Kerala

Idukki

CC/259/2016

Marykutty Domenic - Complainant(s)

Versus

Managing director Al Ashar Dental college - Opp.Party(s)

Adv.K M Sanu

28 Jun 2019

ORDER

DATE OF FILING : 20.9.2016

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 28^th day of June, 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P MEMBER

CC NO.259/2016

Between

Complainants : 1. Marykkutty Domini,

Arackal House,

Thazhuvamkunnu P.O.,

Kalloorkkadu, Muvattupuzha.

2. Aleena Rose Domini,

Arackal House,

Thazhuvamkunnu P.O.,

Kalloorkkadu, Muvattupuzha.

(Both by Adv: K.M. Sanu)

And

Opposite Parties : 1. The Managing Director,

Al-Azhar Dental College,

Perumpillichira P.O.,

Thodupuzha, Idukki.

2. The Principal,

Al-Azhar Dental College,

Perumpillichira P.O.,

Thodupuzha, Idukki.

(Both by Adv: Anshad A.A.)

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that :

 

Second complainant is the daughter of 1^st complainant. The 2^nd complainant has got admission for 5 year Dental Course at 1^st opposite parties Dental College. At the time of admission, opposite party demanded Rs.18 lakhs as total course fee. Before granting admission, as per the demand of opposite party, the complainants executed so many affidavit and signed stamp papers to the opposite party in addition to the 2^nd complainant's school certificate. Before commencing classes, complainant remitted more than half of the total course fee to the opposite party as they demanded.

 

(cont......2)

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Complainant further contended that in the first year, the main class was for making artificial tooth and bones. The 2^nd complainant performed her best in the practical classes, but the department had wilfully evaded from signing the practical records. Due to this the students of 1^st year BDS including the 2^nd complainant was not permitted to attend the theory classes. This attitude of the opposite party caused mental agony and stress. This is wilfully done by the opposite party to extend the duration of the course and moreover, the aim of the opposite party to extend the classes with a view to collect the fees from the students for supplementary classes.

 

By suffering all this mental tortures, the 2^nd complainant attended 3 year in this course including one year regular class. Thereafter she was forced to stop the studies, since the mental torture from the part of the opposite party become unbearable. Thereafter the 2^nd complainant decided to join some other course somewhere else and approached the opposite party for getting back her certificates. At that time, opposite party demanded complete course fee, hence the complainant constrained remit an amount of Rs.19,20,710/- to the opposite party.

 

The complainant further stated that opposite party has no right to collect or demand the whole course fee and it is against the norms of the Government and moreover opposite party collected an additional amount of Rs.1,20,710/- from the complainant by way of course fee. This act of the opposite party amounts to is unfair trade practice and deficiency in service. Hence the complainant approached the Forum for getting back the additional fee which was unlawfully collected by the opposite party from the complainant and other consequential reliefs.

 

Opposite party entered appearance and filed detailed reply version denying all the averments in the complaint. In the written version, opposite party contended that 2^nd complainant was admitted in the institution under management quota and whatever amount collected from her is only as per government approval. The amount they collected was the entire course fee which is legally entitled to collect as liquidated damages for the discontinuation of the course by the 2^nd complainant after getting admission in this institution.

 

Opposite party further averred that the classes and practical examinations were conducted in opposite parties' college strictly as per the guidelines and norms of the Dental Council of India and concerned university. Opposite party was not in a position to adjust the same according to the convenience of the

(cont......3)

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complainant. Moreover opposite party is having no authority to extend the duration of the 5 year BDS Course as alleged. The academic performance of the 2^nd complainant in all the subjects was poor and she lacks aptitude for this course. So all the complaints regarding mental harassment alleged was only due to her inability to acquire practical skill in this field or disinterest. Opposite party admitted the receipt of Rs.19.5 lakhs as fee. As per the agreement between the Kerala Government and All Kerala Private Dental College Management Consortium, clause 12, “if a student leaves the college after taking admission after the last date of closing admissions, he/she will be liable to pay the entire fees for full course as liquidated damages.” Hence the amount collected by the opposite party from the complainant is well within the frame work of the directions of the Kerala Government as well as Hon'ble Supreme Court of India.

 

Opposite party further contended that in all University examinations which the 2^nd complainant appeared, she has passed for all practical examination papers. It itself revealed that the allegations levelled against these opposite parties in the complaint are baseless.

 

From the complainant's side, 1^st complainant was examined and Exts.P1 and P2 marked. Ext.P1 is the copy of statement of fee paid to the opposite party at the time of admission. Ext.P2 is the copy of pass book.

 

From the opposite side, one Prof. Dr. V.A. Afzal, Principal of opposite party college was examined as DW1 and Exts.R1 to R8 marked. Ext.R1 is the copy of exam results. Ext.R2 is the copy of written request given by the 2^nd complainant. Ext.R3 is the prospectus published by AKSDCFC. Ext.R4 is the copy of agreement between the AKSDCFC with Government of Kerala. Ext.R5 is the syllabus of BDS course. Ext.R6 is the exam results copy. Ext.R7 is the copy of Gazette notification. Ext.R8 is the prospectus published by the Commissioner of Kerala State Entrance Examinations.

 

Heard.

 

The Point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

The POINT :- We have considered the respective submissions put forth on behalf of both parties. The learned counsel of the complainant argued that

(cont......4)

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the 2^nd complainant happened to discontinue her dental course with the opposite parties' Dental College solely due to the inhuman attitude of the faculties towards her. The opposite parties purposefully detained the 2^nd opposite party by denying sufficient time to attend the practical as well as theoretical classes. This caused much mental stress to the student and this caused difficulty in getting high marks in the subjects. The learned counsel further stated that it is the foul play or technique of the management to extend the course duration and to squeeze out more money from the candidates towards course fee. Through this act, so many students had to take more than 5 years to complete the course. Moreover it is arbitrary to receive full course fee in advance and against prevailing norms. Hence the complainant is entitled to an amount of Rs.19.5 lakhs which was illegally received by the opposite parties from them.

 

On the other hand the learned counsel for the opposite party vehemently argued that the opposite party has not collected any amount from the complainant towards donation at any point of time. He added that the 2^nd complainant was the only student who left the opposite parties' institution discontinuing the course due to her inability to adapt to the curriculum of the course. All other 49 students are continuing their studies there. If the complainant suffered any mental agony due to the curriculum prescribed by the University, she can approach the University to redress her grievances. Dentistry is a course that require high degree of fine hand skill. The dentist has to perform a variety of precession techniques on small structures inside the oral cavity. The opposite parties are not liable for the poor performance of the 2^nd complainant. The counsel further argued that clause 14.4(b) of the prospectus of Kerala Private Dental College Management Consortium states that, “if any candidate discontinues/leaves the institution after 15 days before the closing of admissions in the first year or discontinues/leaves in the subsequent years, he/she is liable to pay fees for the remaining years, that is, fees for the whole course. In such cases, Transfer Certificate and other certificates will be issued only after the payment of fees for the remaining years are also remitted”. Hence opposite parties are justified in collecting the full course fee from the complainant at the time when she left the course. Hence the complainants are not entitled to get any relief as prayed for and the complaint is liable to be dismissed with cost.

 

By evaluating the facts and circumstances of the case, it is an admitted fact that at the time of admission, opposite party collected Rs.12,50,000/- from the complainant and at the time of discontinuation of the course, for return the certificate, opposite party demanded an additional amount of Rs.6,60,800/- as

(cont......5)

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balance course fee (Ext.R2) and the complainant given this amount to the opposite party on 22.6.2015 (Ext.P2). This was categorically admitted by the opposite party. By going through the document, it is seen that opposite party collected a huge amount from the complainant by way of course fee. But no evidence is produced by the opposite party to convince the Forum that under what circumstances, they collected this much amount and whether it is permitted by law to collect the entire course fee before completing the course. In this case, before admitting the student, opposite party collected Rs.12,50,000/- by way of fees in different heads. It is bounden duty of the opposite party to prove, whether it is legally allowed.

 

Then regarding the discontinuation of the course by the 2^nd complainant alleging that the mental harassment of the faculties and the management. To rebut this arguments, opposite parties stated in page 2 of their written version, “all other 49 students are continuing their study in our institution. There is no complaint from any corners as alleged by the complainants regarding the curriculum”. Here it is pertinent to note that the 2^nd complainant has no complaint regarding the curriculum, but against the mode of instruction adopted by the institution towards her. Whether she is a brilliant student or not is not a fact in this circumstance. The question is whether the faculty of the 1^st opposite party committed any mental harassment towards the 2^nd complainant. In the case the opposite parties failed to produce any one of the student who got admission along with the 2^nd complainant and continuing their course there, to substantiate their pleadings that no students in the same batch had raised any objection in the mode of teaching.

 

More over, opposite parties not placed any reliable evidence to establish that collection of the said huge amount from the complainant within a span of nearly 2 years having any legal entity or based on any prevailing laws in this field. The reliance was placed on the decision of Hon'ble National Consumer Disputes Redressal Commission in M/s. FIIT JEE Ltd. Vs. Shri. Pramod Panwar 2013 (Consumer) 16615 (NS). In this case the National Commission observed that,

“In identical cases we have come very heavily upon such a practice by the educational institutions, education centres, schools, universities, of charging lump sum fees for 2-3 years duration in one go to charge considerationfor the period for which it is yet to provide the service the institutes force the students to go on attending their institutes in spite of there being unsatisfactory services or grossest deficiency in the quality of teaching and jeopardize the career prospectus of the students.” (cont......6)

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We have also taken a view that any term of the contract which is unconscionable or voidable is not enforceable. No service provider like training institutes or coaching centres or educational centres can be allowed to forfeit the fees or consideration for the service which it neither provided nor availed. Thus the term that “fees once paid is not refundable” is unconscionable as well as voidable and therefore not actionable particularly when such fees is charged for the whole duration of the course in advance.

 

A student or a trainee may leave in the midstream if he finds the service deficient and sub-standard and non-yielding and to tell him that fees once paid is not refundable is uncalled for an unfair trade practice as no service provider can retain the consideration for the service which it has either not given or has not availed or is yet to be provided.”

 

In the view of the above discussion and the facts of the case, the Forum is of a considered view that opposite party institution realized a huge amount by way of whole course fee and additional fee, which they failed to convince the Forum with clear and cogent evidence. Such an attitude of the opposite party institution is a gross deficiency in service and unfair trade practice. On perusing the evidence on record, it seen that the opposite parties collected an amount of Rs.19,10,800/- from the complainant within a period of 3 years.

 

From the above discussion, we came to know that the 2^nd complainant was studied there for three years, and hence she is liable to pay three year fees to the opposite party institution. From the points put forwarded by the counsel for the opposite parties, it is clear that the yearly fees for the course is Rs.3,75,000/ as per clause 8 of Ext.R5, Consensual Agreement, dated 16.5.2012. Hence opposite parties are directed to deduct Rs.10,25,000/- and Rs.500/- being the cost of application form from the total amount which was collected from the complainant and repay Rs.8,85,300/- [1910800 – (1025000+500)].

 

Hence in the view of above discussion, the Forum hereby directs the 1^st opposite party to pay an amount of Rs.8,85,300/- to the complainant as the balance fee and Rs.3000/- as litigation cost within 30 days of receipt of

(cont.....7)

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a copy of this order, failing which the refund amount would carry 12% interest per annum from the date of default till the date of payment.

 

Pronounced in the Open Forum on this the 28^th day of June, 2019

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL. P.,MEMBER

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Marykkutty Domini.

On the side of the Opposite Party :

DW1 - Prof. Dr. V.A. Afzal.

Exhibits :

On the side of the Complainant :

Ext.P1 - copy of statement of fee paid to the opposite party

at the time of admission.

Ext.P2 - copy of pass book.

On the side of the Opposite Party :

Ext.R1 - copy of exam results.

Ext.R2 - copy of written request given by the 2^nd complainant.

Ext.R3 - prospectus published by AKSDCFC.

Ext.R4 - copy of agreement between the AKSDCFC with

Government of Kerala.

Ext.R5 - syllabus of BDS course.

Ext.R6 - exam results copy.

Ext.R7 - copy of Gazette notification.

Ext.R8 - prospectus published by the Commissioner of Kerala State

Entrance Examinations.

 

 

Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT