| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.225 of 01-07-2015 Decided on 11-03-2016 Gurbinder Singh aged about 42 years S/o Harnek Singh R/o Village Burj Kahan Singh Wala, Tehsil and District Bathinda. ........Complainant Versus The Principal, St.Xavier's Senior Secondary School, Model Town, Phase-II, Bathinda. .......Opposite party Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P. Singh Pahwa, President. Smt.Sukhwinder Kaur, Member. Sh.Jarnail Singh, Member. Present:- For the Complainant: Sh.N.P. Singh, Advocate. For opposite party: Sh.Rohit Sharma, Advocate. ORDER M. P. Singh Pahwa, President The complainant Gurbinder Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 against opposite party The Principal, St.Xavier's Senior Secondary School (here-in-after referred to as opposite party). Briefly stated, the case of the complainant is that he got admitted his son Akashdeep Singh in the school of opposite party in XI-HUM vide admission No.9704 dated 9.7.2014 and deposited a sum of Rs.4000/- as admission fee, Rs.5000/- as development activity fee, Rs.1000/- as caution money/security (refundable) on 9.7.2014 against proper receipts besides depositing an amount of Rs.8410/- on 9.7.2014 on account of amalgamated fee, tuition fee and smart classes fee and again Rs.5160/- on 9.7.2014 on account of tuition fee and smart classes fee. He deposited the total amount of Rs.23,570/- with opposite party. It is alleged that at the time of taking admission in the school by the son of complainant, opposite party assured the complainant and his son Akashdeep Singh that it is teaching all the subjects including English Literature, which is one of the subjects of his son, but after taking admission, opposite party proclaimed that it is not teaching English Literature in the school and refused to provide any coaching to his son for the said subject. The complainant alongwith his son talked to opposite party, but it flatly refused to provide any coaching in the said subject as a result of which, his son could not attend any lecture in the school since the date of his admission. It is further alleged that opposite party is not providing any coaching for the subject of English Literature, despite that it provided admission to the son of the complainant by mis-statement of facts to the complainant and his son and received a sum of Rs.23,570/- from the complainant. He requested opposite party to refund the said amount, but to no effect rather it started putting off the matter on one or other false pretext and ultimately, refused to refund him the amount except security amount of Rs.1000/-. He got issued a legal notice to opposite party through his counsel on 26.8.2014 calling upon it to refund the total amount of Rs.23,570/- alongwith interest, but it did not respond to his notice and a week ago, it flatly refused to refund any amount. On this backdrop of facts, the complainant has filed this complaint claiming refund of amount of Rs.23,570/- alongwith interest @ 18% per annum and compensation to the tune of Rs.25,000/- on account of mental tension, botheration etc. and litigation expenses to the tune of Rs.5500/- Hence, this complaint. Upon notice, opposite party appeared through counsel and contested the complaint by filing its written version. In written version, it has raised legal objections that the complainant has no locus-standi or cause-of-action to file this complaint against it. The complainant is estopped from filing this complaint by his own act and conduct. This complaint is not maintainable in its present form. He has not approached before this Forum with clean hands. This complaint is false, frivolous and vexatious to the knowledge of complainant and is liable to be dismissed. On merits, the stand of opposite party is that it never assured the complainant or his son that they are teaching English Literature in its school. The complainant and his son have grossly twisted the facts as per their own convenience. Even admission form provided to the son of complainant clearly finds mention columns of compulsory subjects and optional subjects and both the said columns do not find mention anywhere subject of English Literature. The complainant himself chose the physical education as optilona subject and also filled subject English Literature at column No.6 against which it has been specifically mentioned that 'Additional if any, no coaching from the school'. This admission form is duly filled by the son of complainant himself and is duly signed by the him. It is reiterated that opposite party never misrepresented the facts to the complainant or his son. The son of complainant was informed that he is required to take coaching from the outside at his own cost and expenses and can appear in the board exam as student of opposite party for the said subject. It is pleaded that there is no need to opposite party to misrepresent the facts to the complainant rather it is enjoying the good reputation and is one of the renowned institutes of Bathinda and there is always scarcity of seats in the school. As such, there is no reason with it to give admission to the complainant by misrepresentation of facts. The son of complainant has himself left the school in the mid of the session for which the complainant is not entitled to seek refund of any amount from opposite party except the security amount of Rs.1000/-. It is mentioned that the legal notice got issued by the complainant is based upon totally false facts. After controverting all other averments, opposite party prayed for dismissal of complaint. Both the parties were afforded opportunities to produce evidence. In support of her claim, the complainant has tendered into evidence his own affidavit dated 29.6.2015, (Ex.C1); photocopies of payment receipts, (Ex.C2 to Ex.C6); photocopy of legal notice, (Ex.C7); postal receipt, (Ex.C8) and photocopy of admission form, (Ex.C9) and closed the evidence. In order to rebut this evidence, opposite party has tendered into evidence affidavit of Fr.Eulalio Fernandes dated 6.1.2016, (Ex.OP1/1); photocopy of application form, (Ex.OP1/2) and closed the evidence. We have heard learned counsel for the parties and gone through the file carefully. Learned counsel for complainant has reiterated his stand as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that the material facts are not in controversy. It is not disputed that the complainant got admitted his son Akashdeep Singh in XI-HUM and deposited fees as detailed in the complaint. Copy of admission form is brought on record as Ex.C9. As per this document also, the complainant has opted for English Literature as additional subject. Although, in the form, it is mentioned that no coaching will be provided from the school, but the complainant has deposed on oath that opposite party was agreed to provide coaching for English Literature also. Opposite party has not provided coaching of this subject. Therefore, this fact amounts to deficiency in service and unfair trade practice on the part of opposite party. It is also not disputed that son of the complainant could not continue study in the school and as per complainant, it was only for failure of opposite party to provide coaching in English Literature. When opposite party has failed to provide coaching, the complainant is entitled to refund of fees as well as claimed compensation. To support his submissions, learned counsel for complainant has cited 2009 (1) CLT 616 Vivek High School Vs. Rajesh Goel. On the other hand, learned counsel for opposite party has submitted that the documentary evidence has to prevail upon oral evidence. The complainant himself has placed on record admission form, (Ex.C9). This document clinches the entire controversy. The compulsory subjects and optional subjects for which coaching is available in the school are listed in this document. Although, students can opt for additional subject also. It is categorically mentioned that no coaching in the school for other additional subject. This form is duly filled up and signed by the son of complainant. Therefore, as per this document, opposite party was not to provide coaching for English Literature. There is nothing on record to show that opposite party ever promised for providing coaching for English Literature also. In such circumstances, opposite party cannot be held deficient in service and no unfair trade practice can be attributed to it. The complainant has claimed refund of fees only for the reason that opposite party is not providing coaching for English Literature. As it has never committed for coaching of English Literature, complainant cannot claim for refund of tuition fee and consequential compensation also. We have given careful consideration to these rival submissions and gone through the case law cited by learned counsel for complainant. Before coming to merits of the case, we would like to examine that whether the case law relied upon by counsel for complainant is applicable to the case in hand or not. In the cited case, the complainant got admission of his 3 years old daughter in the year 2008-09. The session was to start from 3.4.2008. The complainant deposited fee on 19.12.2007. In the meantime daughter of the complainant was selected in another school where complainant deposited fee on 5.2.2008. Vide letter dated 14.2.2008, he requested the school to cancel admission of his daughter and refund the fee, but opposite party refunded only a sum of Rs.10,000/-, out of total amount of Rs.18,100/-. Therefore, above brief facts reveals that the cited case is on clearly distinguishable facts. In this case, it is not the case of the complainant that he opted to get admission canceled before start of session. Thus, this case law is not applicable in this case. Now, coming on the main point involved in this case. Well settled proposition of law is that the complainant has to prove his case by affirmative evidence. The documentary evidence has to prevail upon oral evidence. The complainant has alleged that opposite party promised to provide coaching of English Literature to his son but this averment is based on oral evidence only. He himself has produced on record copy of admission form, (Ex.C9). This form contains the list of compulsory subjects and three optional subjects, out of three optional subjects, son of the complainant was to select anyone subject and student was also having option of additional subject beyond provided list. Admittedly, son of the complainant opted for English Literature as additional subject but it is categorically mentioned that no coaching will be provided from the school for additional subject. This form is signed by Akashdeep Singh, son of the complainant also. It is not the case of the complainant that the signatures of his son were obtained by any misrepresentation or undue influence. Therefore, as per documentary evidence produced by the complainant also, opposite party was not expected to provide coaching for English Literature as it was not subject out of list provided by opposite party. When opposite party has not committed for coaching for English Literature, the complainant cannot allege any deficiency in service on its part. It is also not the case of the complainant that his son surrendered his seat before start of session and opposite party admitted any other student against seat surrendered by him. For the reasons recorded above, this complaint is hereby dismissed without any order as to cost. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 11-03-2016 (M.P Singh Pahwa) President (Sukhwinder Kaur) Member (Jarnail Singh) Member
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