`                    Complaints filed on: 11-03-2022

                                                      Disposed on: 19-11-2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU

          DATED THIS THE 19^th DAY OF NOVEMBER 2022

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER

CC.No.73/2022

Athreya M.R. S/o T.N.Raghavendra,

Aged about 18 years, R/at Sri.Nilaya,

Masjid Road, K.R.Extension,

Tumkur – 572 101.

……….Complainant

 (By Sri. H.G. Prakash, Advocate)

V/s

The Secretary,

Innovative Learning Foundation,

Prestige Towers, Moodibidri,

Dakshina Kannada-574 227.

……….Opposite Party

 (By Sri. Prasad K.S., Adv.,)

:ORDER:

BY SMT.G.T.VIJAYALAKSHMI, PRESIDENT

This complaint is filed against the OP U/s 35 of the Consumer Protection Act 2019 with a prayer to register the complaint and enquire the matter and direct the OP to refund Special JEE Coaching fee along with utilized hostel and mess facility fees totaling to Rs.2,40,000/- and further prays to award Rs.50,000/- towards mental agony and litigation cost along with interest rate of 18% P.A. from the date of petition till realization. 

2.       The brief facts of the complaint as under:-

The complainant is a student and had enrolled in OP’s esteemed institution for II PUC PCMC course and also for JEE special coaching for the academic year 2020-21 and paid Rs.40,000/- towards JEE special Coaching Fees, Rs.50,000/- towards Hostel Maintenance, Rs.1,10,000/- towards other fees.  It is further submitted that due to the onset of pandemic Covid-19 OP had closed the institution from 14.03.2020 and no JEE special coaching classes were conducted.  The OP had conducted online JEE training sessions in lieu of physical classes and after attending few online sessions, complainant was not satisfied with the quality of the training as online classes conducted were irregular and informed the OP about discontinuing the training on 07.09.2020 and asked for refund.  The OP had assured that refund of fee will be done as early as possible and also OP had closed down the hostel and mess services due to the pandemic and that the complainant has not availed the hostel and mess services due to closure.    

          The complainant further submitted that even after the full payment of the fee amount in advance and completing the formalities by complainant, the OP has failed to conduct the regular JEE coaching classes and online classes conducted by OP was substandard and lacked quality and due to closure of OP’s hostel and mess, complainant was not able to utilize those services as well.  It is further submitted that in spite of several phone calls and personal visits, the OP did not refund the amount and therefore, the complainant wrote a letter to OP to fulfill OP’s obligation of refunding Special JEE coaching fee along with unutilized hostel and mess facility fees, but OP did not even replied.  Hence, the complainant got issued legal notice, but the OP did not bother to the same. Being aggrieved by the conduct of the OP, the complainant filed this complaint alleging deficiency in service.

3.       After service of notice, the OP appeared and filed the version contending that the complaint filed by the complainant is barred by limitation.  It is further contended that the Educational Institutions are not covered with the ambit of Consumer Protection Act of 2019.   It is contended that the major portion of the fees collected by the students are utilized for infrastructural developments as well as for appointing teaching faculties.  So the collection of fees, appointing teaching faculties and imparting education is a routine process and for that the OP is expending the major portion of the fees collected.    

          The OP further contended that due to lock-down announced by the Government to avoid spreading of pandemic Covid-19, all Educational Institutions are shut down for a while and subsequently form of virtual classes are introduced in the place of physical classes.  Even if the lock-down is declared, the OP has not stopped its teaching process.  But the complainant is highly irregular in attending classes and discontinued from training as well as the regular classes on releasing lock-down.  It is further contended that even if the lock down is declared and schools are shot down, the hostel and mess facilities are continued in order to provide food and boarding to the students who are admitted to the hostel and it is false that during the pandemic the hostel and mess facilities are closed and there is no classes.  On these among other grounds, the OP denied all other allegations made by the complainant in his complaint.  Hence, there is no any deficiency in service on the part of OP and therefore prays to dismiss the complaint.

4.       The complainant has filed her affidavit evidence and marked the documents at Ex.P1 to P8. One Smt.Rashmitha Jain, Secretary filed her affidavit evidence on behalf of OP.

5. We have heard the arguments from both parties.

1)                    Whether there is any deficiency in service on the part of OP?

2)                     Whether complainant is entitled for reliefs sought for?

6.       Our findings to the aforesaid points are as under:

Point No.1: In the Affirmative

Point No.2: As per the final order

:REASONS:

7.       The OP raised the preliminary objections to the complaint on the following 03 grounds:

1.       The first ground of objection is relating to Limitation.

The OP contended that, the complaint filed by the complainant is barred by limitation.  On perusal of complaint it is seen that, the cause of action arose on 07.09.2020 i.e. complainant informed to OP about discontinued the JEE Special Coaching and requesting the OP to refund the fees and complaint filed on 11.03.2022.  Therefore, the complainant filed the complaint within the limitation period of two years. Moreover, the Hon’ble Supreme Court in Miscellaneous Application No.21/2022 in Suo-motu writ petition (Civil) No.3/2020, has directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation.  

2.       The second ground of objection is relating to territorial jurisdiction.

The OP contended that the OP Institution is located Moodabidri Taluk of Dakshina Kannada District within the territorial jurisdiction of the Mangalore District Consumer Commission.  Hence, present complaint is not maintainable for want of jurisdiction.  But as per Section 34(2)(d) of Consumer Protection Act 2019 “A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction, the complainant resides”.  The Ex.C8 clearly discloses that the complainant is residing within the territorial jurisdiction of this Commission.  Hence, this Commission has jurisdiction to try the complaint.

3.       The 3^rd ground of objection is relating to jurisdiction of subject matter i.e. Education Institutions in the matter of admission, fees, etc. are not within the purview of Consumer Protection Act.  To support this objection, the OP relied on the following decisions:

1. Manu Solank & Others Vs. Vinayaka Mission University, NCDRC in Consumer Complaint No.261/2017, order dated:20.01.2020.  (This case is relating to approval of the course)

2. Maharshi Dayananda University Vs. Surjeeth Kaur 2010(ii) Sec.159. (The facts of the said case are not applicable to this complaint.  In the said case, the complainant had challenged the University Exam Board and prayer was to confer degree of Bed)

3. Anupama College of Engineering Vs. Gulshan Kumar, dated:30.10.2017.  (In this case after getting admission in the Institute and depositing the fees, withdrawn from the Institution within one week i.e. prior to the last date of admission and sought for refund of the fees)

The above rulings are not applicable to the present complaint as the facts and circumstances of the present case are different from the above rulings.  

8.       In the present case the complainant seeking only refund of the JEE coaching fees, hostel and mess fees and not seeking any admission fees paid to the Institution and the complainant counsel submitted that the Education Institutions would come within the Consumer Protection Act and also relied on the following decisions:

In Buddhist Mission Dental College and Hospital V/s Bhupesh Khurana & Others (S.C. in the Civil Appeal No.1135/2001)

In P.Sreenivasulu Vs. P.J.Alexjander (Civil Appeal Nos. 7003-7004 of 2015), wherein the Hon’ble Supreme Court held that “Imparting of education by an educational institution for consideration falls within the ambit of ‘service’ as defined in the Consumer Protection Act.  Fees are paid for services to be rendered by way of imparting education by educational intuitions.  If there is no rendering of service, question of payment of fee would not arise.  The complainants had hired the services of the respondent for consideration so they are consumers as defined in Consumer Protection Act.   Even till today, this decision is not overruled.  Hence, complainant is a Consumer and this Commission has jurisdiction to entertain this complaint.  Therefore, we hold that the complaint filed by the complainant before this Commission is maintainable.

9.       The admitted facts between the parties are:

The complainant had enrolled in OP’s Institution for II PUC (PCMC) course and also for JEE Special coaching for the academic year 2020-21.  The complainant had paid the following fees in advance towards JEE special coaching;

1. JEE Special Coaching Fees:     Rs.40,000-00
2. Hostel Maintenance Fees    :      Rs.50,000-00
3. Mess bill                            :      Rs.40,000-00
4. Other fees                          :      Rs.1,10,000-00

Totally an amount of Rs.2,40,000/- (Rs. Two Lakh Forty Thousand only) paid.  Due to the sudden spread of pandemic Covid-19 in the year 2020, all over India, Lock-down has been declared by the National Administration and all the Educational Intuitions are shut-down.  Later, virtual classes are introduced and complainant attended some virtual classes.  But complainant has not satisfied with the quality of virtual classes conducted and decided to discontinue from the classes. Later, intimated to the OP regarding discontinuation from the coaching classes and hostel and mess and requested to refund the fees pertaining to JEE coaching classes, Mess and Hostel fees. 

10.     The main dispute between the parties is, in spite of repeated requests made by the complainant, the OP not responded nor refunded the fees for discontinued period.  As admitted by the OP and as per Ex.C1, C2 and C3, the OP collected Rs.2,40,000/- as coaching fees, hostel maintenance fees in advance for one year.   The complainant utilized the services of the OP only for 3 ½ - 4 months.  This fact is also admitted by the OP.  But the OP contended that, at the time of admission to the Intuitions, the complainant is given undertaking that “Complainant is not entitled to seek refund of the fees and other expenses from the Intuitions”.  Hence, question of returning of the fees by the OP does not arise and the complainant is not entitled to seek refund of the fees and other expenses from the OP.  For this contention, the counsel for complainant submitted that collection of fees in advance and non refund of coaching fees for unutilized period/discontinued period amounts to unfair trade practice by the OP.  To support his submission, he relied on the following rulings:

In Nipun Nagar V. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC), wherein the Honb’le National Commission has 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.  Even the U.G.C. had issued public notice directing all the institutions to refund the money of the students for the period they have not attended the college/institutions.

In Briallinat Tutorials Pvt Ltd. Vs. Ashwanit Verma21010 (4) CPJ 396, the Hon’ble National Commission held that charging fees in advance beyond the current semester/year would certainly amount to unfair trade practice and the same cannot be countenanced.

In Pioneer Urban Land and Infrastructure Ltd., V/s Govindan Raghavan, Civil Appeal No.12238 of 2018 decided on 02.04.2019, the Hon’ble Apex Court has held that “incorporation of one-sided clauses in a builder-buyer agreement constitutes an unfair trade practice as per C.P. Act, 1986.

In State Commission (UT Chandigarh) In Appeal No.109/2019, FITJEE Ltd., V/s Ms.Shinjini Tewari, has made serious observation on unfair trade practice by educational institutions as “The appellant cannot be allowed to be on an advantageous position keeping in mind the interest of poor consumer.  It (appellant – Institute) cannot gulp whole of the fee paid, being the hard earned money.  When a student or his/her parents signs the admission form, they have no bargaining power to negotiate, or refuse to sign any particular clause in the admission form.    Hence, such clauses should not be held against the student.

11.     The principles involved in the above rulings squirrely applicable to the present case on hand and considering the facts and circumstances of the case, the situation prevailed during the time of 2020-21 and spreading of pandemic COVID-19, it is just and proper to direct the OP to refund the fees collected in advance. 

12.     As submitted by the complainant, the complainant utilized the hostel and Mess services from October-2020 to January 2021 for the period of 04 months.  But OP collected the fees for one year.  Hence, OP is liable to refund 70% of the total fees collected as per following table:

13.     The complainant is compelled to approach this Commission due to unfair trade practice on the part of OP.  Hence, the complainant is entitled for Rs.20,000/- as compensation for mental agony and Rs.10,000 as litigation expenses.   Further, the OP is liable to pay Rs.10,000/- as punitive damages for collecting fees in advance and undertaking taken by the OP regarding not to seek refund of fees and other expenses by the complainant.  Accordingly, we pass the following:-  

:O R D E R:

The complaint is allowed in part.

The OP is directed to pay Rs.98,000/- with interest @ 8% Per Annum from the date of complaint i.e. 11/03/2022 to till realization.

The OP is further directed to pay Rs.20,000/- as compensation and Rs.10,000/- as punitive damages to the complainant.

The OP is further directed to pay Rs.10,000/- as litigation expenses to the complainant.

It is further directed the OP to comply the above order within 45 days from the date of receipt/knowledge of the order.   

Furnish the copy of order to both parties at free of costs.