DIST. CONSUMER  DISPUTES  REDRESSAL  FORUM

NORTH 24 Pgs., BARASAT.

C. C. NO- 649/2016

Date of Filing:                                       Date of Admission:-                             Date of Disposal:

18.10.2016                                                  25.11.2016                                    28.02.2019

Complainant :-                        Ms. Jayati Misra,

S/o Goutam Misra,

C/o Anadalal Bangal,

Jangra, Ghosh Para,

Bagiati, Kolkata- 700059,

West Bengal.

  =Vs.=

OPs:-                                     1.       The Center Head,

NIIT Salt Lake Center,

C-209, 1, City Center, Salt Lake,

DC Block, Sector-I,

Kolkata,West Bengal-700 064.

2.       Head of the Department,

NIIT Eastern Regional Office,

6, Pretoria Street, Elgin Road,

Kolkata- 700071, West Bengal.

P R E S E N T                                              

:-       Smt. Silpi Majumder  ……………………Member.

          :-       Smt. Monisha Shaw ………..…………….Member.

Final Order

This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986, alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step either to change the study center of the Complainant to other branch of NIIT or to return the amount of Rs.81,798/- as paid by her as course fees to her till filing of this complaint.

The brief fact of the case of the Complainant is that she passed B.A. from North Bengal University obtaining 50% marks in the said examination. The Complainant came to know that NIIT, Salt Lake Center is providing training in the course of Oracle Database 11g: SQL Fundamentals and the duration of the said course is for 50 hours. The Complainant at the OP-1 and met with Mr. Sumit Ghosh,Center Head of NIIT, Salt Lake Center and Smt. Anindita Ghosh, Counselor of NIIT, Salt Lake Center. After long discussion with them regarding schedule of classes the Complainant filled up the necessary forms and documents supplied by the OPs and got admission in the course of PGB. FA on 17.06.2015. She was provided with the student ID number and Registration number.

Cont………….2

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C. C. NO- 649/2016

The Complainant paid a sum of Rs.500/- on 19.06.2015, Rs.23,050/- on 22.06.2015, Rs.26,784,/- on 16.07.2015, Rs.15,458/- on 06.08.2015, Rs.15,436/- on 06.08.2015 and Rs.570/- on 11.08.2015 and in this manner the Complainant paid a sum of Rs.81,798/- in total as course fee for the said course. The father of the Complainant being a retired primary school teacher had provided the said amount for the said course fee, but the NIIT did not provided any class room training except SLT i.e. online class. The Complainant requested the OPs on several times for allotment of class room training but the OPs have failed and neglected to provide the Complainant a single class. On 25.08.2015 the Complainant requested the OPs through e-mail to stop online class and also requested to change the study center from salt lake to other branch of NIIT. Surprisingly the Complainant noticed from the e-mail of the said center that to pursue the said course minimum 50% marks is required at graduation level and the age limit is 26 years. But at the time of admission neither Sri. Ghosh, Center Head nor Smt. Ghosh, Counselor intimated the said facts to the Complainant. Therefore they being aware of the said facts and guideline of the institution intentionally suppressed the material fact as well as misguided the Complainant for getting admission in the said course and obtained a sum of Rs.81,798/-.Inspite of several request neither the Center Head nor the Counselor did take any step for changing the study center from salt lake to any other branch of NIIT, even they did not take any step to return the said amount to the Complainant which was received as course fee. The father of the Complainant intimated such episode to the OPs in writing on 31.08.2015 and an Advocate’s letter also was issued upon the OPs on 26.11.2015, but no action have yet been taken by the said OPs till filing of this complaint. Due to such inaction on behalf of the OPs the Complainant has been suffering huge monetary loss, harassment and mental agony for a prolonged period for which the OPs are liable to compensate the same. Again on 23.09.2016 the Complainant wrote a notice to the OPs claiming either to change the study center or to refund the amount as paid by her along with interest, but to no effect. As the OPs did not take any step for redressal of his grievance, hence finding no other alternative the Complainant has approached before this ld. Forum by filing this complaint praying for direction upon the OPs either to change the study center from salt lake to any other branch of NIIT or to refund the entire as paid by him to the tune of Rs.81,798/- along with interest @7% p.a., to pay compensation to the tune of Rs.25,000/- and litigation cost to her.

The petition of complaint has been contested by the OP-2 by filing written version contending that the student declaration form dated 18.06.2015 duly signed and submitted by the Complainant itself shows that he disclosed and declared to the OP-1 that he had scored more than or equal 50% marks and his age was less than equal to 26 years. But the Complainant did not annex the said declaration form before this  Ld. Forum along with the petition of complaint with a view to make out a false case against the OPs.

Cont………….3

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There is no privity of contract between the Complainant and the OP-2, the OP-1 is a licensee of the OP-2 under an agreement called NIIT License Agreement (urban) (Fourth Term) dated 31.07.2015. The OP-2 had granted certain licenses to the OP-1 to use the Trade Mark of the OP-2 as also to use the technical know-how of the OP-2 to offer certain courses to the public. As per the clause of 4.6 of the said agreement the OP-1 is entitled to collect course fee from the students along with admission fee, tuition fee, career development fee etc. Thus the OP-1 collected the course fee from the Complainant and the OP-2 cannot be made liable or accountable in any manner due to any act, omission, commission or negligence on the part of the OP-1. The Complainant did not lodge his grievance to the OP-2 through portal, which could be redressed in a time bound manner. She never applied for transfer of his center earlier, hence the allegation as made out in this complaint is mere an afterthought. At the time of submitting the form he acknowledged the need for online delivery of education to her. Through the said form the Complainant committed that she will abide by the academic policy. The academic policy further deals with the refund of fees in the clause 13.7 and it is stated in the said clause that the refund of fees is permissible only if the request for refund has been made two days prior to the batch commencement date. In the instant case not only the digital course was provided to her, ensuing batch was allocated to the Complainant on 14.08.2015 and she attended the classes and appeared in the periodic tests before asking refund. Therefore the Complainant is not entitled to any refund of fees. The OP-1 provided teaching the questioned course through SLT which is established as a better means of education delivery. Regarding non-providing of class room training the OP-2 has submitted that such allegation is not relevant as the Complainant did not raise any such allegation prior to filing this complaint before the OP-2. As per the commitment the Complainant was bound to attend the classes, but she stopped attending the same of his own choice which denotes violation of the Rules and Regulations of the NIIT. The Complainant never applied for changing the study center and moreover center transfer is subject to certain terms and conditions in academic policy based upon which the same is granted. No refund of fees is possible as she is not entitled to the same. The Complainant cannot be permitted to take advantage of her own wrongs. According to the OP-2 as there was no deficiency in service on her part, hence prayer is made by the OP-2 for dismissal of the complaint with exemplary cost.

After admission of this complaint notices were issued upon the OPs, on 16.01.2017 Ld. Advocate appeared on behalf of the OP-1 & 2 by filing vokalatnama, ultimately written version was filed only on behalf of the OP-2, the OP-1 chose not to contest the complaint by filing written version, hence, order was passed by the Ld. Forum that the complaint will run exparte against the OP-1. On the date of hearing argument none was present on behalf of the OP-1, which denotes that inspite of exparte the OP-1 did not bother to contest the complaint orally or by filing BNA.

Cont………….4

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Accordingly the Complainant had adduced evidence on affidavit. No evidence was adduced by the OP-2 inspite of getting several opportunities.  The Complainant and the OP-2 have submitted some documents and papers along with their petition of complaint and written version respectively.

We have carefully perused the record; documents annexed by the contesting parties and heard argument at length advanced by the ld. Counsel for the parties. The OP-2 has filed WNA with a copy to the other side. It is seen by us that admittedly the Complainant got admission at the OP-1 in the course of PGB.FA on 19.06.2015. He was provide with the student ID number and Registration number. The Complainant paid a sum of Rs.81,798/- in total as course fee for the said course. The allegation of the Complainant is that the OP-1 did not provide any class room training except SLT i.e. online class. The Complainant requested the OPs on several times for allotment of class room training but the OPs have failed and neglected to provide the Complainant a single class. On 25.08.2015 the Complainant requested the OPs through e-mail to stop online class and also requested to change the study center from salt lake to other branch of NIIT. Inspite of several requests neither the Center Head nor the Counselor of the OPs did take any step for changing the study center from salt lake to any other branch of NIIT, even they did not take any step to return the said amount to the Complainant which was received as course fee. Legal notice also was issued upon the OPs on 26.11.2015, but no action have yet been taken by the said OPs till filing of this complaint. Due to such inaction on behalf of the OPs the Complainant has been suffering huge monetary loss, harassment and mental agony for a prolonged period for which the OPs are liable to compensate the same. As the OPs did not take any step for redressal of his grievance, hence this complaint is initiated praying for certain reliefs as mentioned

Therefore the dispute by and between the Complainant and the OPs revolves within a very short compass i.e. as to whether the Complainant is entitled to get refund of the amount as paid by her towards course fee to the OP-1 during admission or not and the OPs are under the obligation to change the study center from salt lake to another branch of NIIT.

In the written version the OP-2 has claimed that there is no privity of contract by and between the OP-2 and the Complainant, but in this respect we are to say that after receipt of the entire fees from the students, interested to get admission by the OP-1, the same or proportionate amount is to be remitted to the OP-2, otherwise the OP-2 shall not give any liberty to the OP-1 to use the Trade Mark of the OP-2. The OP-1 used to carry on business with the money as the students/intending students are used to pay. Out of the said amount the OP-1 shall have to pay to the OP-2 for using the Trade Mark of the OP-2 and in this respect there is an agreement by and between the OP-1 and 2.

Cont………….5

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In the case in hand admittedly the Complainant paid some amount towards course fee as per the instruction and direction of the OP-1 and it is also an admitted fact that out of the said amount some money was paid by the OP-1 to the OP-2. Therefore though it is apparently clear that the Complainant is not a direct consumer of the OP-2, but the Complainant can be termed as beneficiary of the OP-2. Under the Consumer Protection Act, 1986 the Beneficiary is also a “Consumer” under the purview of the definition of the ‘Consumer’. Therefore if there is any deficiency in service on behalf of the OP-1, the same will also cast upon the shoulder of the OP-2 proportionately.

In the written version the OP-2 has stated that in this case not only the digital course was provided to her, ensuing batch was allocated to the Complainant on 14.08.2015 and she attended the classes and appeared in the periodic tests before asking refund. Therefore the Complainant is not entitled to any refund of fees. But in support of such averment no cogent evidence is adduced by the OP-2 that class room teaching/training was provided to the Complainant. The record reveals that on 25.08.2015 the Complainant requested the OPs through online for changing the study center from Salt Lake to any other branch of NIIT. We do not find any document that the said request of the Complainant was processed for consideration by the OPs. Several written correspondences also made either to change the center or to refund the amount if class room teaching is not provided, no action was taken in this regard. From the annexure 53C (Student Declaration Form) as annexed by the OP-2 we have noticed in the clause no-1 that ‘My admission to the abovementioned program is basis the fact that I have cleared class XIIth with 50% score. In any case any discrepancy is found, my admission cancelled and I am not eligible for any refund.’ From the annexure 53E as annexed by the OP-2 it is evident in the clause no-14 that ‘If I do not meet the PP/IS/PPA criteria as specified in point no-1 above I can avail of the General Placement Assistance (GPA) from NIIT. Under this service, I will be allowed to register on the placement portal of NIIT and apply for the jobs posted there. The responsibility of fixing up the interviews and following up with the organizations for result will be mine.’ In the annexure 53G it is mentioned that ‘I understand and agree that no refund of the course is possible after delivery of my Personalized Cloud Courseware that will be made available to me on the student portal after attending the first session of the course.’

Therefore in view of the annexure 53G of student declaration form the Complainant is entitled to get refund of the amount as the OP-1 could not arrange any class room teaching for the Complainant.

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Though the Complainant has made alternative prayer for direction to the OPs to change the study center from salt lake to any branch of the NIIT, but in this respect we are to say that as the relationship by and between the Complainant and the OPs became harsh and bitter, hence direction for refund of the amount to the OPs will be far better.

Regarding non-appearance of the OP-1 and non-filing of the written version by the said OP we are to mention the judgment passed by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited vs Aman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’

The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of appearance by the OP-1, the OP-1 did not file written version and evidence in accordance with law, which amounts that the OP-1 did not contest the complaint. Therefore in view of the said judgment the allegations as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming in accordance with law against such allegations.

From the record it is evident that inspite of several requests made by the Complainant either to change the study center or to refund of the amount, the OPs did not pay any heed to such request, such action of the OPs is clearly revealed their deficiency in service for which the Complainant is entitled to get compensation. Admittedly as the grievance of the Complainant have not been redressed by the OPs before coming to the Court of Law, hence by filing this complaint the Complainant has to incur some expenses, for this reason the OPs are under the obligation to pay litigation cost to the Complainant.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-649/2016 is hereby allowed on contest with cost against the OP-2 and exparte against the OP-1. The OP-1 and 2 shall refund the amount of Rs.81,798/- either jointly or severally to the Complainant along with interest @6% p.a. from the date of making payment of the said amount till making payment of the entire realization within 45 days from the date of passing this judgment, in default the amount of Rs.81,798/- shall carry penal interest @8% p.a. for the abovementioned period instead of 6%.

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The OPs are further directed to pay either jointly or severally compensation to the tune of Rs.5000/- due to unnecessary harassment, mental agony, pain and financial loss and litigation cost of Rs.2,000/- to the Complainant within a period of 45 days from the date of passing this judgment, in default the Complainant will be at liberty to put the entire decree and order in execution as per provision of Law.

Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.

Member                                                                                                Member                                                                                                       

Dictated & Corrected by