National Consumer Disputes Redressal
Fiit Jee Ltd. vs S. Balavignesh on 9 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2684 OF 2014 (From the order dated 13-03-2014 in FA No.613 of 2011 of the Tamil Nadu State Consumer Disputes Redressal Commission at Chennai) WITH I.A. NO.4331 OF 2014 & I.A. NO.4332 OF 2014 (For stay, exemption from filing the certified copy) FIIT JEE Ltd. 29-A, Kalu Sarai, Sarvpriya Vihar New Delhi 110016 Through its A.R. Sh. Ashish Kr. Aggarwal ..Petitioner Versus S. Balavignesh S/o Shanmugam R/o 244/2A, Type-II Qtrs. Block-5, Neyveli - 607803 ..Respondent BEFORE: HONBLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER For the petitioner : Mr. Mukesh M. Goel, Advocate For the respondent : Mr. S. Muthu Krishnan, Advocate 09-01-2015 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
1. The complainant took admission in one of the coaching classes conducted by the petitioner FIIT JEE Ltd.. The programme in which admission was taken by the complainant was titled as Pinnacle IIT Jee + School + Integrated Preparation. He deposited a sum of Rs.98,175/- towards part fee of the said coaching course on 15-04-2008. He, however, had to discontinue the coaching on 31-05-2008, on account of his illness. He, therefore, requested the petitioner to refund the coaching fee which he had deposited with them. Since the petitioner failed to refund the aforesaid fee, a complaint before the concerned District Forum was filed by him seeking refund of the aforesaid amount along with interest besides compensation and cost of litigation.
2. The complaint was resisted by the petitioner inter alia on the ground as per the terms & conditions agreed by the complainant, while taking admission in the coaching course, no part of the fee paid by him is refundable to him, in the event of his withdrawing from the said coaching course. It was also stated in the reply that the petitioner is a self-financed and self-managed institute, being run on the fee collected from the students and it has to incur expenditure on lease rent of the premises, salary of faculty members and non-faculty staff, electricity and other charges, preparation and printing of study material, etc., irrespective of the number of students and the batches. It was also stated in the reply that in order to ensure quality education and uniform teaching standards the petitioner does not fill the vacancy created against any student who leaves the course midway.
3. The District Forum, vide its order dated 01-03-2011 allowed the complaint and directed the petitioner to refund an amount of Rs.93,812/- to the complainant. They were also directed to pay Rs.20,000/- as compensation and Rs.5,000/- as the cost of litigation.
4. Being aggrieved from the order of the District Forum the petitioner approached the concerned State Commission by way of an appeal. The appeal was partly modified by reducing the compensation awarded by the District Forum from Rs.15,000/- to Rs.10,000/-. Rest of the order passed by the District Forum, however, was maintained. Being aggrieved from the order passed by the State Commission the petitioner is before us by way of this revision petition.
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.
7. When this petition came up for hearing before us on 10-07-2014 we directed the petitioner-company to file an affidavit of its Managing Director stating therein as to how many were the students in the class before the complainant withdrew from the said class and how many were the students after he had withdrawn from the class. In compliance of our direction the petitioner filed the affidavit of Ashish Kumar Aggarwal, authorized representative of the petitioner-company who stated on oath that there were 44 students in the batch in which the complainant was studying and after he had left there were only 43 students in the said batch. The petitioner also placed on record the relevant attendance record of the complainant.
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.
9. The learned counsel for the petitioner has referred to the decision of this Commission in Mayank Tiwari Vs. M/s FIIT JEE Ltd. in R.P.No.4335 of 2014 decided on 08-12-2014. In the aforesaid case, the complainant had taken admission in the coaching course of FIIT JEE Ltd. and after attending coaching classes for about one and a half month he stopped attending the said classes. He had paid a fee of Rs.1,00,918/- besides depositing certain post-dated cheques. Three cheques for a sum of Rs.45,319/- were encashed by FIIT JEE. Subsequently, he deposited another sum of Rs.30,000/- for the purpose of admission in a school in Chandigarh and sought refund of the fee as well as return of the unrealized cheques. That having not been done, a complaint was filed by him before the concerned District Forum. The said forum directed refund of the balance bee after deducting the proportionate fee till the month in which the complainant had withdrawn from the course and also directed FIIT JEE Ltd. to pay compensation as well as cost of litigation. Being aggrieved from the order of the District Forum, FIIT JEE preferred an appeal before the concerned State Commission. The appeal was allowed by the said Commission. Being aggrieved from the order of the State Commission the complainant approached this Commission by way of a revision petition. Noticing that the State Commission had dismissed the complaint on the basis of the terms & conditions of the contract, this Commission found no infirmity with the reasoning given by the State Commission. It was further noted that the State Commission had rightly applied the ratio of the decision of the Honble Supreme Court in P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors. in Civil Appeal No.22532/2012 decided on 09-08-2012 wherein relying upon its earlier decision in Maharshi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159, it was held that the educational institution are not providing any kind of services and, therefore, in the matter of admission fee, etc., there cannot be a question of deficiency of service and such matter cannot be entertained by the consumer forum. There may be merit in the contention that a coaching institute such as FIIT JEE Ltd. cannot be equated to an institution such as a university since it is only assisting the student in competing for admission to IIT JEE by providing coaching to them, even if the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, the parties will be bound by the terms & conditions agreed by them at the time the complainant took admission in the coaching course, unless it can be shown that the petitioner had adopted an unfair trade practice, as defined in Section 2(r) of the Act.
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.
11. The learned counsel for the complainant relies upon the decision of this Commission in FIIT JEE Ltd. Vs. Shri Pramod Panwar in R.P.No.30 of 2008 decided on 23-04-2012. However, the judgment does not indicate as to what precisely were the terms & conditions agreed between the FIIT JEE and the student in that case. More importantly there is nothing in the judgment to indicate that the seat which fell vacant on account of the complainant in that case withdrawing midway from the course had remained vacant throughout the course and was not filled up at all. Therefore, the above decision is clearly distinguishable on facts.
12. The learned counsel for the complainant relies upon G.O.Ms.No.2729 dated 17-02-2008 purporting to be issued by the Government of Tamilnadu, directing inter alia that all colleges i.e. Government, private will refund the entire tuition fee to the student who leaves the first year degree course, retaining only the special fee. However, the aforesaid GO does not bind the petitioner company and, therefore, is clearly inapplicable.
13. For the reasons stated hereinabove, the revision petition is allowed and the impugned orders are set aside subject to the petitioner filing within two weeks, an affidavit of its Managing Director stating therein that no student was admitted by them against the seat vacated by the complainant at any point of time during the duration of the coaching course in which the admission was taken by him. We make it clear that the affidavit would be filed only by the Managing Director and not by any other functionary of the petitioner company. A copy of the said affidavit would be sent to the complainant through counsel before it is filed with this Commission. In case such an affidavit is not filed the Registry shall forthwith list this matter for directions. The amount which the petitioner has deposited pursuant to the order of this Commission be refunded to him along with interest which may have accrued on that amount.
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(V.K. JAIN, J.) PRESIDING MEMBER ....
(DR.B.C. GUPTA) MEMBER rk.18