BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 05/03/2012

Date of Order : 31/07/2012

Present :-

Shri. A. Rajesh, President.

Smt. C.K. Lekhamma, Member.

C.C. No. 127/2012

Between

And

O R D E R

A. Rajesh, President.

1. To put it shortly, the case of the complainant is as follows :

The opposite party offered course in M.Sc. Environment Science and Management purported to have been affiliated to Mahatma Gandhi University, Kottayam. The complainant joined the course in 2011 and paid the fees. After joining the course, he enquired about the course and he came to know that the course is a different one than offered. Accordingly, the complainant requested the opposite party to relieve him from the course and also requested to issue the transfer certificate. Though, he discontinued the course on 23-09-2011, the opposite party has not refunded the entire fees. The complainant is entitled to get refund of the balance fees of Rs. 5,000/- with interest together with damages of Rs. 5,000/- and legal expense of Rs. 25,000/-. This complaint hence.

2. The version of the opposite party is as follows :

The courses conducted by the opposite party are based on the syllabus approved by the Mahatma Gandhi University. The complainant requested the opposite party to relieve him from the college and based on the request the transfer certificate was issued. Thereafter, the complainant filed an application for refund of the tuition fee. Though there is no provision to refund the tuition fee, the opposite party refunded the half of the tuition fee collected from the complainant. The total strength of the students for the course is 10. As per Mahatma Gandhi University Rules, the opposite party can collect the tuition fee of Rs. 10,000/- and special fee of Rs. 2,500/- (25% of the tuition fee). However, the opposite party collected only Rs. 10,000/- from the complainant and refunded Rs. 5,000/- to him. The complainant studied in the opposite party college from 02-09-2011 to 23-09-2011. So he is liable to pay the tuition fee for one month. The complainant is not entitled to get any of the reliefs as claimed in this complaint.

3. No oral evidence was adduced by the parties. Exts. A1 and B1 to B6 were marked on he side of the complainant and the opposite party respectively. Heard the learned counsel for the parties.

4. The points that arose for consideration are as follows :-

1. Whether the complainant is entitled to get refund of the balance fee of Rs. 5,000/-?

2. Whether the opposite party is liable to pay damages and legal expenses to the complainant?

5. Point No. i. :- The following facts are not disputed by the parties :

1. The complainant joined the course by name M.Sc. Environment Science and Management with the opposite party.

2. He remitted a sum of Rs. 10,000/- on 02-09-2011 towards tuition fee evident from Ext. B2 receipt.

3. The complainant discontinued the course with effect from 23-09-2011.

4. The complainant submitted Ext. B1 application before the opposite party and the opposite party refunded Rs. 5,000/- out of Rs. 10,000/-.

5. the opposite party issued the transfer certificate of the complainant.

6. According to the complainant, the course offered by the opposite party is different from the one approved by the Mahatma Gandhi University. It is stated that Ext. B3 prospectus goes to show that the course offered by the opposite party is M.Sc. Environment Science and Management (self-financing) and as per Ext. B4 order issued by the Mahatma Gandhi University, the course approved by them is Master of Environmental Management. The learned counsel for the complainant relied on the following decisions rendered by the Hon'ble Apex Court :

1. State of U.P. and Others Vs. Reena Singhal (Dr.) (2000) 9 Supreme Court Cases 391.

2. Budhist Mission Dental College and Hospital (2) Vs. Bhupesh Khurana and Others. (2009) 4 Supreme Court Cases 473.

3. V.N. Shrikhande (Dr.) Vs. Anita Sena Fernandes (2011) 1 Supreme Court cases 53.

7. On the contrary, the learned counsel for the opposite party raised the following points :

1. The opposite party duly refunded Rs. 5,000/- to the complainant eventhough, there was no provision for refund.

2. No student has been admitted to the place of the complainant after his being relieved.

3. The complainant left the course not for joining a similar course as stated by him but for joining the L.L.B. Course.

4. In Ext. B3 prospectus, it is specifically stated that the fees once paid will not be refunded.

The learned counsel relied on the decision rendered by the Hon'ble National Consumer Disputes Redressal Commission in Githika Kapoor Vs. Gujranwala Guru Nanak Institute of Management and Technology 2008 (IV) CPJ 197 (NC).

8. At the threshold, the argument raised by the complainant holds water especially since in Ext. B3 prospectus the course offered by the opposite party is M.Sc. Environmental Science and Management (self-financing). Whereas, Ext. A4 order issued by the Mahatma Gandhi University goes to show that they have granted permission to the opposite party to conduct the course by name 'Master of Environmental Management',only. The Hon'ble Supreme Court in Budhist Mission Dental College case (Supra),held in paragraph 33 and 34 which reads as follows:

“33. The Commission rightly came to the conclusion that this was a case of total misrepresentation on behalf of the institute which tantamounts to unfair trade practice. The respondents were admitted to the BDS Course for receiving education for consideration by the appellant college which was neither affiliated nor recognised for imparting education. This clearly falls within the purview of deficiency as defined in the Consumer Protection Act, which defines the 'deficiency' as under :

“ 'Deficiency' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”

34. Therefore, the Commission rightly held that there was deficiency in service on the part of the institute and the claimants respondents are entitled to claim the relief as prayed in the plaint. The appeal filed by the appellant is devoid of any merit and deserves to be dismissed.”

The above decision squarely applies in the instant case. We have no hesitation to hold that there is not only deficiency in service but also unfair trade practice on the part of the opposite party in conducting a course other than one approved by the University.

9. It is pertinent to note that the opposite party has not produced any evidence to show that they have not been able to admit any other student in the place of the complainant. Their inability to do so cannot be made a ruse to exert the amount due to the complainant on that pretext.

10. Indisputably, the opposite parties returned the original documents to the complainant without demur. While appreciating the gesture of goodwill shown by the opposite party in returning the transfer certificate and documents apparently considering the future prospectus of the complainant. This Forum cannot be held back from adjudicating further in the light of the decision of the the Hon’ble National Consumer Disputes Redressal Commission in Nipun Nagar Vs. Symbiosis Institute of International Business 2009 CTJ 24 has held in Para 4 as follows:

“In view of this, it is very clear that the Institute had not suffered any loss because no seat under the general category was kept vacant for the relevant year, secondly, UGC had received several complaints against various Colleges and Institutes about the unhealthy practices indulged by them in non-refunding the fees of the students, who had for some reason or the other had to discontinue/withdraw from the Institute and had secured admission in some other College/Institute. Therefore UGC had issued a public notice, the extract of which is reproduced in extenso.

Public notice

It has come to the notice of the University Grants Commission (UGC) that institutions and Universities including institutions Deemed to be Universities are admitting students to various programmes of Studies long before the actual starting of academic session, collecting full fee from the admitted students, and retaining their schools/institutions leaving certificate in original. The institutions and Universities are also reportedly confiscating the fee paid if a student fails to join by such dates.

The Commission is of the view that the Institutions/Universities, by way of retaining the certificate in original, force retention of admitted students which limits the opportunities for the candidates from exercising other options of joining other institutions of their choice. However, it would not be permissible for Institutions and Universities to retain the school/institution leaving certificate, mark sheets, caste certificate and other documents in original. The Ministry of Human Resource Development and University Grants Commission have considered the issue and decided that the institutions and Universities, in the public interest, shall maintain a waiting list of students/candidates. In the event of the student/candidate withdrawing before the starting of the course, the waitlisted candidate should be given admission against the vacant seat The entire fee collected from the student, after a deduction of the processing fee of not more than Rs. 1,000/- (one thousand only)shall be refunded and returned by the institution/university to the student/candidate withdrawing from the programme. Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable.

The Universities/Intuitions are requested to abide by the instructions issued by the UGC. The UGC shall on its own of on receipt of specific complaints from those affected, take all such steps as may be necessary to enforce these directions.

Institutions/Universities are also required to convey these instructions to the colleges affiliated to them.”

10. Point No. ii. :- The grave deficiency in service on the part of the opposite party having been explicitly proven calls for remedial measures primarily which has been met by the order for refund of the fees as above. The thorough home work done by the learned counsel for the complainant is much appreciated with a fervent hope others would follow suit. We fix the legal expenses at Rs. 2,000/-. Suffice it to say, exemplarily an amount of Rs. 2,000/- to say the least would not be inadequate.

11. In the result, we partly allow the complaint and direct as follows :

1. The opposite party shall refund the remaining fees to the complainant with 12% interest p.a. from the date of receipt till realisation, after deducting Rs. 1,000/- as stated above.

2. The opposite party shall pay Rs. 2,000/- towards legal expenses.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 31^st day of July 2012

Sd/- A. Rajesh, President.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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