State Consumer Disputes Redressal Commission
Sabina Lamba vs Indiwar Misra on 22 October, 2007
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 22.10.2007 Appeal No. A-122/03 (Arising out of Order dated 03-01-2003 passed by the District Consumer Forum(North West), CC Block, Shalimar Bagh, Delhi in Case No. 40/2002) Ms. Sabina Lamba Appellant A-5, 1st Floor, Through Commercial Complex, Mr. Subodh K. Pathak, Mukherjee Nagar, Advocate Delhi-110009. Versus 1. Indiwar Misra Respondents S/o Prof. G. Misra, Provost Lodge, Jubilee Hall, Delhi-110007. 2. Shishir Kumar E-266, Gandhi Nagar, Mukherjee Nagar, Delhi-110009. 3. Rajiv Kumar E-239, Gandhi Vihar, Mukher Nagar, Delhi-110009. 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. Admittedly the appellant is a franchisee of CMC and running the franchise in the name and style of Advance Educomp Centre at A-5, 1st Floor, Raj Tower, Commercial Complex, Mukherjee Nagar, Delhi. On the allegation of deficiency in service for not providing the qualitative computer education and false claims, the District Forum has vide impugned order dated 03.01.2003 directed it to refund the fee of the 3rd and 4th semester to each of the complainants alongwith 9% interest and pay further compensation of Rs. 2,000/- and Rs.
1,000/- as cost of litigation.
2. Through this appeal the impugned order has been assailed mainly on the ground that the respondent is not the consumer qua the appellant because the appellant is only a franchisee.
3. The allegations of the respondent that led to the impugned order, in brief, were that being allured by the advertisement and impressed by the fact that the course will be completed within one year, which would help them in securing job on the basis of diploma provided by the appellant and with the hope of better future, the respondents joined the e-DAST one year fast track course and paid extra fee for joining the said course.
That the fee for the course in dispute was Rs. 34,000/- which was paid by each appellant in 10 equal instalment and two equal instalment of Rs. 2,000/- respectively. Further that at the time of registration, the appellant promised the appellants to complete the course within the stipulated period of one year but after the completion of one year, only 2 semesters were completed.
First semester was delayed by two months and the second semester was delayed by nearly three months. The classes of the course were not held as per the schedule. The appellant was more interested in the students who were enrolled in short term courses and thereby failed to complete the course in time. The respondents repeatedly requested the appellant to complete the course as assured but to no result and thus the appellant violated the promise made to the appellants at the time of joining the course in dispute within the stipulated period of one year. Frustrated by the harassment caused to the respondents by not completing the course within the stipulated period of one year they demanded the repayment of the balance fee of the course. Despite legal notice sent to this effect, the appellant failed to refund the fee, hence the present complaint.
4. As against this the version of the appellant denying any deficiency in service, in brief, was that option was given to the students to join the fast track course if a student is interested and capable of completing the two years course in one year. The fee for the complete e-DAST course for each student is Rs. 34,000/- whether the student opts for the fast track course or two years course.
It is great responsibility upon the students to prefer to join the fast track course to be more sincere and serious in the pursuit of their computer education and above all to be regular in their attendance to be able to cope up with the classes. Further that none of the respondents were interested in acquiring the computer classes and often missed out the lecturer conducted by the faculty members. The faculty members found it extremely difficult to finish the course of each semester within the stipulated period. Further great numbers of absence marked against the respondents elucidate lack of interest on their part to attend the classes and to finish the course within the stipulated time. Respondents themselves were instrumental for causing the delay in completion of the course. The respondents were not interested in completion of their course but in the refund of their money. The appellant was never informed or made aware that the respondent No.3 namely Rajiv Kumar hails from Bihar and as such the appellant is not liable for his overstay. The respondents had already started the 3rd semester and had collected the books for this semester and the respondent would have completed all the four semesters as scheduled if they had attended the classes/lectures regularly and with proper application of mind.
5. The preliminary objection raised by the appellant that respondent is not a consumer has no substance as the service of education or coaching may be in any form comes within the expression service of any description as referred in Section 2(1)(o) of the Consumer Protection Act which is made available to potential users against consideration. Merely because the appellant happened to be a franchisee does not take it out from the ambit of the service provider as it was the appellant who received the consideration amount directly and the privity of contract was between the appellant and the respondents.
6. As to the allegation of deficiency in service we find no material on the record to controvert the fact that 1st and 2nd semester were delayed by two or three months respectively nor has the appellant produced and placed on record any Memo or Notice issued to the respondents for their alleged absence and other unjustified conduct. If at all there was any negligence on the part of the respondent, there was no occasion for the appellant to charge the fees for 3rd or 4th semester if the respondent had not conducted well or not delayed it.
7. However, taking over all view of the facts of the case as well as the version of the appellant, we partly allow the appeal by setting aside the interest awarded by the District Forum as interest was not awardable in this case as there is no equitable ground to award the interest and maintain rest of the order.
8. The order shall be complied with within one month from the date of receipt of this order.
9. Bank Guarantee/FDR, if any furnished by the appellant, be returned forthwith.
10. 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.
11. Announced on 22nd day of October, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member ysc