This complaint coming up before us for final hearing on                      07-02-11 in the presence of Sri A.Rama Mohan Rao, Advocate for complainant and of Sri C.Raghu Rami Reddy, Advocate for OP1, Sri Ch.Narasimha Reedy (Government Pleader), Advocate for OP2, OP3 called absent and set exparte, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following: 

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

                This complaint is filed under section 12 of Consumer Protection Act, 1986 praying to direct the 1^st opposite party for return of certificates of complainant and to pay compensation of Rs.2,00,000/- towards financial loss due to lack of job and for torturing mentally without returning certificates for a period of one and half year and for costs. 

The averments of complaint in brief are as follows:

                The complainant joined in MBA course of 1^st opposite party college in the academic year 2006-2007 by paying a fee of Rs.46,000/- for first year towards management seat and submitted his testimonials and marks sheet of 10^th class, intermediate and degree at the time of admission.  The duration of course is 2006-2008. Complainant had suffered from severe brain fever and admitted in the hospital for treatment during first year semester of course and to that effect medical certificate was submitted to 1^st opposite party.  The 1^st opposite party detained the complainant and not allowed him for 1^st semester examinations due to shortage of attendance inspite of requests made by complainant to permit him to appear for examinations.  Severe financial and family disturbances, ill-health and detaining, all caused to the discontinuation of course by complainant.  After discontinuation of course, the complainant approached 1^st opposite party and requested for return of his certificates and testimonials submitted by him at the time of admission.  But the 1^st opposite party demanded remaining course fee for returning certificates.  The complainant had shown a letter in person to 1^st opposite party, which was sent to all Management Colleges by the Commissioner of Technical Higher Education bearing No.LR No.H2/10641/2009, dt.27-08-09 of the State Government of Andhra Pradesh, wherein it was directed not to insist for payment of full course fee in respect of such students, who want to discontinue the course in middle and to handover the certificates to them immediately or otherwise, the action will be taken against such colleges in accordance with the law.  Inspite of it the 1^st opposite party has not retuned the complainant’s certificates.  The complainant also made a complaint before the District Collector on 14-02-09 requesting him to take necessary steps for return of certificates from 1^st opposite party.  The District Collector endorsed the same to RJD, Higher Education, Guntur and the said RJD sent a letter dt.30-12-09 to the District Collector stating that the aided and Government colleges of AP come under the scope of the Department of Higher Education but not unaided colleges like 1^st opposite party and that the opposite party comes under the purview of Kantepadu. Ultimately complainant sent a legal notice dt.08-01-10 to 1^st opposite party demanding return of his certificates.  Copy of the same was marked to 2^nd opposite party but 1^st opposite party has not given any reply after receiving notice.  The complainant is unable to apply and attend to any job and interviews because of lack of original certificates in his hand.  The complainant is facing financial struggles due to lack of proper job.  Hence, the complaint.

          The 1^st opposite party filed its version, which is in brief as follows:

                Most of the averments made in the complaint are not true and correct.  The complainant is put to strict proof of the same.  The 1^st opposite party is a private educational institution.  The Government and University never paid single rupee to 1^st opposite party college.  The Management is running college with the fees of payment seats (management quota). The complainant also joined under management quota and agreed to pay Rs.46,000/- for first year and Rs.40,000/- for second year. Accordingly he paid Rs.46,000/- on  14-09-06 and joined in MBA Course.  The complainant failed to attend for classes and got shortage of attendance, as such 3^rd opposite party detained him and not allowed the complainant to attend the examinations.  Hence, complainant has to pay first year and second year fee of Rs.40,000/- and Rs.40,000/- i.e., in all Rs.80,000/- to 1^st opposite party.    Thus the complainant is due a sum of Rs.80,000/- to 1^st opposite party.  If 1^st opposite party allowed this type of practice, they are unable to run an educational institution.  Previously another student approached the Hon’ble High Court and filed writ petition No.16047/2009 for the same claim, wherein the High Court passed order as – “Writ petition is disposed of directing that the 2^nd respondent shall return the originals of SSC and intermediate certificates and others if any as and when the petitioner pay a sum of Rs.1,00,000/- only”.

                The Hon’ble Supreme Court also gave finding in a citation reported in 2003 (6) SCC 697  “a student who leaves the course and college mid way, thereby causing loss to the management in the form of non receipt of fee for subsequent years of course on account of seat being rendered vacant, the student concern has to remit the fee of reminder of the course, before leaving the college”

                As per Supreme Court and also circulars of Department of Higher Education, any student seeking to discontinue course of study in the college is obliged to remit the fee for reminder of the course in order to ensure that the college do not put to financial loss.  In the circumstances without remitting fee for the reminder of course, it is not possible to handover original certificates.  Without prejudice to the above contentions, it is submitted that this Forum has no jurisdiction to adjudicate on the subject matter as the complainant is not a consumer for the purpose of Consumer Protection Act.  This respondent is not providing any services to the students and that therefore, there is no question of deficiency of service on the part of 1^st opposite party.  Therefore, the complaint may be dismissed with costs.

              The 2^nd opposite party filed its counter-affidavit, which is in brief as follows:

                During the academic year 2008-2009 and 2009-2010 so many representations have been received from the students stating that the Management of Private professional institutions are demanding for payment of full course fee in the event of their approaching the management for return of certificates by discontinuing the course due to ill-health or some other problems.  The Hon’ble High Court of Andhra Pradesh in a similar case filed by Mis.Somu Manjusha passed the interim orders in writ petition No.18757/2005 in writ petition No.14767/2005 as follows:

                “It is represented that though notice was sent to the third respondent i.e., the correspondent, Anurag Engineering College, Ananthagiri, Kodad Mandal, Nalgonda District, the same was returned with an endorsement that the addressee rejected to receive.

                Under the above circumstances, pending further orders, the third respondent is directed to return the original certificates of the petitioner within one week from the date of receipt of copy of this order. The first respondent i.e., the Secretary, Ministry of Technical Education, AP Secretariat, Hyderabad is also directed to see whether the third respondent has returned the certificates as directed herein above”.     

                In another instance, the District Consumer Forum, Chittoor in their judgment in CC 59/07 has made a mention of citation reported in 2006 CTJ 1109 (CP) (NCDRC) between Deputy Registrar (Colleges) and another Vs. Ruchika Jain and others wherein their lordships held

                “……….Hence, the Commission held that imparting of education by an educational institution for consideration falls within the ambit of “service” as defined in the Consumer Protection Act.  Fees are paid for services to be rendered by way of imparting education by the educational institutions.  If there is no rendering of service, question of payment of fee would not arise.  The complainants had hired the services of the respondents for consideration, so they are “consumers” as defined under the Consumer Protection Act.   There after this Commission held that it was a case of obvious misrepresentation on behalf of the respondents and its tantaamounts to unfair trade practice and finally directed the opposite parties to refund the amount of Rs.35,000/- collected by opposite parties 1 and 2 from the complainant together with interest @9% from the date the student left the college i.e., 27-04-06 till the date of realization.

                In the light of interim orders passed by Hon’ble High Court in the said writ petition and the letter of Commissioner of Technical Education directing the Managements of all professional colleges in the State not to insist for full course fee in respect of such students, who want to discontinue the course at the middle and to handover the original certificates to them, the District Consumer Forum, Chitoor passed order in the said CC.  Therefore, the complaint may be disposed on merits of the case.          

                The 3^rd opposite party remained exparte.

                The complainant and 1^st opposite party filed affidavits in support of their versions reiterating the same. On behalf of complainant Ex.A1 to A8 are marked and Ex.B1 to B4 are marked on behalf of 1^st opposite party. 

                Ex.A1 is the receipt dt.14-09-06 passed for Rs.46,000/- in favour of complainant by 1^st opposite party.  Ex.A2 is the letter of Commissioner of Technical Education addressed to all Principals of all Engineering Colleges and professional colleges directing them not to insist for payment of full course fee in respect of students, who want to discontinue the course.  Ex.A3 is the letter addressed to District Collector by the complainant.  Ex.A4 is the endorsement for Ex.A3.  Ex.A5 is the letter of Regional Joint Director to the Collector.  Ex.A6 is the copy of registered notice got issued by complainant to opposite party.  Ex.A7 is the postal receipt.  Ex.A8 is the postal acknowledgement of 1^st opposite party.

                Ex.B1 is the application of complainant for admission to MBA course in 1^st opposite party college.  Ex.B2 is the instructions to students and parents by 1^st opposite party.  Ex.B3 is the undertaking from students/parents with regard to prevention of ragging.  Ex.B4 is the proceedings of the office of Admission and Fee Regulatory Committee for matters relating to fee fixation in private unaided professional colleges. 

Now the points for consideration are

1. Whether the complainant is a consumer and the complaint is a consumer complaint?
2. Whether there is any deficiency of service on the part of opposite parties?
3. To what relief the complainant is entitled to?

POINTS 1 & 2

                The case of complainant is that he joined in the first year MBA course in 1^st opposite party college during the academic year 2006-2007 by paying a sum of Rs.46,000/- and that submitted all his testimonials to 1^st opposite party at the time of admission, that during the 1^st semester he suffered severe brain fever and admitted in the hospital for treatment and that 1^st opposite party detained the complainant and not allowed him to appear for 1^st semester examinations due to shortage of attendance, that he discontinued his course due to severe financial and family disturbances and ill-health and that he requested 1^st opposite party to return his testimonials for which, the 1^st opposite party demanded to pay remaining course fee for returning the original certificates and that the 1^st opposite party did not return the originals inspite of letter of Commissioner of Technical Higher Education of State Government of AP not to insist for payment of full course fee in respect of students who want to discontinue the course in the middle and to handover the certificates to them immediately and thereupon the complainant issued a registered notice to opposite parties demanding return of original certificates and filed complaint. 

                The case of 1^st opposite party is that it is a private educational institution and it is an unaided institution, that the complainant joined in 1^st opposite party college in management quota i.e., payment seat and agreed to pay Rs.46,000/- for 1^st year and Rs.40,000/- for 2^nd year, accordingly he paid Rs.46,000/- and joined in MBA course, that the complainant failed to attend for classes and got shortage of attendance and due to that 3^rd opposite party detained him and not allowed the complainant to attend the examinations and that therefore, the complainant has to pay 1^st year and 2^nd year fee of Rs.40,000/- and Rs.40,000/- i.e., in all Rs.80,000/- and that therefore they have not returned the original certificates to the complainant.  The 1^st opposite party further contended that the complainant is not a consumer and that therefore there is no question of deficiency of service on the part of 1^st opposite party. Hence, the complaint may be dismissed with costs.    

                The case of 2^nd opposite party is that in a similar case the High Court of AP in writ petition No.14767/05 passed interim order to return the original certificates of petitioner within one week from the date of receipt of order and that in the decision reported in 2006 CTJ 1109 (CP) (NCDRC), it was held that imparting of education by educational institution for consideration falls within the ambit of service as defined in the Consumer Protection Act and if there is no rendering of service, the question of payment of fee would not arise and the Commissioner of Technical Education also issued letter  directing the Managements of all professional colleges in the State not to insist for full course fee in respect of such students, who want to discontinue the course at the middle and to handover the original certificates to them.  Therefore, in the circumstances of case, the complaint may be disposed on merits. 

                The complainant joined in MBA course of 1^st opposite party college by paying Rs.46,000/- towards fee for imparting education.  Therefore in view of citation reported in 2006 CTJ 1109 (CP) (NCDRC) between Deputy Registrar (Colleges) and another Vs. Ruchika Jain, the complainant herein is a consumer and the complaint is a consumer complaint.  Accordingly, the first issue is answered in favour of complainant.   

                The complainant paid fee of Rs.46,000/- (vide Ex.A1) at the time of admission in MBA course in 1^st opposite party college for the academic year 2006-2007 as against Management seat and that due to severe brain fever he admitted in the hospital for treatment during first semester course and to that effect he produced medical certificate before 1^st opposite party and that 3^rd opposite party detained him and not permitted him to appear for examinations due to shortage of attendance.  These facts are not in dispute. Subsequently, he could not prosecute further course and discontinued the said course due to his financial difficulties and family problems and also due to ill-health, and that he requested 1^st opposite party to return his original certificates that were submitted to 1^st opposite party at the time of admission, for which 1^st opposite party demanded payment of fee for 1^st year and 2^nd year MBA course i.e., Rs.40,000/- and Rs.40,000/- i.e., in all Rs.80,000/- for returning the original certificates to the complainant.

                In support of the contention of 1^st opposite party, the counsel for 1^st opposite party relied on the order of Hon’ble High Court of AP in writ petition No.16047/09, wherein the High Court disposed of the writ petition directing the 2^nd respondent Engineering College to return the originals of SSC, Intermediate certificate and others if any as and when the petitioner pay sum of Rs.1,00,000/-.  The facts of said writ petition are that the petitioner joined in 1^st year B.Tech course in second respondent institution against a payment seat.  He completed studies of 1^st year but did not appear in the examination.  It is stated that he repeated 1^st year in the next academic year also and on the advise of doctors, the petitioner decided to discontinue the engineering course and requested the 2^nd respondent education institution to return the original certificates of SSC and intermediate given at the time of his admission, for which the 2^nd respondent insisted for payment of fee for entire course, that the petitioner contended that he is not obliged to pay fee and seeks direction to 2^nd respondent to return the originals.  Considering the facts of case, the Hon’ble High Court passed the following order:

                “the admission of petitioner was against a payment seat in 2^nd respondent institution.  Naturally, a student would have to pay the stipulated fee for every year till he completes the course.  On account of discontinuation of course by the petitioner half way through, the 2^nd respondent is denied of fee for the rest of course.  The petitioner is unable to pursue the course due to medical reasons.  While the insistence on payment of entire fee would cause hardship to the petitioner, the total waiver there of would result in loss to the 2^nd respondent.  This court is of the view that a balance needs to be struck in between.”

                Therefore in such circumstances, the Hon’ble High Court directed the 2^nd respondent to return the originals of SSC and inter certificates to the petitioner whenever he pays a sum of Rs.1,00,000/-. 

                But in the present case on hand, the complainant joined in 1^st year MBA course during the academic year 2006-2007 by paying fee of Rs.46,000/- and submitted original certificates to 1^st opposite party at the time of admission.  Due to brain fever he was admitted in hospital for medical treatment and to that effect he submitted a medical certificate to 1^st opposite party.  He was detained and not allowed to appear for the examinations of first semester due to shortage of attendance.  Because of his detention, he has to again join in first semester as a fresh candidate and has to pay fee for 1^st year and 2^nd year i.e., Rs.40,000/- and Rs.40,000/- in all Rs.80,000/- even according to contention of 1^st opposite party.  The facts of present case are different to the facts of above mentioned writ petition of Hon’ble High Court.  In that case, the student was not detained but the student again studied 1^st year and discontinued his further course.  The 1^st opposite party has not placed any evidence before this Forum, in order to show that the 1^st opposite party has sustained any loss by earmarking a Management quota seat for complainant and have not filled up the same for the sake of complainant during the academic year 2007-2008.  They have not filed any evidence to show that the relevant seats of college are vacant during the academic year 2007-2008.  Simply 1^st opposite party contended that due to discontinuance of course by the complainant, the institution would put to loss.  The 1^st opposite party also relied on a decision reported in 2003 (6) SCC 697 of Supreme Court of India, wherein it was held “a student who leaves the course and college in mid way, thereby causing loss to management in the form of non-receipt of fee for subsequent years of course on account of seat being rendered open, the student concern has to remit the fee of reminder of course before leaving college.”

                In the absence of any evidence that the institution has not filled up the seat and kept vacant a seat for the sake of complainant,  it cannot be construed or concluded that the institution has incurred any loss due to discontinuance of course by the complainant.  Therefore, the order of writ petition relied on by 1^st opposite party is not applicable and relevant to the facts of present case on hand and the decision of Supreme Court is not applicable to the case of 1^st opposite party since it has not placed any evidence that the seat is not filled up for the sake of complainant and incurred any loss.  

                Moreover, in support of contention of complainant, the counsel for complainant relied on the same decision of Supreme Court reported in

1. 2003 (6) Supreme Court cases 697 between Islamic Academy of Education and State of Karnataka and others, it was held  

                “…………… ‘Capitation fee’ and ‘profiteering’ meaning of – Regulations to be framed to prevent charging of capitation fees or profiteering with provisions for imposing penalty or de-recognition de-affiliation – Also, fee for the entire course i.e., for all the years, held, cannot be charged up front – Prescribed fee for only one semester/year can be charged – Against anticipated loss due to midstream dropping out bond/bank guarantee can be taken – Fee already collected by intuitions beyond one year/semester to be deposited in nationalized banks and withdrawals to be made only when fees become due – interest accruing thereon to be paid at the end of the course to the student concerned.”

                Therefore in view of above said decision, the educational institution would have taken a bank guarantee in order to get the fee for the course studied by the student.  But the institution is not supposed to retain the original certificates with it for the sake of collection of fee.

                The counsel for complainant also relied on the following decisions:

1. 2006 (6) SCC 395
2. 1998 (8) SCC 296
3. 2009 (3) SCC 649
4. 1998 (4) SCC 117
5. 2005 (6) SCC 537
6. AIR 2005 GUJARAT 157 ,  which are not relevant to the facts of present case on hand.

                In a decision reported in 2010 (4) CPR 283 Panjab State Commission, Chandigarh held “educational institutions cannot be permitted to behave like a business establishment who works with profit motive”.

                In the case on hand, the 1^st opposite party has failed to place any evidence before this Forum that a Management seat was ear marked for the sake of complainant during academic year 2007-2008 and it was not filled up and sustained loss due to the discontinuance of course by complainant.  Therefore, the institution cannot retain the certificates of complainant for collection of fee.  Due to the retention of certificates with the institution for a long time, the complainant lost his opportunities for getting a job and sustained loss and suffered mentally.  The Commissioner of Technical Higher Education of State Government of Andhra Pradesh in its letter instructed the institutions not to insist for payment of full course fee in respect of students who want to discontinue the course in middle and to handover them the certificates immediately.  But inspite of instruction of Commissioner of Technical Education, the 1^st opposite party has not returned the original certificates of the complainant and retained them with it for the sake of fee, which caused loss to the complainant.  The complainant could not get any job in the absence of original certificates for more than one and half year.  The said loss cannot be compensated by any means.  If any fee is due by the complainant to the institution, they can recover the same by filing a civil suit or otherwise.  But the loss sustained by complainant cannot be compensated.  Therefore, in view of facts and circumstances of case, we are of the opinion that there is deficiency of service on the part of 1^st opposite party institution and that the complainant shall be compensated for the deficiency.  Accordingly this issue is answered in favour of complainant and against the 1^st opposite party. 

POINT No.3

                The complainant filed complaint to direct 1^st opposite party for return of his original certificates and to pay compensation of Rs.2,00,000/- towards financial loss caused to the complainant, due to lack of job for a period of one and half year.  The compensation claimed by the complainant is imaginary and too high.  No relief is claimed against opposite parties 2 and 3 by the complainant.  Therefore, if the 1^st opposite party is directed to return the original certificates to the complainant forthwith and to pay a compensation of Rs.10,000/- to the complainant for the loss and mental agony suffered by him, would meet ends of justice.  Accordingly, this issue is answered in favour of complainant and against 1^st opposite party.

                In the result, the complaint is allowed in part in terms as indicated below:

1. The 1^st opposite party is hereby directed to return all the original certificates, that were submitted by the complainant at the time of admission of MBA course forthwith.       

2. The 1^st opposite party is further directed to pay an amount of Rs.10,000/- towards compensation and Rs.1000/- towards costs of complaint to the complainant.

3. The above orders shall be complied within a period of six weeks from the date of receipt of copy of this order failing which, the amounts ordered in item No.2 shall carry interest @ 9% p.a. till the date of realization.

Typed to my dictation by the Junior Steno, corrected by us and pronounced in the open Forum, this the 18^th day of February, 2011.

          Sd/XXXXX                      Sd/XXXXX                        Sd/XXXXX 

          MEMBER                                  MEMBER                        PRESIDENT

   APPENDIX OF EVIDENCE

No oral evidence is adduced on either side

                                        DOCUMENTS MARKED

For Complainants:

For 1^st Opposite Party:

                                                                                          Sd/XXXXX 

                                                                                             PRESIDENT