BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 29^th FEBRUARY 2016

PRESENT

 SMT. ASHA SHETTY           :   HON’BLE PRESIDENT

               SMT.LAVANYA M. RAI       :   HON’BLE MEMBER                                        

COMPLAINT NO.300/2013

(Admitted on 13.06.2014)

Vinishya Priya Monis,

D/o. Francis Monis,

Aged about 22 years,

Residing at Attanadi village,

Belthangady Taluk,

Da.Ka. District.                             …….. COMPLAINANT

(Advocate for Complainant: Sri. Chandrashekhara N.G.)

 VERSUS

1. The Principal,

   M.V. Shetty College of Nursing

   Vidyanagara, Kavoor

   Mangalore D.K. District. 

        

2. The Administrative Officer

   Dr. M.V. Shetty Memorial Trust (Regd.)

   A.B. Shetty Circle,

   Mangalore. D.K. District.                    …. OPPOSITE PARTIES   

(Advocate for Opposite Parties: Sri Chandrashekhar Holla K )

                                                ***********

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.

The brief facts of the case are as under:

           The complainant was a student of B.Sc. nursing in the Opposite Party institution and joined course during 2011. The course of 4 years duration.  At the time of joining she has been issued with prospectus of institution. The complainant stated that, the opposite party’s institution obtained the original marks cards of SSLC, PUC and TC from the complainant.  Just after completion of the 1^st year course the complainant paid 2^nd year fees through the demand draft dated 15.09.2012.  That immediate after paid 2^nd year college fees structure the complainant suffered from illness and admitted in hospital as an inpatient from 01.10.2012 to 04.10.2012 and under went laparotomy surgery. Before commencing 2^nd year classes the complainant approached the 1^st opposite party and requested to return original marks cards and to refund Rs. 61,500/- But, the opposite party not refunded the amount. Hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to return the original marks cards of SSLC, PUC and Transfer Certificates to the complainant and refund the entire amount of Rs.61,500/-paid towards 2^nd years fee structure and compensation for mental agony/stress suffered by the Complainant and also pay Rs.35,000/- as cost of the litigation expenses.  

II.    Version notice served to the Opposite Parties by R.P.A.D.  Opposite Parties appeared through his counsel filed version stated that, the complainant joined the course during July 2011 duly verifying the terms and conditions mentioned in the prospectus. After joining the course she has completed 1^st year and joined 2^nd year commenced from 24.09.2011 and attended few classes, later stopped attending the course. After lapse of 2 years joining the course claiming refund is barred by limitation.  The Opposite Party not liable to refund any amount because there is no negligence or deficiency in service and sought for dismissal of complaint.

III.     In support of the complaint, Sri. Vinishya Priya Monis                  (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served by the Opposite Parties.  Ex C1 to C8 were marked on behalf of the Complainant.  One Sri. B.V. Kathyayani, (RW1), Principal of the Opposite Party Memorial Trust, filed counter affidavit and answered the interrogatories served on him.  Ex R1 to 4 are marked on behalf of the Opposite Parties.   

In view of the above said facts, the points now that arise for our consideration in this case are as under:-

1. Whether the Complainant proves that the Opposite Parties have committed deficiency in service?

    

2. If so, whether the Complainant is entitled for the reliefs claimed?

    

3. What order?

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                          Point No.(i): Negative.

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

Reasons

IV.  Point No.(i) to (iii):

          The facts which are in dispute is that the complainant joined B.Sc nursing course in opposite parties’ institution in the year July-2011.  Now the complainant came up with this complaint stating that after completion of 1^st year course complainant paid 2^nd year fees structure and attended few classes, after that she has suffered from illness and could not continue the studies and sought for refund of money paid by complainant.

Opposite parties on the contrary contended that the complainant agreed to pay the entire course fee and given written under taking that if she is unable to continue the course for any reason, she shall pay the college fee for the remaining period of the course.  The said term and condition is also mentioned in the prospectus.  Further submitted that the seat allotted to the complainant remained vacant and they are not liable to refund the fee.  But original certificates already given to the complainant.

On perusal of the material evidence placed before us reveals that the complainant discontinued the institution but claimed that she was suffering from illness. But it is not the case of the complainant that the doctor one treated the complainant is advised not to continue the studies because of the illness undergone by her. Just because she is suffering from illness she cannot discontinue the studies and claim refund of fee paid by her, because it is admitted that the course introduced by the opposite party institution is 4 years duration course.  When that being so, it is very difficult for the opposite party institution to fill the seat left vacant.    There is no deficiency in service whatsoever on the part of the opposite parties.

The complainant is well aware that the opposite party institution is not government institution. On the other hand it is private institution running without aid from the government.  Students seeking admission to professional private colleges should think of the implications before seeking admission.  As we know every institutions issued with the prospectus to the students before seeking admission.  The students as well as their parents fair enough to understand the consequences. Further the admission forms are signed by the students as well as their parents/guardians. Even in the present case, the complainant is matured enough to understand the full implications and  she has given written undertaking that if she is unable to continue the course  for any reason she shall pay the college fee for the remaining period of the course, i.e. for the  whole  course.   Further it is admitted fact that complainant completed 1^st year B.Sc nursing course. Discontinuing the course during the middle of the academic year obviously seat cannot be filled by the institute.  Opposite party filed affidavit that they could not fill the seat, it appears to be genuine because complainant left the institution, after the completion of 1^st year and attending few classes in 2^nd year academic session.  It is also seen on record that there is no deficiency in service on the part of opposite party’s institution.  It is thus evident that complaint is not entitled fees already paid. Even otherwise, as per the terms and conditions in the prospectus that tuition fee and other fees deposited at the time of admission are not refundable nor is she entitled for refund the fees deposited at the time of admission.  At the same time, the complainant is entitled to take back the original certificate from the opposite parties institution.  Opposite parties institution has no right to retain the original certificates of the students herein the complainant.  Therefore, the opposite parties institution liable to return the original certificates pertaining to the complainant without causing any delay.  

The counsel for the Op institution relied on Vol.  CXXXIV-(2003-2) The Punjab Law Reporter-Navdeep Singh Vs I.I.T.T College of Engineering, Village Polewal District Nawanshahar and Ors in which it was observed in paragraph 6 as under:-

“6.     The petitioner has neither controverted the ascertain contained in the written statement of respondent No. 1 that as per the prospectus issued by the University tuition fee and charges deposited at the time of admission are not refundable nor he has challenged the legality of that provision.  Therefore, in the foot of the prohibition contained in the prospectus against the refund of fee deposited at the time of admission, the court cannot issue a mandamus to the respondents for refund of fee to the petitioner”.

He has also placed reliance on VOLCVII-(1994-2) The Punjab Law Reporter –Rai Singh Vs. The MaharashiDayanand University & Ors. In which it was observed in paragraph 10 as under:-

“10    Students seeking admission to professional colleges and even otherwise are fairly mature and are supposed to understand the full implications of filling the admission forms and in any case these forms are invariably signed by their parents/guardians and it is so in the present case.  The student, therefore, will have to be taken to be bound by the information supplied in the admission”.

(2015) CPJ 112 (NC)

ALOK JAIN     Vs.      GURU GOBIND SINGH & ANR.

“Consumer Protection Act, 1986 Sections 2(1) (g), 15-Education-Non-refund of counselling fee-Appellant got admission in Opposite Party No. 1 University and Opposite Party No. 2 College and deposited counselling fee along with security fee-Meantime, appellant got admission elsewhere-Respondent returned only security amount and refused to refund counselling amount-Complaint before District Forum filed-Dismissed-Hence present appeal Appellant attended classes for one month and then applied for refund of fee, because he had obtained admission elsewhere-since, he applied after cut-off date as given in admission brochure, appellant was according to terms and conditions, disentitled to reimbursement of fee”.

                                      III(2015) CPJ 112 (NC)

FIIT JEE LTD            Vs.    S. BALAVIGNESH

“Consumer Protection Act, 1986-Section 2(1)(g), 2(1)(r), 21(b)-Education-Admission-Coaching discontinued due to illness-Refund of fee denied-Alleged deficiency in service-District Forum allowed complaint-State Commission partly allowed appeal-hence revision-As per declaration contained in enrollment form, student taking admission is not entitled to refund of any part of fee paid by him irrespective of ground on which he withdraws admission-Where seat vacated on account of withdrawal by student during currency of course remains vacant and no other student is admitted against vacant seat, refusal of coaching institute to refund fee cannot be said to be unfair trade practice”.

 However these judgments are applicable to the case on hand. The placing reliance on these citations and after giving our thoughtful consideration to the contentions and the evidence on record, we are of the considered opinion that, the complaint is liable to be dismissed for the reasons recorded herein above.

V.      In the result, we pass the following:        

ORDER

The complaint is dismissed. No order as to costs. 

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

(Page No.1 to     dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 29^th day of February 2016)

    PRESIDENT                           MEMBER

 (SMT. ASHA SHETTY)                (SMT. LAVANYA M.RAI)

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

         Mangalore.                                Mangalore.       

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Vinishya Priya Monis –            Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 11.07.2011: The copy of the estimate of approximate

       expenditure issued by Opposite Part.

Ex C2 – 28.09.2012: The copy of college fee paid receipt.

Ex C3 – 28.10.2013:   The copy of saving bank account transaction.    

Ex C4 – 28.10.2013: The copy statement of bank account.

Ex C5 – 04.10.2012:  The Discharge summary issued by FR.LM Pinto

       Health Care Centre.

Ex C6 – 13.11.2012: The Doctor certificate issued by FR.LM pinto

      Health care centre.

Ex C7- 15.11.2012:  The copy of request letter.  

Ex C8- 26.09.2013:  The copy of the notice issued by Consumer

      Forum Sullia.  

Witnesses examined on behalf of the Opposite Party:

RW-1 :  B.V. Kanthyayani        Opposite party

            Documents produced on behalf of the Opposite Party

Ex R1 –    : Copy of the reply notice dated 07.10.2013 along with

                    Acknowledgment card. 

Ex R2 –    : Copy of the admission receipt.

Ex R3 –    : Copy of the provisional admission order 23.07.2011. 

Ex R4 –    : Copy of the prospectus of the Opposite Party institute.

               Dated:29.02.2016.                                            PRESIDENT

The complainant stated that in the year 2013 complainant contacted Opposite Party for his admission in 1^st years B.E. Mechanical Engineer course  @ Dr. M.V. Shetty institution of Technology Moodubidri for academic year 2013-14 and paid registration fee on 12.06.2013.  It is stated that the complainant in all i.e. tuition fee + hostel fecility paid Rs. 1,45,000/-. Thereafter the complainant got fee B.F.Tech Seat in National institute of fashion Technology on merits government seat.  This fact informed to the Opposite Party and sought for refund of tuition fee.  It is stated that, the Opposite Party inspite of request no refunded the amount paid by them and it is contended that the service rendered by Opposite Party amounts to difference as well as unfair trade practice.  The Opposite Party affeared through their counsel filed their version stated that at the time of admission to the said course, the Opposite Party informed the complainant about the tuition fee, room rent, mess charge etc., 

          As per the rules prevailing in Opposite Party institution the fee are reguqired to be paid during admission.  While admitting complainant the complainant was issued with prospective and he has voluntarly signed a declaration dated 22.07.2013.  The said declaration also counter signed by his father.  After completing admission process the complainant has attended the classes few days later approached Opposite Party and informed that he intends to discontinue the course as he has got admission in National Institution of Fashion Technology for B.F Tech course.  The Opposite Party returned the original certificates and given undertaking letter that they will not claim the fee which are already paid. 

          It is stated that the complainant attended the course the seat allowed the complainant could not be filed and it has remained vacant. And it is stated that there is no deficiency on part of the Opposite Party and sought for dismissal of the complaint.

ORDER

The complaint is dismissed. No order as to costs. 

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

(Page No.1 to     dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 29^th day of February 2016)

    PRESIDENT                           MEMBER

 (SMT. ASHA SHETTY)                (SMT. LAVANYA M.RAI)

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

                        Mangalore.                                         Mangalore.