PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of December 2011
Filed on :3/08/2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No.411/2009
Between
Hentreeta Simendi, : Complainant
D/o. Julian Simendi, (By Adv. K. Tresa Rani George,
Thathambilly house, Elizabeth George, Erali Building,
Madaplaturuth, Basin road, Ernakulam, Kochi-31)
Moothakunnam P.O.
And
1. The Principal, : Opposite parties
S.N.M. College, (By Adv. K.B. Gangesh,
Moothakunnam. T-19,Third floor, Empire building,
Old Railway Station road, Kochi-18)
2. The Manager,
S.N.M. College,
Maliankara.
3. The Secretary,
H.M.D.P. Sabha,
Moothakunnam.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant was a student of SNM college, Moothakunnam. The college is run by the opposite parties. The opposite parties invited applications for M.Sc Mathematics for the year 2008-2009. The complainant applied for the course in the management quota. She was admitted in the course after the verification of her certificates. She had to pay Rs. 15,000/- as remuneration for recommendation and Rs. 13,000/- was received by the 3rd opposite party. Rs. 2003 was remitted by way of fees at the college. After completion of an academic year and the remittance of the examination fees, the 1st opposite party informed that she is not eligible to continue with the course since she has securred only 53% marks in her B.Sc examinations instead of the pre-qualification of 55%. The complainant lost a year the due to the deficiency in service and unfair trade practice on the part of the opposite parties. Thus the complainant is before us seeking direction against the opposite parties to refund Rs.30,003/- together with damages of Rs. One lakh and costs of the proceedings.
2. The version of the 1st opposite party.
The SNM college is an aided college affiliated to the MG university. The course offered in the college and admission of students to courses are governed by the Mahatma Gandhi University Act. So the complainant is not a consumer as defined in the Consumer Protection Act. During the academic year 2;008-2009 the course prospectus prescribing the minimum eligibility for each course was issued to every applicant including the complainant. Every admission effected to the college is provisional subject to the final approval of the university. The opposite parties have received only such amounts as prescribed by the university. The complainant was compelled to discontinue the course as her admission was not approved by the University on the ground that she does not have the minimum eligibility of 55% marks for degree. The complainant was aware of her ineligibility while joining the course. The complainant is not entitled to get any of the reliefs as sought for.
3. The 2nd and 3rd opposite parties as well filed their version raising the very same contentions of the 1st opposite party.
4. The complainant was examined as PW1, and Exts. A1 to A3 were marked on her side, however subsequently she was not available for cross examination. The power of attorney of the complainant was examined as PW2. The 2nd opposite party was examined as DW1 and Exbts B1 to B3 were marked. The counsel for the opposite parties filed argument note. Heard the learned counsel for the parties.
5. The points that came up for consideration are
i. Whether the complaint is maintainable in this Forum?
ii. Whether the complainant is entitled to get refund of the fee
remitted by her?
iii. Whether the opposite parties are liable to pay damages and
costs of the proceedings to the complainant.
6. Point No. i. The learned counsel for the opposite parties vehemently contended that this Forum has no jurisdiction to entertain this complaint since the complainant is not a consumer. He relied on the decision rendered by the Hon’ble High Court of Kerala in Principal St. Joseph College of Communication V. CDRF and others 2010 KHC 6214. Further he contended that as per Mahatma Gandhi university Statutes 1997 the complainant ought to have approached the Board to get her grievances if any redressed.
7. The Hon’ble Supreme Court in Buddhist Mission Dental College and Hospital Vs. Bhupesh Khurana and others 2009 CTJ 373 (Supreme Court) (CP) has held that, “imparting of education by an educational Institute for consideration falls within the ambit of ‘service’ as defined in the Consumer Protection Act. The students of the Institute are the consumers of that service.” In view of the supreme authority we have no hesitation to hold that the complaint is maintainable in this Forum.
8. Admittedly the complainant was admitted in the S.N.M. College, Maliankara by the 1st opposite party to the M.Sc Mathematics course for the academic year 2008-2009 and she remitted the fee for the 1st year examination. However her application was rejected by the University by Ext. A3 letter dated 18-03-2009 which reads as follows:
Hentreetha Simendi is informed that you have not secured the minimum required percentage of marks in qualifying exam and therefore your application for I sem M.Sc Exam registration is rejected.
9. According to the opposite party the minimum marks prescribed by the University for admission to MSc Maths course is mentioned in Ext. B1 prospectus and the complainant was aware of the same before her admission. The complainant maintains that Ext. B1 was not supplied along with the application form for admission. Even if the complainant were aware of the said clause in Ext. B1, the 1st opposite party principal was duty bound to verify and ascertain the credentials and qualifications of a student in tune with the norms prescribed by the university in which the 1st opposite party failed. Though having duly submitted the application for admission and evidently verified by the 1st opposite party and found correct the admission was given. Had the 1st opposite party done so this complaint could not have arisen. It is pertinent to note that Ext. B1 prospectus does not bear the date or the academic year which leaves much room for the clarity. May be that was the reason why the complainant was given admission for the said course. An error on the part of the 1st opposite party cannot be constrained on the applicant. It is pertinent to note that the 1st opposite party who is a material witness opted not to mount the box to adduce evidence, which speaks volumes.
10. The complainant claims that apart from the regular fees she had to pay a sum of Rs. 28,000/- to the management but nothing is on record to substantiate the same.
11. However the 1st opposite party is liable to refund the entire fees collected from the complainant with interest. Due to the proven deficiency in service on the part of the 1st opposite party. The complainant has had to suffer mental agony and unnecessary expenditure of an year for which the 1st opposite party is accoundable. Had matters not been so precious that the complainant has lost could have been put to much efforts. We are of the firm view that a compensation of Rs. 30,000/- which alone would go to compensate the unabated agony of the complainant to which she had unnecessarily been put to due to the negligence of the service provider.
7. In the result, we partly allow the complaint and direct that
i. The 1st opposite party shall refund the entire course fees remitted by the complainant as per records together with interest @ 12% p.a. from the date of complaint till realization.
ii. The 1st opposite party shall pay Rs. 30,000/- to the complainant for the reasons stated above.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 31st day of December 2011
