State Consumer Disputes Redressal Commission
Saini Consultant vs Hans Raj Thakar on 25 July, 2019
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 150 of 2019 Date of Institution : 23.07.2019 Date of Decision : 25.07.2019 Saini Consultant, SCO No.224, 2nd Floor, Sector 36-D, Chandigarh, through its sole proprietor Sh.Deepak Saini. ......Appellant/Opposite party V e r s u s Hans Raj Thakar s/o Sh.Dharam Dass Thakar, Aged 56 years, R/o VPO Gagal, Tehsil Balh, District Mandi, Himachal Pradesh ....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986 against order dated 03.04.2019 passed by District Consumer Disputes Redressal Forum-II, U.T. Chandigarh in Consumer Complaint No.335 of 2018. BEFORE: MRS. PADMA PANDEY, PRESIDING MEMBER
MR. RAJESH K. ARYA, MEMBER Argued by:
Sh. Arun Dogra, Advocate for the appellant.
PER PADMA PANDEY, PRESIDING MEMBER This appeal has been filed by the opposite party against the order dated 12.06.2019, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the Forum only), vide which, Consumer Complaint bearing No.335 of 2018 filed by the respondent/complainant was allowed in the following manner:-
"11] Taking into consideration the entire facts & circumstances of the case, as discussed in the preceding paragraphs, the present complaint is allowed with directions to the Opposite Party to refund an amount of Rs.4.50 lacs to the complainant, along with interest @9% per annum from the date of payment i.e. 20.3.2016 till it is paid. The Opposite Party is also directed to pay a compensation of Rs.25,000/- to the complainant for causing mental agony & harassment due to deficient act coupled with unfair trade practice on the part of Opposite Party, apart from paying litigation cost of Rs.10,000/-.
This order shall be complied with by the Opposite Party within a period of 30 days from the date of its receipt, failing which it shall be liable to pay additional compensatory cost of Rs.20,000/- apart from the above relief."
2. Counsel for the appellant did not dispute the facts of the case, noted down by the Forum, in the order impugned. However, at the time of arguments, at the preliminary stage, he took various objections such as the consumer complaint was not maintainable as disputed question of facts and law were involved therein; there was no agreement for making refund of the amount to the respondent out of Rs.5 lacs; the daughter of the respondent failed to quality the mandatory NEET exam, which was not in the hands of the appellant; since the witness to the agreement between the parties was not examined, as such, the complaint is liable to be dismissed on this ground also. It is significant to mention here that we have gone through the findings given by the Forum, in the order impugned and find that the objections raised by the appellant, have been correctly dealt with by it, while holding as under:-
"6] It is well proved on record that vide Ann.C-1 the complainant availed the services of Opposite Party by paying an amount of Rs.5.00 lacs for securing admission of his daughter Ms.Akanksha Thakur in MBBS Course in 2016-17 Batch in the States of Maharashtra & Karnataka under Management/NRI quota. This fact has also been admitted by the Opposite Party in its reply.
7] It is also an admitted fact that after the parties entered into an agreement, new pattern of admission for getting admission in MBBS Course has been introduced in later part of 2016 i.e. conducting of entrance examination of NEET (National Eligibility cum Entrance Test). By virtue of new pattern/system, the aspirants for medical stream are supposed to clear the NEET entrance examination for the purpose of getting admission in MBBS Course in any of the medical college in India. It is also admitted by Opposite Party that the complainant's daughter could not clear the NEET entrance examination and thus became ineligible to get admission in MBBS Course in any of the medical college in India irrespective of any quota.
8] As the daughter of the complainant could not clear the NEET examination, thus there was no purpose or occasion to continue to avail the services of the Opposite Party, thus the complainant has rightly demanded refund of the amount from the Opposite Party, which was paid only to secure the admission in MBBS Course. The denial to refund of the said amount gave rise to the cause of action in favour of the complainant to file the present complaint.
9] We have gone through Ann.C-2 to C-5 i.e. the cuttings of newspaper of different dates showing the advertisement given by the Opposite Party for providing consultation services for getting admission in MBBS Course.
10] Ann.C-2 dated 21.4.2017 shows that the advertisement given by the Opposite Party projected itself as admission consultants/guide for getting admission in top private colleges and reflect that at that time there was no procedure of holding NEET entrance examination (as there is no reference about NEET Exam.). Admittedly the circumstances changed and by virtue of the introduction of new system of NEET entrance examination, it became necessary to qualify the NEET examination in order to get admission in MBBS Course in any of medical college in India. This fact is also corroborated by Ann.C-3 to C-5 i.e. the newspaper cuttings showing the fresh advertisement given by the OPs whereby the Opposite Party specifically mentioned in the advertisement that 'for getting admission in Top Private Colleges, NEET qualified students contact'. This variation in the circumstances happened only after entering into agreement between the parties, which certainly affected the purpose of availing the services of Opposite Party. Therefore, in the changed circumstances, the contract entered into between the complainant and Opposite Party became null, void and frustrated and thus, there was no occasion left with the Opposite Party to further pursue or process the case of the complainant's daughter for getting admission in MBBS Course in any of Medical College in India, without her qualifying the mandatory entrance examination of NEET for securing admission in MBBS. Therefore, there is no reason with the Opposite Party to withhold the hard earned money of the complainant and it should have refunded the same after deducting Rs.50,000/- as service provider charges as mutually agreed between the parties. The denial of the Opposite Party to refund the balance amount is totally illegal & unjustified and clearly amounts to gross deficiency in service coupled with unfair trade practice on the part of Opposite Party."
3. As far as objection taken by Counsel for the appellant that the consumer complaint was not maintainable as disputed question of facts and law were involved therein, it may be stated here that it was a simple case of non refund of the amount paid by the respondent, as the appellant did not render complete services to his daughter, on account of the reasons that in the first instance, in the year 2015, getting admission to her in the said Course was in hands of the appellant and subsequently, in the year 2016, on account of change in admission criteria i.e. NEET exams, every student was to first qualify the same and then could opt for the colleges, as per his/her merit. Under these circumstances, since the respondent could not quality the said test, in which, she appeared openly, as such, she, in any case, could not have availed any benefit from the appellant, out of the amount paid by her, for admission in the college(s). In this view of the matter, the objection taken stands rejected.
4. Even otherwise, perusal of contents of Annexure C-1 clearly show that promise was made by the appellant that he would make arrangement for admission to the daughter of the respondent, in MBBS Course in 2016-2017 batch in Maharashtra/Karnataka under Management/NRI quota. It is not the case of the appellant that despite the fact that the daughter of the respondent was successful in getting admission in the said course, on his efforts, but now she is not willing to continue with the same. As such, the promise made was only an allurement made by the appellant just with a view to usurp the hefty amount of Rs.5 lacs. Furthermore, we are of the considered opinion that charging an amount of Rs.5 lacs just for consultancy from the respondent was very high and when no service was rendered to the daughter of the respondent.
5. Qua argument raised that since the witness to the agreement between the parties was not examined, as such, the complaint was liable to be dismissed on this ground also, it may be stated here that the argument raised is an after-thought. Even for the sake of argument, if it is assumed that any agreement was executed between the parties, even then charging such a high amount of Rs.5 Lakhs from the respondent cannot be accepted and that too for consultation only. The argument raised itself goes against the Annexure C-1, wherein a clear promise was made by the appellant for getting the daughter of the respondent in MBBS Course in 2016-2017 batch in Maharashtra/Karnataka under Management/NRI Quota. When there was a clear assurance on record in terms of Annexure C-1, what else was required. In our considered opinion, such kind of practice of pocketing hard earned money of the consumer by giving them false allurements cannot be allowed to continue.
6. Under above circumstances, we are fully justified with the view taken by the Forum while allowing the consumer complaint. No cogent and convincing evidence has been placed on record or any such argument was raised, by Counsel for the appellant, at the time of hearing this appeal, which could persuade this Commission, to take a contrary view, to what has been taken by the Forum, in its order impugned.
7. No other point was urged by Counsel for the appellant.
8. For the reasons recorded above, this appeal being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the Forum is upheld. Consequently, the application for condonation of delay in filing the appeal stands disposed of having become infructuous.
9. Certified copies of this order, be sent to the parties, free of charge.
10. The file be consigned to Record Room, after completion.
Pronounced.
25.07.2019.
(PADMA PANDEY) PRESIDING MEMBER (RAJESH K. ARYA) MEMBER Ad