Chandigarh

DF-II

CC/597/2019

Rohan Chaudhary - Complainant(s)

Versus

The Principal, St. Kabir Public School - Opp.Party(s)

In Person

13 Feb 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	597 of 2019
Date  of  Institution	:	03.07.2019
Date   of   Decision	:	13.02.2020

 

 

 

 

Rohan Chaudhary, aged 15 years, son of Sh.Ramesh Kumar, Resident of Village Bichapari, Tehsil Naraingarh, District Ambala, minor through his father cum natural guardian Sh.Ramesh Kumar.   

             …..Complainant

Versus

The Principal, St.Kabir Public School, Sector 26, Chandigarh (Rattanbir Singh)

     ….. Opposite Parties 

BEFORE:  SH.RAJAN DEWAN             PRESIDENT

         SMT.PRITI MALHOTRA             MEMBER

                           

 

Argued by :- Complainant in person.

             Sh.Munish Goel, Adv. for OP

 

 

PER PRITI MALHOTRA, MEMBER

 

         Briefly stated, the complainant took admission in Class-11^th with OP School and deposited an amount of Rs.65021/- on 10.4.2019. It is stated that in the meanwhile, the complainant on qualifying the entrance of St.Johns Public School, preferred to join said school and as such took admission in St.Johns Public School.  Thereafter, the complainant requested the OP on 11.4.2019 for refund of the fee deposited as the complainant has not attended even a single class and in response thereto, the OP refunded only an amount of Rs.38021/- after deducting Rs.27000/-.  It is also stated that the complainant is entitled for full refund of fee of Rs.65021/-, but still the OP illegally deducted an amount of Rs.27000/-. Hence, this complaint has been filed alleging said act of OP as illegal, unfair trade practice and deficiency in service on the part of OP.

 

2]       The OP has filed reply and while admitting the factual matrix of the case, stated that the complainant has duly been explained that Admission Charges of Rs.27000/- would not be refunded in case the student withdrew from the school after taking admission.  It is stated that the complainant has rightly been refunded Rs.38021/-.  It is submitted that the complainant is not a consumer qua OP and as such the complaint is not maintainable.  Denying other allegations, the OP has prayed for dismissal of the complaint.

 

3]       Parties led evidence in support of their contentions.

 

4]       We have heard the ld.Counsel for the parties and perused the entire record.

 

5]      Admittedly, the complainant sought admission in OP School and deposited an amount of Rs.65021/- on 10.4.2019 and on getting admission in another school i.e. St.Johns Public School, requested the OP on 11.4.2019 for refund of the said fee amount, whereupon OP refunded only an amount of Rs.38021/- after deducting Rs.27000/-.

 

6]       The claim of the complainant is that he is entitled for full refund of fee of Rs.65021/-, which has been denied by OP.

 

7]       The objection raised by the OP that the complainant is not a ‘consumer’ qua OP is not tenable, in view of the law settled by the Hon’ble Supreme Court of India in
Civil Appeal Nos.7003-7004 of 2015 – P.Sreenivasulu & Anr. Vs. P.J.Alexander & Anr., dated 9.9.2015, wherein the Hon’ble Supreme Court has clearly laid down that Educational Institutions would come within the purview of the Consumer Protection Act, 1986 and that ‘Education’ is a Service. 

“No one is present on behalf of the respondents despite service.

Leave granted.

We have heard learned counsel for the appellants.

A dispute was raised by the appellants with regard to deficiency in service by the college run by the respondent Educational Foundation.

The National Consumer Disputes Redressal Commission (in short 'the National Commission') was of the opinion that in view of the decision of the Madras High Court in The Registrar, University of Madras & Anr. v. Union of India & Ors. [1995 Writ L.R.246], the complaint before the State Commission was not maintainable. The attention of the National Commission was also drawn to a judgment delivered by the National Commission itself in Bhupesh Khurana & Ors. v. Vishwa Buddha Parishad & Ors. [2000 CTJ 801 (CP)] in which it is held that a deficiency by an Educational Institute would come within the scope of the Consumer Protection Act, 1986.

 

The National Commission preferred to rely on the decision of the Madras High Court rather than its earlier decision rendered in Bhupesh Khurana (supra).

 

It has been brought to our notice that an appeal was filed against the order of the National Commission in Bhupesh Khurana and the decision in the appeal is reported as Buddhist Mission Dental College & Hospital v. Bhupesh Khurana & Ors. [(2009) 4 SCC 473]. The view expressed by the National Commission was upheld by this Court in the aforesaid decision.

 

Under the circumstances, an educational institution would come within the purview of the Consumer Protection Act, 1986 and the decision rendered by the Madras High Court would no longer be good law. Under the circumstances, we hold that the complaint filed before the State Commission was maintainable.

 

Accordingly, we set aside the judgment and order dated 12.09.2002 passed by the National Commission and remand the matter to the State Commission for its decision on merits.

 

The civil appeals are allowed.”

 

    In the aforesaid judgement the Hon’ble Supreme Court placed reliance on Buddhist Mission Dental College & Hospital Vs. Bhupesh Khurana & Ors., (2009) 4 SCC 473, dated 13.2.2009 in which the view expressed by the National Commission was upheld by the Hon’ble Supreme Court. In this decision dated 09.09.2015, it was held by the Hon’ble Supreme Court that the decision rendered by the Madras High Court was no longer good in law and set aside the order dated 12.09.2002,  passed by the National commission.

 

         The above mentioned law which was prevalent at the time when the cause of action has accrued in favour of the complainant i.e. in April, 2019, the Education Institutions were covered under the purview of The Consumer Protection Act, 1986.  However, the case law referred by ld.Counsel for OP i.e. Manu Solanki & 8 Ors. Vs. Vinayaka Mission University, Consumer Case No.261 of 2012, decided on 20^th January, 2020 by Hon’ble National Commission, is subsequent in date.  In our considered opinion this judgment of Hon’ble National Commission has have the prospective effect  and not the retrospective one.  Therefore the complainant, in whose favour the cause of action had accrued in April, 2019, is covered under the definition of ‘consumer’, as per the observations made by the Hon’ble Supreme Court of India in P.Sreenivasulu & Anr. Vs. P.J.Alexander & Anr., dated 9.9.2015 (Supra)

 

8]       It is undisputed that the complainant deposited the fee on 10.4.2019 and sought refund of the same on the very next day i.e. on 11.4.2019 and OP refunded only an amount of Rs.38021/- after deducting Rs.27000/-.  The OP did not render any service to the complainant, so they cannot forfeit the balance amount of Rs.27000/- as whole.

9]       The plea of Opposite Party that as per the admission form duly signed by complainant, the fee is non-refundable, the same is not sustainable.  This point has thoroughly been discussed and decided by the Hon’ble State Commission, UT, Chandigarh in case of FIITJEE Ltd. Vs. Ms.Shinjini Tewari – Appeal No.109 of 2019, decided on 11.9.2019, wherein in Para No.11, it has been held:

“11.   Further in Paras 20 to 23, it was further held, inter-alia, as under:-

“20.   As regards the argument raised by the Counsel for the appellant/opposite parties that the complainants are not entitled to any refund in term of provisions of Clauses 8 and 10 of the enrolment form, which was duly signed by them at the time of taking admission with opposite parties No.1 & 2, we would like to extract aforesaid clauses as under:-

 “8. I undertake that if I leave the Institute midway before completing the full course for any reason whatsoever, including but not limited to transfer of my father/mother/legal guardian/ill health of myself or any other member of the family or my admission in any institute/course/engineering college etc. I or my father/mother/legal guardian shall not be entitled for refund of fees.

 10.    In addition to the above, I understand without any ambiguity that the fee once paid is not refundable at all, whatever the reasons be, nor is it adjustable towards any other existing courses at FIITJEE or any yet to be launched nor towards the fee of any other existing or prospective student.”

21.     It is a fact that when parents approach some coaching institute to get their ward admitted for coaching, they are supposed to sign the enrolment form and other terms and conditions, which are printed in very small letters. No doubt, the aforesaid clauses are totally one sided and against the interest of the complainants and also did not take care of the second party i.e. the complainants, yet there was no way out but to sign on dotted lines. Since complainant No.2 is minor, therefore, the said enrolment contract is void abinitio qua her.

 

22.           It may be stated here that the Hon’ble Supreme Court of India has recently in the case of Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018 decided on 02.04.2019 held that incorporation of one-sided clauses in a builder-buyer agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986. The Bench was considering an appeal against the order of Hon’ble National Consumer Disputes Redressal Commission, New Delhi wherein it was held that the clause relied upon by the builder to resist the refund claims made by the co0mplainant buyer, were wholly one sided, unfair and unreasonable and could not be relied upon. The Hon’ble Apex court held in Paras 6.7 and 7 of the judgment as under:-

 “6.7  A term of a contract will not be final and binding, if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 186 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

7.     In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms.”

23.     Therefore, in view of law settled by Hon’ble Supreme Court of India, the aforesaid enrolment contract or the above clauses have no binding force on the complainants……”

 

         Moreover, it has also been held in catena of judgments of the Hon’ble Apex Court that the terms & conditions, which are one sided, unilateral and unconscionable, are not reasonable and unsustainable and deserves to be struck down. 

 

10]      By not refunding the fee to the complainant, the Opposite Party has also acted in defiance of the order of the Hon’ble National Consumer Disputes Redressal Commission, in case titled as “Sehgal School of Competition Vs. Dalbir Singh, III (2009) CPJ 33 (NC)”, wherein the Hon’ble National Commission has held as under:-

 

“5.  We have heard the learned counsel for the Petitioner. He submitted that the student had withdrawn voluntarily and, therefore, there was no deficiency of service. The Petitioner’s School has shown excellent results. Hence, it is wrong to observe that their coaching was not upto the mark. He also submitted that one of the conditions imposed by their School which accepting lump sum fees for two years is that ‘refundability/ transferability of seat/ fee is not possible under any circumstances’.

 

6.   The above condition is one sided and biased totally in favour of the Petitioner and against the principle of equity and natural justice and it is not a fair trade practice. The learned counsel quoted the judgment of this Commission in Homeopathic Medical College & Hospital, Chandigarh Vs. Miss Gunita Virk, I(1996) CPJ 37 (NC), wherein it is held that Fora constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal.

 

7.   This judgment is 13 years old. Subsequent to this judgment this Commission in a catena of judgments has held that it is unjust to collect the Fees for the total period of the course. In Nipun Nagar Vs. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC), Revision Petition No. 1336 of 2008, decided by this Commission on 7th November, 2008, after quoting the public notice issued by the University Grants Commission, it was held that the Institute was unfair and unjust in retaining the tuition fee of Rs.1 lakh even after the student withdrew from their Institute. Further if a student leaves before attending a single day of the college or school, he is entitled for total refund except for a small registration fee, say Rs.1,000/-. Even the University Grants Commission had issued a public notice directing all the institutions to refund the money of the students for the period, they have not attended the college/ institution, the extracts of the public notice is reproduced in extenso.

 

“It has come to the notice of the University Grants Commission (UGC) that institutions and Universities including institutions deemed to be Universities are admitting students to various programmes of studies long before the actual starting of academic session, collecting full fee from the admitted students, and retaining their schools/institutions leaving certificate in original. The institutions and Universities are also reportedly confiscating the fee paid if a student fails to join by such dates.

 

The Commission is of the view that the Institutions/ Universities, by way of retaining the certificate in original, force retention of admitted students, which limits the opportunities for the candidates from exercising other options of joining other institutions of their choice. However, it would not be permissible for institutions and Universities to retain the school/institution leaving certificate, mark sheets, caste certificate and other documents in original.

 

The Ministry of Human Resource Development and University Grants Commission have considered the issue and decided that the institutions and Universities, in the public interest, shall maintain a waiting list of students/candidates. In the event of a student/candidate withdrawing before the starting of the course, the wait-listed candidate should be given admission against the vacant seat. The entire fee collected from the student, after a deduction of the processing fee of not more than Rs.1,000 (one thousand only) shall be refunded and returned by the institution/University to the student/candidate withdrawing from the programme. Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable.

 

The Universities/institutions are requested to abide by the instructions issued by the UGC. The UGC shall on its own or on receipt of specific complaints from those affected, take all such steps as may be necessary to enforce these directions.

 

Institutions/Universities are also required to convey these instructions to the colleges affiliated to them.

 

This notice has been reiterated subsequently also.”

 

8.   Therefore, we do not see any material irregularity or jurisdictional error in the order passed by the State Commission. Accordingly, this Revision Petition is dismissed. There shall be no order as to cost.”

 

         In the light of the above, we are of the view that non-refund of fee in the garb of unilateral, unfair and one sided conditions, pertaining to refund, is altogether an act of unfair trade practice and the Opposite Party is liable to make the refund of the same. 

 

11]      In view of the settled law, as discussed and as well law laid down in “Sehgal School of Competition Vs. Dalbir Singh, III (2009) CPJ 33 (NC)” And Nipun Nagar Vs. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC), the entire fee collected from the complainant, now in the present complaint, after a deduction of the registration fee of not more than Rs.1,000 (one thousand only) shall be refunded by the OP to the complainant.

 

12]      Keeping into consideration the facts & circumstances of the case and the settled law, as discussed in the preceding paragraphs, the complaint is allowed. The Opposite Party is directed to refund the balance fee of Rs.27,000/- to the complainant, after deducting Rs.1000/- towards registration charges. The Opposite Party is also directed to pay composite amount of Rs.5,000/- towards litigation cost and compensation to the complainant for the mental agony & harassment caused to him due to their deficient act coupled with unfair trade practice.

         This order shall be complied with by the Opposite Party within a period of 30 days from the date of receipt of copy of this order, failing which the Opposite Party shall be liable to pay additional compensatory cost of Rs.10,000/- apart from the above relief.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

13^th February, 2020                                                                         Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

 (PRITI MALHOTRA)

MEMBER