F.A.No.225 OF 2009 AGAINST C.C.No.25 OF 2008 DISTRICT FORUM-II TIRUPATHI

Between:

Sri Krishna Teja Dental College
Rep. by its Managing Director/Managing Trustee
Padmavathi Nagar, Tirupati

                                                        Appellant/opposite party

                A N D

Ms Priyanka Yadav D/o BRK Raju
aged about 19 years, C/o BRK Raju
Development Officer, LIC of India
Armoor Branch, Nizamabad

Counsel for the Appellant                     Sri Karra Srinivas

Counsel for the Respondent                  Sri Y.S.Yellanand Gupta

        QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
               

                                                AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

MONDAY THE TWENTY FOURTH DAY OF OCTOBER

                                TWO THOUSAND ELEVEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                        ***

1.     The opposite party dental college has filed the appeal stating that the District Forum had not considered the father of the respondent to prove that she fell sick and that it failed to consider the documents, letter dated 14.5.2008 addressed by the appellant college and copy of list of candidates for admission into first year BDS course in Meghna Institute of Dental Sciences, Nizamabad as also the seat vacated by the respondent being remained unfilled.

2.     The respondent’s father had paid a sum of `2 lakh on 23.6.2006 to the appellant college for her admission in first year BDS course under management quota for the year 2006 and 2007.  The respondent was assured a seat for the management quota for the academic year 2006-2007.  The admissions were closed by 30.9.2006.  Of the 100 seats 99 students had joined in the course and the seat intended for by the respondent was kept unfilled. 

3.     The respondent claimed refund of the fees on the premise that the appellant college assured her father of refund of the fees in case the admission is not finalized.  It is the plea of the respondent that the appellant college had not sent any information till the end of July 2006 as to the confirmation of seat in the first year BDS course and during the first week of August 2006 she fell ill and was hospitalized whereof the doctors advised her not to strain herself pursuing BDS course at a far off place. 

4.     The plea of the appellant college as seen from the written version filed by it is that the respondent’s father paid a part payment fees `2 lakh for seat in first year BDS course for the respondent under management quota and she had not submitted original certificates despite several telephonic reminders.  It is pleaded that the terms of the application form deal with non refundable nature of the fees and due to inaction on the part of the respondent the seat vacated by her remained unfilled for the entire course of five years causing loss to the appellant college to the tune of `11 lakh.  The respondent had joined in Meghna Institute of Dental Sciences, Nizamabad. 

5.     In support of her claim the respondent had filed her affidavit and 8 documents marked as EXs.A1 to A8.  On behalf of the appellant college its correspondent Dr.Chadalavada Sucharita has filed her affidavit and the documents Exs.B1 to B4.

6.     The District Forum has allowed the complaint on the premise that respondent fell ill compelling her not to pursue BDS course with the appellant course and no evidence was placed on record to show that the respondent joined in any course in Megna Institute of Sciences, Nizamabad.

7.     The points for consideration are:

1)                                        Whether the respondent is entitled to the refund of amount of `2 lalh from the appellant college?

2)                                        To what relief?

8.     POINT NO.1      The respondent’ father for the purpose of her admission to first year BDS course with appellant college, paid on 23.6.2006 a sum of `2 lakh to the appellant college.  Acknowledging receipt of the amount the appellant college had issued receipt for a sum of `2 lakh in the name of the respondent.  On 6.10.2006 The respondent’s father had sent a telegram as also on 22.2.2007 he had sent a letter informing the appellant college that the respondent fell ill and on advice of the doctors  she had decided not to pursue BDS course with the appellant college that and requested for fund of the amount paid by him.  It is contended on behalf of the appellant college fees once paid is not refundable as per the terms of the application form and the respondent had joined during the same academic year i.e., 2006-2007 in Meghna Dental College Nizamabad which facts had been suppressed by the respondent.

9.     In order to appreciate the rival contentions of the parties, it is essential to decide whether the respondent was hospitalized on account of illness and whether she was advised by the doctors not to strain herself by pursuing BDS course at a far off place from her home town.  The medical record of the respondent, case sheet and diagnostic reports of Geeta Nursing Home Nizamabad indicates the respondent was admitted on 20.9.2006 to the hospital and on 29.9.2006 she was discharged therefrom.  Toxic Clonic Seizure is found to be the cause for which she was given Inj. Eptoin, compose, Taxim and Rantac.  During her stay in the hospital she was referred to Vinayala Neuro Testing Centre which after studying her functioning of brain, opined that she was suffering from genaralised dysanthymiaus.  Therefore, it can be held that the respondent was suffering from illness during the month of September 2006. 

10.    The learned counsel for the appellant college had contended that the respondent having paid fees for one year, failed to submit original certificates from 24.6.2006 till 4.10.2006 and the last date for submission of list of candidates to the health university was 30.9.2006.  The appellant college had not submitted the prospectus in order to substantiate its contention that the duty was cast upon the respondent to submit her original certificates prior to 30.9.2006.  The respondent’s father had filled up the application form and signed it acknowledging his liability to pay tution fees and other fees of the respondent to the appellant college.  Clause-1 in the application form makes it manifest that  it is mandabotry on the part of the applicant to enclose the required certificate to the application form and  an application form  without required certificates or incomplete entries would be rejected automatically.  The appellant college though stated that it had telephonically conveyed  to the respondent to submit her certificates, no documents to the effect have been placed on record.  It is pertinent to note that the respondent had not denied any such request as stated to have been made by the appellant college.  The appellant college and the respondent has been negligent as well.

11.    The respondent cannot submit the application form without enclosing the relevant certificate thereto.  The appellant college also is not supposed to receive the application from the respondent without verifying whether the relevant documents are enclosed thereto.  Both parties have been negligent.  The  certificate dated 29.5.2008 issued by Meghna Institute of Dental Sciences, Nizamabad shows that the respondent was admitted to the first year BDS course on 1.10.2007.  The appellant college submits that the respondent  without joining the appellant college got admission during the same academic year in Meghna Dental College.  A perusal of the notice dated 3.5.2007 issued on behalf of the respondent would establish the fact that the respondent had sought for cancellation of her admission in the BDS course with the appellant college and to the effect the respondent’s father had sent a telegram dated 4.10.2006.  It is thus clear that the respondent had not contacted the appellant college till the last date for finalization of admission i.e., 30.9.2006 was expired. 

12.    The in-action on the part of the respondent to inform regarding her admission into first BDS course with Meghna College is on par with the failure of the appellant college to request the respondent to submit her original certificates before the due date for finalization of admission.  Though in the notice that was issued on behalf of the respondent prior to filing of the complaint,  it is stated that she got admission in the first year BDS course with the appellant college, it cannot be accepted that without her submitting certificates, the admission is finalized.  Negligence on the part of the respondent as also the appellant college is manifest by the correspondence made between them and in the light of the contents of the application form and the copy of list of candidates for admission into first year BDS course issued by Meghna Institute of Dental Sciences, Nizamabad and the letter sent by the registrar, NTR Health University, Vijayawada.

13.    The rights and liabilities of the parties have to be determined in the backdrop of their failure to perform their respective obligations in regard to the admission of the respondent into first year BDS course with the appellant college.  The respondent ought to have sent information in advance so as to enable the appellant college to admit another candidate for the seat under the management quota.  The appellant college also could have requested the respondent to submit her certificates or let her disclose her intention to pursue the same BDS course in another college.  Either way, both the parties are at fault and negligent as well in taking steps for performance of their respective part of the contract. 

14.    The learned counsel for the appellant has submitted that the seat vacated by the respondent was kept unfilled for the entire course and thereby the appellant college had sustained loss to the tune of Rs.11 lakh.  The list of candidates not approved for admission in to BDS course under management quota with the appellant college contains the name of the candidates for admission into first year BDS course which supports the contention of the appellant college that 99 seats have been mentioned of which 5 students are shown in the list of the candidates whose admission was not approved and 95 students are shown in the list whose admission was approved by the university.  The learned counsel for the appellant contends that the list of candidates who admission was approved or not approved extended to the limit of 99 whereas the remaining seat was kept vacant owing to non-submission of certificates by the respondent.  We had already held in the foregoing paragraph that the respondent and the appellant college as well had been negligent and the appellant college ought to have sent a letter to the respondent  requesting her to submit the certificates to process her application form for admission into first year BDS course. 

15.    The learned counsel for the appellant college had submitted that in view of letter dated 24.10.2005 issued by the Director, Department of Technical Education, Memo dated 13.12.2007 and GO No.122 dated 1.9.2005, the appellant college is not liable to refund the amount to the respondent.  The letter from the Director of Department of Technical Education was issued to the Principals of Engineering and Pharmacy Colleges directing them to follow new guidelines in regard to the transfer of students.  The memo issued by the Secretary, Education Department is also relating to the transfer of students from one college to another college and the requirement for medical certificate of the students requesting transfer from university college to a private college.  A  GO was issued substituting fresh guidelines in place of the earlier guidelines for considering the transfer application of students of engineering and pharmacy courses.  These documents are of no help to the case of the appellant college since the respondent’s admission was not finalized nor was it a case of transfer from the appellant college to Megna Institute of Dental Sciences, Nizamabad.

16.    The learned counsel for the appellant has relied on the decisions of this Commission in F.A.No.189 of 2008 dated 17.9.2010 in “Malla Reddy Engineering College Vs D.Pallavi and another” whereas the learned counsel for the respondent has relief upon the decisions, 1) “MVJ College of Engineering Vs Tukaram Rao, 2008-CPJ-IV 247”, 2) “Registrar, Andhra University, Visakhapatnam Vs Janjanam Jagedeesh”, decided on 6.7.2010. 

17.    Malla Reddy Engineering College’s case (supra) was a case where the complainant was given admission in Biotechnology in B.Tech course under management quota and subsequently she got admission in another college under convener quota.  It was held that there would not be any waiting list for seats to be filled up under management quota.  In the case on hand the respondent was not given admission and her application was not processed for failure on her part to submit the relevant documents.  The decision, as such is not applicable to the facts of the case.

18.    In “Andhra University’s case”, the National Commission has referred to the guidelines issued by the Universities Grant Commission directing the institutions and universities to maintain waiting list of students in the event of a student withdrawing before starting of a course and the waitlisted candidate is directed to be given admission against the vacant seat and, the institutions are advised to refund the amount less the processing fees to the students.

19.    In MVJ College’s case (supra), the complainant paid an amount of `1,95,000/- to the college after appearing for CET examination and having secured a seat under general merit.  He requested for refund of the amount since he was directed to join in another college.  In both the cases the National Commission held that the college should refund the amount paid less the processing fees.  Both these decisions were rendered in the circumstances where the student got admission in the college and subsequently opted for transfer in another college.  As such, the decisions are of any help to the case of the respondent.

20.    The respondent’s admission has not been finalized till 30.9.2006 which is the cut off date for finalization of admission of the students into first year BDS course in various colleges which include the appellant college.  The respondent had failed to submit her certificates and the appellant college since the beginning was negligent in permitting the respondent submits the application form without enclosing any document thereto and subsequently failed to address a letter to the respondent to submit her certificates for finalization of her admission by the NTR Health University.  The respondent though held to be negligent for retaining the certificates, the deficiency in service on the part of the appellant college as also its negligence in keeping quite till finalization of admission into first year BDS course render the appellant college liable to refund an amount of `1,50,000/- out of the amount paid by the respondent while submitting application form to the appellant college.  In the circumstances, the order of the District Forum is liable to be modified by deleting the interest component and reducing the amount directed to be refunded from `2 lakh to `1,50,000/-.

21.    In the result the appeal is partly allowed.  The order of the District Forum is modified.  The appellant college is directed to refund the amount of `1,50,000/- with costs of `1,000/-.  There shall be no order as to costs in the appeal.

                                                                                           Sd/-

                                                                                        MEMBER

                                                                                           Sd/-

                                                                                        MEMBER

                                                                                    Dt.24.10.2011

KMK*