State Consumer Disputes Redressal Commission
W.C.L.College Limited vs Tishnivi Ekanath Jibhlkate on 21 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/09/450 (Arisen out of Order Dated 26/03/2009 in Case No. CC/08/412 of District State Commission) 1. W.C.L.COLLEGE LIMITED PUNE ...........Appellant(s) Versus 1. TISHNIVI EKANATH JIBHLKATE WARDHA ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MR. S B SAWARKAR MEMBER For the Appellant: For the Respondent: Dated : 21 Mar 2017 Final Order / Judgement (Delivered on 21/03/2017) Per Mr. S.B. Sawarkar, Hon'ble Member.
1. The instant appeal is filed against the order of the District Forum, Nagpur passed in complaint case No. 421/2008 dated 26/03/2009 granting partly the complaint and directing the opposite party (in short O.P.) Nos. 1&2 to return the education fee of Rs.1,00,000/- deposited by the complainant by deducting the education fee of one month and remaining amount with interest at the rate of 9% p.a. The interest be paid from the date of the application made by the complainant to cancel the admission i.e. 24/11/2007 till final payment. The Forum further directed the O.P.Nos. 1&2 to pay to the complainant a cost of Rs. 3,000/- for complaint and to comply the order in the span of 30 days from the date of the order.
2. The complainant filed a complaint that she took admission by appearing for entrance test of the O.P. No. 1 through O.P.No. 2 and deposited Rs. 1,00,000/- as part fee from the total fee of the course of Rs. 1,61,688/- on various dates from 15/10/2007 to 19/10/2007.
She joined the course on 17/09/2007. However, after attending the classes for one week, she started feeling weak and developed temperature. She got herself examined when she was found to have a very less percentage of haemoglobin and was advised to stay with her parent. Hence, her father filed an application with the O.P.No. 1 to cancel her admission and return the deposited amount of Rs. 1,00,000/- However, inspite of repeated requests the fee amount was not returned as it was not possible to her to the complete the course because of her ill health. Hence, she filed a complaint with the Forum with a request to hold her to be a consumer and the O.P. has committed deficiency of service. Further direct the O.P. to refund the deposited fee of Rs. 1,00,000/- with interest at the rate of 18% p.a. from 24/11/2007 till final realization jointly or severally from the O.P. Also direct the O.P. to pay the damages by way of compensation of Rs. 5,000/- and Rs. 5,000/- towards litigation.
3. On notice, the O.P.No. 1 & 2 appeared before the Forum and countered the complaint stating that the complainant does not fit in the ambit of the definition of the Consumer in Consumer Protection Act, 1986. Also the O.Ps. have not committed any unfair trade practice or rendered any deficiency in the service. The complainant took the admission in Sept. 2007 and stopped coming to the college because of ill health in Oct. 2007. Her father filed application on 24/11/2007 to return the fee amount. The complainant had signed on the code of conduct and regulation of the admission by understanding and admitting the conditions on 14/09/2007. The condition No. 9 stipulated that in the event student leaves the college without notice the fee deposited shall not be returned. The complainant did not give any notice. Hence, she has no right to claim the refund of it. Also there is no deficiency in service on the part of the O.Ps. Hence, the complaint may be dismissed.
4. The learned Forum heard both the parties and held that there are many judgments which say that if the student wants to cancel the admission he can do so and the college is bound to return the deposited fee by deducting the fee for the education period for which the student was in the college. Also the O.P. has not submitted any evidence that the place which was rendered vacant by the complainant was not filled thereafter. Therefore, the O.P. is bound to return the fee deposited by the complainant. Non return of fee is therefore deficiency in service and unfair trade practice. Thus holding the learned Forum passed the order supra.
5. Aggrieved against the order, the original O.P. Nos. 1&2 filed the appeal & hence are called as appellants. Advocate Somani appeared on behalf of the appellants and filed written notes of argument and requested to treat it as his oral argument. Advocate Shri Bhoyar appeared on behalf of the original complainant now respondent and filed written notes of argument. On the day of hearing the respondent was absent. Hence, we closed the appeal for judgment.
6. The appellants raised the same grounds in the appeal stating that the respondent had stopped coming to the college and had signed on the code of conduct and regulation were a specific condition of non refunding of the fee is mentioned. There is no deficiency in service and unfair trade practice also. The learned Forum ought to have seen that the complaint does not satisfy the definition of the complaint enumerated in section 2 (C) of the Act. Also the respondent does not fit in the definition of Consumer as per section 2 (i) (d) of Consumer Protection Act. The learned Forum should have seen that the appellants have never prevented the respondent from attending the classes. Also there is no whisper about the deficiency in service in the order passed by the learned Forum still the learned Forum committed an error to grant interest at the rate of 9% from the 24/11/2007 till actual realization. However, he relied on the judgment of Tamilnadu State Commission passed in Ganga Higher Secondary School Vs. C. Nittya Published at IV (2007) CPJ 409. Wherein in the issue of education fee refund complainant studied in school for 19 days and stopped voluntarily. Refund of 1/3 of amount paid by the complainant plus cost awarded by the Forum. The order upheld in the appeal.
7. The advocate for the respondent submitted that the respondent had to cancel the admission because of medical reason for which she submitted ample evidence. The appellant has never shown the evidence that the vacancy so created went without being filled . The college does not provide the degree which is affiliated to any University and the admission is only on commercial basis. Therefore, the Forum rightly appreciated the fact and holding that there was no financial loss or a loss of seat to the appellant passed the correct order which needs to be confirmed as there exists & service provider and consumer relationship between the management of the college and the student.
8. We considered the contentions of both the parties. We find that the respondent has only raised the grounds that because of her ill health she did not want to pursue further course. Hence, she withdrew herself from the course and her father made a request to refund the fee. It further comes to the notice that she also singed the code of conduct and regulation of the college where a specific condition is enumerated that no fee shall be returned. It shows that the respondent signed on the conditions and accepted them after understanding them.
9. In the present case, the respondent requested to cancel her admission and return her fee when she herself had stopped going to the college. However, in view of the judgment cited by the appellant and the view taken by the Tamil Nadu State Commission in above referred case of Ganga Higher Secondary School Vs Nittya , IV (2007) CPJ 409, we hold that though she is not liable to get back her entire deposited fee. She certainly deserves to get 1/3 of the fee deposited as the respondent had to cancel the admission in view of her ill health. In view of the reasons recorded above we decide to partly allow the appeal by modification of the order of the Forum to the extent returning the 1/3 of the deposited fee without any interest. Hence, the order below.
ORDER i. The appeal is partly allowed. ii. The order of the learned Forum is confirmed by following modification to be substituted in the order. a. In clause No. 2 the O.P. Nos. 1&2 to return of 1/3 of the deposited fee of Rs. 1,00,000/- i.e. Rs.33,000/-, without any interest. The rest of the clause No. 2 stands deleted. iii. Stay if any stands vacated. iv. Parties to bear their own cost. v. Copy of the order be given to both the parties, free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MR. S B SAWARKAR] MEMBER