State Consumer Disputes Redressal Commission
Fiitjee Ltd. vs Hamza on 7 July, 2023
FA NO./220/2022 FIITJEE LTD. VS. HAMZA D.O.D.: 07.07.2023
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 14.11.2022
Date of hearing: 15.05.2023
Date of Decision: 07.07.2023
FIRST APPEAL NO.- 220/2022
IN THE MATTER OF
FIITJEE LIMITED,
THROUGH ITS CONCERNED AUTHORISED
REPRESENTATIVE OF FIITJEE LTD.,
BOTH AT:
29-A, KALU SARAI,
SARVAPRIYA VIHAR, NEW DELHI.
(Through: Mr. Raaj Malhotra, Advocate)
...Appellant
VERSUS
HAMZA,
THROUGH ITS FATHER/NATURAL GUARDIAN,
INTIKHAB ALAM,
S/O ABDULSALAM,
R/O 163/2, JOGI BAI,
JAMIA NAGAR, OKHLA, NEW DELHI.
(Through: Mr. Pramod Kumar, Advocate)
...Respondent
ALLOWED PAGE 1 OF 9
FA NO./220/2022 FIITJEE LTD. VS. HAMZA D.O.D.: 07.07.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Raaj Malhotra, counsel for the Appellant.
Respondent in Person along with Mr. Pramod Kumar,
counsel for the Respondent.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Forum record are:
"Complainant's son Hamza got enrolled in FIITJEE Ltd. (hereinafter referred to as OP-1) in a two year classroom programme for JEE (advance) weekend contact classes on 06.04.2013.
It is stated that Complainant paid the total amount for full two years i.e Rs.2,06,670/- vide post dated cheques. Complainant's son upon attending the institute of OP realized that the tall promises made by OP at the time of admission were not being fulfilled by OP. Complainant's son was not getting proper attention in the classes, as assured. It is stated that the queries or doubts raised by complainant's son remained unattended. The teaching staff of OP made one excuse or the other but the doubts of the student remained unsolved. It is stated that the teacher would sometime say that the problems will be solved when at least five or six students have the same problem or that problems will be cleared once the session comes in full swing. The said assurances kept dragging and wasted full four important months of the complainant's child.
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It is stated that the complainant telephonically informed OP regarding the problems faced by his son and he even visited the office of OP on 04.08.2013 and 06.08.2013 but was of no use. It is stated that the complainant vide letter dated 13.08.2013 informed OP that his son would quit the institute as he was dissatisfied with the services provided by OP. But no satisfactory reply was given by OP till filing of the complaint.
Alleging deficiency in service of OP, Complainant approached this Commission with prayer to award sum of Rs.3,06,670/- including the refund of total tuition fees and also award the cost of litigation."
2. The District Forum after taking into consideration the material available on record passed the order dated 14.09.2022, whereby it held as under:
"It is complainant's case that complainant's son attended the classes of OP for about four months and was not satisfied with the quality of teaching/training being imparted, particularly lack of personalized attention and not solving the queries or problems of the student. Therefore complainant's son had no option but to quit OP's institute.
OP has raised an objection stating that the complainant and his son had accorded their consent to the terms and conditions contained in the enrollment form without any coercion or undue influence therefore they are bound by those terms & conditions. On perusal of the terms & conditions in the enrollment form it is noticed that certain clauses are arbitrary and unreasonable. Clause 8 of the Enrollment form reads as under:
I undertake that if I leave the institute midway before completing the full course for any reason whatsoever, including but not limited to transfer of my father/mother/legal guardians/ill health of myself or any other member of the family admission or my admission ALLOWED PAGE 3 OF 9 FA NO./220/2022 FIITJEE LTD. VS. HAMZA D.O.D.: 07.07.2023 in any institute/course/engineering college etc.,or my studentship is cancelled because of misconduct etc I or my parents/guardians... shall not be entitled for refund of fees.
Mere reading of the dlause above shows that it is unreasonable unconscionable or voidable is not enforceable. The terms like "fees once paid is not refundable" is unconscionable as well as voidable, therefore not actionable. It is also noticed that there is no Exit clause in the agreement/enrolment form in case students finds the services of OP unsatisfactory and wishes to withdraw from the institute. Students may leave the course midstream, if he finds the service deficient or substandard and non yielding and to tell him that fees once paid is not refundable is uncalled for. Therefore, absence of the Exit clause makes agreement unconscionable as it is one sided.
In view of the above, we opine that OP cannot draw any benefit from the consent of the complainant as the terms of the agreement are unjust unconscionable and one sided.
Similar view has been taken in Brilliant Tutorial Vs Rahul Das in Appeal No. 509/2006, decided on 09.01.2017, wherein Hon ble State Commission held that:-
Any such term of contract between the parties, which allows the provider of service to forfeit the amount of service, which he has not provided is against the public policy and good conscious, unjust and unconscionable as the provider of service has the right to charge consideration only if it provides the services.
As regards the Arbitration clause in the Enrollment form, Section 100 of Consumer Protection Act, 2019 is very clear that the provisions of this act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
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There is no denying the fact that OP must have incurred costs prior to the commencement of the said course but it would not be just and proper for OP to retain the full one year fee from the student/complainant's son who attended the classes of OP institute for only four months. OP cannot forfeit full fee of the complainant on the pretext of financial loss, when the student has attend the classes for four months. OP cannot take or charge the consideration of the service, which it has either not given or was not availed by the complainant.
Therefore, we are of the considered view that OP is entitled to deduct the fee for the period, services of OP were availed and proportionate and reasonable fee from the advance fee collected, for the cost incurred by them and refund the remaining amount to the complainant. The Complainant initially pleaded to have paid Rs 2,06,670/- including the post dated cheques however payment of post dated cheques was stopped and eventually an amount of Rs. 1,36,220/- stood credited to the accounts of OP as consideration towards the course fee. In view of the discussion above OP is allowed to retain Rs.60,000/- from the fee collected towards service tax, cost of books , study material and for services rendered to the complainant for four months and OP is directed to refund the balance amount of Rs.76,220/-.
Thus, we allow the complaint and direct OP to refund Rs.76,220 @6% per annum from the date of filing of the complaint within three months failing which OP shall pay Rs 76,220 @9% per annum from the date filing of the complaint will realization. Additionally, OP is directed to pay Rs. 10,000/- towards cost of litigation."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant has preferred the present appeal contending that the District Commission has erred in not relying to the fact that the courts cannot ALLOWED PAGE 5 OF 9 FA NO./220/2022 FIITJEE LTD. VS. HAMZA D.O.D.: 07.07.2023 go beyond the terms and conditions of the contract entered between the parties and that the parties are bound by the terms in the contract. The Appellant further contended that the son of the Respondent left the course midway voluntarily and therefore, no fault could be attributed to the Appellant. By pressing the aforesaid contentions and submissions, the Appellant has prayed for setting aside the Impugned Judgment.
4. The Respondent, on the other hand, has failed to file the reply and short written submissions even after giving opportunity to him vide order dated 15.05.2023.
5. We have perused the materials available on record.
6. The main question for consideration before us is:
Whether the Appellant is actually deficient in providing its services to the Respondent and is liable to refund the fee amount deposited by the Respondent.
7. We first deem it appropriate to refer to Clause 8 of the Enrolment Form which is reproduced below:
"I undertake that if I leave the institute midway before completing the full course for any reason whatsoever, including but not limited to transfer of my father/mother/legal guardians/ill health of myself or any other member of the family or my admission in any institute/course/engineering college etc., or my studentship is cancelled because of misconduct etc. I or my parents/guardians.....shall not be entitled for refund of fees."
8. Bare perusal of the aforesaid clause indicates that the student taking admission with the coaching institute/Appellant is not entitled to ALLOWED PAGE 6 OF 9 FA NO./220/2022 FIITJEE LTD. VS. HAMZA D.O.D.: 07.07.2023 refund of any part of the fee paid by him, irrespective of the ground on which he withdraws from the said coaching course.
9. It is pertinent to refer to the dicta of the Hon'ble National Commission in "FIITJEE Ltd. Vs. Harish Soni" in R.P. No. 2684 of 2014, decided on 09.01.2015, wherein, the Hon'ble National Commission has held that "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."
10. Further, under catena of Judgments namely "FIITJEE Ltd. Vs. Harish Soni in R.P. No. 2054/2013, Apeejay Institute of Management and Information Technology Vs. Prashant Ashok-I (2009) CPJ 10(NC), Jaipreet Singh Kaushal Vs. FIITJEE Ltd. & Anr. in R.P. No. 918/2015, Brilliant Classes Vs. Ashbel Sam in R.P. No. 270/2006." on similar issues, the Hon'ble National Commission has held that when the terms and conditions provide for forfeiture of fees, then student is not entitled for refund.
11. From, the aforesaid holdings of the Hon'ble National Commission it is clear that as per the written agreement (herein referred to as Enrollment Form) between the parties and according to the said agreement, Respondent has agreed that he shall not be entitled for any refund in case Respondent leaves the course in between for any reason whatsoever. Moreover, the said agreement was signed by the ALLOWED PAGE 7 OF 9 FA NO./220/2022 FIITJEE LTD. VS. HAMZA D.O.D.: 07.07.2023 parents/natural guardians and Respondent without any protest or undue influence.
12. Furthermore, the Respondent failed to show any non-performance of any term or condition of the contract on part of the Appellant Company.
13. Therefore, the Complainant/Respondent had withdrawn voluntarily after four months and management could not admit any new student for the course in his place and according to the terms and conditions of the agreement the Respondent is not entitled for any refund of fees deposited by him.
14. From the aforesaid discussion, it is clear that the where the seat vacated on account of withdrawal by a student during the on-going 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. Henceforth, we do not find any deficiency on the part of the Appellant Company in providing its services to the Respondent.
15. In the light of the above discussion, we allow the present appeal and set aside the order dated 14.09.2022 passed by the District Consumer Disputes Redressal Commission-II, Udyog Sadan, New Delhi- 110016. Consequently, the Complaint Case No. 605/2013 stands dismissed.
16. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment. FDR be released in favour of the Appellant.
14. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
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15. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
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