BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 5^th April 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SMT. LAVANYA M. RAI                  : HON’BLE MEMBER

ORDERS IN

C.C.No.50/2016

(Admitted on 25.01.2016)

Mr. Mohan Prakash,

S/o Vasanth D,

Aged about 51 years,

L.I.C. Employee, Sagar,

Shreyas, K.H.B. Colony, B.K. Road,

2^nd Cross, Sagar Nagar, Shivamogga District,

Mobile No: 9481503600.

                                                                           ….. COMPLAINANT

(Advocate for the Complainant: Sri MR)

VERSUS

1. Excellent Science & Commerce

    PU College, Kallabettu,

    Moodabidri  574227,

    Mangalore Taluk, Dakshina Kannada District,

    Represented by its Administrator.

2. President,

    Excellent Science & Commerce

    PU College, Kallabettu,

    Moodabidri  574227,

    Mangalore Taluk, Dakshina Kannada District.

                                                                                    …........OPPOSITE PARTIES

(Advocate for the Opposite Party No.1 to No.2: Sri MRB)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

     The Complainant claims his son was admitted to first year PU course on 13.4.2015 run by opposite party No.2 by paying a fees of Rs.1,60,000/ even though opposite parties promised to provide good hostel facilities for next year and provided moderate hostel facility for the year.  However contrary to the promises for the academic 2015.16 for second year PUC on the promise of opposite party complainant admitted his son M Shreyas on paying advance fee of Rs.90,000/ but the hostel facility provided was not at all good.   4 residence houses were converted as hostel but accommodated 10 or more students in the house.  There was deficiency of light and air, there is no proper lavatory facility and there was no chair and no space for sitting in the said house. The food was being brought in an auto from outside.   There was no facility for drying the clothes and students suffered from depression.   With the condition after 5 days of stay the complainant took his son away and got admitted into some other college.  Claiming that opposite party has indulged in unfair trade practice as refused to refund the fee of Rs.90,000/ in spite of demand including legal notice and seeks the relief as claimed in the complaint.

II.     Opposite party filed written version contending complainant voluntarily agreed for the terms and conditions of the institution for the allotment of the seat and opted to avail the service by paying the portion of the fee taking undue advantage of the process of law as the seat availed by complainant remained unfilled causing vacancy of the seat.  It also admitted by opposite party having not refused to provide the service and no short comings in the education is forthcoming.  In respect of the service in the hostel at para 5 of the written version is pleaded as follows:

5. The opposite party cannot admit the assertions of the complainant that the hostel facility provided during the first year of the course was ordinary; that the opposite party had assured to provide better hostel facility during the second year of the course; that the hostel facility provided was not of good quality; that there was there was insufficient air or light; that there was no sufficient space; that there was no proper laterine/toilet facility; that there was no basic necessity or favourable atmosphere; that there was any deficiency in service or unfair trade practice adopted by the opposite party.  The complainant is put to strict proof of the allegations made.

The college run by opposite parties is not a resident college but providing hostel facility to the needy students.  The amount of Rs.90,000/- is not towards education fee only.  Non refund of the fee paid is not only made known before availing the admission which was also agreeable to the student as well as complainant son after availing admission had attended vacation and CET coaching by staying in the hostel.  As wished by student as well as complainant intended to join some other college near their native place opposite party have issued the T C in the best interest and future of the student without insisting for the remaining fee.   Hence seeks dismissal of the complaint.

2.     In support of the above complainant Mr. Mohan Prakash filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C8 as detailed in the annexure here below.   On behalf of the opposite parties Mr. Yuvaraja (RW1) Chairman of Excellent Science & Commerce PU College, also filed affidavit evidence and answered the interrogatories served on them and produced documents got marked at Ex.R1 to R2 as detailed in the annexure here below. 

III.    In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2.  If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

     The learned counsels for both sides filed notes of arguments.  We have considered entire case filed on record including evidence tendered by parties.   Our findings on the points are as under follows:

                Point No. (i) : Affirmative

               Point No. (ii) : Partly Affirmative

               Point No. (iii) : As per the final order.

REASONS

IV.   POINTS No. (i):      The claim of complainant as consumer and opposite party as service provider is admitted as complainants son joined to the opposite parties institution is undisputed.  Opposite party had refused to refund the fee even though the son of complainant left the institution of opposite party on 6.6.15 itself.  Hence there is live dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.  Hence we answer point No.1 in the affirmative.

Points No. (ii):      As seen from the para 5 of the written version there is no denial of poor quality of service in the hostel provided by the opposite party to complainants’ son.  What is stated by opposite party that they cannot admit the assertion of the complaints does not, in our opinion, amount to denial of the complainants’ complaint allegations.

2.     The ground urged by opposite party is because the complainants son took transfer from their institution the seat became vacant.   However there is no document produced by opposite party that because on as early as on 6.6.2015 complainants’ son took the TC from opposite party’s institution, neither there is mention made by opposite party when the admission was closed nor that the seat which was occupied by the complainant remained vacant.

3.      Learned counsel for opposite party to substantiate his contention referring to a reported case of National Commission in 2013 3 CPR (NC) 26.   On going through reported case it is clear that the facts her selection and for on 10.3.2009 complainant received offer letter for admission for the session 2009.2011 on 8.4.2009 complainant sent cheque of Rs.35,000/ towards admission fee for PGPM course. On 7.5.2009 complainant being hard pressed for financial crisis requested for refund of Rs.35,000/ deposited as admission fees requested refund of the admission fee.  On the promise that the institution was not getting aided from University Grants Commission or UGC it was held that there being no document by petitioner to show institution got aid and the refund sought was refused.

4.    Reference was also made to another reported case III (2014) CPJ 27 (NC) it is held in this reported case:

     Consumer Protection Act, 1986 Sections, 2(1)(g), 21(b) Education Admission Course left midstream Refund of fee denied Alleged deficiency in service District Forum dismissed complaint State Commission allowed appeal Hence revision Institute is not debarred from collecting entire fees in advance Petitioners have only charged infrastructure cost fee and admission fee and 10% if tuition fees from student There is no justification for refund of this fee, if student has left the course midstream Deficiency not proved.   

5.     However in the case on hand opposite party did not mention as to when the admission to 2^nd PUC closed.  During for the 2^nd year in 2015.16 it also did not produce any record that the seat that fell vacant by complainant remained vacant.  Hence in our considered view the claim of opposite party on this count cannot be accepted. 

6.     In fact the learned counsel for complainant referring to the reported case of NC in www lawyer service in Revision Petition No 813/2009 in appeal No 1043/08 date of order 30.4.2009 in this case the refund was refused. 

7.     In this case opposite party rightly in the affidavit evidence is filed by complainant, father of the student, and the student did not tender any evidence as to the alleged deficiency in the hostel facility.  In fact the assertion made in the statement made by opposite party in the version as well as in the written notes of arguments the complainant son had utilized and attend the coaching classes and CET coaching classes conducted in April 2015.  As seen from the CW1 complainants’ evidence fee of Rs.1,60,000/ paid was including the vacation course from 23.3.2015 to 20.5.2015.  It was contended for opposite party other than the complainant no other student made any complaints about the hostel facility.  However because others did not raise little finger there is no justification for the complainant raising objections on the deficiency in the hostel facility provided as mentioned earlier.   The facility in the hostel made available by opposite party to complainants son of lack of reading desk, lavatory insufficient of space does has not been controverted by the opposite parties.   Hence we are of the view the complainant succeeded in establishing deficiency in service on the part of the opposite party to the complainants son.

8.    Opposite party relied on Ex.R2 an affidavit purported to be sworn by complainants son Shreyas.   It is seen, as pointed out for complainant Ex.R2 front stamp paper was issued on 19^th June 2014 at 5.17 Pm but the second sheet mentioned date of admission on which the student signed is shown as 28^th May 2014. This shows pointed out for complainant, Ex.R2 is a fabricated document.  Hence we are of the view that complainant succeeded in proving the deficiency in service on the part of the opposite parties.  Hence we answer point No.2 in the affirmative.

POINTS No. (iii):   As to the question to what extent the fee is to be refunded as per evidence of complainant he attended for 5 days.   As such we are of the view opposite party shall be directed to refund

Rs.75,000/ and another Rs.10,000/ as compensation towards tension and mental agony.   Wherefore the following

ORDER

     The complaint is partly allowed with cost.  Opposite part is directed to refund Rs.75,000/ (Rupees Seventy Five thousand only) from the date of complaint till the date of payment to complainant.

2.     Opposite party also directed to pay a sum of Rs.10,000/ (Rupees Ten thousand only) as compensation to the complainant.

3.      Advocate fee fixed at Rs.5,000/ (Rupees Five thousand only).

4.   On their failure to pay the above within stipulated time opposite parties shall pay the above amount of Rs.75,000/- (Rupees Seventy Five thousand only) to complainant with  interest at the rate of 9% per annum from the date of complaint till the date of payment.

     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 steno on computer system to the dictation of President revised and pronounced in the open court on this the 5^th April 2017)

              MEMBER                                                 PRESIDENT

      (LAVANYA M. RAI)                           (VISHWESHWARA BHAT D)

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

             Mangalore.                                               Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Mohan Prakash

Documents marked on behalf of the Complainant:

Ex.C1: 17.06.2015: Letter written by complainant to opposite party

Ex.C2: 07.07.2015: Letter written by complainant to opposite party

Ex.C3: 01.08.2015: Letter written by complainant to opposite party

Ex.C4: 18.08.2015: letter written by opposite party to complainant

Ex.C5:22.08.2015: letter written by Consumers’ Forum, Sagar to Opposite party

Ex.C6: 03.10.2015: Legal Notice sent to opposite party

Ex.C7:                  : Xerox copy of ID card issued by Vikas Pre University College, Mangalore to complainants Son Shreyas M

Ex.C8: 06.06.2015: Receipt issued by opposite party

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr. Yuvaraja Chairman of Excellent Science & Commerce PU College

Documents marked on behalf of the Opposite Parties:

Ex.R1: copy for the application for Transfer Certificate

Ex.R2: copy of the Affidavit produced

Dated: 05.4.2017                                          PRESIDENT