State Consumer Disputes Redressal Commission
Camellia Institute Of Aviation vs Sri Soumya Banerjee on 4 May, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 FA/483/2011 (Arising out of Case no. CC/377/2010 of District Forum Kolkata, Unit-II) DATE OF FILING: 24.11.2011 DATE OF FINAL ORDER : 04.05.2012 APPELLANTS : 1. Camellia Institute of Aviation, Digberia, Badu Road, Madhyamgram, Kolkata-700 0123. (Previoualy at- 10, G.N. Block, Sector-v, Salt Lake City, Kolkata-700 091) and City Office-32A, C.R. Avenue, Trust House, 7th Floor, Kolkata-700 012. 2. Multiple Manpower Development Private Limited, 13, Dum Dum Road, Kolkata-700 074 and City Office at-32A, C.R. Avenue, Trust House, 7th Floor, Kolkata-700 012. RESPONDENT : Sri. Soumya Banerjee, S/o Debashis Banerjee, 53/A/1D/1A, Chowalpatty Road, Kolkata-700 010. BEFORE HONBLE MEMBER : Smt. Silpi Majumder. HONBLE MEMBER : Sri Debasis Bhattacharya. FOR THE APPELLANTS : Mr. A.K. Ray, Advocate. FOR THE RESPONDENT: IN PERSON. Silpi Majumder, Member, This appeal is directed by the Appellant-OP-1 against the judgment passed by the Ld. Forum, Kolkata, Unit-II, on 02.11.2010, in the case no-CC/377/2010, whereby the Ld. Forum has allowed the complaint in part on contest. The OPs were directed to pay jointly and severally a sum of Rs.2,00,000/- to the Complainant within 30 days from the date of communication of the judgment as compensation for deceptive and unfair trade practice in respect of the advertisement dated 19.01.2007. The brief fact of the case of the Complainant is that being aalured by an advertisement given by the Camellia Institute of Aviation, published in the Telegraph on 19.01.2007, in respect of admission of students for ground training classes to qualify for Students Pilot Licence (SPL), Private Pilot Licence (PPL) and Commercial Pilot Licence (CPL) courses, to be followed by flying training, the Complainant got admitted to the said Institute for SPL/PPL/CPL by depositing a sum of Rs.66,000/- towards course fees. The Complainant alleged that the Institute did not provide any brochure and further allegation of the Complainant is that the Institute misled the students as the faculty was not approved by the DGCA on the date of admission and the Institute had no infrastructure, so the Complainant was compelled to leave the Institute. At the intervention of Captain R.L. Biala, SPL examination was held, but the Institute could not provide ground training for PPL/CPL and flight training as per advertisement. Though it was the duty of the said Institute to issue the SPL licence, but the OP has failed to provide the same. Thereafter the Complainant had to leave the Institute and went for study in CPL course in USA. The father of the Complainant claimed refund of Rs.66,000/- as deposited towards course fee at the time of admission by submitting a letter dated 10.07.2008, but the Institute did not bother to reply the said letter. In July, 2010 the Complainant contacted the Director of the OP-1 over phone, who told the Complainant that as the Complainant accepted the terms and conditions by putting his signature, the fee is non-refundable. Then the Complainant moved before the Consumer affairs Department, who tried for mediation and called the parties twice, but the OP did not turn up. The Complainant has stated that as he lost a huge amount of money and time and suffered mental agony and harassment, he has prayed for refund of Rs.66,000/- along with compensation of Rs.5,00,000/- Being aggrieved against the abovementioned judgment the Appellants-OPs have preferred the present appeal before this Commission contending that the Ld. Forum has erred in holding that Camellia Institute of aviation announced Pilot training programme without mentioning that it would only prepare the candidate for basic examination and deliberately and unscrupulously represented that it had the approval for preparing the students for PPL and CPL, but the Ld. Forum has failed to appreciate that it was a transitory arrangement on mutually agreed Memo of Understanding. The Ld. Forum has erred in holding that CIA has indulged malpractice, but the actual fact is that the CIA did not announce Pilot Training Programme, which has two facets-i) 350 hours of ground training and ii) 200 hours actual flying in any aircraft in different steps like dual flying, solo flying, night flying, cross country flying, instrument flying as prescribed in the Civil Aviation Requirements. Ground training is a part of flying training schedule. In the advertisement the CIA only announced ground training classes to qualify for SPL, PPL and CPL and that too at Behala aerodrome where the MMDPL undertook flying training activities. It has been mentioned in the grounds of memorandum of appeal that the Forum has erred in holding that in collusion with other the CIA and MMDPL have mis-presented and misled the unwary consumers of young age to take money for a purpose of which they could not achieve. But the fact is that the CIA is a sister organization of MMDPL and MOU was executed legally. All the successful candidates/students have achieved the purpose. For the failure of the Complainant, the Appellants cannot be blamed in any manner whatsoever. More than 30 students have been able to achieve their goal following the same procedure and arrangements. The Ld. Forum has also failed to appreciate that the OPs never indulged unfair trade practice which caused unlawful loss and injury to the Complainant and through such practice the OPs have never gained unlawful profit. The actual fact is that for smooth running of the Flying Training Institute and to groom the aspirant students to go for flying, the transitory arrangement was made. Moreover, more than 30 students have been benefited following the same path and the list of which was submitted before the Ld. Forum, but the Ld. Forum did not consider the same. On the basis of single case of failure the Ld. Forum has neglected the Principle of Natural Justice and as such the judgment is perverse, biased. The Appellants have mentioned that the Ld. Forum has erred in the judgment to the extent that the advertisement given by the Appellant-1-OP-1 is deceptive in nature and had mis-presented and misled the unwary consumers of young age. The Appellant-1 did not adopt any unfair method or unfair or deceptive practice as defined u/s 2(1) (r) of the Consumer Protection Act, 1986 nor they have mis-represented and misled the Complainant-Respondent. The commitments made in the advertisement were fulfilled to the students who responded and became eligible phase-wise. The Complainant could not cross the hurdle and failed miserably in the SPL examination for which he has failed to obtain further service from the Appellant-1 and this is not the Appellants fault and the same was happened due to laches on the part of the Complainant. The Ld. Forum has erroneously held that at the time of giving advertisement CIA got no approval, but the fact is that the CIA advertised for ground training as a coaching centre and such coaching centre does not require any approval. Nowhere in the advertisement it has been stated that the ground training classes for PPL and CPL will be conducted at CIA rather it has been stated therein that such training will be provided at Behala Aerodrome wherein the approved Flying Training Institute is situated. Virtually to pay due respect to the transitory arrangement in the interest of the students the CIA published the admission notice for self and on behalf of MMDPL in the daily newspaper. The Appellants did not adopt any unfair trade practice as the advertisement, which issued, was within the knowledge of DGCA and the competent authority DGCA granted approval of Flying Training Institute on 22.06.2007 whereas the advertisement was published on 19.01.2007. If it is an unfair trade practice, the DGCA being the competent authority should have take penal action, but on the contrary approval was given. According to the Appellants the judgment passed by the Ld. Forum being erroneous is liable to be set aside and prayer has been made by the Appellant for allowing the present appeal. We have carefully perused the record, several documents and brief notes of argument filed by the parties. It is seen by us that in the instant case there are some admitted facts- 1.
The CIA published the advertisement in question in the leading daily newspaper for admission,
2. The Complainant got admission in CIA being attracted by the said advertisement,
3. The Complainant paid a sum of Rs.66,000/- for SPL, PPL and CPL courses as course fees,
4. After the examination of SPL the Complainant had to leave CIA and went USA for study in Commercial Pilot Course,
5. The Complainant prayed for refund of course fee as paid by him , but CIA did not refund the same and told that the fee is not refundable,
6. On the date of publication of the advertisement, payment of course fees, date of admission in SPL, PPL and CPL courses and commencement of the classes as advertised or actually the date of commencement of the classes the said Institution i.e. Camellia Institute of Aviation got no approval from DGCA,
7. The mark sheet of the Complainant for SPL examination has come with the endorsement both PASS and FAIL,
8. The result was published or given by MMDPL,
9. The classes were to be started on and from 12.02.2007,
10. The same was started in the month of May, 2007, for want of competent faculty,
11. The said Institute, Camellia Institute of Aviation could not start their classes as per commitment given in the advertisement in question.
Now let us see what was the context of the advertisement given by Camellia Institute of Aviation in the Newspaper, The Telegraph, Friday, January, 19, 2007 (Annexure-A/5):-
Admission Notification for Ground Training Classes Camellia Institue of Aviation, a State-of-the-art total Aviation Institute in all dimensions proudly announces to start Ground Training classes to qualify for Students Pilot License (SPL), Private Pilot License (PPL) and Commercial Pilot License (CPL) courses. Interested candidates (Boys and Girls) having qualification 10+2 (Physics, Mathematics with 50% marks) are requested to apply. The application form with brochure costing Rs.1000/- is available at our Corporate Office. Flying training will be at Behala Aerodrome with latest CESSNA 172 SP aircraft. There will be new CESSNA 172 S NAV III glass cockpit aircraft, twin engine P68C aircraft and modern aircraft simulator compatible with CESSNA 172, P68C, C90 aircrafts. Scope for instrument reading, nightflying, Navigational and route flying and also training scope in AIRBUS 319/320/321 Tunisia Airbus Training Centre.
Classes will start from 12th February, 2007, Limited seats, Apply immediately.
Camellia Institute of Aviation It has been stated by the Appellants in the grounds of memorandum of appeal that on the date of publication of the abovementioned advertisement CIA though had no approval and without taking approval CIA can publish the advertisement in the said fashion and manner because CIA only advertised for ground training as a coaching centre and such coaching centre does not require any approval. The Appellants have further stated that nowhere in the said advertisement it is stated that the ground training classes for PPl and CPL will be conducted at CIA rather it has been stated therein that such training will be provided at Behala Aerodrome wherein the approved Flying Training Institute is situated. In this respect we are to say that without getting it approved by the appropriate authority CIA cannot publish any advertisement in such manner and fashion. As per the said advertisement nowhere it was mentioned that under whose guidance flying training classes will be provided. If CIA is not capable or liable to provide classes for Flying Training appointing capable and competent faculty, why CIA received the amount of Rs.66,000/- from the Complainant or on whose behalf the same was received and advertisement was given, in that respect the advertisement is silent. The general meaning of the advertisement is that CIA will provide ground training classes for SPL, PPL and CPL courses and Flying will be provided by CIA at Behala Aerodrome by competent faculty. Hence, the language of the said advertisement is not at all clear and there is some ambiguity as well as intention in respect of non-disclosure of material facts. Nowhere within the four corners of the said advertisement CIA has mentioned the name of MMDPL, but in the appeal the Appellants have taken the point that in the interest of the students CIA published the admission notice for self and on behalf of MMDPL in the daily newspaper. But materially CIA has intentionally did not mention the name of MMDPL as there was bar to publish any advertisement or recruiting any pupil pilots by MMDPL as per declaration of DGCA. In our opinion the intending students are entitled to know and should know the status of MMDPL and function of them in respect of providing training before depositing money for admission in the advertised courses. In this way the Appellants have infringed the rights of the consumers as guaranteed under Section 6 of the Consumer Protection Act, 1986 in respect of Right to be informed. Though CIA has stated that there was a MOU by and between CIA and MMDPL, the same has not been mentioned by CIA in the said advertisement. In our view where there is a MOU, why the advertisement was not given by CIA and MMDPL jointly, the answer is silent. Publishing an advertisement suppressing some material information can be termed as Misleading Advertisement as per Consumer Protection act, 1986, because a consumer who is paying consideration money for getting training through an Institution, he has every right to know pros and cons about the status and position of the said Institution as well as training matter and every advertisement should be transparent, in default the consumers will be misguided. Concealment of actual truth in the advertisement is a glaring example of unfair trade practice as per Section 2(1) (r) (vi) of the Consumer Protection Act, 1986. According to the Consumer Protection Act, 1986 unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including------(1)
The practice of making any statement, whether orally or in writing or by visible representation which-
(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services.
In the instant case we have noticed that through visible representation CIA published the misleading advertisement for the purpose of promoting its sale in an unethical and illegal manner as CIA was not an approved Institution at the time of publication of the advertisement. Nowhere it has been mentioned that it had applied for approval before the appropriate authority. In our opinion admittedly not only the Complainant but also numerous unknown intending students also were misguided by such misleading advertisement. Displaying such misleading advertisement for the purpose of promoting their business and sale CIA has misled a number of students, who are not before us, but as the general pupil pilots were misguided and victimized for a considerable period due to mis-deeds of CIA, the CIA and MMDPL shall pay a punitive damage to the SCWF, through the Director, Department of Consumer Affairs and Fair Business Practice, West Bengal. The CIA and MMDPL are held liable for adopting an unfair trade practice and we are inclined to direct Appellants not to allure anybody by displaying misleading advertisement anywhere. As in the grounds of memorandum of appeal it is stated that the said advertisement was given by CIA and on behalf of MMDPL, both are liable to pay punitive damage and compensation either jointly or severally.
Admittedly unfair trade practice signifies deficiency in service. By publishing such misleading advertisement in the newspaper CIA has allured the intending students/consumers in a very unethical manner as at that point of time CIA was not an approved Institution, so the certificate of CIA did not carry any weight or value at all and the same cannot be accepted in future. Therefore in our view only to grab money from the intending pupil pilots through an illegal manner CIA published the notice, which cannot be supported in the eye of law.
We have also noticed that the said advertisement also suffers from its illegality as well as unfair trade practice as in the advertisement it was stated that the classes will start from 12.02.2007, but actually the classes were started on 19.05.2007 and in this respect the Appellants have admitted that due to non-availability of suitable teachers the classes could not be started. For such delay the Appellants have stated that due to want of competent faculty, they were not in a position to start classes. In this respect we are of the view that before recruiting competent faculty, how CIA advertised that the classes will start on 12.02.2007. From such activity of CIA it is clear that after grabbing money from the pupil pilots, CIA started searching for competent faculty. After collecting money from the intending pupil pilots CIA kept itself for more than three months. The reason for such delay in starting the classes as shown by the Appellants cannot be accepted in the eye of law as before giving advertisement it was the duty of the CIA to be more cautious and careful in respect of future of the pupil pilots as after depositing money the said students sat idle for more than three months. The Appellants have no right to waste of valuable time of the intending students. The law of the land does not permit unjust enrichment of any service provider.
We have perused carefully the Civil Aviation Requirements Section 7, Flight Crew Standards Training and Licensing Series D, Part-1, Issue-1, dated 15.07.1999. From the said document we have noticed that there are several conditions for granting of approval to the Institute as well as for granting of initial NOC. It is seen by us from the said document that all rules, regulations procedure and instructions laid down by DGCA or Ministry of Civil Aviation shall be complied with by any Institute. As per para-3 of the above CAR, a Institute must have to apply to the DGCA, Government of India for NOC (No Objection Certificate) which is valid for one year. We have noticed that in view of paragraph no- 7.9 and 7.10 of the said CAR, which has barred all Institutes to recruit and advertise for recruitment of pupil pilots unless they obtain the same from the DGCA, (Director General of Civil Aviation) Government of India. The most ridiculous and unfair part of the activity of CIA in the instant case is that it never even applied for a NOC to DGCA, thus the question of final approval does not arise. MMDPL applied for NOC on 22.11.2006, but the same shows that it was not allowed advertising and indulging in any advertisement and recruiting pupil pilots until final approval is obtained from DGCA. Therefore it is crystal clear that CIA never applied for approval for flying training, which shows clearly that CIA has intentionally violated the Rules and Regulation as laid down by the DGCA even after knowing that MMDPL was barred from giving any advertisement or recruitment of pupil pilots till final approval. So the CIA has done such mis-deeds only for personal illegal gain. We have also noticed that for getting approval the Institute has to apply along with requisite fees. But in the instant case no such evidence was adduced by these Appellants that they paid requisite fees. In this way the CIA has done something violating the CAR as well as violated the Rights of the Consumers vigorously as it without applying for such approval advertised for recruiting of pupil pilots which clearly reflects its intention to deceive the consumers.
Though the CIA has claimed that there was MOU by and between the CIA and MMDPL, but neither the same was declared in the said advertisement nor the same was produced before the Complainant during his tenure as a student in CIA and CIA has failed to show the same to them. Though the Appellants have claimed that they were an approved Institution under the DGCA, Government of India, but the said approval was for Aircraft maintenance Engineers (AME) and not for professional Pilot Training courses.
Admittedly at the time of publication of the advertisement the MMDPL got no approval from DGCA and since SPL examination can only be conducted under a Chief Flight Instructor (CFI) of an approved Flying Training Institute, CIA made the Complainant waits till MMDPL got their approval. Later when MMDPL got their approval an examination was conducted by DGCA and the mark sheet was issued by MMDPL. Admittedly the mark sheet of the Complainant was issued by MMDPL and there is endorsement of both PASS and FAIL in the said mark sheet against the name of the present Respondent-Complainant. As per Rule 6 CIA was liable to provide the Student Pilot Licence to the Complainant inspite of failure because in case of passing in the required papers the Complainant was entitled to get the said Licence from CIA for the period of two months. In this respect we have perused the Annexure-7 that provided also that a trainee pilot may exercise the privileges of a Student Pilots Licence if he is granted a certificate to that effect by the Flight Instructor after such a trainee qualifies the technical examination and also satisfies the requirements of medical fitness provided for the issue of such a licence. Such certificate shall be valid for a period of two months or until the trainee obtains a Student Pilots Licence whichever is earlier. But admittedly the Complainant was not provided any such licence inspite of passing the technical examination and also satisfied the requirements of medical fitness. The Complainant after waiting for a period of one month was compelled to leave the said Institution. In this regard we are of the view that such action of Camellia institute of Aviation is an example of deficiency in service as for the abovementioned course (SPL) the CIA admittedly obtained requisite consideration money from the Complainant, but has failed to provide him the requisite licence as per Rule. As the CIA has intentionally violated the terms and conditions of the DGCA such action can be termed as deficiency in service in view of the Section 2 (1) (g) as per the Consumer Protection Act, 1986, which runs as follows-
(g) deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner or performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any deficiency in service.
The course which the Complainant has failed to avail of due to deficiency in service and palpable negligence of the Appellants, they have no authority to consume the said amount, deposited by the Complainant towards course fees. From the Annexure-11 (student Pilots Licence) it is evident that the Student Pilots licence shall be issued by a Flying Club/Government Flying Training School specifically authorized in this regard and subject to the conditions as laid down by the Director-General. The said Annexure has made it clear that as the CIA had no approval at that point of time by DGCA, the CIA could not issue SPL licence to the Complainant. But without disclosing the same the CIA had intentionally harassed the Complainant both financially and mentally. Not only that the Complainant had to face pecuniary trouble as well as due to such deficiency of CIA and MMDPL valuable time of the Complainant was exhausted.
Though the Complainant has prayed before the CIA for refund of the deposited amount of Rs.66,000/-, but till filing of the complaint no step was taken by the CIA in respect of refund of the said amount to the Complainant. In the paragraph no-18 of the written version filed by the OPs before the Ld. Forum that the course fee is not refundable as in the prescribed format the student and his/her guardian have declared that they will not claim refund of fees. In this respect we are to say that admittedly the Complainant paid a sum of Rs.23,000/- on 02.02.2007 and Rs.43,000/- on 05.06.2007 to the Camellia Institute of Aviation. On 04.05.2010 the Complainant by submitting a letter requested the CIA to refund the deposited amount of Rs.66,000/- paid by him towards course fees. The said letter was received by CIA putting its seal and signature on 04.05.2010. But till filing the complaint the Appellants did not show any gesture in respect of refund of the said amount. Though the Appellants have claimed and argued that the said fee is not refundable, but in this respect the Appellants have failed to adduce any single document in support of their contention. The contract form where the student and the guardian have given undertaking as claimed by the Appellants, the said contract form has not been produced before us by the Appellants nor the same was filed along with their evidence before the Ld. Forum. For the sake of argument if we hold that in the contract form the said clause was there that the student shall not claim for refund of the said course fee, then the Appellants are under obligation to prove by which law the said clause has been incorporated and whether the said clause was within the knowledge of the intending students or whether detail explanation/information was given to the students before concluded contract. The Appellants have failed to prove the same by adducing cogent documents. Moreover the Appellants cannot incorporate any arbitrary clause in the contract form or agreement of its own choice and fashion. There should be law in respect of such incorporation.
In the instant case admittedly the Appellants (CIA) received a sum of Rs.66,000/- but has failed to provide him SPL Licence as per Rule-6 and as the same was not provided the Complainant had to leave the said Institution and could not avail of the remaining courses (PPL and CPL) through the said Institution. Therefore as the Appellants did not provide any service to the Complainant in respect of PPL and CPL and have miserably failed to provide the SPL Licence inspite of taking money, such action and practice can be termed as deficiency in service as well as unfair trade practice. So in our opinion the Complainant is very much entitled to get refund of Rs.66,000/- from the Appellants.
The Complainant has alleged that though the Appellant received a sum of Rs.1000/- from the Complainant for brochure, Bu the Appellants did not provide the same. We have noticed that admittedly the Appellants have received a sum of Rs.1000/- towards brochure, but in this respect there is no denial from the end of the Appellants-OPs in respect of the specific allegation of the Complainant. Therefore we can draw the conclusion that the Appellants took the said amount for brochure by adopting unfair or deceptive trade practice. As per Consumer Protection Act such unfair trade practice should be penalized with punitive damage and the same action signifies deficiency in service.
The Ld. Forum has directed the present Appellants to pay a sum of Rs. 2,00,000/- in favour of the Complainant as compensation. In this respect we are not inclined to interfere in the said order. But in our opinion the Ld. Forum has erred in holding that there was no deficiency in service on the part of the Appellants-OPs though their action can be termed as unfair trade practice the same practice. Not only that, we have already discussed in the judgment that there was deficiency in service on the part of the Appellants.
Going by the foregoing discussion hence, it is ordered, that The Appellants-OPs shall pay a sum of Rs.1,00,000/- to the State Consumer Welfare Fund for adoption of unfair trade practice by putting misleading advertisement in the newspaper. The amount should be credited to SCWF, West Bengal, through the Director, Department of Consumer Affairs and Fair Business Practice, West Bengal for promotion and protection of the Rights of the Consumers guaranteed u/s 6 of the Consumer Protection Act, 1986 within the framework of relevant Rules of the Government.
The Appellants shall refund sum of Rs.66,000/- to the Complainant which was deposited towards course fees along with interest @8% p.a. from the date of claim by the Complainant on 04.05.2010 till payment of the entire amount. As due to deficiency in service and unfair trade practice as adopted by the Appellants the Complainant had to approach before the Ld. Forum by the complaint, in our opinion the Complainant is entitled to get litigation cost and thus the Appellants shall pay either jointly or severally litigation cost of Rs.10,000/- to the Complainant-Respondent. The Appellants shall issue corrective advertisement to neutralize the effect of misleading advertisement at their cost as they were responsible for issuing such misleading advertisement.
The Appellants shall pay the awarded amount of Rs.2,00,000/- as per the judgment of the Ld. Forum to the Complainant.
The Appellants are directed not to repeat such unfair trade practice in future.
The Appellants are directed to pay the abovementioned total amount to the Complainant within a period of 45 days from the date of passing this judgment; in default the aforementioned total amount shall carry penal interest @10% p.a. for the default period. The Appellants shall pay the total amount to the Complainant either jointly or severally.
The Appellants are also directed to pay the aforementioned sum of Rs.1,00,000/- to the SCWF within a period of 45 days from the date of passing this judgment, in default Rs.1,00,000/- shall carry interest @10% p.a. for the default period.
With the abovementioned observation the appeal is dismissed on contest with cost and the judgment passed by the Ld. Forum is modified to the above extent.
Sri Debasis Bhattacharya Silpi Majumder Member Member