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

Dated this the 8^th December 2016

PRESENT

SRI. VISHWESHWARA BHAT D         : HON’BLE PRESIDENT

SRI. T.C. RAJASHEKAR                      : HON’BLE MEMBER

ORDER IN

C.C.No.103/2012

(Admitted on 26.03.2012)

Mr. K Gautama Bhat,

Aged about 31 years,

S/o K Mohan Bhat,

Residing at 303, Akash Tower,

Chilimbi, Urwa,

Mangalore  575 006.

                                                                   ..….. COMPLAINANT

(Advocate for the Complainant: Smt. MNA)

VERSUS

1.  The Registrar,

     Karnataka State Open University,

     Manasagangotri,

     Mysore  570 006.

2. Regional Office,

    Karnataka State Open University,

    Chilimbi, Mangalore,

    Representing by Authorized Signatory.

                                                                       ......OPPOSITE PARTIES

(Advocate for the Opposite Part No.1 & No.2: Sri. KPVR)

ORDER DELIVERED BY HON’BLE MEMBER

SRI. T.C. RAJASHEKAR:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain relief opposite party to pay a sum of Rs.15,300/ along with 18% interest p.a from date of payment till the date of payment, to pay a sum of Rs. 50,000/ towards damages and to pay a sum of Rs.1,000/ towards cost of the notice.

      2.  In support of the above complainant Mr. K Gautama Bhat, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C3 detailed in the annexure here below.  On behalf of the opposite party Mr. Manjunatha (RW1) Employee, KSOU also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked as Ex.R1 to R2 detailed in the annexure here below.

The brief facts of the case are as under:

     We have perused the complaint and the version averments. We grasped this dispute is of the non refund of the fees paid on not pursuing the education. The complainant alleges that he had deposited the fees amount as prescribed in the prospectus of the Opposite party university to the two years course M.Sc. in Information Technology. Complainant states that he has not submitted the application form filled to the Opposite party.  But later requested the Opposite party to refund the fees on the ground that he is eligible to join directly to the 3rd semester of the same course from an education institute which is affiliated to the Opposite party university.  The Opposite party contends on the ground that as per their prospectus condition once fees paid will not be refunded under any circumstances. These being the prime facts of the dispute we consider the following

 POINTS FOR ADJUDICATION

     On scrutiny of the documents and examination of the evidence of the parties the admitted facts are, the complainant opted to join for the two years(four semesters) course M.Sc. in Information Technology with Opposite party university and paid the prescribed fees through SBM Mangalore through challan Rs 15300/ , the complainant not submitted the application form to the Opposite party to join for the course, the complainant not joined the course and the course not yet started, the complainant sought refund of fees before the commencement of the course, the Opposite party not rendered any services to the complainant. The Opposite party denies the complainant s eligibility for the refund, contests the maintainability (as per entry in order sheet 08.06.2012), denies the deficiency in service. These being the concise facts of the dispute we are of opinion that the following points may be considered for resolving this dispute:

1. Whether the complainant is the consumer and the present complaint is maintainable under the consumer protection Act 1986?
2. Whether Opposite party is justified in not refunding the fees to the complainant?
3. Whether the complainant is entitled for the prayed relief?
4. What order?

     On through examination of the evidence and the facts of the case after hearing the parties we answered the above points as under

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

REASONS

POINT NO 1: The complainant produced the EX C1 which shows an amount of Rs 15300/ deposited to opposite party Karnataka University Mysore General Fund Account SBM A/C NO 54035420117 which is not disputed. The amount paid by the complainant is for the future service of opposite party the imparting education. It is settled principle that the hirer of the promised future service will also be a consumer. As already admitted that the complainant had paid the consideration, we are of the considered opinion that the complainant is a consumer and the dispute is maintainable in this Forum. Hence we answered the point no 1 in the affirmative.

POINT NO 2: On traversing through the documents we find, on

28.09.2011 the complainant deposited the fees.

01.10.2011 the complainant had requested the refund of fees

12.10.2011 the Opposite party refused to refund the fees.

19.10.2011 the last date for submission application

23.11.2011 the last date for submission application with fine. From this it is clear that the complainant had requested the refund of the fees much in advance of the course scheduled to start. Opposite party has not proceeded with the scrutiny of application forms and preparing for classes conducting or academic commencement. The complainant sought the refund on the ground that there is scope for joining to the lateral course in the same subject from the same university because of his BE degree to join directly to the 3^rd semester and thereby can save a year. He has produced the prospectus which to show eligibility and later joined for the course directly for the 3^rd semester and later during the pending proceedings with an application produced the marks card on completion of the course, the application is allowed and the documents taken to file. The Opposite party not disputed the Marks card as it is not issued by the Opposite party university. The marks card seems to have issued by the Karnataka state Open University which is the Opposite party herein. From this it is established that there is provision in the course to enter directly to 3^rd semester recognized by the Opposite party.  It natural principle that when there is an opportunity to better option of getting degree in lesser time if no harm caused to the Opposite party. In the instant case the complainant had requested for the refund much before the course started and there will be no harm caused to the opposite party, as it is not the case of them that they will suffer if refund is made. The only ground of the Opposite party is that as per prospectus terms no refund could be made. Another point to be stressed here is the complainant not yet sends his application form for consideration to the course. We have to presume that the admission has not yet taken place the fees payment is not complete unless the filled application reaches the Opposite party. So the condition in the prospectus cannot be applied strictly. On natural principle also, when there is an opportunity for better education shall be encouraged but not discouraged. The imparting of education should not be seen at par with other commercial activity. The profit or loss is not the manifesting motive with education.   The complaint produced a citation I (2007) CPJ (NC) where in it is observed it is clear that no service was provided but consideration has been received by the petitioner...instead of teaching and promoting ethical standard in their institute, they tried un ethical practice to enrich themselves  observation aptly applies to the present case. The Opposite party stubborn on only ground that there is terms in the condition to the effect that there is no refund on any circumstances but it seem the Opposite party not taken note of that the condition applies only after the contract is finalized. But herein the complainant not yet sent his application filled for consideration of admission.in our opinion the contract of service yet to be concluded and the terms in the prospectus not applicable in the present case. We are of considered opinion that there is no justice in refusing the refund of the fees by the Opposite party paid by the complainant.  Hence we answered the point no 2 in the negative.

POINT NO 3: As we hold the not refunding of the fees as not justifiable the Opposite party is liable for deficiency in service. The complainant is entitled to get refund of the fees paid Rs 15300/ with an interest of 10% per annum from the date of complaint till the date of payment. The Opposite party should have more generous as there is no loss or damage to them if refunded and as we observed the condition in prospectus applies only after the admission to the course, the Opposite party not applied his mind before refusing the refund and committed negligence. In this circumstance we consider an amount of Rs 15000/ towards compensation and  Rs 5000/ as legal Expenses.

Point no 4: in the light of the above discussion and the adjudication of the points pass the following

ORDER

     The complaint is allowed. The Opposite parties shall pay jointly and severally an amount of Rs 15300/ with an interest of 10% per annum from the date of complaint till the payment  and an amount of Rs 15000/ towards compensation and Rs 5000/ towards litigation expenses within 30 days from the date of the copy of the order received.

             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 Complainant:

CW1  Mr. K Gauthama Bhat

Documents marked on behalf of the Complainant:

Ex.C1: 28.09.2011    : Original Application of Karnataka State  Open University

Ex.C2: 01.10.2011    :  letter issued by the complainant

Ex.C3: 12.10.2011    : Letter issued by the opposite party

Witnesses examined on behalf of the Opposite Parties:

RW1  Mr. Manjunatha

Documents marked on behalf of the Opposite Parties:

Ex.R1: 19.05.2012   : Original letter by KSOU to Advocate

Ex.R2: 08.10.2013   : Original letter by KSOU to Manjunath Regional Director

Dated: 8.12.2016                                            MEMBER