BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 29th FEBRUARY 2016
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO.196/2013
(Admitted on 20.07.2013)
Dr. Sheethal D.
S/o Babasaheb D.
Aged about 36 years,
R/at Inland Salute,
Flat No. 202, Akasha Bhavana road,
4th mail, Konchady, Kavoor,
Mangalore-15. …….. COMPLAINANT
(Advocate for Complainant: Sri.Sudhakar Rai.)
VERSUS
Mrs. Swaroop Devaiah,
Proprietor/Principal of Priyadarshini,
Montessori House of children,
Blue Berry Hills, yeyyadi,
Mangalore.-8. ………. OPPOSITE PARTY
(Advocate for Opposite Parties: Sri Daryl A.L.Andrade.)
***********
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that he had approached the opposite party in order to admit his son for Nursery school and after discussion the complainant son Mr. Shlok admitted to Nursery school for the academic year 2013-14. In this regard the opposite party had asked complainant to book the seat in advance by paying a sum of Rs. 31,000/- in terms of fees. The complainant paid Rs. 31,000/-.
It is stated that, the opposite party agreed to provide the batch was in between 8.30 a.m. to 12.30 p.m. But in the month of November-2012 the Opposite Party had told the complainant that there is no seat available for the batch between 8.30 a.m. to 12.30 p.m. Since the complainant being doctor by profession and the said batch was not suitable he has requested Opposite Party to refund the amount. But the Opposite Party totally denied to refund the amount and thereafter the complainant issued a legal notice and stated that the Opposite Party promised to provide morning batch and subsequently denied the same and later turned hostile and denied to refund of tuition fees paid to them which amounts to unfair trade practice as well as deficiency in service. Hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this FORA to the Opposite Party to pay a sum of Rs 31,000/- which was paid by complainant to the Opposite Party as tuition fee along with 18% interest from November 2012 till realization as compensation and also pay Rs15,000/- as cost of the litigation expenses.
II. Version notice served to the Opposite Party by R.P.A.D. Opposite Party appeared through their counsel denied the entire allegation alleged in the complaint and stated that the son of the complainant had completed play school in the year 2012-13 and it is denied that it was agreed to admit the student to the morning batch. It is stated the complainant had not opted the morning batch as there was no vacancy. The child was admitted to the second afternoon batch as the afternoon batch did not suit after he secured a job. It is stated that the procedure and rules for admission is that once fee are paid for the years it is nonrefundable. It is further stated that in view of the terms and conditions agreed upon by the parties, the relief claimed by the Complainant cannot be granted and there is no deficiency of service and prayed for dismissal of the complaint.
III. In support of the complaint, Dr. Sheethal D.(CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served by the Opposite Party. Ex C1 to C4 were marked on behalf of the Complainant. One Mrs Swaroop Devaiah (RW1), proprietor of Priyadarshini Montessori house of children Blue Berry Hills Yeyyadi, Mangalore, filed counter affidavit and answered the interrogatories served on him. Ex R1 to R6 are marked on behalf of the Opposite Party.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
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?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
Reasons
IV. Point No.(i) to (iii):
The facts which are admitted is that the Opposite Party is an institution and complainant son Mr Shlok admitted to nursery school for the academic year 2013-14 paid Rs. 31,000/-. It is also admitted that Mr. Shlok had completed play school at opposite party institution in the year 2012-13.
Now the points for consideration is that, is there any deficiency in service or unfair trade practice on the part of the Opposite party institution? The opposite party is the institution cannot indulge in unfair trade practice by creating their own rules and regulations which are against to general law. Whatever the rules and regulations are made by the opposite party institution are self-served for smooth running of the institution and not otherwise. In the instant case, the opposite party institution taken Rs. 31,000/- in advance without parting any service. It is to be noted that, some instituions committing the students by taking in advance money and blocking the seats itself amounts to unfair trade practice. Every parents and the students have got right to education in any of the institution as per their choice. The education institution has no right to block the seat by taking big amount of fee from the parents in advance. As we know some parents who are professionals or employees in different sectors by one or the other reasons they have to change the place of working in order to aching out their lively-hood. The institutions being charitable trust cannot make a trade by blocking the seat by receiving advance money from the parents/students. In case of genuine reason, the opposite party instituions should be liberal and consider the difficulties of the parents. In the instant case, the student is a child cannot live without the parents. Further the reason given by the complainant is that, the complainant is a doctor and shifted his work place. Mr. Shlok is a minor dependent cannot live without the parents. Under such circumstance, the opposite party intuition bound to refund fees.
We further observed that, the opposite party in their version claimed that the rules and procedures laid down universally by all institution including opposite party school. But, we are not satisfied in the instant case because the rules and procedures adopted by the charitable institutions are self-served for smooth running of the admiration in their institutions. On the other hand, right to education is the choice of every citizen and therefore opposite party institution being a charitable institution cannot indulge in trade by receiving the advance money for the whole year without parting any service.
In the instant case the complainant genuinely secured a job and the child is a minor cannot part with him. It is obvious that complainant claiming refund of amount appears to be credible. Further we observed that complainant minor’s son not availed any service from Opposite Party and also no evidence to show that the seat allotted to the complainant son remained vacant and put to loss. In the absence of any credible/convincing evidence we are unable to hold that the Opposite Party is at right. On the other hand the complainant established that he had secured a job and the complainant son is a minor and the amount paid by him was received by the Opposite Party in advance and complainant not received any services from the Opposite Party institute. Therefore the Opposite Parties is liable to refund the amount without any interest.
In view of the above discussions, we hereby directed the Opposite Party to refund the entire amount of Rs. 31,000/- to complainant and also pay Rs. 3,000/- as cost of litigations expenses. Payment shall be made within 30 days from the date of receipt of this order.
V. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party to refund the entire amount of Rs. 31,000/- (Rupees thirty one thousand only) to complainant and also pay Rs. 3,000/- as cost of litigations expenses. Payment shall be made within 30 days from the date of receipt of this complaint and failover to pay within 30 days the Opposite Party are liable to pay interest 10% p.a. on total amount from – and failover till the date of payment. 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 and file shall be consigned to record room.
(Page No.1 to 7 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 29th day of FEBRUARY 2016)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum. D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Dr. Sheethal D – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 24.08.2012: Original receipt bearing No. 1102
issued by the Opposite Party.
Party No.1.
Ex C2 – 26.04.2013: Office copy of the legal notice issued
by the complainant to the Opposite Party.
Ex C3 – : Postal Acknowledgment.
Ex C4 – 14.05.2013: Reply notice issued by the Opposite Party
Witnesses examined on behalf of the Opposite Party:
RW-1 : Mrs Swaroop Devaiah, opposite party .
Documents produced on behalf of the Opposite Party:
Ex R1 – Office copy of lawyers reply notice dated 14.05.2013
issued on behalf of Priyadarshini Montessori to the counsel of complainant.
Ex R2 – Postal acknowledgment of complaints counsel.
Ex R3 – Prospectus of Priyadarshini Montessori house for children.
Ex R4– Diary maintained by Priyadarshini Montessori house
for children.
Ex R5 - Receipt book maintained by priyadarshini Montessori
house for children.
Ex R6 - Opinion letter given by complainant and his wife to the
Priyadarshini Montessori house for children.
Dated: 29.02.2016 PRESIDENT
