Complaint filed on: 05-04-2013 Disposed on: 11-02-2014 BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT, NO.8, 7TH FLOOR, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 C.C.No.751/2013 DATED THIS THE 11th FEBRUARY 2014 PRESENT SRI.J.N.HAVANUR, PRESIDENT SRI.H.JANARDHANA, MEMBER Complainant: - Dr.Jithin.S.Kumar S/o. Sashikumar.M Aged about 29 years, Residing at No.17/634-A, Shalina Puthiyana, Calicut, Kerala state V/s Opposite parties:- 1. Director of Medical Education Directorate of Medical Education Ananda Rao Circle, Bengaluru- 09 2. Vice Chancellor, Rajiv Gandhi University of Health Sciences, 4th Block, Jayanagar, Bengaluru-41 3. Director, Institute of Nephro Urology, Victoria Hospital Complex, Bengaluru-02 ORDER SRI.J.N.HAVANUR, PRESIDENT This is a complaint filed by the complainant against the OPs, under section 12 of the Consumer Protection Act 1986, praying to pass an order, directing the Ops to pay a sum of Rs.7,75,000=00 to the complainant and grant such other relief as deemed fit, in the interest of justice and equity. 2. The brief facts of the complaint can be stated as under. The complainant was admitted to the Super speciality course with the 3rd OP after securing 2nd rank in the entrance examination conducted by the 2nd OP. The complainant joined the institution of 3rd OP on 28-7-2012 and his registered number was MB03026. At the time of joining, the complainant had paid a sum of Rs.1,00,000=00 to the 3rd OP as caution deposit vide DD no.17251979. The complainant had also paid a sum of Rs.75,000=00 as tuition fee vide DD no.17251978. The complainant also submitted to the 3rd OP all the original certificates pertaining to his academic qualification as required by the 3rd OP. The complainant secured 7th rank in the speciality entrance examination held by CEE Kerala State. However in the first round of counseling the complainant was placed in the waiting list. The complainant being apprehensive of loosing the seat obtained in the state of Karnataka with the 3rd OP had no other option but to get himself admitted with the 3rd OP. When such being the case, the complainant was allotted the seat at Trivandrum Medical College Hospital, Kerala State for D.M. Nephrology in the 2nd round of counseling held on 17-8-2012 and he was asked to join the college on or before 25-8-2012. The complainant having secured a seat at his home state approached the 3rd OP and requested to return back all the original certificates and also issue the relieving order so as to enable the complainant to join Trivandrum Medical college Hospital for the super speciality course of D.M. Nephrology, but the 3rd OP demanded the complainant to pay an amount of Rs.5.00 lakhs as fine amount for getting back the original certificate and relieving order. The complainant left with no other option and with the apprehension that he may loose the seat at Trivandrum Medical College Hospital; Kerala State was constrained to pay the fine amount of Rs.5.00 lakhs to the 3rd OP. The fine amount was paid by paying a sum of Rs.4,00,000=00 to the 3rd OP and Rs.1,00,000=00 already lying with the 3rd OP as caution deposit. For having received the amount of Rs.5.00 lakhs from the complainant, the 3rd OP issued counter cash receipt bearing no.048365 dated 21-8-2012. After the receipt of the fine amount collected from the complainant, the 3rd OP returned back the original certificates and the relieving order. Thereafter the complainant joined Trivandrum Medical college Hospital for the super speciality course of D.M. Nephrology on the due date. The seat surrendered by the complainant to the 3rd OP was immediately filled up by the next candidate in waiting namely Dr.Shankar Verma bearing Reg. no.MB 03020 and he joined the institute of Nephro Urology on 25-8-2012. Since the seat was immediately filled up the 2nd OP did not suffer any loss on account of the complainant surrendering his seat within two weeks of getting admission. The 3rd OP had the right to collect the fine amount and retain the same only if the seat surrendered by the complainant was not filled up. In other words the fine amount collected by the 3rd OP from the complainant amounts to unethical practice which resulted in deficiency of service since the amount collected from the complainant was not returned back to him, in spite of several request and demands made in that regard by the complainant. The complainant had given a representation to the Ops on 28-10-2012 explaining the peculiar circumstances under which the fine amount was collected from him and also brought to the notice of the Ops regarding the filling of the seat surrendered by the complainant immediately by the next candidate and requested the Ops to refund the said amount to him. However the Ops did not respond to the plea made by the complainant. Against the said back drop, the complainant was constrained to cause issuance of a legal notice to the Ops and the said notice was served on the Ops, the Ops have not taken any initiative to refund the amount to the complainant nor replied for the said notice. The complainant has no other remedy but to approach this forum for deficiency of service committed by the Ops. The Ops are due and liable to pay to the complainant the amount of Rs.5.00 lakhs collected illegally and also the tuition fee of Rs.75,000=00. The complainant was put to lot of mental agony and is entitled to be compensated by the Ops for deficiency of service. The complainant quantifies the compensation amount payable by the Ops at Rs.2.00 lakhs, thus the Ops are liable to pay to the complainant a sum of Rs.7,75,000=00 in all. 3. After service of notice, the 1st OP did not appear and he was called out absent and he has been placed exparte. The Ops no.2 and 3 have appeared through their counsel, but the 3rd OP has alone filed the version, no version of the 2nd OP is filed. 4. The averments of version of the 2nd OP can be stated as under: The complaint of complainant is not maintainable either in law or on facts and it is liable to be dismissed. The 3rd OP institute is primarily a super speciality postgraduate institute established by the Government of Karnataka and it is an autonomous body of the Government of Karnataka and it is registered under the Karnataka Societies Registration Act 1960. The Governing Council of this institute is headed by the Chief Minister, Govt. of Karnataka and it has been dedicated to the nation on 9-4-2007. The institute at present has 162 beds and is equipped with the latest modern technology to meet any exigencies and offers special treatment facilities. Most of its patients are the very poor and the down trodden who are in desperate need of these facilities and treatment but have no money to meet the expenses of this treatment. The main functions of the 3rd OP institute is to provide comprehensive and quality care to nephrology and urology patients, training of post graduate students in the super speciality subjects of Nephrology and urology, treatment of patients in the speciality of nephrology and urology. The courses offered by the 3rd OP institute is M.Ch Urology with an intake capacity of six seats and D.M. Nephrology with an intake capacity of two seats from the academic year 2009-2010 and with the prior permission of the ministry of health and family welfare department, Govt. of Karnataka and Medical Council of India and Diploma courses for Dialysis Technicians is recognized by the paramedical board of the State of Karnataka 50% of the seats are reserved for in service candidates of the State of Karnataka and 50% for students from all India Entrance quota. The mode of selection is through the all India level open entrance examination conducted annually, the students so selected for the course are paid a stipend of Rs.30,000=00 per month for the entire course. The State Government invests a lot on these students by bearing all the expenses on their studies. The 2nd OP at the time of inviting applications for the PG super speciality entrance test 2012 have in their rules and regulations, under the heading admission fee and penalty at sl.no.11 specifically stated as follows: “Any candidates discontinuing the course after joining shall be liable to pay a penalty of Rs.5,00,000=00 to the respective institution”. This rule was consciously introduced as a deterrent to avoid cases like the instant complaint. In their brochure for admission the OP no.3 institute has clearly laid down the terms and conditions, some of which are that after selection and admission a candidate shall execute a bond on a non judicial stamp paper of Rs.200=00 that in the event of the candidate leaving/discontinuing the course of study and failing to complete the course, he shall pay to the institute a sum of Rs.1,00,000=00 and total stipend withdrawn by him during the course of study together with 9% interest p.a. from the date of demand together with all costs, and payment of this caution deposit of Rs.1,00,000=00 will be refunded after successful completion of the course. The complainant being well versed and fully aware of the PG super speciality entrance test 2012 rules and regulations of the 2nd OP and the brochure of the 3rd OP and the complainant was voluntarily accepted the terms and conditions and secured the seat depriving another meritorious candidates of the same. Having done so, now the complainant has secured a seat in his home state, he cannot now resile and seek for refund of leave alone the penalty, but also the caution deposit and the tuition fee. The complainant knew while applying since he has obviously gone through the brochure of the 3rd OP and rules and regulations of the PG super speciality entrance test of 2012 of the 2nd OP. The fact remains that he joined the course on 28-7-2012 in the 3rd OP institute and by leaving the same midway has violated not only the terms and conditions of the bond executed by him and also rules and regulations of the PG super speciality entrance test 2012 of the 2nd OP, and the 3rd OP has rightly as per its rules and regulations collected the fine amount of Rs.5.00 lakhs i.e. Rs.4.00 lakhs and Rs.1.00 lakh being the caution deposit and returned all the original documents. At the time of payment of the same the complainant did not protest and took return of all the original documents without any whisper. Thereafter as an after thought the complainant is now seeking for a refund. There is no provision for the 3rd OP institute to refund the said amount. There is no illegality or legal infirmity in their action of the 3rd OP and same does not merit any interference by this court. There is no deficiency of service, thus the complaint is liable to be dismissed. Having utilized the institute at the time when no one offered him a seat, the complainant is now trying to malign the 3rd OP institute with this frivolous complaint and extract what is not due to him, so it is prayed to dismiss the complaint with cost. 5. So from the averments of the complaint of complainant and version of the 3rd OP the following points arise for our consideration. 1. Whether the complainant proves that, the OPs are negligent and there is deficiency of service on the part of the OPs, in not refunding the amount as prayed in the complaint? 2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to? 3. What order? 6. Our findings on the above points are; Point no.1: In the Negative Point no.2: In view of the negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint Point no.3: For the following order REASONS 7. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced 8 copies of documents with list dated 5-4-2013 and 7 more documents with list dated 19-8-2013. On the other hand, one Dr.Venkatesh, who being the Director of the 3rd OP institute has filed his affidavit by way of evidence and produced one document alongwith written argument and one more document alongwith affidavit of OP no.3. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines. 8. One Dr.Jithin.S.Kumar, who being the complainant has stated in his affidavit that, he joined the Super speciality course with the 3rd OP after securing 2nd rank in the entrance examination conducted by the 2nd OP. He joined the institution of 3rd OP on 28-7-2012 having registered number was MB03026. At the time of joining, he had paid a sum of Rs.1,00,000=00 to the 3rd OP as caution deposit vide DD no.17251979, and he had also paid a sum of Rs.75,000=00 as tuition fee vide DD no.17251978. He submitted to the 3rd OP all the original certificates pertaining to academic qualification as required by the 3rd OP. He also secured 7th rank in the speciality entrance examination held by CEE Kerala State, in the first round of counseling in Kerala; he was placed in the waiting list. He was apprehensive that he may loose the seat obtained by him in the state of Karnataka with the 3rd OP and so, he had no other option but to join the institute of the 3rd OP by paying the amount and submitted all the original documents. When such being position, he was allotted the seat at Trivandrum Medical College Hospital, Kerala State for D.M. Nephrology in the 2nd round of counseling held on 17-8-2012 and he was asked to join the college on or before 25-8-2012. Having secured a seat in his home state he approached the 3rd OP and requested to return back all the original certificates and also issue the relieving order so as to enable him to join Trivandrum Medical college Hospital. But his utter surprise the 3rd OP demanded him to pay an amount of Rs.5.00 lakhs as fine amount for getting back the original certificate and relieving order. He had no other option and being apprehension that he may loose the seat at Trivandrum Medical College Hospital, Kerala State, he was forced to pay Rs.5.00 lakhs to the 3rd OP, and the 3rd OP has issued cash receipt dated 21-8-2012 and the said amount was collected by the 3rd OP against his wish and consent and returned back all the original certificates and relieving order. Thereafter he joined Trivandrum Medical college Hospital for the super speciality course of D.M. Nephrology on the due date. The seat surrendered by him to the 3rd OP was immediately filled up by the next candidate by name Dr.Shankar Verma bearing Reg. no.MB 03020, the said Dr.Shankar Verma joined the institute of 3rd OP on 25-8-2012 and relieved himself on 25-8-2012, within a period of less than one month. Despite the same the 3rd OP did not refund the fine amount collected from him illegally. The 3rd OP did not have the legal justification to collect a heavy amount of Rs.5.00 lakhs as fine amount since no loss was suffered by the Ops no.2 and 3. He gave a representation to the Ops on 28-10-2012 narrating all the facts in details regarding the circumstances under which he was forced to pay the fine amount and called upon the Ops to refund the fine amount paid by him. But the Ops did not respond to the representation, thereafter he got issued legal notice, but the OP has failed to refund the amount. After receipt of the notice, the Ops cannot take shelter under the brochure or application form since the penalty collected from him is beyond any reasonable comprehension and against the directives issued by the Govt. of India, Ministry of Human Resource Development Department, and Department of Higher Education. So the 3rd OP is not justified to collect the heavy penalty amount from him Since, he was a meritorious students, and the 3rd OP ought to have become generous and refunded the amount, so he has come up with the present complaint, so the complaint be allowed and pass an order as prayed for. 9. Let us have a look at the relevant documents of the complainant. Document no.1 of the complainant list dated 5-4-2013 is copy of allotment letter of the OP dated 23-7-2013 addressed to the complainant stating that, the complainant is selected for admission to DM Nephrology course at Institute of Nephro Urology, Fort, Victoria Hospital campus, Bangalore for the year 2012-13 and directed to join the course on or before 28-7-2012 with all original documents and prescribed fee. Document no.2 is the copy of official memorandum of OP no.3 dated 2-8-2012 wherein the name of complainant is at sl.no.5 and date of joining is mentioned before his name as 28-7-2012. The complainant has produced two copies of cheques for Rs.1.00 lakh and Rs.75,000=00 drawn in the name of 3rd OP towards tuition fee and caution deposit. Document no.4 is the copy of official memorandum of 3rd OP dated 21-8-2012 addressed to the complainant, relieving him from the super speciality DM Nephrology course on 21-8-2012, the said memorandum is annexed with the receipt of the OP for having collected Rs.5.00 lakhs as penalty wherein they have deducted Rs.1.00 lakh paid by the complainant as caution deposit out of Rs.5.00 lakh and issued receipt for Rs.5.00 lakh to the complainant. Document no.5 is the copy of representation letter of complainant given to the 3rd OP praying to refund Rs.5.00 lakhs collected towards penalty. Document no.6 is the copy of legal notice issued to the OP by complainant’s lawyer dated 1-1-2013 to refund Rs.5.00 lakhs, failing which the complainant will approach competent court for recovery. Remaining documents of the said list of complainant are postal acknowledgment cards of the OP. The complainant has produced the original allotment order of OP dated 23-7-2012, official memorandum, copies of two cheques for Rs.1.00 lakhs and Rs.75,000=00 and one original receipt for Rs.4.00 lakhs collected towards penalty, relieving order of the complainant and one circular issued by the Govt. of India, Ministry of Human Resource Development, Department of Higher Education giving guidance that institution and universities to refund the amount to the candidates who were admitted to technical education. This is all about the material evidence of the complainant. 10. Let us have a cursory glance at the material evidence of the 3rd OP. One Dr.G.K.Venkatesh, who being the director of the 3rd OP has stated in his affidavit that, their institute is primarily a super speciality postgraduate institute established by the Government of Karnataka on 19-1-2004 and partially funded by the Govt. of Karnataka. It is a not profitable premier organization which promotes health care services in the field of Nephrology and Urology with special impetus to down trodden, very poor and needy as well as imparting specialized education in the super speciality fields of Urology and Nephrology. It is an autonomous body of the Government of Karnataka and it is registered under the Karnataka Societies Registration Act 1960. The institute has been dedicated to the nation on 9-4-2007. The institute has to primarily follow the directions given by the controlling bodies like Govt. of Karnataka, Rajiv Gandhi University of Health Sciences and the Governing Council of this Institute. The institute at present has 162 beds and is equipped with the latest modern technology to meet any urgent immediate exigencies and offers special treatment facilities to anyone who wishes to avail the same. Most of its patients availing the facilities in the institute are the very poor and the down trodden. The mode of selection for MCh. (Urology) and DM (Nephrology) students is through the all India level open entrance examination conducted annually. 50% of these seats are reserved for in service candidates and 50% for students from the all India entrance quota. The students so selected for the course are paid a stipend of Rs.30,000=00 per month for the entire course as per the directions of the Govt. of Karnataka as well as the Governing Council of this institute. The 2nd OP at the time of inviting applications for the PG super speciality entrance test 2012 have in their rules and regulations, under the heading admission fee and penalty at sl.no.11 stated as under: “11.(2) Any candidates discontinuing the course after joining shall be liable to pay a penalty of Rs.5,00,000=00 to the respective institution”. In this brochure for admission they have clearly laid down the terms and conditions, some of which are that after selection and admission a candidate shall execute a bond on a non judicial stamp paper of Rs.200=00 that in the event of the candidate leaving/discontinuing the course of study and failing to complete the course, he shall pay to the institute a sum of Rs.1,00,000=00 and total stipend withdrawn by him during the course of study together with 9% interest p.a. from the date of demand together with all costs, and charges and expenses. The caution deposit so taken from the students is refunded by this institute only on completion of the course. In case of students who discontinue the course before completion or a student voluntarily surrendering the seat for any reason, it has been clearly announced in the Rajiv Gandhi University of Health Sciences brochure of PG super speciality entrance test 2012 that they shall pay a penalty of Rs.5.00 lakhs and the caution deposit of Rs.1.00 lakh so paid is adjusted towards the penalty amount of Rs.5.00 lakhs. The complainant being well versed and fully aware of the PG super speciality entrance test 2012 rules and regulations of the 2nd OP and the brochure of their institute, applied for and appeared for the test and secured the seat and signed the bond agreeing for all the terms and conditions and got himself admitted to the institute. Nothing was forced on him and nothing was demanded from him and the complainant voluntarily accepted the terms and conditions and secured the seat depriving another meritorious candidate of the same. Having done so, now he has secured a seat in his home state, he cannot now resile and seek for refund of penalty, but also the caution deposit and the tuition fee. The complainant has joined the course on 28-7-2012 in their institute and by leaving the same midway has violated not only the terms and conditions of the bond executed by him and also rules and regulations of the PG super speciality entrance test 2012 of the 2nd OP, so the institute has rightly as per its rules and regulations collected the penalty amount of Rs.5.00 lakhs i.e. Rs.4.00 lakhs and Rs.1.00 lakh being the caution deposit and returned all the original documents to the complainant to join his newly offered seat in the Kerala State. The complainant has paid the penalty without any reservations and with full consent and knowledge. There is no provision in their institute to refund the said amount, their institute has rightly collected the amount and there is no illegality or legal infirmity in their action and there is no deficiency of service on their part, so the complaint be dismissed with cost. 11. The OP has produced one copy of letter of complainant dated 21-7-2012 to the 3rd OP stating that, he has joined for DM Nephrology course on 28-7-2012, now he has been selected for the same course in Kerala State Entrance Examination, and he has been directed to report with original documents and relieving order from the previous institute, so he would like to surrender seat here and pay the penalty of Rs.5.00 lakhs as mentioned in RGUHS prospectus, since he had already paid Rs.1.00 lakh to the institute and he shall pay the remaining amount Rs.4.00 lakh and that letter bears signature of complainant and on the back page of that letter the complainant has put signature stating that, he received the original documents on 21-8-2012. The Ops have produced one prospectus of PG super speciality entrance test 2012 issued by the RGUHS, Karnataka containing inform action about calendar of events, application form, entrance test fee alongwith terms and conditions of the course wherein under heading of admission fee and penalty, it is stated as follows: “11. ADMISSION FEE AND PENALTY: (2) Any candidate discontinuing the course after joining shall be liable to pay a penalty of Rs.5.00 lakhs to the respective institution”. 12. The evidence of the 3rd OP that, in view of discontinuing the course by complainant after getting admission and joining the course in Kerala, they collected Rs.5.00 lakhs as penalty as per terms and conditions of Rajiv Gandhi University of Health Science, Bangalore stands corroborated by the terms and conditions no.11 of documents produced by the Ops which is styled as prospectus of Rajiv Gandhi University of Health Science, Bangalore i.e. PG Super Speciality Entrance Test 2012. 13. On making careful scrutiny of the case of complainant on the back ground of oral and documentary evidence of both parties, it is vivid and clear that, the complainant has appeared for PG Super Speciality Entrance Test 2012 and got through examination test and secured seat and joined the course on 28-7-2012 in the institute of Ops and attended the class up to 21-8-2012. On 21-08-2012 the complainant gave an application to the 3rd OP and surrendered the seat with full knowledge of terms and condition of Rajiv Gandhi University of Health Science prospectus and stated further in the application dated 21-8-2012 that, he will pay penalty of Rs.5.00 lakhs as mentioned in Rajiv Gandhi University of Health Science prospectus. Since he had already paid Rs.1.00 lakh and he shall pay remaining amount Rs.4.00 lakhs in cash, and accordingly he paid the amount to the 3rd OP and the 3rd OP has issued receipt to the complainant for having collected Rs.5.00 lakhs as penalty and taken back all original documents from the Ops and joined the course at Kerala State. Thereafter on 5-4-2013 the complainant has come up with the present complaint stating that, the act of the 3rd OP in collecting Rs.5.00 lakhs is illegal, so order be passed against the Ops to refund a sum of Rs.7,75,000=00 i.e. Rs.5.00 lakhs collected as penalty, Rs.75,000=00 towards tuition fee and Rs.2.00 lakhs as a compensation. But unfortunately no clear and tangible material evidence is placed by the complainant to establish that, the act of the 3rd OP in collecting penalty of Rs.5.00 lakhs from him is illegal. Having not produced believable documentary evidence it is inequitable and unjust to hold on solitary testimony of the complainant that, the act of the 3rd OP in collecting penalty is illegal and unethical. 14. The material evidence placed by complainant before this forum in this regard is lacking in its credibility. On the other hand, the 3rd OP has acted strictly in accordance with the terms and conditions of prospectus of Rajiv Gandhi University of Health Science and collected penalty of Rs.5.00 lakhs from the complainant, as the complainant has discontinued the course and joined in the institute of 3rd OP and joined the same course in Kerala State after securing his seat voluntarily and as such, we are of the view that, the oral and documentary evidence of Ops are more believable trustworthy and acted upon than the material evidence of complainant. The complainant who voluntarily accepted the terms and conditions of the 2nd OP institute while applying for PG course and secured the seat of OPs and got himself admitted to PG course after paying caution deposit and tuition fee and attended the classes nearly for about one months. Since, the complainant secured for doing same PG course in his native state, he surrendered the seat voluntarily and paid penalty as per terms and conditions of prospectus of Rajiv Gandhi University of Health Science by giving application dated 21-8-2012 to the 3rd OP. In fact, the penalty of Rs.5.00 lakhs imposed by the 3rd OP is in consonance with terms and conditions of Rajiv Gandhi University of Health Science and there is no negligence or deficiency of service on the part of the OPs as such. The complainant has utterly failed to prove with documentary evidence that the act of the 3rd OP in collecting penalty from him is illegal and there is negligence or deficiency of service on the part of the Ops in not refunding the amount as prayed in the complaint. Due to paucity of material evidence, we are inclined to come to straight conclusion that, the complainant who comes to the forum seeking relief has become unsuccessful to prove this point satisfactorily, and accordingly, we answer this point in a negative. 15. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order. ORDER The complaint of the complainant is hereby dismissed. No cost. Supply free copy of this order to both parties. (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 11th day of February 2014). MEMBER PRESIDENT |
