Haryana

Ambala

CC/40/2019

Tarun Kohli - Complainant(s)

Versus

AMC Enigneering College - Opp.Party(s)

Manish Kashyap

25 Nov 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint Case No.:  40 of 2019.

                                                          Date of Institution           :   11.02.2019.

                                                          Date of decision    :   25.11.2019.

 

Tarun Kohli son of Pardeep Kohli, aged about 20 years, r/o House No.1362, Hargolal Road, Sikligarh Mohalla, Ambala Cantt. 133001.

 

                                                                             ..…. Complainant.                                                                                 Versus

1. AMC Engineering College, 18^th K.M. Bannerghatta Road, Banglore 560083 through its Principal.
2. The Principal, AMC Engineering College, 18^th K.M., Bannerghatta Road, Banglore 560083.
3. The Chairman, AMC Engineering College, 18^th K.M. Bannerghatta Road, Banglore 560083.
4. The Chairman, All India Council for Technical Education (AICTE) Nelson Mandela Marg, Vasant Kunj, New Delhi-110070.

 

           ..…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Manish Kashyap, Advocate, counsel for the complainant.

OPs No.1 to 4 already proceeded against ex parte vide order    dated 27.03.2019.          

         

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’), praying for issuance of following direction to them:-

1. To refund Rs.2,42,000/- to the complainant received by OPs No.1 to 3, as fee, alongwith interest @ 12% per annum from October 2018 till date of payment to him.
2. To return the original certificates of 10^th, 12^th and Transfer Certificate & Migration Certificate to him.
3. To pay Rs.2,00,000/- as compensation on account of mental agony & physical harassment suffered by him.
4. To pay Rs. 33,000 as litigation charges.
   382.  

Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that the complainant cleared the written exam COMEDK UGET 2018, with application COM027317 and scored rank 28204 in the said examination. As per his rank, he got admission with the OP No.1, in 4 year degree course in BE Computer Science. He submitted his original academic certificates with the OPs & also deposited the following amounts as fee with the OPs No.1 to 3.

1. Rs.55,000/-, on 23.07.2018 through DD No.584571 dated 17.07.2018 of Indian Overseas Bank, towards the Admission Fee.

2. Rs.9,000/-, on 23.07.2018 towards the Admission Fee,
3. Rs.11,000/- on 23.07.2018 towards the prospectus and University Fee,
4. Rs.64,000/- on 06.08.2018 towards the Hotel Fee
5. Rs.1,00,000/- on 06.08.2018 towards the tuition fee
6. Rs.3,000/- on 29.09.2018 towards the Examination Fee,

Thereafter, he started attending classes regularly & his attendance was 100%. Within the period of two months from the date of joining the institute, he had faced immense harassment & humiliation at the hands of his seniors in the hostel. The seniors used to rag him pitilessly, as a result whereof, he went into depression. He stopped studying & eating. Due to the threat from the seniors, he did not talk about the said fact even with his parents. He was under continuous danger & threat and was psychologically tortured by the seniors in the hostel and he developed a neurological problem. On 2^nd October 2018, his father received a telephonic call from the OP No.2 that his son is not well. His father at once booked Air Tickets & reached his hostel. His father was shocked to see his brilliant ward lying on the bed and in a condition of fear & terror. His father enquired about the condition of his son from his roommates but they kept mum. Thereafter, he told his father that he was being physically and mentally tortured regularly at night by the seniors. After seeing his son in pathetic condition his father brought him back to Ambala through flight on 01.10.2018 and got him medically examined. The doctor told him that he was suffering from neurological disorder and advised his parents not to leave him alone and to keep him under their care and supervision. At the time of admission, the OPs No.1 & 2 assured the complainant and his parents that proper care will be taken for the studies and there will be no ragging in the institute. However, no such efforts were made by the OPs to stop the ragging. Since, the complainant was tortured mentally and physically by the seniors in the hostel, therefore, he was compelled to leave the said institute within two months, from the date of joining. He requested the OPs No.1 to 3 telephonically and also in writing to refund the amount taken by them at the time of admission and also return his original certificates of class 10^th, 12^th, Transfer Certificate and Migration Certificate. But, the OP No.2 refused to refund the fee amount and also to return his testimonials and other documents. His father contacted OPs No.1 to 3 several times and also sent a letter dated 25.10.2018, through registered post, requesting them to refund the amount & return the documents but nothing was done. Thereafter, the matter was reported to OP no.4, but no action was taken by it. He also served a legal notice dated 24.12.2018, upon the OPs, but of no avail. By not refunding the amount of the fee lying deposited with OP No.1 and by not returning the documents, the OPs No.1 to 3 have committed deficiency in service. The OP No.4 by not taken any action against the OPs No.1 to 3 has also committed the deficiency in service. Hence, the present complaint.

3.                Separate notices through registered post for appearance were issued to OPs No.1 to 4, but none has turned up on their behalf, accordingly they were proceeded against ex parte vide order dated 27.03.2019.

4.                To prove his version complainant alongwith his counsel tendered his affidavit as Annexure CA along with documents as Annexure C-1 to C-31 and closed his evidence.

5.                We have heard counsel for the complainant and carefully gone through the case file.

6.                The Ld. counsel for the complainant argued that the case of the complainant is that the complainant took admission in the institute of OP No.1 & 3 in the year 2018 and joined his classes. At the time of admission, OP No.1 & 3 assured him that there will be no ragging in the college as well as in the hostel as they have taken every precaution to avoid ragging. However, the complainant had suffered immense harassment and humiliation at the hands of his seniors in the hostel as a result whereof, he went into depression and his health got deteriorated day by day. Due to the ragging by the seniors he was compelled to leave his studies and to go back to his native city i.e. Ambala for medical treatment. He requested the OP No.1 to 3 to refund the amount which they have taken from him as fee, but they flatly refused to refund any amount. Thereafter, complainant lodged a complaint with the OP No.4 against the OP No.1 to 3, but nothing was done by it. As such all the OPs have committed deficiency in service. Thus the OP No.1 to 3 are liable to refund the fee which they have illegally kept with them. The OPs are also liable to compensate the complainant for the mental agony and physical harassment suffered by him along with litigation expenses. The allegation levelled by the complainant has gone unrebutted as the OPs preferred not to appear before this Forum as such adverse inference can be drawn that the OPs have nothing to say in their defence. As such we have no reason to disbelieve the averments of the Ld. Counsel for the complainant.

7.                Looking into the facts of the case it is observed that the complainant had to leave his studies in between allegedly due to ragging in the institute. The main issue at this juncture is whether the complainant can be considered as a consumer and the present complaint filed by him is maintainable before this Forum or not?

                   Hon’ble National Commission had occasion to deliberate on this issue, in the case of Frankfinn Institute of Air Hostess Training & Anr. Versus Aashima Jarial, Revision Petition No.3052 of 2018, decided on 04.04.2019, NCDRC, New Delhi. The Hon’ble National Commission in this case referred various judgments of Hon’ble Supreme Court of India and of Hon’ble National Commission. The Hon’ble National Commission discussed and distinguished the decisions in the cases of:-

“(1) Maharshi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159. It has been held that:

“Consumer Protection-consumer/Consumer dispute/Locus standi-Generally- University- if covered-Direction to issue BEd degree against rules of examination-Legality-Held, respondent as a student is neither consumer nor University is rendering any service to its students-Hence, Consumer Fora have no jurisdiction to entertain complaint-Respondent pursued MA and BEd simultaneously contrary to general rules of examination which prohibits pursuing two courses simultaneously-She had chosen to continue MA, while admission to BEd was cancelled-Without disclosing the said fact, respondent managed to appear for supplementary examinations for BEd, and passed, which results were withheld on detecting the mischief-Complaint filed for direction to award BEd degree- Held, claim of respondent was for a direction to appellant to act contrary to its own rules-No court has competence to issue direction contrary to law nor can direct an authority to act in contravention of statutory provisions-Hence, National Commission should not have issued direction to appellant to act contrary to statutory provisions-Also, respondent cannot plead estoppel either by conduct or against statute so as to gain any advantage just because she was erroneously allowed to appear in the examination-Consumer Protection Act, 1986-Ss. 2(1)(o) and 2(1)(d)(iii)”     

(2) “P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors., Civil Appeal No.22532 of 2012 decided on 9.8.2012.  It has been held that:-

In view of the judgment of this Court in Maharshi Dayanand University Vs. Surjeet Kaur 2010 (11) SCC 159 wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity.  Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service.  Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.”

(3)  Anupama College of Engineering Vs. Gulshan Kumar & Ors. in Civil Appeal No.17802 of 2017, decided on October 30, 2017 (SC), in this case Hon’ble Supreme Court has relied upon the decision of Maharshi Dayanand University Vs. Surjeet Kaur (supra) and has set aside the order of the National Commission passed in RP No.3571/2013 and RP No.807/ 2017.

(4)  Rabindra Bharati University Vs. Jayati Roy Chowdhury and Ors. MANU/CF/0744/2017 (NC) wherein the following view has been taken:-

“7.  As noted above, the decisions of the Supreme Court in P.T. Koshy (supra) and Prof. K.K.Ramachandran (supra) are directly on the point arising for consideration in these cases and have been rendered after the decision of the Hon’ble Supreme Court in Buddhist Mission Dental College and Hospital (supra).  We are bound by the ratio of both the decisions.”

 

 

(5)  FIIT JEE Ltd. Vs. S. Balavignesh, MANU/CF/0509/2015, (NC). In this case, the revision petition filed by the Coaching Institute FIIT JEE Ltd. was allowed and order for refund of fees by the fora below was set aside by this Commission.

          by the judgment rendered by the Three Judges Bench of Hon’ble Supreme Court of India, in the case of Budhist Mission Dental College & Hospital Vs. Bhupes Khurana & Others, Civil Appeal No.1135 of 2001, decided  on 13.02.2009, wherein it has been held that imparting of education by educational institute for consideration falls within the ambit of service as defined under the Consumer Protection Act. Not only as above, in the case of Krishan Mohan Goyal Versus St. Mary’s Academy and Anr., Revision Petition No.3144 of 2016, the National Commission has also held that in some aspects of education activities, the consumer For a is competent to take action against the erring educational institute such like the opposite parties, adopting unfair trade practice and also not rendering proper service.

8.                In this view of the matter, we hold that complainant is a consumer as the OP No.1 to 3 were giving admission to the students for consideration, for receiving education. Therefore, the present complaint is maintainable before this Forum. As the complainant had to leave his studies in between because of the compelling circumstances, which went unchallenged by the OPs No.1 to 3. Therefore, the complainant is entitled to refund of the fee paid by him and also to get back his testimonials and the transfer certificate & migration certificate from the OP No.1 to 3. From the receipts Annexure C-2, C-5 to C-9, it is clear that the complainant had paid a sum of Rs.2,42,000/- to the OP No.1 to 3. Therefore, OPs No.1 to 3 are liable to refund the said amount of Rs.2,42,000/- received from the complainant as fee. OP No.1 to 3 are also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigation expenses. So far as the deficiency on the part of OP No.4 is concerned, the complainant has alleged that he had complained against OP No.1 to 3 to the OP No.4. However, to prove this fact no such document has been placed on the record by the complainant. Even, the complainant had paid the fee to the OP No.1 and 3 and not to OP No. 4, thus OP No.4 cannot be said to be deficient in providing services to the complainant and the complaint filed against it is liable to dismissed.

9.                In view of the aforesaid discussion, we dismiss the present complaint against the OP No.4 and allow the same against the OPs No.1 to 3. OPs No.1 to 3 are directed in the following manner:-

1. To refund Rs.2,42,000/- to the complainant, received by them as fee.
2. To return the original certificates of 10^th class, 12^th class.
3. To give Transfer Certificate & Migration Certificate to the complainant.
4. To pay Rs.5,000/- as compensation on account of mental agony & physical harassment suffered by the complainant.
5. To pay Rs. 3,000 as litigation cost.

 

                   The OPs No.1 to 3 are further directed to comply with the aforesaid directions jointly and severally within the period of 30 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 9% per annum from the filing of the complaint i.e. 11.02.2019, till its realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :25.11.2019.

 

          (Vinod Kumar Sharma)            (Ruby Sharma)     (Neena Sandhu)

              Member                                  Member             President