BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of January 2012 Filed on : 30-01-2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 43/2010
Between
S.S. Mahendrakumar, : Complainant
S/o. K. Sreedharan Pillai, (party-in-person)
Kovoor Karottu house,
Thottackadu, Kottayam.
And
1. SCMS Group, : Opposite parties
Cochin Corporate Office,
Prathap Nagar, Muttom,
Aluva, Cochin-683 106.
Rep. by its Chairman Dr. GPC Nair. (By Adv. Millu Dandapani,
Dandapani Associates,
2. SCMS School of Engineering and “Thrupthi” T.D. Road, North
Technology, Vidhya Nagar, End, Cochin-35.)
Karukutty, Ernakulam-683 582.
Rep. by its Principal.
O R D E R
A Rajesh, President.
The brief facts of the complainant’s case are as follows:
Complainant is a student who was admitted in the 2nd opposite party college in the Auto mobile Engineering branch in the management quota. The admission was secured in the management quota because the prospect of getting admission in the government quota was proved to be a distant possibility, since his rank in the all Kerala Entrance Examination in Engineering was 52050. Complainant paid Rs. 2,46,000/- (Rupees two lakhs fortysix thousand only) at the time of admission. Unfortunately subsequent developments turned the tables against the complainant because his son found the new course academically incompatible to him. His revulsion to the subject later blown out into physical stress and mental strain. Ultimately the student confessed to his father his inability to cope up with the new academic atmosphere . He was advised by the college authorities to consult a counselor. Counselor advised the father to take away the boy and admit him for some lighter course. When the college authorities were approached with a request for transfer certificate and other relevant records, the complainant was told that he should pay Rs. 60,000/- in addition to make the liquidation damages to Rs. 3,00,000/- in tune with the agreement they had made with the State Government. To save one year, the unwilling father had to ultimately surrender before the college authorities to get the vital certificate of the boy released promptly. When, at a later time, the refund of the amount was demanded, it was turned down. That is how, as the last resort, the complainant has come up before the Forum with the prayer of refund as well as compensation for mental agony in addition to cost of the proceedings.
2. The version of the opposite parties.
The complainant’s son was allotted a seat in the college for engineering course in the management quota, after the commencement of classes i.e. in the 1st week of September. In the last week of September the student wanted to quit the course and requested to issue the transfer certificate. The same was not issued. As per clause 3 in the agreement entitled into between the Government of Kerala and the Kerala Self Finacing Engineering college Management’s Associates the issuance of the TC to the student would amount to the violation of the agreement. The complainant cannot demand the TC without remitting the entire course fees. Complainant is not entitled to get any of the reliefs as prayed for.
3. At the threshold the complainant was examined as PW1 and Exts. A1 to A10 were marked on his side. Neither oral nor documentary evidence was adduced by the opposite party. Thereafter the complainant was allowed by this Forum vide order dated 30-10-2010. Aggrieved by the order the opposite parties preferred Appeal No. 93/2011 before the Hon’ble Kerala Consumer Disputes Redressal Commission, Thiruvananthapuram. The Commission vide order dated 04-05-2011 remitted the complaint for fresh disposal after permitting the parties to adduce fresh evidence if wanted. In furtherance of the above direction Ext. A11 was marked on the side of the complainant. The witness for the opposite parties was examined as DW1 and Exts. B1 and B2 were marked on their side. Heard the complainant who appeared in person and the learned counsel for the opposite parties.
4. The points that arose for consideration are
i. Whether the complainant is entitled to get refund of the fees
of Rs. 3,06,000/- with interest ?
ii. Whether the opposite parties are liable to pay compensation
and costs of the proceedings to the complainant. ?
5. Point No. i. The parties are in consensus on the following
issues.
i. The complainant’s son Vishnu Mahendran have secured an
admission in the management seat to the first semester of
Automobile Engineering Course conducted by the opposite
parties on 09-09-2009.
ii. The complainant’s son remitted a total amount of Rs.
2,46,000/- with the opposite parties towards fees, evident
from Exts. A1 to A3 receipts.
iii. The complainant’s son decided to discontinue the couse
and intimated the same to the opposite parties
on 24-09-2009.
iv. The opposite parties collected a sum of Rs. 60,000/- in
addition to the fees to issue the transfer certificate
evidenced by Ext.A6 receipt dated 24-09-2009.
6. The learned counsel Mr. Millu Dandapani appearing for the opposite parties vehemently contended that as per clause 10 in Ext. B2 agreement dated 03-07-2009 between Government of Kendra and the Kerala Self Financing Engineering College Management’s Association the student is liable to pay the balance tuition fee for the remaining 3 years, since the student was admitted to the course on 09-09-2009 and withdrew from the course on 29-09-2009 after closing the admission for the current year. Clause 10 in Ext. B2 reads as follows:
“The educational agency is authorized not to refund the tuition fee of the course in the event a student admitted under the management or government quota, deserts or discontinues his/her studies for any reason at any time after 14th August 2009. Students allotted under Government quota shall be entitled to seek higher options on or before 14h august 2009. Students seeking higher options shall intimate the educational agency and the Commissioner for Entrance Examinations of their decision in writing to withdraw from the allotment under the educational agency on or before 14th August 2009. In such cases the educational agency shall be bound to refund the amounts received/collected. In case, any student admitted to the college decides to cancel the admission for any reason whatsoever after the 14th August, 2009 the educational agency shall be entitled to collect the tuition fees for entire course as fixed under this agreement. The documents pertaining to such student shall be released only on payment of the above amount. The commissioner for Entrance Examinations shall not allot any student to the educational agency after 14th August 2009.
7.During evidence DW1 the principal of the college deposed that they have closed the admission for the academic year 2009-2010 on 23-09-2009. However as per Ext. A11, the information furnished by the Higher Education (G) Department dated 01-02-2010 goes to show that the admission is to be closed only on 30-11-2009. The opposite parties maintain that the above closing date is only applicable to merit quota students. The above contention of the opposite parties is untenable as there cannot be separate dates as last date of admission for the management quota students and merit quota students for no reasons sustainable and uncontroverted. So it was open to the opposite parties to admit any student in the vacancy of the complainant till complainant till 30-11-2009. In view of the matter the opposite parties can not sustain any loss due to the withdrawal of the student. The Hon’ble National Consumer Disputes Redressal Commission in Nipun Nagar V Symbiosis Institute and International business 1 (2009) CPJ 3 (NC) . The dictum laid down in this case has been subsequently followed by the commission in its later decision in Sehgal School of Competition V Dalbir Singh III(2009)CPJ 33 NC.
8. In both these cases, the Hon’ble Commission has placed much reliance on the public notice issued by UGC in consultation with Ministry of Human Resources Development of the Government of India. In the said public notice UGC has come down heavily upon the Institutions and colleges against making their premises virtually market places for profit making. It will be gainful for our present purpose to quote the relevant portion of the said notice. It reads : “………..Should a student leave after joining the college and if the seat consequently falling vacant has been filled by another candidate by the last date of admission the institution must return the fee collected with proportionate deduction of monthly fee and proportionate hostel rent, where applicable”.
9. Moreover the All India Council for Technical Education (AICTE) has in their direction bearing No. AICTEL/Legal/04(01)/2007 stated that “All India Council for Technical Education (AICTE) has been empowered interalia under section 10 (n) of AICTE Act to “take all necessary steps to prevent commercialization of technical education”. In compliance with the provisions under AICTE Act and in the light of directions of Govt. of India issued under section 20(1) of AICTE Act vide Letter No. (U 1(a) Section), it has been decided to issue instructions to the Technical institutions, Universities including Deemed Universities imparting Technical Education in the matters concerning students.”
“In the event of a student/candidate withdrawing before the starting of the course the wait listed candidates should be given admissions against the vacant seat. The entire fee collected from the student, after a deduction of the processing fee of not more than Rs. 1,000/-(Rupees one thousand only) shall be refunded and returned by the institution/University to the student/candidate withdrawing from the programme. It would not be permissible for Institutions and Universities to retain the School/Institution leaving certificates in original. Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the Institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable”.
10. It is pertinent to note that the student or the complainant is not a party to Ext. B2 agreement. The opposite parties do not have a case that they have conveyed the terms and conditions in Ext. B2 agreement to the student or the complainant before they took admission in the college. Had the opposite parties conveyed the terms and conditions in Ext. B2 to the student or the complainant they would have got an option or opportunity to think twice in this regard. So we are of the view that the agreement is not binding on the student or the complainant.
11. According to the Hon’ble National Commission in the absence of any bond/bank guarantee taken for the student to the effect that balance fees for whole course would be received by the Institute even if complainant left in the midstream is not acceptabale. (Maudsaur Institute of Techonology & Anr. V. Akshat IV (2011) CPJ 376 (NC) ). As per the Inststruction of the AICTE, UGC and from the forgoing discussions we had, the opposite party is legally bound to refund the retained fees after deducting the processing fee of Rs. 6,000/-.
12. Before parting with this order we appreciate the extra ordinary caliber and enterprise shown by the learned lawyer Mr. Millu Dendapani which was helpful for this Forum to come to a conclusive decision.
13. Point No. ii. Since the primary grievance of the complainant having been met squarely and adequately order for compensation and costs are called for.
14. In the result, we partly allow the complaint and direct that the opposite parties shall jointly and severally refund Rs. 3,00,000/- (Rupees three lakhs only) to the complainant for the reasons stated above together with interest @ 12% p.a. from the date of complaint till realization.
The Above said order shall be complied with within a period of one month from the date of receipt of copy of the order.
Pronounced in the open Forum on this the 31st day of January 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Receipt dt. 9-9-2009
A2 : Receipt dt. 9-9-2010
A3 : Chellan dt. 10-9-09
A4 : Notification dt. 1-10-09
A5 : Prospectus
A6 : Receipt dt. 25/9/09
A7 : Prospectus
A8 : Govt. order dt. 26-11-2009
A9 : Lawyer notice dt. 3-12-09
A10 : Lawyer notice dt. 14-12-2009
A11 : Two letters dt. 18-01-2010
and 01-02-2010
Opposite party’s Exhibits :
Ext. B1 : Copy of agreement
dt.24-06-2008
B2 : Copy of agreement
Depositions:
PW1 : S.S. Mahendra Kumar
DW1 : M. Mahadevan
