O R D E R

Sri. P. Satheesh Chandran Nair (President):

                        The complainants filed this complaint before this Forum u/s.12 of the C.P. Act for getting reliefs against the opposite parties.

                   2. The case of the complainant is stated as follows:  The complainant No.1 is the 3^rd Year Medical student of Jubilee Mission Medical College and Research Institute, Trichur.  The complainant No.2 is the father of the complainant and a retired Bank Manager.  The complainant No.1 has given authority to complainant No.2 before this Forum.  According to the complainant No.1, as a result of the examination conducted by Kerala Entrance Examination 2009 the complainant No.1 got admission in BAMS course at Mannam Ayurvedic Co-operative Medical College, Pandalam.  She again stated that she belongs to Hindu-Cheramar caste which is comes under scheduled caste as per constitution of India.  According to the complainant No.1 she joined 2^nd opposite party’s medical college on 14.09.2009 and due to the lack of infrastructure and poor faculty of opposite party’s college she discontinued the aforesaid course in the 1^st academic year itself.  According to her, if the attendance register is verified her discontinuation in the academic year itself would be revealed.  She further stated that she appeared for Kerala Entrance Examination of 2010 and got admission for MBBS course at Jubilee Medical Mission College and Research Institute at Trichur.  On 12.07.2011, she approached the opposite party No.1 and requested for transfer certificate.  But she was asked to come with her guardian on 14.07.2011, on that day she was directed to remit Rs.1,60,000/- as a liquidated damages, for issuing of transfer certificate.  Though the complainant No.1 and her parents tried to convince the opposite party for the exemption granted to SC candidate from payment of liquidated damages as per the relevant provisions of prospectus for admission to Professional Degree Course 2009, Kerala the opposite parties are reluctant to act upon the said provisions. 

          3. As per Para “2.2.4(A) of the prospectus no amount can be levied towards liquidated damages from SC candidates who are discontinuing their studies.  If any candidate admitted against ‘Government’ seats in Government/Aided/Self financing colleges, discontinues the studies after the closing of admission in the same academic year, to join other course or for other purposes, he/she is liable to pay a liquidated damages of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) for MBBS, BDS course and Rs.75,000/- for other courses.  The liquidates damages for those candidates discontinuing courses in government engineering colleges will be Rs.50,000/-.  In all such cases the transfer certificate will be issued only after remitting the liquidated damages to the authority concerned.  Candidates belonging to SC/ST/OBC are exempted from this rule ………..”.  The complainants in this case strongly contended that as per the relevant portions of the prospectus and the protection granted to SC/ST/OEC under the relevant provisions of constitution of India, opposite party has no right to reject their claim.  According to the complainant, they however arranged an amount of Rs.1,60,000/- and remitted the above said amount of Rs.1,60,000/- on 15.07.2011.  Apart from this amount, the opposite parties had accepted an amount of Rs.40,000/- from the State Govt. as part of her fees.  The complainant again stated that she was exploited by charging extra fee for issuing transfer certificate by opposite parties due to commercialization of education.  The complainants approached the opposite party for returning the amount of Rs.1,60,000/- may did not return the amount as demanded by the complainant.  On 08.02.2012 the complainant No.1 issued a registered legal notice to the opposite parties and on 16.02.2012 the opposite party No.2 issued a reply notice to the complainant denying their demand for payment.  The complainants specifically stated that the acts of the opposite parties are clear deficiency in service and as a result the complainant suffering mental agony and entitled for compensation apart from the paid amount of Rs.1,60,000/-.  This complainant filed an original complaint before CDRF, Thiruvananthapuram and the same was dismissed for lack of jurisdiction.  Hence she filed this complaint before this Forum.  According to her, the cause of action for the case is arised on 14.09.2009, April 2010, 12.07.2011, 15.07.2011 and 15.07.2011 to 20.08.2013.  The importance of these dates are also mentioned in Paragraph 16 of the complaint.  The complainants prayed before this Forum to direct the opposite parties to repay an amount of Rs.1,60,000/- with interest of 24%, the compensation of Rs.35,000/- as deficiency in service and unfair trade practice and Rs.50,000/- as compensation towards mental agony.  The complainants filed this complaint before this Forum along with 8 documents.  This Forum peruse the complaint and the documents and issue notice to the opposite parties for their appearance. 

                   3. The opposite parties taken notice and appeared before this Forum and filed a version against the complaint.  The version of the opposite parties are briefly stated below:  According to the opposite parties 1 to 3, the complaint is not maintainable either in law or on facts.  The complaint is barred by limitation and rule of resjudicata.  The complainants original complaint is dismissed by CDRF, Thiruvananthapuram for lack of jurisdiction and the dismissal became final.  According to the opposite parties, the complainant’s allegation of the lack of infrastructure, poor faculty of opposite parties college are the reason for the discontinuation of her studies in BAMS course are totally false and emphatically denied.  According to this opposite parties, they are maintaining good faculty and infrastructure for their institution.  According to them, the opposite parties Mannam Ayurveda Co-operative Medical College, Pandalam is the only one Ayurveda Medical College in Kerala which receive the recognition/approval from the department of ‘Ayush’, Government of India for the academic year 2010-12 to 2012-13.  According to them, the complainant No.1 discontinued her studies not in the 1^st academic year but after 1^st academic year. The opposite parties categorically denied the allegation of the complainant to the effect that the opposite parties made inordinate delay for the issue of transfer certificate was utterly false.  They acted as per the procedure and norms laid down in the prospectus for admission to professional degree course 2009 of the commissioner for entrance examination, Kerala.  According to this opposite parties, Paragraph 12(2)(4)(a) is not the prospectus provision applicable to the complainant but the provision laid down in 12(2)(4)(b) is applicable to the complainant No.1.  The opposite party again contended that they have not exploited or harassed the complainant.  They have only levied the permitted fees as per the provisions of the prospectus against the complainant No.1.  According to them, there is no unfair trade practice or deficiency of service from the part of opposite parties and the complainants are not entitled for any claim of compensation.  It is stated that C.C.No.196/12 of CDRF, Thiruvananthapuram was dismissed on 20.08.2013 and this complaint is filed only in June, 2014.  The complainant failed to explain the delay caused in this aspect.  According to the opposite parties, this complaint is barred by rule of resjudicata.

                   4. The complainant No.1 joined in the opposite parties college on 14.09.2009 and she discontinued her studies on 15.07.2011.  When the complainant No.1 got admission in MBBS Course she approached the opposite parties for transfer certificate.  As per Clause 12.2.4(b) it is stated “On discontinuance of a course after the first academic year liquidated damages shall be collected in the following manner:

1. For Government seats in Government/Aided Colleges, liquidated damages shall be levied as in clause 12.2.4 (a) (i) above.
2. For Government seats in Private Self-financing/Government controlled self-financing colleges, liquidated damages shall be levied either as in clause 12.2.4(a)(i) above or fees for remaining years, whichever is higher”.

         Therefore the opposite parties contended that the complaints filed by the complainants are not sustainable and it has to be dismissed.

          5. When considering the complaint, version and the records produced by both sides, we raised the following issues for consideration:

1. Whether this complaint is maintainable before this Forum?
2. If it is maintainable, whether the opposite parties has committed any unfair trade practice or deficiency in service as alleged by the complainant?
3. Regarding relief and costs?

          6. In order to prove the case of the complainant, the complainant No.2 was examined as PW1 and marked Ext.A1 to A10 and at the time of cross-examination, Ext.B1 and B2 were also marked.  On the side of the opposite parties, opposite party No.3 examined as DW1 and he also identified Ext.B1 and B2 at the time of chief examination.   Ext.A1 is the letter of authority.  Ext.A2 is the photocopy of community certificate dated 07.08.2009.  Ext.A3 is the photocopy of medical certificate issued by Cosmopolitan Hospitals (P) Ltd, Pattom, Thiruvananthapuram.  Ext.A4 is the receipt dated 15.07.2011 for Rs.1,60,000/- issued by Mannam Ayurveda Co-op: Medical College, Pandalam.  Ext.A5 is the copy of legal notice sent by the complainant to opposite parties.  Ext.A6 is the reply dated 16^th day of February 2012 issued by the opposite parties to the complainant.  Ext.A7 is the photocopy of order in C.C.No.196/12, CDRF, Thiruvananthapuram.  Ext.A8 is the Prospectus for admission to Professional Degree Course 2009, Kerala.  Ext.A9 is the order of Right to Information.  Ext.A10 is the photocopy of the Migration Certificate of Kerala University.      On the other hand, opposite parties examined as DW1 and marked Exts.B1 and B2.  Ext.B1 is the application of transfer certificate.  Ext.B2 is the application for leave.

                    7. Point Nos.1 to 3:- For the sake of convenience we are considering Point No.1 to 3 together.  The main contention of the opposite parties in this case is that are the petition is not sustainable either in the fact or in law and in order to substantiate their case they raised the rule of resjudicata and bar of limitation against this complaint.  It is clear that this complainant filed this complaint before the CDRF, Thiruvananthapuram at first and due to lack of jurisdiction the CDRF, Thiruvananthapuram has dismissed that case.  This fact is admitted by both side.  The question to be considered is whether the dismissal of the petition is comes under the rule of resjudicata as per the relevant provisions of Civil Procedure Code 1908.  It is clear from the fact that the case before the CDRF, Thiruvananthapuram (C.C.No.196/12) was dismissed on a ground of jurisdiction which was only a technical ground.  Another point raised by the opposite parties is the bar of limitation against the complaint.  It is true that the CDRF, Thiruvananthapuram dismissed the said case on 20.08.2013 and the present complaint filed in June 2014.  According to the opposite parties, this delay has not explained properly by the complainant at the time of institution of this case.  When we are considering these fact we are mainly depending on the cause of action of the case pending before this Forum.  As far as this complaint is concerned the last cause of action is caused between 15.07.2011 to 20.08.2013.  When we relying on that cause of action this petition has not comes under the bar of limitation.  Moreover, the rule of resjudicata as alleged by the opposite parties are also not affected against this case on the basis of the above discussions.  Hence we found that Point No.1 is in favour of the complainant.  The next question to be considered is whether the opposite parties has committed any deficiency in service or unfair trade practice on their part against the complainants.  It is true that the complainant is belongs to SC/ST as per the provisions of the constitution of India.  No doubt, the complainant is eligible to get all kinds of benefits as per the provisions of the prevailing law.  It is a definite case of the opposite parties at the time of their objection, the oral evidence adduced by opposite party No.3 and the trend of cross-examination of PW1 the opposite parties has a definite stand to the effect that the complainant No.1 has completed the 1^st academic year (1^st profession) and she was in 2^nd academic year (2^nd profession).  On the other hand, the complainant has also a definite case to the effect that she was discontinued her studies on 1^st academic year itself and not joined the 2^nd academic year for BAMS studies.  Then the question to be considered is whether the complainant was in 1^st profession or in 2^nd profession when she applied for the transfer certificate.  In order to come to a definite conclusion in this regard we have to rely on Ext.B1 and B2.  Ext.B1 is an application for transfer certificate and other certificates dated 15.07.2011 which was written in the handwriting none other than the complainant No.1.  If we peruse Ext.B1, it reveals that as a student of 2^nd academic year she applied for T.C for joining the above said MBBS Course.  Ext.B2 is also an application on the side of complainant No.1 for allowing leave for her absence in the 1^st profession.  Even though she was absent certain days in the 1^st profession/1^st academic year in order to cure that absence she requested for leave for her absence and that application was also allowed.  It is also noted that the genuineness of Ext.B1 and B2 has not challenged by the complainant at the time of filing this complaint or at the time of adducing evidence.  Hence we can come to a definite conclusion that Ext.B1 and B2 document is clearly binding upon the complainant.  If the position is this, the next question to be considered is whether the complainants comes under the provision of the prospectus Paragraph 12.2.4 (a) or under the provisions of 12.2.4 (b).  The relevant portions of the prospectus of 12.2.4 (a) and (b) are explained below.  The prospectus is already marked as Ext.A8.  

          12.2.4(a) Levying amount towards liquidated damages from candidates discontinuing their studies:

1.  If any candidate admitted against ‘Government’ seats in Government/Aided/Self-financing Colleges, discontinues the studies after the closing of admissions in the same academic year, to join other courses or for other purposes, he/she is liable to pay a liquidated damages of Rs.1,50,000/- (Rupees One lakh fifty thousand only) for MBBS, BDS courses and Rs.75,000/- (Rupees seventy five thousand only) for other courses.  The liquidated damages for those candidates discontinuing courses in Government Engineering Colleges will be Rs.50,000/- (Rupees fifty thousand only).  In all such cases the Transfer Certificate will be issued only after remitting the liquidated damages to the authority concerned.  Candidates belonging to SC/ST/OEC are exempted from this rule.  Candidates belonging to ‘Keralite’ category, as per Clause 6.1 (i), whose annual family income is below Rs.75,000/- and who have submitted Income Certificate along with the application for admission to Professional Degree courses, 2009 will also be exempted from payment of liquidated damages.  Candidates who are transferred from one institution to another as per proceedings of the University concerned are exempted from payment of liquidated damages.

                              In the case of Private Self financing Engineering Colleges, the  

                              date of closing of admission and levying of liquidated damages  

                              from the candidates discontinuing studies will be notified  

                              separately.                     

2. The candidates admitted against Management seats in Self financing colleges under Govt. control, on discontinuance of course after the closing of admissions in the same academic year, are liable to pay liquidated damages of Rs.1,50,000/- for MBBS, BDS courses and Rs.75,000/- for other Medical/Engineering courses, irrespective of annual family income/nativity/reservation status.

                   (b) On discontinuance of a course after the first academic year liquidated damages shall be collected in the following manner:

1. For Government seats in Government/Aided Colleges, liquidated damages shall be levied as in clause 12.2.4 (a) (i) above.

2. For Government seats in Private Self-financing/Government controlled self-financing colleges, liquidated damages shall be levied either as in clause 12.2.4(a)(i) above or fees for remaining years, whichever is higher.

3. For Management seats in Government controlled self-financing colleges, fee for the remaining years of study will be levied as liquidated damages.

         8.  When we peruse the attendance register produced by 1^st opposite party, as a result of the request of the complainant, it also reveals that the 1^st complainant attended the 2^nd profession in BAMS at the opposite parties college.  Though the said documents are produced by the opposite party in this case neither the petitioner nor opposite parties has take any steps to mark the said documents in evidence.  Hence the Forum suo-moto marking the attendance register of 1^st profession of BAMS and 2^nd profession of BAMS course of 2009 batch of Mannam Ayurveda Co-operative Medical College, Pandalam.  Hence these documents are marking as court Exts.C1 and C2 respectively.  It is clear from Ext.C1 and C2 that the complainant Sreepriya. B was a student of the said college from 04.11.2009 to 15.07.2011.  As per Ext.C2 (Page No.9) it is seen that on 15.07.2011 the T.C was issued in favour of the 1^st complainant as per her request on 15.07.2011.  The said request of the complainant to the Managing Director of the said college is also marked as Ext.B1 in this case.  On the basis of the finding as per Ext.C1 and C2, it is evident to see that the complainant No.1 was studied in opposite parties’ college up to 15.07.2011.  When we examine the Ext.C1 and C2 attendance register it is come out in evidence that this student was regularly irregular in attending classes for so many months.  But it is also interesting to see that in order to rectify the absence or for condoning the absence even in the 1^st profession time i.e., 30.04.2010 the said student wrote a leave application to the principal of the said college for the reason of medical cause and for permitting the said student to attended the classes from 30.04.2010.  This leave letter is already marked as Ext.B2 in this case and the principal of the said college endorsed in this letter like this, ‘permitted to attended the class from 30.04.2010’.  Considering the above cogent and conclusive evidence it shows that the 1^st complainant attended the 2^nd profession and as per Ext.A8 prospectus she is only eligible for the benefit stated in Ext.A8 12.2.4(b)(ii).  As per the said provision for Govt. seats in Private Self-financing/Govt. controlled self financing colleges liquidated damages shall be levied either as in clause 12.2.4(a)(i) above for remaining years whichever is higher.  As a perusal of this sub section the complainant is liable to pay liquidated damage to the concerned college.  The complainant No.1 is liable to pay fees for the remaining years, i.e. 4½ years.  The learned counsel appearing for the complainant submitted that even though the complainant is liable to pay liquidated damages as per the provisions of 12.2.4(a) as a student belong to SC/ST community she is exempted from all kinds of liquidated damages.  We do admit that if the complainant No.1 discontinued her studies in the 1^st profession itself she would have been get an exemption from the liquidated damages as stated.  We have already come to a conclusion that the said student discontinued her studies in the 2^nd profession hence she has no right to get an exemption as per Ext.A8 provision 12.2.4(a).

                   9. When we consider the whole evidence in this case and the provisions of the prospectus which is elaborately stated above we found that the opposite parties has not committed any deficiency in service on their part.  But on the other hand, the contention of the learned counsel who is appearing for the opposite parties for the effect that this complaint is not maintainable before the Forum is not sustainable.  The question of limitation, jurisdiction everything is found in favour of the complainant in this case.  Hence Point No.1 found accordingly.  In the light of the above finding, Point No.2 and 3 are found against the opposite parties.

                   10.  In the result, the petition is dismissed.  No order of cost.

                   Declared in the Open Forum on this the 30^th day of September, 2015.

                                                                                             (Sd/-)

                                                                             P. Satheesh Chandran Nair,

                                                                                        (President)

Smt. K.P. Padmasree (Member – I)              :   (Sd/-)

Smt. Sheela Jacob (Member – II)                :   (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Soman. J

Exhibits marked on the side of the complainant:

A1  :  Letter of authority. 

A2 :   Photocopy of community certificate dated 07.08.2009.

A3 :   Photocopy of medical certificate issued by Cosmopolitan Hospitals (P) Ltd,  

         Pattom, Thiruvananthapuram. 

A4 :   Receipt dated 15.07.2011 for Rs.1,60,000/- issued by Mannam Ayurveda  

         Co-op: Medical College, Pandalam. 

A5  :  Copy of legal notice sent by the complainant to opposite parties. 

A6  :  Reply dated 16^th day of February 2012 issued by the opposite parties

         to the complainant. 

A7  :  Photocopy of order in C.C.No.196/12, CDRF, Thiruvananthapuram. 

A8  :  Prospectus for admission to Professional Degree Course 2009, Kerala. 

A9  :  Order of Right to Information. 

A10 :  Photocopy of the Migration Certificate of Kerala University. 

Witness examined on the side of the opposite parties:

DW1  :  G. Reghu

Exhibits marked on the side of the opposite parties:

B1  :  Application of transfer certificate. 

B2  :  Application for leave.

Court Exhibits:

C1  :   Attendance Register of 1^st profession of BAMS course of 2009 Batch of   

          Mannam Ayurveda Co-operative Medical College, Pandalam.

C2  :   Attendance Register of 2^nd profession of BAMS course of 2009 Batch of 

          Mannam Ayurveda Co-operative Medical College, Pandalam.

                                                                                                     (By Order)

Copy to:-  (1) Ms. Sreepriya, Madhavam, TC 2/1432(2) PRGA 75,

          Kottakuzhy Junction, Pattom, Thiruvananthapuram – 4.

      (2) Mr. N. Rajendarn, Principal, Mananm Ayurvedic Co-operative

                    Medical- College, MSM P.O., Pandalam, Pathanamthitta, Kerala.

               (3) Managing Director, Mananm Ayurvedic Co-operative Medical College,

                 -do.  –do.

                (4) The administrative Officer (Accounts),  -do.  –do.

                (5) The Stock File.