CC No.807.2015

Filed on 23.04.2015

Disposed on.17.06.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 17^th DAY OF JUNE 2017

CONSUMER COMPLAINT NO.807/2015

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 Complaint was filed by the Complainant on 23.04.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay a sum of Rs.80,000/- together with interest at 24%, to pay compensation of Rs.50,000/- and other reliefs. 

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

In the Complaint, the Complainant alleges that the Complainant had admitted to Opposite Party Institution for a one year Fashion designing Course on 17^th June 2014.  At the time of admission, the Complainant paid a sum of Rs.80,000/-.  After the admission, the Complainant was regularly attended the class till 20^th November 2014.  Unfortunately, in the meanwhile Complainant was diagnosed that she was suffering from Acoustic Nerve Tumor and doctor advised for a surgery.  Immediately, the Complainant brought notice to the Opposite Party regarding her health issued through email correspondence and Opposite Party advised to the Complainant to attend the classes in the next batch after she hospitalization on that assurance the Complainant discontinued the course.  The Complainant had been hospitalized from 22^nd November 2014 to 8^th December 2014 and undergone two major surgeries to his head at St.Philomnan’s Hospital, Bangalore.  After medical treatment, the Complainant visited to Opposite Party institution on 16^th March 2015 to resume her class, however the Complainant shock and surprise that the Opposite Party was demeaned to pay further amount of Rs.35,000/-and 3^rd level and 4^th level Tax of Rs.5,000/-.  The Complainant had already paid entire course fees at the time of the admission and Opposite Party assured that the Complainant could resume to the next batch after underwent treatment. On several occasions, the Complainant personally demanded to Opposite Party to permit to attend the class as the Complainant paid huge amount towards course.  However, the Opposite Party have neither allowed the Complainant to attend the class nor return back the said amount.  On several occasions, the Complainant approached the Opposite Party for refund of the amount.  The Opposite Party managed to send back the Complainant by pleaded one or the other ground.  The Opposite Party ought to have refunded the said amount with interest.  When the Opposite Party fails to repay the amount which the Complainant paid, he got issued a Legal Notice dt.24.03.2015 calling upon the Opposite Party to refund the amount of Rs.80,000/- together with interest.  The said notice was served on the Opposite Party.  Despite the service of the Legal Notice failed to comply with the demand of the Complainant.  Hence, this complaint.

3. In response to the notice, the Opposite Party put their appearance through their Counsel and filed their version and pleaded that the complaint is not maintainable either in law or on facts.  The complaint is false and frivolous and denied that the Complainant admitted to Opposite Party institution for one year fashion designing course on 17^th June 2014.  At the time of admission, he paid fee sum of Rs.80,000/- by way of cash towards entire course fee for the four levels.  Which was acknowledged by the Opposite Party under receipt No.192 and admission No.187”. The Complainant is supposed to commence her course with June 2014 batch as her admission is made for June 2014 morning batch without any assigning reason she sought for July 2014 afternoon batch without charging any additional fee she has been admitted to July 2014 batch.   And the fees paid as per the document No.1 is Rs.78,652/- is consolidated receipt since the Complainant issued postdated cheque dt.18.07.2014 as such Receipt Voucher is issued for being receiving the cheque and details fee receipt is issued to the Complainant upon realization of the postdated cheque and also denied that the Complainant is regularly attending the class till 20^th November 2014.  Unfortunately, in the mean while he has suffering from Acoustic Nerve Tumor and doctor advice for a surgery.  Immediately, brought to the notice of the Opposite Party regarding her health issue through email correspondence and Opposite Party advised to him to attend the classes in the next batch after her hospitalization, on that assurance, she discontinued the course and Hospitalized from 22^nd November 2014 to 8^th December 2014 and undergone two major surgeries to her head at St.Philomanans Hospital, Bangalore.  The course the Complainant has joined is four level of fee is as per course accordingly she has paid as stated above and the course as four levels i.e., Level-1, Level-2, Level-3 and Level-4 and the Complainant has completed level-1 and she has undergone almost all entire course of Level-2.  The Complainant has not gone any medical treatment much less the second surgery.   The application for duly filled and signed by the Complainant accepting all the terms and conditions of the admission, once the Complainant is accepted by the terms and conditions she cannot go back her whole contract.   Without any notice or intimation she has discontinued from the course and during course period also the Complainant has no regards and she is used to behave with the coaching faculty and with the staff in an arrogant way and misbehavior candidate.  The Complainant has commenced her course and completed the Level-1 and Level-2 in the admission terms and conditions it is very clear once the course is commence the fee will not refunded under any circumstances such being the case she is not entitled to any refund further so that the Complainant before her discontinuation without any intimation or permission has discontinued the course in terms and conditions agreed continual absent for the class for a duration month or above will be considered as discontinued, further without any permission or approval the Complainant remain absent upto March 2015 as such she cannot claim any refund from the Opposite Party.  The Opposite Party without demanding any fee allowed to continue Level-2 which she has not done so and this Opposite Party sought for third and fourth level and she has not visited as claimed on several occasions on 16^th March 2015 when the Complainant without any permission or prior intimation attended the class of her choice, the management has called her and later on demanded the payment of fee for third and fourth level only which is self- explanatory.  She is left the institutions threatening with the dire consequences stating that she knows that how collect the fee back and threaten.  The Opposite Party after 16.03.2015 she has never visited nor given an any promises as alleged by the Complainant.  In the notice she clearly admitted that she is not interested to continue the course which clearly establishes that she wants to continue from the course on the other hand taking chance of claiming of the fee if possible by playing fraud.  At no point of time, the Opposite Party has not restricted or refused to attend any classes.    Hence, prays to dismiss the complaint.
4. The Complainant, Kum,Sudha filed her affidavit by way of evidence and closed her side.  The Opposite Party, Srividya P filed her affidavit.   Heard the arguments of both parties.

 5.     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):- Affirmative

POINT (2):-As per the final Order

REASONS

7. POINT NO.1:- It is the case of the Complainant that the Complainant had admitted to Opposite Party’s Institution for a one year Fashion Designing Course on 17^th June 2014 by paying a sum of Rs.80,000/-, which was acknowledged by the Opposite Party under receipt No.192 and admission No.187.  But this fact is denied by the Opposite Party in their version. It is on the burden of the Complainant, to establish the same, in order to establish the same, the Complainant in her sworn testimony, reiterated the same and produced the receipt Voucher.  By looking into this document, it is dt.17.06.2014 issued by the Opposite Party and it is in the name of the Complainant, it reveals that admission No.187 and receipt No.192 and this amount paid towards VFAIYDP-FDS.
8. It is further case of the Complainant, after the admission the Complainant was regularly attended the class till 20^th November 2014.  Unfortunately, in the meanwhile Complainant was diagnosed that she was suffering from Acoustic Nerve Tumor and doctor advised for a surgery.   Immediately, the Complainant brought notice to the Opposite Party regarding her health issued through email correspondence and Opposite Party advised to Complainant to attend the classes in the next batch after she hospitalization on that assurance the Complainant discontinued the course.  The Complainant had been hospitalized from 22^nd November 2014 to 8^th December 2014 and undergone two major surgeries to her head at St.Philomnan’s Hospital, Bangalore.  After medical treatment, the Complainant visited to Opposite Party Institution on 16^th March 2015 to resume her class, however the Opposite Party demanded to pay further amount of Rs.35,000/-and 3^rd level and 4^th level Tax of Rs.5,000/-.  The Complainant had already paid entire course fees at the time of the admission and Opposite Party assured that the Complainant could resume to the next batch after underwent treatment.   Even this fact also denied by the Opposite Party in their version, it is on the burden of the Complainant to establish the same.  In support of her contention, the Complainant in her sworn testimony, reiterated the same and produced Discharge Summary.  By looking into this document, this discharge Summary is issued by St.Philomenas Hospital, it is in the name of the Complainant and the Complainant had taken treatment in St.Philomenas Hospital from 22^nd November 2014 to 8^th December 2014 for left sided Acoustic Schwannoma and underwent surgery on 29.11.2014.  As per the advice of the Opposite Party Institution she send a mail communication and requested the Opposite Party that as per the advice of the doctor wants to take rest for one month and she will attend the course from March 2015 batch.  But the Opposite Party Institution have demanded a sum of Rs.35,000/- this is evident as seen from the letter addressed by the Opposite Party Institution to the Complainant on 16.03.2015 demanding the payment of Rs.35,000/- as readmission for Fashion Designing Course for the level 3 and level 4.   Even though the Complainant had paid entire amount for the course on 17.06.2014 itself.  Even this evidence also remains unchallenged.  Therefore, it is proper to accept the contention of the Complainant that the Complainant due to Acoustic Nerve Tumor she discontinued her course for Fashion Designing and requested underwent surgery for the same and after discharge when she requested to continue the course in the Month of March-2015 but the Opposite Party have demanded another sum of Rs.35,000/-, even though the Complainant had paid the entire amount.

9. It is further case of the Complainant, the Complainant on several occasions personally requested the Opposite Party to permit to attend the class as the Complainant paid huge amount towards course.  The Opposite Party did not allow the Complainant to attend the class nor return back the said amount.  Even though to substantiate this fact, the Complainant in her sworn testimony, reiterated same and produced the Legal Notice dt.24.03.2015.  This evidence of the Complainant also remains unchallenged.  Therefore, it is proper to accept the contention of the Complainant that the Complainant had requested the Opposite Party for attending the Course but the Opposite Party have fails to permit her to continue her course and also fails to refund the amount.  For that reason, she had issued Legal Notice dt.24.03.2015 which was served on the Opposite Party.  In the Legal Notice, the Complainant demanded the Opposite Party to refund a sum of Rs.80,000/- and compensation along with interest within 15 days.  Inspite of service of Legal Notice, the Opposite Party fails to comply with the demand made by the Complainant nor issued any reply. 
10. The defence of the Opposite Party is that the Complainant had joined the course of Level-4, as per the course, accordingly she has paid fee and the Complainant had completed level-1 and she has undergone almost all entire course of Level-2.  The Complainant had not gone any medical treatment much less the second surgery.  The application for duly filled and signed by the Complainant accepting all the terms and conditions of the admission, once the Complainant is accepted by the terms and conditions she cannot go back her whole contract.   Without any notice or intimation she has discontinued from the course and during course period also the Complainant has no regards and she is used to behave with the coaching faculty and with the staff in an arrogant way and misbehavior candidate.  In order to this defence, Srividya P, CEO of the Opposite Party, in her sworn testimony and produced receipt.  As seen from this receipt there are terms and conditions, which reveals that no refund or transfer of fee but for this Complainant has not attested her signature, this is issued by the Opposite Party Institution.  No doubt, as the defence taken by the Opposite Party, the Complainant completed her 1^st level, but not level 2.  From this evidence, it is not proper to accept the defence taken by the Opposite Party that the Complainant accepted the terms and conditions of the admission and as per terms and conditions no refund or transfer of fee and further there is no any evidence placed by the Opposite Party that the Complainant without any notice or intimation to discontinued the Course.  On the other hand, the Complainant placed evidence to show that she had discontinued the Course due to her ailment and it was intimated to the Opposite Party by sending mail, thereby it falsifies that it is not proper to accept the defence taken by the Opposite Party and except the interested version of Srividya P, absolutely there is no evidence to show that the Complainant himself behavior with the faculty members and staff of the Opposite Party.  In case, the Complainant had misbehaved with faculty members and staff of the Opposite Party Institution, the Opposite Party Institution ought to have issue notice against her but there is no such evidence placed by the Opposite Party, thereby it is not proper to accept the contention of the Complainant was misbehaved with faculty as well as staff of the Opposite Party Institution.  Absolutely, there is no evidence to believe in the defence taken by the Opposite Party that the Complainant threatening the Opposite Party Institution, in the event, the Opposite Party failed to refund the fee paid by the Complainant.  Therefore, it is not proper to accept the defence taken by the Opposite Party. 

11. The learned Counsel for the Opposite Party argued that the Complainant herself discontinued the Course after attending level 1 & 2, for that reason, it is treated as discontinuing her Course only on humanitarian consideration by giving concession to the Complainant, the Opposite Party have requested the Complainant to join Level 3^rd and 4^th by paying meager amount to Complainant is reluctant to pay the same and question of refund does not arise as the Institution is running  an self-financing Institution and it has to run only on the fee collected from the students.  The Complainant has willfully or without any prior intention discontinued Course, as such, the Opposite Party has to conclude that batch with the existing students as third and fourth level have been conducted by the Opposite Party.  In support of his argument relied upon unreported decision in W.P.No.3977/2009 passed by the Hon’ble High Court of Karnataka between R.Gowthami V/s The Regional Officer and others, unreported decision in W.P.No.13993/2012 between Shanmuga Arts Science and Technology Research Academy V/s The District Consumer Disputes Redressal Forum, Thanjavur, Tamilnadu and others, unreported decision in W.P.No.19215/2008 by the Hon’ble High Court of Judicature at Madras between Jane Sathya V/s Meenakshi Sundaram Engineering College and another and also referred the Order passed by the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No.1896/2008 M/s New India Assurance Company Limited and another V/s Ajit Kumar and order passed in Revision Petition No.3434/2012 between the  National Insurance Company Limited V/s Ajay Kumar Amichand Kheera.  On perusal of these above referred decisions, the law laid down in the said decisions are not applicable to the facts of the case.  Since in this case, the Complainant due to her ill-health discontinued her course and same was intimated to the Opposite Party Institution and on their promise after taking treatment that she had approached the Opposite Party Institution they fails to allow her to continue her course at level 3^rd and 4^th and also failed to refund the amount paid by the Complainant, thereby this clearly amounts to un trade practice adopted by the Opposite Party Institution.  Even in spite of demand and request made by the Complainant fails to refund the amount and also amounts to deficiency of service on the part of the Opposite Party.  Hence, this point is held in the Affirmative. 

12. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:-

ORDER

The Complaint is allowed holding that there is deficiency of service by the Opposite Party. 

The Opposite Party is directed to refund a sum of Rs.78,652/- and also directed to pay a sum of Rs.30,000/- as compensation for causing mental agony to the Complainant.

The Opposite Party is directed to pay a sum of Rs.5,000/- as cost within 30 days from the date of this order.

Failing which the aforesaid amount of Rs.78,652/- the Opposite Party is liable to pay interest at the rate of 12% p.a. on a sum of Rs.78,652/- from the date of order, till the date of payment. 

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 17^th day of June 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Kum.Sudha, who being Complainant has filed her affidavit.

 List of documents filed by the Complainant:

1. Copy of receipt dt.17.06.2014
2. Copy of the Email correspondence dt.12.12.2014
3. Copy of the Discharge Summary and other medical documents.
4. Copy of the Letter issued by Opposite Party dt.16.03.2014
5. Office copy of Legal Notice dt.24.03.2015.
6. Postal Acknowledgement. 

Witness examined on behalf of the Opposite Parties:

1. Srividya P, who being Opposite Party has filed her affidavit.

List of documents filed by the Opposite Party:

1. Citations

MEMBER                                                                             PRESIDENT