Orissa

Cuttak

CC/127/2023

Kishan Chand Swain - Complainant(s)

Versus

The Grivance Officer,UP Grad Educational Pvt Ltd - Opp.Party(s)

B K Sinha & associates

14 Dec 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C. No.127/2023

Mr. Kishan Chand Swain,

S/o: Kishore Chandra Swain,

At:Nayabazar,Near Old Fish Market,

Cuttack,Odisha,

Represented through his father

Mr. Kishore Chandra Swain.                                        ... Complainant.

 

          Vrs.

 

1.     The Grievance Officer,

upGrad Educational Pvt. Ltd.,

Ground Floor,Nishuvi75, Dr. Annie Besant Rd,

                     Worli,Mumbai-400018.

 

2.      The Managing Director,.                           

upGrad Educational Pvt. Ltd.,

Ground Floor,Nishuvi75, Dr. Annie Besant Rd,

                           Worli,Mumbai-400018.

 

3.     The Managing Director,

                           Aditya Birla Finance Ltd.,One World Centre,

                           Tower 1-C,18^th Floor,841,Jupiter Mill Compound,

                           Senapati Bapat Marg,Elphinstone Road,

                           Mumbai-400013.

 

4.     The Managing Director,

Propelld(Head Quarter),No.1654,

Enzyme 7^th Cross,

                   19^th main,1st Sector,HSR Layout,

Opp. To Sudha Hospital,

                   Bangalore-560102.                                                               ...Opp .Parties

 

   Present:      Sri Debasish Nayak,President.

          Sri Sibananda Mohanty,Member.

 

  Date of filing:    24.04.2023

  Date of Order:  14.12.2023

 

  For the complainant:            Self

     For the O.Ps 1 & 2   :             Mr. S.Rout,Adv & Associates.

     For the O.P no.3      :             Mr. R.Agarwal,Adv. & Associates.

     For the O.P no.4      :             Mr. S.K.Singh,Adv. & Associates.

 

   Sri Debasish Nayak,President

          Case of the complainant as made out from the complaint petition in short is that in order to pursue Doctor’s Degree abroad with the help of the O.Ps in the field of Business Administration, the complainant had agreed to undertake the course provided by them.   Accordingly, he had paid the initial amount of Rs.50,000/- on 18.12.2022 for reserving a seat in the said course for Doctor of Business Administration (DBA) under the faculty of Golden Gate University of USA.  The total course fee of the said seat was of Rs.10,62,000/- and since because the complainant was unable to pay the said amount at a stretch, he took financial assistance from the O.P no.4 agreeing to repay the loan in 60 instalments @ Rs.25,000/-.  The complainant had subsequently paid an amount of Rs.12,000/- before the EMI conversion, an amount of Rs.11,814.16p towards E.M.I handling charges and also E.M.Is for three months @ Rs.25,000/- to a total of Rs.75,000/-.  While being admitted the complainant was informed that there would be Campus Selection Option available for lots of Multi-National Companies having high reputation with highly paid jobs for the Degree Holders of the course but he was not clearly told that he is to obtain 83% in that assessments of the said course in order to be eligible and continue in the said course and then to be allowed to continue research work in the said course.  Since such fact was not disclosed to him prior to admission process by the O.Ps no.1 & 2, being disgusted, the complainant thought it proper of quitting the said course few days after getting admitted into it.  He thus has claimed for refund of his money as paid and had sent several mails to that effect but when no fruitful result yielded, the complainant had to file this case before this Commission seeking reimbursement of his money from the said O.Ps and with a direction to the O.Ps no.3 & 4 not to deduct any amount from his account.  He has also claimed for compensation from the O.Ps and for any other order as deemed fit and proper.  Thus in that way, the complainant has demanded his money as paid by him, from the O.Ps to the tune of Rs.1,48,814/- together with compensation towards his mental agony and harassment to the tune of Rs.80,000/- and further a sum of Rs.50,000/- towards his litigation expenses.

          Alongwith his complaint petition, he has attached copies of several documents in order to prove his case.

2.       Out of the four O.Ps as arrayed in this case, having not preferred to contest this case, O.P no.4 has been set exparte vide order dt.19.6.2023.  However, O.Ps no.1 & 2  & 3 have contested this case but O.P no.3 has filed his written version separately whereas O.Ps no.1 & 2 have filed their written version jointly.

          According to the written version of O.Ps no.1 & 2, they claimed to be Employees of UpGrad Education Pvt. Ltd.  According to them, the complainant has filed this case with a malicious intention in order to make unjust gain.  They hve urged that Education Service Provider is not coming under the definition of “service” as per the C.P.Act,2019.  According to them, UpGrad is facilitator in between the student/learner and with various Universities thereby providing various courses offered by the Universities but it is online platform.  The petition as filed by the complainant is not maintainable as per their opinion.  Any refund shall be done in accordance with the terms and conditions of refund and deferral policy of upGrad only.  Both the two O.Ps no.1 & 2 have harped that the student shall not be eligible for any refund if the refund request is raised post commencement of the programme.   If the student is unable to continue due to unavoidable circumstances, the student can make a request to defer his learning to another batch.  This option allows the complainant to complete the programme and benefit him from its successful completion without forfeiting the amount.  Thus according to them, the complainant even knowing about the deferral system had claimed refund in order to make unjust gains.  As regards to the percentage to be secured in the Assessment exam, the O.Ps no.1 & 2 through their written version have stated that from a bare perusal of the frequently asked questions as available in the enrolment page of the DBA programme makes it evidently and undisputedly clear that a person intending to continue in the course is required to secure a “B Minus” grade which is approximately 80 to 82% marks in order to clear the examination.  Thus, after enrolling in the course, the complainant cannot take the defence of not being informed about the basic requirements when the same are mentioned in the enrolment page of the DBA programme. The O.Ps no.1 & 2 have further mentioned in their written version that the complainant was already enrolled in the G.G certificate in Product Management after which he enrolled himself in the Doctor of Business Administration programme (DBA) and when he realised that he would not be able to give time to both the courses and  clear those by securing passing percentage as required; which was informed to him during the enrolment, the complainant has come up with this case, which according to them is liable to be dismissed.

          Together with the written version, the O.Ps no.1 & 2 have filed copies of several documents in order to support their stand.

          In the written version of O.P no.3, it is mentioned that the case of the complainant is not maintainable as per the judgment of the Hon’ble Supreme Court in the case of Rabindra Nath Bajpe Vrs Mangalore Special Mechanic Zone and Others.  According to O.P no.3, the complainant is not a consumer and there was no deficiency on his part.  Thus, it is prayed by the O.P no.3 through the written version to dismiss the complaint petition as filed by the complainant.

          Alongwith his written version, the O.P no.3 has also filed copies of several documents in order to establish his stand.

3.      Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.P, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion here in this case.

                      i.          Whether the case of the complainant is maintainable?

          ii.         Whether there was any deficiency in service on the part of                                               the O.Ps ?

                                iii.       Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.i & ii.

           Out of the three issues, issues no.i & ii  being the pertinent issues in this case, are taken up  together first for consideration here.

          After perusing the averments as made by the complainant in his complaint petition, the copies of documents as filed  by the complainant, after perusing the contents of the written versions of O.Ps no.1 & 2 and also O.P no.3 and after perusing the copies of documents as available together with the written notes of submissions as filed by the both the sides, it is noticed that the admission of the complainant to the DBA course through O.P no.1 is not disputed.  It is also not in dispute that the complainant had paid a sum of Rs.1,48,814.16p to the O.Ps 1 & 2 towards his course fee.  It is the contention of the complainant that after being enrolled he was told to secure more than 83% in the Assessments of the course in order to be eligible to continue the course and to be allowed to continue the research work in the said course.  Per contra, it is the contention of O.Ps no.1 & 2 that at the enrolment page of the DBA programme, it is evidently and undisputedly clear that a person intending to enrol the course is required to be secure a “B Minus” grade which according to them, is approximately 80 to 82%.  Thus, it is understood that at the enrolment page there is an indirect indication to secure 80 to 82% if not clearly mentioned about the same.  Be that as it may, the complainant after enrolling himself found the said course not to be suitable for him for which he thought it proper to discontinue and wanted to get refund of his money that which he had paid while taking admission into the said DBA course through the O.Ps no.1 & 2.  On the other hand, as per the terms and conditions filed by the O.Ps no.1 & 2 vide Annexure-R-1, the student/learner can only get the opportunity to request for deferring the course to another batch if he is unable to continue in the current batch due to any unavoidable circumstances.  According to the O.Ps no.1 & 2, the option only allows the complainant to complete his programme by postponing the same to another batch and get benefit from its successful completion without forfeiting the amount paid.  Thus, according to them there is no provision of refund.

          The O.Ps no.1 & 2 have filed their written version through one Koell Hemdev who has claimed to be the authorised representative of  UpGrad Education Pvt. Ltd. and has filed written version on behalf of O.Ps no.1 & 2 here in this case.  The said Koell Hemdev has not filed any Letter of Authorisation so as to apprise this Commission that infact she was duly authorised by the UpGrad Education Pvt. Ltd. Company/Corporation/Farm to file written version on behalf of them before this Commission.  Similarly, it is noticed that though written version on behalf of O.P no.3 has been filed by Infinity Law Chambers, the said Infinity Law Chambers has not filed any Letter of Authority specifying that O.P no.3 had authorized the said Infinity Law Chambers to file written version on his behalf.  Quite interestingly one Jahirul Laskar has filed an affidavit claiming to be the authorised officer of O.P no.3 and he claims that the contents of the written version as filed on behalf of O.P no.3 to be true.  No document to that effect is filed by the said Jahirul Laskar in order to apprise this Commission that infact the Managing Director,Aditya Birla Finance Co. Ltd.(O.P No.3) had authorised the said Jahirul Laskar to file written version on his behalf.  It would be worthwhile here to quote a pertinent decision at this stage which has been decided by the Hon’ble Supreme Court in the case of State Bank of Travancore Vs. M/s. Kingston Computers (I) Pvt. Ltd.  decided in Civil Appeal No.2014 of 2011 (Arising out of SLP( C) No.18179/2009) wherein their lordship have held that “In our view, the judgment under challenge is liable to be set aside because the respondent had not produced any evidence to prove that Shri Ashok K. Shukla was appointed as a Director of the company to file suit against the appellant and authorised Shri Ashok K.Shukla to do so.  The Letter of Authority issued by Shri Raj K.Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K.Shukla to authorise another person to file suit on behalf of the company.

In the result, the appeal is allowed, the impugned judgment is set aside and the one passed by the trial Court dismissing the suit of the respondent is restored.” 

Accordingly, here in this case, the written versions as filed on behalf of the O.Ps no.1 & 2 so also that of O.P no.3 cannot taken into account keeping in mind the above mentioned pertinent decision of the Hon’ble Apex Court.

Moreso, it would also be pertinent to quote the decision of the Hon’ble Supreme Court in the case of M/s. Fitjee Ltd. Vs. Jaipreet Singh Kaushal decided on 9^th July,2018(Arising out of impugned final judgment and order dated 14.11.2017 in R.P No.918/2015 and 10.01.2018 in R.A No.261/2017 passed by the National Consumer Disputes Redressal Commission,New Delhi wherein their lordships had up-held the decision of the Hon’ble National Consumer Disputes Redressal Commission and had dismissed the appeal preferred by M/s. Fitjee Ltd.  In R.P. No.198/2015 decided on 10.1.2018, the Hon’ble National Consumer Disputes Redressal Commission had observed that the Educational Institution is a facilitator/trainer body which comes under the definition of “service” as per the C.P.Act,2019.  Accordingly, their lordships in the said Fitjee Ltd. case had directed refund of the coaching fee deposited by the complainant.  Keeping this pertinent decision in mind, it can undoubtedly be said here in this case that the UpGrad Educational Pvt. Ltd. is definitely a facilitator who provides educational service to the intending students by receiving coaching fee from them.  The plea as taken by O.Ps no.1 & 2 that at first the complainant got admitted into the PG certificate in product management course and thereafter had joined the DBA course and that when he could perceive that he cannot devote enough time for both the courses or cannot likely clear the required passing percentage; lacks any proof, nor the said plea  as taken by the O.Ps no.1 & 2 is supported by any cogent evidence.  Thus, it can only be said here to be after thought.  When the complainant was dissatisfied and had decided not to continue the course he had asked for refund of his money that which he had paid but the O.Ps have taken the plea about the terms and conditions as envisaged by them that the complainant that has the provision only for a deferred completion of the programme or course and there is no provision of refund.  Such terms and conditions in the agreement as laid down by the O.Ps appears to be unilaterally and arbitrarily made. That apart, when the written versions as filed on behalf of the contesting O.Ps, lacks Letter of Authority, those cannot be taken into consideration here in this case.  As such this Commission arrives at a definite conclusion that infact the O.Ps were deficient in their service when they had refused to refund the money as paid by the complainant on 18.12.2022 towards the online DBA course through them.  

The case is also said to be maintainable against the O.Ps when the complainant had informed the O.Ps about his intention to quit the course few days after getting admitted into it and had claimed for refund of his money.    Accordingly, the above issues are answered in favour of the complainant.

Issue No. iii.

              From the discussions as made above, the complainant being a consumer under the O.Ps, is entitled to the reliefs as claimed by him. Hence, it is so ordered;

                                                          ORDER

                The case is allowed on contest against the O.Ps 1,2 & 3 and exparte against O.P no.4 who are all found to be jointly and severally liable here in this case. The O.Ps are thus directed to refund the admission fees of  DBA course i.e. Rs.1,48,814.16p to the complainant alongwith interest thereon @ 12% from the date of 18.12.2022 till the amount is quantified.  The O.Ps are also directed to pay a sum of Rs.80,000/- to the complainant towards compensation for his mental agony and harassment as well as a sum of Rs.50,000/- towards  cost of his litigation.  This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

                 Order pronounced in the open court on the 14^th day of December,2023 under the seal and signature of this Commission.  

 

                                                                                              Sri Debasish Nayak

                                                                                                        President

 

 

                                                                                 Sri Sibananda Mohanty

                                                                                                              Member