CHAKRADHAR SEMWAL vs NAVJOT SINGH WARAICH

THE appellant has preferred this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') against the order of District Forum-II dated 4.12.1996, passed in Complaint Case No. 2931/94 entitled - Shri Chakradhar Semwal v. Navjot Singh Waraich & Anr.

THE relevant facts, in brief, are that the appellant had filed a complaint under Section 12 of the Act averring that in response to an advertisement issued by the respondents, he contacted respondent No. 1, the Manager of the Himalaya Public School (hereinafter referred as ''the school''), for the admission of his ward, Master Rahul Semwal. It was stated in the complaint by the appellant that lured by the representations of respondent No. 1, the appellant got his son admitted on trial basis in Class XII of the school, on the assurance that if the child did not find the environment of the school conducive, the amount deposited by the appellant would be refunded after deducting a marginal amount on account of boarding and lodging, within a week. On the above representation/assurance, the appellant got his ward admitted in the school and deposited a sum of Rs. 14,100/- on 24.7.1994. However the son of the appellant was dissatisfied with the school, found the whole system unsatisfactory, inefficient and as such returned to Delhi on 28.7.1994, itself. THE appellant, therefore, sought refund of the amount deposited with the respondents but the same was bluntly refused. THEreafter the appellant, approached the District Forum with a complaint, praying for the refund of Rs. 14,100/- deposited with the respondents as well as grant of Rs. 10,000/- as compensation. The respondents in their reply/written version controverted all the allegations of the appellant/complainant and prayed for the dismissal of the complaint on the ground that as per its prospectus the fee paid was non-refundable.

The learned District Forum, vide impugned order has dismissed the complaint of the appellant, on the ground that no cogent evidence had been adduced by the appellant to support the various deficiencies claimed against the school of the respondents and also on the ground that the National Commission has held that only Civil Courts have the jurisdiction to declare a rule in the prospectus of any institution as unconscionable or illegal, and since according to the prospectus of the respondents school, the fee once deposited was non-refundable, the relief sought for by the appellant could not be granted to him.

AGGRIEVED by the said order the appellant has filed the present appeal before us. Notice of the appeal was issued to the respondents who have entered appearance. We have perused the documents/material on record, as well as, have heard the arguments advanced on behalf of the parties. The sole controversy, for our consideration, in the present appeal, is as to whether in the given facts, the appellant is entitled to the refund of the fees deposited with the respondents. The main contention of the appellant in this regard is, that it was represented by opposite party-1, the Manager of the school, that the amount of fee deposited, would be refunded to the appellant if the ward of the appellant was dissatisfied with the environment and facilities provided by the school. It was further contended, that his son Rahul Semwal, found the system in the school unsatisfactory and inefficient and returned home within 3-4 days of the admission and as such, the appellant was entitled to the refund of the fee of Rs. 14,100/- deposited with the school. The respondent, on the other hand argued that as per the rule in the prospectus of the school, the fee so deposited was non-refundable and that the said rule was within the knowledge of the appellant, as the said fact was admitted in the legal notice dated 12.8.1994 sent to the respondents, by the appellant''s Lawyer. Further, the wife of the appellant had also signed the declaration, in the application form for admission, which stated that the prospectus had been read and the fee rules had been understood.

THE learned District Forum in the impugned order has held that in view of the condition/rule in the prospectus of the school of respondents, that the amount of fee once deposited was non-refundable, the appellant was not entitled to the said refund. THE District Forum has also placed reliance on a decision of the National Commission, in case Homoeopathic Medical College and Hospital, Chandigarh v. Gunita Virk, reported as I (1996) CPJ 37 (NC), wherein the National Commission had held : "We do not think it necessary to go into the question whether the rule in the prospectus about the non-refund of fee is unconscionable or not, in detail. Suffice it to say that FORA constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal. It is for the Civil Court to determine this point. If a student/students apply for admission and deposit the fees and later on do not want to join the course, then the seat/seats so vacated will remain vacant throughout the academic year. In such circumstances it will become very difficult for any institution to run in a proper manner."

(Emphasis supplied) On the other hand, the appellant has placed reliance on an earlier decision of this Commission in case Apeejay School & Anr. v. M.K. Sangal & Ors., reported as I (1993) CPJ 9, and another decision of the Maharashtra State Commission in case Abel Pacheco Gracias v. Principal, Bharti Vidyapith College of Engineering, I (1992) CPJ 105. The latter case was discussed by the Apex Commission in the case of Homoeopathic Medical College and Hospital (supra), and the said decision stands over-ruled by the National Commission. Thus, the above decisions relied upon by the appellant can be of no help to him and the decision of the National Commission in the case of Homoeopathic Medical College and Hospital (supra) clinches the matter finally against the appellant. For the above reasons, we do not find any infirmity in the impugned order of the District Forum, so as to call for any interference, in the same, on our part, in the exercise of our appellate jurisdiction. Thus, the present appeal, being devoid of merit, is dismissed. However, in the circumstances, the appellant is given the liberty to approach the appropriate Forum/Civil Court, if so advised, for the redressal of his grievances in the present case. There is, however, no order as to costs. Appeal dismissed.