Per Justice Sham Sunder , President This order shall dispose of the aforesaid two appeals, arising out of the order dated 19.11.2010, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint and directed the OPs as under ; “The complaint is allowed with a direction to OP Nos.2 to 5 jointly and severally to refund the amount of Rs.3,85,000/- to the complainant alongwith interest @ 9% p.a. from the date of respective deposits. OPs No.2 to 5 are also directed to pay Rs.7000/- as costs of litigation to the complainant. The order be complied with by OP Nos.2 to 5 jointly and severally within 45 days from the date of receipt of its certified copy, failing which OP Nos.2 to 5 shall be liable to refund Rs.3,85,000/- to the complainant alongwith penal interest @ 18% p.a. from the date of the respective deposits, till its realization besides costs of litigation.” 2. The facts, in brief, are that the complainant undertook the entrance test for admission to Master’s Business Administration(MBA). He received interview letters, from various institutes, including OP-2 (now appellant No.1 in Appeal No.38 of 2011). Allured by the false promises made by OP Nos.2 to 5 ( in the original complaint), that they were affiliated with ICFAI University, Dehradun and he would be given regular degree of the said University and that their institute was a study centre of OP NO.1/appellant No.1, having 100% placement, he chose to get admission, in their College, and deposited admission fee of Rs.15,000/- and Rs.3,85,000/- as course fee. It was stated that the complainant attended the classes in Sector 25, Chandigarh, for about 3 months and pre-MBA classes from 15.5.2008 to 30.6.2008. On 18/19.10.2008, all of a sudden, he was shocked to know that the name of the institute was changed from INC to INC Adam Smith. He also came to know, at that time, that the College was not affiliated with ICFAI University, Dehradun, but was affiliated with ICFAI University, Tripura, which was not disclosed to him, at the time of admission. It was further stated that the affiliation was subsequently changed to Sikkim Manipal University, and, thereafter, to Maharishi Dayanand University, Rohtak, within a year. It was further stated that the institute, which was providing academic support, had no right to change affiliation from one University to another, as it was only to provide academic support. It was further stated that in the prospectus for the year 2009, the OPs misled the students by showing 100% placement for the year 2006-08. It was further stated that right from the very beginning, the OPs indulged into grave unfair trade practice, deficiency, in rendering service, committed fraud and cheating with the students, by giving misleading information, about their status, and by not providing required infrastructure, as was promised. In this view of the matter, the complainant requested for the refund of fee, deposited alongwith compensation, but to no avail. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only) was filed by him, seeking refund of fee of Rs.3,85,000/-, Rs.12.00 lacs for wasting his two precious years, Rs.2.50 lacs for physical harassment, and mental agony besides litigation expenses of Rs.15,000/- 3. OP Nos.2 to 5, in their reply, stated that the complainant, as per his own volition, after going through the prospectus and application form for enrollment, and application for academic support, and placement assistance, and having understood the contents thereof, opted for admission in the institute. It was further stated that there was no mention in the prospectus that OP No.2 was affiliated with ICFAI University, Dehradun, or that the University was recognized by the UGC. It was further stated that INC was providing only academic support, and placement assistance, just equivalent to tuition classes, for which no UGC recognition was required. It was further stated that the complainant had deposited the fee for the first and second year, of his own free will, and after the completion of studies for 1-1/2 years, and availing of the services of the OPs to the fullest extent, he stopped coming to the campus and sought the refund of fees on false grounds. It was further stated that the complainant was never stopped from appearing in the end semester examination. The change from INC to INC-Adam-Smith was admitted. It was denied that the requirement of 75% attendance was mandatory only for regular students, or that the complainant was given admission as a regular student. It was further stated that the disclosure at page 5 of the prospectus, clearly mentioned that INC was a constituent of ICFAI Academy. It was further stated that the complainant filed the complaint just to defame the OPs and no other student raised any doubt. It was further stated that it was clarified that INC centers were not the off-campus study centers of ICFAI University, Dehradun. It was denied that the OPs were deficient, in rendering service, and indulged into unfair trade practice, by allegedly playing fraud and cheating the students, by giving misleading information, to them. The remaining allegations were denied, being wrong. 4. OP No.1 filed its separate written reply, and took up almost the identical grounds, as were taken up by OP Nos.2 to 5, and pleaded that there was no deficiency, in rendering service, on its part, and indulgence into unfair trade practice. 5. The parties led evidence, in support of their case. 6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 7. Feeling aggrieved, Appeal bearing No. 38 of 2011 titled as ICFAI National College & others Vs Robin Jain, was filed by the appellants/OPs for setting aside the order of the District Forum, being illegal, and Appeal No.94 of 2011 titled as Robin Jain Vs ICFAI National College & others was filed by the appellant/complainant for modification of the order passed by the District Forum, by way of grant of compensation in the sum of 12 lacs for wasting two precious years of his life by the OPs, Rs.5 lacs for mental tension, harassment etc. alongwith litigation costs to the tune of Rs.15,000/- and Rs.one lac as expenses incurred on accommodation etc. 8. Vide order dated 15.3.2011 passed in Appeal No.38 of 2011 by this Commission, the names of appellants Nos.1,4 & 5 were deleted, as the Counsel for the these appellants, had no authority to file the appeal, on their behalf, and the remaining appellants i.e. ICFAI National College (originally appellant No.2) was renumbered as appellant No.1 and Col. K.K.Sharma (originally appellant No.3) was renumbered as appellant No.2. 9. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellants in Appeal No.38 of 2011, submitted that the complainant with eyes wide open, signed the declaration, contained in the application form for enrollment, for MBA programme, of his own volition. He further submitted that this declaration was, to the effect, that he was applying for MBA Programme, as a private candidate, and that he had carefully read the academic and administrative Rules and Regulations of ICFAI University, Dehradun. He further submitted that there was a clear-cut admission of the complainant, in the declaration that, in case, he withdrew from the programme, he would not be entitled to claim any refund of amount paid to the College, and the University. He further submitted that the application form for academic support and placement assistance of INC was also signed by the complainant, with eyes wide open, which contained the declaration, that he would be provided academic support and placement assistance offered by it, as a private candidate of MBA programme. He further submitted that both these declarations, contained, in the form OP/2/2, and another form at page 248 of the District Forum File, were signed by the complainant, after understanding the Rules and Regulations and he could not be allowed to wriggle out of the same. He further submitted that the appellants/OPs never made any false representation, to the complainant that it was affiliated with ICFA I University, Dehradun. He further submitted that OP No.2 institute, never represented that it was off Campus Study Centre of ICFA University, Dehradun. He further submitted that after more than one and a half years of attending the classes, the complainant of his own, left the course and, as such, he was not entitled to the refund of fee, to the tune of Rs.3,85,000/-, deposited with the appellants/OPs. He further submitted that the complainant was never enrolled, as a regular student, for MBA programme. He further submitted that the District Forum was wrong, in coming to the conclusion, that misleading information was given to the complainant, by OP No.2, that it was affiliated with ICFAI University, Dehradun ; and that he was given admission as a regular student. He further submitted that the complainant was given a computer by appellant No.1/OP No.2, but he never returned the same after leaving studies, of his own volition. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 11. On the other hand, the Counsel for respondent/complainant in Appeal bearing No.38/2011, and appellant in Appeal No.94/2011, submitted that, right from the very beginning OP No.2 Institute, cheated the complainant and gave him misleading information, about the fact, that INC(now Adam smith Institute of Management) was affiliated with ICFAI University, Dehradun. He further submitted that he was enrolled as a regular student, and that was why 75% attendance was insisted upon, for appearing, in the examination. He further submitted that the appellants/OPs in Appeal No.38 of 2011 were running a regular course of MBA programme at off-campus study centre, at Chandigarh. He further submitted that had the complainant been made known, at the time of taking admission that appellant No.1/OP No.2, in Appeal No.38/2011 was not affiliated with ICFAI University, Dehradun, and it was not legally authorized to open its off Campus Study Centre at Chandigarh, he would not have taken admission, and paid the fee. He further submitted that the appellants/OPs in Appeal No.38/2011 were not only deficient, in rendering service, but also indulged into unfair trade practice, by giving misleading information, to the students, including him, playing fraud upon them and also cheating them. He further submitted that a computer was given by appellant No.1/OP No.2, in Appeal No.38/2011 to the complainant which he was ready to return. It was further submitted that the District Forum did not take into consideration, that two precious years of the career of the complainant, were wasted , as a result whereof, it fell into a grave error in not granting any compensation. It was further submitted that the costs were meagre. He further submitted that the complainant be granted compensation of Rs.12 lacs for wasting his two precious years by the OPs, Rs.5 lacs for mental tension, and physical harassment, Rs.15,000/- as litigation expenses. He further submitted that the order of the District Forum be modified, to this extent. 12. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties , and, on going through the evidence and record of the case, we are of the considered opinion, that both the appeals are liable to be partly accepted , with modifications, for the reasons, to be recorded hereinafter. The first question, that arises for consideration, is, as to whether, any misrepresentation was made by the appellant No.1/OP No.2 in Appeal No.38/2011, that it was affiliated with ICFAI University, Dehradun, and was running off Campus Study Centre of the said University at Chandigarh. There is a document with C-5A at page-31/101 of the District Forum file, nomenclatured as “comparative table-INC Vs ASIM Campus”. This document was supplied by appellant No.1/OP No.2. In this document, in clear-cut terms, it was stated that ICFAI National College(INC) was affiliated with ICFAI University, Dehradun. Letter C-5 dated 21.10.2008 was issued by appellant No.2/OP No.3, in which, it was specifically mentioned that the degree of the students, will come from ICFAI University, Dehradun. Annexure C1 is the document, issued by OP No.2(now known as Adam Smith Institute of Management). According to this document ASIM(Adam Smith Institute of Management) has been running its campus at Chandigarh, since 2006. It means that ASIM Chandigarh was the off campus study centre, of ICFAI, Dehradun. However, in the written statement, a completely contradictory stand was taken by the OPs, that they never made a representation to the students that ICFAI National College (now Adam Smith Institute of Management) was affiliated with ICFAI University, Dehradun and it was an off study centre of ICAFI, at Chandigarh. In the face of the aforesaid documents, the contrary stand taken by the OPs, in the written reply, as also by their Counsel, at the time of arguments, clearly proves that a false representation was made to the complainant by OP No.2 that it was affiliated with ICFAI University and was authorized to run off campus study centre for MBA Programme of ICFAI University at Chandigarh. The District Forum was, thus, right in holding so. The findings of the District Forum, in this regard are affirmed. 13. The second question, that arises for consideration, is, as to whether, it was a full time regular MBA programme, which was offered to the complainant, and other students. C-2 is the welcome address of the Director of OP No.2 in which it was mentioned that they were offering a full-time MBA programme in 154 campuses across the Country. In the document C-5A, it was in clear-cut terms, mentioned that the said institute was affiliated with ICFAI University, Dehradun. The letter dated 21.10.2008 annexure C5 regarding the parent meeting-INC Campus issued by appellant No.2/OP No.3 duly recorded about the agitation of the students, regarding the requirement of 75 % attendance, and their insistence on this. OP-3 referred to the University Grants Commission (hereinafter to be referred as UGC) Rule, providing for the same and mentioned that they do not wish to compromise, on this aspect of the matter. It was admitted by the appellants/OPs in Appeal No.38/2011 that such a communication was sent to the parents whose wards were not attending the requisite number of classes. Annexure OP-2/3 is the letter vide which Mr. Suresh Jain, father of the complainant was informed about his not attending the classes. He was asked to advise him to attend classes regularly, failing which, they would not be responsible for his missing out, in the examination of the said semester. The OPs admitted that they had been doing this, for the last three years, and would continue to do the same, in future, which was the practice in all 154 INC campuses across the Country. In case, it was not a regular Course, which was offered to the complainant, and other students, then what was the necessity of 75% attendance. If the complainant got enrolled himself as a private candidate for MBA degree Course, then the question of 75% attendance, for making him eligible, to appear in the examination, did not at all arise. Reference to UGC Rule, which was not applicable to the appellant/OP, was misconceived. From the aforesaid documents, it was, thus, proved that an impression was given by the OPs intentionally to the students that it was a regular Course. The contrary stand taken by the OPs, in the written reply, and at the time of arguments by their Counsel that it was not a regular Course, but the complainant enrolled himself as a private student, clearly proved that a false representation was made to the students, that it was a regular course. The District Forum was right, in coming to the conclusion, that a false representation, was made, that it was a regular MBA Course, for which 75% attendance was required. 14. Now the next question, that arises for consideration, is, as to whether the appellant/OP, was running off campus study centre of ICFAI University, Dehradun at Chandigarh, unauthorizedly. At the time of admission of the complainant, in the Course, he filled in the application form for enrollment OP2/2. From this document, it is evident that he was being enrolled to ICFAI University, Dehradun. It is, thus, suggestive of the fact that the appellant No.1/OP NO.2 was the off-campus study centre of the said University and it was competent to enroll the students on its behalf. Another application at page 32/247 of the District Forum file for academic support and placement assistance was also filled-in by the complainant. He was asked with regard to INC centre where he wanted to study. Against this column “Chandigarh” was written. It means that appellant No.1/OP No.2 was running INC centre at Chandigarh. It was so done with a view to befool the students, and to let them believe, that they were the students of ICFAI University College, and not the students of a private institute. When the information was asked for from the UGC, New Delhi, the same was supplied vide Annexure C-6, wherein, it was in clear-cut terms, stated that ICFAI University, Dehradun & ICFAI University, Tripura were Private Universities. It was further intimated vide C6, that Private Universities could not affiliate any Institute/College. They could not establish off-campus study centres, beyond the territorial jurisdiction of the concerned States. However, they could establish off-campus study centres within the concerned States, after their existence for five years, and with the prior approval of the University Grants Commission. It was further intimated vide C-6 that so far UGC had not approved off campus study centre of any Private University. Vide C-6, it was also intimated by the UGC, that for running programmes, in distance mode, the approval of joint committee of UGC-AICTE-DEC, was required. It was further intimated that Distance Education Council is the Coordinator of the Joint Committee. The students/public, at large, were advised to have access to the website of the UGC, before taking admission, in any of the above State Private Universities, and report the matter to the Secretary, UGC, on finding any violation of the above provisions. This document, therefore, clearly proved that ICFAI University, Dehradun and ICFAI University, Tripura could not open their off campus study centres outside the States, in which, they were located,and they also could not provide distance education, except with the approval of the Joint Committee, referred to above, which they never got. Even, no degree could be awarded by the said University, from any other place, than the University campus. It means that the appellant/OP institute was being run, against the instructions/guidelines of the UGC. The appellants/OPs in Appeal No.38/2011 gave wrong information to the students, with a view to attract them, by adopting unfair trade practice, knowing fully well, that it was neither affiliated with ICFAI University, Dehradun, nor it could legally open an off-campus study centre at Chandigarh of ICFAI University, nor ICFAI University, Dehradun could award degree to the said candidates, for regular Course of MBA. Thus, OPs/appellants indulged into unfair trade practice. The District Forum was, thus, right in holding so. The findings of the District Forum, in this regard, being correct, are affirmed. 15. Right from the very beginning, the case of the complainant/respondent in Appeal No.94/2011 was to the effect, that had it been made known to him that OP No.2 institute in Appeal No.94/2011 was not affiliated with ICFAI University, Dehradun, or it was a private institute, he would not have chosen to study there. Once, he was given an impression and made to believe that the appellant No.1/OP No.2 in Appeal NO.38/2011 was affiliated with ICFAI University, Dehradun, he took admission, in the said college. It was, later on, that the complainant came to know, as discussed above, that neither the appellant No.1/OP No.2 in Appeal No.38/2011 was affiliated with ICFAI University, Dehradun, nor it could legally open off campus study centre at Chandigarh, nor it could enroll candidates for regular MBA Course. However, when ICFAI students came to know about the fraud, having been played upon them, they protested against the same, and a news item also appeared in Chandigarh Tribune dated 21.10.2008, a copy of whereof, is Annexure C/4. The news about the misdeeds of ICFAI also appeared in a 24 page magazine “Careers 360”, a copy of whereof is Annexure C/11. It was, thereafter, that he applied for discontinuing the Course, and refund of fee paid by him, but the OPs did not agree. Even the agitations were held and there was uproar amongst the students against the OPs since, October, 2008, as is clear from Annexure C/3 and Annexure C/9. It was, thus, clearly proved that right from the very beginning, the intention of OP No.2/appellant No.1 was to extract the tuition fee, and other amounts, from the complainant, and other students, by misleading them, that it was off campus study centre of ICFAI University, Dehradun, and it could open the same at Chandigarh, and enroll the students for regular Course of MBA. OP No.2/appellant No.1 cheated the complainant and other students by playing fraud upon them, by giving them misleading information, referred to above and, thus, indulged into unfair trade practice. The District Forum was, thus, right in holding so. 16. Coming to the penal interest granted by the District Forum, it may be stated here that the same is on the higher side. The Consumer Fora is required to grant interest at a reasonable rate. The interest on fixed deposits is 8% to 9% p.a. At the most, penal interest could be granted little higher than the normal rate of interest, on fixed deposits. In our considered opinion, interest @ 12% p.a, could be said to be fair and reasonable. The complainant is, thus, held entitled to penal interest @12% and not 18% p.a., as awarded by the District Forum. The order of the District Forum needs modification to this extent. 17. The Counsel for the respondent/complainant in Appeal No.94/2011 submitted that though, two precious years of the career of the complainant were wasted, due to indulgence into unfair trade practice, by the OPs, yet the District Forum failed to grant any compensation, to him. He further submitted that compensation to the tune of Rs.18.00 lacs, for spoiling his career, physical harassment, mental tension, expenses incurred on accommodation etc. should be granted, besides costs of Rs,15,000/-. For indulgence into unfair trade practice, by the appellants/OPs, by misleading the complainant and cheating him, he was required to be compensated, but the District Forum failed to take cognizance of this fact. Keeping in view the totality of facts and circumstances of the case, in our considered opinion, if the compensation to the tune of Rs.50,000/- is awarded, that would be fair, reasonable and just. Grant of compensation, beyond the same, would be unreasonable, unjust and unfair. No ground is made out, for enhancement of costs. The submission of the Counsel for the complainant, is partly accepted, to the extent, indicated above, and order of the District Forum, needs modification, to this extent. 18. No doubt, the Counsel for appellant No.1/OP No.2 in Appeal No.38/2011, submitted that, forms annexure OP/2/2 and at page-32/247 of the District Forum file were filled in by the complainant, with eyes wide open, and he signed the declarations contained therein, which were, to the effect, that he was enrolling himself, as a private student, he shall be given academic support and placement assistance offered by INC to the private candidates of the MBA programme, and shall not be entitled to the refund of fee and , as such, he could not wriggle out of the same, made by him, on 14.4.2008, yet it may be stated here, that the said contention of the Counsel for the appellants/OPs could not be accepted as correct. No doubt, on forms annexure OP/2/2 and at page 32/247 of the District Forum file, which were filled in by the complainant there was a printed declaration. When a student, who is not so mature, in the worldly life, seeks admission, in a particular course, he is to sign the form of the institute. In Appeal No.38/2011 the Director of appellant No.1/OP No.2 institute made a representation in his address annexure C2, nomenclatured as “Welcome to INC Placements” that INC College (Now Adam Smith Institute of Management Chandigarh) was affiliated with ICFAI University, Dehradun, and was their off campus study centre. Not only this, in so many other documents, discussed above, such a representation was made. As discussed above, in the written statement, and at the time of arguments, the stand of OP No.2/appellant No.1, was that it was not affiliated with ICFAI University and it had not opened its off campus study centre at Chandigarh. In these circumstances, the students including the complainant were misled. If, under these circumstances, the complainant was made to sign the printed declaration, on the aforesaid forms, which was contrary to the documents, referred to, and discussed above, then the same were the result of misrepresentation and fraud. These printed declarations, besides being contrary to the documents, referred to, and discussed above, issued by the OPs and UGC could be said to be one sided, and overloaded in favour of OP No.2. These printed declarations, appended on the application forms, referred to above, were nothing but amounted to indulgence into unfair trade practice. These declarations, therefore, could not be said to have been signed by the complainant of his own volition, but, on account of the false representations, made to him, and fraud played on him, in the manner, indicated above. Under these circumstances, the complainant could not be said to be bound by the said declarations, especially, when the same have been proved to be false, from the aforesaid documents. In this view of the matter, the submission of Counsel for the appellants/OPs, in Appeal NO.38/2011 that, in view of the declarations, it was not liable to refund the fee, nor it indulged into unfair trade practice, being devoid of merit, must fail and same is rejected. 19. No other point, was urged by the Counsel for the parties. 20. For the reasons, recorded above, Appeal No.38/2011 titled ICFAI National College & another Vs Robin Jain is partly accepted, with no order as to costs, with the modification that the appellants/OPs, shall be liable to pay penal interest @ 12% p.a. instead of 18% p.a. awarded by the District Forum. 21. Appeal No.94/2011 filed by the appellant/complainant, is also partly accepted, with no order as to costs, with the following modification ; (i) the appellant/complainant shall also be entitled to compensation to the tune of Rs.50,000/-, which shall be paid within 30 days from the date of receipt of a copy of the order, by the OPs, failing which the amount shall carry penal interest,@12% P.A. from the date of this order till realization. (ii) the appellant/complainant, shall be entitled to the penal interest @ 12% p.a. instead of 18% p.a. awarded by the District Forum, as indicated above, while partly accepting appeal No.38/2011. (iii)the appellant/complainant shall return the computer to the OPs, supplied to him, during the course, within 60 days, from the date of receipt of copy of the order, by sending a registered notice to them, failing which, he shall pay the price thereof, prevailing at the time of return. (iv)the remaining directions, given and the reliefs granted, by the District Forum shall remain unaltered. 22.. Certified Copies of this order be sent to the parties, free of charge. 23. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
