Jai Kumar Mittal                                                    …      Complainant
                   Vs.
Brilliant Tutorials                                                    …      Opposite Party

BEFORE: Hon'ble Mr. Justice M.B.Shah, President, Mrs. Rajyalakshmi Rao, Member 

Date : 02.09.2005

M.B.SHAH, J. PRESIDENT

                    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. 

Findings:

                    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.