BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 24th of March 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.225/2010
(Admitted on 21.08.2010)
Dr. Vamsee Chaithanya,
Co Prof. P. Hanumanthappa,
Dy. Director Rtd. No.7,
Siddhasharama Road,
7th Cross, Malleshwaram,
Bangalore 3.
Represented by his Attorney,
Professor P. Hanumanthappa,
Deputy Director Retired,
As per Power of Attorney
Dated 16.06.2010. …….. COMPLAINANT
(Advocate for the Complainant: Sri Udaya Prakash Muliya)
VERSUS
Ms Spoorthi Enterprises,
Educational Consultancy & Placements,
Karnataka Bank Building,
Near Urva Marigudi Temple, Urva,
Mangalore 575 006. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Smt. B. Nayana Pai)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The complainant submits that, the Opposite Party firm is dealing with educational consultation for Post Graduation M.D. (Pediatrics) seat for the year 2010-11. The complainant with an intention to get a seat in Dakshina Kannada Medical Institutions paid a sum of Rs.5,00,000/- by way of D.D. No.983644 dated 12.11.2009 as advance against the seat to be provided by the Opposite Party. It is stated that, the Opposite Party through its letter dated 17.11.2009 has acknowledged the receipt of the payments and also informed that under management quota a seat would be given for which the complainant would have to pay a total sum of Rs.60,00,000/-. The same has to pay at the time of admission.
It is stated that, due to financial problems, the complainant was unable to seek admission to the Post Graduation M.D. (Pediatrics) and requested the Opposite Party to refund of the advance amount of Rs.5,00,000/-, but there was no reply or response from the Opposite Party, several attempts made to convey the requests not yield any result. Finally, the complainant issued a legal notice but the Opposite Party has failed to refund the amount as well as failed to inform the name of the institution or give any other particulars.
It is stated that, the complainant has issued another notice dtd.17.06.2010 asking the Opposite Party to inform the documentary proof for having paid Rs.5,00,000/- to any institution and to show that it was rendered prompt service but the Opposite Party did not claim the said letter and returned unclaimed. Feeling aggrieved by the above, the complainant has filed this complaint under Section 12 of the C.P. Act seeking direction from this Forum to pay Rs.5,00,000/- with reasonable interest along with compensation and cost of the proceedings.
2. The Opposite Party has appeared through their counsel filed version submitted that the complainant is not entitled for any relief and stated that the Opposite Party is dealing with Educational Consultation for Post Graduation M.D. (Pediatrics) for the year 2010-11 and it is admitted that, the payment of Rs.5,00,000/- was paid by the complainant.
It is stated that, since the Opposite Party is the registered firm dealing with the educational consultancy in different colleges in and around the South India, Management Colleges. It is stated that, Complainant himself wants to seek refund of the advance amount, there is no deficiency on the part of the Opposite Party. It is clear negligence on the part of the Complainant himself and the Opposite Party is ready to provide seat in Mangalore Medical colleges but the Complainant himself wants to refund the advance amount and stated that there is no negligence on the part of the Opposite Party. It is further submitted that, the Opposite Party has invested the said amount in booking the seat in different colleges and contended that there is no deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr. P. Hanumanthappa (CW1), GPA Holder of the complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C5 and C5(a) were marked for the Complainant as listed in the annexure. One Sri.Anoop Kumar Bagalodi (RW1), Opposite Party filed counter affidavit and answered the interrogatories served on him. Ex R1 and R2 were marked for the Opposite Party as listed in the annexure.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i) & (ii): Affirmative.
Point No.(iii) : As per the final order.
Reasons
5. Point No. (i) to (iii):
The facts which are admitted is that, the Opposite Party is the registered firm dealing with the educational consultancy in different medical colleges in and around the South India Management Colleges. The Complainant approached the Opposite Party with an intention to get a seat to the Post Graduation M.D. (Pediatrics) in Dakshina Kannada Medical institution paid a sum of Rs.5,00,000/- by way of Demand Draft dtd.12.11.2009 as advance money to the Opposite Party for the year 2010-11. The Opposite Party acknowledged the above said amount. It is further admitted that, the Opposite Party informed the complainant that under the management quota a seat would be given for which the complainant has to pay a total sum of Rs.60,00,000/- out of which Rs.5,00,000/- paid as advance and Rs.55,00,000/- i.e., a balance amount at the time of admission.
Now the grievances of the Complainant before this FORA is that, due to financial problem which he underwent, he was unable to seek admission to the Post Graduation M.D. (Pediatrics) course and wrote a letter to the complainant dtd.08.02.2010 to refund the advance amount of Rs.5,00,000/- paid by him. Several attempts made to convey the request but the Opposite Party did not pay the advance amount paid by him. And thereafter he issued a legal notice to the Opposite Party but the Opposite Party failed to refund the amount as well as failed to inform the name of the institution or give any other particulars. Hence, it is contended that the Opposite Party committed deficiency and came up with this complaint filed evidence affidavit and also produced Ex.C1 to Ex.C5.
On the other hand, the Opposite Party appeared through their counsel admitted the receipt of the advance amount and stated that the complainant himself wants to seek refund of the advance amount, hence there is no deficiency on the part of the Opposite Party. It is a clear negligence on the part of the complainant himself and the Opposite Party ready to provide seat in Mangalore Medical Colleges but the complainant himself wants to refund the advance amount. It is further stated that, the Opposite Party has invested the said amount for booking the seat in different colleges since the complainant himself has not come forward to get the seat, there is no deficiency on the part of the Opposite Party and filed evidence by way of affidavit and produced Exs.R1 and R2 before this FORA .
On scrutiny of the oral as well as the documentary evidence and admitted facts on the file of this FORA, we find that, the Opposite Party admittedly received Rs.5,00,000/- as advance amount for booking the Post Graduation M.D. (Pediatrics) in Dakshina Kannada Medical Institution from the Complainant. The complainant paid the above said amount by way of D.D. dtd.12.11.2009. The Opposite Party in their version as well as in their evidence affidavit clearly admitted that, they have received the above advance amount but it is contended that the same has been invested for booking the seat in different colleges, since the complainant himself has not come forwarded to get the seat, it is a clear negligence on the part of the Complainant and not on the part of the Opposite Party. We observed that, in the instant case the amount paid by the Complainant has admitted. The Complainant not availed the service of the Opposite Party just paid the advance amount as stated above. There is no written agreement between the Complainant and the Opposite Party in this case. To forfeit the amount there must be some contract either in writing or in form of an application. The obligations of the parties must have created by way of entering into a contract. But in the instant case, there is no such contract between the Complainant and the Opposite Party to forfeit the amount in case the Complainant failed to avail the service of the Opposite Party. When that being the case, the Opposite Party cannot forfeit the amount or give up the amount. The Complainant all through in his correspondences clearly told that he is unable to seek admission to the post graduation M.D. due to financial problems and the same has been intimated to the Opposite Party in writing. When that being the case, the Opposite Party should have refunded the amount by deducting the reasonable service charges if any.
We have further noticed that, the complainant sent a Lawyer’s notice dated 18.2.2010 (i.e. Ex C3) calling upon the Opposite Party to refund the amount. The Opposite Party in turn in their reply dated 08.03.2010 stated as follows:-
“The amount paid by the Complainant was deposited with the college for blocking a seat in favour of the Complainant and also stated that, the refund would be paid only after the admission process is complete as the same is to be adjusted either by retaining the seat already blocked or if any other students seeking the same approaches and after intimating to the college regarding the requirement of Complainant’s seat to somebody else, the advance amount would be paid to the Complainant”. The above reply of the Opposite Party reveals that, the Opposite Party had invested the amount paid by the Complainant with one of the college for blocking a seat. But till this date the Opposite Party not produced any documentary proof or any credible evidence to show that Rs.5,00,000/- received from the Complainant invested to one of the medical institution in Dakshina Kannada District to block the seat of the Complainant. If at all, the Opposite Party invested the above said amount in any of the medical colleges in Dakshina Kannada District, they should have furnished the proof/details before this FORA. Nothing has been produced till this date. The Opposite Party should have proved before this FORA that where they have invested the amount, except filing the version nothing has been placed on record in order to substantiate their contentions. In the absence of the same, we hold that the Opposite Party not invested the advance money received from the Complainant in any of the colleges. Hence, the Opposite Party cannot take a shelter stating that the amount of the Complainant was invested with one of the colleges for blocking the seat.
It is a known fact that, in technical institutions the Government has noticed that, institutions are admitting the students before actual starting of an academic section, collecting fee from the admitted students and retaining their certificates and confiscating the fees paid by the students who failed to join. By keeping in view of the above, the Ministry of Human Resources Department and University Grants Commission in the public interest directed the institutions to maintain a waiting list of students/ candidates. In the event of candidate withdrawing before the starting of the course, the waitlisted candidate will be given admission against the vacant seat. When the Ministry of Human Resources Developments and UGC have considered the issue in the public interest, the Opposite Party who is dealing with the educational consultancy cannot be escaped from the principles laid by the Ministry of Human Resources Development and UGC. No doubt, the complainant paid advance amount to the Opposite Party hoping that he is going to obtain a seat for the year 2010-11 for Post Graduation M.D. (Pediatrics) course in Dakshina Kannada Medical Institution. The Opposite Party being receipt of the above said amount, in the event of withdrawing before starting of the course or admission, the entire fee collected from the candidate/Complainant herein should have been refunded after deducting service charges if any. But in the instant case, it is very strange to note that, the Opposite Party is not ready to furnish the particulars of the colleges where he had blocked the seat for the Complainant. It would not be permissible for institutions or educational consultant to retain the amount paid by the candidate / complainant herein in case of withdrawal. If at all the Opposite Party invested the above said amount in any of the institution, it is the bounden duty of the Opposite Party to furnish the documentary proof before this FORA. No such documents produced by the Opposite Party in this case. Should a candidate withdraws or leave the course and if the seat consequently falling vacant only at that time the Opposite Party or the institution must return the fee collected with proportionate deductions of monthly fee or any other fees. But in the instant case, the Opposite Party miserably failed to disclose the college name but on the other hand filed bald version stated that he had invested the said amount in booking the seat in different colleges. It could be seen on record that, the Opposite Party in their reply notice dated 08.03.2010 stated that, the seat already blocked, if any other student seeking the same approaches and after intimating to the college regarding the requirements of Complainant’s seat to somebody else, the advance amount would be paid to the complainant and the complainant would have to wait till the admission process is completed. That means, according to the Opposite Party, the admission process was not completed at the time of receipt of the legal notice issued by the Complainant or in other words, the Complainant withdrawn his seat before the admission process was not completed. Even in this count also, the Opposite Party cannot retain the amount because the complainant has withdrawn before the admission process is completed.
In view of the above discussions, we are of the considered opinion that, the Opposite Party has got no legal right to retain the advance amount paid by the complainant because the Complainant not availed the service of the Opposite Party and the same has been withdrawn in advance. The Opposite Party is not justified to withhold the advance amount. The failure to refund the advance amount paid by the Complainant till this date amounts to deficiency in service and also the Opposite Party indulged in unfair trade practice.
In view of the foregoing reasons, we hold that the Opposite Party is hereby directed to pay Rs.5,00,000/- i.e., the advance amount received from the Complainant along with interest at 12% p.a. from the date of receipt of the amount till the date of payment is made and also directed to pay Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the present case, the interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party is hereby directed to refund Rs.5,00,000/- (Rupees five lakhs only) to the complainant along with the interest at 12% p.a. from the date of receipt of the amount till the date of payment is made and also directed to pay Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 12 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 24th day of March 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri P. Hanumanthappa (GPA Holder) of the Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 17-07-2010 – Special Power of Attorney.
Ex C2 – 17-11-2009 – Receipt issued by the Opposite Party.
Ex C3 – 18-02-2010 – Copy of the Lawyer’s Notice along with
receipt and acknowledgement (C3(a)
& C3(b)).
Ex C4 – 08-03-2010 – Reply notice.
Ex C5 – 17-06-2010 – Lawyer’s notice with returned envelop.
Witnesses examined on behalf of the Opposite Party:
RW1 – Sri Anoop Kumar Bagalodi – Partner of the Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1 – 08-02-2010 – Letter written by the complainant to
Opposite Party
Ex R2 – 18-02-2010 – Legal notice from the complainant to
Opposite Party
Dated:24.03.2011 PRESIDENT
