SHIHAN VISPY B KAPADIA Vs. KRISHNAKANT I MACHHAR

JUDGEMENT

(1.) This appeal raises an important question as to whether the complainant, who has obtained the services from the appellant/respondent can claim back the consideration when the complainant himself withdraws from the availment of service. We are of the view that the dispute can not fall within the purview of the consumer dispute on the ground that there is no deficiency in service. The appellant/original respondent is the Principal and Director of the Institute of "gojukai Karate-Do-Gojukhan India affiliated to "zin Nippan Karate" having its office at Bombay. The said institute trains the students for karate. The complainant's son Hardik Macchar, aged about 9 years, joined the said training institute in May, 1993 under the guidance of the appellant. He was to participate in Karate-Do-Gojukai World Tournament. The training was to be held in Japan on 21st to 23rd November, 1993. This needed special training and for that purpose, the appellant had to engage the services for special training and guidance from Japan. The appellant was also to look after the boarding and lodging and training and for hotel arrangements, airfare and during the transport and stay at Japan. The cost for all these items was worked out to Rs.80,000/- per student. The appellant has contended that the complainant's son took training for the period of about 8 months, prior to October, 1993 and had paid only Rs.30,000/-with the assurance that the balance would be paid in due course of time. However, the complainant withdrew from this training in October, 1993. He fell sick and suffered from typhoid and therefore, could not attend the training. He demanded back Rs.30,000/- given by way of fees towards the training. The appellant has contended that the fees of Rs 80,000/- were worked out on the basis of cost of training, boarding, lodging, hotel booking, airfare etc. The total expenses were divided amongst the number of students, who were to participate the World Tournament and that amount comes to Rs.80,000/-. The complainant's son fell sick. He could not participate in the training. According to the appellant, he had no right to claim back Rs.30,000/- which were paid as part fees for the training.

(2.) The appellant has filed the affidavits of Jayesh Doshi and Akhtar Hussain, whose children had participated the training and had paid Rs.80,000/-. Now, here is the case, where the complainant's son withdrew from the training on the ground of sickness but that would not entitle the complainant to ask for refund because the complainant's son had taken training for number of months and that the appellant was required to spend for the above charges, in order to enable the students to participate for tournament. This is a case, where the complainant has withdrawn from the training on account of the sickness of his son, there would not therefore, be any deficiency on the part of the appellant, because the appellant was ready to impart training to the complainant's son right up to the time the world tournaments were to be held in Japan. We are therefore, of the view that this is the case, which cannot be said to be a case involving deficiencies in service. This cannot be treated as a consumer dispute. Apart from that substantial amounts have been spent by the appellant towards the training and it is, therefore, not justifiable for the complainant to demand back the money. The District Forum has erroneously held that the appellant cannot be allowed to have unjust enrichment and ordered to refund the amount. We have indicated that there is no question of unjust enrichment for the appellant, when the appellant has paid substantial amount for training. We, therefore, feel that the District Forum committed error in awarding the claim for refund of Rs.30,000/- to the complainant. We, therefore, pass the following order : order the appeal is allowed. The order of the District Forum is set aside. The complaint is dismissed. The appellant is entitled to the refund of Rs.30,000/- which he has deposited with the State Commission Office. There should be however, no order as to costs.