KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 153/2010

JUDGMENT DATED:03-02-2011

PRESENT:

JUSTICE SHRI.K.R. UDAYABHANU     : PRESIDENT

SHRI. S. CHANDRA MOHAN NAIR        :   MEMBER

1.         Mr. Sarvesh,

Manager cum Administrator,

Amrith Educational and Cultural Society

Maruthi College of Nursing,

Kammanhalli, Near Meenakshi Temple,

Banneerghatta Road,

Bangalore, Karnataka,

PIN-560 076.

                                                                        : APPELLANTS

2.         Mr.Manzsoor Ali,

Learn Teck Educational Consultancy,

6 D, Main East End, 9^th Block,

Jaya Nagar, Banglore, Karnataka.

           (By Adv.Sri.Rajeev.S.S & Sri.Saju.I)

            Vs.

1.         Mr.Ajith.S,

Perunmparayil House,

Pampady.P.O,

Kottayam.

(By Adv.Sri.J.C.Stephnson)                    : RESPONDENTS

2.         Sijo Joseph,

Kunnumpuram, 28/47,

Kurisummood.P.O,

Changanassery, Kottayam.

                                      JUDGMENT

SHRI.S. CHANDRAMOHAN NAIR : MEMBER

The order dated:18/11/2009 of CDRF, Kottayam in CC.9/07 is being assailed in this appeal by the 1^st and 2^nd opposite parties who are under directions to pay to the complainant the sum of Rs.1,38,000/- with interest at 9% per annum from the date of cancellation of the admission till payment with cost of Rs.2500/-.

2.      The complainant has approached the Forum stating that being influenced by the advertisement of the opposite parties in the Malayala Manorama daily the complainant contacted the 3rd opposite party at Mamman Mappila Hall, Kottayam regarding the admission for BSc Nursing course in the college administered and managed by the 1^st opposite party and that he was asked to remit Rs.1,48,000/- as fee for the 1^st year and at the rate of Rs.74,000/- each for the further period of 5 years.  The opposite parties had also collected Rs.25,000/- towards security which the complainant handed over to the 3^rd opposite party and the complainant has alleged that though Rs.1,48,000/- was directed to be paid, the 1^st opposite party issued only a fee structure for Rs.97,000/- and that when the complainant appraised the opposite parties regarding the bank loan, another fee structure amounting to Rs.1,48,000/- was issued and the complainant had submitted the DD for Rs.1,48,000/- and joined for the nursing course on 19/9/2005.  It is the case of the complainant that when he joined for the course it was found that though the college had only recognition for 40 students whereas they had accommodated 80 students in the batch and on enquiry, the opposite parties told him that all the students would get recognition.    In the meanwhile, the complainant came across a paper publication of Guru Moorthi Committee disclosing the name of the few institutions which were having substandard quality of which the opposite party college was arrayed as the first.  It is also alleged that the opposite parties demanded another sum of Rs.50,000/- for including the complainant in the list of first 40 students to secure recognition of the nursing council and it is the further case of the complainant that the opposite parties had committed deficiency of service and unfair trade practice.  The complaint was filed praying for refund of the amount of Rs.1,48,000/- and compensation of Rs.50,000/- with cost of Rs.10,000/-.

 3.     The 1^st and 2^nd opposite parties had filed version though the 3^rd opposite party was set exparte.  In the version filed by the 1^st and 2^nd opposite parties it was contested that the complaint was not maintainable before the Forum as it lacks the jurisdiction and also that on request of the complainant, the certificates and the hostel deposit were returned on 11/8/2006 and it was on the sole request of the complainant that they were returned.  The 1^st and 2^nd opposite parties further submitted that the Government of Karnataka has sanctioned 80 seats for the said course which included approved 40 seats, free 6 seats and 34 management seats.  However the jurisdiction of the Forum was strongly contested by the opposite parties as it is their case that no part of the cause of action had arisen at Kottayam and also that it was specifically stated that only the Courts in Bangalore had the jurisdiction to try any dispute between the petitioner and the college.  It is also their case that the complainant had not produced any document to show that there was a consumer relationship between the petitioner and the 1^st and 2^nd opposite parties and submitted that no dispute had arisen within the jurisdiction of the Forum below.

4.      The evidence consisted of Exbts.A1 to A11 on the side of the complainant and B1 to B5 on the side of the opposite parties.

5.      Heard both sides.

 6.     The learned counsel for the appellants had submitted before us that the Forum below had no jurisdiction to try the complaint.  However, it is noted that the question of maintainability was heard at length by the Forum below.  Though the opposite parties would argue that the 1^st and 2^nd opposite parties did not enter into any transaction with the complainant within the jurisdiction of the Kottayam Forum, it is found that the 1^st and 2^nd opposite parties had not adduced any evidence to show that the 3^rd opposite party was not their agent and the receipt issued by the 3^rd opposite party had no connection with them.  We also find that the amount collected by the 3^rd opposite party was not disputed by the 1^st and 2^nd opposite parties.  If it was the case of the appellants (1^st and 2^nd opposite parties) that the 3^rd opposite party was not their agent they could have very well adduced evidence to substantiate that contention.  Hence it is found that the case of the appellants regarding the maintainability of the complaint has no ground to hold.

7.      The learned counsel for the appellants vehemently argued before us that it was on the volition of the complainant that the certificates were returned and though the complainant was liable to pay the balance fees for the whole 5 years the appellants had taken a lenient view and had returned the certificates on request by the complainant along with the hostel charges for Rs.10,000/-.  It is argued by him that the Forum below ought to have found that there was no negligence on the side of the opposite parties.  He has also advanced the contention that the complainant had not proved his transaction with the 3^rd opposite party especially with Ext.A1 as stated to be issued by the 3^rd opposite party.  However we find that the 3^rd opposite party was exparte and even though the petition to set aside exparte the order was filed by the 3^rd opposite party, it was on account of the non-representation that the same was also dismissed.  In the said circumstances we do not find any irregularity and illegality on the part of the Forum below in finding that the 3^rd opposite party was the agent of the 1^st and 2^nd opposite parties and the complaint was maintainable, though it is argued by the appellants that the complaint was not maintainable.

8.      With regard to the contention that the complainant was included as the 3^rd person in the list of first 40 students, we do not find any supporting evidence though we find that in Ext.B1 the complainant’s name is shown as No.3.  It is a paper print out produced by the opposite parties and though it bears the signature of the Registrar, Rajeev Gandhi University, the same is not proved properly.  We also find that as per Ext.A4 the seats approved are only 40 and the opposite parties have admitted that they have enrolled 80 students for the course.  It is argued that the remaining 40 also would be accommodated during the course.  The further contention of the appellants is that the complainant had voluntarily applied for refund of the fees and return of the documents.   We find that it can be because of the news about institution that came in the papers regarding the discrepancies such as the non affiliation etc that the complainant had asked for the documents without making any incriminating remarks about the institution.  The Forum below had considered every aspect of the case and has passed the order directing to pay Rs.1,38,000/- (Rs.1,48,000/- - Rs.10,000/- towards return of hostel fees) and cost of Rs.2500/-.  However it is noted that interest has been ordered from the date of cancellation of the admission.  We are not inclined to allow the said direction to sustain. We find that the complaint was filed only in 2007.  Complainant is entitled to the said interest only from the date of complaint till payment.  Apart from the above modification of the order, the other directions are sustained.

In the result the appeal is allowed with the modification that the 1^st and 2^nd opposite parties are directed to refund Rs.1,38,000/- with 9% interest per annum from the date of complaint till payment with cost of Rs.2500/-.  In the facts and circumstances of the present appeal the parties are directed to suffer their respective costs.

S. CHANDRA MOHAN NAIR         :   MEMBER

JUSTICE K.R. UDAYABHANU : PRESIDENT

VL.