Judgment:
A.P. Chowdhri, President:
1. This appeal is directed against order of District Forum II dated 24.5.1996 allowing the complaint and directing the opposite party Nos. 1 and 2 to refund the amount stated in the order and pay Rs. 5,000/ as compensation. The complaint relates to admission of Baby Sanya, 3 years old at the relevant time, granddaughter of Mr. H.L. Kalsi and daughter of Sunil Kalsi to the Nursery class of the New Era Junior School, J 12/15 Rajouri Garden, New Delhi. Arrayed as opposite parties were the New Era Public School (recognised), H 17, Mayapuri Road, New Delhi and New Era Education Society (Regd.), H 17 Mayapuri Road, New Delhi. The case of the complainants was that New Era Public School (Recognised) was a duly recognised school under the Delhi Schools Education Act, 1973. Advertisement in the Hindustan Times was issued by opposite party 2 giving public notice regarding admission to Nursery and Prep classes for the academic session 1994 95. The said public notice was issued under the heading 'New Era Public School, H 17, Mayapuri Road, New Delhi 64'. Registration forms for admission were avail able from the reception counter of the aforesaid school. Children of specified areas were to be given admission in their school in Pochanpur. It may here be pointed out that there is no dispute that junior schools with Nursery and Prep classes are being run under the name and style of New Era Junior School at Rajouri Garden, Naraina, Pochanpur etc. The public notice, therefore, amounted to representation that the New Era Junior School, Rajouri Garden, where the complainants' child was admitted, was a branch of the New Era Public School, which was a recognised institution. The complainants were made to pay the following fees/charges:
| (i) | Form of application for registration S. No. 449 taken on 14.10.1993. | Rs. 100/ | ||
| (ii) | Tution fee for 3 months @ Rs. 400/ p.m. for the months of April, 1994 to June, 1994 | Rs. 1,200/ | ||
| (iii) | Security | Rs. 4,000/ | ||
| (iv) | Termination/Annual fee | Rs. 1,200/ | ||
| (v) | Admission fee | Rs .2,000/ | ||
| (vi) | S.F. (Scholarship fee) | Rs. 200/ | ||
| (vii) | Bus charges from Ramesh Nagar to Rajouri Garden New Era for 1½ months charged for 2 months @ Rs. 175/ p.m. for April and May, 1994 | Rs. 350/ | ||
| Total: | Rs. 9,050/ | |||
4. In the reply filed by opposite party, it was stated that the present case was not covered under the provisions of the Consumer Protection Act and the allegations made in the complaint did not add upto any unfair trade or restrictive trade practice. It was further stated that the complaint was bad for non-joinder of the New Era Junior School, Rajouri Garden and mis joinder of New Era Public School. It was denied that any representation was made to the complainants that New Era Junior School was recognised by the Director of Education or was a branch of the main public school, which was recognised. It was admitted that the junior schools at Rajouri Garden, Naraina, Pochan Pur were not recognised by the Education Department under the Delhi School Education Act nor were the branches of the New Era Public School, Maya Puri. It was denied that the child had been suspended. On the contrary, the complainants had stopped sending the child since 28.7.1994.
5. On a consideration of the material before if, District Forum II held that opposite party Nos. 1 and 2 were guilty of deficiency in service as well as unfair trade practice. Objection regarding non-joinder and mis joinder was decided against the opposite parties on the ground that the process of admission starting from the insertion of the add in newspaper till deposit of fee by the selected students was carried on in the premises of the public school and its stationary was used. The said public school was, thus, a proper party. Non-joinder of New Era Junior School was held to be of no consequence as the Society running it had been impleaded as opposite party 2. It was further held that by using the name of the recognised public school in the advertisement and other stationary used for admissions to the junior school was clearly intended to mislead the public to believe that the junior school was a branch of the main public school. Apparently, this was done to attract larger number of students and prepare them to part with substantial amount of fee on various counts. This amounted not only to deficiency in service but also to unfair trade practice. Accordingly, opposite parties 1 and 2 were directed to refund Rs. 5,200/ (Rs. 4,000/ collected as security and Rs. 1,200/ as tuitions fee for 3 months) alongwith 18% interest per annum from 9.12.1993 till date of payment. The opposite parties were also directed to refund bus fare received for the period after 29.7.1994 and to pay a compensation of Rs.5,000/ .The opposite parties were further directed not to show any of the schools as branches of the New Era Public School, Maya Puri unless they were actually branches thereof.
6. Aggrieved by the order, the Society as well as the public school have preferred this appeal.
7. We have heard Mr. S.S. Kumar, Advocate for the appellant and Mr. H.L. Kalsi, respondent No. 1 in person and have carefully gone through the records.
8. The main contention of Mr. Kumar, learned Counsel for the appellant is that there is no averments of any deficiency in service on the part of opposite party Nos. 1 and 2 and in case the facts alleged by the complainants were taken to add upto unfair trade practice, the FORA is empowered to pass only a "cease and desist" order. There was no question of either refund of the amount already paid or award of any compensation.
9. Before proceeding further it is necessary to determine whether the complaint contained allegations amounting to deficiency in service. While considering the above question averments relating to the scale of fees need not be taken notice of as the question of the quantum of fees is outside the purview of the Consumer Protection Act because the fees are not regulated by any law for the time being in force. The complaint is conspicuous by absence of any averment with regard to any deficiency in the education imparted to the children. Faced with this difficulty the respondent contended that failure to provide facilities in accordance with the provisions of the Delhi School Education Act and the rules framed there under and demand for payment of mid day meal charges twice over amounted to deficiency in service. From the facts on record, junior school was not recognised under the Delhi School Education Act and, therefore, the criteria laid down in the said Act cannot be made applicable to the junior school. In our view, therefore, no case alleging deficiency in service had been set up in the com plaint and, therefore, no order under Rule 14(1)(d) could be passed.
10. The next important question arising for consideration is whether the opposite parties indulged in unfair trade practice. In the public notice through the Hindustan Times the impression sought to be conveyed was that New Era Junior School was a branch of the New Era Public School, which was a recognised school. It is consistent with the probabilities of the case that due attention must have been paid while sending the admission notice for being published in the national daily both from the point of view of attracting the proper section of the public and for conveying what the management was keen to convey without saying as much. Not only in the public notice but in the tuition fee receipt as well as the message book the name used was of the public school. Same is true with regard to "Health Record Book" and school curriculum described in the prospectus. We do not accept the explanation offered by the opposite parties that it was on account of inadvertent use of the stationery relating to the public school that the aforesaid mistake occurred. In our view, therefore, the opposite parties 1 and 2 were guilty of unfair trade practice.
11. It was vehemently contended by Mr. Kumar that Clause (f) of Section 14(1) of the Consumer Protection Act only empowered the FORA to pass a "cease and desist" order. He invited our attention to Section 12 B of the MRTP Act which empowers the MRTP Commission to award suitable compensation. There is no such analogous provision in Section 14 of the Consumer Protection Act and Clause (f) thereof only empowers the FORA to direct discontinuance of the unfair trade practice or a direction not to repeat the same. We find force in the contention of Mr. Kumar. Accordingly, the appeal is partly allowed, directions given by the District Forum with regard to refund of the amount and compensation are set aside. The directions with regard to discontinuance of the unfair trade practice are, however, affirmed. It will be open to the complainants to have their remedy for the recovery of compensation etc. in the appopriate Forum including MRTP Commission according to law. The parties shall bear their own costs throughout in the present proceedings. A copy of the order be conveyed to the parties as well as District Forum II.
Appeal partly allowed.