NAVJEET SHARMA vs FORUM FOR IIT JEE

AN application has been filed under Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as "the MRTP Act") by the applicant seeking compensation from the respondents alleging unfair trade practices for the refund of the amount of Rs. 29,000 deposited by the applicant towards the fees of the Contact Programme conducted by the respondent and an interest @ 18% per annum on the amount from the date of deposit till the date of refund. Additional compensation on account of mental agony, financial loss and academic loss has also been claimed.

THE applicant''s case in brief is as follows: Taken in by the advertisement in the national dailies inserted by the respondents about its Two Year Classroom Contact Programme leading to IIT Entrance Examination in 1999, the applicant, Master Navjeet Sharma aged 17 years at that time and a student of Class XII, applied for an admission test held on 20.7.1997 and made a payment of Rs. 200 for that test. THE applicant appeared in the entrance examination conducted by the respondents coaching institute for enrolment to ''Two Year Classroom Contact Programme''. THE applicant was declared successful at this entrance test and was considered eligible for seeking admission to the Contact Programme for preparing himself for appearing in the Joint Entrance Examination to be conducted by the IITs in the year 1999. THE applicant deposited a consolidated fee of Rs. 29,000 vide a cheque with the respondent on 27.7.1997 though there was a provision for making payment by way of three monthly instalments. 2. THE applicant thereafter started attending coaching classes w.e.f. 1.8.1997. According to the applicant, the coaching classes under the Contact Programme were having one teacher to thirty students and the programme could not be termed as a Contact Programme as such, it was at best a classroom lecture. THE aspect of one teacher per 30 students was not indicated by the respondents in any of their advertisements or any other communication written or oral. THE expectations of the applicant were belied and he got further dissatisfied with the manner in which the coaching classes were conducted as he could not solicit the desired level of personal contact/interaction and clarifications from the teaching staff; thus leaving him with a lot of doubts. THE classroom lectures were in the form of monologue and thus the nomenclature of Two Year Classroom Contract Programme was a misnomer and a misleading title to create artificial influence in the minds of simple people. THE applicant had been enrolled after an entrance examination and thus he could have been endowed with comparable average comprehension level of other students of the coaching class. Otherwise, the entrance examination conducted by the respondents would be a sham and meaningless. THE dissatisfaction about the so-called Contact Programme was brought to the notice of the respondents institute through one Shri Khare on more than one occasion particularly with reference to the insufficiency of the interaction level between the teachers and the students. THE very purpose of getting the applicant enrolled to the coaching classes got defeated and was becoming counter productive due to lack of any effort on the part of the respondents institute in remodeling/augmenting their contact programme. THE attitude of the teachers was discouraging and insulting. THE applicant was forced to discontinue the contact programme from 14.9.1997 onwards leaving fear in the mind of the parents that further attendance of such coaching classes would only create more doubts and confusion in the applicant''s mind.

The applicant also sent a notice to the respondents bringing out the deficient services provided by them vide his letter dated 30.11.1997 and the refund of tuition fee paid by him was requested. But the respondents institute neither gave any reply nor they cared to refund the tuition fees. Thereafter, a registered notice was sent on 9.1.1998 which was replied to by the respondents on 9.2.1998 and the request for refund was refused and the respondents tried to shield themselves behind declaration No. 9 of the enrolment regarding refund of the fees. According to the applicant, the declaration No. 9 referred to above was in the nature of pre-drafted declaration and was inserted with a view to restricting and excluding the liability on the part of the organization. A common individual can hardly bargain with a big organization like the respondents and, therefore, his only intention is to sign the declaration whether he likes the terms or not. This type of declaration, according to the applicant, should not be made binding in all conditions. It has been submitted that in their reply dated 9.2.1998 to the applicant''s letter, the respondents further shifted the blame on the applicant and alleged that he was bunking the classes and was not serious. These allegations, according to the applicant, are a bundle of lies and slanderous. The applicant never bunked the classes and was regular in attendance. The respondents never brought the absence of the candidate/applicant from the classes to the notice of the parents during his interaction/meeting with the institute''s representative.

The applicant sent a counter reply to the respondents on 23.2.1998 reiterating his request for refund of the tuition fees paid by him which was turned down by the respondents in their reply dated 20.3.1998 again taking the shelter of declaration No. 9 referred to above. A legal notice was served on the respondents which was replied to by them through their lawyer on 6.5.1998 refusing the refund of the money.

ACCORDING to the applicant, the respondents have been inserting false advertisements and their claim of success rate of classes through these advertisements are fabricated bringing wrong influence on the mind of the parents like that on the applicant''s father. The respondents, in their reply, challenged the maintainability of the application and sought to preclude the services provided by them outside the definition of Section 2(r) of the MRTP Act being under a contract of personal service through the Classroom Contact Programme and also sought to explain the meaning of Classroom Contact Programme as developing the students interact among one another and also with the teachers of the faculty with a view to developing their personality arising out of the interaction of the individual with others including with the faculty.

IN their reply, the respondents denied that the applicant got dissatisfied with the manner in which the coaching classes were conducted as he could not solicit the desired level of personal contact/interaction and clarifications from the teaching staff, thus leaving him with a lot of doubts. It has also been denied that the coaching classes were merely like any other class-room instructions i.e. one way monologue lecture, and thus the nomenclature of Two Year Classroom Contact Programme was a misnomer and a misleading title to create artificial influence in the minds of simple public. The respondents also denied that the entrance examination conducted by them was a sham and deceptive practice to create an illusionary demand for the coaching classes. It is further denied that the respondent institution was deficient in ensuring the desired level of personal contact in the classroom and that the programme created more doubts in the mind of the applicant. Thus the respondents institute denied their role in forcing the applicant to discontinue the Contact Programme from 14.9.1997 onwards and that there was fear apparent in the mind of the applicant''s father that further attendance of coaching classes would only create more doubts and confusion in his son''s mind. While admitting that the applicant''s father did send a letter dated 9.1.1998 for refund of the tuition fees which was duly.replied to by them, the respondents denied that they tried to shield behind the declaration No. 9 of the enrolment regarding refund of the fees. Para 9(ii) of the declarations reads as follows: "I understand that if I leave the institute before completing the full course for any reason whatsoever, including transfer of parents/guardians/ill-health of self or any other member of the family or my admission in any institute, etc., or my studentship is cancelled because of misconduct, etc., I shall have no claim of refund of fees."

The respondents go on to deny the allegation of the applicant that this kind of standard pre-drafted declaration is drafted with the sole intention to restrict and exclude the liability on the part of the organization and the respondent institute, being a self-financing educational institute, to maintain the standard of education for competitive exams, admits only the serious candidates and, therefore, the fee once paid is not refundable as once the candidate is admitted, he remains, throughout the duration of the academic session whether he attends the classes regularly or not, on its rolls. It was the applicant who was abstaining from the classes and did not take it seriously and thus the blame cannot be thrown on the respondents for the shortcomings of the applicant himself. The applicant bunked his classes and was not attending classes with effect from 14.9.1997 and the father of the applicant was well aware of the same, according to his own admission. It would be wrong to say, according to the applicant, that the respondents enjoyed greater bargaining power. The respondents deny the allegation of misrepresentations through national dailies to create wrongful impressions on the minds of the students and their guardians. The respondents advertised the names of only those successful candidates competing for the IIT-JEE exams who have been students of the respondent educational institution and not of those who were not on its rolls. The respondents go on to state that it is not the case of the respondent institute that the father of the applicant might have suffered trauma on this account and but could have suffered trauma on account of applicant''s not fulfilling the aspirations of the father expecting fulfilment of the high ambitions that he might have nurtured out of his son. The parents, according to the respondents, seldom realize the limitations of their wards and try to carve out roles for their children for which they are not made out to be. Non-fulfilment of such ambitions cannot be brought on the feet of the respondents. The student had been abstaining himself from the classes and could not appear in phase term tests which would have enabled the teachers giving the guidance from time to time. In the light of the above, the respondents sought the dismissal of the compensation application.

ON the basis of the pleadings, the following issues were framed on 10.1.2001: 1. Whether the respondent has been indulging in unfair trade practices as alleged in the compensation application ? 2. Whether the applicant has suffered any loss or damage as a consequence of the alleged unfair trade practices ? 3. Relief, if any. 10. The issue of maintainability was also heard and it was recorded in the Commission''s order dated 6.12.2000 that the grounds raised appear to be a mixed question of law and facts and as such the same would be considered at the time of final hearing.

AFFIDAVITS of evidence were filed on behalf of both the parties and oral evidence was also led by them. Findings : All the issues, being interrelated, are dealt with together.

As far as the holding of entrance examination of the course and student''s admission to the Programme after paying a deposit of Rs. 29,000 is not disputed. It is also not being disputed that the applicant started abstaining himself from classes from 14.9.1997 onwards. The signing of a joint declaration between the applicant and the respondents is also not being disputed wherein as per declaration No. 9, the respondents had the right to forfeit the deposit made on behalf of the student almost under any condition in case the student chose to withdraw from the Programme.

THE basic issue remains as to whether there were misleading representations by the respondents through their advertisements or otherwise which would have led to a make-belief situation about the Two Year Classroom Contact Programme which was sought to be availed of by the student/applicant at the respondents institute in the hope of qualifying the IIT JEE exams. It would not be necessary to burden this order on the aspect of maintainability of the petition as the Full Bench of the Commission in its Order dated 26.8.2003 in Narendra Parkash Aaarwal v. The Management of Yashwant Rural Education Society, has brought the ''service provided by the educational institutions'' under its jurisdiction per se. We shall also not burden this order by entering into the question whether the respondents institute could be termed as an educational institution as we would be entering into certain areas which would necessarily not be germane to the issues involved in this case.

THE applicant in this case was a regular student of a recognized institution. THE admission sought by him with the respondents institute was towards equipping himself and raising his potential for qualifying at the Joint Entrance Examination (JEE) for admission to IITs. THE objective of the respondents institute, as stated by them, was to bring together a set of hardworking students tested through a qualifying examination and provide them intensive training through their own teachers through an interactive mechanism among the students and also between the students and the teachers. THE applicant''s case is, as stated by his father, that he got totally disillusioned with the programme devised by the respondents institution and he simply found the programme of respondents institution as an extension of the classroom lectures and, according to the applicant, the contents did not merit the Programme to be called a Contact Programme. On the other hand, the respondents have contended that the contents of their programme were entirely different from the classroom lectures and were bringing together meritorious and hardworking students through their faculty and through the conduct of their phase term exams. THE interaction among the students and the faculties and results of the phase term examination would have given the faculty an opportunity to ascertain the shortcomings, if any, to its students to fulfil the gaps. In the instant case, the student got disillusioned within a span of 1 months and had not any occasion of appearing in any phase term exams to enable the faculty to assess his potential suitably to put him on a corrective path. It also cannot be ruled out that the applicant/student might not have been able to cope up together with his regular school programme where he should have been attending regular classes and also the Programme of the Institution where he was required to attend intensive programme of the Institute at least thrice a week. THEre is undoubtedly an indication that the student was also being subjected to a regular supervision of his parents at home who were keeping a close watch on the progress of their ward both at the school as well as at the coaching classes. All these sequences put together can put a lot of pressure on a student who would be 16-17 years of age. There can also not be any measurement standard for determining quantitatively the efforts that a coaching institution would be putting in to bring up the potential among the students on its rolls. The respondent institution, on its own admission, is expecting a lot of hard work from the students and thus terms its role as a catalytic one only. In the cross-examination held of the respondents witness, it has been brought out that the respondents are running a number of franchisees in the country. Undoubtedly, a large number of students are attending their Programme and a success rate is also claimed and it would be difficult to come to a conclusion if the success rate is entirely because of the efforts of the coaching institution and it could largely be attributed to the students themselves. Nevertheless, by the growth of the franchisees of the respondents institution, it appears that somehow a large number of students are getting into the system floated by the respondents.

IN the instant case, even if it is believed to some extent that the Contact Programme conducted by the respondents institution may not be at the ideal level, the experience of a 16-17 years old student and that too for a period of 1 months and as assessed by the parents of the student, cannot be held sufficiently strong reason to discount the entire programme of the respondents institute. The respondents also not enjoy any monopoly in the nature of coaching being provided by them. There are a large number of such institutions competing with one another in attracting the meritorious and laborious students for developing similar potential among them and these institutions do claim success rates. IN such a scenario, the burden does shift to the parents of such wards desirous of seeking the admission to satisfy themselves about the efficacy of the programmes through an information system which would be available to them from the some past students who had come out successful or unsuccessful at these institutions. No evidence has been led on behalf of the applicant''s father if he had made any research before admitting his ward to the institution. He simply relied upon the representations made by the respondents institution in their advertisements and had not been able to further reinforce through an appropriate evidence if the sense of disillusionment faced by him has been equally faced by other students of the respondents institution. He thus solely relied on his own judgments through the inputs provided by his son and that too, gathered by the latter by attending the programme after 1 months, without appearing in any test.

THE respondent institution undoubtedly is self-managed and self-financing institution and thus the respondents would like to collect the cost incurred by them with adequate profit margins. THEy cannot also admit a student during the mid-course and thus the fees charged by them have to be carefully accounted for and cannot be refunded unless there are exceptions and overriding considerations for refund. On representations by the applicant, the respondents also offered an opportunity to the applicant to resume his Programme on certain conditions and filing an affidavit to bind himself to those conditions. The applicant did not avail of the offer on the premise that the conditions being imposed on him were unreasonable. However, the extent to which these conditions were unreasonable has not been properly advanced by the applicant. The offer made by the respondents is demonstrative of their willingness to allow the candidate/applicant who had abstained himself from the course since September, 1997 to rejoin the Contact Programme and thus, the respondents cannot be faulted for having withheld the deposit.

In the light of the foregoing, it would not be possible on the basis of pleadings before us, arguments advanced and cross-examination of the witnesses of the applicant as well as the respondents, that the allegation of unfair trade practices has been established by the applicant against the respondents institution beyond doubt. Therefore, it is not possible to order any relief in favour of the applicant/student as prayed for. In view of the above, the compensation application is rejected. There is no order as to costs. Application dismissed.