CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Present

Sri.Santhosah Kesavanath.P. President

Smt.Bindhu M.Thomas Member

Sri.K.N.Radhakrishnan Member.

CC.No.9/07

Wednesday, the day of 18^th, November, 2009.

Petitioner. Ajith.S.

Perumparayil house

Pampady.P.O.

Kottayam.

Vs.

Opposite parties. 1. Sri.Sarvesh

Manager-cum-Administrator

Amrith Educational &

Cultural Society

Maruthi College of Nursing

Kammanahalli, Near

Meenakshi Temple

Bannerghata Road

Bangalore-560076.

2. Mansoor Ali, Learn Tech Educational

Consultancy, #6,D Main, East End

9^th Block Jayanagar, Bangalore.

(Adv.P.A.Rabeez)

3. Sijo Joseph

Kunnumpuram (H)

28/47, Kurisumood. P.O.

Changanacherry having office as

(Educational Consultant,

Learn Tech World Wide Educational

Trust,@, Ist Floor, Mareena building

Opp.KSRTC Bus stand

Kerala, Changanacherry-686 101).

(Adv.Saderlana.N.)

O R D E R

Smt.Bindhu M.Thomas, Member.

The crux of the complainant's case is as follows.

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The first opposite party is the Manager and Administrator of Amrith Educational Cultural Society, Maruthi Nursing College, the second opposite party is an educational consultant who is having an educational consultancy in the name and styleLearn Tech Educational Consultancy and the third opposite party who is the local agent of the second respondent.

Influenced by the Malayala Manorama advertisement under its scheme Horizon Educational advertising at Mammen Mappilla Hall, complainant who passed his plus-two examination in science contacted their agent the third respondent and fixed admission for the B.Sc Nursing course in the college administered and managed by the first opposite party. The college represented by the first opposite party requested to remit Rs.1,48,000/- as fee for the first year and Rs.74,000/- each for the further period of 5 years. The opposite parties had also collected Rs.25,000/- as admission fee amount towards security which the complainant handed over to the third opposite party at his office at Changanacherry for which he issued a receipt in the name of another person and another place named Pulinkunnu as he told that his receipt book is not with him. Further payment of Rs.5000/- was also made by the complainant alongwith his educational document. Eventhough the first opposite party requested for payment of Rs.1,48,000/- the college issued a fee structure for Rs.97,000/- only. The complainant resisted the same and told the opposite parties that the Bank will pay only Rs.97,000/- and not Rs.1,48,000/- and as such the complainant is unable to raise the balance amount. Then the fee structure for Rs.97,000/- dated 6-7-05 was returned and another fee structure of Rs.1,48,000/- dated 6/8/05 was issued. The complainant submitted the DD for Rs.1,48,000/- with the college where upon the first opposite party issued photo copy of Recognition of Nursing Council dated 6/8/05. Believing the said copy the complainant joined the college on 19-09-05.

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When the classes started the complainant understood that there were 80 students in the batch whereas the recognition was only for admission of 40 students. On enquiry, the first and second opposite parties assured that the complainant will get recognition. The complainant came across a paper publication of Gurumoorthy Committee disclosing the names of few institutions which are having substandard quality of which the opposite party college was arrayed as the first. The students started agitation and the complainant returned to kerala knowing that he is not included in the first forty students for which recognition will be given unless higher amount of fees paid. Because of the above mentioned reason the complainant was not ready to go back to continue the studies and he requested to return the original certificates along with the fees. The complainant alleged that the opposite parties action of collecting Rs.1,48,000/- after issuing a fees structure for Rs.97,000/-, their action of admitting 80 students for the course whereas they are allowed to admit 40 students only, the claiming of Rs.50,000/- to be included in the 40 students to secure recognition of Nursing Council and the lack of facilities and quality is against the provisions of MRTP Act and deficiency on their part. Hence the complainant filed their complaint claiming refund of Rs.1,48,000/- compensation Rs.50,000/- litigation cost Rs.10,000/-.

No version was filed by the third opposite party even after several postings, so the third opposite party was set exparte. A petition to set aside the exparte order was filed by the third opposite party. But as there was no representation from the part of the third opposite party on the further postings, the petition to set aside the exparte order was dismissed. Whereas the first and second opposite parties entered appearance and filed version together. The first and second opposite parties version came with the following main points.

(i) After knowing fully well about the Rules, Regulation, Aims, objects

and conditions in the prospects the petitioner joined in the college.

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(ii) Government of karnataka sanctioned 80 seats for the said course ie.

approved seats for 40 students, free seats 6 numbers and management seats 34 numbers. In the list of approved students the petitioner's

name arrayed as the third.

(iii)The petitioner submitted a representation before the first

opposite party for allowing him to discontinue the course, for

releasing his SSLC and Plus 2 certificates and for refunding

the hostel deposit. The certificates and hostel deposit were returned on

11-8-2006.

(iv) Because of the voluntary withdrawal of the petitioner

from the course the opposite party sustained heavy loss in

terms of fees for the remaining period of the said course

that also lapsed an opportunity of another competent candidate.

(v) This forum has no jurisdiction to decide the matter because

of the following reasons.

(a)the dispute between the petitioner and the college is subject to the jurisdiction of Bangalore. (b) no transaction with the

petitioner occurred within the jurisdiction of this

forum since the institution has no connection with the

alleged receipt issued by the third opposite party. © the

third opposite party is only a name lender of the petitioner

and he was arrayed in the parties in collusion with the

petitioner for making jurisdiction before this forum.

(d)if the petitioner failed to prove any relationship between

opposite parties 1 & 2 with the third respondent, this forum

lost jurisdictional power to proceed the case against

opposite parties 1 & 2.

 

 

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(vi) The petitioner agreed in case of discontinuance of the

course in the middle, he himself will be liable to pay

the entire fees for the course. The petitioner

requested to discontinue the course only because of

his own personal reasons even after obtaining admission

in the first list of approved seats.

(vii)There is no consumer relationship in between the

petitioner and opposite parties 1 & 2 and there is no

deficiency in service on the part of the opposite

parties.

(viii)The third opposite party issued receipt in the name of

another and therefore the petition is bad under non-joinder

of necessary party.

(ix)The third respondent not the local agent of opposite

parties 1 & 2. The alleged receipt of Rs.25,000/- not in

knowledge of these opposite parties.

(x)Though the first opposite party issued a fee structure

for Rs.97,000/- as the applicant requested for hostel

facility the fee structure was changed to Rs.1,48,000/-.

(xi) The Guru Moorthy Committee report in no way effect

the course operated by the first opposite party and

therefore the opposite parties are not liable for non-

disclosure of any matters.

(xii) No cause of action arose within the jurisdiction

of this forum since the third opposite party is not

 

 

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connected with the first and second opposite parties.

The alleged cause of action not comes under MRTP Act or

CPAct and the 1 & 2 opposite parties cannot be held

liable to compensate the claim.

Hence the first and second opposite parties prayed to dismiss the petition with compensatory cost.

Points for consideration are:

(i)Whether there is any deficiency in service or unfair

trade practice on the part of opposite parties?

(ii) Reliefs and costs?

Evidence consists of affidavits filed by the petitioner and first and second opposite parties and exhibit A1 to A11 and B1 to B5.

Point No.1.

The question of maintainability was decided as a priliminary issue and this forum found the petition as maintainable. The petitioner averred that the third opposite party collected Rs.25,000/- as advance for the seat reservation for Maruthi B.Sc. But gave receipt only for Rs.20,000/-. The said receipt is produced and marked as exhibit A1. Whereas the first and second opposite parties counter averred that the petitioner failed to prove any relationship between opposite parties 1 & 2 with the third opposite party. As the third opposite party chose not to contest the averments of the petitioner against the third opposite party remain unchallenged. It was open to the first and second opposite parties also to prove that the third opposite party was not their agent and the receipt issued by the third opposite party had no connection with them. But nothing is placed on record by the first and second opposite parties to substantiate the abovesaid matter. As

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there is no specific denial by the third opposite party we feel that Rs. 20,000/- of ext.A1 was received as advance for reserving seat in Maruthi College.

The petitioner alleged that the opposite parties action of collecting Rs.1,48,000/- after issuing a fees structure for Rs.97,000/- and admitting 80 students whereas they are allowed to admit only 40 students are penal and legally questionable. The fee structure for Rs.97,000/- issued by the 1 & 2 opposite parties for the first year B.Sc. Nursing is produced and marked as exhibit A5. Another fees structure of Rs.1,48,000/- for the same year is also produced and marked as exhibit A6. According to the first and second opposite parties the exhibit B5 fee structure was changed to Exhibit B6 fees structure as the petitioner requestedfor hostel facility. On scanning exts A5 and A6, it is understood that in both these fees structures'hostel fee' and 'mess fee' are included. Moreover the 12 particulars included in the exhibit A5 fees structure is repeated in the Exhibit A6 fees structure also even without a change in the order. The only difference seen between exhibits and A5 and A6 fees structures for the first year is the amount hike for all the particulars except for ''vaccination''. It is surprising to see that the candidate who has not opted hostel facility was given a fees structure which included 'hostel fees' and 'mess fee' and the very same candidate after opting hostel facility was given a fees structure in which all the 12 particulars of the first fee-structure were included but with hike in amounts. The exhibits A5 and A6 prove the deceptive practice adopted by the first and second opposite party. After persuing the said exhibits it appears to be more probable that the issuance of the bogus fees structure might have been for the inclusion of the petitioner among the 40 approved students as alleged by the petitioner.

The copy of the letter issued by Indian Nursing Council is produced and marked as exhibit A4. As per ext A4, the number of approved seats in the opposite parties college is 40. The first and second opposite parties also produced a list of approved students attested by the Registrar, Rajeev Gandhi University and it is marked as exhibit

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B1. In ext. B1, the petitioner arrayed as the third one in the approved list of students. But the exhibit B1 also reveals that the number of admissions approved are only 40. The act of opposite parties in admitting 80 students to a course whereas they are allowed only 40 approved seats is a clear case of unfair trade practice. The above mentioned act of the said institute has the effect of playing with the student's career and is no longer allowable or acceptable.

The opposite parties contented that the withdrawal of the petitioner from the course was voluntary. They further contented that they sustained heavy loss in terms of fees for the remaining period of the said course that also lapsed an opportunity of another competent candidate. The petitioner has drawn our attention to the following reports that came in a Malayalam daily.

(i)The page 11 of the 'Mathrubhumi daily dated 5^th June

2006 marked as exhibit A10. In Ext. A10 it is reported

that the Garumoorthy Commission has found the opposite

party college is not having necessary standards.

(ii)The page 15 of Mathrubhoomi Daily dated 29^th June 2006

marked as exhibit A11. Ext.A11 reads that the opposite

party college which is permitted by the Indian Nursing

Council for giving admission to 40 students has

admitted to that course 80 students in violation of the

permission from the Indian Nursing Council.

The petitioner submitted that he discontinued his studies only for the lack of quality and facilities of the course and the baseless collection of fees. To disprove the petitioner's abovesaid submission the opposite parties produced the letter issued by the petitioner to the opposite parties and marked it as exhibit B5. Ext. B5 is a representation

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submitted by the petitioner for allowing him to discontinue from the course. Even if exhibit A5 stands in support of the opposite parties contention of ''voluntary withdrawal from the course'', no evidence is produced by the opposite parties to show that the seat vacated by the petitioner remained vacant thereby causing loss to the opposite parties. It would be presumed that no loss has been caused to the petitioner. The opposite parties averred that the hostel deposit of Rs.10,000/- and all his original documents were returned to the petitioner in time. On perusal of the exhibits it is understood that the above said documents and Rs.10,000/- returned to the petitioner.

It is not in dispute that Rs.1,48,000/- was received by the first and second opposite parties. Fees are paid for services to be rendered by way of imparting education by educational institution. It is clear that no service provided but consideration received by the opposite parties. The application form for admission is marked as exhibit B2 and the reverse side of B2 as ext.B2(a).The learned counsel for opposite parties argued that in exhibit B2(a), there is a declaration by the petitioner that the fees once paid by him is not refundable under any circumstance. Merely because of the said declaration the opposite parties are not justified in swallowing the entire fees amount of Rs.1,48,000/- and thus enriching themselves. The learned counsel further argued that no other demands were made by the petitioner other than the demand for original certificate and hostel deposit. The opposite parties 1 and 2 cannot take advantage of the confused and tensed mental state of the student at the time of cancellation of the said course. Contention of the opposite parties that the fees once paid is not refundable is not acceptable. In our view the opposite parties should have refunded the entire fees at the time of cancellation itself as no service was rendered by them to the petitioner. So in our opinion the OP1 and OP2 are liable to refund the fees with interest to the petitioner.

From the facts and circumstances of the case we hold that the first and second opposite parties adopted unfair trade practice in receiving bogus fees, in admitting 80

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students instead of the approved 40 seats and in retaining the fees paid by the petitioner without rendering any service. Point No.1 is found accordingly.

Point No.2.

The copy of the letter issued by the complainant to the opposite party which is marked as exhibit B5 proves that the hostel fees Rs.10,000/- was refunded. So, after deducting the said Rs.10,000/- balance fees amount is only Rs.1,38,000/-.

In view of the findings in point No.1 the petition is allowed.

The first and second opposite parties are ordered to refund the balance fees amount of Rs.1,38,000/- with interest @ 9% p.a. from the date of cancellation of admission till payment to the petitioner. As interest is allowed no compensation is ordered. The first and second opposite parties are also ordered to pay Rs.2500/- as litigation cost to the petitioner.

This order will be complied with within one month of receipt of its copy.

Smt.Bindhu M.Thomas Member Sd/-

Sri.Santhosh Kesavanath.P. Member Sd/-

Sri.K.N.Radhakrishnan Member. Sd/-

APPENDIX

Ext.A1 Original receipt for Rs.20,000/- to the first opposite party.

Ext.A2 Photocopy of receipt for Rs.1,48,000/-

Ext.A3 Photocopy of DD for Rs.1,48,000/- dt.16/9/05.

Ext.A4 Photocopy of the letter issued by the Indian Nursing Council dt.6.8.05.

Ext.A5 Photocopy of certificate of fees structure No.AECS/MCN/BL/2005-2006

dated 6/7/05 for Rs.97,000/-.

Ext.A6 Copy of fees structure for Rs. 1,48,000/- dt.6/8/05.

Ext.A7 Office copy of lawyer's notice dt.27/10/06.

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Ext.A8

Ext.A9 Unserved registered notice.

Ext.A9(a) Unsewrved registered notice

Ext.A9(b) Unserved registered notice.

Ext.A10. Page 11 of Mathribhoomi daily dt.5/6/06.

Ext.A11 Pge 15 of Mathrubhoomi Daily dt.29/6/06.

Documents of the opposite party.

Ext.B1 approved student's list.

Ext.B2 The application for admission.

Ext.B2(a) Reverse side of Ext.B2.

Ext.B3 Copy of representation submitted by the petitioner.

Ext.B4 Copy of letter issued by the principal to themselves

registrar dt.11/8/06.

Ext.B5 Copy of receipt of Rs.10,000/-.

By Orders,

Senior Superintendent.

Kgr/6 copies.