Date of Filing: 06/09/2011
Date of Order: 30/11/2011
BEFORE THE 1st ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 30th DAY OF NOVEMBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.Sc.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO.1651 OF 2011
1. Sri.Dr.S.Rajamanickam,
S/o. Sellappa Gounder,
Aged About 54 years,
Rajaramnagar, Selam-7.
2. Selvi.R.Saranya,
D/o. Sri.Rajamanickam,
Aged About 24 years,
Rajaramnagar, Selam-7.
(Rep. by Sri.V.Ramakrishnan, Advocate) …. Complainants.
V/s
1. The Chairman,
Governing Counsel,
Kempegowda Institute of Medical Sciences,
Bangalore-560 004.
(Rep. by Sri.R.Chandranna, Advocate)
2. The Principal,
Kempegowda Institute of Medical Sciences,
Bangalore-560 004.
(Rep. by Sri.R.Chandranna, Advocate) …. Opposite Parties.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The brief antecedents that led to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Parties to pay Rs.4,92,000/-, are necessary:-
The second complainant was admitted to the opposite party No.2’s college by paying Rs.3,92,000/- towards the tuition fee along with the documents and paid Rs.15,000/- towards the additional deposit and a pay order of Rs.10,000/- to Vokkaligara Sangha. On 01.10.2004 the complainants withdrew their admission and sought refund. All the original documents relating to the admission of the second complainant were handed over to the complainants by the opposite parties after due acknowledgment with an assurance to return the amount within a period of one month. Accordingly the opposite parties have refunded the hostel deposit which they have received, on 19.10.2004 the sum of Rs.15,000/- only and returned the pay order drawn in favour of Vokkaligara Sangha. Rs.3,92,000/- has not been returned. A notice was issued on 23.11.2004. An untenable reply was issued to which the complainant has sought the copy of the alleged receipt which has not been furnished. Hence the action of the opposite party is deficiency in service. Hence they are liable to reimburse Rs.3,92,000/- with interest at the rate of 18% per annum and pay the compensation of Rs.1,00,000/-. This case was originally presented before the Selam District Forum which was allowed on 25.10.2007 which was set asided by the Hon’ble State Commission of the Tamil Nadu in Appeal No.37/2008 on 23.05.2011 and ordered the complainant to represent before the appropriate Forum that is before this Forum. Hence this complaint is presented before this Forum.
2. In this case the 2nd OP has filed a version and the 1st OP has filed a Memo stating that the version of the 2nd OP is his version also. In brief the version of the opposite parties are:-
The complaint is not maintainable. The hon’ble State Commission of the Tamil Nadu had ordered to return the complaint filed by the complainant before the District Forum at Selam for presentation before the appropriate Forum. This complaint is filed before this Forum on 06.09.2011. The original complaint is not Re-presented before this Forum with due endorsement made on the complaint by the Forum at Selam, hence this complaint is belated one. The complainant has not made any application for condonation of the delay. The 2nd complainant was admitted to the 1st year MBBS course under COMEDK ranking 3296 at the opposite party’s college on 28.09.2004 and she paid Rs.3,96,760/- in cash under receipts No.589, 2400 and 2241. As the 2nd OP got secured admission to the 1st year MBBS course in the State of Tamilnadu, she requested for cancellation of her seat and refund of the money and also for return of the documents. Taking sympathy, the opposite party returned the tuition fee in cash and also returned the original documents. The complainant has also surrendered original receipts issued in favour of the 2nd complainant. The complainant has given an acknowledgment on 30.09.2004 in this regard, regarding the documents and the receipt of the money. The seat that fell vacant on account of the cancellation of the 2nd complainant was allotted to another COMEDK student namely Akarshan Mehtha with COMEDK ranking No.5858 who paid the tuition fee in cash and the said amount was paid to the 2nd complainant under the receipt issued and the receipt earlier issued in the name of the 2nd complainant were made over in the name of said Akarshan Mehtha by altering the name of the 2nd complainant to the said Akarshan Mehtha. Thus the entire tuition fee paid was returned to her on 30.09.2004. After taking the entire money and taking the entire records back the complainant has been making wrong false and untenable claim for return of the tuition fee to get unjustly enriched. All the allegations to the contrary are denied.
3. To substantiate their respective cases the 1st complainant has filed purporting affidavit along with all the documents which has been filed by both the parties before the Selam Forum. The opposite party No.1 had filed affidavit. The arguments were heard.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether there is any deficiency in service?
- What Order?
5. Our findings are:-
Point (A) & (B): As per the final Order
for the following:-
-:REASONS:-
Point A & B:-
6. Reading the pleadings in conjunction with the affidavit and documents on record, it is an admitted fact that the complainant No.1 is the father of the complainant No.2 who is his daughter. Opposite party No.1 is the chairmen of the Governing counsel of the KIMS College and opposite party No.2 is its principal. It is also an admitted fact that the complainant No.2 was selected in the COMEDK examination and her ranking was 3296 and because of her COMEDK she was admitted to the 1st year MBBS course in the opposite parties college on 28.09.2004 on which date she has paid under receipt No.2400 Rs.2,810/-, under receipt No.589 Rs.3,86,450/- and under receipt No.2241 Rs.1,500/- towards eligibility i.e., NSSWF, application fee, tuition fee, caution money, sports, magazines and calendar, cultural activities fees respectively. These documents which were filed before the Selam District Forum has been filed by the complainants herein before this Forum. How strange it is! Further it is an admitted fact that the 2nd complainant got a seat in the 1st year MBBS course in her own State that is State of Tamil Nadu and sought cancellation of the seat at the opposite parties college and sought refund of the tuition fee and other fees and also sought return of the original documents. In this regard the complainant at Para-14 has stated thus:-
“The opposite parties accepted the withdrawal of admission as tendered by the complainants. Consequently all the original documents relating to her admissions were handed over to the complainants by the opposite parties after due acknowledgment with an assurance to return the amount within a period of one month opposite pares have received.”
Further the complainants have stated at Para-15 that:-
“In continuation to the promise made by the opposite party they had refunded the hostel deposit, which they had received, on October 19th 2004 which amounted to Rupees Fifteen thousand only and returned the pay order drawn in favour of Vokkaligara Sangha.”
That means as admitted by the complainant the opposite parties have returned the original documents which were given by the 2nd complainant to the opposite parties under an acknowledgment and they have also refunded the hostel amount and the amount paid to the Vokkaligara Sangha. There is no dispute in this regard. The only grievance of the complainant is that the tuition fee is not refunded and the contention per contra is that this tuition fees has been refunded. Hence we have to see whether the tuition fee has been received by the complainants or not in the sense whether the complainant has come to the Forum with unclean hands or not.
7. The complainant has stated that as the complainant withdrew from admission, sought refund of the amount and records, the opposite parties has given the records back after due acknowledgment by them, have returned the other amount but not the tuition fees. That means the complainant admit of execution of receipt regarding the records and of giving receipt by them. The complainant in this regard is very bald. The complainants never stated on what date and month and year they executed the receipt? Whether they executed the receipt and who delivered the records to them and who promised to return the money? That is very bald.
8. The opposite party has stated and sworn to that they have returned the records and all the amount as per receipt dated: 30.09.2004 given by the complainants. The said receipts which were produced by the opposite parties before the District Consumer Forum, Selam was produced by the complainants before this Forum! The said receipt reads thus:-
It was contended during the course of the arguments by the learned counsel for the complainants that the original receipt is not produced by the opposite party before the Consumer Forum, Selam; only copies were produced. This is an untenable and untruth contention raised by the complainants. The original receipt which was produced by the opposite parties before Forum at Selam was produced here before this forum by the complainant himself. How? There is no answer. According to this receipt on 30.09.2004 the complainants had received the entire amount along with the documents. The complainants admit for having acknowledged the receipt for having received documents but contended that the amounts have not been paid. But the receipt clearly proves that the complainant had received the money. This is the receipt executed by the complainant in favour of the opposite parties. There is no other receipt/acknowledgment said to have been executed by the complainants is produced or called by the complainants.
9. It was contended during the course of the arguments by the learned counsel for the complainant that the signatures found in this receipt is forged and does not tally with the other signatures of the complainants. This is an untenable contention. The complainants even before the District Forum at Selam or before this Forum had not sought for appointment of a handwriting expert to compare the admitted signatures of the complainants with this receipt. The specimen signatures of the complainants being taken before the Forum and compared with this signature’s in the documents and got their opinion. Nor got such opinion from any expert of their choice done/produced. Hence it lies ill on the mouth of the complainants to say that this receipt is not executed by them.
10. Further it was contended by the learned counsel for the complainant that under the income tax any payment has to be made by cheques or drafts and not by cash and as such as the cash is involved in this receipts it cannot be accepted. This is an untenable contentions. Even the complainants while paying the tuition fee to the opposite parties as admitted by them, has paid the tuition fee in cash. Hence if this contention of the complainant is accepted as they had not paid the tuition fee in cheque the same cannot be accepted as a payment. If that is so the question of refund of any money does not arise. This logic of the counsel for the complainants is only mislogic and nothing else as rightly contended. The principal of the opposite party have sworn to that they have paid the money to the complainants and the receipt stated supra have been executed by the complainants and then received the money and documents, there is nothing to disbelieve the same. If the complainants had not grievances they could have served interrogatories on the opposite party but that has not been done. Even otherwise the complainants never stated they were not at Bangalore on 30.09.2004, they had not gone to opposite parties on 30.09.2004, they had not received the documents on 30.09.2004 and they had not received the money on 30.09.2004. This clearly goes to show after receiving the money, to get more money this complaint is filed as rightly contended.
11. It was contended during the course of the arguments by the learned counsel for the complainant that they had issued notice to the opposite parties regarding the money in question on 23.11.2004 to that the opposite parties had replied thus:-
“Both father and the daughter have signed the acknowledgment. The copy of the acknowledgment is also sent to you for your kind perusal.”
Regarding this they had issued a rejoinder on 22.01.2005 reads thus:-
“As per your Reply Notice dated: 08.12.2004 issued on behalf of the President Governing Council and Principal Kempegowda Institute of Medical Sciences, Bangalore, no copy of the alleged Receipt was enclosed. Send a copy of receipt to comply your reply notice.”
Even after this receipt of this notice the opposite parties had not sent the copy of the receipt stated supra, hence it must mean it is a concocted one. This is an untenable contention. The complainants were informed on 08.12.2004 itself that they had sent the copy of the receipt but till 22.01.2005 why the complainants kept quite. There is no answer. Even otherwise there is no proof to show that this reply notice has been served on the opposite parties. Even otherwise the said receipt was filed by the opposite parties before the Forum at Selam, again at the cost of the repetition we say that the receipt is produced before this Forum by the complainants, how and why? There is no endorsement in any of the records to show that these original records of both the complainants and the opposite parties and the order sheet of the Selam District Forum are returned to the complainants by any specific order by the District Forum nor there is any such endorsement in the order sheet of the District Forum, Selam. But it is produced before this Forum by the complainants.
12. Further the opposite party has clearly stated, as humanitarian grounds they had returned the money to the complainants. One Akarshan mehtha who had taken COMEDK examination and whose ranking was 5838 was given the seat in the place of the complainant, he paid the money and in the original receipt issued to the complainant, his name has been substituted and it was given to Akarshan Mehtha that is not challenged or denied by the complainants anywhere till today. The receipt No.2400 dated: 28.09.2004 which is produced by the complainants reads thus:-
The receipt No.389 dated: 28.09.2004 reads thus:-
The receipt No.2241 dated: 28.09.2004 reads thus:-
That means the opposite parties had issued these receipts earlier in the name of the complainant No.2 and after cancellation of the seat of the complainant No.2 the said seat was allotted to Akarshan Mehtha who paid the money hence they altered these receipts in the name of the Akarshan Mehtha and the money received from the Akarshan Mehtha has been paid to the complainants. There is nothing to disbelieve the same. Even the copies of these receipts were sent to the complainants as is evident from the records produced by the complainants themselves. When the complainants had taken returned the receipts, how can the complainant say that they have not been paid the money. If it were to be false, the complainants would have produced the original receipts given to them by opposite parties, that has not been done. Original receipts are with Akarshan Mehtha which were earlier in the name of complainant No.2, being altered in his name, meaning, the complainants received the amount and returned the receipts. But complainants are silent in this regard. Whey they had returned the receipts? There is no answer.
13. That means the complainants had received the money and noting is due. Hence the complainants have not come to the forum with clean hands as rightly contended. It is further seen from the records that before this Forum the alleged affidavit in the caption “proof affidavit” was filed on 24.11.2011, but it is attested true copy that means no affidavit is filed before this forum. Thus the copy of the affidavit of the 1st complainant is said to have been filed in the Selam Forum on 11.10.2007 even it is seen that the said affidavit is not signed and sworn to before any competent person it is alleged to have been sworn to before the one advocate on 11.10.2007. Under the law an affidavit has to be sworn to before the authorized person that is the notary or the judge or magistrate or sub-registrar or oath commissioner as the case may be but this affidavit is not sworn to by any such competent person. The 2nd complainant has not filed any affidavit.
14. Further it is seen that the complainants had filed this complaint originally before the District Consumer Forum, Selam in C.O.P. No.33/2005 wherein an order was passed on 25.10.2007. The said order was challenged before the Hon’ble State Commission of Tamil Nadu in F.A.No.37/2008 wherein an order was passed on 23.05.2011 which reads thus:-
“In the result, the appeal is allowed and the order passed by the District Forum is hereby set aside. The complaint is ordered to be returned to the complainant by permitting the complainant to file the same before proper Forum for the reliefs sought for. However there will be no order as to cost in this appeal.
The Registry is directed to hand over the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.”
It is further seen that the entire records in C.O.P.33/2005 including original complaint, the version of the opposite party, the alleged affidavits, documents filed by both the parties, copy of the order of the State Commission, copy of the order of the District Forum, the written arguments, the original documents and the order sheet maintained by the District Forum, Selam, are all produced before this Forum by the complainant. There is no endorsement either on the complaint or in the order sheet of the Selam District Forum that as per the orders of the Hon’ble State Commission of the Tamil Nadu this entire record has been ordered to be returned to the complainants on a particular date and it was accordingly returned to the complainants for representation before appropriate Forum. There is no such endorsement. Be that as it may. This proves many things. Raises suspicious on many things. Hence under these circumstances we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Dismissed. No order as to costs.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to both the parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 30th Day of November 2011)
MEMBER MEMBER PRESIDENT
