Complaint filed on: 24-09-2012
Disposed on: 17-05-2014
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1926/2012
DATED THIS THE 17th MAY 2014
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.H.JANARDHANA, MEMBER
Complainant: -
Sri.Amit Sharma.
S/o. Dr.V.K.Sharma,
Aged about 40 years,
No.93/13, 4th main Road,
12th cross, Malleshwaram,
Bangalore-03
V/s
Opposite party: -
The Principal,
The Brigade School,
Brigade Gateway Enclave,
No.26/1, Railway Parallel Road,
Malleshwaram West,
Bangalore – 55
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act 1986, praying to pass an order, directing the OP to pay Rs.99,4000=00 along with 18% interest per annum and to pay Rs.50,000=00 towards loss, hardship, damages and inconvenience and cost of litigation, in the interest of justice and equity.
2. The brief facts of the complaint can be stated as under.
The daughter of complainant by name Ms.Arushi Sharma is pursuing her studies in 2nd standard at Sophia High School, Bangalore. Looking to the attractive advertisement s in news-papers and other modes of OP, the complainant thought of changing the school of his daughter as the complainant was elated by the colourful advertisements and broachers of the OP. In this regard the complainant has approached the OP and enquired about the admission process and procedure in the OP school. The OP vide its letter dated 11-5-2012 has asked the complainant to collect expression of interest form and to fill the same and submit the form along with certain documents and to deposit a sum of Rs.99,400=00 in Bank of India to process the expression of interest form and accordingly the complainant has filed the expression of interest form and in good faith deposited the said sum of Rs.99,400=00 in Bank of India, but could not enclose the transfer certificate. The complainant could not obtain the transfer certificate from the previous school as the said school was enclosed for summer vacation. The bank has duly acknowledged the receipt of the said sum of Rs.99,400=00 vide receipt no.1377 dated 16-5-2012. Mere filing of the expression of interest form was only an interest shown by the complainant for seeking admission in the OP school and as clearly said in the communication of the OP dated 11-5-2012 and the conditions stipulated in the expression of interest form, the admission will be confirmed on condition that all the points and process are completed and required documents are submitted. The very letter of the OP dated 11-5-2012 indicates that the admission will be confirmed on condition that all the points, the following process completed and required documents submitted. Due to some unenforceable circumstances the complainant has intimated the OP that he is unable to admit his daughter in OP school and sought for refund of the fee deposited. The complainant’s wife in her email dated 23-5-2012 has stated the reasons for not admitting the child and again requested in emails dated 26-5-2012 and 4-6-2012 to refund the amount so deposited. The OP has replied through email dated 6-6-2012 that the OP is unable to refund the fees on the ground that once the fee paid will not be refunded. The complainant’s wife immediately drew the attention of the OP vide her email dated 8-6-2012 that the child was not admitted to the school and as such as the OP cannot retain the fee amount and in the alternative has sought that the payment so made may be adjusted towards the tuition fee of her nephew who is pursuing her studies in the school of the OP. The OP has sought some time to process and assured of updating the complainant vide mail dated 26-6-2012. But the OP has failed to refund the amount in deposit in spite of exchange of several emails and also failed to answer the telephone calls. The complainant and his wife have tried to meet the chairman of the school over phone and through email but the OP has failed to provide his phone number or correct email ID. The complainant fed up with the inaction of the OP has even gone ahead to offer the OP to deduct of Rs.10,000=00 out of the amount paid and requested to refund the balance amount of Rs.89,400=00 in order to buy peace. In spite of lapse of nearly three months the OP has not responded to the complainant’s request for refund of the payment and thereafter the notice has been sent to the OP on 2-8-2012 calling upon the OP to refund a sum of Rs.99,400=00 along with interest, the OP has sent untenable reply. The OP is indulging in unnecessary delay in repaying the balance amount and illegally withholding the deposit amount and taking untenable stands for repayment and in the reply notice, the OP has come forward to refund only Rs.24,400=00. The OP is trying to make illegal gain at the cost of complainant. The OP has committed gross negligence, unwanted delay and latches and as such there is great deficiency of service at the hands of the OP. Hence the present complaint is filed.
3. After service of the notice, the OP has appeared through its counsel and filed version contending inter-alia as under:
The complaint of complainant is not maintainable and it is liable to be dismissed in limine. There is no cause of action whatsoever to file the complaint. Granting admission to a child in an educational institution per-se does not amount to rendering service as contemplated under the provisions of the Consumer Protection Act. The non-refunding of the fee does not amount to deficiency in service and on this ground alone the complaint is liable to be dismissed. The complainant has deposited the amounts with the OP only after being satisfied with the quality of education rendered by the OP and the OP has clearly conveyed to the complainant that any amounts paid towards admission fee shall not be refunded and the complainant has also agreed to the same by signing the declaration as stipulated in the form for expression of interest. The complainant by seeking to cancel the admission of his daughter after having expressed his interest to seek admission for his daughter in the 2nd standard in the institution of the OP and having paid the admission fee after having understood the fee structure and being aware of the fact that the amounts paid towards admission would not be refunded has filed this complaint only with a view to harass the OP. The complainant having entered into a contract with the OP has committed a breach of the terms of the contract and as such the action of the complainant amounts to breach of contract. As per the polices of the OP, the OP on 21-4-2012 issued an expression of interest form and the complainant expressed his interest to get an admission for his daughter, the said form was issued by the OP on the payment of a sum of Rs.500=00. At the time of issuance of the form no payments towards admission fee is collected unless the parents intend to secure admission of their children. The OP categorically informed the complainant that in the event of the complainant seeking admission of his child and the amount paid towards the admission fee shall not be refunded in view of clause F in the said form. The complainant being aware of the said clause, signed the declaration and affirmed that the fee schedule has been understood by him. The complainant has deposited the said sum being aware of the fact that, the amounts so paid by him would not be refunded. Thereafter on 23-5-2012 within a period of one week from the date of depositing the amounts towards the admission fee the wife of the complainant addressed an email to the OP stating that her daughter would not be able to join the school since the complainant was transferred to the USA on work and that the entire family would be moving to the USA. In reply to the said email the OP addressed an email dated 6-6-2012 and informed the wife of the complainant that the policy of the school does not provide for any refund of fee. The complainant has issued a legal notice and that notice has been suitably replied by sending reply and without prejudice to their rights offered to resolve the issue, OP offered to refund a sum of Rs.24,400=00. The act of the complainant smacks of mala fide motive to cause damage and reputation to the OP. So the complaint of complainant is not maintainable. The averments of para no.1 to 13 of the complaint are hereby denied. Hence, it is prayed to dismiss the complaint with cost.
4. So from the averments of the complaint of the complainant and version of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP in not refunding his amount as prayed in the complaint?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Affirmative
Point no.2: The complainant is entitled to claim a
sum of Rs.99,400=00 along with cost of litigation of Rs.2,000=00
Point no.3: For the following reason
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced five copies of documents which are marked as document no.1 to 5. On the other hand, one C.P.Raphel Thomas, Admin coordinator working in the OP has filed his affidavit on behalf of the OP and produced two documents. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines.
7. One Amit Sharma, who being the complainant has stated in his affidavit that, his daughter Ms.Arushi Sharma is pursuing her studies in 2nd standard at Sophia High School, Bangalore. Looking to the attractive advertisement in news-papers and other modes of OP, he was attracted by the colourful advertisements and broachers of the OP. In this regard he has approached the OP and enquired about the admission process and procedure in the OP school in order to admit his daughter for her further studies. The OP vide its letter dated 11-5-2012 has asked him to collect expression of interest form and to fill the same and submit the form along with certain documents and to deposit a sum of Rs.99,400=00 in Bank of India to process the expression of interest form and accordingly he filed the expression of interest form and in good faith deposited the said sum of Rs.99,400=00 in Bank of India, but could not enclose the transfer certificate. The bank has duly acknowledged the receipt of the said sum of Rs.99,400=00 vide receipt no.1377 dated 16-5-2012. He could not obtain the transfer certificate from the previous school as the school was closed for summer vacation, which is pre condition for admission. In fact the OP has admitted in its version that, the complainant has not furnished the transfer certificate along with the application and the said admission itself is sufficient to show that his daughter was not admitted in the OP school and the application is incomplete. The OP has informed that due to non-submission of transfer certificate his application has not been processed and in the mean while due to some unenforceable circumstances, he was unable to admit his daughter in the OP school and sought for refund of the amount deposited. His wife through email dated 23-5-2012 has informed the OP indicating the reasons for not admitting the child and again requested in the emails dated 26-5-2012 and 4-6-2012 to refund the amount so deposited. The OP has replied through email dated 6-6-2012 stating that the OP is unable to refund the fees on the ground that once the fee paid will not be refunded. His wife drew the attention of the OP vide email dated 8-6-2012 that the child is not admitted to the school and as such as the OP cannot retain the fee amount. They have given even the option of adjusting the amount so deposited by them towards that tuition fee of her nephew but that said request was also turned down by the OP. In spite of several emails demanding the OP to refund the amount has failed to yield any result. Since the OP is illegally withholding the amount in deposit without any reasonable causes, the OP is liable to refund the amount with interest at 21% p.a. and the complainant issued a legal notice to the OP and untenable reply was given by the OP. There is gross negligence, unwanted delay and latches in making refund of the amount in deposit and the said delay has caused mental agony and hardship to him. There is deficiency of service at the hands of the OP, so the complaint is filed, so the complaint be allowed and pass an order as prayed in the complaint. .
8. Let us have a look at the relevant documents of complainant. Document no.1 of the complainant is the copy of letter of OP dated 11-5-2012 addressed to the complainant stating that the OP is happy to invite child to join their school to 2nd class for the academic year 2012-13, the admission will be confirmed on condition that all the points the following process are completed and the required documents submitted. Processing fee of Rs.10,000=00 along with the 1st to 3rd installment of school fees of Rs.89,400=00 to be paid to Bank of India, Malleshwaram west, Bangalore-55 and this letter to be produced at the bank to receive a specified challan and the following documents to be submitted to the Admin Executive of school, fee paid challan, photocopy of the report card of the final examination of the previous school, and transfer certificate from the previous school and on completion of the process the child name will be entered in the rolls of the school. Further details in respect of uniforms, books ID cards will be communicated. Document no.2 is the copy of blank expression of interest form of OP school. Document no.3 is the copy of OP school challan for having paid Rs.99,400=00 by complainant in the Bank of India, Malleshwaram branch, Bangalore on 16-5-2012 in the name of his child towards processing fee and fees for 1 to 3 terms. Document no.4 consists of emails correspondences between the complainant’s wife, and one email letter of complainant dated 10-7-2012 shows that she requested the OP school to refund the full amount minus the processing fee of Rs.10,000=00, and one of the email letter of OP school dated 26-6-2012 produced by the complainant discloses that they need some time for process and will keep her updated, and one more email letter of complainant dated 8-6-2012 addressed to the OP school reveals that the child has not taken admission to school a tuition fees cannot be applicable and requested kindly to consider a refund or if not a transfer of the fees to her nephew who is also a student of their school, and one email letter of OP school addressed to the complainant’s wife dated 6-6-2012 shows that the policy of the school that once paid cannot be refunded, please refer to the declaration on page no.3 of the expression of interest form which they have signed, and one email letter of OP school addressed to the Mrs.Sharma to submit the transfer certificate on or before the 31st of May. Document no.5 is the copy of reply notice issued by the lawyer of OP school to the complainant dated 21-8-2012 denying the contents of notice of the complainant and the complainant’s claim as if admission was not granted and he withdrew before admission on account of inability to provide documents is denied and with a view to close the issue amicably should the complainant be willing to accept as full and final settlement of all his claims the OP will be willing to refund a sum of Rs.24,400=00 only and if the complainant is willing for the same, he may contact the OP school.
9. The said material evidence of the complainant as mentioned above goes to show that, the child of complainant was not yet admitted to the 2nd standard in the OP school as the complainant was supposed to submit the transfer certificate of his child to the school of OP and the child was not sent to the school due to unavoidable circumstance of the complainant and the complainant asked to refund the entire amount but the OP denied to make refund of the amount, but subsequently in the reply notice the OP came with the offer of refund of Rs.24,500=00 towards full and final settlement, but the complainant did not agree to this offer of the OP.
10. It is an admitted fact between the parties that, the process of the admission of child of the complainant to OP school was not yet concluded. At that stage the complainant moved with an application to refund his money. The policy of the OP, as per the expression of interest form is that once fee paid cannot be refunded. Since the OP has come with the proposal form to refund of Rs.24,400=00 towards full and final settlement, so the policy of OP that fees once paid cannot be refunded is not applicable to the case of the complainant. Moreover, the child of complainant has not been admitted to the 2nd standard by submitting the transfer certificate.
11. At this stage, let us have a cursory glance at the material evidence of the OP. One C.P.Raphel Thomas, Admin Co-ordinator of the OP has stated in his affidavit that, granting admission to a child in an educational institution per-se does not amount to rendering service as contemplated under the provision of the CP Act. In the event of complainant seeking admission of his child the amount paid towards the admission fee shall not be refunded. The complainant has also agreed the same by sending declaration as stipulated in the form for expression of interest and they have given proper reply to the email letter of complainant’s wife and they have sent reply to the legal notice of the complainant and without prejudice to their rights offered to resolve the issue even and offered to refund a sum of Rs.24,400=00, so the complaint is not maintainable, so he prayed to dismiss the complaint with exemplary cost, in the interest of justice and equity.
12. The OP has produced copy of expression of interest form dated 4-5-2012 which was filled up and signed by the complainant and his wife for getting admission of their child to 2nd standard in the OP school and in that form the declaration there is a clause to the effect that, fees once paid will not be refunded. The said document is annexed with one copy of letter of the school addressed to the complainant dated 11-5-2012 to produce fees paid challan, report card of the final examination of the previous school of child and transfer certificate.
13. So making careful scrutiny of the oral and documentary evidence of both parties, it is made unambiguously clear that, the child of complainant was not admitted to 2nd standard of OP school as the child was not sent to school and transfer certificate of child was not submitted to school of OP and at that point of time the complainant has made correspondence with the OP to refund the entire amount paid by him and the OP denied the refund of amount of the complainant. But in the reply notice the OP has come up with the proposal of refund of Rs.24,400=00 out of the amount paid by complainant, but the complainant did not agree to the proposal of the OP.
14. So looking to the case of complainant and defence of OP on the back ground of relevant documents of both parties, it is vivid and clear that, though there was clause in the declaration form of OP that, once fee paid cannot be refunded, the OP has come up with the proposal of refund of Rs.24,400=00 only to the complainant. Besides the complainant has not yet submitted the transfer certificate of his child to the OP school for completion of processing of admission to 2nd standard. So under the circumstance, the policy of the OP that once fee paid cannot be refunded is worthy to be acceptance, since no service is rendered by the OP as child was not admitted, no question of retaining the amount of complainant by OP, and as such we are of the considered opinion that, the oral and documentary evidence of complainant are more believable trustworthy and acted upon than the material evidence of OP, so we hold that, the complainant who comes to forum seeking relief has proved with clear and tangible evidence that, the OP is negligent and there is deficiency of service on the part of the OP in not refunding the amount paid by him, and accordingly, we answer this point in a affirmative.
15. In view of our affirmative finding on point no.1, the complainant is entitled to refund of Rs.99,400=00 from OP. The Op is directed to refund Rs.99,400=00 to the complainant within 30 days from the date of this order failing which, the Op shall pay the said amount to the complainant along with 6% interest per annum on the said amount from the date of this order to till the date of realization and the Op is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation, and accordingly, we answer this point. In the result, for the foregoing reason, we proceed to pass the following order.
ORDER
The complaint of the complainant is partly allowed. The Op is directed to refund Rs.99,400=00 to the complainant within 30 days from the date of this order failing which, the Op shall pay the said amount to the complainant along with 6% interest per annum on the said amount from the date of this order to till the date of realization.
The Op is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this, 17th day of May 2014).
MEMBER PRESIDENT
