National Consumer Disputes Redressal
Fiitjee Ltd. vs Harish Soni on 8 October, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2054 OF 2013 (Against the Order dated 31/01/2013 in Appeal No. 591/2008 of the State Commission Punjab) 1. FIITJEE LTD. THROUGH ITS'S A.R SH ASHISH KR. AGGARWAL, KALU SARAI SARVPRIYA VIHAR, NEW DELHI - 110016 ...........Petitioner(s) Versus 1. HARISH SONI R/O BASANT NAGAR, SUKH SEW COOTRAGE NEAR PARK, MAJITHA ROAD, AMRITSAR PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON'BLE MR. JUSTICE V.K. JAIN, MEMBER HON'BLE DR. B.C. GUPTA, MEMBER For the Petitioner : MR. MUKESH M. GOEL For the Respondent : MR. VINOD K. SHUKLA Dated : 08 Oct 2015 ORDER DATED : 17.7.2015 PER DR. B.C. GUPTA, MEMBER This revision petition has been filed against the impugned order dated 31.01.2013, passed by the Punjab State Consumer Disputes Redressal Commission (hereinafter referred to as State Commission in FA no. 591/2008, FIIT JEE Ltd. vs. Harish Soni, vide which, while partly accepting the appeal, the order dated 05.05.2008, passed by the District Forum, Amritsar, partly allowing the consumer complaint no. 738/2007 dated 08.11.2007 filed by the present respondent, was modified.
2. The facts of the case are that the complainant/respondent Harish Soni filed the consumer complaint in question, against the petitioner, which are a coaching institute that prepares the students for getting admission in the Indian Institute of Technology (IIT) and other engineering entrance examinations. The complainant alleged that his daughter Hitu Soni passed ICSE examination of 10th standard in March 2006, securing 89% marks from the Sacred Heart High School, Amritsar. She took admission in the coaching centre at Amritsar, being run by the petitioners and paid an advance fee of ₹1,23,464/- on 15.04.2006 for getting admission in 'FIIT JEE Pinnacle' two years' integrated programme. She studied at the institute of the petitioner for one year, but being not satisfied by the education provided by them, decided to withdraw from the said institute. A registered AD notice dated 26.04.2007 was sent by the complainant for the refund of the remaining fees alongwith interest and compensation. On the refusal of the petitioners to refund the said amount, the consumer complaint in question was filed.
3. The complaint was resisted by the petitioners/OP by filing a written version before the District Forum in which they stated that as agreed between them and the complainant, the fee once paid was not refundable at all, neither it was adjustable for any other course. There was, therefore, no deficiency in service on the part of the OPs. The District Forum after taking into account the evidence of the parties partly allowed the complaint and directed the OP to refund an amount of ₹61,732/-, being 50% of the total amount of ₹1,23,464/- deposited by the complainant. The District Forum held that the principles of natural justice, equity and good conscience demand that half of the fees should be refunded, because the complainant never availed the services of the OPs for the full period of two years for which the fee was charged by them. Being aggrieved against the order of the District Forum, the petitioner/OP filed an appeal before the State Commission, which was partly accepted and the order of the District Forum was modified by directing that the petitioner/OP shall refund fees, excluding the service tax for the unutilised period, i.e., the second-year with interest @7.5% p.a. from the date of receipt till realisation. A sum of ₹10,000/- was also awarded to the complainant as litigation expenses. Being aggrieved against the order passed by the State Commission, the petitioner /OP is before us by way of the present revision petition.
4. At the time of hearing before us, the learned counsel for the petitioner/OP has stated that the daughter of the complainant had taken admission in a two-year integrated course for which the petitioner had charged fees for the entire course. In case, the daughter of the complainant left the course midstream, it was not obligatory for them to refund the fees for the remaining period of the course. It had already been made clear to the complainants at the time of taking the admission that the fee once deposited was not refundable. The learned counsel has drawn our attention to a number of orders passed by this Commission on this issue. He has referred to the following judgments:-
I. Brilliant Classes vs. Sh. Ashbel Sam [RP No. 270 of 2006 decided on 29.01.2010] II. T.V. Sundaram Iyengar & Sons Ltd. vs. Dr. Muthuswamy Duraiswamy & Anr. and other cases [RP No. 1916 of 2000 decided in April 2002] III. FIIT JEE Ltd. vs. Sajjan Kumar Gupta [RP No. 4476 of 2013 decided on 21.05.2014] IV. Globsyn Business School vs. Mayuri Ghosh [RP No. 4464 of 2012 decided on 31.05.2013] V. Mayank Tiwari vs. FIIT JEE Ltd. [RP No. 4335 of 2014 decided on 08.12.2014] VI. FIIT JEE Ltd. vs. S. Balavignesh [RP No. 2684 of 2014 decided on 09.01.2015] VII. The Director, Apeejay Institute of Technology vs. Prashant Bhat [RP No. 2269 of 2008 decided on 16.01.2015]
5. The learned counsel argued that in view of the judgments made by the National Commission in the above cases, the petitioners were not liable to refund any portion of the fee deposited by the complainant/respondent. The orders passed by the Consumer Fora below should, therefore, be set aside.
6. The learned counsel for the respondent, on the other hand, referred to the orders passed by the Hon'ble Supreme Court of India in "Islamic Academy of Education and Anr. vs. State of Karnataka & Ors." [AIR 2003 SC 3724] and the orders passed by this Commission in "FIIT JEE Ltd. vs. Dr. (Mrs.) Minathi Rath" [RP No. 3365/2006 and allied petitions decided on 14.11.2011], saying that the facts of the instant case were almost similar to the cases referred above. The orders passed by the Consumer Fora below are, therefore, in accordance with law and should be upheld.
7. We have examined he entire material on record and given a thoughtful consideration to the arguments advanced before us. The admitted facts of the case are that the daughter of the complainant took admission in a two-year integrated coaching programme run by the petitioner FIITJEE Ltd. and she attended the classes for a period of one year only. The consumer fora below have directed that half of the fee amount deposited, i.e., fee for second year should be refunded to the complainants. The basic issue that arises for our consideration is whether it is justified to allow refund of fees for the remaining part of the course or not?
8. The issue in question has been examined quite exhaustively by this Commission in the 5 revision petitions decided on 14.11.2011 by a bench headed by the then Hon'ble President. These cases are RP No. 3365/2006, FIIT JEE Ltd. vs. Dr. (Mrs.) Minathi Rath, RP No. 1805/2007, FIIT JEE Ltd. vs. B.B. Popli, RP No. 2660/2007, Brilliant Tutorials vs. Rahul Dass, RP No. 3496/2006, P.T. Education & Training Services Ltd. vs. Dr. Minathi Rath & Ors. and RP No. 3497/2006, Career Launcher India Ltd. vs. Dr. (Mrs.) Minathi Rath & Ors. In RP No. 3365/2006, the student paid an advance fees for 2 years and left after one year. It was held by this Commission that the coaching institute could not charge full advance fees for 2 years and could have charged prescribed fees only for one semester/year. The complainants were held entitled to get refund of the fees for the unattended second year of the course after deducting the non-refundable service tax.
9. The facts of the cases mentioned by the petitioners are different from the facts of the present case. In "Brilliant Classes vs. Sh. Ashbel Sam (supra)", the complainant had paid a sum of ₹21,000/- but withdrew after some time. The National Commission held that there was no cause for refund as the student had left midstream, although the District Forum and the State Commission had allowed part of the fee deposited as a refund. In "T.V. Sundaram Iyengar & Sons Ltd. vs. Dr. Muthuswamy Duraiswamy & Anr. (supra)", it was held by this Commission that the terms and conditions of a contract should be followed. In "FIIT JEE Ltd. vs. Sajjan Kumar Gupta (supra)", the refund of the fees was not held to be justified as the OP FIIT JEE Ltd. had charged only 10% of the tuition fee from the complainant. In "Globsyn Business School vs. Mayuri Ghosh (supra)", it was found that the complainant had paid a sum of ₹35,000/- as admission fee, whereas the total course fee was ₹5,35,000/-. In "Mayank Tiwari vs. FIIT JEE Ltd. (supra)", it was held that the subject of education did not come under the purview of the Consumer Protection Act. In "FIIT JEE Ltd. vs. S. Balavignesh (supra)", the refund of fees was not allowed but M/s. FIIT JEE was asked to give an affidavit that the seat left by him remained vacant throughout the remaining part of the course.
10. It would be seen from the above that the facts of the case cited by the petitioner are quite different from the facts of the case in hand. In the present case, the complainant has been made to pay fee for two years in the very beginning, but the student attended the classes for one year only. As stated already, quoting the case decided by this Commission in "FIIT JEE Ltd. vs. Dr. (Mrs.) Minathi Rath" [supra], fee could be charged for a period of one semester/year only. Stretching the argument further, if a student takes admission in a five-year course run by any institute, the said institute may ask him to pay the fee for all five years in advance and if he leaves the course after one year, it may refuse to refund the fees for the remaining 4 years, stating that the said fee was non-refundable. This act on the part of the Institute would be unconscionable. However, if an institute charges fee for one semester/year only and the student leave midstream, the fee for the remaining part of the semester/year may not be refunded, in case the seat remained vacant throughout that semester/year.
11. Based on the discussion above and respectfully following the judgment of this Commission in "FIIT JEE Ltd. vs. Dr. (Mrs.) Minathi Rath" [supra], I do not find any illegality, irregularity or jurisdictional error in the orders passed by the Consumer Fora below and hence I do not find any ground to interfere with these orders in the exercise of revisional jurisdiction. The revision petition is, therefore, ordered to be dismissed with no order as to costs.
(DR. B.C. GUPTA) MEMBER DATED : 17.7.2015 PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the Petitioner against the impugned order dated 31.01.2013 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, 'the State Commission') in Appeal No. 591 of 2008 - Fiitjee Ltd. Vs. Harish Soni by which, while allowing appeal partly, order of District Forum allowing complaint was modified.
2. Brief facts of the case are that complainant/respondent's daughter Hitu Soni passed ICSE Examination of 10th standard in March, 2006 securing 89% marks and for preparation for engineering entrance examination. Complainant deposited Rs.1,23,464/- on 15.4.2006 in OP/petitioner's Institute for joining two years integrated programme. It was further submitted that his daughter after studying for one year was not satisfied with the education provided by OP, so, he decided to withdraw his daughter and by letter dated 25.4.2007 asked OP to refund remaining fee along with interest and compensation, but fee was not refunded. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that OP Institute is imparting quality education to the students aspiring to take admission in various IITs of the country and since 1992 number of students getting admission in various IITs. It was further submitted that OP does not fill up vacancy created against any student who leaves the course midway. As per agreement, dispute if any, has to be referred to the Arbitrator. Declaration and consent was signed by complainant and his daughter, so, he is not entitled to any refund and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OP to refund Rs.61,732/-, i.e., 50% of the total deposited amount and was further directed to pay compensation of Rs.2,000/- and litigation expenses of Rs.1,000/-. Appeal filed by OP was partly allowed by learned State Commission vide impugned order and OP was allowed to deduct service tax for unutilized period and OP was further directed to refund amount with 7.5% p.a. interest and to pay Rs.10,000/- as litigation expenses against which, this revision petition has been filed.
3. Heard learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that inspite of no deficiency in providing educational services and declaration signed by complainant that fee is not refundable, learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and awarding interest without appeal by complainant; hence, revision petition be allowed and impugned order and order of District forum be set aside. On the other hand, leaned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
5. It is admitted case of the complainant that complainant got her daughter admitted in OP Institute in two years integrated programme and deposited fees for the integrated programme. Complainant has not placed any document on record to substantiate that complainant ever complained about non-satisfactory service provided by OP while imparting education except bald statement that complainant's daughter was not satisfied by the education provided by OP. Merely on the basis of bald statement without any corroborative evidence it cannot be presumed that there was any deficiency on the part of OP in providing education for entrance in engineering course. Even if education provided by OP was not satisfactory, the core question is whether complainant is entitled to refund of fee for a period of remaining one year. At the time of admission and depositing fees complainant and his daughter submitted duly signed declaration which runs as under:
Para 6: I understand that if I leave the institute or the school before completing the full course for any reason whatsoever, including transfer of Father/Mother/Legal guardian/ill health of self or any other member of the family or my admission in any institute/engineering college etc. or my studentship is cancelled because of misconduct etc. I or my Father/Mother/Legal guardian shall have no claim for refund of fees.
Para 7: In addition to the above, I understand without any ambiguity that the fee once paid is not refundable at all, whatever the reasons he nor is it adjustable towards any other existing courses at FIITJEE or any yet to be launched nor towards any other existing or prospective student.
Para 10: I/We, the Father/Mother/Legal guardian and/or the student, hereby severally and jointly declare that I/We have read and understood at all clauses contained in the declaration on Enrolment form and agree to abide by them without any reservation or ambiguity.
Page 13: I promise to abide by all rules and regulations given by me in this declaration to FIITJEE, in letter and spirit.
Paragraphs 6 & 7 of declaration provide that if students leave the Institute before completing full course for any reason whatsoever, he shall have no claim for refund of fees and fees once paid is not refundable at all. Once complainant has agreed to the terms & conditions and submitted declaration, complainant is not entitled to refund of fees on leaving Institute for any reason whereas in the case in hand the complainant has not proved any unsatisfactory education provided by OP. Learned Counsel for the petitioner has placed reliance on judgment of this Commission in R.P. No. 270 of 2006 - Brilliant Classes Vs. Shri Ashbel Sam in which it was observed as under:
On the merits of the case also we are in full agreement with the contention of learned counsel for the petitioner/opposite party that once the candidate has entered into an agreement to abide by the rules and regulations and has voluntarily deposited the course fee, he cannot at his sweet will withdraw from the course and then demand the refund of the fee on the plea of the institute holding irregular classes or rendering sub-standards lessons. It was his responsibility to have ascertained the details with regard to the running of the course by the institute before depositing the course fee for being enrolled.
6. He has also placed reliance on judgment of our Bench in R.P. No. 4476 of 2013 - FIITJEE Ltd. Vs. Sajjan Kumar Gupta in which order of State Commission allowing refund of fees on the ground of withdrawal of student in midterm was set aside and complaint was dismissed. He also placed reliance on judgment delivered by me in R.P. No. 4464 of 2012 - Globsyn Business School Vs. Mayuri Ghosh in which it was observed as under:
5. In the light of aforesaid judgements, it becomes clear that admission fees deposited by complainant was not refundable and complainant was not entitled to seek refund only on the ground of severe financial crises, particularly, when seat filled by the complainant remained vacant. As per learned Counsel for the petitioner, out of 180 seats, 165 seats were filled and in such circumstances, complainant was not entitled to get refund of fees and learned District Forum committed error in allowing refund of fees and learned State Commission has committed error in dismissing appeal.
7. Learned Counsel for the respondent simply submitted that on account of financial crises, complainant was compelled to withdraw his candidatures and sought refund of fees, in the light of University Grants Commission (UGC) Circular dated 23.4.2007. Learned Counsel for the petitioner submitted that as petitioner was not getting any aid from the UGC, this Circular was not applicable in the present case. Learned Counsel for the respondent could not show any document by which, it can be inferred that petitioner was getting aid from UGC and in absence of any aid, Circular issued by UGC was not applicable and petitioner has not committed any deficiency in refusing refund of Rs.35,000/- received as admission fees".
7. He has also placed reliance on judgment of this Commission in R.P. No. 2684 of 2014 - FIITJEE Ltd. Vs. L.S. Balavignesh in which while allowing revision petition and setting aside order of Fora below, allowing complaint, direction was given to the OP to file affidavit of its Managing Director stating that no student was admitted by them against the seat vacated by the complainant at any point of time during the duration of coaching course.
8. He also placed reliance on judgment delivered by me in R.P. No. 2269 of 2009, The Director, Apeejay Institute of Technology Vs. Sh. Prashant Bhat in which while allowing revision and dismissing complaint it was observed as under:
11. Learned counsel for petitioner further submitted that complainant's father himself moved application to opposite party and expressed that due to unavoidable circumstances, he was not in a position to continue the studies of his son and, therefore, requested to refund the amount deposited with the Institute. Complainant's father at the time of admission gave undertaking, which read as under:-
"In case my ward withdraws at any stage of the programme, I am prepared to forego all payments of fee/security and undertake to pay additional fee for the remaining part of the programme to make up the loss caused to the College / Institution by my withdrawal for remaining part of the programme."
12. By this undertaking, complainant's father agreed to forego all payment of fee on withdrawal of his son at any stage. Complainant was not withdrawn on the ground of deficient services by the opposite party but was withdrawn voluntarily due to unavoidable circumstances and in such circumstances, complainant was not entitled to refund of ₹1,42,000/- as allowed by District Forum. This Commission in similar circumstances in "RP No. 3508 of 2007 Apeejay Institute of Management vs. Shri Prashant Ashok" allowed revision petition and dismissed complaint for refund of fees.
9. He also placed reliance on judgment of this Commission in R.P. No. 1916 of 2000 - T.V. Sundaram Iyengar & Sons Ltd. Vs. Dr. Muthuswamy Duraiswamy and Anr. in which it was observed as under:
One thing has to be kept in mind and that is that we cannot go against the terms of contract between the parties unless of course, the terms are illegal and the contract void. It has not been suggested before us that the terms and conditions stipulated in the application form are in any way is illegal. Some of the conditions may appear to be unreasonable but that would not make contract void or even voidable. A consumer Forum has no jurisdiction to strike down a condition in the contract howsoever unreasonable it may appear to be so, so long it is not unlawful.
10. In the light of aforesaid judgments, it becomes clear that complainant was not entitled to refund of fees on account of withdrawal of his daughter for any reason as seat remained vacant for the remaining period.
11. Learned Counsel for the respondent has placed reliance on judgment of this Commission in R.P. No. 3365 of 2006 - FIIT JEE Ltd. Vs. Dr. (Mrs) Minathi Rath in which order of fora below directing refund of fees was upheld on the basis of judgment of Hon'ble Apex Court in (2003) 6 SCC 696 - Islamic Academy of Education & Anr. Vs. State of Karnataka & Ors. in which it was held that educational institution can only charge prescribed fees for one semester/year, if an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the Institute, even if the student left in midstream.
12. Perusal of aforesaid judgment of Islamic Academy of Education (Supra) provides recovery of balance fees for the whole course even if a student leaves course in the midstream which rather supports case of the petitioner. Not only this, in the case in hand, it is not a course comprising different semesters/yearly examination, but it is integrated course for two years and in such circumstances in the light of judgments submitted by the Counsel for the petitioner, revision petition is to be allowed and impugned order is liable to set aside and complaint is to be dismissed.
13. Consequently, revision petition filed by the petitioner is allowed and order dated 31.1.2013 passed by learned State Commission in Appeal No.591 of 2008 - FIITJEE Ltd. Vs. Harish Soni and order of District forum dated 5.5.2008 passed in Complaint No.738 of 2007 - Harish Soni Vs. FIIT JEE is set aside and complaint stands dismissed. Parties to bear their own costs.
(K.S. CHAUDHARI) PRESIDING MEMBER DATED : 17.7.2015 PER JUSTICE K.S. CHAUDHARI In R.P. No. 2054 of 2013 - FIITJEE Ltd Vs. Harish Soni arguments were heard on 14.5.2015 by our Bench. Judgment was dictated by Hon'ble Dr. B.C. Gupta, Member and sent for approval of Hon'ble Mr. Justice K.S. Chaudhari, Presiding Member. Hon'ble Mr. Justice K.S. Chaudhari, Presiding Member sent dissenting judgment. As Members of the Bench differ in their opinion, the matter may be placed before Hon'ble President, NCDRC under Section 20(i)(iii) of the C.P. Act for appropriate directions. The legal question is:
Whether complainant is entitled to refund of fee for a period remaining one year from two years integrated course.
(K.S. CHAUDHARI) PRESIDING MEMBER DATED : 15.09.2015 JUSTICE V.K. JAIN, PRESIDING MEMBER The daughter of the complainant/respondent took admission in a two years integrated coaching programme of the petitioner company, meant for the students seeking to take admission in IITs and other institutions holding entrance examinations for admission thereto. The complainant paid advance fee of Rs. 1,23,464/- which was the fee prescribed for the entire two years integrated programme. She however, left after one year of coaching allegedly on the ground that she was not satisfied with the coaching provided to her. The complainant then sent a notice to the petitioner company seeking refund of the proportionate fee with interest and compensation. Since no such refund was forthcoming, he approached the concerned District Forum by way of a complaint.
2. The complaint was resisted by the petitioner company primarily on the ground that there was no deficiency in rendering service by it and it had been agreed, at the time of granting admission to the daughter of the complainant, that the coaching fee would be non-refundable in the event of the student leaving the course mid-way.
3. The District Forum directed the petitioner company to refund 50% of the coaching fee to the complainant. The petitioner company was also directed to pay compensation of Rs. 2000/- and the cost of litigation quantified at Rs. 1000/- to the complainant. Being aggrieved, the petitioner company approached the concerned State Commission by way of an appeal. The State Commission modified the order passed by the District Forum to the extent that the petitioner company was directed to refund proportionate fee after deducting the service tax for the unutilized period alongwith interest @ 7.5% per annum and the cost of litigation quantified at Rs. 10,000/-. Being aggrieved from the order passed by the State Commission, the petitioner company approached this Commission by way of this revision petition.
4. The revision petition was heard by a Bench of Hon'ble Mr. Justice K.S. Chaudhary and Hon'ble Dr. B.C. Gupta. Vide order dated 17.07.2015, Hon'ble Mr. Justice K.S. Chaudhary allowed the revision petition and dismissed the complaint, whereas Hon'ble Dr. B.C. Gupta ordered dismissal of the revision petition, with no order as to cost. The legal question on which the Hon'ble members differed was formulated as under:
"Whether complainant is entitled to refund of fee for a period remaining one year from two years integrated course".
The point of difference has been referred to me in terms of the order of the Hon'ble President.
5. A similar issue came up for consideration of this Commission in revision petition no. 2684/2014, FIITJEE Ltd. Vs. S. Bala Vignesh, decided on 09.01.2015. In the above referred case, the complainant deposited a sum of Rs. 91,875/- towards part fee of the coaching course on 15.04.2008. He however, discontinued the coaching on 31.05.2008, on account of his illness. Therefore, he sought refund of the coaching fee deposited by him. The petitioner company having failed to do so, a complaint before the District Forum was filed by him seeking refund of the fee deposited by him alongwith compensation and cost of litigation. The District Forum allowed the complaint and directed proportionate refund with compensation and the cost of litigation. Being aggrieved from the order of the District Forum, the petitioner company approached the concerned State Commission by way of an appeal. The State Commission reduced the compensation but maintained the rest of the order passed by the District Forum. Being still dissatisfied, the petitioner company approached this Commission by way of a revision petition. Allowing the revision petition, this Commission inter-alia observed and held as under:
"5. The important information contained in the enrollment form signed by the complainant as well as his father, at the time the complainant took admission in the coaching course, to the extent it is relevant, reads as under:
"FIITJEE starts making arrangements of infrastructure, faculty & other resources about six months before commencement of financial year. FIITJEE admits students as per its capacity plans (subject to unforeseen circumstances & usual organizational risks) therefore each student taking admission has to pay complete fee under all circumstances i.e. ever if he/she discontinues for any reason whatsoever or parents/guardians be transferred. Not all students who sit in our admission test are offered admission, therefore, you & parents have to be very sure before taking admission as you have to pay complete fee under all circumstances.
Once a class starts FIIT JEE does not admit any students. Therefore, any vacancy created by a student leaving cannot be filled up. Since FIIT JEE has to source infrastructure, faculty, etc., in advance, loss of fess of students leaving after taking admission will compel the institute to enhance fees for next batch of students which is unfair to them. Therefore, students/parents must clearly understand this important aspect and take admission only if they are fully satisfied."
The declaration signed by them when the complainant took admission to the coaching course to the extent it is relevant reads as under:
"I/We the father/mother/legal guardian and/or the student hereby severally and jointly declare that I/We have read and understood all the clauses contained in the Declaration on the Enrollment Form together with the above amendment and agree to abide by them without any reservation or ambiguity."
6. It is, thus, evident that as per the terms and conditions contained in the enrollment form, the student taking admission with the petitioner is not entitled to refund of any part of the fee paid by him, irrespective of the ground on which he withdraws from the said coaching course. Having taken admission on the basis of the aforesaid terms, the complainant is bound by the said terms and consequently he cannot claim any refund or proportionate refund of the coaching fee deposited by him.
8. This is not the case of the complainant that after his withdrawing from the coaching class, the petitioner had admitted another student in his place. Thus, it is evident that in case the fee deposited by the complainant is refunded to him, the petitioner would suffer financial loss since it would get fee from 43 students as against a batch of 44 students, though it had planned its infrastructure including faculty members, class rooms, etc. and incurred expenditure on the premise that all the students taking admission in a particular batch would pay the requisite fee. Had the petitioner admitted another student in place of the complainant, there could have been justification for proportionate refund of the fee which the complainant had deposited with it. But, directing refund of fee paid by the complainant when the petitioner had only 43 students left in the batch as against admitted strength of 44 students, it would be unfair to the petitioner to direct it to refund the said fee. The learned counsel for the petitioner states that no student in place of the complainant was admitted at any point of time during the duration of the course in which admission was taken by him. We direct the petitioner to file an affidavit of its Managing Director in terms of the aforesaid statement within two weeks from today.
10. As regards the term stipulating that the student withdrawing from the coaching class midway will not be entitled to seek any refund of the fee deposited by him being an unfair trade practice, we are of the view that in a case where the seat vacated on account of withdrawal by a student during the currency of the course remains vacant and no other student is admitted against the vacant seat, the refusal of the coaching institute to refund the fee cannot be said to be an unfair trade practice, though, such a term may constitute an unfair trade practice in a case where the coaching institute admits a student in place of the student who withdraws midway from the coaching course and thereby suffers no financial loss.
6. The complainant has placed on record the affidavit of its Managing Director Shri Dinesh Kumar Goel, stating therein that no student was enrolled against the seat vacated by the daughter of the respondent during the tenure of the entire course, at any point of time. He has further stated that to ensure quantity education and uniform teaching standard and keeping in mind the interest of students, the petitioner company does not fulfill the vacancy created by a student who leaves the course in midway.
7. For the reasons stated hereinabove, I am of the opinion that the complainant is not entitled to refund of the fee for the remaining period of one year.
( V.K. JAIN, J.) PRESIDING MEMBER DATED :- 8.10.2015 PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER In R.P. No. 2054 of 2013 - FIITJEE Ltd. Vs. Harish Soni arguments were heard on 14.5.2015 by our Bench. Judgment was dictated by Hon'ble Dr. B.C. Gupta, Member and sent for approval of Hon'ble Mr. Justice K.S. Chaudhari, Presiding Member. Hon'ble Mr. Justice K.S. Chaudhari, Presiding Member sent dissenting judgment. As Members of the Bench differed in their opinion, the matter was placed before Hon'ble President, NCDRC under Section 20(i)(iii) of the C.P. Act for appropriate directions. Hon'ble President referred the matter to Hon'ble Mr. Justice V.K. Jain, Member. Hon'ble Mr. Justice V.K. Jain, Member (3rd Bench) vide order dated 15.9.2015 opined that the complainant is not entitled to refund of the fee for the remaining period of one year and agreed with the judgment delivered by Hon'ble Mr. Justice K.S. Chaudhari, Member.
In the light of majority judgment, revision petition filed by the petitioner is allowed and complaint stands dismissed with no order as to costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER ......................J V.K. JAIN MEMBER ...................... DR. B.C. GUPTA MEMBER