BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT PUDUCHERRY
Consumer Complaint No.68/2007
Dated this the 4th day of June, 2008.
Kokila (minor) rep. by her father Durai @ SPA Adisenuponnu S/o Adhimoolam Giramani, residing at No.58,
1. The Principal, Achariya Siksha Mandir,
2. The Managing Director, Achariya Group of Education, No.34,
… Opposite parties
THIRU A. ASOKAN, B.A., B.L.,
Tmt. T. SELLIAMMAL,
Tmt. K.K. RITHA,
FOR THE COMPLAINANT: Thiru R. Ravikumar, Advocate.
FOR THE OPPOSITE PARTIES: M/s S.S. Thanasekaran, R.B. Sreedharane, G. Karthikeyan, Advocates.
O R D E R
(By Tmt. K. K. Ritha, Member.)
This is a complaint u/s 12 of the Consumer Protection Act, 1986 (hereinafter called the “Act”), praying to direct the opposite party to refund Rs.31,000/- paid as admission fee with interest @ 24% p.a., to pay Rs.50,000/- as compensation towards deficiency in service and costs of Rs.5,000/-.
2. The gist of the complainant’s case is as follows:
The complainant submits that she paid a sum of Rs.10,000/- towards the total amount of the admission fees of Rs.32,000/- for the first year to undergo Higher Secondary Course for his daughter. 23.06.2006 onwards she went by private bus to the institution, which is nearly 15 km. away from her residence. The remaining amount of Rs.21,000/- was paid by the complainant on 28.06.2006 with a discount offer of Rs.1,000/- by the opposite party and thereby a sum of Rs.31,000/- was paid by the complainant as fees. Thereafter, the complainant attended the school only for thirteen days, since she was allergic to dust and other problems in travelling 15 km. in bus. Then the complainant put her in
3. The opposite parties deny the allegations made by the complainant. The opposite parties submit that the complainant was well aware of the distance of 15 km. of the school from his residence at the time of his daughter’s admission. Moreover, if the complainant had disclosed the state of health of his daughter, the opposite parties would not have admitted her in their institution. At the time of seeking admission in the opposite parties’ institution, the complainant could have got admission in
4. To substantiate their respective cases, Exs.C1 to C11 were marked on the side of the complainant and Exs.R1 to R5 were marked on the side of the opposite parties.
5. The points for determination are:
1) Whether the complainant is a ‘consumer’ or not?
2) Whether there is any deficiency in service on the part of the opposite parties?
3) To what relief the parties are entitled?
6. POINT No.1:
The complainant paid fees of Rs.31,000/- under Exs.C1 and C2 for his daughter’s admission in the first year Higher Secondary Course, in the opposite parties’ institution. Hence, consideration was made by the complainant to the opposite parties for educational purposes. As per Section2(1)d(ii) of the Act, ‘Consumer’ means any person who –
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person but does not include a person who avails of such services for any commercial purpose;
The service rendered by all the educational institutions attracts remedy under the Act and hence the complainant is a consumer who can seek remedy before this Forum.
7. In the case of Bupesh Khurana and Others Vs. Visbuva Buddha Parishad and Others,the Hon’ble National Commission on 29th September, 2000 has made the following observation:
“Imparting of education by the educational institutions for consideration falls within the ambit of ‘service’ as defined in the Act. Fees are paid for the services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fees would not arise. The complainant had hired the services of the respondent for consideration, so they are consumers as defined in the Act.”
In the complaint on hand, the complainant is a consumer since consideration was made by the complainant to the opposite parties for obtaining service.
The point is answered accordingly.
8. POINT No.2:
The complainant made payment towards the admission and other fees to the tune of Rs.31,000/- under Exs.C1 & C2 on 23.06.2006 and 28.06.2006 on behalf of his daughter. She attended the opposite parties’ institution for 13 days and she left since she was allergic to dust. Her residence is 15 km. away from the institution and she travelled by bus, which had affected her health. A medical certificate from a retired health officer under Ex.C3 is produced by the complainant stating that she suffers from “recurrent sinusitis and is advised to avoid over exposure to sun.” On 24.07.2006 the complainant sent Ex.C4/letter to the first opposite party with a request to refund the fees of Rs.31,000/- paid by him for his daughter’s admission. Ex.C5 relates to the complainant’s request to the first opposite party for refund of the fees and there is a remark made by the first opposite party in the letter itself as “admission done without submitting transfer certificate – attended class for two weeks in the month of June – want fees” and in Ex.C6 the above remarks of the first opposite party along with the second opposite party’s as “no refund as per policy.” Since there is no refund of the fees made by the opposite parties, the complainant issued Ex.C7/legal notice on 02.01.2007 and Exs.C8 and C9 are the acknowledgments. Ex.C10 is the birth certificate of his daughter and Ex.C11 is the ID-card.
9. The first opposite party filed Ex.R1/prospectus of the opposite parties’ institution, wherein various activities of the institution are enumerated and at page 39 – “No refund of any fees paid is possible as per policy.” Exs.R2 to R5 are the attendance registers for the months of June, July, August and September, 2006.
10. According to the complainant he made a payment of Rs.31,000/- towards fees for his daughter’s admission in the opposite parties’ institution to undergo first year Higher Secondary Course. Due to her health condition, she was unable to travel 15 km. from her residence to the opposite parties’ institution by bus. Hence, a medical certificate was produced by the complainant in this regard. Since his daughter attended classes only for 13 days, the complainant requested the opposite parties to refund the fees paid by him. As far as the opposite parties are concerned, there is no duress or pressure from their side for the complainant’s daughter leaving their institution. The complainant left on her own volition and that the opposite parties are not responsible for her act. The opposite parties contended that as a matter of policy, the fees paid could not be refunded when there is no fault on their part.
11. From the above contentions made by the complainant and the opposite parties, this Forum has to decide whether the complainant is entitled for the refund of the fees or not. The complainant paid Rs.31,000/- as fees and attended classes for 13 days. The complainant left the institution on her own accord. There is a stipulation in the opposite parties’ prospectus that there is no refund of fees as per policy. From this, it is obvious that there is no refund of fees as per the policy of the institution. The complainant joined the institution without producing transfer certificate from the previous institution and it is evident that the opposite parties admitted the student without the transfer certificate as observed in Exs.C4 to C6.
12. In a similar situation, the State Commission, Delhi, in deciding the case of Apeejay School and Another Vs. M.K. Sangal and others (reported in 1993 (2) CPR P.62) has relied on the recent decision of the Hon’ble Supreme Court in the case ofCentral Inland Water Transport Corporation Ltd. Vs. Brojo Nath (reported in A.I.R. 1986-SC.1571, the Hon’ble Supreme Court has observed the following:
“Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and un reasonable contracts, or, an unfair and unreasonable clause in contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations, which arise in the affairs of man. The above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable, a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal.
13. From the facts and circumstances of the case on hand, it is obvious that the complainant paid Rs.31,000/- as fees and subsequently his daughter left the institution on health grounds. According to the opposite party, the complainant left the institution on her own and the allegations made by them are baseless. At this juncture, we have to decide whether the claim made by the complainant for the refund of the fees can be considered or not and whether there is any deficiency of service on the part of the opposite party.
14. The complainant’s daughter left opposite party’s institution and thereby there was no service rendered by the opposite party to the student. The fact is that the complainant left the institution on her own volition and there was no pressure from the opposite party’s side. Hence, there is no deficiency of service on the part of opposite party. But when we see from the angle whether an institution is entitled to retain the fees paid by a student when there is no service rendered, the answer is ‘No’. Though the student left voluntarily there was no service availed by the student from the opposite party during the academic year. A student is a consumer of services in educational institutions and when there is no service availed there is no right with the institution to appropriate the fees of a student.
15. The complainant’s counsel produced the following citations to prove his case:
1) 1(1994) CPJ 370 Maharashtra State Commission – Akhil Bharatiya Grohak Panchayat, Pune & another v. The Principal, JNF’s AGPH Medical College – When there is no service availed, there is no right with the college to appropriate tuition fees of a student.
2) 1993(1)CPR p.595 – State Commission, Madras – S. Venkatapathy & others v. The Principal, Adhiyaman College of Engineering & another – Held that the complainants are consumers. Refusal to refund fee amounts to deficiency in service.
3) 1992(1) CPJ 105 – Apel Pacheco Gracias v. Principal, Bharati Vidyapith College of Engg. Maharashtra State Commission – If there is no rendering of service, quantum of payment of fees would not arise – If student has cancelled admission for genuine reasons, he should be entitled to refund of his tuition fees. The principle of refund is well recognized in every day life, i.e. in case of travel by railway, planes & other modes. Refusal to refund is a penal action. A student is essentially a consumer of services in an educational institution. Therefore, when there is no service there is no right with the college to appropriate fees.
4) 1992(1) p.147 – S.M. Balasubramania Sarma v. A. Krishnamoorthy – State Commission, Madras – It was contended that the course was for a period of two months but the respondent’s daughter has attended the class only for three days and it is therefore claimed by the complainant that a proportionate amount out of the tuition fees of Rs.701/- paid by him may be refunded to him. The learned counsel for the appellant relies on clause 6 of the application form and contends that the fee would not be returned whether or not the pupil attends the course or takes the examination. Such a clause is of a penal nature and cannot deprive the complainant of his right to receive the proportionate amount when for reasons unforeseen his daughter could not continue the tuition.
From the above judgments, it is clear that a student is entitled for the refund of the fees whenever there is no service rendered by the institution.
16. The opposite party highlighted Para-7 of the judgment in AIR 2003 SC 3724 for proving his case. Some educational institutions are collecting in advance the fees for the entire course, i.e. for all the years. This was done because the institute was not sure whether the student would leave the institution midstream, then the institute would suffer. In the present case, the learned counsel for the opposite party stated that the fees collected by them is proper and within the norms. Since the present case revolves on the refund of the fees for the unrendered services by the first opposite party, the above judgment placed by the opposite party does not have any impact on this complaint. Hence, it does not apply squarely to the present complaint.
17. From the facts of the case and the arguments made by the learned counsel, this Forum has come to the conclusion that for the fees paid by the complainant, the opposite parties had not rendered service, though they were willing to do so. Whenever, there is no service rendered to a consumer, the opposite parties are not entitled to retain the amount for the unutilized services. A student is a consumer of services in educational institutions and when there is no service availed, there is no right with the institution to appropriate the fees of a student. Hence, withholding the fees of a student for the remaining period of unrendered services amounts to unfair trade practice. Hence, the complainant is entitled for the refund of a sum of Rs.30,000/-, after deducting a sum of Rs.1,000/- towards administrative charges, with interest @ 12% p.a. from the date of filing of the complaint, i.e. 24.08.2007, till date of realization.
The point is answered accordingly in favour of the complainant.
20. POINT No.3:
Since Point Nos.1 & 2 have been answered in favour of the complainant, the complainant is entitled for the relief of refund of Rs.30,000/-, after deducting Rs.1,000/- towards administrative charges, with interest @ 12% p.a. from the date of filing of the complaint, i.e. 24.08.2007, till date of realization and costs.
21. In the result, the complaint is allowed to the effect that:
i) The opposite party shall refund to the complainant a sum of Rs.30,000/- (Rupees thirty thousand nine hundred only) with interest @ 12% p.a. from the date of filing of the complaint, i.e. 24.08.2007, till date of realization; and
ii) The opposite party is directed to pay to the complainant a sum of Rs.2,000/- (Rupees two thousand only) towards costs of the proceedings.
Dated this the 4th day of June, 2008.
COMPLAINANT’S WITNESS: NIL
OPPOSITE PARTY’S WITNESS: NIL
Ex.C1 – 23.06.2006 – Copy of receipt for payment of admission fee issued by opposite party to complainant.
Ex.C2 – 28.06.2006 – Copy of receipt for payment of fee issued by opposite party to complainant.
Ex.C3 – 24.07.2006 – Copy of medical certificate to complainant.
Ex.C4 – 24.07.2006 – Copy of letter by complainant with endorsement by opposite party.
Ex.C5 – 24.07.2006 – Copy of letter by complainant with endorsement by opposite party.
Ex.C6 – 24.07.2006 – Copy of letter by complainant with endorsement by opposite party.
Ex.C7 – 02.01.2007 – Copy of advocate notice issued by complainant to opposite parties.
Ex.C8 - Copy of postal acknowledgement pertaining to Ex.C7.
Ex.C9 - Copy of postal acknowledgement pertaining to Ex.C7.
Ex.C10- 28.06.2005 – Copy of birth certificate of complainant.
Ex.C11- Copy of school identity card of complainant issued by Immaculate Heart of Mary Girls’ Higher Secondary School, Pondicherry.
OPPOSITE PARTY’S EXHIBITS:
Ex.R1 – Prospectus of opposite parties’ institution.
Ex.R2 – Attendance register of Class XI-A of opposite parties’ institution for the month of June, 2006.
Ex.R3 – Attendance register of Class XI-A of opposite parties’ institution for the month of July, 2006.
Ex.R4 – Attendance register of Class XI-A of opposite parties’ institution for the month of August, 2006.
Ex.R5 – Attendance register of Class XI-A of opposite parties’ institution for the month of September, 2006.