State Consumer Disputes Redressal Commission
Apeejay Institute Of Management ... vs Prashant Ashok on 27 July, 2007
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 27.07.2007 Appeal No.07/320 (Arising from the order dated 21.03.2007 passed by District Forum(South West) Sheikh Sarai, New Delhi in Complaint Case No.719/2006) Apeejay Institute of Management .. Appellant. Information Technology, through Mr. H.L. Tiku, Sector-8, Dwarka Institutional Area, advocate. New Delhi. Versus Sh. Prashant Ashok Respondent C-1, Nightingale Apartments Vikas Puri, New Delhi. CORAM: Justice J.D. Kapoor, ... President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. For wrongful forfeiture of the tuition fee as well as admission fee amounting to Rs.39,170/- charged by the appellant for M.A. Mass Communication Course, the District Forum has vide impugned order dated 21.03.2007 held the practice of non refund of the fee in the given facts and circumstances of the case as unfair trade practice and directed it to refund the same with Rs.2,500/- as cost of litigation.
2. Feeling aggrieved the appellant has preferred this appeal.
3. The case of the respondent before District Forum was that in July 2003 he took admission for M.A. Mass Communication Course in appellants institution and paid a sum of Rs.39,170/- which alongwith other charges included tuition fee of Rs.25,500/-. The amount was deposited in favour of the institution by way of cheque which was credited to the account of the appellant. But before the admission formalities were completed his mother fell ill and he had to accompany her to his native place in Kerala for treatment. He went to the office of the appellant in the month of August 2003 and requested for refund of the fee informing them of his inability to continue with the course. The respondent gave a written notice through registered post to the appellant on 20.10.2003 informing the appellant to his inability to carry on with his studies and requested the appellant to refund the fee paid by him after charging minimum penalty. He sent another letter dated 02.12.2005 to the appellant requesting for refund of the fee deposited with the appellant but to no avail.
4. While justifying the non refund of the fee, the appellant came up with the plea that respondent had informed of his inability to continue with the studies in October and that he had given an undertaking dated 27.06.2003 that in the event of the respondent discontinuing the course it would forfeit the fee paid and he will also pay fee for the remaining part of the course so as to make up the loss caused to the appellant because of his withdrawal from the course. The classes for M.A. Mass Communication had started from August 2003 and he had remained absent. The appellant also sent him the date-sheet for mid-term examination but the respondent neither attended the classes nor did he sit in the examination. The appellant claimed to have informed the respondent that since his attendance was extremely short, he would be ineligible to sit for the semester examination of December 2003, and a final notice to that effect was sent to the respondent on 16.10.2003. The appellant issued cancellation of admission notice to the respondent on 03.11.2003 and a notice that his name was struck off from the rolls of the institution was also issued. The respondent had blocked one seat and had caused loss of one seat to the other student and he is bound by the terms and conditions notified in the prospectus. The appellant also submitted that the complaint filed on 02.10.2006 is liable to be dismissed on account of being time barred.
5. So far as the objection of the complaint being barred by time is concerned it is not sustainable as the cause of action was of subsisting nature and continuing till the grievance of the appellant was redressed. Moreover, in this case not only the legal notice was sent on 20.10.2003 but also another letter dated 02.12.2005 was also sent and complaint was filed in the year 2006. Thus even otherwise the complaint was well within limitation as it was filed within the prescribed time of two years from the cause of action that arose last.
6. However, in support of its right to forfeit the entire fee including tuition fee without having provided any service of coaching or without respondents having availed any such service at all as in the month of August itself the mother of the respondent fell sick and he expressed his inability to continue with the course, the learned counsel has placed reliance upon the following judgments of Honble Supreme Court and National Commission:-
I. Islamic Academy of Education and Another Vs State of Karnataka and Other (2003) 6 Supreme Court Cases 697. Observation made by the Honble Supreme Court are as under:
It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the year remaining years the seat would lie vacant and the institute would suffer. In our vie an 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 institution even if the student left in midstream. If any educational institution has collected the fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in nationalized bank. As and when fees falls due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due.
II.
Ramdeobaba Engineering College Vs Sushant Yuvraj Rode & Anr. III(1994) CPJ 160(NC) It was a case where the petitioner withdrew from the college and joined another college voluntarily and as such it was not found to be case of deficiency in service on the part of the college. However it was held that non-refund of admission fee is not a deficiency in service. Admission fees is a consideration for admission and the services which the college was to render to the student in the matter of his pursuing studies in the college after admission.
7. As is apparent the difference between the facts of case in hand and the facts before the Honble Supreme Court and National Commission stick out for miles. The instant case is not a case that the student had left the course in the midstream. It is also not a case where as per Supreme Court observation the institute can only charge prescribed fees for one semester/year and at the highest it may require the student to give a bond/bank guarantee that the balance fees for whole course would be received by the institution even if he left in midstream and if the institute collects the fees in advance only the fees of that semester/year can be used by the institution and the balance fees must be kept invested in fixed deposits and as and when fees fall due for a semester/year only the fees falling due for that semester can be withdrawn by the institution and rest shall remain deposited till such time that they fall due and at the end of the course the interest must be paid to the student from whom the bond/guarantee has been obtained. Since none of the aforesaid requirements or the suggestions of the Supreme Court were adhered to by the appellant, the appellant Institute cannot avail the benefit of the judgment of the Supreme Court. In view of ratio of judgment of Supreme Court, view of National Commission is no avail.
8. Here the candidate did not join the course at all. It is not a case of leaving the Institute in the midstream. He had informed the institute well in advance that due to sickness of his mother it will not be possible for him to join the course. On the contrary the appellant has not come up with any documentary evidence that the student attended one semester or any of the class.
9. All actions of the Institute informing the respondent about his ineligibility to sit for the semester examination of December 2003 and a final notice to that effect and cancellation of admission were meaningless and play to forfeit the fees illegally and unjustly. There action smacks of malafide.
10. The deficiency in service would arise if the service is provided and to charge consideration for service which has neither been provided nor has been availed is nothing short of unfair trade practice to become unjustly rich. In our view Institutes may charge three months fees in advance but not for whole duration of the course of 2-3 years for which the services are yet to be provided, as by charging lump sum fees for 2-3 years duration in one go bind the students to such an extent that he can not leave the Institute even if he finds quality of coaching, highly substandard and jeopardize his career prospective as the sword of damocles of no-refund of the advance fees taken in one go looms large over his head.
11. Taking overall view of the matter and the facts of the case, we do not find any merit in the appeal and dismiss the same in limine.
12. The payment shall be made within one month from the date of receipt of this order.
13. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
14. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 27th day of July 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri