BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 41/11.
THIS THE 31st DAY OF OCTOBER 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
*****
COMPLAINANT :- Smt. Shakuntala W/o. B.S. Patil, aged 40 years,
Occ: Household, R/o. Daddy Colony, Raichur.
//VERSUS//
OPPOSITE PARTY :- The Registrar, K.L.E. Medical Univesity, Belgaum.
CLAIM :- For to direct the opposites to pay a DDs amount
of Rs. 3,52,000/- which was paid to it with interest and cost.
Date of institution :- 10-06-11.
Notice served :- 23-06-11.
Date of disposal :- 31-10-11.
Complainant represented by Sri. B.S. Patil, Advocate.
Opposite represented by Sri. Dinesh M. Patil, Advocate.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainant Smt. Shakuntala against opposite K.L.E. Medical University, Belgaum under section 12 of Consumer Protection Act for to direct the opposites to pay a DDs amount of Rs. 3,52,000/- which was paid to it with interest and cost.
2. The brief facts of the complainant’s case are that, her son by name Amar.B. Patil applied for admission to MBBS course for the academic year 2009-10. He attended entrance test conducted by the opposite and as per the instructions given to him, he handed over the required fee of Rs. 3,52,000/- vide three DDs dt. 11-06-09. Opposite university not allotted a seat to him due to lower in rank. Thereafter complainant and her son requested the opposite university to return the amount of Rs. 3,52,000/- paid by them before entrance test. Opposite university not returned the said amount without giving any proper reply, thereafter, she issued legal notice by demanding to return the amount, but opposite not shown good response to her notice, as such there is deficiency in service on the part of opposite and thereby she filed this complaint for the reliefs as noted in it.
3. Opposite appeared in this case through its Advocate, filed written version and brief facts of its written version are that, the complainant son by name Amar.B.Patil attended entrance test, but he not reached the required rank, accordingly no seat was allotted to him it not received any amount from the son of complainant the university, more particularly through DD. Nos. 653674, 653675 and 653673 dt. 11-06-09. It contended that, those DDs submitted by one Vijendrakumar Varma, he reached the required rank. MBBS seat was allotted to him, later he refused to take the admission, therefore the DD amount was returned to him. The complainant son not paid any amount under the said DDs at any time to the university. Hence, returning the amount by the university does not arise. It denied all other allegations made by it and thereby, it not committed any deficiency in service. This Forum has no jurisdiction and therefore it prayed for to dismiss the complaint among other grounds.
4. In-view of the facts and circumstances stated above. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, she paid required fee amount of Rs. 3,52,000/- vide three DDs 653674, 653675 and 653673 dt. 11-06-09 to opposite university through her son to get MBBS seat, but her son not reached the required rank, accordingly opposite university refused to allot the seat to him and thereafter, she prayed for to return the DD amount of Rs. 3,52,000/- which was deposited in the university, but the said university shown its negligence in returning the said amount and thereby it found guilty under deficiency in its service.?
2. Whether complainant is entitled for the relief’s as prayed in her complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In the affirmative
(2) As discussed in the body of this judgement and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 :-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, who is noted as PW-1. The documents Ex.P-1 to Ex.P-9 are marked. Written arguments filed. On the other hand, affidavit-evidence of the Registrar of opposite university was filed, who is noted as RW-1. Documents Ex.R-1 to Ex.R-5 are marked.
7. Among the documents produced and got exhibited by the complainant documents Ex.P-1 to Ex.P-3 are the copies of the demand drafts for total amount of Rs. 3,52,000/-. Ex.P-4 is the intimation letter to the complainant son by the opposite university for to attend the counseling to UG Degree Course. Ex.P-6, Ex.P-7 & Ex.P-5 are the copies of the legal notices dt. 11-05-11. Copy of the postal receipt having sent, Ex.P-6 is RPAD and Ex.P-5 is the postal acknowledgement of opposite for having receipt of the legal notice dt. 11-05-11.
8. Documents filed by the opposite are:
1. Ex.R-1 is the receipt issued by opposite, which stands in the name of one Vijendrakumar Varma dt. 23-06-09.
2. Ex.R-2 is the candidate fees receipt copy, which also stands in the name of Vijendrakumar Varma.
3. Ex.R-3 is the copy application given by Vijendrakumar Varma to opposite for to cancel his allotted seat dt. 08-10-09.
4. Ex.R-4 is the intimation letter given by opposite to Vijendrakumar Varma for returning of Rs. 3,24,000/- due to cancellation of his seat and
5. Ex.R-5 is the copy of multi city cheque for Rs. 3,24,000/- sent to Vijendrakumar Varma under covering letter Ex.R-4.
9. On perusal of the facts pleaded by the complainant and contention of the opposite in its written version and documents referred above. It is a fact that, counseling dates were fixed from 22-06-09 to 26-06-09 vide Ex.P-4, there is no dispute regarding this document. Ex.P-1 to Ex.P-3 are the copies of the DDs among them Ex.P-1 is a DD for Rs. 3,00,000/-. Ex.P-2 is a DD for Rs. 2,000/- and Ex.P-3 is a DD for Rs. 50,000/- totally Rs. 3,52,000/- these DDs are drawn from Pragati Gramina Bank, Raichur vide application forms Ex.P-8 to Ex.P-10. On perusal of Ex.P-8 to Ex.P-10, it is a fact that, DDs were taken by showing the name of opposite university as the beneficiary. In the light of these documents, we have to appreciate the facts pleaded by the opposite in its written version at Para-13. We have meticulously observed the contents of the said Para of written version, and we are of the clear view that, opposite university received three DDs presented those DDs in the Canara Bank, Belgaum for encashment and those DDs encashed. We cannot support the contrary submissions made by the learned advocate for opposite to the above admitted facts. Hence it is a proved fact that, the complainant son handed over three DDs worth of Rs. 3,52,000/- to the opposite university.
10. In the light of the facts noted above, we have to appreciate the contention of opposite and its document. The first contention of the opposite is that, those DDs were handed over to the university by Vijendrakumar Varma and thereby it issued receipt in that regard. Ex.R-1 is the copy of the said receipt, we have gone through Ex.R-1 it is a receipt passed in the name of Vijendrakumar Varma by showing the DD Nos. 653674, 653675 for Rs. 3,50,000/- Ex.R-2 is the receipt issued by the university with regard to another DD amount of Rs. 2,000/- This receipt is also stands in the name of Vijendrakumar Varma. No doubt these two documents supports the contention that DDs amount was taken in the name Vijendrakumar Varma even though those DDs were not pertaining to Vijendrakuamr Varma. This view is supported by the documents Ex.P-8 to Ex.P-10, as regards to cancellation of the seat at the request of Vijendrakumar Varma vide Ex.R-4 and issuing a cheque for Rs. 3,24,000/- to him vide Ex.R-5 are not related to the amount paid to the university under DDs Ex.P-1 to Ex.P-3.
11. By looking into the entire facts and circumstances of this case, in the background of documents referred above, we are of the clear view that, opposite university wrongly taken the amount of DDs for Rs. 3,52,000/- in the name of Vijendrakumar instead of in the name of Amar B. Patil, thereafter also committed mistake in returning that amount to Vijendrakumar Varma without refunding of it to Amar B. Patil. Thereafter also, it shown its negligence in rectifying its mistake after the request of complaint.
12. We have gone through the principles of the rulings referred below which are relied by the complainant and we are of the view that, complainant is entitled for to get refund of an amount of Rs. 3,52,000/-.
1) II (2009) CPJ 314 (NC) COMEDK V/s. Nagamani.
2) III (2009) CPJ 33 (NC) Sehagal School of competition V/s. Dalbir Singh.
3) 2011 CTJ 346 (CP) (SCDRC) Punjab GGS College f Modern Technology V/s. Mrs.Kusma Arora and also ruling of
4) AIR 2007 Delhi 145 M/s. Rite approach group Ltd., V/s. M/s. Roso bornexpart.
Hence, we have rejected the submissions made by the learned advocate for opposite in this regard.
13. The another point, that was raised by the learned advocate for opposite in this case is that, this forum has no jurisdiction to try the subject matter of this complaint. The grounds for its that opposite university is not having any branches in Raichur District and it has no offices of administration. The university is situated in Belgaum City, as such this forum has no territorial jurisdiction to try the subject matter of this complaint Reliance is placed on section 11 (A) to (C) of C.P. Act. On the other hand, the learned advocate for complainant submitted that, section 11(C) is applicable to the facts of the present case on hand, documents Ex.P-1 to Ex.P-3 creates part cause of action to the complainant, therefore complainant rightly filed complaint before this Forum and this forum has got territorial jurisdiction to deal with the subject matter of this complaint.
14. In the light of the submissions made on both sides on this point, we have referred section 11 of C.P. Act. Section 11(A) & (B) are not applicable to the facts of this case. The only course left before us is whether section 11 (C) provides part of cause of action to the complainant to file this complaint before this Forum and whether this Forum has got territorial jurisdiction to try the subject matter of this complaint. To ascertain the actual facts, we have referred documents Ex.P-1 to Ex.P-3 which are copies of the DDs. Similarly we have also referred documents Ex.P-8 to Ex.P-10 which are copies of the application forms presented by the complainant before Pragati Gramina Bank, Raichur to issue three DDs Ex.P-1 to Ex.P-3. In the light of the circumstances of these documents, we are of the view that, complainant has got part cause of action to file her complaint before this forum and this forum has got territorial jurisdiction to try the subject matter of this complaint, as such we have also rejected the contention of the learned advocate for opposite in this regard.
15. Another point raised before us by the learned advocate for opposite is with regard to maintainability of this complaint as Amar.B. Patil allotted majority at the time of filing of this complaint. In support of this submission, he calculated the years of Primary Education, Secondary Education and his age at the time of filing of this complaint. According to him, Amara.B.Patil was the major, accordingly this complaint filed by his mother is not maintainable. This fact is denied by the complainant and contended that Amara.B.Patil is the minor and the complaint is filed by his natural mother hence complaint is maintainable.
16. In the light of these submissions we have referred the principles noted in 2006 CTJ 212 (SC)(CP) = 2005 13 SCC 648 Tarachand Jain V/s. Gangaram Hospital. In the said case the Hon’ble Supreme Court has held:
Proceedings under C.P. Act are not akin to that of civil suit. Some of the provisions of CPC pressed into service as a part of fair procedure to deal with the consumer complaint. CPC is not applicable generally.............................................. maintainability of complaint is not hit by any laws in force.
17. In the light of the principles referred above, we are of the view that, applying too much procedural technicalities in dealing with cases under C.P. Act, the main purpose of the Act is going to be frustrated. This contention of the opposite will not harm to any of the parties as it not disputed the fact that, complainant is the natural mother of Amar.B. Patil. Whether complainant is major or minor at the time of filing of this complaint is not material ground as submitted before us to reject this complaint, accordingly this contention is also rejected.
18. Another material point for our consideration in this case is that, whether opposite has got encashed DDs amount of Rs. 3,52,000/- from the son of the complainant for allotting a seat. It is evident that, complainant son not eligible to get seat. The DD amount under Ex.P-1 to Ex.P-3 obtained by the complainant vide applications to the Bank vide Ex.P-8 to Ex.P-10. Opposite received those DDs and encashed them, in such circumstances taking some grounds for non refund of that amount from opposite university amounts to deficiency in its service. The complainant has got right to demand for refund of an amount of Rs. 3,52,000/- paid for allotment of a seat to her son from opposite university. Accordingly we answered Point No-1 in affirmative.
19. It is a fact that, complainant paid Rs. 3,52,000/- to opposite university for allotment of a seat to her son Amar.B.Patil. It is also a fact that, her son not reached the required rank for allotment of a seat, in view of the circumstances the complainant is entitled to get an amount of Rs. 3,52,000/- from the opposite university.
She is also entitled to get lumsum amount of Rs. 3,000/- from the opposite university under the head of deficiency in its service.
She also entitled to get another lumpsum amount of Rs. 3,000/- from the opposite university towards cost of litigation.
She further entitled to get interest at the rate of 9% p.a. on total sum of Rs. 3,58,000/- from the date of this complaint till realization of the full amount, accordingly we answered this point.
POINT NO.3:-
20. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is allowed with cost.
The complainant is entitled to recover a total amount of Rs. 3,58,000/- from the opposite university.
The complainant is also entitled to get interest at the rate of 9% p.a. on the total amount of Rs. 3,58,000/- from the date of this complaint till realization of the full amount.
Opposite is granted one month time to comply this order.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 31-10-11)
Sri. Gururaj Sri. Pampapathi,
Member. President,
District Consumer Forum-Raichur. District Consumer Forum-Raichur.
