Jaipreet Singh Kaushal Petitioner(S) v. Fiit Jee Limited (S).

after understanding the terms and conditions of the Institute took admission in Pinnacle-Two Year Integrated Program for IIT-JEE. It was further mentioned as per the undertaking/declaration given and signed by the complainant, and as per the terms of agreement, fees once paid, was not refundable. It was further stated that neither there was any deficiency in rendering service on the part of the Opposite Parties, nor they indulged into unfair trade practice

4. The District Forum after considering the submissions of the parties dismissed the complaint vide its order dated 11.12.2014.

5. Aggrieved by the above order of dismissal, the complainant filed appeal bearing No.21 of 2015 which was also dismissed vide order dated 2.2.2015 by the State Commission.

6. Hence, the present revision petition.

7. Heard the learned counsel for the parties and perused the record.

8. The learned counsel for the petitioner stated that both the fora below have accepted the version of the OP and have not given any consideration to the averments made by the complainant and the authoritative judgments of the Hon'ble Supreme Court and of this Commission referred to by the complainant. Even as per the admitted fact of the OP, the petitioner had attended the classes for three days and he was not satisfied with the standard of coaching imparted by the coaching institute. Hence, he immediately told the Management of the Institute and asked for refund of the fees paid by him. However, the OP did not refund the fee. When no services have been availed by the complainant, how the OP can forfeit the total fees paid by him? Learned counsel for the petitioner further argued that the assertion of the OP/respondent that the complainant was not a consumer and the OP was not a service provider is not correct because the OP does not fall in the category of educational institutions as mentioned in the judgments of the Hon'ble Supreme Court relied upon by the OP. The OP is not governed by the UGC or the AICTE or any Board of the State Government or the Central Government. 9. The learned counsel pointed out that the judgment of Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur, 2010 (3) CPJ (SC)19, which has been relied upon by the State Commission to observe that the OP was not a service provider and complainant was not a consumer, also states that this proposition is valid for statutory bodies like Universities or Boards etc. as would be clear from the following portion of the judgement:

"The contention of Ld. Counsel for the appellant has, therefore, to be accepted that the Rule being prohibitory in nature, the District Forum or the National Commission could not have issued a direction which violates the aforesaid statutory provision. It is settled legal proposition that neither the Court nor any tribunal has the competence to issue a direction contrary to law and to act in contravention of a statutory provision."

10. The learned counsel further emphasized that the complainant is entitled to get the refund of fees in analogy with a similar case when this Commission has allowed refund of fees. The learned counsel cited the following judgment in this regard.

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FIIT JEE Ltd. Vs. Dr. Minathi Rath, 2012 (1) CPJ 194 (NC) wherein it has been observed as under:

"Parties were represented by their respective Counsels who made oral submissions. Respondent appearing in-person reiterated that the Respondents daughter had no option but to leave the course midway because of bonafide and genuine reasons particularly the unsatisfactory services provided by the Petitioner/Institute. Under the circumstances it was not fair on the part of the Petitioner/Institute to decline the request for refund of the advance amount paid for the course. Counsel for Respondent pointed out that the matter pertaining to advance payment of fees and its consequences have been squarely covered by the Honble Supreme Court in its judgment in Islamic Academy of Education Vs. State of Karnataka (2003) 6 SCC 696 wherein the Apex Court inter alia observed as follows:

It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view 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 nationalised bank(emphasis supplied). As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance.

This ruling of the Supreme Court is very much relevant in the instant case and, therefore, following the principles laid down in this case, the Petitioners are obliged to return the advance fees for the period when the student did not attend the course."

11. On the other hand, the learned counsel for the respondents/OPs stated that the OP is an educational institution and is not a service provider within the meaning of Consumer Protection Act, 1986 and the complainant is not a consumer as held by the Hon'ble Supreme Court in many authoritative judgments. In this regard, the respondents referred to the judgment of Hon'ble Supreme Court in Maharishi Dayanand University vs. Surjeet Kaur (supra)

which has also been relied upon by the State Commission. The learned counsel argued that the State Commission has also relied on the judgment of the Hon'ble Supreme Court in P.T. Koshy and another vs. Ellen Charitable Trust and others, Civil Appeal No.22532 of 2012 decided on 9.8.2012, wherein it is clearly stated that education is not a commodity and a student is not a consumer and the educational institutions are not service provider. Education Institutions do not provide any kind of service. Therefore in the matter of admission, fees etc., there cannot be a question of deficiency of service. Thus, the consumer complaint is not

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maintainable before the consumer fora and hence, rightly dismissed by the fora below.

12. The learned counsel further stated that for the same OP, this Commission has already upheld the same principle in RP No.2054 of 2013, FIIT JEE Ltd. vs. Harish Soni decided on 8.10.2015 that the OP is not a service provider. In this revision petition two Members of NCDRC had difference of opinion, however, after the opinion of the third Member, the case was decided in favour of the OP as would be clear from the operative portion of the final judgement:

"In R.P. No. 2054 of 2013 - FIITJEE Ltd. Vs. Harish Soni arguments were heard on 14.5.2015 by our Bench. Judgment was dictated by Hon'ble Dr. B.C. Gupta, Member and sent for approval of Hon'ble Mr. Justice K.S. Chaudhari, Presiding Member. Hon'ble Mr. Justice K.S. Chaudhari, Presiding Member sent dissenting judgment. As Members of the Bench differed in their opinion, the matter was placed before Hon'ble President, NCDRC under Section 20(i)(iii) of the C.P. Act for appropriate directions. Hon'ble President referred the matter to Hon'ble Mr. Justice V.K. Jain, Member. Hon'ble Mr. Justice V.K. Jain, Member (3^rd Bench) vide order dated 15.9.2015 opined that the complainant is not entitled to refund of the fee for the remaining period of one year and agreed with the judgment delivered by Hon'ble Mr. Justice K.S. Chaudhari, Member.

In the light of majority judgment, revision petition filed by the petitioner is allowed and complaint stands dismissed with no order as to costs."

13. The learned counsel for the respondent further argued that this Commission cannot take two views for similar matter. As per the terms and conditions of the agreement, it was made clear that once the admission is taken , no fees would be refunded in any circumstances. The complainant has signed these terms and conditions with open eyes and that has become a concluded contract. Thus, the complainant is not entitled for any refund. It was accordingly prayed to dismiss the complaint.

14. I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the material on record.

15. The judgment cited by the respondent/OP in FIIT JEE Ltd. Vs. Harish Soni (supra) is a judgment where the opinion was divided in the Bench. However, the matter was decided on the basis of the opinion of the third Member. Moreover, in the stated case, the complainant had received the coaching for about a year whereas in the present case the coaching was received only for 3 days. So, that case is not fully applicable to the facts and circumstances of the present case. On the other hand, this Commission in the matter of FIIT JEE Ltd. Vs. Dr. Minathi Rath (supra) has taken a different view and the following has been observed:

"So far as the first issue is concerned, even though in a very narrow technical sense, for reasons pointed out by the Counsel for Petitioner in his oral submissions, coaching institutions may not be conventional educational institutions but since they provide coaching and training to students of an educational nature to equip them for higher studies in specialized educational institutions, the same principles that apply to educational institutions would also apply to these institutions in respect of the fees

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charged by them including advance fees. In any case, Respondents are consumers and the Petitioners are the service providers. Petitioners are rendering service for consideration and fall within the purview of Consumer Protection Act, 1986. The judgment of the Supreme Court would, thus, override any bilateral agreement between the parties. We are, therefore, of the considered view that respectfully following the judgment of the Honble Supreme Court, the Petitioner/Institute could not have charged full advance fees for two years and could have charged prescribed fees for one semester/year. In the instant cases, since Petitioner/Institutes do not follow the semester system, they could only have charged advance fees for one year. In view of these facts, the Respondents are entitled to get refund of the fees after deducting the non-refundable service tax for the unattended second year of the course.

Regarding the contention of the Petitioners that these cases do not fall within the ambit and scope of the Consumer Protection Act, 1986 because these complaints have not been made on grounds of deficiency in service before the District Forum, we find that this contention is not sustainable. In the first place, the complaints were made on specific grounds of deficiency in service before the District Forum and secondly as stated in the above para, as per Section 2(d)(ii) of the Consumer Protection Act, 1986, the Respondents are consumers who sought to avail of services for a consideration and the Petitioner/Institute is very much a provider of these services and thus these cases are consumer disputes within the meaning of the Consumer Protection Act, 1986."

16. On the similar lines, it is clear that in the present case, the OP/respondent has violated the principle of charging fees as laid down by the Hon'ble Supreme Court in the matter of Islamic Academy of Education vs. State of Karnataka (supra) wherein the Hon'ble Supreme Court has prohibited charging of advance fees for all semesters/years and in the present case, the fees for two years course has been charged. Even if it is considered that the complainant had agreed with the terms and conditions of admission, it would only mean that he would be deemed to have agreed with the condition that fees of one semester/year would not be refunded, because the OP was not legally entitled to charge advance fees for two years.

17. I also do not find merit in the assertion of the complainant that he left the coaching as he did not like the method and standard of coaching. The fact is that he has attended coaching classes only for three days which is quite insufficient to assess the method and standard of coaching. Thus, even though the complainant has attended the classes only for three days, he would not be entitled for refund of full fees as examined above. I also find some force in the argument of the learned counsel for the petitioner that respondent/OP does not come under the purview of the educational institution. In fact, it is only a facilitator/trainer body to get admission into an educational institution. Therefore, the OP cannot be equated with an educational institution, entitled to consider itself as non-provider of any service.

18. Based on the above discussion, the revision petition is partly allowed and the OP/respondent is directed to refund 50% of the total fees deposited by the complainant alongwith 6% interest on that amount from the date of filing of the complaint i.e. 21.2.2014 till actual payment. Order be complied with within a period of 45 days, failing which the respondent/OP shall be liable to pay additional interest of 6% p.a. from the date of this order till actual payment.

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PREM NARAIN

PRESIDING MEMBER

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