BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 30th June 2009
COMPLAINT NO. 8/2009
(Admitted on 27.1.2009)
PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President
2. Sri. K. Ramachandra, Member
BETWEEN:
Mr.B.Ravi Kumar,
So T.Shankar Bhat,
Aged 46 years,
IH 65, Gangothri,
2nd Main, 7th Cross,
Landlinks Township,
Mangalore 575 008. …….. COMPLAINANT
(Advocate: Sri.U.N.Kandige)
VERSUS
The Center Head,Manager,
Magnet and NIIT ,North,
2nd Floor, Sanu Palace,
M.G.Road,
Mangalore 575 003. ……. OPPOSITE PARTY
(Advocate: Sri.K.P.A.Shukoor)
ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
It is submitted that, the Opposite Party is carrying on Basic and advanced Computer course in Mangalore. As per the call given by the Opposite Party, the Complainant attended a talk on the subject of computer course on 6.1.2007 along with his wife. But the Complainant instead of taking for them they have opined that it may be helpful for his children and he was constrained to remit a sum of Rs.5,000/- by cash and Rs.18,000/- by cheque towards the course. Later on the Complainant’s children are reluctant to join the said computer course since they are overburdened with school work and basic aspects of computer being taught in their school itself, the Complainant informed the Opposite Party that his children’s are not interested to undergo the course offered by the Opposite Party and requested to refund the amount. The Complainant has also requested the Opposite Party in writing as per letter dated 15.9.2007. But the Opposite Party has refused to refund the amount and gave an endorsement stating that as per the agreement the amount is not refundable. It is submitted that, the Complainant not availed any benefit from the opposite party by attending any course and it is contended that the service rendered by the Opposite Party amounts to deficiency in service and hence complainant the filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay Rs.23,000/- being the amount paid along with interest at 10% p.a. from 6.1.2007 to 5.1.2009 and also pay Rs.10,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version contended that the complaint is false, frivolous, vexatious and not maintainable under law or on facts of the case. It is submitted that, NIIT is represented by Mr.Abid and there is no institution or individual or firm called Magnet and NIIT (North) and submitted that the complaint is bad for non-joinder of necessary party and the complaint has not properly arrayed.
It is submitted that, the Complainant has paid a sum of Rs.5,000/- by cash and a sum of Rs.18,000/- by way of cheque to the Magnet on 6.1.2007 towards computer courses and other services for enrolling the Complainant and his family for training brown membership and the Opposite Party has entered into an agreement with Magnet in connection with the aforesaid Brown membership i.e. computer course and other package. It is submitted Opposite Party has spent lot of money towards infrastructures for discharging his obligations and enforcing the terms of the agreement since the Opposite Party had undertaken with the Magnet to carry out computer courses to their candidates. It is submitted that the money collected by the Magnet is not refundable and the Complainant has agreed for the same as per the clause No.21, the Complainant is required to avail and complete the computer course and other services before 5.7.2008 and further submitted that this Opposite Party never misled the Complainant to join for the said course. The Complainant has acted upon the agreement executed with the Magnet and this Opposite Party is ready to discharge all the obligations and carryout and impart the computer courses to the Complainant which he required to provide as per the agreement with the Magnet and contended that there is no deficiency in service by the Opposite Party and prayed for dismissal of the Complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complaint is bad for non-joinder of necessary party?
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri B.Ravi Kumar (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C9 were marked for the Complainant as listed in the annexure. One Sri Tajuddin Abid, Manager, NIIT (RW1) filed counter affidavit and answered the interrogatories served on him. Ex R1 to R4 were marked for the Opposite Party as listed in the annexure. The Complainant has submitted notes of arguments and citations and Opposite Party submitted citations.
We have considered the oral/written arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.
Point No.(ii) to (iv): As per the final order.
REASONS
5. Points No. (i) to (iv):
The fact which are not in dispute is that the Opposite Party is running and carrying out computer courses to the General Public and the Complainant has paid a sum of Rs.5,000/- by way of cash and a sum of Rs.18,000/- by way of cheque total amounting to Rs.23,000/- paid to the Magnet on 6.1.2007 towards the computer courses and other services. It is also admitted that, after joining the computer courses the Complainant not attended any of the classes conducted by the Opposite Party.
Now the point in dispute is that the Complainant contested and stated that on 6.1.2007 he attended the topic on the subject on computer courses along with his wife. The Opposite Party offered that it is a computer courses consisting of basic and advanced course to the Complainant and his wife. The Complainant under the impression that it may useful for their children and they opted the course and paid the above mentioned amount and thereafter their children reluctant to join a said course since they are over burden with the school work and basic aspect of computer are being taught in their school itself. The above said matter informed to the Opposite Party orally as well as in writing a letter dated 15.9.2007 and contended that they have not attended any of the classes and sought for the refund of amount but the Opposite Party refused to refund the amount stating that the fee once paid not refundable.
On the contrary, the Opposite Party firstly taken a contention that the complaint is bad for non-joinder of necessary parties and submitted that the entire fee is not paid to the Complainant but it has been paid to the MAGNET and the Magnet is the necessary party to the proceedings and further contested that the Complainant has agreed for the computer course conducted by the Opposite Party and as per clause No.21 of the terms and conditions of the agreement dated 6.1.2007 and other documents the Complainant is required to avail and complete the computer courses and other services before 5.7.2008. No point of time they had insisted the Complainant to join the course or misled the Complainant and there is no deficiency whatever on behalf of the Opposite Party and they are ready to discharge all the obligations and carry out and impart the computer courses to the Complainant which he required to provide.
In the present case, the Ex.C1 to C9 produced by the complainant. The Ex.C1 is the Application Acknowledgement wherein it shows that Rs.23,000/- paid by the Complainant to the Opposite Party the receipt of the above said amount is not disputed by the Opposite Party before the Fora. However the receipt was issued to the Complainant under the name of MAGNET and signed by authorized signatory of the MAGNET. The affidavit evidence filed by the Opposite Party as well as the other documents i.e Ex.C2 to C6 mentioned in detail in the annexure makes is clear reveals that the MAGNET and the NIIT has inter-see arrangement for that the Complainant cannot be blamed and all the correspondence issued by the NIIT represents the MAGNET also. And the main computer course is conducted by the NIIT the payment/enrolment received through MAGNET. Since, the payment as well as the course offered to the Complainant was admitted by the NIIT the question of non-joinder of MAGNET in the present case does not arise.
In the present case, it is very clear that no service was provided but the consideration has been received by the Opposite Party. The non attendance of the computer course itself proved that the Complainant and his children are not interested to join the course and they are reluctant to attending the class itself shows that the Complainant and their children’s are not interested. It is makes it clear that, the Complainant approached the Opposite Party orally at the initial stage and thereafter the Ex.C5 was issued by the Complainant to the Opposite Party. Now let us see the Application Form and its terms and conditions produced by the Opposite Party. Wherein the clause No.21 reproduced here below for better appreciation: “We understand that all money paid to the institute is non- refundable.” The Opposite Party raised a contention on the ground that as per the terms and condition of the course, the fee once paid was not refundable and secondly they ready to offer the course and the complainant’s can take up the course. And further contended that the Complainant voluntarily withdrawn from the courses the institute is not responsible. At the outset we are constrained to observe that, it is not an agreement merely because the Complainant gave wrong declaration should not be reason to swallow the entire amount of Rs.23,000/-. In our opinion this is an unfair trade practice considering the Opposite Party is an education institute. In fact the Opposite Party institution is not a college or universities. It is a training institution where there is no rule to stop them from admitting more students and there is no reason for them not to admit more students in such a situation the Opposite Party ought to have produced any record to show that the seat is vacant and unfilled. In the instant case, the Opposite Party is not brought on record that the seat was vacant through the year and that they were put to loss and further we have noticed that it is not a regular college with rules and regulations regarding any association or allocation of limited number of seats. It is clear that merely because the Complainant gave a declaration they cannot take advantage the same.
Further we have placed reliance upon a land mark decision The land mark decision i.e. FIIT JEE Ltd. Vs Minathi Rath reported in 2006 IV CPJ 255 issued by the Delhi State Consumer Dispute Redressal Commission, New Delhi to all the presidents of the District Foras, wherein it has clearly observed that the very fact of charging the lump sum fee for the entire duration of the course in advance and that too for the period for which they are yet to provide the service of division/course is highly unethical, unscrupulous and unfair trade practice and further observed that this is an indirect way earn large amount of money and to earn undue profit by exploiting the poor students. And further the lordship observed that no service provider can charge a fee/consideration for a period for which the service has yet to be provided, by charging fee in lump sum for the full course in advance it exploits the student community as well as others and also bind the students not to leave the institute whatever quality of education or training there may be. The above observation can be looked into with advantage and the observation of Delhi State Commission or self explanatory.
In the present case, the Complainant though paid the course fee at once i.e. Rs.23,000/- later his children’s are reluctant to attend the class due to school work one cannot force the children to attend the course. In the instant case, the Complainant or their children not attended the course even for a day. No service provider like training institute or coaching centers or educational centers can be allowed to forfeit the fees or consideration received in advance, in a case the student is not availed the service. In the present case, the Complainant not availed the service thus the terms that the fees once paid is not refundable is unconscionable as well as voidable and therefore not activable. In the present case, the service which it has either not given or not has been availed by the Complainant the Opposite Party should have refunded the amount to the Complainant. Non refund of the amount till this date amounts to deficiency in service.
In the present case we have placed reliance upon a authority passed by the Delhi State Consumer Disputes Redressal Commission, New Delhi in a case FIIT JEE LIMITED versus MINATHI RATH (DR.), IV (2006) CPJ 255:
“(i) Consumer Protection Act, 19986 – Sections 2(1)(g), 2(1)(r) – Educational charged fee/consideration in lump sum for period for which service was yet to be provided – same highly unethical, unscrupulous and amounts to unfair trade practice – It is indirect way for OP to earn large amount of money and to earn undue profit by exploiting poor students – Direction issued to all training imparting institutes, educational centres, etc., not to charge fee for whole duration of course in advance by way of lump sum payment.
(Pg. 256, 257 (Para 4,12)
(ii) Words and Phrases – Unfair Trade Practice – Includes every activity where false representation made regarding services of particular standard, grade or quality and gives warranty or guarantee as to its performance, efficacy or adequacy.
(Pg. 256 (Para 7)
(iii) Consumer Protection Act, 1986 – Sections 2(1) (g) , 2(1) (r) - Educational Services – Coaching Centres – Lack of personalised attention – Quality of training being imparted unsatisfactory – Course being completed in hurried manner – Course left in between – Claim for refund of balance fees – Contention of OP, fees once paid not refundable, not acceptable – No service provider like Opposite Party, allowed to forfeit fees or consideration received in advance, in case student not availed service – Term that “fees once paid not refundable”, unconscionable as well as voidable and hence not actionable – Forum directed refund of balance fee and Rs.5,000 compensation – Order upheld – Further cost of Rs.25,000/- imposed in appeal.”
[Pg.256, 257 (Paras 8,9,11)]
It is clear that merely because the Complainant gave wrong declaration should not be the reason to non-refund of the entire amount, the Opposite Party ought to have returned the amount, on failure to return the amount in our opinion it is an unfair trade practice.
Taking over all views of the case, we hold that the Opposite Party is guilty of deficiency and hence we hereby direct the Opposite Party to pay Rs.23,000/- along with interest at 10% per annum from the date of receipt of the amount i.e. 6.1.2007 till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. However, the interest as well as compensation both cannot be allowed the interest is always inclusive of compensation. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party is hereby directed to pay a sum of Rs.23,000/- along with interest at 10% per annum from the date of receipt of the amount i.e. 6.1.2007 till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30th day of June 2009.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SRI. K.RAMACHANDRA)
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Sri B.Ravi Kumar.
Documents marked on behalf of the Complainant:
Ex C1 – 6.1.2007: Application Acknowledgement No.377
given by t]he Opposite Party to the Complainant
for Rs.23,000/-
Ex C2 – 6.1.2007: Receipt No.164 issued by the Opposite
Party to the Complainant for Rs.23,000/-.
Ex C3 – Letter of Opposite Party to Complainant.
Ex C4 – Welcome letter of Opposite Party to Complainant.
Ex C5 – 15.9.2007: Copy of Representation given by the
Complainant to the Opposite Party with
acknowledgment endorsed on 8.10.2007.
Ex C6 –24.10.2007: Reminder Letter sent by the Opposite
Party to the Complainant.
Ex C7 – 3.11.2007: Copy of Lawyer’s notice got issued by the
Complainant to the Opposite Party.
Ex C8 – 7.11.2007: Postal Acknowledgment received from
the Opposite Party.
Ex C9: 23.11.2007: Lawyer’s reply received on behalf of
Opposite Party.
Witnesses examined on behalf of the Opposite Party:
RW1 – Sri Tajuddin Abid, Manager, NIIT.
Documents marked on behalf of the Opposite Party:
Ex R1: True copy of the course completion certificates 32 in numbers.
Ex R2: Original Application Form and Terms and Conditions.
Ex R3: 6.1.2007: Original Copy of Receipt.
Ex R4: 6.1.2007: Original copy of the Declaration Form.
Dated:30.6.2009 PRESIDENT
