FORE SCHOOL OF MANAGEMENT vs ASHU MITTAL

THE present appeal has been filed under Section 15 of the Consumer Protection Act, 1986 (hereinafter to be referred to as ''the Act'') against the order dated 11.8.1999 passed by District Forum (South), in Complaint Case No. 2059/1996 entitled Shri Ashu Mittal v. Fore School of Management. THE facts of the case relevant for the disposal of this appeal are as follows: Respondent Shri Ashu Mittal sought admission to the Post Graduate Diploma in Business Management (PGDBM-Full Time) Wave V in the appellant institute and deposited fee of Rs. 39,500/-. In the meanwhile, the respondent was also admitted in K.J. Somaiya Institute of Management Studies and Research, Bombay and he decided to joint the other institute and deposited fee there. Subsequently, the respondent on 19.6.1996 requested the appellant to refund the deposited fee. However, the appellant refused to refund the fee and stated that fee once deposited cannot be refunded as per terms of the brochure given to the respondent earlier. Hence the respondent Shri Ashu Mittal filed a complaint before the District Forum (South) alleging deficiency in service on the part of the appellant and for refund of the fee along with the interest and compensation for harassment and mental agony.

THE appellant contested the claim before the District Forum on the ground that there was no provision for refund of fee under any circumstances and this was in the knowledge of the respondent at the time of seeking admission. He deposited the fee having full knowledge of this fact. THE appellant also denied that any such assurance was given to the respondent that in case the respondent is admitted to some other institute, the fee shall be refunded. THE learned District Forum after hearing both the parties ordered for the refund of 90% of the deposited fee holding that non-refund of the fee constitutes gross deficiency in service. Aggrieved by the aforesaid order of the District Forum the appellant has preferred this appeal before this Commission, mainly on the ground that non-refund of fee is not a consumer dispute as held by the Hon''ble National Commission in Ramdeo Baba Engineering College v. Sushant Yuvraj Rode, reported as III (1994) CPJ 160 (NC). It has been argued that the appellants were not rendering any service to the respondent who on his own wish chose to join some course and the seat allotted to the respondent went vacant. It has also been stated that the appellant conducted the course as per schedule and never refused to render any service to the respondent and hence there was no deficiency in service. It has been argued that the refund of admission fee is not a service being provided by the appellant. The appellant also stated that in the year 1995-96 the number of seats in the Diploma Course were increased from 100 to 120 and in that year only 105 candidates took up 4the course and the seat vacated by the respondent remained vacant. It has also been argued that the appellant institute or its Registrar never gave any assurance to the respondent that the fee shall be refunded if the respondent was selected in any other institute and if he applies for cancellation of admission before the commencement of the session.

We have heard both the parties at length and also carefully gone through the records of the District Forum. The main argument advanced on behalf of the appellant is that refund of admission fee is not a consumer dispute and non-refund of the admission fee is not a deficiency in service. The appellant has relied upon the view expressed by the Hon''ble National Commission in the case entitled Ramdeo Baba Engineering College v. Sushant Yuvraj Rode and Another, where the Hon''ble National Commission has specifically held that non-refund of admission fee is not a deficiency in service. The Hon''ble National Commission has also held that admission fee is a consideration of admission and the service, which the college was to render to the students, was in the matter of pursuing his studies in the college after admission.

THE respondent on the other hand has relied upon various orders passed by the State Commissions of other States. THE reliance has been placed on the following cases: (1) D.V.A. Institute of Physiotherapy v. Ms. Navleen Kaur and Others, reported as I (1998) CPJ 430, in which the Punjab State Commission held that non-refund of fee is unfair trade practice and ordered for the refund of the whole amount. (2) Abel Pacheo Gracias v. Principal, Bharti Vidyapith College of Engineering, reported as I (1992) CPJ 105, in which the Maharashtra State Commission ordered for the refund of the fee when the complainant got admission in another college.

The respondent has relied upon an order passed by this Commission in Apeejay School and Another v. M.K. Sangal and Others, reported as I (1993) CPJ 9, in which this Commission held that the condition of non-refund of fee in the prospectus is unreasonable and unfair clause. It is noted that all the cases on which the respondent has relied are of the State Commission. However, the controversy has been set at rest by the subsequent decision of the Hon''ble National Commission in Ramdeo Baba Engineering College case in which it has been specifically held that non-refund of admission fee is not a deficiency in service. Hence we are bound by the decision of the Hon''ble National Commission and the earlier view expressed by this Commission has been overruled.

IN a subsequent case entitled Himachal Medical College and Hospital, Chandigarh v. Ms. Gunita Virk, reported as 1986-99 CONSUMER 4965 (NS), the Hon''ble National Commission has held that Fora constituted under the Consumer Protection Act, 1986 have no jurisdiction to declare any rules in the prospectus of any institution as unconscionable or illegal and it is for the Civil Court to determine it. The learned District Forum in the impugned order has referred the above mentioned case of Ramdeo Baba Eng. College v. Sushant Yuvraj Rode, but it has interpreted it in a different way. The learned District Forum has held that it is to be seen whether the O.P. has been put to any fiscal loss due to withdrawal of a candidate and the seat vacated by the students is duly filled by another candidate. The learned District Forum also held that the refusal of refund of fee is unreasonable, unfair and arbitrary act and constitutes a gross deficiency in service. In our view the learned District Forum has not correctly interpreted the law laid down by the Hon''ble National Commission in Ramdeo Baba Eng. College v. Sushant Yuvraj Rode. In this case it appears from the documents filed by the appellant that in that year the number of seat for the diploma course were increased from 100 to 120 and only 105 candidates took up the course which may lead to the inference that the seat vacated by the respondent remained vacant causing loss to the appellant college. It is also relevant to note that the college was not rendering any service to the respondent while refunding the fee. The Hon''ble National Commission has specifically held that admission fee is a consideration for admission and non-refund of admission fee is not a deficiency in service. In view of the above law laid down by the Hon''ble National Commission the impugned order passed by the learned District Forum cannot be sustained. The learned District Forum has relied on a number of cases decided by the various State Commissions. However, no reliance can be placed on those cases in view of the decision of the Hon''ble National Commission in Ramdeo Baba Eng. College v. Sushant Yuvraj Rode. It has been argued on behalf of the respondent that at the time of deposit of fee, he was assured by the Registrar of the appellant institute that if he gets admission in other college the fee shall be refunded. However, there is nothing on record of the District Forum to prove this fact. There was no written undertaking and it has been specifically denied by Ms. Deepa Verma, Registrar of the appellant institute in her affidavit filed before District Forum that she never assured the respondent for refund of fee if applied for before the commencement of the session. Hence this contention of the respondent is also without any force and it has to be disbelieved.

FOR the reasons given above the impugned order passed by the learned District FORum suffers from illegality. The learned District FORum has wrongly interpreted the views expressed by the Hon''ble National Commission in Ramdeo Baba Eng. College v. Sushant Yuvraj Rode. Hence the impugned order cannot be sustained. The appeal is allowed and the impugned order passed by the District FORum is set aside.

THE present appeal filed by the appellant is disposed of in above terms. Appeal allowed.