On January 12, 2021, the District Consumer Disputes Redressal Commission at Bangalore decided a matter wherein the Complainant filed a complaint under section 12 of the Consumer Protection Act, 1986[1] seeking direction against the Opposite Parties to refund an amount of INR 69, 408/- with interest of 18% to pay INR 3 lakhs for causing mental agony.
Facts
The Complainant admitted his daughter in the Opposite Parties’ institute based on their promises and assurances. Specifically, it was promised that focus will be laid on subjects of physics, chemistry, maths and biology in addition to the ICSE course subjects as part of the curriculum. However, according to the Complainant, the services of the Opposite Parties were not as promised which resulted in poor academic performance of his daughter. After communicating the lack of services to the Opposite Parties, no action was taken by them. Thereafter, the Complainant decided to withdraw her daughter from the said Institute and sought for refund of the entire amount.
Subsequently, the mistake was accepted by the Opposite Party and was ready to settle the matter by refunding an amount of INR 26,014/- only.
The Opposite Parties submitted that they had disclosed every material fact to the Complainant at the time of the admission. Further, they allege that the Complainant’s daughter withdrew from the course due to her personal problems as she was unable to cope up. Additionally, no evidence has been provided by the Complainant for “deficiency” on the part of the Opposite Parties. They relied on a decision of the National Commission[2] which held that education is not a commodity and educational and coaching institutions are providing any kind of services and imparting of education by these institutions for consideration wouldn’t fall within the ambit of service as defined under the Consumer Protection Act.
The Commission
The Commission relied on numerous decisions including the one mentioned by the Opposite Parties and concluded that any defect or deficiency or unfair trade practice pertaining to a service provider like ‘Coaching Centres’ i.e., Opposite Parties does fall within the jurisdiction of the Consumer Forum. It further held that since the Complainant’s daughter had attended the first term classes, the amount refunded would be only for the second term. Thus, the Opposite Parties were ordered to refund an amount of INR 26,250 with costs within six weeks or from 6 per cent interest per annum, thereafter.
Deficiency of Services
A consumer can lodge a complaint under the Consumer Protection Act, 2019 (“the Act”) if they find a service to be ‘deficient’. Section 2(11) of the Act defines ‘deficiency’ as any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes –
(i) Any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
(ii) Deliberate withholding of relevant information by such person to the consumer.
(iii) Any act which the seller is supposed to do or omit but deliberately does the contrast.
Recent Case Laws
Ireo Grace Realtech Pvt Ltd v. Abhishek Khanna & Ors.[3]
The court held that the failure of developer to comply with contractual obligation to provide flats within contractually stipulated period, would constitute ‘deficiency of service’.
Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan[4]
The inordinate delay in handing over possession of the flat amounts to deficiency.
Rajendra Kumar Gupta vs. Dr. Vireendra Swarup Public School and Anr.[5]
The Supreme Court adjudged on whether a college is a service provider for the purposes of the Act. In the facts of the case, the appellant’s child had taken admission for the summer camp activities and in the swimming class, he had drowned. On the basis of precedents, the court held that educational institutions do not fall within the ambit of the Act and education which includes co-curricular activities such as swimming, is not a “service” within the meaning of the Act.
Magma Fincorp Ltd. vs. Rajesh Kumar Tiwari[6]
If the hirer breaches the conditions of a hire-purchase agreement which expressly provides for immediate repossession of a vehicle without further notice to the hirer, in case of default in payment of hire charges and/or hire instalments, repossession would not be vitiated for want of notice. However, when the requirement to serve notice before repossession is implicit in the hire-purchase agreement, non-service of proper notice would tantamount to deficiency of service for breach of the hire-purchase agreement giving rise to a claim in damages.
Indian Medical Association v. VP Shantha[7]
This is a landmark case on ‘deficiency of service’ as the Supreme Court held that medical profession including hospitals fall within the purview of the Act and therefore an act of medical negligence may constitute ‘deficiency’ and the consumer forum would have jurisdiction to adjudicate upon the matter.
Conclusion
With the above precedents, it is evident that the National Commission as well as the courts have been adopting a broad view of what constitutes ‘deficiency of service’ including medical profession, contractors, etc. These decisions are a relief for the consumers as they encourage them to approach the right forum for the redressal of issues and the Commissions in India at each level have been steadfast in resolving consumer disputes.
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