cccccPBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of December 2012
Filed on : 01/09/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 474/2011
Between
Sriragh Karat, : Complainant
“Sreedhara Vihar”, (By Adv. A.K. Madhavan Unni,
Puthur, Palakkad-678 001. Shivapriya, Parinamam road, (LFC)
Kaloor, Kochi-682 017)
And
1. Cochin University of Science and : Opposite parties
Technology Rep. by the Registrar, (By Adv.Shyam Krishnan,
Cochin University of Science and Room No. 248, 2nd floor,
Technology, Kochi, -682 022. KHCAA Chambers, High
Court of Kerala,Kochi-31)
2. School of Engineering
Cochin University of Science and
Technology, Rep. by the Principal,
School of Engineering,
Cochin University of Science
and Technology, Kochi-682 022.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
On 06-07-2010 the complainant got admission in Electronics and Communication Engineering Course under NRI category in the 2nd opposite party on payment of fee of Rs. 3,16,025/-. Due to some unexpected contingencies of the complainant he could not continue with the studies and on 05-08-2010, the complainant requested the opposite parties to cancel the admission and to refund the fees. However the opposite parties refunded only Rs. 50,000/- relying on the University Rules. The complainant received the amount under protest. Thereafter the complainant’s guardian caused a letter to the 2nd opposite party demanding to refund the balance fee of Rs. 2,66,025/-. The 2nd opposite party sent a reply stating untenable contentions. The complainant is entitled to get refund of the remaining amount with interest together with compensation and costs of the proceedings. This complaint hence.
2. The version of the opposite party is as follows:
This Forum has no jurisdiction to entertain the complaint. The complainant is a student of the opposite parties, not a consumer. The complainant had taken admission in the year 2010 under NRI category by paying Rs. 3,16,025/-. The complainant cancelled his admission on 05-08-2010. The 1st year B. Tech classes for the year 2010 had commenced on 26-07-2010. The complainant was only eligible to get refund of Rs. 50,000/- and paid the same. It has been clearly provided in the hand book and online prospectus the rules regarding refund of fees. The complainant is devoid of any merit and is liable to be dismissed.
3. The complainant was examined as PW1 and Ext A1 to A4 were marked. No oral evidence was adduced by the opposite parties. Exts. B1 to B7 were marked on their side. Heard the learned counsel for the parties.
4. The points that arose for consideration are as follows:
i. Whether the complainant is a consumer?
ii. Whether the complainant is entitled to get refund of the
remaining fees from the opposite parties?
iii. Whether the opposite parties are liable to pay compensation
and costs of the proceedings to the complainant?
5. Point No. i. At the threshold the opposite parties challenged the maintainability of the complaint stating that the complainant is not a consumer within the ambit of the Consumer Protection Act. The learned counsel for the opposite parties vehemently relied on the following decisions rendered by the Hon’ble Appex Court in support of his arguments
i. Bihar School, Examination Board Vs. Suresh Prasad Sinha
(2009) 8SCC 483
ii. and Maharshi Dayanand University V. Surjeet Kaur (2010) II
SCC 159.
6. In the above decisions the Hon’ble Supreme Court held that the University or the college are not service providers and the Consumer Protection Act will therefore not be applicable. The above proposition is not applicable in the circumstances of the present case because that view was given in the context of conduct of examination alone and not for admission or refund of fee. Where as in Budhist Mission Dental College and Hospital Vs. Bhupesh Khurana and others 2009 CTJ (Supreme Court) (CP) 373 held that imparting of education by an educational institution for consideration falls within the ambit of ‘service’ and the students are the consumers of that service. In view of the above authoritative pronouncement on the aspect at hand we have no hesitation to hold that the complainant is a consumer within the purview of the Consumer Protection Act and the complaint is maintainable in this Forum.
7. Point No. ii. The chronological events in this case are as under.
i. The complainant took admission in the 2nd opposite party on
06-07-2010 by paying Rs. 3,16,025 by way of fees
evidenced by Ext. A1.
ii. The classes of B.Tech course started on 26-07-2010 that is
after 20 days for the date of admission.
iii. The complainant informed the 2nd opposite party regarding
his withdrawal from the course on 05-08-2010 evidenced by
Ext. A2.
iv. The 1st opposite party closed the admission on 13-09-2010.
v. The 2nd opposite party refunded Rs.50,000/- out of the total
fee of Rs. 3,16,025/-.
vi. On 28-04-2011 the complainant’s guardian requested the
2nd opposite party by issuing Ext. A3 to refund the remaining
fee of Rs. 2,66,025/-.
vii. The 2nd opposite party rejected the request as per Ext. A4
letter dated 22-08-2011 which reads as follows:
“Please refer to your letter. It is hereby informed that the existing refund rules of University states that (refer page no. 147 of academic handbook 2010)
1. When a student cancels his admission before the starting of classes, another student from the waiting list will be given admission and the admission cancelled student will be refunded the entire fee remitted after deducting a processing fee of not more than Rs.1,000/-
2. When a student cancels his admission after the starting of classes full amount of tuition fee remitted by him will be refunded to him irrespective of the fact that he attends or not attends the classes if the subsequent vacancy is filled by another candidate.
Also as per University order no:Ac.A3/2901/06 dated 18/06/2009 (enclosed herewith) states that refund rules applicable to non-NRI candidates should be made application to NRI quota also.
Since your date of cancellation of admission is 05/08/2010 that is after the commencement of B.Tech classes at School of Engineering, i.e., 26/07/2010 and also based on the above said rules your request could not be conceded”.
8. The all India Council for Technical Education has issued a Public Notice advertisement in the year 2002 which has been re-advertised every year and which reads as hereunder:
“Whereas it has come to the notice of the AICTE that Technical Institutions and Universities including Deemed to be Universities, are admitting students to technical education programmes long before the actual starting of an academic secssion collecting full fee from the admitted students…..
And, whereas, Institutions and Universities are also reportedly confiscating the fee paid if a student fails to join by such date……
And, whereas the time limit for students to join the course/ programmes is also being advanced in some cases unrealistically so as to pre-emt student / candidates from exercising other options of joining other institutions of their choice.
In the event of a student / candidate withdrawing before the starting of the courses, the wait listed candidates should be given admission against the vacant seat. The entire fee collected from the student, after a deduction of the processing fee of not more than Rs. 1,000/- (Rupees one thousand only) shall be refunded and returned by the Institution/University to the student/candidates withdrawing from the programme. It would not be permissible for institutions and Universities to retain the School/Institution. Leaving Certificate in original. Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidates by the last date of admission, the institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable.
Any violation of instructions issued by the AICTE, shall call for punitive action including withdrawal of approval and recognition of erring Institutions and Universities. AICTE shall on its own or on receipt of specific complaints from those affected take all such steps as may be necessary to enforce these directions.”
9. The University Grants Commission has also issued guidelines which are as here under:
“It has come to the notice of the University Grants Commission (UGC) that institutions and universities including institutions and universities including institutions deemed to be Universities are admitting students to various programmes of the studies long before the actual starting of academic session, collecting full fee from the admitted students, and, retaining their schools/institutions leaving certificates in original. The Institutions and Universities are also reportedly confiscating the fee paid if a student fails to join by such dates. The Commission is of the view that the Institutions/Universities, by way of retaining the certificate in original, force retention of admitted students which limits the opportunities for the candidates from exercising other options of joining other institutions of their choice. However, it would not be permissible for Institutions and Universities to retain the school/institution leaving certificate, mark sheet, caste certificate and other documents in original.
The Ministry of Human Resources Development and University Grants Commission have considered the issue and decided that the Institutions and Universities, in the public interest, shall maintain a waiting list of students/candidates in the event of a student/candidate withdrawing before the starting of the course, the waitlisted candidates should be given admission against the vacant seat. The entire fee collected from the student, after a deduction of the processing fee of not more than Rs. 1,000/- (one thousand only) shall be refunded and returned by the Institution/University to the student/candidate withdrawing from the programme. Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable.
The Universities/Institutions are requested to abide by the instructions issued by the UGC. The UGC shall on its own or on receipt of specific complaints from those affected, take all such steps as may be necessary to enforce these directions. Institutions/Universities are also required to convey these instructions to the colleges affiliated to them.
This notice has been reiterated subsequently also”.
10. These matters have to be decided on the basis of these instructions and guidelines given by the All India Council for Technical Education and University Grants Commission.
11. The Hon’ble National Consumer Disputes Redressal Commission in Nipun Nagar Vs. Symbiosis Institute and International business 1 (2009) CPJ 3 (NC) and in Sehgal School of Competition Vs. Dalbir Singh III (2009) CPJP 33 NC has placed all reliance on the above stated public notices issued by UGC and the AICTE. In the latter decision the Hon’ble National Commission also has taken into account the fact that the respondent Institution had not incurred any loss by the act of the student leaving the institute mid way after attending the classes for some time.
12. In Andra University Vs. Jan Jaran Jagedesh III (2010) CPJ 310 (NC). The Hon’ble National Consumer Disputes Redressal Commission held that “as per these guidelines which will have overriding effect over the university’s own guidelines and keeping in view that the respondent/complainant in this case within a week of depositing the fees and the certificate had requested for being withdrawn from the course without attending any class and in view of the UGC guide lines, we are of the view that the petitioner/opposite party Institution was unfair on the retaining the entire fee, even after the student withdrew from their college. Besides the petitioners have failed to prove that the resultant vacancy was not filled up by any other candidate from the waiting list”.
13. Nothing is on record in evidence to show that a waiting list is maintained by the opposite parties as directed in the guide lines issued by the UGC. The non-maintenance of such a mandatory waiting list itself is a blatant and violation of the guidelines of AICTE and UGC for which no explanation is forthcoming. Since the waiting list has not been maintained it is not open to the opposite parties to contend that their seat is likely to remain vacant if the candidate does not join the Institution. The seat would not have remained vacant, if they had maintained a waiting list.
14. In the instant case admittedly the complainant discontinued the course on 05-08-2010 before closing of the admission on 13-09-2010 that is before 38 days from the date of closure of the admission. It is hardly explainable how a much sought for seat would lie vacant for such a long period especially when aspirants are ready even to pay an exorbitant amount of as much as more than three lakhs. The above referred decisions squarely apply to the facts of the complaint at hand. The unilateral decision of the opposite parties to withheld the remaining fee of the complainant against the guidelines and strictures of AICTE and UGC amounts to deficiency in service on the part of the opposite parties. Therefore in view of law on the subject of refund of fee has finally and fully been crystallized with the rulings that we have referred above.
15. Point No. iii. The primary grievance of the complainant having been met adequately we refrain from ordering compensation or costs of the proceedings.
16. In the result, we partly allow the complaint and direct that the 2nd opposite party shall refund the remaining fee of the complainant in line with the direction of the AICTE and UGC.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order failing which the amount shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the 31st day of December 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of fee remittance slip-Original
A2 : Copy of letter dt. 05/08/2010
A3 : Copy of letter dt. 28-04-2011
A4 : Copy of letter dt. 22/08/2011
Opposite party’s Exhibits :
Ext. B1 : Copy of brochure
B2 : Copy of order dt. 18-06-2009
B3 : Copy of list of admitted candidates
B4 : Copy of roll Number and
name etc.
B5 : Copy of fee details
B6 : Copy of fee details
B7 : Copy of note
Depositions:
DW1 : Srirag Karat
