BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENA KUMARI .A : MEMBER
SMT. S.K. SREELA : MEMBER
C.C. No. 192/2008 Filed on 22/08/2008
Dated: 30..04..2011
Complainant:
Dr. Rajan Simon James, T.C.4/99, Kowdiar, - P.O., Thiruvananthapuram.
(By Adv. S. Balachandran)
Opposite parties:
Vinayaka Mission University, represented by its Managing Director, Salem, Tamil Nadu.
Managing Director, Vinayaka Mission University, Salem, Tamil Nadu.
(Opp. Parties 1 & 2 by Adv. M.M. Mathew)
This O.P having been heard on 05..03..2011, the Forum on 30..04..2011 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that, on seeing an advertisement in the Malayala Manorama Daily announcing that Malayala Manorama – Horrison Educational Exhibition will conduct on 23/5/2008 at St. Joseph's School, General Hospital Junction, Thiruvananthapuram, complainant and his daughter reached there on 23/5/2008 and the opposite parties had also exhibited their advertisement in a Cabin, that the person, who was in charge of the institution of the opposite parties announced the details of the Course offered by the opposite parties, that complainant chose B.D.S Course for his daughter, that opposite party announced the duration of the course as 4 years and total fees for the entire course is Rs. 8 lakhs, apart from meeting the expenses of food and accommodation, that the agent of the opposite parties gave a pamplet offering details of various courses of the opposite parties, that complainant agreed to join her daughter in the course, that on that day opposite party demanded a sum of Rs. 10,000/- by way of D.D and complainant gave the same to the agent of the opposite party, that the agent of the opposite party directed the complainant to appear the Office at Salem on 31/5/2008 with a D.D for Rs.90,000/- along with original certificates of the daughter of the complainant, that accordingly complainant and his daughter along with D.D for Rs.90,000/- and the original certificates reached at opposite parties' College at Salem on 31/5/2008, that the Office of the opposite party directed the complainant to purchase the application form for admission on payment of Rs.2,000/-, that along with the filled up application the staff of the opposite parties directed the complainant to approach the opposite party in his chamber, opposite party received the filled up application and the D.D for Rs.90,000/- thereafter that opposite party directed the complainant to give a sum of Rs. 5 lakhs as donation and he had handed over prospectus of various courses and apart from payment of donation he directed the complainant to pay Rs. 2 lakhs each for a period of 5 years continuously, that apart from that complainant was directed to give a further sum of Rs.56,000/-, that when the complainant told the 2nd opposite party that this was not the fees structure offered by the agent of the opposite parties on 23/5/2008 and complainant told that he is not amenable to accept the illegal demand of the opposite parties and requested to give back the D.D and the amount collected by him, 2nd opposite party told that the complainant has to pay a sum of Rs.2.5 lakhs as donation on that day and balance amount has to be paid on or before 4/6/2008, that complainant was not amenable for the said demand and again asked to return the amount collected by the opposite parties, that when the 2nd opposite party demanded the original certificates, the complainant hesitated to hand over the same due to the act of cheating committed by the 2nd opposite party, that complainant was forced to pay Rs.1 lakh and spent Rs.15,000/-, that for reaching at Salem and for other incidental expenses including taxi fare, accommodation and others, that on 03/06/2008 complainant caused to issue an advocate notice demanding Rs. 1,15,000/- with interest from the opposite parties, that the opposite party sent reply stating harsh words, that opposite party agreed to give back Rs. 1 lakh and complainant was again asked to reach there, that again on 26/6/2008 complainant caused to issue another notice to opposite party stating that the opposite party need to pay Rs.1,02,000/- alone and it may be sent by way of D.D within a week of receipt of the notice, that opposite party received the said notice, but did not respond positively. Hence this complaint to direct opposite parties to pay a sum of Rs. 1,27,000/- to the complainant with 16% interest for the same from 31/5/2008 along with Rs. 10,000/- as compensation and Rs. 5,000/- as cost.
2. Opposite parties entered appearance and filed version contending inter alia that the advertisement referred to in para 2 of the complaint was not published by the opposite parties, that the averments in para 3 that the agent of the opposite parties demanded a sum of Rs. 10,000/- by way of D.D is false, that opposite parties had not appointed any agent nor had they authorised anybody to receive money on their behalf, that complainant had not filed any application for admission nor had he produced any certificate nor had he met the opposite parties, that application form has a fixed rate of applicable to all. It is true that opposite parties' Office had received 2 D.Ds – one for Rs.10,000/- and another for Rs.90,000/-, that 2nd opposite party had not seen either the complainant or his daughter, that there was no demand for money made by him as alleged, that complainant is a total stranger as far as the 2nd opposite party is concerned, that for the notice caused to be issued to the opposite parties appropriate reply has been sent, that opposite parties have no agent or office in Thiruvananthapuram or any other place in Kerala, that there is no branch office or transction in Kerala, that there was no transaction for agreement between the complainant and the opposite parties in Kerala, that opposite parties are in Salem, Tamil Nadu, that complaint is not maintainable, that there is no avail of service, that there is no payment of consideration, that even if the averment in regard to the payment of D.D in Kerala is accepted to be true it will not create any cause of action at all. Hence opposite parties prayed for dismissal of the complaint.
3. The points that arise for consideration are:
Whether this Forum has jurisdiction to entertain the complaint?
Whether complainant is entitled to get back Rs.1.27 lakhs from the opposite parties with interest thereon?
Whether there is deficiency in service on the part of the opposite parties?
Whether complainant is entitled to compensation and cost?
In support of the complaint, complainant has filed affidavit in lieu of chief examination and has marked Exts. P1 to P6. In rebuttal, opposite party has not filed proof affidavit or any documents.
3. Points (i) to (iv): Admittedly, opposite parties are at Salem in Tamil Nadu. It has been the case of the complainant that on seeing an advertisement in Malayala Manorama Daily announcing that Malayala Manorama – Horrison Educational Exhibition will conduct on 23/5/2008 at St. Joseph's School, General Hospital Junction, Thiruvananthapuram he and his daughter reached there on 23/5/2008 and the person, who was in-charge of the institution of the opposite parties announced the details of the Course offered by the opposite parties and chose B.D.S Course for his daughter, that opposite parties' agent told him the duration of the course and total fees etc.... Further on understanding the details furnished by opposite parties' agent complainant agreed to join her daughter in that course and gave a D.D for a sum of Rs. 10,000/- as demanded by him. Complainant has produced the counterfoil of the D.D dated 23/5/2008 and on perusal of the said counterfoil it is seen that the said amount was paid at SBI Althara Junction, Thiruvananthapuram. Further it is admitted by opposite parties by Ext. P2 reply notice dated 19/06/2008 that opposite parties had a stall in exhibition at Thiruvananthapuram. It is also admitted that complainant had handed over the D.D for Rs. 10,000/- in order to conform the seat in the B.D.S course from which it can be inferred that part of the cause of action arose at Thiruvananthapuram. As per Section 11(2) of the Consumer Protection Act the complaint shall be instituted in a District Forum within the local limits of whose jurisdiction opposite party resides or carries on business or has a branch office or the cause of action wholly or in part, arises. In the instant case part of the cause of action took place in Thiruvananthapuram. Though, opposite parties are at Salem, admittedly, they have conducted exhibition in Thiruvananthapuram and canvassed candidates for admission. Complainant and his daughter went there and discussed the course details with opposite parties and handed over D.D for Rs.10,000/- as demanded by the agent of the opposite parties, thereby it is crystal clear that part of the cause of action has arisen in Thiruvananthapuram. As such this Forum has jurisdiction to entertain complaints and adjudicate the same. Complainant's evidence consists of oral testimony of the complaint and Exts. P1 to P6. Ext. P1 is the copy of the Advocate notice dated 03/06/2008 addressed to the Managing Director, Vinayaka Mission Univeristy calling upon them to pay back Rs. 1 lakh along with Rs. 15,000/- towards expenses incurred by the complainant. Ext. P2 is the reply notice issued by opposite parties' counsel on 19/06/2008. On perusal of Ext. P2 it is seen that opposite party had a stall in exhibition at Thiruvananthapuram and also admitted that complainant had handed over the D.D for Rs.10,000/- to conform the seat in the B.D.S Course. Further it is replied by opposite parties that complainant may take back his D.D for Rs. 1 lakh. Ext. P3 is the copy of the Advocate notice dated 26/6/2008 addressed to opposite parties by the complainant calling upon them to send the D.D of Rs.1,02,000/-. Ext. P4 is the copy of the postal receipt. Ext. P5 is the copy of the acknowledgment card showing the receipt of Ext. P3 notice by the opposite parties. Ext. P6 is the copy of the pamphlet issued by the opposite parties. Though complainant has been cross examined by the opposite parties, nothing was elicited from him to shake the contention of the affidavit. Opposite party has not filed proof affidavit to substantiate their contention, nor has opposite party furnished any material to controvert the affidavit of the complainant. It is pertinent to point out that opposite party had already admitted that they had a stall in exhibition at Thiruvananthapuram, complainant already submitted that he was captivated by the advertisement in the Malayala Manorama Daily regarding the aforesaid exhibition conducted on 23/5/2008, further it was admitted by opposite parties that they had received Rs.1,00,000/- from the complainant; in connection with the B.D.S Course, as per the assurance given by the agent of the opposite party in the exhibition at Thiruvananthapuram, but when the complainant and his daughter reached at Salem, opposite parties made illegal demands, which was contrary to the discussion and offer given by the agent of the opposite parties in exhibition at Thiruvnanthapuram and hence complainant requested to give back the D.D and amount collected by them. It is to be noted that complainant requested the opposite parties to give back the amount on 03/06/2008 by Ext. P1. Opposite parties admitted the same by Ext.P2. Thereby there was ample opportunity on the part of opposite parties to seek other candidates for admission. Since complainant has not joined in the said Course, they are entitled to get back the amount already remitted by them. It is to be noted that opposite parties has not returned the amount collected from the complainant. The amount collected from the complainant is with the opposite parties they might have used the said money, for which complainant must get interest on that amount. Non-refund of the said amount would definitely amount to deficiency in service. Complainant has not furnished any other material to show other expenses in connection with the said B.D.S admission. Opposite parties already admitted the receipt of Rs. 1,00,000/- from the complainant. In view of the above, we view that refund of Rs.1,00,000/- with interst at the rate of 9% per annum along with a compensation of Rs.5,000/- would meet ends of justice.
In the result, complaint is allowed. Opposite parties are directed to refund to complainant a sum of Rs.1,00,000/- with interest calculated at the rate of 9% per annum from 31/5/2008, along with Rs.5,000/- as compensation and Rs.2,000/- as cost within two months from the date of receipt of this Order, failing which Rs.1,00,000/- will carry interest at the rate of 16% per annum.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of April, 2011.
G. SIVAPRASAD,
PRESIDENT.
BEENA KUMARI .A MEMBER.
S.K. SREELA
ad. MEMBER .
C.C.No: 192/2008
APPENDIX
I. Complainant's witness:
PW1 : Dr. Rajan Simon James
II. Complainant's documents:
P1 : Copy of advocate notice dated 3/6/2008
P2 : The reply notice issued by opposite parties' counsel on 19/6/2008.
P3 : Copy of the advocate notice dated 26/6/2008 addressed to opposite parties by the complainant.
P4 : Copy of the postal receipt
P5 : " acknowledgement card
P6 : " pamphlet issued by the opposite parties
Opposite parties' witness : NIL
IV. Opposite parties' documents : NIL
PRESIDENT
