IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 27th day of June, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 58/2009 (Remanded)
Between:
Lohitha Alphy James,
Palakkatharappil,
Irumbakachola,
Kanhirapuzha,
Mannarkkad, Palakkad.
(By Adv. K.N. Sujith) ..... Complainant
And:
1. The Principal,
CML Carmel Engg. College,
Kunamkara, Ranni,
Pathanamthitta.
(By Adv. Cherian Geevarughese)
2. The Joint Director of Technical Education,
Padmavilasom Road,
East Fort Road,
Thiruvananthapuram – 23.
Addl.3. Carmel Education Trust,
(Believers Church Trust)
Rep. by Managing Trustee-
Dr. K.P. Yohannan,
Carmel Engg. College,
Perunadu. ..... Opposite parties.
ORDER
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that she had passed the diploma during the year 2008 from Payyannur Women’s College, Kannur. She applied for the engineering course conducted under the supervision of the second opposite party and she had got 567th rank in the entrance examination conducted by the second opposite party. As per the list published by the second opposite party, the complainant’s seat was confirmed at the first opposite party’s college. So the complainant contacted the first opposite party for getting her admission. But the first opposite party informed that they are not admitting lateral entry students during that academic year. Immediately, the complainant intimated the matter to the second opposite party through telephone and at that time they told that the matter will be settled by talking with the first opposite party’s authorities. The second opposite party also informed the complainant that she can directly approach the first opposite party for her admission and they have no right to deny her admission as the first opposite party’s name is also included in the list published by the second opposite party.
3. Accordingly on 31.07.2008, the complainant along with her parents approached the first opposite party for getting her admission. But they denied the admission. When the complainant demanded for the denial in writing which was not heeded by the first opposite party. So on 02.08.2008, the complainant approached the second opposite party and complained the matter in detail. At that time also, the second opposite party informed the complainant that the matter will be settled. The second opposite party being the competent authority has got ample powers to give directions to the first opposite party in this matter. Thereafter also the complainant contacted the second opposite party till 04.08.2008 and at last the second opposite party informed the complainant that they have nothing to do in this matter and the complainant can approach any judicial forum for redressing her grievances. Since 04.08.2008 is the last date for admission, the complainant was compelled to take admission in a management quota by paying ` 1,00,000. The complainant is entitled to get admission in general merit under lateral entry scheme which was denied by the first opposite party due to the inaction of the second opposite party. Because of the above said acts of the opposite parties, the complainant sustained mental agony and financial loss. Thus opposite parties have committed deficiency in service and the opposite parties are jointly and severally liable to the complainant for the same. So the complainant issued a legal notice on 13.01.2009 to the first opposite party and they received the same on 15.01.2009. But they have not responded to the said notice. Hence this complaint for the realisation of ` 1,50,000 from the opposite parties.
4. The first opposite party entered appearance and filed his version with the following main contentions. The complainant has to prove her rank regarding the lateral entry admission and the confirmation of her seat at the first opposite party’s college during the year 2008. The complainant never contacted the first opposite party as contended by the complainant. The Management Association decided not to admit the lateral entry candidates at first and later that decision was changed and decided to admit lateral entry students. The complainant never turned up for admission or complied the formalities for getting the admission. This complaint is filed after a long delay which itself shows the malafides of the complainant. Second opposite party is an authority having every right to issue necessary directions to the first opposite party. But no such direction was received from the second opposite party in respect of the complainant’s complaint. It is the duty of the students who are selected for admission to approach the concerned institution. In this case, the complainant never approached the first opposite party though she claims that she had sufficient rank to get admission at the first opposite party’s college.
5. The allegation of the complainant that she had made complaints before the second opposite party is also false. The first opposite party is not at all liable and responsible for her loss in securing admission in a management seat. The first opposite party is not bound to provide any service to the complainant and the first opposite party never collected any amount from the complainant. The first opposite party is owned by Caarmel Educational Trust which is the Self Financing College and a member of the Self Financing College Management Association. The Management Association and the Government had executed some agreements and the first opposite party is bound only to the terms and conditions of the said agreement. If at all any wrong done by the opposite parties, the complainant can approach the statutory authorities including Justice P.A. Muhammed Committee. With the above contentions, the first opposite party prays for the dismissal of the complaint as they have not committed any deficiency of service or any illegal acts.
6. The second opposite party also entered appearance and filed their version with the following contentions: According to the second opposite party, the online allotment of seats will be made by the Directorate of Technical Education in accordance with candidates rank in the Entrance Examination and availability of seats in various branches in Government Engineering Colleges and Self Financing Engineering Colleges those who are willing to admit the lateral entry candidates. Accordingly, the first opposite party also furnished their willingness to admit 18 government seats for the lateral entry students vide their letter No.CML/PRL/1215/379/2008 dated 14.02.2008. On the basis of the willingness of the first opposite party, 18 government seats in the first opposite party’s college were allotted to various candidates. But the first opposite party denied admission to the students those who got allotment through online admission to the government seats without any reason. The allottees made complaints about this, and the department considered the issue very seriously and discussed this matter with the college authorities. As a result of this, the first opposite party changed their attitude and agreed to admit the candidates and many students had joined in that institution. The allotment was given to the candidates as per the willingness given by the first opposite party. But the admitting authority is the first opposite party. The second opposite party had done everything to admit the candidates in the first opposite party’s college. But it is unknown why the complainant did not join the college in time. With the above contentions, second opposite party prays for the dismissal of the complaint against the second opposite party.
7. Subsequently, additional third opposite party was impleaded and they entered appearance and adopted the version of the first opposite party.
8. On the basis of the pleadings of the parties, this Forum had taken the evidence in this case and it consists of oral testimony of PW1, DW1 and Exts. A1 to A13 and Exts. B1 and B2. On the basis of the said evidence, this Forum allowed the complaint.
9. Being aggrieved by the order of this Forum, the first and additional 3rd opposite parties filed an Appeal before the Hon’ble CDRC, Thiruvananthapuram as Appeal No. 446/2011. The second opposite party also filed an Appeal before the Hon’ble CDRC as Appeal No. 442/2011. Both Appeals were allowed vide separate orders and remanded the matter to this Forum for fresh disposal in accordance with law after giving opportunity to all parties for adducing further evidence.
10. Accordingly, all the parties entered appearance before this Forum and on their appearance; the second opposite party alone filed a version before this Forum as additional version. The first part of the second opposite party’s additional version is a repetition of their previous version. In the second part of their additional version, they challenged the maintainability of this complaint based on the decision of the Hon’ble Supreme Court in Bihar School Examination Board Vs. Suresh Prasa Sinha (2009) 8 Supreme Court Cases 483) in which Hon’ble Supreme Court held that “examination fee paid by the examinee is not a consideration for providing any service”. According to the second opposite party, the complainant is not a consumer as the examination fee paid by the complainant is for the Entrance Examination and the said payment is not a consideration for providing any service and the said payment cannot be treated for consumer service after the test is over. With the above contentions, the second opposite party prays for exempting them from this proceedings.
11. Apart from the additional version of the second opposite party, none of the parties have adduced any additional evidence in this stage though the Hon’ble CDRC had given opportunity to them for adducing additional evidence. They also submitted that they have no additional evidence to adduce at this stage. Hence this Forum is constrained to consider the existing evidence afresh for the disposal of this complaint. However, second opposite party filed an argument note and the parties were heard again.
12. In the above circumstances, the following points were raised for consideration at this stage based on the evidence adduced by the parties before the remand and on the basis of the additional version filed by the second opposite party.
(1) Whether this complaint is maintainable before this Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs and Costs?
13. Point No.1: The second opposite party raised a contention in their additional version filed after remand regarding the maintainability of this complaint in the light of the decision of the Hon’ble Supreme Court in Bihar School Examination Board Vs. Suresh Prasad Sinha (2009) 8 Supreme Court Cases 483) in which Supreme Court held that examination fee paid by the examinee is not a consideration for providing any service. In this case, the complainant had remitted ` 500 as fees for lateral entry entrance test and the payment paid by the complainant cannot be considered as a consideration for getting any service. So according to the second opposite party, the complainant is not a consumer as defined in the Consumer Protection Act. But in our view, the facts and circumstances of this case and the Supreme Court case are entirely different. Here, the complainant’s allegation is that the second opposite party being the competent authority for ensuring admission to the selected candidates failed to interfere in the complaint of the complainant regarding her admission at the first opposite party college. Second opposite party being the competent authority of the Government of Kerala is duty bound to provide proper service for ensuring admission to the selected candidates. The allegation of the complainant is not against the proceedings in connection with the entrance examination. The allegation is against the deficiency of service and inaction of the second opposite party. So the question of consideration or any service charge is not relevant. So the second opposite party cannot wash their hands by simply saying that they have not received any consideration from the complainant for giving any service to the complainant. It is true that examination fee paid for an examination cannot be treated as a consideration for any service. Since the facts and circumstances of this case and the reported case are different, the said ruling is not applicable to this case So the argument of the second opposite party based on the non-receipt of any consideration for giving their services is not sustainable. Hence this point is found against the second opposite party and this complaint is found maintainable before this Forum.
14. Point Nos. 2 & 3: Though the Hon’ble State Commission had given opportunity for adducing additional evidence, none of the parties adduced any additional evidence after the remand. All of them submitted before this Forum that they have no further evidence than the evidence adduced earlier. So we are constrained to consider the evidence adduced by the parties before the remand once again for taking a decision.
15. The complainant’s allegation is that she secured 567th rank for Engineering admission under Lateral Entry Scheme in the year 2008 and the second opposite party allotted a seat to the complainant at the first opposite party’s college. When she approached the first opposite party for the admission, they denied admission. So she contacted the second opposite party and informed about the denial of her admission by the first opposite party. At that time, second opposite party assured that they will contact the first opposite party and promised her admission at the first opposite party’s college. But in spite of complainant’s repeated requests and representation to the second opposite party, she did not got the admission. Because of this, she was compelled to secure an admission under Management Quota in another college by paying a huge amount. The above said acts of the opposite parties is a clear
deficiency in service and the opposite parties are liable to the complainant for the same.
16. In order to prove the case of the complainant, the complainant filed a proof affidavit along with 13 documents before the remand. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A13 before the remand. Ext.A1 is the copy of Rank Certificate of the complainant in Lateral Entry Test (LET 2008). Ext.A2 is the copy of allotment memo for the lateral entry admission of the complainant to 1st opposite party’s college issued by 2nd opposite party. Ext.A3 is the copy of petition dated 31.7.08 filed before the 2nd opposite party. Ext.A4 is the copy of call details of the calls made by the complainant with opposite parties issued by BSNL. Ext.A5 is the D.D. application receipt of entrance examination fees remitted by complainant. Ext.A6 is the copy of pay in slip from Federal Institute of Science & Technology, Angamaly. Ext.A7 is the copy of complainant’s petition dated 12.8.2008 to Kerala Women’s Commission. Ext.A8 is the copy of complainant’s petition dated 12.8.2008 to Hon’ble Minister for Education, Kerala. Ext.A9 is the letter of the Director of Technical Education dated 11.12.2008 to the Principal Secretary to Govt., Higher Education (L) Dept. Ext.A10 is the copy of complainant’s advocate notice dated 13.1.2009 to 1st opposite party. Ext.A11 is the postal receipt of Ext.A10. Ext.A12 is the acknowledgment card of Ext.A10. Ext.A13 is the course fee certificate issued by Federal Institute of Science & Technology (FISAT).
17. On the other hand, the contention of the first and additional 3rd opposite party is that the complainant never approached the first opposite party for getting an admission or she had not made any written application or she had not made any telephone calls to the first opposite party in connection with her admission. In the academic year 2008-09, 10 students were admitted in their college under Lateral Entry Scheme. At the first instance, the first opposite party did not given admission to the lateral entry candidates on the basis of the decision of the Management Association and later that decision was changed and on the basis of the changed decision of the Management Association, they had given admission to the lateral entry candidates. Since the complainant has not turned up for getting admission, they have not committed any deficiency in service as alleged by the complainant.
18. In order to prove the contentions of the first and additional third opposite party, the first opposite party adduced oral evidence as DW1 before the remand. 2 documents produced by the first opposite party were marked as Exts. B1 and B2 before the remand. Ext.B1 is the copy of letter-dated 30.5.2009 from 2nd opposite party to 1st opposite party calling the details of students admitted under Lateral Entry Scheme during the academic year 2008-09 in the first opposite party’s college. Ext.B2 is the copy of letter-dated 3.6.2009 issued by first opposite party to second opposite party showing the list of students admitted under lateral entry in the year 2008.
19. The contention of the second opposite party is that on the basis of the willingness given by the first opposite party 18 selected candidates were allotted seats at Caarmel Engineering College under Lateral Entry Scheme. But the authorities of Caarmel Engineering College denied admission to the candidates those who had got allotment through online admission to the government seats without any reason. On getting complaints from the candidates who were denied the admission, the second opposite party taken the matter very seriously and discussed with the college authorities. As a result of the proper intervention, the college authorities agreed to admit the candidates and many students have joined there. But the second opposite party is unaware why the complainant did not join the college in time. The second opposite party had done everything to admit the candidates under lateral entry at Caarmel Engineering College. In order to prove the said contentions, the second opposite party has not adduced any oral or documentary evidence either in the earlier stage or after the remand.
20. On the basis of the contentions and arguments of the parties, we have perused the available evidence on record and found that the complainant had secured 567th rank under Lateral Entry Scheme in the year 2008 as per Ext.A1 and a seat was allotted to her at Caarmel Engineering College as per Ext. A2 by the second opposite party. According to the complainant, her admission was denied by the first opposite party and she intimated the matter to the second opposite party and they assured the complainant that they will do the needful for getting her admission. But they have not done anything in this regard which compelled the complainant to secure admission in another college under management quota by paying a huge amount to that management. The contention of the first and additional 3rd opposite party is that the complainant never approached them for getting an admission under lateral entry scheme as claimed by the complainant. The contention of the second opposite party is that they have made every arrangement with the first opposite party for providing admission to the lateral entry candidates at Caarmel Engineering College and they are unaware of the reason why the complainant did not join in that college. But on a perusal of Ext. A3, copy of the complaint dated 31.07.2008 to the Director of Technical Education, Thiruvananthapuram and Ext. A4 telephone call details, it is seen that the complainant had contacted and approached the opposite parties 1 to 3 for getting her admission at Caarmel Engineering College. Even if Ext. A3 is discarded as a forged document as alleged by the first opposite party, Ext. A4 cannot be discarded as it was issued by the BSNL authorities in the name of the father of the complainant. As per Ext. A4, it is seen that the complainant had contacted the opposite parties during the end of July 2008 and in the first week of August 2008 through telephone. The said telephone calls are, no doubt, in connection with the admission issue of the complainant and not for any other purpose as the complainant had no other business with the opposite parties other than her admission. So it is clear that the complainant had approached the opposite parties for getting her admission when she was denied her admission by first opposite party. Even then, she did not got the admission though she is eligible to get the admission under Lateral Entry Scheme. From this it is clear that the first opposite party denied admission to the complainant and the second opposite party did not interfered diligently for ensuring admission to the complainant at Caarmel Engineering College. The attitude of the first opposite party and the inaction of the second opposite party cannot be justified. The second opposite party being the competent authority of the Government of Kerala is not a subordinate of the first and additional third opposite parties. It is the duty of the second opposite party to ensure admission to the selected candidates in the respective colleges where the allotment is given by them. Opposite party have not adduced any evidence to prove their contention either before or after the remand. Caarmel Engineering College is functioning in the State. So they are legally bound to obey the orders of the second opposite party and they are answerable at least for the Govt. seats. Instead of admitting the selected candidates of the second opposite party, they have denied admission to the complainant. So they are answerable to second opposite party in this regard. At the same time, the second opposite party failed to act properly and failed to exercise their powers which is a grave deficiency in service to the selected candidates including the complainant. Available evidence shows that second opposite party has not acted then and there. The date of Exts. A9 and B1 reveal that the second opposite party had committed inordinate delay in entertaining the complainant’s complaint. Further there is no evidence to show that the second opposite party has not made any communication to the complainant regarding the actions taken by them for ensuring complainant’s admission at first opposite party college. If they have acted immediately such a situation would not have been occurred. Because of the inaction and deficiency of service of the opposite parties, the complainant did not got admission under government quota and she was compelled to obtain an admission under management quota by paying a huge amount. Hence this complaint is allowable. However in the circumstances of this complaint, the complaint had no direct cause of action against first opposite party and hence the reliefs prayed for in the complaint against first opposite party and additional 3rd opposite party are not directly allowable. So we found that this complaint is allowable against second opposite party.
21. Further, an aggrieved party in a proceeding is entitled to approach higher Forums. But that should not be for the sake of an Appeal. In this case, opposite parties 1 and additional 3rd opposite party and second opposite party filed separate Appeals before the Hon’ble State Commission. The Hon’ble State Commission allowed the Appeals and remanded the matter for fresh disposal giving opportunity for adducing additional evidence. But none of the opposite parties adduced any fresh evidence or additional evidence after the remand. This resulted in protracting the matter. We feel it as an harassment to the complainant. This caused much hardship to the complainant as well as to this Forum and hence opposite parties are liable for the same also.
22. In the result, this complaint is allowed as follows:
(1) The second opposite party is directed to pay an amount of ` 75,000 (Rupees Seventy five thousand only) as compensation along with cost of ` 5,000 (Rupees Five thousand only) to the complainant.
(2) In the light of the observation made by us in the preceding paragraph, opposite parties 1 and 2 are directed to pay ` 10,000 (Rupees Ten thousand only) each to the complainant as an additional cost for the harassment made by them towards the complainant.
(3) The second opposite party is directed to take appropriate action against the first and additional 3rd opposite party for their illegal act of denying admission to an eligible candidate.
(4) Parties are directed to comply the order within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 10% interest from today till the realization of the whole amount.
(5) Office is directed to send a copy of this judgment to the Principal Secretary to Govt., Technical Education Department, Government Secretariat, Thiruvananthapuram for information and necessary action.
Declared in the Open Forum on this the 27th day of June, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
PW1 : Lohitha Alphy James. P.
Exhibits marked on the side of the complainant:
A1 : Copy of Rank Certificate in Lateral Entry Test (LET 2008).
A2 : Copy of allotment memo for the lateral entry
admission to 1st opposite party’s college issued by 2nd
opposite party.
A3 : Copy of complaint-dated 31.7.08 filed the complainant
before the 2nd opposite party.
A4 : Copy of telephone call details of the calls made by the
complainant with opposite parties issued by
BSNL.
A5 : D.D. paid slip of entrance examination fees remitted
by complainant.
A6 : Copy of pay in slip from Federal Institute of Science &
Technology, Angamaly.
A7 : Copy of complainant’s petition dated 12.8.08 to Kerala
Women’s Commission.
A8 : Copy of petition dated 12.8.08 to Hon’ble Minister for
Education, Kerala.
A9 : Letter of the Director of Technical Education dated
11.12.08 to the Principal Secretary to Govt., HIgher
Education (L) Dept.
A10 : Copy of complainant’s Advocate notice dated 13.1.09 to
1st opposite party.
A11 : Postal receipt of Ext.A10.
A12 : Acknowledgment card of Ext.A10.
A13 : Course fee certificate issued by Federal Institute of
Science &Technology (FISAT), Angamaly.
Witness examined on the side of the opposite parties:
DW1 : Dr. Jobi. V. Paul.
Exhibits marked on the side of the opposite parties:
B1 : Copy of letter dated 30.5.09 from 2nd opposite party to 1st
opposite party calling the details of students
admitted under Lateral Entry Scheme during the academic
year 2008-09.
B2 : Copy of letter-dated 3.6.09 issued by the first opposite
party to the second opposite party.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Lohitha Alphy James, Palakkatharappil,
Irumbakachola, Kanhirapuzha, Mannarkkad,
Palakkad.
(2) The Principal, CML Carmel Engg. College,
Kunamkara, Ranni, Pathanamthitta.
(3) The Joint Director of Technical Education,
Padmavilasom Road, East Fort Road,
Thiruvananthapuram – 23.
(4) Managing Trustee Dr. K.P. Yohannan,
Carmel Engg. College, Perunadu.
(5) The Stock File.
