Punjab

Ludhiana

CC/17/101

Kulwant Rai - Complainant(s)

Versus

Baba Farid University - Opp.Party(s)

Rupila Mohini Adv.

04 Feb 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 101 dated 14.02.2017.                                                    

                                              Date of decision: 04.02.2021. 

 

Kulwant Rai Jambu, aged 60 years son of Sh. Narata Ram, resident of House No.15, Tej Bagh Colony, Near Mota Singh Nagar, Patiala.                                                                                                                                                                                          ..…Complainant

                                                Versus

1. Baba Farid University of Health Science, Distt. Faridkot (Punjab) through its Vice Chancellor.

2. Dayanand Medical College & Hospital, Distt. Ludhiana, Punjab, through its Principal.

3. Dayanand Medical College & Hospital, Distt. Ludhiana, Punjab, through its President.                                                                                                                                                                                               …..Opposite parties 

                             Complaint under Section 11 and 14 of the Consumer  Protection Act.

QUORUM:

SH. K.K. KAREER, PRESIDENT

MS. JYOTSNA THATAI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Ms. Rupila Mohini, Advocate.

For OP1                         :         Sh. S.S. Rai, Advocate for OP1.

For OP2 and OP3          :         Sh. Manmohan Singh, Senior Law Officer for OP2 and OP3.

 

ORDER

PER K.K. KAREER, PRESIDENT

1.                This complaint under Section 11 and 14 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by the above named complainant on the allegations that OP2 issued a prospectus for the year 2006 for admissions in various courses. The selection of the students was to be made through an entrance test. The daughter of the complainant appeared in the entrance test for admission in post graduate course under role No.14006. She was declared successful. OP2 through its Principal issued letter dated 27.05.2006 to the candidates who were selected in the entrance test. The daughter of the complainant also received the said letter whereby she was asked to report at Dumra Auditorium on 05.06.2006.Accordingly, the daughter of the complainant reported on 05.06.2006.     She got admission in MD Microbiology and was asked to deposit tuition fee and other charges. The daughter of the complainant deposited Rs.1,75,000/-  for first year vide receipt No.38789 dated 05.06.2006. She also deposited Rs.5,000/- as administration charges, Rs.1,000/- as registration fee, Rs.1,000/- as medical examination i.e. total Rs.7,000/- vide receipt No.38790 dated 05.06.2006 and also deposited Rs.20,000/- as hostel fee as well as Rs.10,000/- as hostel security. In all, the daughter of the complainant deposited Rs.2,12,000/-. The classes were to start from 15.06.2006 onwards.

2.                It is further alleged in the complaint that OP2 and OP3 further asked his daughter to furnish bank guarantee of Rs.3,50,000/- on 04.06.2006, which was also furnished. The daughter of the complainant had also applied for admission in MD course in Ganga Ram Hospital, New Delhi. The daughter of the complainant participated in the counseling conducted by Ganga Ram Hospital, New Delhi on 29.06.2006. She was admitted in D.N.B. Anesthesia course on 01.08.2006. After her admission in Ganga Ram Hospital, New Delhi, the daughter of the complainant vacated the seat in D.M.C. after informing the management verbally as well as through written application. She also informed the management about her admission in Ganga Ram Hospital, New Delhi upon which she was told that her seat was declared vacant and was filed by some other candidate from whom full fee was also charged by the OPs. The daughter of the complainant was also assured by OP2 and OP3 that the fee deposited by her would be refunded. However, to the utter surprise of the complainant and her daughter, OP2 and OP3 even encashed the bank guarantee given at the time of her admission as on 05.06.2007. In this regard, she received a letter from Punjab & Sind Bank,  branch Patiala through its Manager. Thereafter, the daughter of the complainant met the officials of OP2 and OP3 and requested for the refund of the amount deposited by her, but they flatly refused to refund the same. Thereafter, the daughter of the complainant issued a legal notice dated 21.10.2010 through Sh. R.N. Kaushal, Advocate Patiala, but to no avail. The daughter of the complainant got issued another legal notice dated 03.01.2014 through Sh. Atul Bansal, Advocate, Patiala, but the said notice was also not responded to by the OPs. Thereafter, the daughter of the complainant filed a writ petition before Hon’ble Punjab and Haryana High Court for refund of the fee in which the order dated 14.03.2014  was passed whereby she was directed to avail the alternative remedy for the refund of the fee. The daughter of the complainant made another reference in the shape of legal notice through Sh. Atul Bansal, Advocate, Patiala as per the orders passed by Hon’ble High Court on 23.06.2014, but even the said notice was also not replied to by the OPs. In this manner, there is a clear cut deficiency on the part of the OPs, who are liable to refund Rs.5,62,000/- charged as fee from the daughter of the complainant. OPs are further liable to pay Rs.2,00,000/- as compensation for having caused harassment and mental agony.  In the end, it has been requested that the OPs be directed to refund the fee and bank guarantee encashed by them along with compensation of Rs.2,00,000/- and litigation expenses of Rs.33,000/-

3.                The complaint has been resisted by the OPs. In the written statement filed on behalf of OP1, it has been pleaded that the complaint is not maintainable and the complainant has no locus standee to file the present complaint. According to OP1, the daughter of the complainant namely Radhika Jambu had undertaken that she would not leave the course in between once admitted in the course of M.D. Microbiology  at DMCH, Ludhiana in the Sessions 2006. However, despite the undertaking, she left the course in between and sought admission in the course of DNB at Ganga Ram Hospital, New Delhi. She herself breached the terms and conditions knowing fully well the consequences. It has further been placed that since Ms. Radhika Jambu opted to leave the course herself, her seat in the course of M.D. Microbiology  remained vacant for the entire course. She herself had submitted in undertaking that she would be liable to pay the entire tuition fee and charges of Rs.2,00,000/-. However, the management of OP1 was pleased to waive off the amount of damages of Rs.2,00,000/-. It has also been pleaded that there is no deficiency on the part of the OP1. The rest of the averments made in the complaint have been denied as wrong and a prayer for dismissal of the complaint has also  been made.

4.                In the joint written statement filed on behalf of OP2 and OP3, it has been pleaded that the present complaint has not been field by the competent person and thereafter, the same is not maintainable. The complainant is not a consumer in terms of Section 2(b) of Consumer Protection Act, 1986. OP2 and OP3 have further pleaded that since Ms. Radhika Jambu left the course in between in violation of terms and conditions of prospectus and the affidavits submitted by her, she was not entitled for the refund of the fee. It has also been pleaded that a student is not a consumer and therefore, the consumer Forum has no jurisdiction to entertain and try the case.  It has also been pleaded that the complaint is hopelessly time barred as it has been filed beyond the limitation period of two years. Besides, Ms. Radhika Jambu is estopped by her act and conduct as she submitted an affidavit dated 07.06.2006 accepting the provisions of prospectus issued by the OPs and also undertook that she would complete the three years in the specialty in which she was admitted. She further executed an undertaking that if she discontinued the course, she would pay a sum of Rs.2,00,000/- as damages in addition to the fee to the OPs. She left the course midway and thus, she is liable to pay the entire fee along with damages. Even otherwise, it was specifically mentioned at page No.10 and 15 of the prospectus that fee paid by the student would not be refundable. The rest of the allegations made in the complaint have been denied as wrong and in the end, a prayer for dismissal of the complaint has also been made.

5.                In evidence, the complainant has submitted his affidavit as Ex. CA  along with documents Ex. C1 to Ex. C18 along with Ex. C1/A, Ex. C1/B and closed evidence.

6.                On the other hand, the counsel for OP1 tendered affidavit Ex. RA1 of Dr. Arvind Sharma, Registrar, Baba Farid University and Health Science, Distt. Faridkot along with documents Ex. R1 to Ex. R12 and thereafter, closed evidence of Op1. Counsel for OP2 and OP3 tendered affidavit Ex. OP2/A of Dr. Sandeep Puri, Principal of OP2 and OP3 along with documents Ex. OP2/1 and Ex/ OP2/11 and thereafter, closed evidence of OP2 and OP3.

7.                We have gone through the record and have heard the arguments advanced by the counsel for the parties and also gone through the written submissions made on behalf of OP2.

8.                    During the course of arguments, the counsel for the complainant has contended that the complainant is a consumer. The daughter of the complainant secured the admission in M.D. Microbiology and paid Rs.2,12,000/- as fee and other charges including hostel charges. She had to vacate the seat as she got admission in DND Anesthesia at Ganga Ram Hospital, New Delhi. The counsel for the complainant has further contended that since the complainant did not continue her studies, she was entitled to refund of the fee. The counsel for the complainant has further contended that it is not the case of the OPs that the seat remained vacant as they have not led any evidence to prove as to  whether the seat remained vacant or it was given to some other student and on this account, adverse inference is to be drawn against the OPs. The counsel for the complainant further contended that the complaint is within time as previously the writ petition was filed before the Hon’ble High Court, which was subsequently withdrawn and the Hon’ble High Court granted liberty to the complainant to file the complaint at the appropriate Forum. Therefore, it cannot be said that the complaint is barred by time. The counsel for the complainant further contended that the OPs cannot be allowed to forfeit the fee of the entire course when the student could not continue her studies due to her admission in a better course and in a better institution.      

9.                On the other hand, the counsel for the OPs has contended that there were only two seats in M.D. Microbiology and student, teacher ratio of said course is 1:1.  The counsel for OPs further contended that after the daughter of the complainant left the course in between, the seat remained vacant. In this regard, the counsel for the OPs referred the list of student Ex.OP2/11. The counsel for the OPs has further contended that the terms and conditions mentioned in the prospectus issued by the OPs are statutory in nature and the same has the force of law and the daughter of the complainant while seeking the admission with OP2 and OP3 had admitted the terms and conditions incorporated in the prospectus and it was clearly mentioned in the prospectus that if a student leaves the course in between, the fee would not be refundable, rather the student will have to pay damages of Rs.2,00,000/- and for that very purpose the bank guarantee was obtained from the student. The counsel for the OPs further submitted that even otherwise the complaint is not maintainable as the father of Radhika Jambu has no locus standee to file the present complaint and he cannot be said to be a consumer. Radhika Jambu is major and the complaint should have been filed by her alone and her father is not competent to file the complaint, which is liable to be dismissed on this ground alone. In support of his contentions, the counsel for the OPs has relied upon   Anurudh Tamrakar Vs Registrar, Global Engineering College and others in 2016(3) CPJ 230 of Hon’ble National Consumer Disputes Redressal Commission, New Delhi, whereby it has been held that the student is not a consumer and the consumer court has no jurisdiction to entertain the case whereby a student is not satisfied with the college and seeks refund of fee. Counsel for the OPs has further placed reliance on  M.J.P. Rohailkhand University and Ravindera Kumar Jaiswal in II (2019) CPJ 440 (NC) whereby it has been held by Hon’ble National Commission that the education is not a commodity and it cannot be defined as service and further that after the student appeared in re-counseling  after taking admission and depositing fee, cannot seek refund. The counsel for the OPs has further relied upon Indu Gupta Vs Director of Sports, Punjab in 1999(4) SCT 113 of Hon’ble Punjab and Haryana High court whereby it has been held by the Full Bench of Punjab and Haryana High Court that the terms and conditions incorporated in the prospectus and brochure cannot be held to be merely declaratory. They have to be and must necessarily be treated as mandatory and their compliance would be essential otherwise basic principle of fairness in highly competitive entrance examination would stand frustrated. Counsel for OPs has further relied upon  Rupinder Singh and others Vs The Punjab State Board of Technical Education & Industrial Training 2001(2) SCT 726 whereby it has been held by the Full Bench of Hon’ble Punjab and Haryana High Court that the prospectus/information brochure in relation to admission to any course has got the force of law and therefore, the admission to the course should be in strict compliance of provisions contained in prospectus.  The counsel for the Ops ahs further placed reliance on  Homeopathic Medical College and Hospital Vs Miss Gunita Virk in 1996(1) CPJ 37 whereby it has been held by Hon’ble National Commission that Fora constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal. It is for the civil court to determine this point. It was further held that if a student applies for admission and deposits fee and later on did not want to join the course, then the seat so vacated will remain vacant throughout the academic year and as such, it will become very difficult for any institution to run in a proper manner. The counsel for the Ops has further placed reliance on Chakradhar Semwal Vs Navjot Singh Waraich and another in 2001(1) CLT 367 of Hon’ble Delhi State Consumer Disputes Redressal Commission, New Delhi, whereby it has been held that only the Civil Court has jurisdiction to declare a rule in prospectus of any institution as unconscionable or illegal. Therefore, the request of the appellant for refund of the fee declined by the opposite party in terms of prospectus which provided that fee once deposited is non refundable was held to be justified.

10.              In the light of the law laid down in the afore cited cases, it has been further urged by the counsel for the OPs that the complainant cannot be held entitled to refund of the fee claimed by the complainant in this complaint.

11.              We have weighed the contentions raised by the counsel for the parties.

12.              As per law laid down by the Full Bench of Hon’ble Punjab and Haryana High Court in Indu Gupta Vs Director of Sports, Punjab (Supra) the terms and conditions of the brochure and prospectus cannot be said to be merely declaratory. Rather they are to be treated as mandatory. Similarly, in Rupinder Singh and others Vs Punjab State Board of Technical Education & Industrial Training (Supra), it has been held by the Full Bench of Hon’ble Punjab and Haryana High Court that the brochure in relation to the admission in any course has got the force of law. In Homeopathic Medical College and Hospital Vs Miss Gunita Virk (Supra), it has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi  that the Fora constituted under the Consumer Protection Act has no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal. Therefore, it is abundantly clear that the prospectus of an educational institution has the force of law and this Commission does not have jurisdiction to declare any part of the prospectus as illegal, void and unconscionable.

13.              Keeping in view the above stated position of law qua the prospectus of an educational institution, it has to be seen whether OP2 and OP3 have acted in accordance with the prospectus Ex. OP2/5. On page 10 of prospectus Ex. OP2/5, it is provided that at the time of admission, all the students admitted to DMCH will have to pay the fee, as notified by the competent authority. In case a provisional fee is notified, all the students will be required to submit an undertaking (Appendix-D) to the effect that will pay the final fee as fixed by the competent authority. On page 15 of Ex. OP2/5, it is further provided that the fee once paid is not refundable. In addition to this, some performa affidavits in the shape of Appendix-A and Appendix-B have also been given in the prospectus. In addition to this, a separate performa of bank guarantee and undertaking (Appendix-D) have also been given at the end of the prospectus. In accordance with the terms and conditions incorporated in prospectus Ex. OP2/5, the daughter of the complainant submitted affidavit Ex. OP2/2 and inter alia, stated in para no.9 of the affidavit that she will complete her tenure of three years (two years for Diploma) and work for the entire period in the specialty in which she was initially admitted. She further mentioned that she will not appear in any of the subsequent PG Entrance tests and in case she discontinues her course under any circumstances, she will pay a sum of Rs.2,00,000/- as damages in addition to the annual tuition and other fees to Dayanand Medical College & Hospital, Ludhiana. She further swore affidavits Ex. OP2/3 and Ex. OP2/4. In affidavit Ex. OP2/4, it has been mentioned by Dr. Radhika Jambu  that she was depositing the provisional tuition fee of Rs.1,75,000/- notified by the competent authority and she further undertook to pay the balance of final tuition fee, as approved by the competent authority. She further furnished bank guarantee of Rs.3,50,000/- against the fee of the subsequent years, which OP2 and OP3 were entitled to invoke if she vacated the seat. It is not disputed that Radhika Jambu vacated the seat and joined some other course with Ganga Ram Hospital, New Delhi. In this regard, reference can be made to letter dated 03.07.2006 Ex. OP2/8 vide which  Professor and Head of the department informed the Principal regarding the absence of Dr. Radhika Jambu from the department. Further reference can also be made to letter dated 03.08.2006 Ex. OP2/9 vide which Radhika Jambu was informed that she was absent from duty w.e.f. 28.06.2006 without any intimation/permission. It is, therefore, evident from the record that Radhika Jambu remained absent from the college without permission and as per the terms and conditions incorporated in the prospectus and the affidavits/undertakings given by Radhika Jambu, she was liable to pay the fee of the entire course, as a result of which, bank guarantee of Rs.3,50,000/- furnished by her, was rightly invoked and encashed by OP2 and OP3. Since the prospectus Ex. OP2/5 has the force of law, as discussed in foregoing part of this order, any condition or stipulation incorporated in the prospectus cannot be said to be illegal, null and void, so far as the jurisdiction or power of this Commission is concerned. In the circumstances, it cannot be held that OP2 and OP3 wrongly invoked the bank guarantee or that they wrongly refused to refund the fee to the complainant. In this contest, it would be pertinent to mention that there is no evidence on record that the seat vacated due to absence of Radhika Jambu, was filled in the same session by the OPs or that the fee qua the seat of the daughter of the complainant was realized from some other student. In these circumstances, in the considered opinion of this Commission, complainant cannot be held entitled for the refund of the fee as claimed in the complaint.

14.              Secondly, this complaint has been filed by Sh. Kulwant Rai Jambu, who is said to be the father of Radhika Jambu. It has been mentioned in para no.1 of the complaint itself that the complaint has been filed by the complainant on behalf of his daughter Radhika Jambu and therefore, the complainant is a consumer. However, no power of attorney executed by Radhika Jambu in favour of the complainant  has been placed on record. It is not disputed that Radhika Jambu is major. In the considered opinion of this Commission, at the most Radhika Jambu can claim her to be a consumer as she joined the college of OP2 and OP3 and paid the fee. Since she has not formally authorized the complainant to file the complaint, it has to be held that the complainant has no locus standi to file the complaint on behalf of Radhika Jambu nor the complainant can be said to be a consumer in terms of Section 2 of the Consumer Protection Act.

15.              Thirdly, as per the allegations contained in the complaint itself, Radhika Jambu sought admission in the year 2006 more specifically on 05.06.2006. Fee of Rs.1,75,000/- and other charges were also paid by her in the month of June 2006 and a bank guarantee of Rs.3,50,000/- was also furnished on 14.06.2006. The bank guarantee was invoked/encashed in the year 2007 and in this regard, Radhika Jambu was informed about the encashment of the bank guarantee by the bank concerned vide letter dated 05.06.2007. Therefore, the cause of action to file the complaint accrued to the complainant or his daughter on 05.06.2007 and the complaint could be filed within a period of 2 years there from. However, the present complaint was filed in the year 2014. It has been pointed out that prior to the filing of the present complaint, a writ petition was filed before Hon’ble Punjab and Haryana High Court and the Hon’ble High Court permitted the complainant to seek remedy in the appropriate Forum. A copy of the order passed in the writ petition has been placed on record as Ex. C14. A perusal of the said order reveals that the petition was filed in the year 2014 itself and decided on 14.03.2014. The writ petition was unconditionally withdrawn on the plea that the petitioner intends to seek alternative remedy. In the considered opinion of this Commission, filing of the writ petition in the year 2014 does not extend the period of limitation for filing the present complaint, which should have been filed within a period of 2 years from the date of cause of action, which arose on 05.06.2007 when the bank guarantee was invoked. Therefore, the present complaint is held to be barred by time.

16.              As a result of above discussion, the complaint is hereby dismissed being devoid of any merit.  However, there shall be no order so as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

17.               Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

                    (Jyotsna Thatai)                                       (K.K. Kareer)

            Member                                                   President

Announced in Open Commission.

Dated:04.02.2021.

Gobind Ram.