LITUN PRADHAN vs NEELACHAL INSTITUTE OF MEDICAL SCIENCE

Challenge in this Revision Petition, by the Complainant, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act") is to the order, dated 14.08.2009, passed by the Orissa State Consumer Disputes Redressal Commission (for short "the State Commission"). By the impugned order, the State Commission, while allowing the Appeal, filed by Neelachal Institute of Medical Science, Respondent herein, against the order, dated 02.07.2007, passed by the District Consumer Disputes Redressal Forum, Khurda, Bhubaneswar (for short "the District Forum"), has dismissed the Complaint filed by the Petitioner. In the Complaint, the Petitioner had prayed for a direction to the Respondent to refund the fees and other charges deposited by her at the time of taking admission in the Bachelor of Physiotherapy (BPT) course, along with compensation for the mental agony and harassment caused to her because of misrepresentation made by the Respondent. The State Commission has come to the conclusion that there was absolutely no deficiency in service on the part of the Respondent Institution and the Petitioner had left the studies midstream on her own volition.

Succinctly put, the material facts are:- Influenced by an attractive brochure issued by the Respondent Institute, clearly pronouncing that it was the first Physiotherapy college in Orissa, approved by the Government of Orissa and affiliated to Utkal University, the Complainant applied for admission to the BPT course, for the academic year 2004-05. In the entrance test, conducted by the Respondent, she was successful and was admitted to the course. The duration of the course was 41/2 years. In addition to one time admission fee of 10,800/-, the yearly fee for the course was 32,000/- and semester fee was 17,000/-. She paid a total sum of 1,00,800/- as admission and tuition fee, during the period from 29.06.2004 to 12.08.2005. She had also raised loan from Andhra Bank to pay the said fees. It appears that since the date for conducting examination for the academic session 2004-05 by the scheduled time was not being announced, the parents took up the matter with the Respondent, which seems to have forced it to issue the following clarification:-

"CLARIFICATION

Moreover, this is to inform all of you that, since Neelachal Insitute of Medical Seicences, Bhubaneswar, is the first Physiotherapy College in the Private sector in Orissa, so Govt. is in the process of formulating the policy on the matter that, which department, Health & Family Welfare or Welfare Department, is competent to monitor the said programme. This is purely the subject matter of State Government to decide where we have nothing to do with it. However, our efforts are to pressurize the Government, who has given permission, for starting the college and admitting the students.

Regarding the first BPT annual University Examination is concerned for the session 2004-05 students, this is to be noted that, as of today no notification is there with Utkal University for holding the examination. However, University is planning to conduct the said examination for the students, (2004-05 session) of NIRTAR, Olatpur, in the month of March. Accordingly, Neelachal Institute of Medical Science, Bhubaneswar, is making itself ready to enable its students for appearing their examination with them. Discussion is going on with Govt. as well as University officials for conducting the examination. There is no room to doubt that, examination will not be conducted by the University for the students of Neelachal Institute of Medical Sciences, Bhubaneswar, in their scheduled time. NIMS is ready to take up any challenge for safeguarding the interest of the enrolled students vis-a-vis their University examination, as it is approved by Govt. of Orissa and Utkal University............"

Yet again, while communicating the proceedings of the Parents meeting, held on 15.01.2006, regarding examination for BPT course for the session 2004-05, certain further clarifications were issued vide Respondent''s circular dated 23.01.2006. The relevant paragraphs thereof read as follows:- " The recognition of State Govt. to the course, at present, is pending with W & C.D Department, Govt. of Orissa. Hopefully it will be resolved maximum within a week and the college after getting the recognition will definitely move forward for affiliating the institute for the said course from the session 2004-05 and enabling all students for appearing their examination in the scheduled time. Neelachal Institute of Medical Science, Bhuaneswar, is taking all out efforts to draw the attention of his Excellency, the Governor of Orissa and Chief Minister of Orissa in allowing the institution for affiliating the programme with University very soon . Hopefully, it will definitely be considered in favor of the students as the institution is not carrying any insufficiency/ drawbacks as per the requirement of Govt. of Orissa.

Being deeply frustrated because of loss of over 11/2 years of her academic career in the Institute and still uncertain about the holding of examination for the session 2004-05, on 23.02.2006, the Complainant decided to quit the institute and got a legal notice issued to the Respondent, calling upon it to refund the entire fees deposited by her along with interest @ 18% p.a. Having failed to elicit any response to the notice, the Complainant was constrained to file Complaint against the Respondent in the District Forum.

On evaluation of the documents, filed by the parties, in particular letter dated 17.03.2006, issued by the Government of Orissa, Woman and Child Development Department and letter dated 10.04.2006 by the Utkal University, the District Forum observed that though provisional recognition for the session 2004-05 was communicated to the Respondent only in the year 2006, the Respondent had already conveyed to the father of the Complainant, vide its letter dated 01.03.2005, that Utkal University had granted affiliation to the Institute for the BPT course. However, as a matter of fact, by that time, the Institute was neither approved by the Government of Orissa nor affiliated with Utkal University. The District Forum thus, found substance in the Complaint and categorically held that the Respondent had misled the Complainant, by circulating brochure/prospectus at the time of admitting the students in the year 2004, there was deficiency in service on the part of the Respondent and, therefore, the Complainant was entitled to the claim made in the Complaint. Accordingly, the District Forum allowed the complaint and directed the Respondent to refund a sum of 1,00,800/-, deposited by the complainant along with 10,000/- as compensation for the mental agony and litigation expenses, assessed at 2000/-, within one month from the date of communication of the order; failing which the said amount was to carry interest @ 12% p.a. from that date till the date of actual payment.

Aggrieved by the said order, the Respondent carried the matter in Appeal to the State Commission. As noted above, the State Commission has allowed the Appeal and dismissed the complaint, observing thus:- "This is a case where genuine attempts have been made right from the date of admission of the students for obtaining recognition and getting affiliation, which, in fact, have been obtained and the students of the institute have already appeared in the 1 st BPT Examination conducted by the Utkal University. As is submitted by the learned counsel for the appellant, the first batch of students (of whom the complainant was one) has already passed out without any hindrance. In our opinion, it is the complainant who on her own left the college, did not fill up form in spite of being informed in time and did not sit in the examination. The complaint by the complainant was filed on 08.03.2006, just in the month when other students of her batch filled up their forms and in the first week of April, 2006 sat in the examination. The complainant raises the allegation that she was misled by the advertisement. But to us it appears that she was not informed of the developments. She being a resident of Bhubaneswar town itself should have enquired from the University and from the appropriate Government Department about the genuineness or otherwise of the course she was prosecuting under the opposite party. In our view, she left her studies and the course she was prosecuting on her own volition and there is absolutely no deficiency in service on the part of appellant-opposite party, nor has it indulged in unfair trade practice, for which it should be held liable.

Hence, the present Revision Petition.

Despite service, the Respondent remained unrepresented. Accordingly, we had heard Ld. Counsel for the Petitioner. We have also perused the documents on record, including the brochure/prospectus, highlighting the achievements of the Institute and the facilities offered; a cyclostyled letter, dated 01.03.2005, addressed by the co-ordinator of the Institute to the father of the Complainant conveying to him that the Institute had got the approval of Government of Orissa as well as Utkal University and appealing for his co-operation with the revised course and payment of fees of the Petitioner, to develop the building, transportation system, permanent facilities, etc. within a span of two years, as per government guidelines and aforenoted letters, etc.

Having bestowed our anxious consideration to the facts at hand, we are of the view that the impugned order is unsustainable. In our opinion, the entire approach of the State Commission in dealing with the subject at issue is fallacious. A bare reading of the afore-extracted portion of the order makes it clear that the State Commission has laid too much emphasis on the post admission developments, whereas, the pivotal question for consideration was whether the information contained in the brochure, inviting application for admission to BPT course for the session 2004-05, was misleading or not. On the front page of the prospectus/brochure, offering Bachelor of Physiotherapy (BPT) 41/2 years course, it was printed: "Approved by Government of Orissa, INC New Delhi & affiliated to Utkal University, Bhubaneswar" , which statement, in so far as BPT course was concerned, was palpably incorrect and misleading to the knowledge of the Respondent. It is also pertinent to note that on the last page of the prospectus, against Note V, it was stated that "students interested for admission into 3 years, BSc. Biotechnology programme of the Institute under Utkal University are advised to wait till 15 th July 2004, as the final permission vis-a-vis affiliation from Government of Orissa and Utkal University is awaited" but no such note

was appended in so far as admission to 41/2 years BPT course was concerned. Furthermore, it is also clear from letter dated 17.03.2006, issued by the Government of Orissa, Woman & Child Department, that provisional recognition for BPT course for the candidates appearing in the year 2006 was granted after two years of the admission of the Complainant and that too with the rider that it could be withdrawn at any time without notice and provisional recognition was valid for the students appearing in 2006 examination. We are of the view that since at the time of admissions for BPT course in the year 2004, the course was neither recognized by the Government of Orissa nor was it affiliated with Utkal University, there was no occasion for the Respondent-Institute to start admissions in the said course at that point of time. We have no hesitation in holding that the Respondent did make misrepresentation to the Complainant and others who took admission in its BPT Course to the effect that the Institute was recognized and approved by both the Government as well as by Utkal University, which tantamounts to unfair trade practice within the meaning of Section 2(1)(r) of the Act and further its failure to conduct first-year examination by the normal schedule time, resulting in wastage of two precious academic years of the Petitioner, amounts to "deficiency" as defined in Section 2(1)(g) of the Act. The subsequent efforts, stated to have been made by the Respondent in getting atleast provisional recognition from the Government, which seems to have influenced the decision of the State Commission, in our opinion, is neither relevant nor sufficient to absolve the Respondent from the charge of misleading the students, including the complainant, resulting in loss of their two valuable academic years, impacting their future career as well.

Support is lent to this view by the decision of the Hon''ble Supreme Court in Buddhist Mission Dental College & Hospital Vs. Bhupesh Khurana & Ors. (2009) 4 SCC 473, wherein it was held that admitting students to the four years degree course of BDS by an Institute, which was neither affiliated by a University nor recognized by the Dental Council of India, for imparting education, on misrepresentation about affiliation, not only tantamounts to "unfair trade practice", it clearly falls within the purview of "deficiency" as defined in the Act. The ratio of the said decision is on all fours to the facts in hand.

For the afore-going reasons, the Revision Petition is allowed; the impugned order is set aside and the order of the District Forum is restored. We direct that in case the amounts awarded by the District Forum have not yet been paid by the Respondent to the Complainant/Petitioner, the same shall be paid within six weeks from the date of receipt of a copy of this order. There will, however, be no order as to costs.