DIRECTOR OF ADMISSIONS vs RADHA NARAYANAN M.B.B.S.

-THE opposite party in O.P. No. 40/ 93 on the file of the District Forum, Palakkad, who is aggrieved by the order passed by the District Forum has filed this appeal.

THE complainant took two drafts one from Corporation Bank, Palakkad and other from State Bank of Travancore, Kozhinjampara for a total amount of Rs. 2.5 lakhs for reservation of seat for the Post-Graduate Diploma in Gynaecology and Obstetrics. It is the case of the complainant that the management represented that it was likely to arise vacancies in 1992 batch itself or in any event a seat would be reserved for her in 1993 batch. Accepting this offer, Demand Drafts for Rs. 2.5 lakhs were sent by the complainant to the opposite party. It is also the case of the complainant that she wrote several letters to the opposite party for intimation regarding admission, but there was no response from the opposite party. Subsequently on 11- 10-1992 a registered letter was sent to the Director of Admission informing that if she was not admitted in the 1992 batch, they should immediately refund the amount with interest. THE opposite party sent a reply dated 15-10-1992 to the complainant''s letter stating that the seats for July 1993 were protected to her and if the complainant was not interested to get admission in 1993 batch, she should apply for refund with original receipt and payment would be made deducting one percent cancellation charges. Subsequently, the opposite party refunded the amount after deducting one percent from the amount paid as cancellation charges. THE complaint was filed alleging that the deduction of one percent as cancellation charges was illegal and the complainant was entitled to get interest on the amount paid by her. The Opposite Party filed a version stating that the complainant is not a consumer and she has not sustained any deficiency of service. It was also averred that the opposite party plainly told the complainant that there was no seat available in 1992 July batch and she was assured that she would be provided a seat in July 1993 batch. As there was no vacancy in 1992 batch the opposite party could not give admission to the complainant in 1992 batch. On 5-3-1993 the complainant wrote a letter to the opposite party requesting the opposite party to reserve seat in 1993 batch and also directed to encash the demand drafts for Rs.2.5 lakhs sent by her. In the circumstances it was averred there was no deficiency of service on the part of the Opposite Party. It was further averred that no part of cause of action arose within the jurisdiction of District Forum Palakkad, The complainant was fully aware of the fact that in the event of cancellation of the reservation there would be deduction of one percent of the amount towards cancellation charges. Accordingly, the opposite party refunded the amount after deducting one percent towards cancellation charges and in the circumstances the complainant is not entitled to any reliefs.

The District Forum took the view that the complainant is a consumer. It also held since the demand drafts were taken from the Banks at Palakkad and were despatched from Palakkad, part of cause of action arose at Palakkad which is within the jurisdiction of the District Forum, Palakkad. The District Forum also took the view that the Opposite Party had an obligation to refund the amount paid by the complainant and in that view, an order was passed directing the Opposite Party to pay Rs. 11,500/- as compensation.

IN this appeal, learned Counsel for the appellant vehemently contended that the District Forum Palakkad has no territorial jurisdiction to entertain the complaint. According to the learned Counsel no part of cause of action arose in Palakkad. The learned Counsel argued that mere sending of D.D. from Palakkad can hardly be considered as part of cause of action. We find it difficult to accept this contention. The Opposite Party made an offer to give a seat either in 1992 July batch if there is some cancellation at last minute or atleast in 1993 July batch, provided the complainant pays a capitation fee of Rs. 2.5. lakhs. This offer was accepted. Taking of drafts and despatching it through post offices would amount to acceptance of the offer made by the opposite party. Therefore it has to be held that alteast part of the cause of action arose at Palakkad within the jurisdiction of Palakkad District Forum.

IT is next contended that the complainant is not a consumer Rs. 2.5 lakhs was paid on the promise that a seat would be reserved for the complainant. That is a service promised by the opposite party for consideration. IT follows that there is hiring of service for consideration. Therefore the contention that complainant is not a consumer cannot also be accepted. Learned Counsel contended that in any event the opposite party is entitled to make a deduction of one percent towards cancellation charges and that has been provided in the rules of the Management regarding admission and payment. We find that there is a statement in the version that the complainant knew that, it is normal practice to deduct one percent towards cancellation charges. When payment is made for hiring of service and the required service was not rendered, and implied contract can be presumed that the consideration paid for service will be refunded. There is no evidence to show that the complainant has been told at the time when offer was made that in the event of cancellation there would be adeduction of one percent. No doubt, in the letter dated 15.10.1992 addressed to the complainant she was told that the opposite party would refund the amount only after deducting one percent of the. amount paid towards the cancellation charges. This was done long after the agreement between the parties and this cannot be read as part of the agreement. We therefore are inclined to hold that the opposite party is not entitled to make a deduction of one percent as cancellation charges. The amount so deducted would come to Rs. 2500/-. As this amount was wrongly withheld by the Opposite Party, the complainant would be entitled to interest at the rate of 12% on this amount from the date of cancellation, namely, 22-10-1992. Learned Counsel finally argued that the award of further compensation ordering to pay interest at 15% on the amount paid is not justified. It is not contended that there was refusal on the part of the opposite party to give admission in 1993 July batch as agreed between the parties. The complainant herself cancelled the reservation and therefore there cannot be any deficiency in this regard on the part of the Opposite Party. There was no agreement to pay interest on the amount paid in the event of cancellation. In the circumstances, we do not find any justification for awarding interest on the amount paid by the complainant. We vacate that part of the order. In the result we direct that the opposite Party will refund Rs. 2500/- together with interest at 12% from 22-10-1992. This will be done within a period of one month from today. Appeal dismissed.