Karnataka

Bangalore 4th Additional

CC/13/448

S.Sindhu D/o Shivakumar - Complainant(s)

Versus

Institution Adress Director Don Bosco Institute of Bio Science - Opp.Party(s)

Inperson

29 Nov 2017

ORDER

Complaint filed on: 22.02.2013

                                                      Disposed on: 29.11.2017

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.448/2013

DATED THIS THE 29^TH NOVEMBER OF 2017

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

S.Sindhu

D/o Shivakumar

#768, 9^th Main Road,

3^rd stage, 3^rd block, Basaveshwaranagar,

Bengaluru-79.

 

By Adv.Sri.R.A.Kulkarni      

 

V/s

Opposite party/s

Respondent/s:-

 

1. Institution Address:

Director

Don Bosco Institute of

Bio Science and

Management Studies, Kumbalgodu,

Mysore Road,

Bengaluru-74.

 

Management Address: Wayanamac Education Trust, #475, 39 C Cross,

9^th main, 5^th block,

Jayanagar,

Bengaluru-41.

1. Sri.B.Bylappa, Chairman
2. Sri.P.B.Manjunatha,

   Vice President

3. Sri.B.Raghav, Secretary

 

By Advocates M/s.Agraa Legal

 

2. The Administrator,

Karnataka Examination Authority, 18^th cross,

Sampige Road,

Malleshwaram,

Bengaluru-12.

 

By Adv.Sri.M.V.Naveen Reddy       

 

 

ORDER DELIVERED BY PRESIDENT

SRI.S.L.PATIL

 

            This complaint is filed by the Complainant against the Opposite parties no.1 & 2 (herein after referred as Op.no.1 & 2 or Ops) requesting to issue directions to them to refund fees paid by her i.e. PG-CET fees Rs.54,390/-, college’s fees Rs.24,050/- and blazer fees Rs.3,500/-.

 

          2. The brief facts of the case of the Complainant are that she got an admission for the MBA seat in the college of Op.no.1 as she was selected by PG-CET allotted category general merit. With interest she joined to the college of Op.no.1. Due to unavoidable circumstances i.e. suddenly unhealthy condition of her father who being unemployed, hence she decided to discontinue the studies in Op.no.1. Soon after her admission in the college of Op.no.1 for MBA she has attended two days classes. After that she has submitted an application regarding the cancellation of the admission with the Op.no.2 as there was no proper earnings in her family. Her father has been retired facing number of health problems daily, he got operated with bone dislocation always leg pain and her mother also undergone brain nerve surgery about six months back. It is the further case of the Complainant that she has to look after her parents as her family hails from an average lower middle class family and unable to bear financial loss. Hence she intends to seek job for eaking the livelihood. Under these circumstances she approached the Ops for refund of the amount paid by her and also to get return her marks cards for the Ops but they did not respond. But any how after the repeated requests, she got received the marks cards. As the request was turned down by the Op.no.1 & 2 in respect of refund of her fees, hence she has constrained to file this complaint against the Ops.

 

          3. At the first instance, the Complainant has filed this instant complaint only against the Op.no.1, then she got impleaded Op.no.2. On receipt of the notice, Op.no.1 & 2 did appear and filed separate versions. The sum and substance of the version of the Op.no.1 are that the complaint filed by the Complainant is not maintainable, since there is no any cause of action to file this complaint. So also there is no any deficiency of service on the part of it. It is not disputed by the Op.no.1 that it is an education institution and the Complainant was the student in the said institution and the student does not come within the meaning of consumer as defined in the CP Act and the education provided by the individual institution cannot be considered as the service and hence on these grounds, the complaint filed by the Complainant is liable to be dismissed. The Op.no.1 has taken specific contention that the complaint is bad for non-joinder of necessary party. This lacuna has been rectified by the Complainant by adding Op.no.2 as one of the necessary parties. It is the specific contention of the Op.no.1 that the Complainant has sought for the refund of PG-CET fee, college fee and blazer fee totally amounting to Rs.81,940/-. Op.no.1 not liable to pay any amount claimed by the Complainant as an amount of Rs.54,390/- was paid by the Complainant to the Karnataka Examinations Authority (herein after referred as KEA). The said amount is retained by the KEA i.e. Op.no.2. As a matter of procedure, the amount will be released by the KEA to the college only after due completion of the admission procedures by the concerned candidate. Since, the Complainant remained absent and failed to complete her admission procedures, the KEA has thus far not released any amount in favour of the Op.no.1 with respect to that particular candidate.  If the Complainant has any grievance she has to claim the said amount of Rs.54,390/- from KEA. With regard to the college fees Rs.24,050/- and the University admission approval fee of Rs.2,760/- paid by the Complainant to the Op.no.1, the same cannot be refunded to her as the Op.no.1 college has lost one seat which could have been alloted to another meritorious student. If ordered to pay the said amount to the Complainant, the Op.no.1 college would suffer financially for no fault of it. With regard to the additional amount of Rs.3,500/- paid by the Complainant is towards blazer fee. On being enquired with regard to the absent of the Complainant to the college, the Complainant informed that she would start attending eventually without giving any reasons. Hence believing the words of the Complainant as true and correct and did not even allot her seat to any other candidate. After a long delay, the Complainant suddenly informed her decision to discontinue her studies and demanded her fees back. Since the Op.no.1 did not allotted the Complainant’s seat to any other candidate, it incurred a loss and the seat allotted to the Complainant has now remained vacant for the entire duration of the MBA course started during the academic year 2012.13. Further it is the case of the Op.no.1 that due to the said attitude it has sustained financial loss. If the Complainant would have been informed her decision at the earlier her seat could have been allotted to another meritorious student. It is also stated by the Op.no.1 that candidates are given liberty to select the seat of their choice in various rounds such as the admission round, casual vacancy round etc., The admission starts with the ‘admission round’ wherein the candidates are given the liberty to choose a seat of their choice in the order of their merit. After they select their seat, the candidates should pay the prescribed fee. Since the Complainant was alloted the seat under general merit to the college of the Op.no.1, accordingly she has paid the necessary fees for admission. In this context there is no any fault found with Op.no.1. When the student are selected in the casual vacancy round for the first time should invariably submit the required documents in original along with one set of photocopies and prescribed fees without fail. The candidates who select casual vacancy seats should invariably report to the respective colleges along with all original documents and the admission order issued by KEA, well within the last date prescribed in the admission order. If a candidate does not surrender the seat to KEA during casual vacancy seat selection round before the turn comes, he/she is deemed to have got admitted to the seat selected by him/her selected in either of the rounds. However, if a candidate decides to surrender the seat, he/she has to surrender the seat only to KEA. Merely not reporting to the selected college should not be presumed by the candidate that he/she has surrendered the seat to KEA. In the first instance casual vacancy round will be held for physically disabled candidates. Then the casual vacancy round will be held for general merit and for all the reserved category candidates.  This being the procedure knowing fully well that the Complainant has opted MBA seat in the college of Op.no.1 in the allotment process of the Op.no.2. The Op.no.1 specifically stated the relevant rules framed regarding the forfeiture and refund of the fees. The relevant rules reads thus:

(INK page 18 A NOTE ON REFUND AND FORFIETURE OF FEE)

          (1) ‘In the case of a candidate who cancels/surrenders the seat selected in the admission round, before the turn of such candidate in the casual vacancy round, the Executive Director, KEA shall forfeit an amount of 50% from the fee paid by him/her and refund the remaining amount to the candidate, in the form of account payee cheque through Indian bank, KEA extension counter. (Account payee cheque will be issued only in the name of the candidate).

 

          (2) In the case of a candidate who cancels/surrenders the seat after such candidate’s turn in the casual vacancy round, the Executive Director, KEA shall forfeit 100% of the fee paid by the candidate.

 

          (3) The fee paid in the casual vacancy round, will not be liable to be refunded, in case of cancellation/surrender of the same by the candidate. A candidate who selects a casual vacancy seat and does not join the college concerned shall not be entitled for refund of deposited fees, which shall be forfeited by the Executive Director, KEA.

 

          (4) In the case of a candidate who does not surrender, cancel or fails to join the college/course allotted, even after the completion of the casual vacancy round, then the Executive Director, KEA shall forfeit the entire amount paid as fees by the concerned candidate.

 

          (5) In the case of a candidate who claims the refund with regard to the excess fee remitted by him/her should claim such amount on or before 31.03.2013, failing which, the Executive Director, KEA shall forfeit such excess fee amount paid by the concerned candidate.’

 

With reference to the above rules stated that the Complainant selected her seat in the casual vacancy round. Thus, the fee paid by her is not liable to be refunded in view of points mentioned above.  It is also stated that the fees paid by the Complainant would be forfeited by the Executive Director, KEA. When such being the fact it is not just and proper to direct the Ops to refund the fees to the Complainant. On these grounds and other grounds prayed for dismissal of the complaint.

 

          4. Op.no.2 filed the version to some extent reiterating the contents of the version of the Op.no.1 stating that under the casual vacancy round and also under the general merit category, the seat has been alloted to the Complainant by the Op.no.2 to get admission in the college of Op.no.1 by paying the prescribed fee. This fact specifically stated in para 3 of its version. Further it is stated that there is no any laxity on the part of the Op.no.2 much less the Op.no.1 in respect of the allotment of seat under general category. It is also stated that the Complainant is not entitled for refund of fee. Moreover, there is a procedure to obtain the signature of the parent or guardian of the student who got cancelled their seats after their turn in casual vacancy round as prescribed in Rule 12(2) of the ‘Karnataka Selection of Candidate for Admission to Government Seat in Professional Institution Rules of 2006’. The Complainant is very much aware of the above said fact. Hence, the Complainant is not entitled for any of the relief sought for. Accordingly prayed for the dismissal of the complaint.

 

          5. The Complainant so as to substantiate her case has filed affidavit evidence and got marked the documents as Ex-A1 to A11. Vice President and Executive Director of Op.no.1 Sri.P.B.Manjunath filed his affidavit evidence and got marked the document as Ex-B1. Administrative officer of Op.no.2 Sri.S.N.Gangadharaiah filed his affidavit evidence and got marked the documents Ex-B2 to B4. We heard both side and also placed reliance on the written arguments filed by respective parties, so also the available materials on record.  

 

6. The points that arise for our consideration are:

1. Is there any deficiency of service on the part of Ops ?
2. Whether the complainant is entitled for the relief sought for ?
3. What order ?

                  

           

 

7.  Our answers to the above points are as under:

 

Point no.1: In the Negative.

Point no.2: In the Negative. 

Point no.3: As per the final order for the following

         

REASONS

 

          8. Point No.1: The undisputed facts which reveals from the pleadings of the parties goes to show that the Complainant has got MBA seat in the college of Op.no.1 selected by PG-CET alloted category in general merit. Accordingly she got admitted in the college of Op.no.1 by paying the requisite fees. It is also not in dispute that soon after the allotment of the casual vacancy seat in MBA, she did not informed either to cancel of the said seat or to surrender the said seat to Op.no.2. It is also not in dispute that she has attended 2 days class in the college of Op.no.1 for pursuing the MBA course.

 

          9. The refund of fees paid by the Complainant is on account of her father ill health as her father has been already retired and health condition of her mother also not good. In this context she has produced one document marked as Ex-A10 which is the consultation appointment by one Dr.S.Janardhan. Ex-A11 is the photo of her parents. These documents are not in dispute. Now the question that crops for our consideration is whether is there any deficiency of service on the part of the Ops ? In our opinion, there is no any deficiency of service on the part of the Ops. We already stated that in casual vacancy seat, the Op.no.2 allotted the MBA seat to the Complainant in the college of Op.no.1. In response to it, she has taken an admission by paying the requisite fees. She has also attended the college for 2 days. Thereafter she sought for the refund of fee paid by her.  The some of the recommendation made by the Chairman Monitory Committee to the Ops cannot be taken in to consideration, since those recommendations are contrary to the rules and regulations of the Op.no.2 much less the Op.no.1. In this context, we will discuss little later. Before that we will have to place reliance on the 3 citations furnished by the Complainant in support of her claim, so also the decision cited by Ops. The decision cited by the Complainant reported in (I) IV (2007) CPJ 409 if of Tamil Nadu State Consumer Disputes Redressal Commission, Chennai in the case of the Sri Ganga Higher secondary school Vs C.Nithya, wherein it is held as under:

                   Consumer Protection Act, 1986 – Sections 2(1)(g)  and 14(1)(c) – Education –fees refund – Complainant studied in school for 19 days – stopped voluntarily – refund of 1/3^rd of amount paid by Complainant plus cost awarded by forum – order upheld in appeal. Result: Appeal dismissed.

 

(II) The decision reported in IV (2009) CPJ 234 (NC) in the case of GGS Indraprastha University Vs Vaibhav, wherein it is held as under:

Consumer Protection Act, 1986 – Section 21(b) – education – fees – non refund of – withdrawal of admission applied – fee refund declined – contention, last date for withdrawal and fee refund already over – Rs.4,500/- out of Rs.20,000/- refunded – complaint allowed by forum – refund of balance Rs.15,500/- directed – compensation and cost reduced in appeal – seat vacated by Complainant remained vacant, not proved – no loss caused to Op – no interference required in revision.

 

(III) The decision reported in IV (2008) CPJ 247 (NC) in the case of MVJ College of engineering Vs Tukaram Rao, wherein it is held as under:

Consumer Protection Act, 1986 – Sections 2(1)(g)  and 14(1)(c) – educational services – fees- refund of –student admitted in engineering college – secured seat in another college through CET examination – deposited fee not refunded by college – complaint allowed by forum – appeal filed – institutions not covered under CET start admission process much ahead CET admissions – knowing fully well that bright students will leave institution once selected under CET process – this amounts to unfair trade practice – as per circular issued by University grans commission, educational institutions directed to refund money, if candidate secures admission through CET, in other college – classes not attended for single day – appeal dismissed by State Commission – no interference required in revision.

 

          10. The Ops have relied on the decision reported in AIR 2010 Supreme Court 93, in the case of Bihar school examination board Vs Suresh Prasad Sinha.

(A) Consumer Protection Act (68 of 1986) S.2(1)(o), (d) – service –school examination board – discharging statutory function – not a service provider – examinee is not a consumer.

 

School examination board is not a service provider and a student who takes an examination is not a consumer and consequently, complaint under the Act will not be maintainable against the board. The board is a statutory authority. The function of the board is to conduct school examinations. This statutory function involves holding of periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. When the examination board conducts an examination in discharge of its statutory function, it does not offer its ‘services’ to any candidate. Nor does a student who participates in the examination conducted by the board, hires or avails of any service from the board for a consideration. Participation by a student in a general examination conducted by the board is to ascertain whether he is eligible and fit to be considered as having successfully complete the secondary education course. The process is not, therefore, availment of a service by a student. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. The complaint filed by father of examinee for failure of board to declare result of his son was not maintainable.

 

We placed reliance on the said decisions. Now we will have to discuss the decisions cited on behalf of the Complainant reported in IV (2007) CPJ 409. In the said decision there was a laxity found on the part of the school in respect of providing better food, hence, the Complainant therein was fell ill. In this context, it was held that there was a deficiency of service. Accordingly, the relief has been granted. In the instant case, it is not the case of the Complainant that she was fell ill and not in a position to continue the study in the college of Op.no.1.  Hence this decision will not come to the aid of the Complainant. Coming to the decision reported in IV (2009) CPJ 234 (NC), in this case, the seat vacated by the Complainant therein remained vacant has not been proved by the Ops therein. In this context, it was come to the conclusion that there was no any monetary loss to the Ops therein, but in the instant case the Op.no1 & 2 have taken specific contention that the casual vacancy seat alloted by the Op.no.2 to the Complainant is still vacant, as she did not attended the college except 2 days. Hence, we are of the opinion that the facts of the cited decision are different to the present facts of the case. With regard to the another decision reported in IV (2008) CPJ 247 (NC), wherein before allotment of the seat in CET, the admission process has been over by college but the Complainant therein secured seat in other college through CET examination. When the seat has not been alloted through CET in the said college, in this context, it was ordered to refund fees & the relief has been granted. Hence this decision is not come to the aid of the Complainant as casual vacancy seat has been already alloted to her from the Op.no.2 to the Op.no.1. Now coming to the decision cited by the Ops reported in AIR 2010 Supreme Court 93, wherein the Hon’ble Supreme Court clearly held that the School examination board is not a service provider and the student who takes the examination is not a consumer and consequently the student under the Act will not be maintainable against board. Further hold that the board is a statutory authority. The functions of the board is to conduct school examination. In the instant case the exam has been conducted by Op.no.2 i.e. CET, wherein the casual vacancy seat has been alloted to the Complainant in the college of the Op.no.1 for MBA. Hence we do not find any deficiency of service on the part of Op.no.2.

 

          11. Further, the fees so for paid by the Complainant is not refundable in view of the specific clause under the rules as stated in the objection statements filed by the Op.no.1 & 2 and also in the written arguments. The said rules specifically states with regard to the cancel/surrender of the seat. In the instant case, the Complainant neither cancelled nor surrendered the seat alloted to her in the casual vacancy round. Hence we are of the opinion that the complaint filed by the Complainant is divide of merits and liable to be dismissed. Accordingly we answered the point no.1 in the negative.

 

          12. Point no.2: In view of the findings on the point no.1, we come to the conclusion that there is no deficiency of service on the part of the Op.no.1 & 2. Further in the light of the decision reported in AIR 2010 Supreme Court 93, the functions of the Op.no.2 in respect of conducting the CET examination is in respect of discharge of its statutory functions and it has not offered its services to any candidates. Hence the complainant is not entitled for any of the relief sought for.

 

13. Point no.3: In the result we passed the following.

 

          ORDER

 

          The complaint filed by the Complainant is hereby dismissed.

 

2. Looking to the circumstances of the case, we directed both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties. 

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 29^th November of 2017).

                                                                        

(SURESH.D)          MEMBER

(ROOPA.N.R)    MEMBER

(S.L.PATIL)  PRESIDENT

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Ms.S.Sindhu, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Acknowledgement issued by KEA dtd.29.09.12
Ex-A2	Admission order issued by KEA dtd.16.10.12
Ex-A3	Receipt issued by Op 1 dtd.19.10.12
Ex-A4	Letter issued by KSPCAMC to Op 1 dtd.01.01.13
Ex-A5	Letter issued by KSPCAMC to Op 1 dtd.11.01.13
Ex-A6	Letter issued by Complainant to Forum dtd.18.02.13
Ex-A7	Original letter issued by KEA dtd.24.09.13
Ex-A8	Letter of Complainant to KEA dtd.20.10.12
Ex-A9	Letter of Complainant to Forum dtd.22.04.13
Ex-A10	Medical certificate of father dtd.15.04.13
Ex-A11	Photo of father

 

2. Witness examined on behalf of the Opposite party/s

by way of affidavit:

 

Sri.P.B.Manjunath, who being the Vice President & Executive Director of Op.no.1 was examined. 

Sri.S.N.Gangadharaiah, who being the authorized signatory of Op.no.2 was examined. 

 

Copies of Documents produced on behalf of Op.no.1

 

Ex-B1

Extract of the relevant rules framed by the KEA – seat allotment process

 

Copies of Documents produced on behalf of Op.no.2

 

Ex-B2	Original prospectus for CET 2012
Ex-B3	Extract of seat allotted status
Ex-B4	Notification dtd.20.10.12

 

 

(SURESH.D)          MEMBER

(ROOPA.N.R)    MEMBER

(S.L.PATIL)  PRESIDENT