DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Abhishek Mengi son of Virender Kumar resident of H. No. 3413, Sector 47-D, Chandigarh.

…..Complainant

                 V E R S U S

Birla Institute of Technology & Science Pilani (BITSAT) Rajasthan through its Managing Principal Officer.

                      ……Opposite Parties

CORAM:   SH.P.D.GOEL, PRESIDENT

                                SH.RAJINDER SINGH GILL, MEMBER

              DR.(MRS) MADANJIT KAUR SAHOTA, MEMBER

Argued by: Sh. Raj Kumar Syal, Counsel for Complainant.

                Sh. Chanan Singh, Counsel for OP.           

PER RAJINDER SINGH GILL, MEMBER

        The complainant has filed the present complaint under section 12 of the Consumer Protection Act (as amended upto date) “hereinafter referred to as the Act”. In nutshell, the complainant, after depositing requisite entrance fee and qualifying exam, was selected for admission to M.Sc. (Tech) General Studies with the OP Institute.  On the direction of the OP, he also deposited Rs.55,000/-, as advance fee, through bank draft.  Thereafter, the complainant got admission in the PEC and he, immediately, on 2.8.2009, made a request to the OP to refund the admission fee and return the Original Certificates. After many requests, the complainant received letter dated 8.10.2009, from the OP, intimating therein, that the fee has been forfeited as he had not submitted the withdrawal form. The complainant alleged that only Rs.8,000/- was refunded as mess advance and caution deposit, out of Rs.55,000/-. Despite several requests for refund of the whole fee, the OP did not act. Hence, this Complaint.

2.      The OP admitted factual matrix of the case. The OP took preliminary objection that the complaint is not maintainable, and Fora has no territorial jurisdiction, as the whole cause of action arose at Pilani Rajasthan. Further, the OP Institute does not fall within the category of a service provider qua the complainant. The OP admitted that one of its centres has been fixed at Chandigarh for conducting competitive examination for admission. That the Complainant had paid the tuition fee at Pilani, through his Banker. It was pleaded that OP did not conduct any counselling for admission and all admissions were purely based on merit. It was denied that on 2.8.2009, the Complainant made any written request to the OP to refund the admission fee and return the original certificates. In fact, the Complainant for the first time applied for withdrawal of admission and refund of the deposited fee on 5.10.2009 [R-1]. Since the Complainant was not entitled to any refund, except an amount of Rs.8,000/- paid as Mess Advance, caution deposit etc., which amount stood refunded to him. It was asserted that by withdrawing at a late stage, the complainant has caused a considerable loss to the OP. So, the OP was not liable to refund any fees to him, as claimed. Denying all the material allegations of the complainant, the OP pleaded that there has been no deficiency in service or unfair trade practice on its part and prayed for dismissal of the complaint. 

3.      The Parties led evidence in support their contentions.

4.      We have heard the Learned Counsel parties and have also perused the record. 

5.       It is admitted case of the Complainant that he had applied for admission to the course of B.Tech. with the OP Institute and deposited Entrance Fee of Rs.1,000/- in the account of the OP Institute maintained with the ICICI Bank, Chandigarh, as per the directions of the OP qua Annexure A-2. 

6.       It is not disputed that the OP had allotted Test Center to the Complainant at Chandigarh i.e. “Bitsat Centre C/o University Institute of Engineering & Technology, South Campus, CAD Lab, Panjab University, Sector 25, Chandigarh”, qua Annexure A-3 and the Complainant had appeared in the Test held on 15.05.2009. It was when the Complainant qualified the said exam, the OP demanded Rs.200/- as Application Fee, which was accordingly, deposited in the account of the OP with ICICI Bank, Sector 35, Chandigarh vide Annexure A-5.

7.       Annexure A-6 is a letter dated 7.1.2009, written by the OP to the Complainant, informing him that he was selected for admission to M.Sc. (Tech.) General Studies at Pilani Campus and further, directed him to send an Advance Fee of Rs.55,000/-. The Complainant complied with the said directions and sent Advance Fee of Rs.55,000/- to the OP through Bank Draft and with regard to it, ICICI Bank, Sector 35, Chandigarh had issued a certificate Annexure A-7.

8.       Per contra, the OP Institute has raised a plea that this Forum has got no jurisdiction to entertain and try the instant complaint, as the entire course was to be done at Birla Institute of Technology, Pilani, Rajasthan. However, this plea, we feel, is not available to the OP, manifestly on the ground that the Complainant had paid the fees etc. at Chandigarh and appeared in the Test Center (allotted by the OP) at Chandigarh i.e. “Bitsat Centre C/o University Institute of Engineering & Technology, South Campus, CAD Lab, Panjab University, Sector 25, Chandigarh”. So, the part of the cause of action definitely has arisen at Chandigarh and, this Forum, has, therefore, got the jurisdiction to entertain and try the present complaint.

9.       It is the case of the Complainant that he attended the Counselling at PEC, University of Technology, Chandigarh qua Annexure A-9 and got admission in B.E. As such, vide letter Annexure A-10, he sought refund of the admission fee to the tune of Rs.55,000/- and return the original certificates, from the OP. However, it was only after much persuasion and follow-up that the OP Institute had refunded only Rs.8,000/-, out of the advance fee of Rs.55,000/- qua Annexure A-14 and refused to refund the balance amount.

10.      When confronted, learned counsel for the OP raised a defence that the seat left by the Complainant remained vacant and for that reason, the Complainant is not entitled for the refund. We do not find any merit in the contention of the Learned Counsel for OP. The onus to prove this assertion was certainly on the OP. However, the OP has not been able to prove it and has not produced an iota of evidence or document to show that the seat vacated by the complainant is still lying vacant, thereby causing loss to them. Therefore, this bald assertion of OP cannot be accepted as such, and believed, in the absence of any cogent and convincing evidence.

11.      To further reinforce his stand, learned counsel for the OP placed reliance on instructions regarding payment of Fees, Refund and Forfeiture of Fees and argued that in view of the said instructions, the Complainant is not entitled at all for the refund of the fee deposited by him. Relevant extract of the said instructions are reproduced below, for the sake of convenience:-

“5.  Instructions regarding payment of fees, refund and forfeiture of fees:-

(a)  If a candidate, who is offered admission, accepts the offer by remitting the above fees but fails to report at the Institute on the date specified above, he/ she will forfeit Rs.11,000/- which is 20% of total fees (Admission and one Semester Fee) and his/ her admission will automatically stand cancelled. The balance amount would be refunded to him/ her in due course of time. However, if a candidate reports on the specified date and submits originals, but subsequently withdraw either before or after registration, he/ she will forfeit the total fees (admission and semester fees) paid by him/her.”

12.      The aforesaid contention of the learned counsel for the OP does not hold any water and is devoid of any substance. In our view, the service provider cannot forfeit the fees (in full or in part) for the services, which it has neither provided, nor the student has received such services and as such, the forfeiture of such fees is not only a deficiency in service but also an unfair trade practice and if there is any such term of the contract, to the contrary, the same is surely an unconscionable contract and therefore, void and not binding on the complainant.

13.      Moreover, as regards the rules contained in instructions [Annexure R-2] for Admissions to Integrated First Degree Programmes, we are of the firm view that the same cannot override/overrule the guidelines of the University Grant Commission, which is the sole Governing Body for all Universities and Colleges and the OP College too falls under its purview.

14.      It is pertinent to mention here that the University Grant Commission (U.G.C.) had issued a Public Notice, which has been thoroughly dealt with by the Hon’ble National Commission in case Nipun Nagar Vs. Symbiosis Institute of International Business, I (2009) CPJ 3 (NC), wherein it has been categorically held that the institutions are not entitled to retain the entire fees and if at all they can deduct some amount that is not more than Rs.1000/- and the balance should be refunded.

15.      The ld.Counsel for the OP has also placed on record Annexure R-3 as additional evidence, showing the number of filled-up seats against total available seats, in each category, whereas the complainant, in rebuttal to this document of OP, produced Annexure A-17 as additional evidence, proving that 29.7.2009 was not the actual cut of date, there exists iteration on 9.8.2009 to fill all seats. 

         We are of the view that the OP should have produced on record the Attendance Register to prove that the seat vacated by the complainant has been filled-up by another student in the relevant sessions or not. But the OP has not done so.  Therefore, in our opinion, this document Ann.R-3 is of no help to the Opposite Party.   

16.      In this backdrop, we are of the view that OP was unfair and unjustified in their act by retaining the fees of Rs.47,000/- of the complainant.  The OP should have, at the most, deducted a sum of Rs.1000/- only, towards processing fee/Administrative charges etc. in view of the guidelines of U.G.C., as well as the law settled by the Hon’ble National Commission, referred to above. 

17.      During the course of arguments, learned counsel for the OP stated at bar that the Complainant is entitled for the refund of fee of Rs.46,000/- after deducting Rs.1000/- on account of processing charges, as per UGC Guidelines.

18.      In view of above discussion and findings, we are of the opinion that the OP was deficient and unjustified in its act and has also indulged in an unfair trade practice. Accordingly, it is our considered view that the present case has a lot of merit, substance and weight and it deserves acceptance. Therefore, we accept the complaint and decide the same in favour of the Complainant and against the OP. The OP is directed to refund to the complainant the balance amount of Rs.47,000/-, after deducting Rs.1000/- as service/ processing/ administrative charges, besides costs of litigation assessed at Rs.10,000/-, within 30 days from the date of receipt of certified copy of this order, failing which the OP would be liable to pay the sum of Rs.46,000/-, alongwith penal interest @ 12% p.a. from the date of filing the present complaint i.e. 27.10.2010, till the amount is actually paid to the complainant, besides paying the litigation cost of Rs.10,000/-.

19.      Certified copies of this order be sent to the parties free of charge.  The file be consigned.