M/S. Nugas Technologies India Pvt. Ltd. vs The Principal Geeta Bal Bharti Varisht Madhyamic Vidyalaya

BOTH these revision petitions arise out of the common order of State Commission; hence, decided by common order. These revision petitions have been filed by the petitioners against the order dated 07.04.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ''the State Commission'') in Appeal No. 1142/2006 - M/s. Nugas Technologies India Pvt. Ltd. Vs. The Principal Geeta Bal Bharti Varisht Madhyamic Vidyalaya and in Appeal No. 1146/2006 - M/s. Nugas Technologies India Pvt. Ltd. Vs. M/s. Hindu Shiksha Samiti Nyas by which, while allowing appeal, order of District Forum dismissing complaint was set aside. Brief facts of the case are that complainants/respondents deposited a sum of Rs. 25,000/ - for converting buses into CNG as booking amount with the Petitioners/OPs, who was engaged in the business of converting buses into CNG out of which, Rs. 5,000/ - was security amount and Rs. 20,000/ - was as advance money. From the newspaper, complainant came to know that CNG fitted buses are not working properly; so, complainants changed their mind and decided to purchase new buses fitted with CNG kit from the Company itself and asked the OPs to refund the amount. As OPs did not refund the amount, alleging deficiency on the part of OPs, complainants filed complaints before District Forum. OPs contested and submitted that complainants do not fall within the purview of consumer and amount deposited for CNG kit was non -refundable and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, dismissed complaints against which, appeals filed by the complainants were allowed by learned State Commission vide impugned order against which, these revision petitions have been filed.

HEARD leaned Counsel for the parties and perused record. Learned Counsel for petitioners submitted that there was neither any deficiency in the service, nor defects in the goods and amount paid as booking amount was non -refundable and order passed by learned District Forum was in accordance with law, but learned State Commission committed error in allowing appeal; hence, revision petitions be allowed and impugned order be set aside. On the other hand, learned counsel for the respondents submitted that order passed by learned State Commission is in accordance with law; hence, revision petitions be dismissed.

PERUSAL of record clearly reveals that complainants deposited Rs. 25,000/ - as booking amount for CNG conversion of the vehicle. In the complaint, complainants have mentioned that Rs. 5,000/ - was deposited as security amount and Rs. 20,000/ - as advance amount which is contrary to the fact mentioned in the receipt and in such circumstances, it cannot be believed that Rs. 5,000/ - were deposited as security amount and Rs. 20,000/ - as advance money, but it can be inferred that total Rs. 25,000/ - were deposited as booking amount for CNG conversion of the bus. As per note in the receipt this booking amount was non -refundable. In such circumstances, if complainants decided not to get their buses converted into CNG kit, they were apparently not entitled to get refund of the aforesaid amount.

PARAGRAPH 7 of the impugned order on which basis appeal has been allowed runs as under: Any term of the contract which is unconscionable is void ab initio and not actionable. No service provider can forfeit the consideration received by it unless it has provided the service or the consumer has availed the service and therefore the reference in the booking receipt that this amount was not refundable was unconscionable.

Perusal of aforesaid paragraph reveals that contract being unconscionable was held ab initio void, which is contrary to law. This Commission in, I (1996) CPJ 37 (NC) - Homoeopathic Medical College and Hospital, Chandigarh Vs. Miss Gunita Virk observed as under:

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.

In T.V. Sundaram Iyengar & Sons Ltd. Vs. Dr. Muthuswamy Duraiswamy & Anr. reported in : (2003) II CPJ 176 (NC), this Commission in paragraph 11 of the order observed as under: 11. xxx One thing has to be kept in mind and that is that we cannot go against the terms of contract between the parties unless of course, the terms are illegal and the contract void. It has not been suggested before us that the terms and conditions stipulated in the application form are in any way is illegal. Some of the conditions may appeal to be unreasonable but that would not make contract void or even voidable xxx.

Perusal of aforesaid judgments clearly reveals that Consumer Fora has no jurisdiction to go beyond the terms of the contract between the parties and cannot hold the contract ab initio void, being unconscionable. As amount was non -refundable, petitioners have not committed any deficiency in not refunding amount when respondents changed their mind and did not send their buses for fitting CNG kits in the buses.

COMPLAINAN TS deposited aforesaid amount with the OPs on 29.3.2001, whereas complaints have been filed in December, 2004 meaning thereby, complaints have been filed after 3 years 9 months, whereas as per provisions of Section 24A, C.P. Act, complaint was to be filed within a period of 2 years. No application under Section 24A has been filed by the complainant before District forum and as complaint is time barred, learned District Forum rightly dismissed the complaint and learned State Commission committed error in allowing appeal and complaint.

IN the light of above discussion, we are of the view that complaint filed by the complainant was time barred and OP has not committed any deficiency in not refunding the amount as per terms and conditions of receipt and learned State Commission committed error in allowing appeal and complaint and impugned order is liable to be set aside. Consequently, revision petitions filed by the petitioners are allowed and impugned order dated 07.04.2008 passed by learned State Commission in Appeal No. 1142/2006 - M/s. Nugas Technologies India Pvt. Ltd. Vs. The Principal Geeta Bal Bharti Varisht Madhyamic Vidyalaya and in Appeal No. 1146/2006 - M/s. Nugas Technologies India Pvt. Ltd. Vs. M/s. Hindu Shiksha Samiti Nyas are set aside and order of District Forum dismissing complaints are affirmed.