DOF 26.9.2009

DOO. 1.12. 2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the 1^st  day of December      2010

C.C.No.257/2009

Deepak Das,

Das Villa,

Vengali Kozhikode.                                 Complainant   

 (Rep. by Adv.Roopesh.K)                                                                     

 1.Director,

   Co. Operative Academy of

   Professional Education(CAPE)

   Co-bank Tower, First floor,

   Vikas Bhavan,P.O.,

   Thiruvananthapuram.

2.The Principal;,

   College of Engineering

   Thalassery.

   (Rep. by Adv.K.M.Pradeepnath)            Opposite parties                                                                       

          O R D E R

Sri.K.Gopalan,President

          This is a complaint filed under section 12 of the consumer protection Act for an order directing the opposite party to refund the deposit including  caution deposit paid by the complainant together with a sum of  ` 5000 as compensation  along  with cost.

          The brief facts of the case of the complainants are as follows: Complainant was a student of college of Engineering Thalassery. He was admitted on payment of required tution fee for NRI quota for the year 2007-2008. He had also remitted ` 100000 by way of refundable deposit and completed his 1^st year course successfully. Thereafter complainant suffered from Chronic Asthma problem and the doctor treating him advised that a regular study is not possible for him and so he decided to discontinue the course. Then he approached 2^nd opposite party requesting to refund the amount. But 2^nd opposite party has not heeded the request whereas  they stated that without paying  3 lakh rupees, the fee of next 3 years, he will not be in a position to return the documents and issue transfer certificate. Complainant approached the Minister for co-operation for consideration of his grievances. Later he received  all the certificates but not the deposited amount. Complainant issued lawyer notice. 2^nd opposite party replied that it is not possible to refund the said amount. Hence this complaint.

          Pursuant to the notice opposite parties entered appearance and filed version. The brief contention of the version filed by the 1^st opposite party is as follows: Complainant is not a consumer and there is no consumer dispute. Complainant discontinued his education and the course voluntarily, out of his own free will and decision, after completing the first academic year successfully. The prayer for the refund of the deposited amount is premature and not within the jurisdiction of the Forum especially at a stage when even the entire  course term of  4years is not over and  more so when such a seat falls vacant after the first academic year causing irreparable damage to the opposite parties. If the complainant has any grievance regarding the refundable deposit he has to approach the Fee Regulatory Committee (Justice P.A.Muhammed for refund of his deposit amount of   ` 100000. It has to be taken into account the undertaking given by the complainant that he will not seek refund. Complainant has accepted the terms and conditions regarding the levying of damage in case of discontinuance of studies after the completion of one academic year in the B.Tech course. The complainant deliberately suppressed material facts. Fee structure and deposit etc. are fixed by Govt. of Kerala. There are written instructions to candidates appearing for entrance exams and the rules with respect to admissions, payment of deposit fees and refund incase of discontinuance of course before or during the course. Any student who discontinue his/her studies and leaves any college under the CAPE, after closure of admission to that college, is liable to pay the entire tuition fee for the remaining course and the transfer certificate will be issued to him/her only after compliance with this contentions. Moreover, refund of deposit amount can be made only after the completion of the four year entire course of the batch to which complainant is admitted to. There are clear provisions regarding refund. The complainant is liable to pay the fees for the remaining three years i.e. `300000 or damages of  `50000 which ever is higher. There is no deficiency of service on the part of opposite parties. Complainant has accepted all these terms and conditions. Opposite parties have taken a lenient view and on compassionate ground, did not insist payment of liquidated damages or the fees or remaining three years before returning the certificates and issuing TC. The decision regarding refund of deposit without adjusting the fees to be paid has been deferred to be considered after the completion of the course to which he is admitted complainant has also given undertaking that he will not claim the refundable deposit ` 100000 as he has been issued the T.C and other certificates without levying of damages of  `300000. The opposite party withholds the refund of deposit as per the rules and regulations. There is no deficiency in service or unfair trade practice on the part of opposite parties.

          2^nd opposite party also filed version taking the same contentions as that of 1^st opposite party which is not repeating again.

On the above pleadings the following issues were raised for consideration.

1. Whether the complaint is maintainable?

2. Whether the withholding of refund of deposit amount on the

     part of opposite parties amounts to deficiency in service?

3. Whether the complainant is entitled for relief as prayed in the

      complaint?

4. Relief and cost.

                    The evidence consists of the oral testimony of PW1, Exts.A1 to A7, B1 to B7.

Issue No. 1 to 4

Admittedly complainant is a student of College of Engineering Thalassery. He was admitted under NRI quota in Mechanical Engineering course. He paid necessary fees and had made a deposit of   ` 100000 as refundable deposit. Complainant discontinued his studies after completion of one year course since he had been suffering from Chronic Asthma problems Thereafter complainant approached 2<sup>nd</sup> opposite party for return of documents issuance of T.C and refund of deposited amount. Opposite party returned back the documents and issued TC but did not refund the deposit. Opposite party contended that any student who discontinues studies after closure of admission is liable to pay the entire tuition fee for the remaining period. It is further contended that as per the clause 1.2.4(a)(i)(b)(ii) any student who discontinues is liable to pay liquidate damage and thus complainant is liable to pay the fees (i.e. `300000) or damages  50000 which ever is higher.

Point N o.1 under 1^st issue to be decided is whether opposite party is liable to refund the refundable deposit amount and so also the caution deposit. Complainant left the institution for ever and already received all the certificates. Only these questions, question of refund of deposits ie. refundable deposit and caution deposit remains to be decided. The guiding base upon which these points can be decided is the provisions that concerned with the fees and refund of fees. Ext.B1 “ Admission to MBBS & B.Tech course under NRI quota 2007-08 Instruction to candidates” clause 10 reads thus: Any student who discontinues his/her studies and leaves any college under the CAPE after closer of admission to that college, is liable to pay the entire tuition fee for the remaining years of the course and the transfer certificate will be issued to him/her only after the compliance with this condition.

PW1 in cross examination deposited that “ Ext.B1  R§Ä ]Ip-Xn-h-gn-bn ]T\T-\nÀ¯n-t]m-bm apgp-h³^o-kpT AS-¡m³ _m²-y-Ø-\m-sW¶v clause 10{]Im-cT D­v”. Clause 10 makes it clear that complainant is liable to pay the three years course fee and complainant also is aware that he is liable to pay the remaining course fee as per rules. Ext.A2 prospectus does not speak of refund of deposit or else that Ext.B6 prospectus 2008/12.2.3 says that “ No refund of fees will be made to candidates who apply for transfer certificate/cancellation of admission under any circumstances, after the last date of cancellation of admission notified by CEE. They will have to pay liquidated damages as stipulated in clause 12.2.4”. Rules 12.2.4 makes it clear that “ any candidate discontinues the studies after the closing of admission in the same academic year, or in subsequent academic years, to join other courses or for others purposes he/she is liable to pay a liquidated damage of  `100000 for MBBS, BDS courses and `50000”.Ext.B7 prospectus 2009 approved vide G.O.(Rt)No.42/21009/H Edn. dated 8.1.2009, Rule 12.2.4(b)(ii) provides thus “For government seats in private self financing/govt. controlled self financing colleges, liquidated damage shall be levied either or in clause 12.2.4(a)(1) above or fees for remaining years, whichever is higher. So also clause 12.2.4(b)(iii) provides that “For Management seats in Govt. Controlled self financing Colleges, fees for the remaining years, whichever is higher. The opposite party contended that all these details are available on the website www.cee.kerala.org. It is very important  to go through the decision of 62^nd meeting of the  Executive Committee of CAPE held at 10 A.M on 2.2.08, with respect  to Refund of fees in connection with the admission in the Engineering colleges during the year 2007-2008. Ext.B5(62-18).the decision says that “ The committee discussed the matter and noted that the candidates vacated the NRI seats quite late causing heavy loss to CAPE which could not be rectified by alternative admission under NRI quota. All of them have left the course/college after the closure of admission under NRI quota in the colleges. As per conditions of prospectus they are liable for liquidated damages. The executive committee waved this and decided that the tuition fees remitted by them need not be reimbursed. However the deposit given by them will be returned after 4 years along with the students admitted under the same category”. Considering the state of affairs existing for time being as per the analysis of executive committee  the decision can only be considered quite justifiable since it has taken into account the necessity of ensuring the natural justice to candidates offering the amount to be returned without any discrimination with other students admitted together. In the case of complainant there are two items of amount to be settled. The first item of amount is the refundable deposit of ` 100000 and the other is caution deposit of `5000. The existing rules analysed above itself makes clear that opposite party is entitled to keep the amount of refundable deposit till the full period of course is over. We are of opinion that it is quite justifiable. When one seat is vacated especially a seat under NRI there will be loss. Hence we take the view that it is justifiable in keeping the caution deposit also especially in the light of issuance of certificates to the complainant already without any demand on companionate ground. 2^nd opposite party is not liable to refund the amount before the expiry of the course period.

          In the light of above discussion we find that there is no deficiency in service or unfair trade practice on the part of opposite parties. Thus the issues 1 to 3 are found against complainant.

                   In the result, complaint stands dismissed.

                                  Sd/-                         Sd/-                       Sd/-

                             President                Member                    Member

                                                  APPENDIX

Exhibits for the complainant

A1. Medical record.

A2 .Prospectus issued by OP

A3. Copy of the receipts issued by OP

A4. Copy of the request submitted before the Minister

A5.Copy of the lawyer notice sent to OP.

A6.Reply notice

A7.Certificate issued by the Doctor.

Exhibits for the opposite parties:

B1.Copy of the instructions to candidates for admission of professional

      Degree course under NRI quota 2007-08

B2.Copy of the undertaking given by complainant’s father

B3.Copy of the NRI certificate issued by embassy of Indian Kuwait for

     complainant’s  father.

B4.Copy of the undertaking given by complainant dt.29.9.08.

B5.Copy of the minutes of executive committee meeting of CAPE 22.2.08

B6 & 7.Copy of the prospectus for admission to professional degree course for the year 2008 & 2009

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties: Nil

                                                                    /forwarded by order/

                                                                      Senior Superintendent

Consumer Disputes Redressal Forum, Kannur