Frankfinn Institute Of Air Hostess Training And Another Petitioner(S) v. Aashima Jarial (S).

litigation as Rs.5,000/-. The order was to be complied within a period of 30 days otherwise interest @12% shall be paid for the total amount ordered from the date of filing of the complaint.

3. The opposite party/petitioner herein preferred an appeal bearing No.219 of 2018 before the State Commission and the State Commission vide its order dated 23.08.2018 dismissed the appeal.

4. Hence the present revision petition.

5. Heard the learned counsel for the petitioners at the admission stage and perused the record. Learned counsel stated that the parents of the complainant had signed a document wherein it has been clearly stated that after booking of the seat, no fee shall be refunded. Parties are bound by the contract of the agreement and no order can be passed by the consumer forum against this agreement. The fora below have not assigned any reason for giving a finding of unfair trade practice on the part of the petitioners. The petitioners have only relied upon the agreement that fee paid was not refundable. Apart from this, the learned counsel stated that education is not a commodity and the Consumer Protection Act, 1986 is not applicable for education sector. The educational institution is not a service provider and the student is not a consumer. This argument was taken in the written statement as well and was also advanced before the fora below, however, both the fora below have erroneously not accepted this argument and have decided the complaint against the educational institution. To support this argument, the learned counsel relied upon the following judgments:-

"(1) Maharshi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159. It has been held that:

"Consumer Protection-consumer/Consumer dispute/Locus standi-Generally- University- if covered-Direction to issue BEd degree against rules of examination- Legality-Held, respondent as a student is neither consumer nor University is rendering any service to its students-Hence, Consumer Fora have no jurisdiction to entertain complaint-Respondent pursued MA and BEd simultaneously contrary to general rules of examination which prohibits pursuing two courses simultaneously-She had chosen to continue MA, while admission to BEd was cancelled-Without disclosing the said fact, respondent managed to appear for supplementary examinations for BEd, and passed, which results were withheld on detecting the mischief-Complaint filed for direction to award BEd degree- Held, claim of respondent was for a direction to appellant to act contrary to its own rules-No court has competence to issue direction contrary to law nor can direct an authority to act in contravention of statutory provisions-Hence, National Commission should not have issued direction to appellant to act contrary to statutory provisions-Also, respondent cannot plead estoppel either by conduct or against statute so as to gain any advantage just because she was erroneously allowed to appear in the examination-Consumer Protection Act, 1986-Ss. 2(1)(o) and 2(1)(d)(iii)"

(2) "P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors., Civil Appeal No.22532 of 2012 decided on 9.8.2012. It has been held that:-

In view of the judgment of this Court in Maharshi Dayanand University Vs. Surjeet

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Kaur 2010 (11) SCC 159 wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986."

(3) Anupama College of Engineering Vs. Gulshan Kumar & Ors. in Civil Appeal No.17802 of 2017, decided on October 30, 2017 (SC), in this case Hon'ble Supreme Court has relied upon the decision of Maharshi Dayanand University Vs. Surjeet Kaur (supra) and has set aside the order of the National Commission passed in RP No.3571/2013 and RP No.807/ 2017.

(4) Rabindra Bharati University Vs. Jayati Roy Chowdhury and Ors. MANU/CF/0744/2017 (NC) wherein the following view has been taken:-

"7. As noted above, the decisions of the Supreme Court in P.T. Koshy (supra) and Prof. K.K.Ramachandran (supra) are directly on the point arising for consideration in these cases and have been rendered after the decision of the Hon'ble Supreme Court in Buddhist Mission Dental College and Hospital (supra). We are bound by the ratio of both the decisions."

(5) FIIT JEE Ltd. Vs. S. Balavignesh, MANU/CF/0509/2015, (NC). In this case, the revision petition filed by the Coaching Institute FIIT JEE Ltd. was allowed and order for refund of fees by the fora below was set aside by this Commission.

6. Learned counsel further argued that all courses of petitioner Institute are accredited by ICM, UK, a qualification awarding body of repute. The petitioner Institute is also recognised by 'skill India' programme of Government of India and also by National Skill Development Corporation. Thus, the institute is well covered as an educational institution imparting training by way of its diploma courses.

7. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioners. It is seen that both the fora below have given concurrent finding and have found the petitioner Institute as deficient in service and guilty of unfair trade practice. The facts cannot be reassessed at the level of this Commission as held by Hon'ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein, the Hon'ble Supreme Court has held the following:

"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."

8. The only legal question raised in the revision petition is that the petitioner is alleging that

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the petitioner Institute is an educational institution and in the light of judgment of Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra) and in P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors (supra), the respondent cannot be considered as a consumer and the petitioner Institute cannot be considered as service provider and therefore, the present complaint of the respondent was not maintainable.

9 Though the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra) has observed that a student is not a consumer and the educational institution is not a service provider, however, in the same judgement Hon'ble Supreme Court has also clarified the following:-

"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. Thus, it is clear that one has to see whether the institution is a recognized institution under the law of the land, meaning thereby whether it is registered/affiliated under any statutory authority like UGC, AICTE, State Universities, State Boards or any other statutory body created by an statute. It is also seen that the judgment of the Hon'ble Supreme Court in

P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors. (supra) is based on the observations of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra) so, the basic tenets of the educational institution as observed by the Hon'ble Supreme Court in

Maharshi Dayanand University Vs. Surjeet Kaur (supra) shall also be considered as integral to the decision of the Hon'ble Supreme Court in P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors. (supra).

11. So far as the decision of the Hon'ble Supreme Court in Anupama College of Engineering Vs. Gulshan Kumar & Ors. (supra) is concerned, there is no dispute that the college was governed by AICTE Rules and, therefore, it would definitely come in the definition of the educational institution as observed by Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra). The other case relied upon by the learned counsel is Rabindra Bharati University Vs. Jayati Roy Chowdhury and Ors.(supra). In this case also University is a statutory body and therefore, the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra) would be equally applicable. Learned counsel for the petitioner has also referred to the judgment of FIIT JEE Ltd. Vs. S. Balavignesh, (supra). It is seen that in this case, the National Commission has set aside the orders of the fora below on the ground of contract entered into between the students and the institution. This Commission has not given any finding that the student is not a consumer and the institution is not a service provider, as observed by this Commission in para 8 of the judgment:-

"8. …….. There may be merit in the contention that a coaching institute such as FIIT JEE Ltd. cannot be equated to an institution such as a university since it is only assisting the student in competing for admission to FIIT JEE by providing coaching to them, even if the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, the parties will be bound by the terms & conditions

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agreed by them at the time the complainant took admission in the coaching course, unless it can be shown that the petitioner had adopted an unfair trade practice, as defined in Section 2(r) of the Act."

12. From the above it would be clear that this judgment does not support the petitioner in any way. Moreover, this Commission in FIIT JEE Ltd. Vs. Dr. Minathi Rath, 2012 (1) CPJ 194 (NC) has held the following:-

"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."

13. Similarly, in the matter in Jaipreet Singh Kaushal Vs. FIIT JEE Ltd. & Anr., RP No.918 of 2015, decided on 14.11.2017 (NC) this Commission has treated students as consumer and the FIIT JEE Ltd. Institution as a service provider. In fact, the relationship between a consumers and service provider depends upon the nature of service being provided and relief being sought. As critically examined above, it is seen that the immunity provided to the educational institutions from the Consumer Protection Act, 1986 by the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra) has to be seen in the

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light of the observations of the Hon'ble Supreme Court quoted above where it has been observed that no court can pass order contravening the provisions of an statute.

14. From the above, it can be concluded that the educational institutions, which are imparting education of any kind within the admissible legal frame work of the country can be covered under the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra). In other words, educational institutions covered under UGC, AICTE, State Universities, Central Boards and State Boards etc. can claim immunity from the provisions of Consumer Protection Act, 1986 for educational services. Moreover, the State Commission has relied upon the decision of the Hon'ble Supreme Court in Budhist Mission Dental College & Hospital Vs. Bhupes Khurana & Others, wherein the following has been observed:-

"32. The Commission also held that this Court in Bangalore Water Supply and Sewerage Board (supra) held as under: [para 118 at page 583]:-

"...In the case of the University or an educational institution, the nature of the activity is, ex hypothesi, education which is a service to the community. Ergo, the University is an industry..."

The Commission further held as under:

"Imparting of education by an educational institution for consideration falls within the ambit of `service' as defined in the Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The complainants had hired the services of the respondent for consideration so they are consumers as defined in the Consumer Protection Act."

15. From the above discussion, it is clear that the petitioner institution cannot be given advantage of the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra).

16. Based on the forgoing discussions, it is concluded that the complainant is a consumer and the petitioner institution is a service provider in the present case.

17. It is seen from the order of the District Forum that the District Forum has ordered refund of Rs.14,000/- as fee along with Rs.5,000/- as compensation for unfair trade practice on the part of the opposite parties and Rs.5,000/- as cost of litigation. The order of the District Forum is based on equity and therefore, the complainant would be only entitled to the refund of fees paid as directed by the District Forum and the cost of litigation. In the circumstances of the case, I do not see any justification for awarding any further compensation. Consequently, the order of the District Forum in respect of the compensation of Rs.5,000/- to be paid to the complainant by the opposite parties is set aside. However, the remaining order of the District Forum regarding refund of Rs.14,000/- and payment of Rs.5,000/- as litigation cost is maintained. This order be complied within 30 days from the date of receipt/service of this order. No notice to the respondent has been issued in the matter keeping in view the amount involved in the present case and to save the respondent's further expenses on litigation.

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However, if the respondent complainant feels aggrieved by this order the respondent can approach this Commission.

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PREM NARAIN

PRESIDING MEMBER

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