Rachna Sharma vs INSTITUTE OF MARKETING And MANAGEMENT-Opposite party

THE present complaint has been filed under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") by the complainant Ms. Rachna Sharma, complainant No. 1 along with her mother Smt. Kusum Sharma, complainant No. 2 against the Institute of Marketing and Management, 62F, Sujan Singh Park, New Delhi.

THE case of the complainant is that complainant No. 1 in response to advertisement published in the newspaper joined the O.P. institute for Post Graduate Diploma in Business Administration. She deposited Rs. 2,000/- as registration fee on 24.8.1994. THE complainant also appeared for written test on 1.9.1994 and interview on 2.9.1994 and she was admitted to the aforesaid course on the basis of written test and interview. THE complainant deposited a sum of Rs. 12,000/- as first instalment of the tuition fee on 9.9.1994. She was issued an identity card by the O.P. institute. THE O.P. also asked the complainant Ms. Rachna Sharma to become member of the executive club, which was compulsory for each student, and she deposited Rs. 200/- as membership fee on 9.9.1994. According to the complainant No. 1 she was informed that the classes will be held in the NDMC school at or around Lodhi Colony since the building of institute is under construction. However, after she joined the course the complainant No. 1 found that the classes were being held in a car garage in the backyard of the building contrary to the information given to complainant No. 1. It is also stated that there was no proper ventilation, proper sitting place without any bathroom, toilet facility and without any proper library and the accommodation was not sufficient to meet the requirements of the number of students admitted. However, the O.P. institute assured complainant No. 1 and other students that this is a temporary arrangement and hence the complainant No. 1 continued to attend the classes. In the meanwhile, the Executive President of the O.P. institute Sh. Jagjit Singh issued a hand note calling upon the students to make donation for the building of the institute and also requested the students to bear with the institute for the inconvenienece caused in attending the classes in the car garage. THE first semester examination was proposed to be held on 20.2.1995 and the O.P. institute directed complainant No. 1 and other students to deposit fee of Rs. 12,000/- as fee for second semester in advance. Complainant No. 1 was also informed that if she fails or refuse to pay second semester fee, she will not be allowed to appear in the first semester examination. Thus the complainant had to deposit a sum of s. 12,025/- as the second instalment fee along with late fee vide receipt dated 1.2.1995. Complainant No. 1 on inquiry from various Government, public and private undertakings and corporation came to know that the course conducted by the O.P. is not recognised as mentioned in the prospectus. It is further stated by complainant No. 1 that the minimum qualification for the PG Diploma Course in Business Administration was graduate but various students were also allowed to attend classes due to arbitrary and unjust act of the O.P. THE complainant made several complaints to the officials of the O.P. institute but nothing was done. Complainant No. 1 then requested the Director of the O.P. institute that she may be permitted to switch over to the correspondence course instead of regular full-time course. But now answer was given by the Director of the O.P. institute. In the meanwhile complainant No. 1 applied for some job and she got the job at Fortune Travels at South Extension vide appointment letter dated 13.2.1995. Complainant No. 1 made representation to the O.P. institute on 16.2.1995 that she may be allowed to switch over from the regular course to correspondence course but no reply was received from the O.P. institute. Complainant No. 1 also came to know that in fact no correspondence course is being conducted by the O.P. institute and it was falsely represented in the prospectus that the institute conducts correspondence course. Hence the complainant requested the Director of the O.P. institute for the refund of Rs. 12,000/- charged as advance fee for the second semester examination since the course has not yet started. However, Director of the O.P. institute refused to refund the amount. It is also stated by complainant No. 1 that she did not appear in the first semester examination and, therefore, vide Clause 5(b) of the prospectus she was not entitled to be promoted to the subsequent semester and, therefore, the O.P. have no right to charge fee for the second semester. Unable to get any relief from the O.P., the complainants sent a legal notice through their Counsel on 28.3.1995. However, the O.P. institute refused to refund the amount vide reply dated 8.4.1995. It is stated by the complainants that they have suffered huge loss since the PG Diploma in Business Administration was neither at par with MBA as assured by the O.P. nor it was recognised nor in any way affiliated with various public or private undertakings. It is alleged that the O.P. institute is a money making institute playing with the career of the innocent and hard working students. THE institute has no proper room for holding classes nor have proper toilet, library and other facilities. It is also stated that the action of the O.P. institute in charging second semester fee in advance amounts to unfair trade practice. Complainant No. 1 has claimed that she has wasted precious and valuable time in the institute without any recognition and affiliation; hence she has claimed a sum of Rs. 6 lacs from the O.P. institute as damages and also refund of the amount already deposited with the O.P. institute with interest. Complainant No. 1 Ms. Rachna Sharma besides her affidavit has filed a copy of the prospectus of the O.P. institute, receipt of various deposits, copy of the identity card, copy of the letter issued by the Executive President of the O.P. institute for raising fund for the building of the institute, appointment letter dated 13.2.1995 from Fortune Travels by which complainant No. 1 was appointed as Management Trainee, copy of the letter written to the Director of the O.P. institute for refund of the fee, copy of the legal notice and copy of reply received from the Director of the O.P. institute. The O.P. in its reply stated that complainant No. 1 Ms. Rachna Sharma joined the PG Diploma Course in Business Administration (Full time) and attended regular classes but later on opted to leave at her own. Hence she is not entitled to any refund of the amount paid by her. It is stated by the O.P. that at the time of registration in the said Diploma course the complainant No. 2 had given the following undertaking: "If I am unable to join/continue, with the course, I am fully aware that the fee paid by me is neither refundable nor adjustable with any other programme."

It is stated by the O.P. that under the terms and conditions as stated in the registration form the fee paid by the complainant No. 1 is neither refundable nor adjustable and these conditions were accepted by the complainant No. 1 at the time of registration . Thus the O.P. is under no obligation to refund the fee and the complaint is not maintainable. It is further stated by the O.P. that the complainant has not proved that any loss or injury was caused to her due to negligence of the O.P. and hence she is not entitled to any compensation. It is also asserted by the O.P. that classes were held in well equipped air-conditioned rooms with modern teaching aid like computers, audiovisual equipments, etc. equipped with good library. The O.P. denied that the membership of the club on payment of Rs. 200/- was made compulsory. It is, however, stated that the said club is extremely useful group activity and acts as sounding board for problems facing business industry and society. The O.P. also stated that the institute has made request for donations and fund raising for the building but there was no compulsion for it and it was all voluntary. It is stated on behalf of the O.P. that the PG Diploma is a two years full course in marketing management and the course has been recognised by Govt. of India (AICTE) and that the list of organisations patronising the programme are provided in the prospectus. It is admitted that complainant No. 1 had paid the first instalment of Rs. 12,000/- on 9.9.1994 and paid the second instalment of Rs. 12,025/- on 1.2.1995. It is further stated that complainant No. 1 was well aware that the fee once paid will not be refunded nor can be adjusted with any other programme. The O.P. denied to have played any fraud or unfair trade practice on its part and stated that complainant No. 1 herself left the course after she got a job and as per Clause 6(b) of the terms and conditions, she is not entitled to get any refund of the fee already deposited. Copy of the registration form has been filed which is signed by complainant No. 1 Ms. Rachna Sharma in which Clause 6(b) of the terms and conditions is mentioned. O.P. has filed affidavit of Dr. Jagjit Singh, Executive President of the O.P. institute beside filing copy of the registration form to prove that complainant No. 1 at the time of registration was fully aware and agreed to the conditions that the fee is neither refundable nor adjustable with any other programme.

WE have heard the learned Counsel for both the parties and have also carefully considered the evidence filed by both the parties and gone through the documents/material on record. It is admitted by both the parties that complainant No. 1 Ms. Rachna Sharma took admission in PG Diploma Course in Business Administration conducted by the O.P. institute and she regularly attended the classes of the first semester. It is also not in dispute that she deposited Rs. 2,000/- as registration fee, Rs. 12,000/- as tuition fee for the first semester, Rs. 200/- as club membership fee and Rs. 12,025/- as fee for the second semester along with late fee. It is also admitted that complainant No. 1 got a job with Fortune Travels in February, 1995 and hence she did not appear in the first semester examination. Till then she had regularly attended the classes. The main dispute is regarding refund of the fee charged for second semester, which the complainant had deposited in February 1995. The case of the O.P. is that at the time of registration complainant No. 1 had agreed to the terms and conditions and has signed the form. In the registration form Clause 6(B) reads as follows: "If I am unable to join/continue, with the course, I am fully aware that the fee paid by me is neither refundable nor adjustable with any other programme." The learned Counsel for the O.P. has relied on a judgment of this Commission in M/s. Kohli Printographics v. Megabyte, 1992 (1) CPR 341, wherein it has been held that the complainant cannot file a complaint under Consumer Protection Act on the basis of agreement between the parties. It has been argued that in the instant case there was an agreement between the complainant and the O.P. that the fee was not to be refunded or adjusted in case the complainant decides to leave the course. In the present case complainant No. 1 herself left the course after she got a job even though she had regularly attended the classes of the first semester. Even in the letter of request written to the O.P. institute, complainant No. 1 has stated that due to unavoidable circumstances she as to take up the job as such she is unable to pursue the course any further. Thus it was the complainant herself who opted to discontinue the course to take up the job and it was not on account of any deficiency in service or unfair trade practice on the part of the O.P.

THE complainant has failed to prove that proper facilities were not available in the O.P. institute or that she was compelled to deposit the fee of the second semester. It appears that complainant No. 1 joined the course at her own sweet will and deposited the required fee of the first and second semester according to the rules. However, after getting the appointment from Fortune Travels she decided to discontinue the course but when the institute as per terms and conditions refused to refund fee of the second semester, she filed the present complaint with allegations of fraud and deficiency in service which have not been substantiated by any evidence. THE O.P. has also relied on a judgment of the Kerala State Commission in M.C. Prabhakran Pillai v. Gopinathan Nair, I (1997) CPJ 284 (Kerala), in which it has been held that when the complainant discontinue to attend course at its own there is no deficiency in service on the part of the institute and the complainant is not entitled for the refund of the money deposited. In view of what we have discussed above, it is apparent that the complainant has failed to prove any deficiency or unfair trade practice on the part of the O.P. institute and hence she is not entitled to any relief. She has discontinued the course at her own after getting the job and as per terms and conditions mentioned in the registration for which has been signed by complainant No. 1 she was not entitled to refund of any fee or for adjustment in any other course. Hence the complaint is liable to be dismissed and the same is dismissed accordingly. In the circumstances of the case the parties are left to bear their own cost. The present complaint stands disposed of in above terms. Complaint disposed of.