State Consumer Disputes Redressal Commission
Allen Career Institute vs Anil Kumar Sharma on 8 April, 2019
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 357 of 2018 Date of Institution : 14.12.2018 Date of Decision : 08.04.2019 Allen Career Institute through its Authorized Representative, SCO No.354-355, Ground Floor, Sector 34-A, Chandigarh. .......Appellant/Opposite Party. Versus Anil Kumar Sharma, Resident of #304, Phase-6, Mohali, District S.A.S. Nagar, Punjab - 160059. ...Respondent/Complainant. Appeal under Section 15 of the Consumer Protection Act, 1986 against order dated 01.11.2018 passed by District Consumer Disputes Redressal Forum-I, U.T. Chandigarh in Consumer Complaint No.327 of 2018. BEFORE: MRS. PADMA PANDEY, PRESIDING MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Argued by:
Sh. Tarunjit Singh Grewal, Advocate for the appellant.
Sh. Nitin Sharma, Advocate for the respondent.
PER RAJESH K. ARYA, MEMBER The appellant/opposite party has filed this appeal against order dated 01.11.2018 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short 'the Forum' only), vide which, complaint bearing No.327 of 2018 filed by the respondent/complainant was partly allowed in the following manner:-
" 9. For the reasons recorded above, the present complaint of the Complainant deserves to succeed against the Opposite Party, and the same is partly allowed. The Opposite Party is directed:-
[a] To refund Rs.88,203/- (after deducting GST & fee for the period for which the course was attended) to the Complainant;
[b] To pay Rs.15,000/- as compensation to the complainant for the unfair trade practice and harassment caused to her.
[c] To also pay a sum of Rs.10,000/- to the complainant as litigation expenses.
10. The above said order shall be complied within 30 days of its receipt by Opposite Party; thereafter, Opposite Party shall be liable for an interest @12% per annum on the amounts mentioned in sub-para [a] & [b] above from the date of institution of this complaint, till it is paid, apart from cost of litigation as in sub-para [c]."
2. Before the Forum, it was case of the complainant that he got her daughter namely, Deepanxi Sharma admitted in the opposite party - Institute in Pre-Medical Enthusiast course of one year by paying an amount of Rs.1,20,650/- on 10.04.2018. It was stated that the daughter of the complainant attended the classes from 11.04.2018 to 30.05.2018 (i.e. for 50 days including holidays) and during this period, she did not find the faculty of the opposite party - Institute to be up-to her expectations. It was further stated that she requested the opposite party to refund her fee after deducting non-refundable service tax for the unattended session of the course but to no avail. Hence, complaint was filed before the Forum.
3. However, none appeared on behalf of the opposite party despite service and it was proceeded ex-parte by the Forum vide order dated 12.09.2018.
4. The complainant led evidence. The Forum, on analysis of pleadings of the complainant, documents on record, and the arguments addressed, partly allowed the complaint as referred to above.
5. Counsel for the appellant/opposite party argued that the Forum committed grave error by holding that the services of the opposite party were not found up-to the mark as no doubt session or extra guidance was made available to the student/daughter of the respondent/complainant, when opted to get the same. It was submitted that the daughter of the respondent/complainant studied for 50 days and if there was any kind of deficiency then why did she studied for so long. It was further submitted that it is self made and after thought story just to harass the appellant/opposite party. It was argued that the duration of the course was for 9 months only from April, 2018 till November, 2018 and December would be a revision classes only, therefore the said course was not for one year rather the same was for 9 months only. It was further submitted that the complainant is not entitled for refund of fees as refund of fee was not sought within the prescribed period as mentioned in the admission form, which was duly signed and acknowledged by the complainant. It was argued that the complainant does not fall under the definition of consumer as there are many decisions regarding the relation between students and educational institutions that the educational institutions are not providing any kind of service. Lastly, it was prayed that the appeal be allowed and the impugned order be set aside.
6. On the other hand, Counsel for the respondent/ complainant argued that by not putting in appearance and defending the allegations and averments made in the complaint filed by the respondent/complainant before the Forum, the appellant/opposite party admitted its deficiency and unfair trade practice. It was submitted that the Forum rightly directed the appellant/opposite party to refund the fee deposited after deducting reasonable charges and non-refundable service tax. It was prayed that the impugned order be upheld and the appeal filed by the appellant/opposite party be dismissed.
7. After going through the evidence on record and submissions of the Counsel for the appellant, we are of the opinion that the appeal is liable to be dismissed for the reasons to be recorded hereinafter.
8. Qua argument raised that the respondent/complainant does not fall under the definition of consumer as educational institutions are not providing any kind of service, for which, reliance was also placed on Maharishi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159 = 2010 (2) CPC 696 S.C. It may be stated here that after thoroughly discussing the import of two judgments i.e. Bihar School Education Board Vs. Suresh Prasad Sinha, IV (2009) CPJ 34 (SC) and Maharishi Dayanand University Vs. Surjeet Kaur (supra), this Commission in First Appeal No.219 of 2018 titled ' Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial', which was dismissed vide order dated 23.08.2018, in Para 10 to 12, inter-alia, held as under:-
"10. It was specifically said that the Board was not carrying any commercial, professional or service oriented activity and as such, consumer complaint was not maintainable, in such like cases before the Consumer Fora. However, it was also observed in later part of the judgment that ratio of a judgment is not mechanically to be applied to other case, without analysing the context in which observations were made by the Court in a given judgment. Same was the situation in the case of Maharshi Dayanand University (supra). In that case also, there was a dispute between the Authorities and student qua grant of B.Ed. degree to her. By taking note of observations made by the Supreme Court in the case of Bihar School Examination Board (Supra) it was said that Statutory Authority when performing statutory functions cannot be termed as service provider/industry.
11. In the present case, as has been noted in earlier part of this order, the appellants have no statutory regulations/backing. It is a private Institute, not discharging any social obligation. In such like cases, we are of the considered opinion that no benefit of ratio of the judgments cited above, can be extended in favour of the appellants.
12. The case of the respondent is also supported by the ratio of judgment passed by the Hon'ble Supreme Court of India in Buddhist Mission Dental College & Hospital, Versus Bhupesh Khurana & Others, Civil Appeal No.1135 of 2001, decided on February 13, 2009, wherein, the findings given by the National Commission, to the effect that imparting of education by an educational institution for consideration falls within the ambit of `service' as defined in the Consumer Protection Act, were upheld. Relevant part of the said judgment reads thus:-
"The Commission also held that this Court in Bangalore Water Supply and Sewerage Board (supra) held as under: [para 118 at page 583]:-
"...In the case of the University or an educational institution, the nature of the activity is, ex hypothesi, education which is a service to the community. Ergo, the University is an industry..."
The Commission further held as under:
"Imparting of education by an educational institution for consideration falls within the ambit of `service' as defined in the Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The complainants had hired the services of the respondent for consideration so they are consumers as defined in the Consumer Protection Act."
33. The Commission rightly came to the conclusion that this was a case of total misrepresentation on behalf of the institute which tantamounts to unfair trade practice. The respondents were admitted to the BDS Course for receiving education for consideration by the appellant college which was neither affiliated nor recognized for imparting education. This clearly falls within the purview of deficiency as defined in the Consumer Protection Act, which defines the `deficiency' as under:
"`Deficiency' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of 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 service."
34. Therefore, the Commission rightly held that there was deficiency in service on the part of the institute and the claimants respondents are entitled to claim the relief as prayed in the plaint. The appeal filed by the appellant is devoid of any merit and deserves to be dismissed."
13. Not only as above, in the case of Krishan Mohan Goyal Vs. St.Mary's Academy and Anr., Revision Petition No.3144 of 2016, the National Commission has also held that in some aspects of education activities, the Consumer Fora is competent to take action against the erring Educational Institutes such like the opposite parties, adopting unfair trade practices and also not rendering proper service. Same is the ratio of the judgment decided by the National Commission, in Jaipreet Singh Kaushal Vs. FIIT JEE Limited and another, Revision Petition No.918 of 2015 decided on 14.11.2017, wherein, it was held that the Institute is not justified in charging fee, for the entire course in one go............"
9. It may be stated here that in the instant case, the educational institution, in question, i.e. Allen Carrier Institute is not a statutory body and is mere business establishment, imparting educational services to the students by charging hefty fees. Therefore, in view of the ratio of judgments, referred to above, the argument raised by the Counsel for the appellant/opposite party, that the respondent/complainant does not fall within the definition of consumer and that educational institutions are not providing any kind of service, is bereft of merit and stands rejected.
10. Coming to the merits of the case, it may be stated here that similar controversy, whether forfeiture of the entire fee paid by the respondent/complainant for the entire period of course opted and not refunding a single penny, on leaving the said course by the respondent/complainant in between, amounted to unfair trade practice or not, recently came before this Commission in the case of FIITJEE Ltd. Vs. Vikram Seth (Minor) through his Natural Guardian' bearing Appeal No.223 of 2018 decided on 05.04.2019, wherein this Commission held in Paras 10 to 18 as under:-
"10. The only law point involved in these appeals, to be determined, by this Commission, is, as to whether forfeiture of the entire fee paid by the complainants for the entire period course opted and not refunding a single penny, on leaving the said course by the complainants after attending the classes for 8 days, 2 months or mid-session, amounted to unfair trade practice or not.
11. To support above argument, Counsel for the appellant cited few judgments. He mainly placed reliance on the judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi, comprising Hon'ble Justice K. S. Chaudhari, Presiding Member, Hon'ble Mr. Justice V. K. Jain, Member and Hon'ble Dr. B. C. Gupta, Member, in case titled ' FIITJEE Ltd. Vs. Harish Soni', Revision Petition No.2054 of 2013 decided on 08.10.2015.
12. The issue, in question, before the Hon'ble National Commission, was whether it is justified to allow refund of fees for the remaining part of the course or not.
13. In FITJEE Ltd. Vs. Harish Soni's case (supra), relied upon by the Counsel for the appellants, the complainant's daughter took admission by paying an advance fee of Rs.1,23,464/- on 15.04.2006 for getting admission in 'FIIT JEE Pinnacle' two years' integrated programme. After studying for one year, being not satisfied by the education imparted, she withdrew from the course and sought refund of the remaining fees alongwith interest and compensation. The Hon'ble National Commission held in Paras 6 & 7 of its judgment as under:-
"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 quality 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."
14. It may be stated here that that the Hon'ble National Commission in Sehgal School of Competition Vs. Dalbir Singh, 2009 (3) CPC 187, while dismissing the Revision Petition filed by Sehgal School of Competition, held in Paras 5 to 7, inter-alia, as under:-
"5. We have heard the learned Counsel for the petitioner. He submitted that the student had withdrawn voluntarily and, therefore, there was no deficiency of service. The petitioner's school has shown excellent results. Hence it is wrong to observe that their coaching was not upto the mark. He also submitted that one of the conditions imposed by their school which accepting lump sum fees for two years is that 'refundability/ transferability of seat/fee is not possible under any circumstances'.
6. The above condition is one sided and biased totally in favour of the petitioner and against the principle of equity and natural justice and it is not a fair trade practice. The learned Counsel quoted the judgment of this Commission in Homoeopathic Medical College & Hospital, Chandigarh v. Miss Gunita Virk, I (1996) CPJ 37 (NC), wherein it is held that Fora constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal.
7. This judgment is 13 years old. Subsequent to this judgment this Commission in catena of judgments has held that it is unjust to collect the fee for the total period of the course. In Nipun Nagar v. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC) = 2009 (1) CPC 272 (NC), Revision Petition No.1336 of 2008, decided by this Commission on 7th November, 2008, after quoting the public notice issued by the University Grants Commission, it was held that the Institute was unfair and unjust in retaining the tuition fee of Rs.1 lakh even after the student withdrew from their institute. Further if a student leaves before attending a single day of the college or school, he is entitled for total refund except for a small registration fee, say Rs.1,000/-. Even the University Grants Commission had issued a public notice directing all the institutions to refund the money of the students for the period, they have not attended the college/institution.........."
15. Not only above, in Brilliant Tutorials Pvt. Ltd. Vs. Ashwani Verma, 2010 (4) CPJ 396, the Hon'ble National Commission while placing reliance on the judgment of Hon'ble Apex Court in Islamic Academy of Education and Another Vs. State of Karnataka and others, (2003) 6 SCC 697, held that charging fees in advance beyond the current semester/year would certainly amount to unfair trade practice and the same cannot be countenanced. In Islamic Academy of Education and Another's case (supra), the Hon'ble Apex Court had expressed unhappiness with educational institutes charging the entire fees upfront and had said that students should only be asked to pay fees for a semester/year to begin with. The argument of FIIT-JEE that the ruling of Islamic Academy was not applicable to it since it is not an educational institute but only a coaching institute was not negated by the Hon'ble National Commission and order of the State Commission was upheld, directing FIIT-JEE to refund the fees. We may add here that Hon'ble Supreme Court of India condemned the practice of the educational institutes of collecting fee in advance for the entire course i.e. for all the years and also debarred them to claim any interest on the fee deposited. Further the Hon'ble National Commission in FIIT JEE Ltd. Vs. Dr.Minathi Rath, 2012(1) CPJ 194 while considering the revision petition on identical facts, as involved in the present complaint, has categorically held that FIIT JEE Ltd. could not charge full advance fee for Two years and held the complainant entitled for receipt of refund of fee taken in advance from him by FIIT JEE.
16. In our opinion, the plea of the appellants by way of affidavit that the vacancy created by the complainant(s) was never filled up and remained vacant, cannot be read against the respondent(s)/complainant(s). The appellant cannot be allowed to be on an advantageous position, keeping in mind the interest of poor consumer. It (appellant - Institute) cannot gulp whole of the fee paid, being the hard earned money. When a student or his/her parents signs the admission form, they have no bargaining power to negotiate, or refuse to sign any particular clause in the admission form. Hence, such clauses should not be held against the student. The appellant is continuing with an unfair trade practice of collecting huge amount to get itself enriched, which is totally against public interest at large, specially the parents, who send their children by putting a big cut on their stomach and giving each and every penny of their earnings to the coaching institute like the appellant, for imparting coaching, which does not guarantee or assure success in getting admission in IIT/NIT. Sometimes, after paying such hefty coaching fee, it becomes difficult for them to meet out their daily needs. Every parent, whether rich or poor or from any mediocre family, would desire that their children should get better education for which, sometimes, they have to obtain loan for paying fees etc. from Banks or Private Financiers. The appellant - Institute is not only a structure made up of bricks and cement where the students go and get coaching after paying hefty fees. The Institutes imparting coaching are also supposed to bear in mind that a child/student, who is coming to them, is also a future of our country, who at some stage is to contribute towards nation building or serve the country by entering into some field of his/her choice at some stage. Every student may not be so lucky to crack the entrances, after getting coaching etc. but it is a fact which cannot be denied that every student puts his/her best effort to clear these entrance exams. The coaching institutions should not act like money collection machines, without keeping in mind the feelings and future prospects of the student. The student may not be comfortable with the teaching methods/skills and attitude of some of the teachers at the coaching centre. In case, the student leaves in between or midsession or after attending for few days or months, in our opinion, he/she should not be denied refund of the fee for the remaining period, which he/she did not attend. If the student is given refund, he/she can pay the said amount to some other educational institute, where he/she wants to pursue coaching or education. The student is not supposed to pay another hefty amount to other coaching institute after leaving the appellant - institute. Parents may not be in a position to afford another heavy fee of another coaching institute and the student will be deprived of precious opportunity and formative years of career building. In case, the fee is refunded, the student can further move on with that amount to explore much better avenues of education, as per his/her desire. We may also add here that Consumer Protection Act, 1986, which is Consumer Oriental Legislation, is meant to protect the interest of consumers who show their courage to come forward and put forth their grievance against the unfair trade practices adopted by such like educational institutions. Future of an aspiring student, who will certainly contribute towards the development of our nation at some stage of his/her life, is of paramount importance and cannot be put at stake like this. Educational Institutions like the appellant must bear in mind the feelings and sentiments of an aspiring student who took admission with such like institutions with an aim and hope to achieve some better prospects and positions in their future. In our opinion, educational institutes should be prudent, desist from charging upfront fees for the entire course, and if they do, should not refuse a refund. A student or a trainee may leave midstream if he finds the service deficient, substandard and non-yielding, and to tell him that fees once paid are not refundable was an unfair trade practice, as no service provider can take or charge the consideration of the service which it has either not given or has not been availed. The existing practice in many institutions of collecting advance payment and not refunding this should be done away with. Such blatant act of the appellant(s) is a clear example of unfair trade practice, which has to be stopped by exercising a moral responsibility especially when seen in the light of the above facts and circumstances of this case.
17. Therefore, in our opinion, interest of such like consumers is to be taken care of and protected while interpreting the law settled on the subject.
18. We are of the considered opinion that the appellants miserably failed to make out any case and no benefit of the aforesaid judgment of Hon'ble National Commission rendered in the case of FIITJEE Ltd. Vs. Harish Soni' (supra) can be extended to the appellant. We opine that the respondents/complainants are definitely entitled to refund of fees as ordered by the Fora below vide the impugned orders."
11. In the instant case, not putting in appearance by the appellant/opposite party before the Forum and non reply to the averments made in the complaint, is an act of admission on its part qua the averments made in the complaint and further an act of deficiency in providing service to the respondent/complainant and indulging into unfair trade practice by not refunding the fees after deduction of reasonable charges and service tax, which the Forum has rightly ordered vide the impugned order. Clearly, the respondent/complainant attended the course only for 50 days i.e. from 11.04.2018 to 30.05.2018. The appellant/opposite party could deduct the fee proportionate to the aforesaid period of 50 days but it, without taking care of the interest of a the respondent/ complainant, did not refund any penny to the respondent/ complainant. Such like practice by these institutions cannot be allowed to continue i.e. first taking the entire fee of the course and then not refunding any penny on account of exiting the course by the student.
12. Thus, in view of our findings given in the case of FIITJEE Ltd. Vs. Vikram Seth (Minor) through his Natural Guardian (supra), no case is made out to set aside the impugned order passed by the Forum.
13. Hence, we are of the opinion that the order passed by the Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity.
14. No other point was raised by the Counsel for the parties.
15. For the reasons recorded above, this appeal being devoid of any merit, is dismissed with no order as to costs. The impugned order dated 01.11.2018 passed by the District Forum is upheld.
16. Certified copies of the order be sent to the parties free of charge.
17. File be consigned to the Record Room after completion.
Pronounced 08.04.2019.
(PADMA PANDEY) PRESIDING MEMBER (RAJESH K. ARYA) MEMBER Ad