State Consumer Disputes Redressal Commission
Blobsyn Business School vs Mayuri Ghosh on 25 September, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/120/11 (Arising out of Case No.87/2010 of District Consumer Disputes Redressal Forum, North 24 Parganas, Barasat ) DATE OF FILING : 03.03.11 DATE OF ORDER: 25.09.2012 APPELLANT : 1. Blobsyn Business School, Kolkata, Globsyn Crystal-XI-11 & 12 being EC Sector V, Salt Lake Electronics Complex, Kolkata- 700 091. RESPONDENT : 1. Mayuri Ghosh, Daughter of Mr. Ranjan Ghosh 77B, Durga Charan Doctor Road, P.O. Entally, Kolkata- 700 014. W.B. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANTS : Mr. B.N. Joshi, Advocate. FOR THE RESPONDENTS : Mr. Prasanta Banerjee, Advocate. Debasis Bhattacharya, Member.
Being aggrieved by and dissatisfied with the judgment and order dated 28.01.11 in C.C. No. 87/10 as passed by the Ld. District Forum, North 24 Parganas, the O.P. thereof has preferred this appeal.
It has been the contention of the Respondent/ Complainant in her petition of complaint that she applied on 20.01.09 for participating in the admission of P.G.P.M./ P.G.P.I.B. programme at the institution of the O.P. On 24.02.09, the O.P. informed her that she had been selected for final round of selection for the programme, and on 10.3.09, she received an offer letter from the O.P. for admission to the P.G. Programme for the session 2009-11. Accordingly, on 08.04.09, she sent a cheque bearing no. 888283 of United Bank of India towards payment for the first admission fees for the P.G.P.M. (Post Graduate Programme in Management), the receipt of which was informed by the O.P. on the same day by a letter and it was informed that the total course fees come to Rs.5,35,000/- . On 07.05.09, being hard pressed for financial crisis, she sent an e-mail for refund of the admission fees of Rs.35,000/- and also sent a letter by the same date which was duly received by the O.P. and again reminded the Admission Co-ordinator on 30.6.09 for refund of the amount. In response, on 13.7.09, the O.P. sent an e-mail to her stating that the refund request was fitted on a compassionate ground and requested her to get in touch after 01.8.09 to know the refund status. Accordingly, she sent a letter dated 12.8.09 in respect of the refund of Rs. 35,000/-, annexing therewith the relevant documents. She is a consumer of service of the O.P. and she has cancelled and withdrawn her admission when the P.G.P.M. Course had not commenced and the O.P. has not right to refuse to refund the admission fees to her without imparting education and the same amounts to deficiency in service of the O.P. So, the complaint case.
On the other hand, the case of the Appellant/O.P. in its w.v. is that the instant petition is not maintainable and misconceived and the Complainant has no right to claim refund of the sum of Rs.35,000/- paid by her towards fees for admission and the Offer Letter dated 10.3.09 issued to all candidates, including the Complainant categorically mentioned that the same was non-refundable and that fees once tendered shall not be refunded under any circumstances and the same was well known to the Complainant before she took admission to the course and/or made the initial payment of Rs.35,000/-. By a supplementary w.v, it has been made out that an expenditure of Rs.1,41,667/- was incurred by the O.P. per candidate towards admission process to the PGPM course for the session 2009-11, calculated on the basis of the total expenditure incurred for the course with a capacity of 180 seats out of which only 165 seats were eventually filed up and 15 seats remained vacant, so the O.P. suffered a loss of Rs.1,41,667 x 15 = Rs.21,25,000/- approx. by reason of the said 15 seats of the said course remaining vacant, and in view of the huge loss already suffered by it, the O.P. is not at all in a position to refund the sum of Rs.35,000/- to the Complainant. In fine, it has prayed for dismissal of the instant petition.
By the impugned judgment and order, the Ld. District Forum has allowed the case on contest without any cost directing the O.P. to refund the course fee of Rs.35,000/- to the Complainant within a period of 30 days from the date of communication of the order, failing which the Complainant shall at liberty (to) execute the same as per provisions of law, which has been assailed by the said O.P. by preferring this appeal.
It is to be considered if the said judgment and order impugned is legally and materially tenable, or not.
Decision with reasons Ld. Advocate for the Appellant has submitted that education is not a trading activity and refund of price does not come under the purview of consumer dispute and there is no deficiency in service of the Appellant and has cited a decision of the Honble Calcutta High Court in the case of Smt.N. Taneja and another vs. Calcutta Distt. Forum and others in C.O. No. 873 (W) of 1991 (downloaded from Manupatra) and two decisions of the Honble National Commission, first, the case of Indian Banks Association/Canara Bank vs. Archana Kamath and Others in Revision Petition Nos. 452/453 of 1993 as reported in (1994) 2 CTJ 695 (CP) (NCDRC) and secondly, the case of Ramdeobaba Engineering College vs. Sushant Yuvraj Rode & Anr. in Revision Petition Nos. 558 & 594 of 1993 as reported in III (1994) CPJ 160 (NC) in these respects. He has further relied upon a decision of the Honble Supreme Court in the case of the Central Bank of India vs. Hartford Fire Insurance Co. Ltd. in Civil Appeal No. 409 of 1961 as reported in AIR 1965 SC 1288 and a decision of the Delhi State Commission in the case of Tata Timken Limited vs. Smt. Veena Gupta in C. No. A-286 of 1995 as reported in II (1996) CPJ 210. He has further made out that no service has been taken, served and utilized by the respective party and there is no deficiency of service on the part of the Appellant. There is no sympathetic jurisdiction in the C.P. Act. There is no harsh clause of the Appellant involved in the matter, though such harsh clause has been dealt favourably by the Honble Supreme Court in the citation referred being AIR 1965 SC 1288. This is a money claim simpliciter and the available forum is the civil court.
Ld. Advocate for the Respondent has submitted that the request for refund has been made when the admission is going on and not in mid-session. He made out that the judgment and order as impugned is just and proper. He has relied upon a decision of the Honble National Commission in the case of COMED-K vs. Smt T. Nagamani in Revision Petition No. 731 of 2009 as reported in 2009 (2) CPR 380 (NC).
In C.O. No. 873 (W) of 1991 (supra), one of the major points of the petitioners was that the Consumer Protection Act has no jurisdiction to enter into the domain of Education and cannot try any proceeding against any teacher on the allegation that a student had not been sent for Madhyamik Examination. But, in this case it is not Education primarily and strictly in dispute and the proceeding is not against any teacher by a student regarding educational matter, but non-refund of admission fees. So also the dispute is not in the realm of pricing and adequacy and reasonableness of the consideration or the price charged for the services rendered or to be rendered, which are not in question, and the decision of the Honble National Commission reported in (1994) 2 CTJ 695 (CP) (NCDRC) (supra) referred to by the Ld. Advocate for the Appellant does not fit into the case. The other relevant judgment in the matter cited by the Ld. Advocate for the Appellant is of the Honble National Commission reported in III (1994) CPJ 160 (NC) (supra) is dated 19.9.94, where the revision petitioner College was prepared to refund the caution money, but it was not agreeable to refund the admission fee of Rs.8,800/- on the ground that under the orders of the Government of Maharashtra promulgated in September, 1988, where a student leaves the institution and applies for refund of the fees after 30 days from the date of admission, no fee is to be refunded . So, it was held that this is a case where there has been no deficiency of service on the part of the revision petitioner Engineering College. But, in this case at hand no such orders of the State Government concerned is produced and also within 30 days from the date of admission, the prayer for refund of fees has been made. Further, in a more recent judgment dated 22.4.09 of the Honble National Commission reported in 2009 (2) CPR 380 (NC) (supra), as referred by the Ld. Advocate for the Respondent, it was held that the University Grants Commission in their Circular dated 23.4.07 has issued a public notice stating that the entire fee collected from the student after deduction of processing fee of not more than Rs.1,000/- shall be refunded to the student withdrawing from the programme and stated therein also that the Honble National Commission in a catena of judgments has directed the educational institutions to refund the fees of students who have left the college and got admission in some other institutions. So, following such judgment of the Honble National Commission, the Appellant is required to refund to the Respondent the admission fees of Rs.35,000/- minus Rs.1,000/-. It is imperative and incumbent upon the Appellant to do so. Accordingly, the impugned order is sustainable, but with some modification regarding deduction of the processing fee of Rs.1,000/- from the admission fees. There is no other ambiguity in the impugned judgment and order to be interfered with.
In the result, the appeal fails.
Hence, Ordered That the appeal be and the same is dismissed on contest without any cost. The impugned judgment and order is affirmed with certain modification.
Accordingly, the Appellant is hereby directed to refund to the Respondent Rs.35,000/- minus Rs.1,000/- within a period of 30 days from the date of communication of this order, failing which the Respondent shall be at liberty to execute the same as per provisions of law.
Jagannath Bag.
Debasis Bhattacharya (Member) (Member)