KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO. 746/11

JUDGMENT DATED :31.05.2012

PRESENT:

SHRI. S. CHANDRA MOHAN NAIR                  :  MEMBER

SMT. A. RADHA                                                 :  MEMBER

The Principal, Good Shepherd Modern-

English School, Palunda,

Chungathara, Nilambur,

Malappuram District.                                           :  APPELLANT

Vs

1.      Hamsa P., Pallisseary House,

          Mamankara, Kambalakkallu P.O.,

          Nilamboor, Malappuram Dist.

2.      The Chief Executive & Secretary,           :  RESPONDENTS

          Council for the Indian School Certificates

          Examination, Pragathi House, 3^rd Floor,

          47-48, Nehru Place, New Delhi – 110019.      

(R1 by Adv. T.L. Sreeram)

JUDGMENT

SMT. A. RADHA : MEMBER

          This appeal is preferred against the order dated 14.9.2011 in CC No.161/11 of the CDRF, Malappuram directing the 1^st opposite party to issue fresh TC of the student showing his Character as good, to rectify the mistake in the date of birth and to pay Rs.2,00,000/- as damages and Rs.2,000/- as litigation charges to the complainant.

2.      The complainant’s son Muhammed Ismayil after successful completion of 10^th standard requested the 1^st opposite party to issue transfer certificate with related documents for admission for Plus 1 in another school. It was the further submission that the complainant at the time of admission sought for a correction in the date of birth in the certificate which was mistakenly noted in the school records. The 1^st opposite party demanded Rs.39,000/- towards fees for plus 1 and plus 2 in order to issue transfer certificate which was not amenable to the complainant. The demand for fees was under the guise of an undertaking procured from the complainant during the admission time. The complainant alleged that the undertaking was a manipulated one. The non-issuance of transfer certificate amounted to deficiency of service which was a hurdle to the future of the student to continue his further studies and filed complaint for getting the transfer certificate with related records and for compensation of Rs.50,000/- and cost of Rs.2,000/-.

          3.      During the pendency of the proceedings the complainant filed IA 206/2011 for issuance of transfer certificate to his son and an  interim order was passed by the Forum below to issue the transfer certificate. While issuing the transfer certificate the character of the student was shown as Bad. This was also challenged by the complainant.

          4.      The 1^st opposite party filed version contending that at the time of admission to the 7^th standard an Undertaking was given by the parents that they will continue education of their child upto 12^th standard and in case the student leaves the institution before completion of 12^th standard the entire fees upto the 12^th standard would be paid. This condition was incorporated in the school prospectus. Those who left the school in between the academic year had paid the entire fees and accepted the TC and mark list etc. It is also contended that the school is registered under Charitable Trust and is not making any profit. The discontinuance of the student will affect the financial viability of the school. The other contention is that no proper application for the transfer certificate was submitted by the complainant. The Date of birth of the student was entered by the previous school where the child studied. It is also contended that the 2^nd opposite party was to correct the date of birth.

5.      The evidence consisted of proof affidavit filed by the complainant and Exts. A1 to A10 marked on behalf of the complainant. The evidence of the 1^st opposite party consisted of Ext. B1 to B5.

6.      On appreciation of evidence the Forum below allowed the complaint and ordered the 1^st opposite party to issue a fresh TC showing the Character as ‘Good’ and related documents within a month along with damages and cost. This order was challenged before the State Commission in appeal. A stay was issued by the State Commission with respect to the payment of compensation only. This was taken up in revision before the Hon’ble National Commission wherein the revision petitioner sought permission to withdraw the revision petition which was allowed in RP 302/12. The petitioner submitted that the transfer certificate as directed had already been issued but the certificate for changing the date of birth of the complainant cannot be issued. The petitioner withdrew the petition with liberty to approach the State Commission with appropriate application for modification of the order or further relief.

7.      When this appeal came up for hearing the appellant submitted before us that at the time of admission an Undertaking was given by the parents to pay the entire fees in case the student leaves the school before completing the 12^th standard. The complainant’s son completed 10^thstandard and now he requested for the transfer certificate to join in another school. The prospectus of the school stated that “the students who leave the school when they are in the VIII, IX, X, XI or XII should pay the entire fees for all the other   years.  (Fees for all five academic years). The same rule is applicable for those joining the XIth standard.” Further he has to apply for the TC before the 5^th March. This school was registered under the Charitable Trust and it is not a profit making body and this will not come under the Consumer Protection Act. He has also submitted that the institution will be put to financial loss if any of the students leave the school in between the academic year. The complainant had to pay the fees for Plus 1 and Plus 2 classes only on the ground that the financial payments for the teaching staff is made from the fees collected from the students. The reason stated by appellant was that the shortage of number of students in the class will affect the functioning of the school and the financial viability of the institution. Moreover, the parents at the time of admission of the child have signed undertaking to the effect that if student discontinues from any division, the entire fees will have to be paid by the students. This was specifically published in the prospectus of the school. The TC will be issued only after the payment of entire fees for the plus 1 and plus 2 which is a binding contract between the parties. The violation was not permitted as it would affect the functioning of the whole institution as such. It is also submitted that there is no fees charged for transfer certificate and moreover the complainant had not submitted proper transfer certificate application form. Regarding the damages and costs the appellant prayed for setting aside the order of the Forum below on the ground that no unfair trade practice can be alleged against the appellant as the school was working on non- profit basis.

8.      The counsel for the respondent submitted before us that when the complainant approached for the TC the appellant demanded the entire fees for the plus 1 and plus 2 classes for which no service was availed. The complainant’s son joined in another school as it was difficult to follow the syllabus of the present school and curriculum was very tough for the child. The undertaking given by the complainant was also denied. The complainant applied for TC on 18.3.11 and his results of the 10^th standard came in 18.5.11. It is also contended that the undertaking given by the complainant was a forged one.      T he request for TC was denied by the appellant on the sole ground of non payment of entire fees for plus 1 and plus 2.

9.      Heard both parties. On a perusal of the records we find that the school prospectus for the year 2007-2008 of the appellant produced along with the Appeal Memorandum states that the student is liable to pay the entire fees. It is to be pointed out that the appellant had not rendered any service to the student for the plus 1 and plus 2 classes and no consideration is to be paid for that period. It is also stated in the prospectus that the students who leave the school when they are in the VIII, IX, X, XI or XII should pay the entire fees for all the other years. (Fees for all 5 five Academic years). The same rule is applicable for those joining in the XI standard. It is to be noted that collecting of fees from the students for the service not rendered also amounts to unfair trade practice. The insertion of an illegal condition will not be a binding clause with the students and is unsustainable. We find that no fees can be collected from the students for the period the student had not attended or studied. It is also to be pointed out that the complainant disputed the undertaking given at the time of admission which is not proved properly. If at all any undertaking obtained from the complainant, it is to be presumed that at the time of admission the school authorities are in a dominant position and the student/parent might be under pressure to sign the undertaking in order to join the school. So an illegal act could not be made legal by force or under compelling situations. The TC was issued to the complainant in pursuance of the interim order of the District Forum. The inscription in the TC against the ‘character as bad’ and further noting regarding dues show the arrogance and disobedience towards the order of the Forum below. Nothing was on record to show that the character of the complainant’s son was bad. We find force in the argument of the learned counsel for the respondent that the non-remittance of the entire fees for 2 years was the sole reason for not issuing the TC which resulted in the filing of the complaint before the Forum below by the complainant cannot be attributed to the ‘character – bad’. It is true that the child completed his 10^th standard with 56% marks. Though the Head of the institution is the person to issue the character certificate he is bound to issue a certificate which does not extinguish the future career of a budding innocent child. There is no case pleaded or proved that the character of the child is bad until the issuance of the transfer certificate. There is no complaint against the complainant that he defaulted any payment of the fees upto the 10^th standard. So we find that there is no dues to be paid on account of fees of the complainant’s son and the appellant is directed to issue the fresh TC as ordered by the Forum below.

10.    Now coming to the rectification of the date of birth it is the bounded duty of the educational institution where the student is studying to get rectified the defects crept in the record on production of appropriate documents in order not to affect the future career of the student. TC issued showing ‘Character as Bad’ is without any basis. This act of the appellant led to the loss of an academic year of the child and it is very disgusting and deserves exemplary costs upon the appellant.

11.    The Forum below ordered to pay Rs.2,00,000/- as damages to the complainant whereas the complainant  prayed for compensation of Rs.50,000/- only. We consider it just and proper to award an amount of Rs.20,000/- instead of Rs.2,00,000/-.

12.    We make it clear that we uphold the impugned order passed by the Forum below except the amount awarded as damages which is reduced to Rs.20,000/- instead of Rs.2,00,000/-.

          In the result, the appeal is allowed in part as above.

Office is directed to send a copy of this order to the Lower Forum with the LCR.

A. RADHA   :   MEMBER

S. CHANDRA MOHAN NAIR :  MEMBER

Da