throughout the sessions is not made out.

 

24]      In view of the settled law, as discussed and as well law laid down in “Sehgal School of Competition Vs. Dalbir Singh, III (2009) CPJ 33 (NC)” And Nipun Nagar Vs. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC), the entire fee collected from the complainant, in the present complaint, after a deduction of the processing fee of not more than Rs.1,000 (one thousand only) each shall be refunded by the OPs to the complainant, who withdrew admission of his two children.

 

25]      Keeping into consideration the facts & circumstances of the case and the settled law, as discussed in the preceding paragraphs, the complaint is allowed. The Opposite Parties are directed to refund the entire fee of Rs.18,000/- to the complainant, after deducting Rs.1000/- each i.e. registration charges paid separately. The Opposite Parties are also directed to pay litigation cost of Rs.5,000/- and compensation of Rs.10,000/- to the complainant for the mental agony & harassment caused to him due to their deficient act coupled with unfair trade practice.

         This order shall be complied with by the Opposite Parties within a period of 30 days from the date of receipt of copy of this order, failing which the Opposite Party shall be liable to pay additional compensatory cost of Rs.10,000/- apart from the above relief.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

16^th April, 2019                      

                                                                                                Sd/-  

                                                                   (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

 (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER