BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 2nd February 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C. No.233/2013
(Admitted on 05.09.2013)
1. Mr. Krishna Das,
S/o Late Kunhiraman,
Aged 52 years,
2. Miss. Shabna Das. K,
D/o Krishna Das,
Aged 20 years,
Both are residing at Marar Kavil
Peral, Neeleshwaram, Kasaragod District,
Kerala State.
….. COMPLAINANTS
(Advocate for the Complainants: Sri AKK)
VERSUS
1. The Chairman,
Karavali Institute of Technology,
Neerumarga, Mangalore 575 029.
2. Mr. Anoop,
KSWA, Besto Centre,
Kanhangad, Kasargod District, Kerala State
3. The Branch Manager,
State Bank of Travancore,
PB No.7, Door No.IX/769-F,
Vyapar Bhavan, Main Bazar, Nileshwar Post,
Kasaragod District, Kerala State.
….........OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri VN)
(Opposite parties No.2 & No.3: Ex parte)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
- 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against opposite parties claiming certain reliefs to refund Rs.1,00,000/ paid towards college fee with interest from the date of payment of fee i.e. 11.08.2010 till the date of deposit, to pay Rs.15,000/ towards cost of legal proceedings and pay compensation of Rs.50,000/ towards mental agony.
2. In support of the above complainant Mr. Krishnadas filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C4 as detailed in the annexure here below. On behalf of the opposite party Mr. Ramakrsihna Bhat (RW1) Principal, Karavali Institute of Technology, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 as detailed in the annexure here below.
The brief facts of the case are as under:
On perusal of the complaint and the version of the parties we find this dispute is with regard to refund of education fees paid, on discontinuing the course. The complainants allege that the complainant no 2 (herein after called student) had joined the opposite party no 1 educational institute and admitted on 05.08.2010. on 10.08.2010 when the student gone for attending the class the opposite party no 1 not allowed for 12 days and later due to mental agony the student finding it difficult to continue the curse decided to leave the opposite party institute and asked for the refund of the fees as well as original certificate given at the time of admission. The opposite party no 1 decline to refund the fees and also the originals. However with the interference of the Kerala Govt. the opposite party returned the original certificate. The opposite party is bound to refund the fees but not refunded and hence alleges the deficiency in service on the part of the opposite party no 1. The opposite party no 1 is the sole contestant of the case contends that, the student left the college on his health problem after joining for college and attended the class for twenty days, the opposite party no 1 has supplied the student with study materials and the uniform, the student had used the hostel facility, the opposite party no 1 institute is the un aided educational institute and the prospectus clearly states that once fee paid will not be refunded hence there is no deficiency in service on the part of the opposite party 1. These are being the facts of dispute in resolving this dispute we consider the followings
POINTS FOR ADJUDICATION
We have considered the evidence of the parties and documents produced. The admitted facts are the student joining the course and paid the required fees of ₹. 1,00,000/ and got admitted to the course. It is admitted that the student left the college discontinuing the course, the opposite party not refunded the fees paid by the student. It is denied that the opposite party no 1 is bound to refund the fees. It is denied that there is deficiency in service in not refunding the fees. These are being the admissions and the denials we consider the following points for adjudication in resolving this dispute.
- Whether the complainants are consumers under the Consumer Protection Act 1986?
- Whether the Opposite parties prove that there is no deficiency in service in not refunding the fees?
- Whether the complainants are entitled for the relief prayed for?
- What order?
On considering the evidence and the documents of the parties and hearing the submissions of counsels we answered the above points as under:
- In the affirmative.
- In the negative.
- In the affirmative.
- As per delivered order.
REASON
POINT NO 1: The complaint no 1 is the father of the complainant no 2 which is not denied. Admittedly the complainant no 2 is the student of the opposite party who joined the course with the Opposite party no 1. The complainant no 2 is the consumer for the opposite party no.1. It is the joint complaint filed by both the father and the daughter there formed a relation of consumer and the service provider between the complainants and the opposite party No 1. In the interest of the students too much technicality will not followed. And hence we answered the point no 1 in the affirmative.
POINT NO 2: The complainants allege that the opposite party not refunded the fees in spite of discontinuing the course. The complainants states that after joining the course the opposite party not allowed to attend the classes for 12 days and due to mental agony he was not interested in continuing the education in the opposite party no 1 institute, hence left he course even before admissions closed. The opposite party had filled up the vacancy with other students. On request to refund the fees paid and also original certificate the opposite party not refunded the fees but after the Gove. Of Kerala interference returned the originals but not refunded the fees. The opposite party contested the complaint and submitted that they are not the aided education institute and as per their prospectus they need not refund the fees once paid, by the time the student left the course the course already commenced and the last date of admission also closed, the student left the college on the health ground on her own and as such the opposite party is not bound to refund the fees already paid. The opposite party no 1 also contended that they have already provided text books, lab books, uniforms Identity cards etc., and the student attended the classes for 20 days and he had availed the hostel facility also as the fees paid is inclusive of hostel facility also. As we seen from the cases decided by higher courts on the subject and the circulars of the governing bodies it is now established that if student leaves the course before admission closed the educational institutions shall refund the fees by collecting only a processing fees of ₹ 1000/ Also the complainant had filed a public notice dated 23.04.2007 issued by the UGC with his notes of arguments which evidences our view. Now the crux and the pivot point of the dispute is whether the student left the course before admission closed so that leaving an opportunity to the Opposite parties to fill up the vacancies and make good their loss or after the admission is closed so that the door for the opposite party closed to admit new entrants. This will be the opposite party burden to prove that the admission process was closed and the opposite party not admitted any other student for the vacancy created on the leaving of the course by the student. Hence point no 2 taken for consideration.
2. The opposite party no 1 produced the prospectus of the institute. On scanning of the prospectus nowhere we find the date of admission open and closure of the admission as well as the commencement of the classes. The prospectus is an important document and is the mirror of the institute and the students will choose their institution to study their course on the base of the prospectus. But the prospectus is incomplete. None of the document produced by the opposite party no 1 throws the light on the date of admission closure. Secondly the opposite party not produced any documents to show that the student attended the college for 20 days as contended. Even in the interrogatories it is suggested by the complainant in Q No 16 that the time the student left the course, the admission was not closed. The opposite party answered a one word as “false” but not produced any evidence to show the admission was closed. It is pertinent to note that these records are available with opposite party no 1 only. But the opposite party no 1 not produced. Again Answer given for the Q no 12 is contradictory. The opposite party no 1 not even produced the student attendance register to establish that the student attended the college for how many days and also register of students to show that the seat fall vacant throughout. In our opinion the opposite party no 1 institute do not have any systematic approach in admitting the student with regard to time related to admission open, admission closure and the course commencement and any constructive refund policy. Mere statement in the prospectus giving effect to once fees paid will not be refunded is not acceptable. This gives the meaning that the opposite party is entitled to hold back the fees once paid even if the service not rendered and education imparted. This will become unscientific and biased. The opposite party produced an letter said to be given by the complainants stating as they are leaving institute of their personal problem and it is stated that they do not have any claim with the opposite party no 1 and no dispute against the opposite party no 1. This document is un dated and Xerox copy un marked. It is also grasped from the letter that it was taken while handing over the original certificates which shows the opposite party no 1 is in the advantageous position by holding back the originals of the student. The complainant also sworn in that the originals were returned later on the interference of the Govt. of Kerala. Hence the document is not reliable. Also when there is circular with regard to refund the private commitments will shade away in the presence of the UGC CIRCULARS. The service of giving education is a social object and not siphoning of the money paid by students as fees. The UGC guidelines clearly require the educational institutes to have clear cut announcement with regard to admissions and the withdrawal and the refund system. The opposite party not provided any proof of the closure of admission at the time the student left the course or no other student being filled for the vacancy created. It is presumed that the opposite party is having a system of admitting the student whenever vacancy created as there is no specific date of closure of admission. Opposite party also claimed it is an unaided institute hinting the rules not applicable. Hence we are of the opinion that the opposite party not proved as per point No 2 and we hold there is deficiency in service on the part of the opposite party no 1 and hence the point no 2 answered in the negative.
POINT NO 3: As we discussed above we hold the opposite party no 1 for the deficiency in service the complainant is entitled for the relief. The complainants sought for the refund of the fees paid ₹ 1,00,000/ for which they are entitled with interest at the rate the education loan being charged by the opposite party no 3 from the date 01.09.2010 till the date of payment. The opposite party claims that the student has used hostel facility and the text books, lab books and ID cards etc., were given but not produced any record of the hostel being used. Also as per EX C 2 there is no any mention about the hostel fees being collected but it is only the tuition fees collected. With regard to books the opposite party is entitled to collect back from the student and can deduct an amount of ₹ 2000/ in all. The complainant asked for the relief of ₹ 50000/ as compensation. But in our considered view an amount of ₹ 25000/- will sub serve the purpose. An amount of ₹ 10000/- is awarded towards litigation expenses. With regard to opposite party no 2, the complainant not produced any documents and no specific allegation of deficiency in service with regard to not refunding of the fees against opposite party no 2. From the record it was not shown the opposite party 2 has taken any consideration or a part of the fees paid. As per EX C 2 the whole fees of ₹ 1,00,000/ is being deposited to opposite party no 1 institute. Hence the opposite party 2 is discharged from the liability. The opposite party no 3 is the lender of education loan to the complainants and not liable for any deficiency in service hence discharged from the liability.
POINT NO 4: In the result of the above discussion and the adjudication of points we deliver the following
ORDER
The complaint is allowed. The opposite party no 1 shall pay the complainants an amount of ₹ 98,000/ (Rupees Ninety Eight thousand only) with an interest at the rate charged on the loan from date 01.09.2010 till the date of payment and an amount of ₹ 25,000/ (Rupees Twenty Five thousand only) towards compensation and an amount of ₹ 10,000/ (Rupees Ten thousand only) towards litigation expenses within 30 days from the date of the copy of this order 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 2nd February 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI 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 Complainants:
CW1 Mr. Krishnadas
Documents marked on behalf of the Complainants:
Ex.C1: Admission Letter dated 16.07.2010 issued by Karavali Institute of Technology, Mangalore
Ex.C2: True copy of cash paid receipt issued by Karavali Institute of Technology, Mangalore
Ex.C3: Letter dated 14.07.2012 issued by State Bank of Travancore, Nileshwaram Branch to the Complainant No.1
Ex.C4: C.C. of Order of the Consumer Forum at Kasaragod
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Ramakrsihna Bhat, Principal, Karavali Institute of Technology,
Documents marked on behalf of the Opposite Parties:
Ex.R1: Prospectus pertaining to Opposite Party
Dated: 02.02.2017 MEMBER
