Krupa Nidhi College Of Pharmacy And Anr. vs Niloofar Shokraiah Zanjani

THE Complainant had approached the District Forum on the ground that in spite of collecting 6000 US Dollars as admission fee and for registration, she was not given Hall Ticket for examination even though necessary examination fee had been paid. It is further contended that the Opposite Party had issued bona fide certificate on 17.3.2004 to attend second year B.Pharma Course by paying necessary fees. The Complainant on contacting Rajiv Gandhi University came to know that she was not eligible to take B.Pharma Course because she had not taken Mathematics as her subject. The Complainant sought refund of the fees paid to the Opposite Party but the same was not paid. Alleging deficiency in service, the Complainant approached the District Forum for refund of the fees paid by her and other reliefs. The matter had proceeded ex parte against the Respondent in the District Forum due to non -appearance. The appeal filed by the Opposite Party before the State Commission was dismissed on the ground of delay of 89 days. On merits also, the appeal was dismissed. The ground for dismissal on merits recorded by the State Commission are as under: "Admittedly, the Complainant has not produced the Eligibility Certificate in order to get admission to B. Pharma course for the year 2002 -2003. If the Complainant was not admitted to the institution for non -production of Eligibility Certificate, whatever the amount paid by her is to be refunded Non -refund of the amount paid by the Complainant, in our view is the deficiency in service having not given any service to the Complainant. Therefore, we find no substance even on merits in this appeal"

We have heard learned Counsel for the Petitioner and the Amicus Curiae appointed on behalf of the Respondent. Learned Counsel for the Petitioner submitted before us that evidence on behalf of the Complainant was given by Shri Mahadi Eftekhari Moghaddam without filing any power of attorney and even otherwise the evidence of power of attorney holder cannot be read in evidence. He also stated that no receipt of any payment to the Petitioner was produced by the Complainant. The findings of the State Commission that the Complainant was not admitted to the Institution for non -production of Eligibility Certificate and the amount paid has to be refunded are totally contrary to the facts on record, inasmuch as the Complainant had herself stated in the complaint that she had joined the Institution and studied for the Academic Year 2002 -2003 but she was not given hall ticket for examination. According to the learned Counsel for the Petitioner, the impugned orders are required to be set aside as the same are not based upon legally admissible evidence.

ON the other hand, learned Counsel Mr. Devendra Singh, who was appointed as Amicus Curiae for the Respondent, has argued that the Eligibility Certificate sought to be produced is dated 2.1.2006 and it pertains to the Academic Year 2005 -2006 which has no relevance to the facts of the case. He also submitted that the Opposite Party had even issued bona fide certificate on 17.3.2004 to the Complainant to attend second year B. Pharma Course by paying necessary fees. According to the learned Counsel, the Complainant had filed Eligibility Certificate dated 26.12.2003 and Provisional Admission dated 16.8.2002. However, the Petitioner refused to issue the hall ticket for examination due to which she could not pursue her further studies which amounts to deficiency in service and as such the order of the District Forum does not call for any interference which was confirmed by the State Commission.

INSOFAR as findings of the State Commission are concerned, there is considerable merit in the contention of the learned Counsel for the Petitioner that the findings of the State Commission to the effect that "if the Complainant was not admitted to the Institution for non -production of Eligibility Certificate, whatever the amount (paid) by her is to be refunded". These findings are contrary to what is stated in the complaint and the case of the Complainant herself. Likewise, the findings of the State Commission that admittedly the Complainant had not produced the Eligibility Certificate in order to get admission to B. Pharma Course for the year 2002 -2003 are contrary to what is stated by the Complainant in Para -10 of the complaint wherein it is stated that the Complainant has produced the Eligibility Certificate dated 26. 12.2003 (Annexure -A). Be that as it may, the evidence on behalf of the Complainant in this case was given by Shri Mahadi Eftekhari Moghaddam who claims to be power of attorney of the Complainant. Learned Counsel for the Petitioner has categorically stated that no power of attorney had been filed by the said Shri Mahadi Eftekhari Moghaddam. Even if the power of attorney had been filed, power of attorney holder could not have given evidence by way of affidavit in respect of the facts which are in exclusive knowledge of the Complainant. How could the power of attorney depose about the material facts which were within exclusive knowledge of the Complainant and as such the evidence in the affidavit is nothing but pure hearsay evidence which without any independent corroboration from any quarter is not only not admissible but cannot be trusted or relied upon. It appears that proxy litigation is being conducted by the said Shri Mahadi Eftekhari Moghaddam. In view of the fact that most of the material facts in the affidavit evidence of Shri Mahadi Eftekhari Moghaddam were within the knowledge of the Complainant, affidavit evidence of the Complainant was necessary for the purpose of examination of the case of the Complainant for granting relief sought in the complaint. Therefore, in our opinion, the District Forum erred in relying upon evidence of Shri Mahadi Eftekhari Moghaddam and the findings based upon the said evidence are required to be set aside. For the aforesaid reasons, the orders of the District Forum and State Commission are hereby set aside and the complaint is dismissed. The revision petition is disposed of accordingly. In the facts and circumstances, there shall be no order as to costs R.P. disposed of.