MAHATMA GANDHI MEDICAL COLLEGE And RESEARCH INSTITUTE vs SABARI PRIYA

THE opposite parties are the appellants. THE respondent/complainant has filed the complaint for directing the opposite parties to pay Rs. 1,25,000 with interest and compensation of Rs. 50,000.

THE case of the complainant is as follows: THE complainant joined the 1st opposite party college which belongs to the 2nd opposite party through CENTAC for the first year M.B.B.S. during the academic year 2001-02. THE complainant paid Rs. 1,20,000 to the 1st opposite party on 17.4.2002 towards tuition fee, deposit, etc. THEreafter, the complainant got seat in JIPMER in July 2002 and discontinued the 1st opposite party institution. THE complainant and their family members made several demands for the refund of the amount paid by the complainant. But the opposite parties failed to refund the amount. THE act of the opposite parties caused mental agony and suffering to the complainant. THErefore, the complainant has come forward with this complaint. The case of the opposite parties is as follows: The complainant and her father executed a joint undertaking in the application stating that they would not claim any refund of fee. In the prospectus also it is mentioned that any amount paid towards tuition fee, admission fee will not be refunded under any circumstances. The complainant joined the college on 17.4.2002 but left on 18.7.2002 after attending the opposite parties college for three months. The opposite parties would have returned a reasonable amount of fees to the complainant if she had joined any other constituent college of CENTAC but not JIPMER. Moreover, the Government colleges are not refunding the fees paid by the students under any circumstnaces. Anyhow, the 1st opposite party was ready to refund Rs. 25,000 towards caution deposit, meal charges deposits and extra amount as a special case. The complainant obtained overcoat, Library token, I.D. Card, record notes, students diary and health insurance. Since the complainant left the college on her own, the first opposite party is unable a fill up the place with another student. The Consumer Forum lacks jurisdiction to decide this complaint. The Forum has no jurisdiction to decide the complaint against any educational institution. Since the complainant left the institution on her own accord, the opposite parties are not liable to refund the amount. The claim made by the complainant attract money claim and this relief is not contemplated under Consumer Protection Act. Further, the compensation can be claimed for loss or injuries suffered due to negligence of opposite party. In the present case, there is no negligence on the part of the opposite parties.

No oral evidence was adduced by both parties. Exs. C1 to C10 were marked on the complainant side and Exs. R1 to R7 were marked by the opposite parties. On perusal of the pleadings and documents, the District Forum has held that the complainant is a consumer entitled to claim relief under the provisions of Consumer Protection Act. Regarding the refund of the amount, the District Forum has directed the opposite parties to refund Rs. 60,000 without interest and pay Rs. 10,000 towards compensation and cost of Rs. 5,000. Aggrieved by the said order, the opposite parties have come forward with this appeal.

THE points for determinations are: (1) Whether the complainant is a consumer? (2) Whether there is any deficiency in service on the part of the opposite parties? Point No. 1 : It is admitted that the complainant joined the 1st opposite party college and paid fees of Rs. 1,20,000 for the first year M.B.B.S. course on 17.4.2002. It is the case of the complainant that she left the 1st opposite party college and joined another medical college and that, therefore, the fees paid by the complainant should be refunded by the opposite parties. It is well settled that imparting of education by educational institutions for consideration falls within the ambit of service as defined under the Consumer Protection Act. The complainant hired the services of opposite parties for consideration and, as such, it is open to the complainant to aver and prove that there is deficiency in service on the part of the opposite parties in not refunding the fees. Therefore, we hold that the findings of the District Forum in holding that the complainant is a consumer does not call for any interference by this Commission. The finding rendered by the District Forum that the complainant is a consumer has to be upheld. This point is found in favour of the complainant. Point No. 2 :

EX. C3 will show that on 17.4.2002 the complainant paid Rs. 1,20,000 towards fees. EX. C4 is the counselling call letter issued by CENTAC in relation to counselling for professional admission to MBBS course for 2001-02. It is admitted by the complainant that she left the college on 18.7.2002 and joined JIPMER. It is the case of the complainant that since she studied in the 1st opposite party college only for three months and joined another college, the opposite parties are liable to refund the amount. The father of the complainant also issued notice under EX. C5 to the 1st opposite party college requesting them to refund the unspent portion of the tuition fee and caution deposit. The opposite parties have stated in their reply version that they are willing to refund only Rs. 25,000. It is contended on behalf of the appellants that the District Forum has committed error in following the decision rendered by Delhi State Commission and that the decision relied on by the District Forum which is reported in AIR 1986 SC 1571 cannot be applied to this case. The District Forum relied upon a decision reported in I (1993) CPJ 9=1993 (2) CPR 62, Apee Joy School v. M.K. Sanjal and the decision reported in Central Inland Water Transport Corporation v. Brojonath, AIR 1986 SC 1571. In the above decision, the Supreme Court has observed that Article 14 of the Constitution guarantees to all persons equality before law and the Court will strike down unfair and unreasonable contract and unfair clause in the contract entered into between the parties. The opposite parties relied upon EXs. R1 and R2, the application and prospectus of the college wherein it is stated that fees paid will not be refunded under any circumstances. It is contended that it is not open to the District Forum relying upon the decision of the Delhi State Commission reported in I (1993) CPJ 9=1993 (2) CPR 62 to give relief to the complainant. The learned Counsel for the appellants relies upon a decision rendered by the National Commission in Homeopathic Medical College & Hospital v. Gunita Virk, reported in I (1996) CPJ 37 (NC). It has been held in the above case that the Forum constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconstitutional or illegal and it is for the Civil Court to determine this point. The question whether the District Forum has the jurisdiction to declare any rule in the prospectus issued by the educational institutions as illegal did not arise in the Supreme Court decision relied on by the District Forum. It is, no doubt, true that it is open to the parties to challenge the validity of one or several clauses of the contract as unreasonable and illegal. But the said question cannot be canvassed and decided by the Consumer Forum. Therefore, in view of the judgment of the National Commission referred to above, the findings of the District Forum relying upon the judgment of the Supreme Court and Delhi State Commission cannot be sustained. The learned Counsel for the appellants relies upon a judgment of the National Commission in Shri Ramdeobaba Engineering College v. Sushant Yuvraj Rode and Another (reported in III (1994) CPJ 160 (NC)=IX 1994 (3) CPR 194, wherein it is held that non-refund of admission fee is not a deficiency in service. The learned Counsel for the appellants also relied upon a National Commission judgment in Homeopathy Medical College referred to above to substantiate his plea. But the findings of the National Commission will not support the plea taken by the appellants. The National Commission has observed in the above decision thus "It is for the Civil Court to determine this point. If a student/students apply for admission and deposit the fees and later on do not want to join the course, then the seat/seats so vacated will remain vacant througout the academic year. In such circumstances, it will become very difficult for any institution to run in a proper manner."

The learned Counsel for the appellants relies upon a judgment reported in I (2001) CPJ 340=2002 CCJ 1349, Isabella Thoburn College v. Fatima Effendi, to substantiate his contention that opposite party cannot be held to be deficient in service in not refunding the admission fee. The Counsel for the appellants also relies upon a judgment of Supreme Court reported in I (2005) SLT 504=VII-2005 (2) All India Services Law Journal, Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, wherein it is held that a decision is an authority on what it decides and not on what can be logically deduced from it. The District Forum relied upon a judgment of Maharashtra State Commission reported in I (1992) CPJ 105, Apel Pacheco Gracias v. Principal, Bharatividyapith College of Engineering wherein it is held that when there is no service, there is no right with the college to appropriate the fees. The question whether a student is entitled to refund of fees paid by him when he voluntarily left the college to join another college would depend upon the facts of each case. As already stated, the National Commission in Homeopathic Medical College has held that the seat vacated by the student will remain vacant and that in such circumstances it will become very difficult for any institution to run in a proper manner. In this case, the opposite parties have filed a memo before the District Forum stating that the seat vacated by the complainant was filled up by the 1st opposite party college. The above admission of opposite party will show that the opposite party did not sustain any loss in complainant voluntarily leaving their college for joining another institution. In fact, the above view is also supported by a decision of Delhi State Commission reported in III (2004) CPJ 183=2004 IX CLD 264 Administrator, Sardar Patel Vidyalaya v. Dr. Anurag. It is held in the above decision that where a student withdraws admission from institution full amount of fees has to be refunded, especially, where the vacant seat had been subsequently filled. As already stated, the seat vacated by the complainant has been filled up by the 1st opposite party college. The opposite party could not and would not sustain any loss when the complainant left their institution and in such circumstances, the act of the opposite party in not refunding the fees paid by the student after permissible deductions will certainly amount to deficiency in service. If the view taken by the National Commission in Homeopathic Medical College and Delhi State Commission is analysed with the facts admitted by the opposite party, the findings of the District Forum in directing the opposite parties to refund the amount to the complainant cannot be said to be vitiated by any infirmity or illegality. The District Forum has directed the opposite party to pay Rs. 60,000 only. The District Forum has observed that the complainant obtained overcoat, library token, I.D. card, note books, etc. when she was a student in their institution and that, therefore, the opposite parties are restricted to take their fees for the services rendered to the complainant and refund the unutilised amount to the complainant. On the above analysis, the District Forum seems to have directed the opposite party to refund Rs. 60,000 only.

IT is further contended by the learned Counsel for the appellants that the claim made by the complainant is only money claim and as such the remedy of the complainant is only to approach the Civil Court. To substantiate the above contention, the learned Counsel relies upon a decision reported in I (1994) CPJ 160 (NC)=1994 (1) CPR 459 (NC), C. Narasimha Rao v. K.R. Neelakandar & Anr. The above decision will not apply to the facts of this case. As already stated, the opposite parties failed to refund the amount even though the seat vacated by the complainant has been subsequently filled up. The act of the opposite party in retaining the unutilised amount will amount to deficiency in service. Therefore, we hold that the findings of the District Forum on this aspect has to be confirmed.

THE District Forum has awarded Rs. 10,000 towards compensation. THE complainant has not placed substantial materials to show that the complainant sustained loss or injury due to negligence of the opposite party. THErefore, we hold that the findings of the District Forum in ordering the opposite party to pay Rs. 10,000 as compensation has to be set aside. Coming to the costs ordered by the District Forum, we feel that the award of Rs. 5,000 towards cost appears to be excessive. We hold that a sum of Rs. 2,000 will be reasonable cost that can be awarded to the complainant. Therefore, the order of the District Forum has to be modified to that effect.

In the result, the appeal is allowed in part. The order of the District Forum in awarding Rs. 10,000 towards compensation is set aside. The order of the District Forum in directing the opposite parties to pay Rs. 60,000 to the complainant is confirmed. The order of the District Forum in awarding cost of Rs. 5,000 is reduced to Rs. 2,000. There will be no order as to cost in this appeal.

Appeal partly allowed.