NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
Jai Kumar Mittal … Complainant
Brilliant Tutorials … Opposite Party
HON’BLE MR. JUSTICE M.B.SHAH, PRESIDENT
MRS. RAJYALAKSHMI RAO, MEMBER.
For the Complainant : Mr. Atul Shukla,
Ms. Rakhi Arora &
Mr. Hemant Bajaj,
For the Opposite Party : Mr. A.N. Haksar, Senior Advocate
with Ms. Shweta Prasad, Advocate.
Date : 02.09.2005
It is the case of the Complainant that he enrolled with Brilliant Tutorials, the Opposite Party, for the course of postal support coaching for the civil services examination 1994. For this study material, the Complainant has paid a fee of Rs.4,800/- for the Preliminary and Main Examinations of the year 1994. He has chosen Commerce as optional subject in preliminary examination and in the main examination his optional subjects were first, ‘Commerce and Accountancy” and second “Law” besides other compulsory subjects. It is his contention that there was gross deficiency of service by the Opposite Party in supplying the study material. In the study material there were material defects and the standard required to be maintained for civil services examination was not maintained. It is his submission that the Opposite Party induced the candidates by issuing and publishing prospectus with incorrect particulars. In the said material incorrect answers were supplied which constituted a gross deficiency of service. The Complainant has suffered a lot on account of deficiency of service on the part of the Opposite Party.
It is submitted that mistakes given in the study material supplied by the Opposite Party spoiled the chances of the Complainant to be a civil servant and has shattered his hopes and dreams.
He has claimed the total compensation of Rs.30 lakhs and also refund of the amount of Rs.4,800/- paid to the Opposite Party by way of fees.
The Complainant has also pointed out that in the prospectus issued by the Opposite Party it has been specifically stated that :
(a) notes bearing authentic data;
(b) Brilliant Tutorials has been upgrading the study material from year to year;
(c) Every year the study material is revised with the new look (as per letter dated 15.6.1994); and
(d) Our materials being thorough and comprehensive in all aspects, there was no need to have recourse to any text book or guide in the subject. In other words, the composite study material will suffice for the purpose of the exams.
The Complainant has also drawn our attention to the following advertisements issued by the Opposite Party:
(a) Advertisement dated 25.10.1995 in the Times of India, “Leave it to Brilliant! Let Brilliant’s professors present to you a world of information double-checked for authenticity and precision, to help you refresh your memory about important data on the many facets of life”.
(b) Advertisement dated 23.10.1995 in the Times of India, “Leave it to Brilliant! Let Brillinat’s professors take charge. They will do everything for you – except writing the exam by proxy!”
(c) Advertisement dated 22.10.1995 in the Times of India, “Leave it to Brilliant’s professors, seasoned veterans in the fine art of picking the relevant, weeding out the redundant and capsulizing the essence”.
(d) Advertisement dated 09.03.1995 in the Times of India, “Brilliant’s expert guidance for the success in the Civil Services Examination”.
(e) Advertisement dated 18.02.1995 in the Times of India, “You could be pushing your luck contemplate solo preparation… Play it safe. Take up Brilliant’s postal course for IAS”.
(f) Advertisement on the Prospectus of the Opposite Party supplied to the Complainant, “Brilliant Tutorials – your Best Bet for success”.
(g) Advertisement dated 28.5.1993 in the Times of India, For IAS exam Brilliant beyond debate, Brilliant beyond compare”.
As per Order dated 24.04.2005 of this Commission, Complainant submitted details of alleged mistakes in the study material, reply of the opposite party and his comments thereon which are as under:
1. The Complainant stated that Sections 2, 3, 6, 7, 8 under Dowry Prohibition Act, 1961 were amended in 1986, but the same were not revised in the study material supplied for the 1994 IAS examination.
As against this, the Opposite Party replied that (i) all the relevant and necessary amendments had been incorporated in the study material; (ii) it had cleared the doubts of the Complainant regarding dowry death vide letter dated 28.11.1994; (iii) No question pertaining to this Act appeared in the 1994 IAS Laws Examinations. Hence, the allegation of the Complainant is baseless; (iv) that Amendment re. Sec.304-B has been correctly incorporated in IPC, as this is an amendment to IPC.
In response to the reply of the Opposite Party, the Complainant submitted that (i) not even a single word is mentioned on the above mentioned amendment in the study material supplied; (ii) the O.P. cleverly, to mislead the Court, referred to its letter dated 28.11.1994 wherein they have referred to ‘amendment in the IPC regarding Dowry Death’, whereas his query was ‘amendments made to Sections, 2, 3, 6, 7, 8 under the Dowry Prohibition Act, 1961’ which was one of the main topics of IAS Main Exam.; (iii) Reliance is placed on the advertisement of the O.P. : “….present to you a world of information double-checked for authenticity and precision, to help you refresh your memory”.; (iv) Therefore, the Opposite Party was guilty of deficiency in service in supplying unrevised material against the stand taken by it in the advertisement (as mentioned just above).
2. The Complainant stated that in the Dowry Prohibition Act, 1961, a New Section 4A, Ban on advertisement, and Section 8A, Burden of proof in certain cases, were inserted in 1986. These were not incorporated in the study material.
The Opposite Party has not replied to this.
In this connection the Complainant stated that opposite party had deliberately avoided to reply to this, because, the study material was not revised after 1984.
3. The Complainant stated that Sections 8B, Dowry Prohibition Officers; Section 10, Power of State Govt. to make Rules, were substituted with new Sections in 1986. These were not revised in the study material.
The Opposite Party has not submitted any reply.
Hence, the Complainant submits that the Opposite Party has deliberately avoided to reply to this, because, the study material was not revised after 1984.
4. The Complainant submits that a question from the Dowry Prohibition Act was asked in 1990 Civil Services (Mains) examination.
The Opposite Party has not submitted any reply.
In support of his contention, the Complainant submitted that in spite of a question on this Act was asked in the Examination in 1990, the Amendment related to the same is not incorporated in the study material supplied for 1994 Examinations.
5. A question from the Dowry Prohibition Act was asked in 1989 Civil Services (Mains) examination.
The Opposite Party has not submitted any reply.
In spite of a question on this Act was asked in the Examination in 1989 also, the Amendment related to the same is not incorporated in the study material supplied for 1994 Examinations.
6. The Opposite Party has not covered the 75th Amendment made to the Original Features of the Constitution, in the study material, thought it was stated that ‘Original Features of the Constitution’ have been changed considerably by the 75th Amendment.
The response of the Opposite Party is that the 75th Amendment came into force only on 15.5.1994, i.e. after the supply of the tutorial material; it is not possible to cover all the amendments made to the Constitution, as the study material is pertaining to important amendments like, 42nd, 43rd and 44th Amendments; the study material is structured to be more examination oriented than text oriented; no question regarding this Amendment is asked in the examination.
To the above reply of the Opposite Party, the Complainant submits that the Amendment was known to the Opposite Party before the supply of the study material. On Basic Structure concept a question for 20 marks was asked in the 1994 Examination and the Opposite Party is not correct in its reply.
. The Opposite Party has not incorporated in the study material the major changes made in the year 1988 in ‘Manufacturing and Other Companies (Audit Report) Order, 1975’.
Reply: That the Opposite Party has informed the Complainant regarding the changes in the particular Order, as has been set out in the material and that the information was beyond the scope of IAS examination, and whatever was given in the study material, is for general benefit of the students.
The Complainant submitted that the reply of the Opposite Party is contrary to the Advertisement dated 22.10.1995.
8. Till the year 1992, ‘Guidelines for issue of Bonus Shares’ were being issued by the Controller of Capital Issues (CCI). In 1992, the CCI was repealed and replaced by the Securities and Exchange Board of India Act, 1992 (SEBI) and the SEBI issued the guidelines for the issue of Bonus shares. This change was not effected in the 1994 material.
Reply: That in response to the letter of Complainant in this regard, the Opposite Party had informed him that the SEBI guidelines could be found at page 199 of the study material.
In the response the Complainant submitted that at p.199 the guidelines given were of “CCI” and not by the “SEBI” and that the reply of the OP is incorrect.
9. Note 2 to Pare 3(x) of Prt-II of Schedule VI of the Companies Act was omitted in 1990 but, in the study material, without updating this development, ‘the position existed in 1971’ was mentioned.
Reply: That the query on the topic was answered satisfactorily by the Opposite Party vide its letter dated 13.5.1994. This information was sent to the Complainant much before the Preliminary Exams. The Complainant did not suffer on this account, as he had passed the Prelim examination.
As against this, the Complainant submits that It is the indirect admission of the Opposite Party that the study material was not updated for years together.
10. The complainant submits that in the study material, ‘Schedule XIII to the Companies Act, 1956’ was given without incorporating the amendments made to it. The study material is therefore, misleading and incorrect position of law.
In reply to this, the Opposite Party has repeated the same answer given to Question No.9. Hence the Complainant did not respond to it.
11. Updated information with regard to the he legal position on ‘depreciation’ in the Income Tax Act, 1961, and the Companies Act, 1956, was not given.
To this, the Opposite Party, more or less, repeated the same reply as given to question No.9 above.
.12. The Complainant stated that in the study material the legal position given was on the basis of the case law ‘CIT Vs. G.R.Karthikeyan (1980) 4 Taxman 40 (Mad)’, whereas the same was overruled by the Supreme Court. In this regard the Complainant submitted that the study material was not updated.
Reply: That the text books on Income Tax, applicable to the assessment year 1993-94 did not contain the said Supreme Court ruling at the given point of time, as the case was very recent one. Hence, there was no deficiency in the study material.
In response to the above reply of Opposite Party, the Complainant stated that he was enrolled for 1994 exams, the case was decided and was reported in 1993; the Opposite Party relies on text books, rather than on its own sources like its faculty, etc. Hence, the Opposite Party was deficient in rendering service.
.13. In the Study Material covers the number of SAPs (Standard Auditing Practice) issued by the ICAI were three, whereas, by 1994 eight SAPs were issued. Hence, the study material was not up-to-date.
Reply: (i) The Opposite Party cleared the position to the Complainant vide letter dated 25.4.1994; information in this regard was beyond the scope of IAS syllabus, and this was mentioned by way of information; no question appeared on the said topic in the 1994 examinations. Hence, the Complainant did not suffer any loss.
Submission of the Complainant is that the stand of the Opposite Party was contrary to the claim made in the advertisement dated 22.10.1995. (The same is referred to above).
.14. The Complainant stated that, in the study material, the solution given to a question for 30 marks in the 1992 IAS Main Exam was wrong. The question was on the subject ‘Production Budget’. In the answer, the ‘fixed cost’ was also treated ‘variable cost’.
The Opposite Party stated that the answer given in the study material was correct. It further states that ‘in any event no such question appeared the 1994 examination’. The Opposite Party, in support of his response, has also relied upon the publication of various authors who are specialised in the field.
The Complainant, in response to the reply of the Opposite Party, stated that the reasoning given in the affidavit, in this regard, is contrary to the reasoning (answer) given in the study material, hence the Opposite Party is misleading this Commission. In support of this contention, the Complainant stated : “On the one hand, the Opposite Party has conceded the fact that ‘in case of administrative expenses, the question itself states that it is to be assumed that the fixed cost of Rs.5 per unit is fixed for all levels of production’, whereas the answer given by the Opposite Party has taken the same as variable cost rather as fixed cost for different level of production.”
The Complainant further stated that the Opposite Party has only annexed few questions from different text books, but did not deliberately give the answers for these questions.
.15. The solution given in the study material for a question on the subject ‘computation of salary income under the Income Tax Act, 1961’ was wrong as standard deduction under Sec. 16(i) was wrongly calculated.
Reply: That the Professor, due to typographical error, while preparing the answer to the question, has applied standard deduction for working woman, rather than other individual. Hence, the difference between the answer of the Complainant and that of the Opposite Party given in the study material. The Opposite Party’s further stand is that ‘no similar question was asked in the 1994 exams’.
The Complainant replied that in 1994 there had never been different standard of deduction from salary for working woman; and the provision 16(i) always remained same for working women and working men. Further, that the rebate given for women under Section 88C of the Income Tax Act, 1961 was started only w.e.f. 1.4.2001. Hence, the reply of the Opposite Party was wrong.
.16. The solution given to a question asked on the subject ‘computation of taxable income under Income Tax Act, 1961’ was wrong.
Reply: That it is a practice of the Opposite Party to provide previous questions from IAS examination papers to enable the students to acquaint them with the pattern of questions asked and to stress on the importance on certain segments.
The answer to the question which was asked in the 1988 IAS (Main) exam was worked as per the provisions of the Income Tax Act for Assessment Year 1988-89, and the same was not revised with respect to any changes in the provisions of the Finance Act that might have taken place in the subsequent years. Further, no such question appeared in the 1994 exam.
In this regard the Complainant submited that besides being mistakes in giving deduction there were principle errors also like double tax on the rental income, which never existed under Income Tax Act, 1961 till date.
.17. The solution given for a question on ‘computation of cost of capital under financial management’ was absolutely wrong. The Complainant stated that : ‘in the solution cost of Debt was wrong, as tax benefit was not considered. Similarly, cost of Equity was also wrong, as tax benefit was given. As such, in computation of cost of capital, tax benefit is available for Debt and not in case of equity capital, as interest on loan is deductible expenses under Income Tax Act, but not dividend on equity capital.
Reply: That the cost of debt is calculated by reputed authors in two different ways. For a similar question asked in 1988 exam, cost of debt was calculated by explicit cost represented by the rate of interest. This method is also applied by various authors like M.Y.Khan and D.K.Jain in their book “Financial Management”. The Opposite Party further states that no such question appeared in the 1994 exam.
In response to this, the Complainant stated that the reason and answers given by the Opposite Party in principle is wrong in all respects; The claim of the Opposite Party is materially false and can be verified from any reputed management institutes like the IIM or the Institute of Chartered Accountants of India or Institute of Company Secretaries of India.
.18. The Complainant claims that the solution given to the question asked for 20 marks in the 1993 IAS Main Exam on Venn Diagram was wrong.
The Opposite Party stated that the solution is correct and that no such question appeared in the 1994 question paper.
The Complainant stated that the Opposite Party instead of accepting the mistake in their answer, has suggested to change the graphical presentation of question just to match their answer.
From the facts stated above, it appears that there are some errors in the study material supplied by the Opposite Party. It is also apparent that the attractive advertisements were given by the Opposite party, even by stating to the extent, “Leave it to the Brilliant’s professors, seasoned veterans in the fine art of picking the relevant, weeding out the redundant and capsulizing the essence”; “Brilliant’s expert guidance for the success in the Civil Services Examination”; “You could be pushing your luck contemplate solo preparation. Play it safe. Take up Brilliant’s postal course for IAS”. These advertisements give an idea that study material is by well versed professors, and experts in the field. These advertisements would allure the students to pay the tutorial fees and have such study material.
The question is, if there are mistakes or errors in such study material, whether the opposite party would be liable under the Consumer Protection Act? There cannot be any doubt that Complainant had hired services of the Opposite Party for consideration. For this he had paid an amount of Rs.4800/-. If there is deficiency in service by the Opposite Party, then they would be liable to be proceeded under the Consumer Protection Act.
Next contention is, whether it would be unfair trade practice, as alleged by the complainant? Under Section 2(r) of the Consumer Protection Act, “unfair trade practice” is widely defined. It inter alia includes a trade practice which for the purpose of promoting sale or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including the practices named in the various clauses of the said sub-section. Unfair trade practice includes, false representation that services are of a particular standard, quality or grade.
From the facts stated above, It is beyond doubt that some mistakes have crept in the study material, may be that those mistakes
had not affected the complainant to a large extent in answering the questions at the time of examination. But, it is apparent that all the advertisements given by the opposite party indicates that the study material supplied is by the brilliant professors. If there are brilliant professors then the mistakes enumerated above ought not to have been there.
From the facts noted above, it is apparent that there is deficiency in service by the Opposite Party in supply of study material. However, the question is whether these errors can be held to be of such importance that it would result in failure of the Complainant in succeeding Civil Services Examination. Some of the errors were noted by the Complainant. Therefore, it would be difficult to hold that it had adversely affected the Complainant in succeeding the Civil Services Examination. We appreciate the zeal of the Complainant in highlighting the errors. Considering the overall facts and errors pointed out by the Complainant, we are of the opinion that the claim made by the Complainant is exaggerated. Considering the dispute involved and deficiency in service, we direct the Opposite Party to pay to the Complainant Rs.25,000/- towards compensation, to refund the amount of Rs.4,800/- paid to the Opposite Party by way of fees, and
also pay Rs.5,000/- towards costs. The Original Petition is disposed of accordingly.