COMPLAINT FILED ON:04.01.2010

DISPOSED ON:09.09.2011.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

9^th DAY OF SEPTEMBER-2011

       PRESENT:- SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA     MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER              

O R D E R

Sri.B.S.REDDY,PRESIDENT

The complainants filed this complaint U/s. 12 of the Consumer Protection Act of 1986 seeking direction against the opponents to refund an amount of Rs.3,25,000/- with interest at 12% p.a. and to pay compensation of Rs.1,00,000/- along with costs of the proceedings on the allegations of deficiency in service on the part of the opponents.

2.      The brief averments made in the complaint are as follows:

          The complainant No.1 is the father of the 2^nd complainant. The 2^nd complainant had succeeded in COMEDK UGET 2007 (Medical) exam and appeared for counseling held in the year 2007. Since, the 2^nd complainant is a meritorious student, the 1^st opponent has allotted medical seat in the 2^nd opponent K.S                            Hegde Medical Academy, Mangalore and directed to deposit annual tuition fees of Rs.3,25,000/-. The said amount was deposited by way of D.D. dt.20.06.2007 and the 1^st opponent accepted the same. Subsequently, the 1^st opponent issued seat allotment letter dt.22.06.2007 and directed to get admission on or before 20.07.2007. The complainant No.2 was suffering from high fever from 08.07.2007 to 09.08.2007. In view of the same, he was unable to come personally and get admitted to the 2^nd opponent. The complainant No.1 has requested the permission to the 2^nd opponent to get his son (the complainant No.2) admitted in the absence of the complainant No.2, as the 1^st complainant was ready to complete all the formalities. But, the 2^nd opponent has refused to give admission. Since, the 2^nd opponent has not given admission to the 2^nd complainant, the 1^st complainant has requested the refund of the deposited amount of Rs.3,25,000/- through letter dt.04.10.2007. The 2^nd opponent has issued reply to approach the 1^st opponent stating that the 1^st opponent has not forwarded the fees to the 2^nd opponent. The complainant No.1 has issued letter to the 1^st opponent to refund the deposited amount of Rs.3,25,000/- through letter dt.05.11.2007. The 1^st opponent has issued reply dt.12.11.2007 refusing to refund the amount. The complainant No.1 has sent one more letter dt.22.01.2008 and tried to meet the executive secretary of the 1^st opponent personally but the 1^st opponent has not allowed the complainant No.1 because of his busy schedule. On 12.02.2008, the 1^st complainant has sent reminder letter. Again on 02.02.2008 the complainant No.1 has sent another letter to the 1^st opponent. On 16.02.2008, the 1^st opponent has issued reply stating that the request of the 1^st complainant cannot be considered. On 07.04.2008, the 1^st complainant has issued a letter claiming refund the amount by deducting some reasonable amount for their expenses. The 1^st opponent has issued letter stating that the decision cannot be revised. On 26.06.2009, the 1^st complainant has issued legal notice, the 1^st opponent has issued reply for the same stating that the request of the 1^st complainant will be placed before the advisory committee. The opponents have not refunded the amount, thereby they have committed deficiency of service. The complainant has deposited the tuition fees and against such deposit the 2^nd complainant was not taking any service and /or tuition from the opponents. The complainant gathered information from the 2^nd OP that the 2^nd opponent has not lost any revenue because in Session 2007 there is no vacancy left in the college. Hence the complaints are seeking the relief’s stated above.

3.   On appearance, OP1 filed version contending that the complainants have no case on merit and the complaint is frivolous and is based on false statements. It is stated that Karnataka Private Medical and Dental Colleges Association holds a Centralized Counseling for admissions to Post-Graduate Medical, Dental and Engineering courses of the member Institutions for that particular academic year to ensure merit based admissions into such member Institutions. For this purpose the Karnataka Private Medical and Dental Colleges Association has commissioned the services of he OP1 (COMEDK), which has established a transparent testing system for determination of merit and to conduct Post Graduate and Under Graduate Centralized counseling over the past years. The entrance test for undergraduate courses COMEDK UGET-2007 was conducted, the complainant with the Test Admission Ticket No.2024380 under General Merit Category had secured Rank No.1123 and appeared for the first round of counseling of Medical/Dental seats conducted by the OP1 on 22.06.2007 and selected “Medical” seat in 2^nd OP K.S.Hegde Medical Academy, Mangalore. In the seat allotment letter, complainant had been directed that he is required to get admitted at the college on or before 20.07.2007. All the candidates who have appeared for the counseling of the COMEDK-UGET-2007 were to follow a set of instruction. Document No.R1 is the instructions for participation in centralized single window seat selection process for COMEDK-UGET-2007, Document No.R2 is the schedule for the first and the second round of counseling for the Medical/Dental seats. At the time of candidates applying to UGET-TEST and counseling conducted by OP1, they are instructed to first go through the instructions at document No.1 before filling up of the application. The complainants cannot deny the knowledge of the said instructions. The complainant after selecting the seat at the OP2 institution was given an allotment letter. Admittedly, he has not reported at the institution within the time prescribed. It is submitted that at the instance of the candidate selecting the seat at the counseling centre, the admission of the candidate is complete and that the reporting of the candidate at the institution is only a formality to be completed by the candidate. The complainant is bound by the instructions given to him at the earliest time; for participation and was to follow the same. The document No.R1 clearly states that procedure to be followed while surrendering the seat and also about the refund of fee. Since the complainant had selected the seat in the first round of counseling conducted on 22.06.2007 and has not surrendered the seat within the time stipulated as on 11.07.2007, the complainant forfeits 100% of the fee paid and is not entitled to any refund. The complainant has not followed the instructions given to him and therefore in accordance with the refund and forfeiture policy, the fee collected from him was not sent to the institution and also that the complainant forfeits the entire fee paid. The complainant has not surrendering the seat on or before 11.07.2007, this action on the part of the complainant has resulted in blocking the seat and preventing the next best candidate from selecting the seat in the counseling. The allegation that the complainant was suffering from typhoid fever from 08.07.2007 to 09.08.2007 and the complainant No.1 requested permission of OP2 to get his son admitted in the absence of the complainant NO.2 and that the OP2 had refused to give admission is false and incorrect. OP2 would have allowed the complainant No.1 to complete the formalities as the admission was already granted to the complainant No.2 on 22.06.2007. It is pertinent to point out that there has been not letter in writing by the complainants wanting to finish the formalities in the absence of the complainant No.2.     The complaint made a request for refund of the amount of Rs.3,25,000/- for the first time to the OP2 on 04.10.2007 which is about 3 months after the date of counseling and the last date for the surrendering of the seat. After about a month later the request for the refund is given to OP1 on 05.11.2007. OP1 had sent reply to the complainants on 12.11.2007 refusing the refund of the amount, the complainants could nave informed the COMED-K or the Institution by Fax or by a letter immediately about their inability to report to the institution due to ill health and their intention to surrender so that the seat allotted to the complainant No.2 could have been counseled in the second round of Counseling conducted on 13.07.2007 and another merited candidate had a chance to select that seat; which was denied due to the inaction on the part of the complainants. As per the Doctor’s Report at Document No.5 dt.10.08.2007, the complainant was physically fit to resume normal activities on 09.08.2007 and the complainants have made a representation to the OP1 only on 05.11.2007 without any explanation for the delay for the period from 09.08.2007 to 07.11.2007. The conduct of the complainants presupposes that they were trying to procure a seat in some other college and if they would get a seat elsewhere, they would ask for the refund of the fee already paid to the OP No.1. Hence the complainants are not entitled for the refund as the conduct of the complainants disentitles them for any equitable relief at the hands of this Hon’ble Forum.

4.   OP2 in its version stated that the complainant No.2 did not report to the college within the time specified. The amount paid by the complainants to OP1 has not been received by OP2. As the amount of Rs.3,25,000/- has not been received by OP2, the question of refunding the same does not arise.

5.In order to substantiate the complaint averments filed affidavit evidence. The Secretary of OP1 filed affidavit evidence in support of defence version.

6. The complainants filed written arguments.

7. Arguments on both sides heard. Points for consideration are:

       Point No.1:-  Whether the complainants have

   proved the deficiency in service

    on the part of the OPs?

Point No.2:-   If so, whether the complainants are

                     entitled for the relief’s claimed?

       Point No.3:-  To what Order?

8. We record our findings on the above points:

Point No.1:- In Negative.

Point No.2:- In Negative.

Point No.3:- As per final Order.

R E A S O N S

9. The 1^st complainant is the father of 2^nd complainant. The complainant No.2 had succeeded in COMEDK-UGET-2007 (Medical) exam and appeared for counseling. OP1 allotted medical seat in K.S.Hegde Medical Academy, Mangalore (Nitte Education Trust) the 2^nd OP and directed to deposit annual tuition fees of Rs.3,25,000/-. The said amount was deposited by way of D.D.drawn in favour of OP1. OP1 issued seat allotment letter on 22.06.2007 and directed the 2^nd complainant to get admission on or before 20.07.2007. The complainant No.2 neither took the admission nor surrendered the seat within the prescribed date. For admission the date was fixed on or before 20.07.2007, for surrendering the seat the last date fixed was 11.07.2007 as per document R1. In view of the seat allotted to the 2^nd complainant being not surrendered within the stipulated date, the same was not available to other eligible meritorious candidate for selection in the counseling of second and last round. The management of the medical college had made use of that seat for providing admission to other candidate of their choice. Since 2^nd complainant has not taken admission in the said medical college, the amount of Rs.3,25,000/- deposited with OP1 was not remitted to the medical college (OP2), the said amount was forfeited by OP1 as per the terms and conditions issued in the form of instructions to candidates marked as document EX.R1 prescribing the procedure of seat selection and forfeiture of the amount in default of surrendering the seat. Document NoR1 produced by OP1 COMEDK-UGET-2007 instructions for participation in centralized single widow seat selection process provides refund and forfeiture of fee as under.

a) Seat surrender should be by the candidate only.

b) In the case of a candidate who cancels or surrenders the seat selected, he/she shall forfeit part of the fee paid as detailed below:

The balance out of the fee paid will be refunded by a post dated cheque in the name of he candidate only.

     c) In the case of a candidate who cancels or surrenders the seat after the dates mentioned above and second and final round, the candidate shall forfeit 100% of the fee paid.

d) The fee paid in the second and final round, will not be refunded, in case of cancellation or surrender of the same by the candidate.

e) A candidate, who selects a seat in second and final round and does not join the college concerned, shall not be entitled for refund of fees, which shall be forfeited.

f) In the case of a candidate who claims the refund with regard to the excess fee remitted by him should claim such an amount on or before the last date of the counseling, failing which no refund will be made.

As per clause-(C) it is clear that in case of the candidate who cancels or surrenders the seat after the dates mentioned above and Second and Final round, the candidate shall forfeit 100% of the fee paid. The last date for surrender was 11.07.2007, the complainant No.2 has not surrendered the seat allotted within that date. In view of the same, OP1 forfeited the entire fee paid by the complainants. The instructions are issued to regulate the admissions; Preventing malpractices depriving deserving candidates from securing seats to professional courses, the candidates are bound by these instructions. OP No.1 is justified in forfeiting amount in terms of these instructions.

10.Document No.5 is the Doctor Certificate dt.10.08.2007 produced by the complainants to show that the complainant No.2 was under Medical Care from 08.07.2007 to 09.08.2007 for typhoid fever. On the basis of this certificate the complainants claims that the complainant No.2 could not go to OP2 institutions for joining the course as per the seat allotted and OP2 has not permitted OP1 to complete the admission formalities in the absence of complainant No.2. In our view mere production of doctor certificate, without affidavit evidence of the doctor, is not sufficient to accept that OP2 was under Medical Care from 08.07.2007 to 09.08.2007 as such he was unable to join the medical college. The complainants have not produced any material to show that OP2 has not allowed the complainant No.1 to complete the admission formalities in the absence of complainant No2, as such we are unable to accept the contention that OP2 has not allowed the complainant No.1 to complete the admission formalities of complainant No.2 in his absence. Even in the letter dt.04.10.2007 marked as document No.6, the complainants have not stated about the fact of OP2 having refused the complainant No.1 to complete the admission formalities in the absence of complainant No.2. For the letter dt.05.11.2007 document No.8 seeking for refund of the amount. OP1 has replied as per document No.9 stating that the complainant No.2 is not eligible to claim refund as per the guidelines relating to refund and forfeiture policy of COMEDK hosted on its website. For the letter dt.22.01.2008 document No.10, for the letter dt.02.02.2008 document No.11 and the letter dt.02.02.2008 document No.12, OP1 has replied as per document No.14 explaining the reasons for not refunding the fees. For the legal notice dt.26.06.2009 OP1 replied as per document No.19 stating that the matter is placed before the advisory committee to take a suitable decision on the request. OP1 has produced document EX.R3 the proceedings of the advisory committee meeting wherein the request for refund of the fee of complainant No.2 was rejected.

11.The learned counsel for the complainant contended that for the fees paid, complainant No.2 has not taken the service of OP2 and OP2 has not been put to any loss by not taking admission as all the seats of that college were filled up for that year, hence without rendering any services, fee paid by the complainants cannot be forfeited. In our view, the amount of fees deposited was not remitted to OP2, as complainant No.2 has not taken admission in the said college. As per the guidelines issued in the form of instructions the seat allotted to the complainant No.2 was not surrendered within 11.07.2007 as such OP1 was justified in forfeiting the fee paid. The forfeiture of the fee amount is as per the terms of the instructions issued to the candidates. By the act of complainant No.2 in not surrendering the seat within the stipulated date, OP1 has been deprived of allotting that seat to the next meritorious candidate. It appears that the complainant No.2 for some extraneous reason has neither surrendered the seat nor joined the course. There is some force in the contention of the OP1 that the conduct of the complainants presupposes that they were trying to procure the seat in some other college and if they get seat elsewhere, to seek refund of fee from OP1, not joined the course as per seat allotment.

              a) Taking into consideration of all the facts and circumstances, OP1 cannot be directed to refund the fees to the complainants, as it would set bad precedent, as many others on one pretext or the other will follow suit to seek refund without surrendering the seat allotted within the stipulated date. The act of OP1 in forfeiting the amount in terms of instructions issued to the candidates and refusing to refund the same to the complainants cannot be considered as deficiency in service on its part.

12. The learned counsel for the complainant relied on the principles laid down in 1995 STPL (CL) 184 NC Adhiyamaan College V/s Mat Apathy and others, wherein the matter was amicably settled between the candidates and the management of Engineering College with regard to the refund of fee paid by the students. The other citation is (2009) 8 Supreme Court Cases 483 Bihar School Examination Board V/s Suresh Prasad Sinha wherein it was held that the statutory board does not provide any service in the sense the term is used in the act and examinee is not a consumer-examination fee paid by the examinee is also not for providing any services. The other citation is 2009 (6) SC Nizams Institute of Medical Sciences V/s Prasanth S.Dhananka and others wherein the case relating to medical negligence was considered, the last citation is (2009) 4 SCC 473 Buddhist Mission Dental College and Hospital  (2) V/s Bhupesh Khurana and others wherein the Dental college without being affiliated with a university nor recognized by Dental Council of India, admitting students to BDS course, the complaint was allowed directing to refund the fees with interest. The principles laid down in these cases cannot be made applicable to the facts of the case; OP1 is not an education institution so as to hold that without imparting education the fee paid cannot be retained. The forfeiture of the fee paid is in terms of instructions issued to the candidates. It is not within the jurisdiction of this Forum to declare that the forfeiture clause contained in the instructions issued to the candidates is oppressive, arbitrary or unreasonable. Under these circumstances, we are of the view that the complainants failed to prove deficiency in service on the part of the OP1, the complaint is devoid of merit, the same is liable to be dismissed. Accordingly, we proceed to pass the following:

O R D E R

                 The complaint filed by the complainants is dismissed. Considering the nature of dispute no order as to costs.

Send copy of this order to both the parties free of costs.  

 (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 9^th day of Septermber-2011.)

MEMBER                        MEMBER                     PRESIDENT

Cs.