Consumer Protection ... v. Shri Vepa Kamesam Ma...

*** The Appellants herein are complainants and the Respondent is opposite party before the District Consumer Forum, Ranga Reddy District [for short, "the District Forum"] in C.C.no.62/2012.

2. The Appellant no.2 took admission in the Respondent Institute, to pursue a one year course in the International Post Graduate Diploma in General Insurance, consisting of two semesters, on 18.07.2011 by making payment of a fees of Rs.2,56,175/-. But unfortunately she fell ill on account of Typhoid and could not attend the Institute for 22 days and that as such availed leave on medical grounds. This caused deficit of 95% attendance in all the 6 subjects and as such she was not allowed to appear for the First Semester exam, which commenced from 31.10.2011 to 05.11.2011. However, at her request the management of the Institute allowed her to appear only for 2 subjects, where her attendance was more than 75%, on payment of condo-nation fees, with an advice to enroll afresh in the first semester in 2012 and get the required attendance for eligibility to appear for the remaining subjects and thereafter to do an internship and attend 2^nd semester classes scheduled from 19.12.2011. But she decided to quit the course and made a request to the Respondent Institute to refund Rs.1,12,500/- + Rs.11,587/- towards the proportionate course fee and service tax along with library caution deposit of Rs.3,000/-. But the Respondent Institute rejected her demand but however agreed to refund only security money of Rs.3,000/- only on the premise that she had agreed at the time of taking admission to the terms and conditions regarding fee payment and non-refund clause noted in the Student Hand Book -2012 by signing on her self declaration and that as her decision to discontinue the studies was voluntary, she was not entitled for the refund as sought for. Therefore, she was constrained to approach the District Forum under Section 12 of the Consumer Protection Act, 1986by way of filing C.C.no.62/2012 seeking refund of the above noted amounts with compensation, damages and costs on the ground of deficiency in service, through the complainant no.1, a Registered Voluntary Consumer Organization.

3. After due enquiry into the matter the learned District Forum, by the impugned order dated 30.12.2013 dismissed her claim which gave rise to preferring of the present appeal.

4. The contention of the Appellants/Complainants, interalia, is that the District Forum has erred in ignoring the law laid down by the Hon'ble Supreme Court and the Hon'ble National Consumer Disputes Redressal Commission in various cases and also the ambiguity with regard to the period of absence of the Appellant no.2, in the pleadings. Further, the Respondent Institute did not produce the record to show her actual period of absence when the same was challenged by her. The District Forum also did not consider the malafide attitude of the Respondent Institute in making money by way of compelling the Appellant no.2 to pay additional Rs.1,00,000/- towards tuition fee at the cost of loss of her 1 ½ year of career in prosecuting the studies for no fault on her part.

5. Perused the impugned order, material evidence placed on record, the written arguments and heard the Secretary of the Appellant no.1 Organization and the learned counsel for the Respondent Institute.

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6. Now the point for consideration is that:

Whether the impugned order is erroneous, both on facts and under law and that as such liable to be set aside?

7. Point :- At the outset, the learned defence counsel has contended that the Appellants, instead of filing the case against the Respondent Institute, have filed it against the Managing Director of it in person, before the District Forum and that as such the same is not maintainable. But this objection, in our opinion, is too technical to consider. Because the Appellant no.2 is a student hailing from Chattisgarh State and that under distress she had to approach an NGO., i.e., Appellant no.1 for redressal. However, the Appellant no.1 was careful enough to note the designation of the person, Mr. Vepa Kamesam as Managing Director to represent the Respondent Institute. The Respondent has taken a plea that the said person was already retired from service. But even then the post of Managing Director must have been assumed by some other person. Therefore, there is nothing wrong to proceed against the Institute, being represented by the present Managing Director of the Respondent Institute. It is well settled principle of law that technicalities should not come in the way to defeat the ends of justice. It is also pertinent to note that the Act, 1986 is a beneficial legislation and that the provisions of the Code of Civil Procedure are not strictly applicable to it but the Consumer Disputes under it can be resolved by applying the principle of natural justice. In this view of the matter we hold that the present claim is certainly maintainable in the eye of law.

8. The factual aspects noted in para no.2 above are not in dispute. The only dispute is with regard to the right of the Appellant no.2 in seeking refund of proportionate fee remitted by her with the Respondent Institute at the time of taking admission to undergo the course. No doubt, as per the relevant rules under the Student Hand Book - 2012, the Appellant no.2, at the time of seeking admission, gave a self - declaration and agreed to maintain minimum class room attendance of 95% for each subject and that she would not become eligible for writing the semester final exam in the said in which she failed to secure the said percentage of attendance and that would abide by the Rules and Regulations formulated by the Respondent Institute. But it is common knowledge that a student, without thinking seriously, would sign on such declaration forms only with a bonafide intention of getting admission to prosecute the studies. Thus, such type of terms and conditions are nothing but one sided documents. Even otherwise the said hand book was not signed by both the parties. Having regard to the back drop of the Appellant no.2 with regard to her migrating to Hyderabad all the way from Chattisgarh State and in the circumstances it can be inferred that she must have conceded to the above said terms and conditions of the hand book under undue influence on the part of the Respondent Institute, which was in a position to dominate her. The word

"undue influence" has been defined under the Indian Contract Act, 1872 as under :

Section 16: "Undue influence" (1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) xx xx xx xx xx

(a) xx xx xx xx xx

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(b) xx xx xx xx xx

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.

Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872).

The illustration (b) to the said Provision is squarely applicable to the facts of the present case, which for the sake of ready reference, is extracted below:

(b) A, a man enfeebled by disease or age, is induced by B's influence over him as his medical attendant, to agree to pay B an unreasonable sum for his professional services. B employs undue influence.

In the present case the Appellants have attributed undue influence on the part of the Respondent Institute by specifically contending that the terms and conditions noted in the Hand Book were not explained to the Appellant No.1 at the time of the admission. The Respondent Institute did not adduce any evidence to rebut it. In the given set of facts and circumstances stated above it can be inferred that only under duress the Appellant no.2 must have given her

self-declaration.

9. Admittedly, the period of absence of 22 days of the Appellant no.2 was condoned by the Respondent Institute on payment of requisite fee. Though the Respondent Institute has alleged that she fell short of 90 % attendance in all the 6 subjects but it did not produce the attendance register being it's custodian when the Appellants have disputed it. It is also not in dispute that except the said period of 22 days of medical leave she was not absent for any other days. As per the Appellants, when the Appellant no.1 made a request to the Respondent Institute to permit her to re-sit in the same semester, despite of absence, it was not allowed though it is the practice of the Institute to allow the failed students to appear the same semester. It is also to be noted that no where it is mentioned in the hand book that one had to repeat the semester by paying additional Rs.1,00,000/- if one is not allowed to write the examinations. In the present case Appellant no.2 was not allowed to write the examinations on the ground of lack of attendance in the First Semester and she was forced to re do it by wasting another 6 months of her time and payment of additional Rs.1,00,000/- as fees for the repeat semester. We are unable to appreciate the wisdom of Respondent Institute in retaining the whole fees of Rs.2,56,175/- when the Appellant no.2 did not avail it's services for the entire period of the diploma course. In this regard it will be just, necessary and expedient to refer to the decision of the Hon'ble National Commission in, Sehgal School of Competition Vs. Dalbir Singh, 2009

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(3) CPR 363 (NC). In this case it was held that :

"An institution or coaching centre should not charge fee lump-sum for whole duration of course and a condition in course terms and fee was non-refundable would be biased and against principle of equity, natural justice and fair trade practice."

The Hon'ble Supreme Court in the Judgment dated 14.08.2003 in W.P (civil) 350/1993 between: Islamic Academy of Education And Another AND State of Karnataka And Others, held as under :

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 institute even if the student left in midstream. If any educational institution has collected 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 a nationalized bank.

10. In the present case the Appellant no.2 has been seeking refund of fees of Second semester only, which she was not allowed to join. By applying the ratio laid down in the authoritative pronouncements noted above with regard to no service - no pay, we hold that the Appellant no.2 is certainly entitled to claim refund of proportionate fees of Rs.1,12,500/- with interest @ 12% p.a., from the date of her claim till the date of realization. We would like to make it clear that she is not entitled for refund of the amount of the service tax since the same was payable to the Government by the Respondent Institute. In the given set of facts and circumstances we are also of the opinion that the Appellant no.2 is entitled for adequate compensation and damages for harassment and mental agony underwent by her, on account of the adamant attitude on the part of the Respondent Institute, amounting to unfair trade practice, and the same is reasonably settled at Rs.20,000/- to meet the ends of justice.

11. We have given a careful consideration to the order under appeal passed by the learned District Forum. In our opinion the material aspects referred above were not appreciated and considered by it and came to an unjust conclusion and that as such the same deserves to be set aside by allowing the present appeal.

12. The point is answered accordingly.

13. In the result, the appeal is allowed by setting aside the impugned order, directing the Respondent Institute to refund to the Appellant no.2 the fees of Rs.1,12,500/- with interest @ 12% p.a., from the date of her claim i.e., 08.11.2011 till the date of realization and library caution deposit of Rs.3,000/- with compensation of Rs.20,000/-and costs of Rs.5,000/-. For compliance, 4 weeks time.

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PRESIDENT MEMBER

Dt.30 .01.2017

[HON'BLE MR. JUSTICE B. N. RAO NALLA]

PRESIDENT

[HON'BLE MR. Sri. PATIL VITHAL RAO]

JUDICIAL MEMBER

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