BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                           Dated this the 8^th of February 2011

PRESENT

                                                    SMT. ASHA SHETTY           :   PRESIDENT

                                                                         SMT.LAVANYA M. RAI       :   MEMBER

                                                                         SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.161/2010

(Admitted on 22.05.2010)

1. Kumari Anushree B. Shetty,

Aged about 17 years,

Do. M.Balakrishna Shetty,

A minor represented by her father

    and natural guardian  

Mr.M.Balakrishna Shetty,

So. A. Manjayya Shetty,

Aged about 52 years,

Abhishree House,

Shiriyara Village and Post,

Udupi Taluk and District.

2. Mr.M.Balakrishna Shetty,

S/o. A. Manjayya Shetty,

Aged about 52 years,

“Abhishree House”,

Shiriyara Village & Post,

Udupi Taluk & District.                      …….. COMPLAINANTS

(Advocate for the Complainants: Sri.M.S. Krishna Prasad).

          VERSUS

1. The Principal,

Alvas Pre University College,

Moodabidri, Dakshina Kannada  574 227.

2. Alva’s Education Foundation,

Regd. Moodabidri,

Represented by its Chairman –

Dr.M. Mohan Alva.                              ……. OPPOSITE PARTIES

(Advocate for the Opposite Parties: Sri.Deenanath Shetty).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

Complainant No.1 is a minor and Complainant No.2 is a natural guardian of Complainant No.1 submitted that, the 1^st Complainant after completing the SSLC joined pre-university course i.e., PCMB at 1^st Opposite Party College.  Since the Complainants are residents of Udupi, they opted for hostel facility and paid a sum of Rs.37,950/- on 27.05.2009 towards the academic year 2009-10.  After paying the specified fees, the 1^st Complainant has been allotted boarding facility at Hemavathi Hostel of the 1^st Opposite Party.  On visiting the said hostel, the 1^st Complainant felt that, she will not be able to stay there on account of small room and had to be shared with three other members, immediately on the very next day, i.e., on 28.5.2009 informed the said matter to the Opposite Party No.1 through telephone and requested to allot some other good hostel.  Initially, the 1^st Opposite Party had agreed to accommodate some other room and later expressed inability to change the room.  Hence, the Complainant had decided to join some other college as she could not reside in the congested room with other several students.  Thereafter, Complainants requested the 1^st Opposite Party to refund the fees paid by them and sent a request letter on 29.5.2009 by RPAD but the Opposite Parties did not give any reply.  Thereafter the Complainant issued a registered notice dated 18.1.2010 but the Opposite Parties sent a reply but not refunded the fees which amounts to deficiency.  Hence, the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to refund Rs.37,950/- fees paid by the Complainant along with interest at 18% p.a. from the date of payment till refund and Rs.30,000/- claimed as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version stated that, on being fully satisfied as to the hostel facility provided by the Opposite Parties, the Complainant’s daughter had on her own volition joined the college run by the Opposite Parties.  The Complainant No.1 or 2 had on no point of time brought to the knowledge of the Opposite Party as to the accommodation provided to the Complainant No.1 was not upto the mark. It is further stated that, as per the forfeiture clause incorporated in the above application form dated 05.05.2009, the Complainants have acknowledged their signatures to the above application form on going through the contents, hence once the amount paid to the management by the Complainant towards the educational fee as well as hostel fee being not refundable and they are not liable to refund the fee.  Further it is stated that, the Opposite Party is totally unaided and not the recipient of any aid or grant from any board or University Grants Commission and stated that there is no deficiency and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainants prove that the Opposite Parties committed deficiency in service?

2. If so, whether the Complainants are entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Mr.M.Balakrishna Shetty (CW1) – Complainant No.2 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C12 were marked for the Complainants as listed in the annexure.   One Dr.M. Mohan Alva (RW1), Chairman of the Opposite Party Institution filed counter affidavit and answered the interrogatories served on him.  The Opposite Parties filed notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i): Affirmative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

The facts which are not in dispute is that, the 1^st Complainant Kumari Anushree B. Shetty, the daughter of the 2^nd Complainant after passing S.S.L.C, joined to P.U.C 1^st year science i.e., Physics, Chemistry, Mathematics and Biology combination at 1^st Opposite Party College.  It is also not in dispute that, the Complainants are the residents of Udupi District, the Complainant No.1 availed the hostel facility with the 1^st Opposite Party.  The 1^st Opposite Party College has collected Rs.37,950/- in all towards the fee for academic year 2009-10.  The Opposite Party had issued receipts for the above said payments as per Ex C2 to C7.

Now the points are in dispute between the parties before this FORA is that, the Complainant No.1 after joining the above said college i.e., on the very next day on 28.05.2009 informed the Opposite Party No.1 through telephone and requested for allotment of some other hostel facility, because on visiting the Hemavathi hostel, the 1^st Complainant felt that she will not be able to stay there on account of small rooms, had to be shared with three other members.  Initially the 1^st Opposite Party had agreed to accommodate the 1^st Complainant in some other room but later expressed their inability to change the room.  Hence the Complainant No.1 had decided to join some other college and sought for refund of the fees but the Opposite Parties not paid the amount.

On the other hand, the Opposite Parties contended that, the Complainant No.1 had joined the 1^st year Pre-University Course at the 1^st Opposite Party college, on being fully satisfied as to the hostel facility provided by the 1^st Opposite Party College, the Complainant No.1 had on her own volition joined the college and stated that, the hostel has all infrastructural facilities/amenities like spacious rooms with table and chair, cot, cupboard, electrical lights and fan etc. etc.  And further stated that, the amount once collected will not be refunded by virtue of the forfeiture clause and stated that there is no deficiency.

The Complainant filed oral evidence by way of affidavit and produced Ex C1 to C12.  Opposite Party also filed oral evidence by way of affidavit.

On scrutiny of the oral as well as documentary evidence available on record, we find that, the Complainant No.1 daughter of Complainant No.2 had joined the 1^st year science i.e., P.C.M.B combination in 1^st Opposite Party college after paying Rs.37,950/- in total towards the hostel as well as tuition fees for the academic year 2009-10 as per Ex C2 to C7 i.e., the original receipts for having been paid the fees to the 1^st Opposite Party College.  Admittedly, the 1^st Opposite Party allotted a seat to the 1^st Complainant as per Ex C1 i.e., seat allotment slip dated 27.05.2009.  On the same day, the Complainant paid the entire fees as demanded by them i.e., Rs.37,950/-.  The Ex C8 i.e., the registered letter dated 29.05.2009 issued by the 2^nd Complainant i.e., the father of the 1^st Complainant reads thus  (The relevant portions reproduced herebelow):-

            £Á£ÀÄ ¢£ÁAPÀ:27.05.2009gÀAzÀÄ J¯Áè ¦Ã¸ÀÄUÀ¼À£ÀÄß ¥ÁªÀw¹zÀ £ÀAvÀgÀ ‘ºÉêÀiÁªÀw’ JA§ ªÀ¸ÀwUÀȺÀªÀ£ÀÄß vÉÆÃj¹gÀÄwÛÃj.  ªÀ¸ÀwUÀȺÀzÀ PÉÆÃuÉUÀ¼ÀÄ ¸ÀtÚzÁVzÀÄÝ MAzÀgÀ°è 4 «zÁåyð¤0iÀÄgÀÄ EgÀĪÀAvÉ ªÀ¸Àw UÀȺÀzÀ ªÁqÀð£ï w½¹gÀÄvÁÛgÉ.  EzÀ£ÀÄß £ÉÆÃr ªÀÄ£ÉUÉ §AzÀ £À£Àß ªÀÄUÀ¼ÀÄ ¸ÀA¥ÀÇtð CvÀÈ¦Û ºÉÆA¢ ªÀ¸ÀwUÀȺÀzÀ°è ¤®è®Ä PÀqÁRArvÀªÁV ¤gÁPÀj¹gÀÄvÁÛ¼É.  ¢£ÁAPÀ: 28.05.2009gÀ ¨É½UÉÎ vÀªÀÄUÉ zÀÆgÀªÁt ªÀÄÆ®PÀ «µÀ0iÀÄ w½¹ ªÀ¸ÀwUÀȺÀ §zÀ¯Á¬Ä¸À®Ä «£ÀAw¹PÉÆAqÁUÀ ¨ÉÃgÉ 0iÀiÁªÀ CªÀPÁ±ÀUÀ¼ÀÄ EgÀĪÀÅ¢®èªÉA§ÄzÁV w½¹gÀÄwÛÃj.  £À£ÀUÉ C£Àå ªÀiÁUÀð«®èzÉ ¨ÉÃgÉ PÁ¯ÉÃfUÉ £À£Àß ªÀÄUÀ¼À£ÀÄß ¸ÉÃj¸À¨ÉÃPÁVgÀÄvÀÛzÉ. 

From the above contents of the registered letter made us very clear that, after payment of fees the 1^st Complainant who is a minor daughter of the 2^nd Complainant saw hostel facility allotted to her, on visiting the said hostel, the 1^st Complainant felt that the room is small and the said room had to be shared with three other members.  Immediately on the very next day i.e., on 28.05.2009 the Complainants informed the same to the Opposite Parties and requested for allotment of some other hostel, since the 1^st Opposite Party denied the same, the Complainants decided to quit the college immediately without any further delay by issuing a registered letter as stated supra.  The above said registered letter along with acknowledgement card reveals that, the above said letter has been served to the Opposite Party No.1.  But the above said registered letter not replied by the Opposite Party in this case.  Thereafter, the Complainants issued a registered legal notice dated 18.01.2010 by raising same contentions, the same has been served to the Opposite Party and issued a reply. 

Now the point for consideration in this case is that, the Complainant No.1 soon after the allotment of the seat dated 27.05.2009 in the Opposite Party’s college, the very next day of the allotment of the seat, the 1^st and 2^nd Complainant informed the 1^st Opposite Party institution that, the 1^st Complainant is not comfortable with the hostel facility and issued a registered notice as per Ex C8.  The Opposite Parties after receipt of the above said registered letter should have allotted some other hostel facility where she is comfortable.  But in the instant case, even after receipt of the above said registered notice dated 29.05.2009  issued by the Complainants, the Opposite Parties not taken any steps either to change the hostel facility or they could have directed the Complainants to make their own arrangement with regard to the hostel facility.  But in the instant case, no such attempt has been made by the Opposite Parties’ institution amounts to deficiency.  And at the same time, the Opposite Party institution cannot compel the students to avail the hostel facility if they are not comfortable with the hostel facility allotted to them by the 1^st Opposite Party College. However, in the instant case, the Complainant No.1 was not comfortable with the hostel facility provided by the 1^st Opposite Party college and requested the Opposite Party college to allot some other hostel facility.  Since Opposite Party College failed to take any measures, the Complainant No.1 decided to quit the college without any inordinate delay by expressing their unwillingness.   Under that circumstances, the Opposite Parties should have refunded the fees paid by the Complainants because they have not availed the service of the Opposite Parties either attending the classes nor joining the hostel.

As far as forfeiture clause is concerned, the catena of judgment of the various Hon’ble State Commissions as well as the Hon’ble National Commission discussed with regard to the declaration/rule/forfeiture clause in the prospectus/applications as unconscionable or voidable is not enforceable.  No service provider like educational centres/institutions can be allowed to forfeit the fees or consideration received in advance in case the student has not availed the service.  No doubt, in some of the cases held that, if a student applied for an admission and deposit the fees and later on do not want to join the course without any deficiency on the part of the Opposite Party institution, the seat vacated will remain vacant throughout the academic year and in such circumstances, it will be very difficult to run the institution in a proper manner and the institutions are not liable to refund the fees.  But in the instant case, the matter is different from the above case.  The Complainant in advance, we could say, before availing the service from the Opposite Party institution expressed her unwillingness and also stated the reason that she is not comfortable with a small room and she had to be shared with three other members in the same room.  When she is not comfortable, the said matter has brought to the knowledge of the Opposite Party institution in telephone as well as in registered letter but the Opposite Parties not taken any measures either changing the hostel facility or advised the Complainants to make their own arrangements with regard to the hostel facilities.  In the absence of any measures by the Opposite Party Institution made the Complainants to quit the college.   Under that circumstances, the Opposite Parties shall refund the amount to the Complainants. 

The Complainant admittedly paid Rs.37,950/- in total towards the hostel as well as tuition fee for the whole academic year 2009-10 in advance.  Out of that, the amount paid towards the charitable trust fund – Rs.250/-, college magazine – Rs.120/-, calendar – Rs.100/- and admission fee – Rs.20/- are not entitled and rest of the amount of Rs.37,460/- shall be refunded to the Complainants along with simple interest at 8% p.a. from the date of complaint till the date of payment.  Further Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.     

           In the present case, the interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.

6.       In the result, we pass the following:                          

ORDER

            The complaint is allowed.  Opposite Parties are directed to refund Rs.37,460/- (Rupees thirty seven thousand four hundred and sixty only) to the Complainants along with simple interest at 8% p.a. from the date of complaint till the date of payment.  Further Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 11 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 8^th day of February 2011.)

PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1 – Mr.M.Balakrishna Shetty  – Complainant No.2.

Documents produced on behalf of the Complainants:

Ex C1 – 27.05.2009: Original seat allotment slip issued by the Opposite Parties.

Ex C2 – 27.05.2009: Original receipt bearing No.9701 for Rs.22,000/- issued by the Opposite Parties.

Ex C3 – 27.05.2009: Original receipt bearing No.21635 for Rs.250/- issued by the Opposite Parties.

Ex C4 – 27.05.2009: Original receipt bearing No.2892 for Rs.2,445/- issued by the Opposite Parties.

Ex C5 – 27.05.2009: Original receipt bearing No.21572 for Rs.1,255/- issued by the Opposite Parties.

Ex C6 – 27.05.2009: Original receipt bearing No.25715 for Rs.9,000/- issued by the Opposite Parties.

Ex C7 – 27.05.2009: Original receipt bearing No.7571 for Rs.3,000/- issued by the Opposite Parties.

Ex C8 – 29.05.2009: Original demand notice issued by the Complainant No.2 to the Opposite Party No.1.

Ex C9 – 30.05.2009: Original acknowledgement towards aforesaid notice.

Ex C10 – 18.01.2010: Original legal notice issued to the Opposite Party No.1.

Ex C11 – 22.01.2010: Postal acknowledgement.

Ex C12 – 05.02.2010: Reply notice issued by the Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW1 – Dr.M. Mohan Alva, Chairman of the Opposite Party Institution.

Documents produced on behalf of the Opposite Parties: 

• Nil -

Dated:08.02.2011                            PRESIDENT