CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.519/2008
Ms. AARTI MAHAJAN
D/o Dr. R.K. MAHAJAN,
C/o MAHAJAN HOSPITAL,
MELA SINGH CHOWK, MODEL TOWN,
DISTRICT- YAMUNA NAGAR, …..COMPLAINANT
Vs.
THE PRINCIPAL/ DIRECTOR
WIGAN & LEIGH COLLEGE,
1001-1005, ANSAL TOWER,
38, NEHRU PLACE,
NEW DELHI- 110019. .…..RESPONDENT/ OP
Date of Institution-24/07/2008
Date of Order- 28/06/2022
O R D E R
RASHMI BANSAL– Member
The present complaint is filed by complainant against OP for refund of the registration fee deposited by her at the time of admission in OP’s college, along with compensation and litigation cost alleging unfair trade practise and deficiency of services on the part of OP.
The case of the complainant is that she has applied for postgraduate programme in Hospital Management in OP’s college through OP’s advertisement in newspaper regarding the course. After clearing aptitude test and interview,
conducted by OP for admission in college, she received a letter dated 05.10.07, Ex.C1, from OP, confirming admission and asking complainant to register with the college by depositing a sum of ₹ 23,872/- towards process and registration fee, which was deposited by complainant against the receipt no. WLC/2006/6978 dated 05.10.07, Ex. C2. The complainant submits that thereafter she visited the college to get a first-hand idea of the college and the environment therein and came to know from students there that college academics is not competent enough for the desired course and that the faculty consists guest lecturers on ad-hoc bases. She also came to know that the said colleges is not recognized with AICTEC/GOI and hence does not abide with mandatory norms to run a college and further, the college does not provide accommodation facilities to female students, therefore, she dropped the idea of joining respondent college and asked them to refund the registration amount, but OP did not refund the fee. Complainant filed present complaint for refund of the registration fee after serving OP with legal notice dated 17.03.2008 and 22.02. 2008, Ex. C5, under speed post receipt, Ex. C6, duly replied by OP, Ex. C7. Citing various judgments, complainant states that educational institution, including the OP, are service provider against consideration and therefore, covered under the provisions of the Consumer Protection Act, 1986. She further states that because of deficiency in service and unfair trade practice on the part of OP, she suffered financial loss, mental agony and harassment at the hands of OP. Complainant has placed on record a publication of an order of Hon’ble State Commission in The Economic Times dated 08.12.2017, Ex. C3, wherein OP was directed to refund 20,000 to a candidate and a public notification Adv. No. AICTE/ Legal/04 (01)/07, issued by All India Council for Technical Education, Ex. C4, published in Hindustan Times on 19.04.2007 for refund of the fee after deducting 1000/- as process fee.
The OP filed his reply, evidence by way of affidavit and written arguments through power of attorney dated 10.2. 2011, Ex. RW1/1, submitting that it is a company engaged in the business of imparting education and having its campuses all over India. OP submits that the present complaint is not maintainable and is liable to be dismissed being devoid of merits. OP states that complainant is misleading the court since she was very much having knowledge of all the facts as alleged by her before taking admission in OP’s college. OP submits that complainant had taken admission in “Post Graduate Programme in Business Economics” and not in the Hospital Management, and the same is explicit by letter, dated 5.10.2007, Ex. C1, issued by OP to complainant, wherein name of the course was mentioned, the receipt dated 05.09.2007, Ex. C2, showing fee paid by complainant herself for admission in post graduate programme in ‘Business Economics’ and also the application form, Ex. RW1/3, where complainant tick marked against the course opted as Business economics- Human resource. OP further submits that complainant was also aware that the courses of OP are not recognised by AICTE/AIU/GOI before taking admission as it was clearly mentioned in advertisement, Ex. RW1/2, published into newspaper and admittedly, through which complainant approached OP’s college and in the application form, dated 05.10.2007, Ex. RW1/3, filled by complainant herself, wherein it is specifically mentioned that these qualifications are not recognized by AICTE/AIU/Govt of India, and below which complainant had put her signature, under ‘declaration’ that she understood and agreed to the conditions set out there. OP states that the fee structure was provided to complainant with letter dated 05.07.2007, Ex. C2, before complainant deposited her fee, wherein it was categorically mentioned that fee once paid is not refundable under any circumstances. The clause 9 of the application form, Ex. RW1/3, dated 05.07.2007, also provided that “no fees, including registration and tuition fee will be refunded for any reason whatsoever…”.
OP submits that in case a student joins a particular course and unilaterally after withdraws there from on its own volition then the institute cannot be held liable for the same since institute has to continue to incur fixed expenses like lease rent, administrative expenses, salaries of faculty, staff, electricity expenses, overheads etc, which do not change in case one particular student unilaterally withdraws from the course. OP has filed judgments in support of his case showing that consumer commission has no jurisdiction to direct for refund of fee to the student withdrawing from the course after taking admission.
Complainant filed her rejoinder to the reply filed by OP, reiterating her version made in complaint.
We have carefully examined the documents placed on record by both the parties and heard the arguments. Perusal of the record shows that:
- Ex.-C1, Ex.-C2, filed by complainant and Ex. RW1/3, filed by OP, establishes that complainant has taken admission in Business Economics- Human resource, and not in Hospital Management;
- Ex. C2, offer letter from OP, and clause 9 of Ex. RW1/3, mentioning that fee is non- refundable, establishes that complainant was having knowledge about terms and conditions with respect to the payment of fee before making payment for the same and paid the same with complete awareness;
- Ex. RW1/2, the advertisement for admission published in newspaper, based on which complainant admittedly approached OP and the application form, Ex. RW1/3, establishes that the status about the recognition of courses qualifications by AICTE/ IAU/ GOI, was in the public domain and complainant was having knowledge of the same, therefore, the contention of the complainant is not holding any force that she came to know about this fact only after taking admission;
- There is also nothing on record to show that OP was under obligation or has promised complainant to provide accommodation for women or complainant has asked for any request with OP. The OP cannot be held liable for anything of which he has not promised to provide.
- Complainant is also failed to place on record any document to establish that college academics are not competent or college is having ad hoc – faculties.
- Even in her rejoinder, complainant did not address the objections raised by OP towards the complainant’s grievances as discussed above but simply reiterated the version made a complaint.
- This is further surprises us that the complainant though relying upon the legal notice dated 17.03.2008, sent by her to OP but did not place the same on record. Another legal notice dated 22.02.2008, Ex. C5, sent by complainant to OP, does not mention any of the grievances as raised by her in complaint and contains entirely different allegation for seeking refund of the fee, which is non– commencement of the course for long time, which resulted wastage of almost one year of complainant. This is further surprises us even more that OP, though, has responded to the above said legal notice (Ex. C7) explaining the delayed start of the course but did not take this objection in his reply or evidence.
- Also, this is the admitted case of complainant that after submission of the fee, she heard from students of the college about the above said things based on which she decided to withdraw her admission.
This is settled principle of law that the burden of proving deficiency in services is upon the person who alleges it.
Hon'ble Supreme Court of India in Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr.) without 4 (2000) 1 SCC 66, has held that “The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. ………….” Followed in SGS India Limited V/S Dolphin International Limited” Civil appeal No. 5759/2009 decided on 06/10/2021, wherein Hon'ble Supreme Court of India held that “para 19 – “The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.”
To establish her case, the complainant, at first place is required to show that OP was required to perform some act in pursuance of the contract entered between them and at second place to show that there is fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of such performance by OP. Complainant is silent about any such deficiency committed by OP and none of the documents of the complainant could show wilful fault, imperfection, shortcoming or inadequacy in the service of the OP. Moreover, the documents of the complainant are found to be self-contradictory.
In law, the burden of proof would shift on the OP only after the complainant had discharged her Initial burden in establishing the factum of deficiency in service. Since the complainant failed to discharge the onus of proving deficiency in service, the present complaint is dismissed.
The file be consigned to record room after providing the copy of the order to both the parties free of cost.
The consumer complaint could not be decided within statutory period due to heavy pendency of court cases.
The order be uploaded on website www.confonet.nic.in.
The order contains 7 pages and bears my signature on each page.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
