BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 20^th April 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDERS IN

C.C.No.344/2013

(Admitted on 21.12.2013)

Aswathi. K,

D/o Prabhakaran. K,

Aged 18 years,

Krishna Kripa,

Kokkal, Udma P.O, Kasaragod District, Kerala,

                                                                                ….. COMPLAINANT

(Advocate for the Complainant: Sri SSK)

VERSUS

1. A. Shama Rao foundation,

Corporate office, Hotel Srinivas Building,

G.H.S. Road, Mangalore 575001.

Represented by Managing Director,

Shri. CA.A. Raghavendra Rao.

2. Srinivas School, of Engineering,

Srinivas Nagar, Mukka, Surathkal 575021,

Rep: by Principal Shri. Dr.Shreeprakash B.

                                                                        ….........OPPOSITE PARTIES

(Advocate for the Opposite Party: Sri.PJR)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR:

I. 1.The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to pay Rs.1,90,000/ as compensation for mental stress and strain, physical stress, financial loss, High Court expenses for getting the certificates and sufferings, to pay cost of Rs.5,000/ and such other reliefs.

2.   In support of the above complaint the complainant Aswathi. K, filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents and got marked as Ex.C1 to C13 as detailed in the annexure here below. Prabhakaran, (CW2) filed affidavit evidence and answered the interrogatories served on him. Dr.Sathynarayana N, (CW3) Chief examination.  On behalf of the opposite party Dr.Shreeprakash B, (RW1)Principal, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R8 as detailed in the annexure here below. Dr. M. Annayya Kulal Ulthur, (RW2) Chief Medical Officer and Professor, Srinivas Group of Colleges, also filed affidavit evidence and answered the interrogatories served on him.

The brief facts of the case are as under:

We have perused the complaint and the version of the parties. This dispute is in respect of the opposite party not returned the educational certificates on discontinuing the course in the mid- stream on the ground of full course fees to be paid. The complainant stated that she has joined for the course in the opposite party educational institute for the 1^st year BE engineering course (Civil) for the academic year 2012.13 by paying Rs 1,23,250/ with another Rs 33,500/ for hostel facility. She attended the college for three months and due to her ill health she could not able to continue and discontinued the course. On requesting the original certificate to be returned the opposite party refused to return on the ground that the whole course for four years fees to be paid.  But after issuing legal notice and the after filing writ petition in the Honorable High court of Karnataka, the opposite party has returned the original certificate as out of court settlement.  Apart from this the complainant alleges that the opposite party hostel not allowed her to collect her belongings while leaving the hostel on discontinuing the course, her dresses and the other things are missing while vacating the hostel after collecting the certificates. Even after the settlement and while handing over the certificate the opposite parties harassed in delaying the return of the certificates.  Hence alleges the deficiency in service in refusing the return of the original certificate initially, on the part of the opposite parties. The opposite parties denied that they have asked for the payment of fees for the remaining course of three years for returning the documents. The opposite party also contended that the complainant since discontinued the course in the mid-stream she is bound to pay the full course fees as the opposite party will put to loss and as per declaration she is agreed and admitted to pay the full course fees. Hence there is no deficiency in service on the part of the opposite parties. The opposite parties counter claim an amount of Rs 3,02,470/  as the balance fees for the course of 4 years from the complainant. These are being the facts of dispute we are of the view to decide the following

POINTS FOR ADJUDICATION

          We have traversed through the documents filed and examined the evidence on record. The admitted facts are, the complainant joining the course and payment of fees for the 1^st year course and the hostel fees. It is also admitted that the complainant left the course in the mid-stream after attending for three months. It is also admitted that the complainant asked for the return of the original certificates given on admission to the course and the opposite party not returned even after filing a writ in the Honorable High court of Karnataka till 30.07.2013 but returned on 30.07.2013 and the writ dismissed as settled out of court. The denial are the opposite party denies that they have demanded the fees for the remaining course of  3 years for returning the originals certificates,  the harassment in the hostel and not allowing the complainant to collect her belongings, and the harassment in the college office while handing over the certificates. The complainant denies that she is due to the college for the balance fees of the course. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.

1. Whether the complainant is the consumer under the consumer protection Act 1986?
2. Whether is there any deficiency in service on the part of the opposite parties?
3. Whether complaint entitled for the relief prayed for?
4. What order? 

On close examination of the facts of the case and the evidence led and the documents produced, we taken into account the notes of arguments filed with the citations, heard the party counsels and answered the above points as under:

1. In the affirmative.
2. In the affirmative.
3. In the affirmative.
4. As per delivered order.

REASONS

POINT NO 1: The complainant claims she had joined the opposite party education institution called the Srinivasa School of Engineering at Mukka, Suratkal, MANGALORE. The EX R 6 is the application form submitted by the complainant. These facts established that the complainant had sought for the educational service of the opposite party. Hence we answered the point No 1 in the affirmative.

POINT NO 2: The complainant alleges the deficiency in service for not returning the original educational certificates on discontinuing the course demanding the balance fees for the remaining 3 years of course by the opposite parties and only returned on the interference of the Honorable High court of Karnataka the opposite party returned the certificates and caused unnecessarily delayed for returning it.  Also not allowed to take her belongings from the hostel on discontinuing the course and leaving the hostel. Apart from this even after settlement the opposite party troubled while returning the certificates by causing her to wait and directing her to the principle (op2) at Mukkam college about 12 k.mts from the opposite party office. The records in the court file shows that the complainant had joined the course on 22^nd of August 2012 and as per letter dated 1.12.2012 the complainant has informed the opposite party, her intention to leave the course but opposite party disputes the receipt of the letter. But the complainant had served the legal notice on 29.12.2012 to return the certificates. So about four months after joining the course the complainant left the course and it is clear that the opposite party not handed over the certificates to the complainant. The complainant alleges the opposite party demanded the whole course fee and refused to return the documents. But the opposite party denies the allegations by denying the demand made for the balance course fee of Rs 3,02,470/  from the complainant for returning the certificates. But opposite party is silent why the certificate was not returned. Opposite party not assigned any specific and cogent reason for not returning the documents. The Para 11 of the version clearly states, the opposite party had denied the insisting of the payment for the entire further 3 years fees. In the same Para the opposite party stated  it made clear that the complainant is still due in a sum of Rs.3,02,470/ towards the balance course fee for 3  years and the complainant has not paid this amount till today   We presume since the opposite party not revealed any cogent reason for not returning the documents, the opposite party retained the certificates for insisting the  payment. The opposite party is not supposed to retain the originals certificates as it causes unrepairable loss and loss of opportunity. The opposite party as suggested in the Islamic Academy of Education case by the Honorable Supreme Court would have raised a bond or bank guarantee and returned the originals to the student to enable him to use the opportunity. It is also pertinent to note that the complainant claimed on the health ground for leaving the course and wanted to continue the course in the suitable location for her improving health condition. The complainant had produced few medical reports and the case sheets also. The opposite party had retained the original certificates without cogent reason. However the opposite party said in a line in the affidavit in Para 5 that, as per rules of the university the college had to submit all the originals documents/certificates of the 1^st year B.E. degree students to the university for the Verification and approval, but not produced any rules of university or the documents to show that the certificates have been sent to and not received back till 30.07.2013, the day of return if certificate on the instance of out of court of settlements. Hence we are of the opinion that the opposite party withheld the original certificates till 30.07.2013 without any cogent reason and made the complainant student to suffer mental agony. We hold the opposite party liable for the delay in handing over the original certificates to the complainant.

2.    The much vehement argument addressed by the opposite parties and produced number of authorities on the subject that the opposite party is a non-aided educational institution and it has right to seek full payment of the course if the student left the course in the mid-stream. The opposite party institute has spent lot of money and if a student is left in the middle the opposite party cannot admit any new student and the opposite party incur loss. It is true the referred citations upholds the opposite party rights to demand for the entire course fee if left in the mid-stream in particular the non-aided institutions. But this case is peculiar in nature distinguished from the cited cases. The peculiarities lies in facts that, in the instant case the opposite party denied the demanding of the entire course fee for returning the documents, the opposite party returned the documents by settling out of court without contesting the writ. Also the opposite party claims the right for the balance of course fee of Rs 302470/- it is true that the opposite party brought to our notice that the complainant had agreed and bound himself for the payment of entire fee if left the course in the mid stream. But all these facts will not change the position of the opposite party as far as liability of deficiency in service in withholding the certificates till 30.07.2012 as it is not explained why the certificates were not returned when the complainant requested.

3.   In our opinion as per citation produced the opposite party may have a right to collect the remaining fees but not under this Forum. As such we do not go in deep as it is not our domain to decide whether the opposite party has right to collect the remaining fees.The opposite party is not the consumer. The opposite party had raised a counter claim for Rs 3,02,470/ but we are not authorized to decide upon the right or entitlement of the opposite parties. For the opposite parties right the opposite party may approach the appropriate forum. In view of this we hold the opposite party is liable of deficiency in service and we answered the point no 1 in the affirmative.

4.     With regard to other allegation of harassment in the hostel and while collecting the certificates in the office is concern, the complainant not produced any evidence and proved his case and hence not considered for deficiency in service and in fixing the compensation. 

POINT NO 3: In our opinion the opposite party not given any cogent reason for not returning the certificates on discontinuing the course till the date of 30.07.2013 after the complainant left in the month of Dec 2012. That to after the complainant knock the door of the Honorable High Court the opposite party returned the certificate without contesting the writ. We held the opposite party is liable for deficiency in service and the complainant is entitled for the compensation. By taking into account the complainant approached the Honorable High Court through writ by spending money, the complainant left the course on the ground of health problem, we consider an amount of Rs 50,000/ as compensation and Rs 8,000/ for litigation expenses. The opposite party for his counter claim if intent to claim his right to fees may approach appropriate court of law by taking advantage under section14 of the limitation Act.

POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following

ORDER

The complaint is allowed. The opposite parties shall pay the complainant an amount of Rs 50,000/ towards compensation and Rs 8,000/- for litigation expenses within 30 days from the date of the order copy received.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 10 directly typed by Member, revised and pronounced in the open court on this the 20^th April 2017)

             MEMBER                                                  PRESIDENT

    (T.C. RAJASHEKAR)                           (VISHWESHWARA BHAT D)

D.K. District Consumer Forum                 D.K. District Consumer Forum

 Additional Bench, Mangalore.                    Additional Bench, Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 :Aswathi. K

CW2: Prabhakaran

CW3: Dr.Sathynarayana N

Documents marked on behalf of the Complainant:

Ex.C1: 1.12.2012: Copy of letter submitted to Opposite Party No.2 by  complainant.

Ex.C2: 6.11.2012: Copy of certificate of Dr.DShivanandaPai.

Ex.C3:4.12.2012: Copy of certificate of Dr.Sathyanarayan N.

Ex.C4: 4.4.2013: Copy of certificate of Dr.Sathyanarayanan. N.

Ex.C5: 29.12.2012: Copy of Lawyer notice V. Mohanan.

Ex.C6: 5.2.2013: Copy of the Police complaint.

Ex.C7: 30.7.2013: Receipt of paid mess for November 2012.

Ex.C8: 15.11.2012: Receipt of paid mess for October 2012.

Ex.C9: 30.7.2013: Copy of letter given by Opposite Party No.2  permitting to vacate hostel.

Ex.C10: 2.8.2013: Receipt of paid cost of book and return of new  books.

Ex.C11: Internet downloaded copy of status WP.23262/2013 of High Court of Karnataka.

Ex.C12: 31.7.2013: Internet downloaded copy of Judgment in WP.23262/2013 of High Court of Karnataka.

Ex.C13: Complainant records.

Witnesses examined on behalf of the Opposite Parties:

RW1:Dr.Shreeprakash B,(RW1) Principal

RW2: Dr. M. AnnayyaKulalUlthur, Chief Medical Officer and

Professor, Srinivas Group of Colleges

Documents marked on behalf of the Opposite Parties:

Ex.R1: copy of web MD

Ex.R2: copy of the High Court notice in WP. 23262/13.

Ex.R3: copy of the memorandum of writ petition in WP.23262/13.

Ex.R4: original receipt dated 30.7.2013 of the complainant.

Ex.R5: Original complaint letter dated 29.10.2012 from the Hill top ladies hostel.

Ex.R6: original application given by the complainant.

Ex.R7: copy of the reply notice by P. Janakiram advocate.

Ex.R8: Postal acknowledgement

Dated: 20.4.2017                      MEMBER