CC No: 2693/2013

 Filed on 03.12.2013

Disposed on 23.03.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 052

DATED THIS THE 23^rd DAY OF MARCH 2016

CONSUMER COMPLAINT NO.2693/2013

PRESENT:

Sri. H.S.Ramakrishna,  B.Sc., LL.B.

                                    PRESIDENT

                        Smt. L. Mamatha, B.A., (Law), LL.B.

                        MEMBER

                                                        V/S

ORDER 

BY SRI H.S. RAMAKRISHNA, PRESIDENT

1.         This is a complaint filed by the Complainant against the Opposite Parties under Section-12 of the Consumer Protection Act, 1986, praying to pass an order directing the Opposite Party to refund Rs.35,000/- along with interest at 18% from 07.12.2011, till date.  Further prays to pay Rs.50,000/- as compensation for the mental agony suffered together with costs of this litigation.

2.         The brief facts of the Complaint can be stated as under:

In the complaint, the Complainant alleged that he wanted to admit his son Master Aditya Deshpande to the Opposite Party School.  As per the instruction of the Opposite Party, the Complainant followed the initial admission procedure.  The Opposite Party directed the Complainant to pay a sum of Rs.35,000/- towards the admission fee.  Accordingly, the Complainant paid Rs.35,000/- by way of cheque bearing No.523605 dt.07.12.2011 in favour of the Complainant.  During the month of June 2012, the Complainant son was supposed to start attending the school, the Complainant was required to pay tuition fee and other fee to the Opposite Party.  During this period, the Complainant shifted his residence to the address mentioned in the above cause title.  Shifting of his residence, owing to the problem in arranging child care, work schedule of the Complainant and his wife and  other reasons compelled the Complainant to admit his son to another school which is convenient to the Complainant and his wife and it was in the overall interest of the child.  As the child was of tender age and incapable of managing himself, the Complainant was unable to send the child to the Opposite Party school.  Accordingly, on 03.06.2012, the Complainant informed the Opposite Party about his decision not to admit Master Aditya Deshpande so as to enable the Opposite Party admit any other student in the place of Master Aditya Deshpande.  The Complainant also requested the Opposite Party to refund Rs.35,000/- which was paid as admission fee.  The Opposite Party dodged the matter without giving any reason and did not refund amount of Rs.35,000/-.  Master Aditya has not attended the Opposite Party school and even for a single day.  The Opposite Party has neither provided nor the Master Aditya received any services, therefore the refusal to refund the fees paid by the Complainant is not only a deficiency of service, but also an unfair trade practice and if there is any term of the contract to the contrary to the same is an unfair trade practice.  Therefore, the Complainant is entitled for refund of the money.  The Complainant contacted the school and also sent an email to the Opposite Party to refund the admission fee of Rs.35,000/-.  The Opposite Party refused to refund the admission fee without giving any valid reason.  The Complainant has intimated the Opposite Party about his decision not to admit his son well in time.  Hence, this complaint.

            3.         In response to the notice, the Opposite Party put their appearance through their counsel and filed version.  In the version Opposite Party pleaded that the complaint is not maintainable either in law or on facts.  The complaint is but abuse of process law.  The Complainant suppressed as well as concealed material facts.  The Complainant at the time of admission to his son Master Aditya Deshpande also took an admission to his daughter Ms.Diya Deshpande for Grade-III, Division-A.  The said Miss. Diya Deshpande was the student of Opposite Party Institution for the academic year 2012-13.  The daughter of the Complainant continued for the same school for the entire year.  Miss. Diya Deshpande was very much regular to the class for the academic year 2012-13.  The Complainant intentionally suppressed this fact giving a false reason that he has shifted his place of residence and therefore, it is not convenient for him to send his son Master Aditya Deshpande to the Opposite Party School.  The Complainant son Master Aditya Deshpande had taken admission to the Institution render by the Opposite Party in the month of December 2011.  After waiting for almost two years, approached this Forum belatedly to try his luck clearly knowing the fact that the admission fee paid by him is not refundable and not transferable under any circumstances.  The Complainant agreed for such terms and now cannot seek refund of the admission fee.  The Complainant after taking admission of his son when the Opposite Party asked for payment of fee.  The Complainant after taking admission of his son when the Opposite Party asked for admission of fee the Complainant sent an email dt.30.03.2012 asking for time till the end of May for making payments.  This clearly show that the Complainant suppressing the said facts filed the above complaint in order to make unlawful gain and denied all the other averments made in the complaint and prays to dismiss the complaint.

4.         In support of the complaint, the complainant has filed his affidavit by way of evidence.  For the Opposite Party one Sri Likith Raj Kanive, Authorized Representative of the Opposite Party Institution has filed his affidavit by way of evidence.  Heard the arguments of both the parties.

5.         Now the points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party?
2. If so, to what relief the Complainant is entitled?

6.         Our findings on the above points are:-

                        POINT (1):-  Negative

                        POINT (2):-As per the final Order

REASONS

7.         POINT NO. 1:-         As looking into the averments of the complaint and the version filed by the Opposite Party, it is not in dispute that in the month of December 2011, the Complainant and his son Master Aditya Deshpande approached the Opposite Party and as per the instruction of the Opposite Party, the Complainant followed initial admission procedure.  The Opposite Party directed the Complainant to pay a sum of Rs.35,000/- towards admission fee, accordingly, the Complainant paid Rs.35,000/- by way of cheque bearing No.523605 dt.07.12.2011 and the Opposite Party issued a receipt bearing No.2477 dt.07.12.2011 in favour of the Complainant.  To substantiate this fact, the Complainant in his affidavit reiterated the same and procuded the receipt.  By looking into the receipt, it is dt.07.12.2011 and receipt No.2477.  Under this receipt, the Opposite Party has received a sum of Rs.35,000/- through cheque bearing No.523605 towards the admission fee of Master. Aditya Deshpande, sone of the Complainant.  This evidence of the Complainant has not been challenged.  So there is no contra evidence to discard the evidence of the Complainant.  Therefore, it is proper to accept the contention of the Complainant that in the month of December 2011, the Complainant and his son approached the Opposite Party and as per the direction of the Opposite Party, he paid Rs.35,000/- through cheque bearing No.523605 dt.07.12.2011 towards the admission fee of his son Master. Aditya Deshpande.

            8.         It is the further contention of the Complainant that Master. Aditya Deshpande was supposed to start attending the school during the month of June 2012 and the Complainant was required to pay the tuition fee and other fee to the Opposite Party.  During this period, the Complainant shifted his residence to the address mentioned in the cause title, shifting of his residence owing to problems in arranging child care, work schedule of the Complainant and his wife and for other reasons compelled the Complainant to admit his child to another school which is convenient to the Complainant and his wife and it was the overall interest of the child as the child was tender age and incapable of managing himself, the Complainant was unable to send the child to the Opposite Party school.  Accordingly, on 03.06.2012, the Complainant informed the Opposite Party about his decision not to admit Master Aditya Deshpande so as to enable the Opposite Party admit any other student in the place of Master Aditya Deshpande.  The Complainant also requested the Opposite Party to refund Rs.35,000/- which was paid as admission fee.  The Opposite Party dodged the matter without giving any reason and did not refund amount of Rs.35,000/-.  Master Aditya has not attended the Opposite Party school and even for a single day.  The Opposite Party has neither provided nor the Master Aditya received any services, therefore the refusal to refund the fees paid by the Complainant is not only a deficiency of service, but also an unfair trade practice and if there is any term of the contract to the contrary to the same is an unfair trade practice.  But the Opposite Party denied this fact in their version and pleaded that the Complainant at the time of taking admission to his son Master. Aditya Deshpande also took an admission to his daughter Ms.Diya Deshpande for Grade-III, Division-A.  The said Miss. Diya Deshpande was the student of Opposite Party Institution for the academic year 2012-13.  The daughter of the Complainant continued for the same school for the entire year.  Miss. Diya Deshpande was very much regular to the school for the entire academic year and she was absent only for two days.  At the time of admission of Master. Aditya Deshpande, it was intimated to the Complainant that the admission fee was non-refundable and non-transferable.  So now the burden is on the Complainant to establish that the Complainant has changed his address and now it is causing inconvenience to the Complainant to send his son Master. Aditya Deshpande to the Opposite Party School.  To substantiate this fact, the Complainant filed his affidavit evidence and reiterated the same.  Except his interested version, the Complainant has not placed any supporting evidence to show that he has changed his residence to the addressed given in the cause title.  But this fact has not whispered as looking into the complaint.  So also as looking into the mail dt.08.04.2013 sent to the Principal of the Opposite Party School, even in this mail also the Complainant has not mentioned what was his address and from which address he has changed to the present address.  On the other hand, even in this mail he has given the same address as mentioned in the cause title, whereas the present complaint is filed on 03.12.2013.  The Complainant has not produced any supporting evidence to substantiate this contention, therefore, it is not proper to accept the contention of the Complainant that he has changed his residence.  Due to change of his residence, it is causing inconvenience to the Complainant to send his son Master Aditya Deshpande to the Opposite Party School.  In that event, what is necessary for the Complainant to take admission to his son with Opposite Party School.  On the other hand, as the defence taken by the Opposite Party the Complainant’s daughter Miss. Diya Deshpande is also studying in the same school.  In support of this defence, one Sri Likith Raj Kanive has filed his affidavit and in his affidavit he reiterated the same and to substantiate his defence, the Opposite Party produced the copy of the attendance register of 3^rd grade ‘A’ Division.  By looking into this document, Miss. Diya Deshpande is studying in the Opposite Party School in 3^rd Grade ‘A’ Division and she is regularly attending the classes.  Therefore, it is not proper to accept the contention of the Complainant that the Complainant has changed his residence and due to chaning his residence, it is causing inconvenience for the Complainant to send his son Master. Aditya Deshpande to the Opposite Party Institution.

            9.         Further, it is the specific defence of the Opposite Party that at the time of admission, it is intimated to the Complainant that the admission fee was non-refundable and non-transferable.  To substantiate this fact, one Mr.Likith Raj Kanive in his evidence reiterated the same and produced the Admission Fee - Payment Advice.  This admission fee payment advice is dt.07.12.2012.  By looking into this document, it is clear that this document is reference to Master. Aditya Deshpande i.e. son of the Complainant and the admission for junior kg, payment is made through cheque bearing No.523605, dt.07.12.2011 for a sum of Rs.35,000/- and further discloses that the Complainant accepted and acknowledged the admission fee paid by him is not refundable and non-transferable under any circumstances.  To this document, the Complainant attested his signature.  The Complainant is not an illiterate person and layman, the Complainant being a literate person and being a Doctor, well educated person and affixed his signature after accepting and acknowledging the conditions that the admission fee paid by him to his son is non-refundable and non-transferable, thereby, the Opposite Party has satisfactorily established their defence.

            10.      The learned counsel for the Complainant argued that the Complainant admitted his son on 07.12.2011 to the Opposite Party School by paying a sum of Rs.35,000/-, due to some inconvenience i.e. shifting of his residence does not practicable for the Complainant to send his son to the Opposite Party School, even the Complainant’s son Master.  Aditya Deshpande never attended the school of the Opposite Party for a single day.  For that reason, the Complainant requested the Opposite Party to refund the admission fee.  Inspite of several requests, the Opposite Party fails to refund the admission fee received from the Complainant.  It is a settled principle of law that the forfeiture of fees is not only a deficiency of service, but also an unfair trade practice and any term stating fees is non-refundable/non-transferable is surely an unconscionable contract, therefore, void and not binding on the Complainant.  Therefore, the Opposite Party rendered deficiency of service and practiced unfair trade practice.  In support of his argument, he relied upon a decision in the matter between Registrar, Punjab University v/s Yogesh Bansal – I (2009) CPJ 481, Nipun Nagar v/s Symbiosis Institute of International Business – I (2009) CPJ 03 (NC), Shri Saravpreet Singh v/s The Principal, Lala Lajpat Raj Institute of Engineering & Technology and another – NC, Ganapati College of Engineering v/s Vijeta & another – NC, Birla Institute of Technology & Science and other v/s Abhishek Mengi – NC, hence, prays to refund the admission fee of Rs.35,000/- as prayed in the complaint.

            11.      On the other hand, the learned counsel for the Opposite Party argued that the Complainant fails to substantiate his contention that he shifted his residence, due to that reason, the Complainant is unable to send his son to the Opposite Party School.  On the other hand, the Complainant’s daughter Miss. Diya Deshpande is studying 3^rd Grade ‘A’ Division of the Opposite Party Institution, thereby, it falsify the contention of the Complainant that he has changed the residence and due to that reason, he wants to refund of the admission fee of his son Master. Aditya Deshpande.  Further argued that at the time of admission, it is intimated to the Complainant that admission fee is non-refundable and non-transferable.  In support of his argument, he relied upon a decision of Miss. Raveena v/s Sri Lakshmi Narayan Ayurvedic College, Amritsar and another – AIR 1998 Punjab & Haryana 104, Usha S.Rao v/s The Common Entrance Test (CET) – 2002 (2) KarLJ 141, an unreported decision in Appeal No.30/2007 before the Rajasthan State Commission.

12.      With this argument and as looking into the record as rightly pointed out by the learned counsel for the Opposite Party, the Complainant has fails to prove that he has changed his residence and on that ground, he wants to refund of admission fee paid by him for the admission of his son Master. Aditya Deshpande.  By carefully looked into the decisions referred by the Complainant, all the said decisions are not helpful to the case of the Complainant since the Complainant has clearly accepted and admitted by putting his signature to the admission fee payment advice accepting that the admission fee paid by him is not refundable and non-transferable.    Sec.2(1)(g) of the Act defines the Deficiency :  

"deficiency" means any fault, imperfection, shortcoming or inade­quacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.” 

Admittedly the Complainant by affixing the signature to the Admission Fee Payment Advice entered into the contract with the Opposite Party about the admission of his son by paying a sum of Rs.35,000/- and accepting that the said amount is not refundable and non-transferable.  Further, the Complainant cannot establish that there is any fault, imperfection or shortcoming on the part of the Opposite Party.  Therefore, the Complainant utterly fails to establish that there is a deficiency of service on the part of the Opposite Party.

            13.      Sec. 2(1)(r) defines Unfair Trade Practice :

(r)      "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely;—

(1)   the practice of making any statement, whether orally or in writing or by visible representation which,—

(i)   falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;

(ii)  falsely represents that the services are of a particular standard, quality or grade;

(iii)  falsely represents any re-built, second-hand, reno­vated, reconditioned or old goods as new goods;

(iv)  represents that the goods or services have sponsor­ship, approval, performance, characteristics, accesso­ries, uses or benefits which such goods or services do not have;

(v)   represents that the seller or the supplier has a spon­sorship or approval or affiliation which such seller or supplier does not have;

(vi)  makes a false or misleading representation concern­ing the need for, or the usefulness of, any goods or services;

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof;

      Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;

(viii)makes to the public a representation in a form that purports to be—

(i)   a warranty or guarantee of a product or of any goods or services; or

(ii)   a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or prom­ise is materially misleading or if there is no reasonable prospect that such warranty, guaran­tee or promise will be carried out;

(ix)  materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;

(x)  gives false or misleading facts disparaging the goods, services or trade of another person.

Explanation. - For the purposes of clause (1), a statement that is— 

(a)  expressed on an article offered or displayed for sale, or on its wrapper or container; or

(b)    expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or

(c)     contained in or on anything that is sold, sent, delivered, transmit­ted or in any other manner whatsoever made available to a member of the public,  

shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained; 

(2) permits the publication of any advertisement whether in any news­paper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.

Explanation .—For the purpose of clause (2), "bargaining price" means—

(a)     a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or

(b)     a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold.

By looking into this section, the unfair trade practice means for the provision of any service, adopts any unfair method or unfair or deceptive practice i.e.  falsely represents that the services are of a particular standard, quality or grade making false or misleading representation.  Even the Complainant has not established this fact also that the Opposite Party has adopted false representation service of the particular standard.  Thereby the Complainant fails to prove that there is an unfair trade practice adopted by the Opposite Party.  Hence, the Complainant fails to prove the allegation made against the Opposite Party.  Hence, this point is held in the negative.

14.      POINT NO.2:-          In view of the finding on Point No.1, we proceed to pass the following;

ORDER

The Complaint is dismissed. No costs.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 23^rd day of March 2016).

       MEMBER                                                                               PRESIDENT

CC. NO.2693/2013

LIST OF WITNESSES AND DOCUMENTS

Witnesses not examined, but affidavit of the witnesses is filed, as follows;

1. Dr. Sandip Deshpande has filed his affidavit for Complainant.
2. Sri Likith Raj Kanive filed his affidavit for the Opposite Party.

List of documents filed by the Complainant :

1. Copy of the receipt dt.07.12.2011.
2. Copy of the letter dt.08.04.2013.
3. Copy of the email dt.10.04.2013 and 24.05.2013.

List of documents filed by the Opposite Party :

1. Certified true copy of the Board Resolution passed by the Directors dt.14.01.2014.
2. Copy of the attendance register.
3. Copy of the email dt.03.04.2014.
4. Copy of the Admission Fee – Payment Advice.
5. Copy of the email dt.30.03.2012.

MEMBER                                                                               PRESIDENT