M.D. Oswal Cancer Hospital vs Dr. Nitin Kaushik & Anr

This appeal has been filed by the appellant, M.D. Oswal Cancer Hospital against the order dated 17.12.2013 passed by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh 2nd Additional Bench (for short, 'State Commission') in CC No. 34 of 2009.

Brief facts of the case are that the appellant is a hospital and respondent no.1 is a student who took admission in the PG Course in the appellant Institution. The appellant vide an advertisement invited successful candidates who have cleared the DNB-CET for admission into its courses in various disciplines. The respondent no.1 was one of the applicants to the DNB training at the appellant hospital. On 20.7.2007, the complainant was duly interviewed and thereupon invited to get admission in the field of Orthopaedics (DNB) at the appellant hospital. Respondent no.1 joined the appellant hospital. On 21.6.2008, respondent no.1 sent a letter to the appellant stating that :

"I beg to state that I have joined your institution in July, 2007 as a DNB Resident in Orthopaedics. My name could not be registered with the Board. Kindly refund my admission fees."

The respondent no.1 thereafter sent a resignation letter to the appellant hospital in order to get admission in another institution. The aforesaid resignation letter was duly accepted by the appellant hospital vide Reference NO.7748 dated 2.9.2008. Being aggrieved by non refund of the fees, the respondent no.1 filed Complaint No.45 of 2009.

The complaint was resisted by appellant/OP-1 no.1 by filing the written statement. However, the State Commission vide its order dated 17.12.2013 allowed the complaint by ordering as under:

refund of fee of Rs.3.5 lacs deposited with OP No.1;

compensation of Rs.5 lacs for mental tension, harassment, wastage of previous year and for adopting unfair trade practice, Rs.25,000/- as litigation expenses.

Hence, the present appeal.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the appellant stated that there was no prayer for refund of Rs.3.5 lakhs in the complaint, however, the State Commission has ordered refund of Rs.3.5 lakhs as fees. The fact of the matter is that fees of Rs.3.5 lakhs was never taken by the appellant institution. It was emphasized by the learned counsel for the appellant that when the selection letter dated 20.7.2007 was sent to the complainant, it was clearly stated in the letter that :

"this appointment is provisional subject to registration of the DNB Board, New Delhi after renewal of reaccreditation."

Thus, nothing was suppressed from the complainant and the admission was provisional subject to getting reaccreditation from the DNB Board. Thus, it is wrong to say that the complainant was not aware that the course was not accredited for the time being and the appellant institute had applied for accreditation. The complainant took admission/appointment on his own risk fully knowing the facts. Thus, no deficiency can be alleged against the appellant institution. In this context, the learned counsel argued that there should be no question of awarding any compensation to the complainant. Learned counsel for the appellant further mentioned that a stipend of Rs.13,000/- per month as mandated by the Board was also given to the complainant and the State Commission has not adjusted this amount . The complainant has received this stipend for about a year. Learned counsel for the appellant further states that there is a delay of 25 days in filing the present appeal and hence the delay may be condoned on the grounds mentioned in the application for condonation of delay.

On the other hand, learned counsel for respondent no.1/complainant stated that he was issued the selection letter dated 20.7.2007 wherein it was clearly mentioned that he should join before 15.9.2007. On joining he was to deposit fees as per DNB norms for the academic year and formal appointment letter will be then issued. The learned counsel further pointed out that letter dated 9.7.2007 of respondent no.2 Director, National Board of Examination, Ministry of Health & Family Welfare, Govt. of India,New Delhi addressed to the appellant had clearly directed the appellant not to take any admission for these courses as the accreditation granted by the DNB Board had expired. Thus, the appellant should not have given admission to the complainant in compliance of this direction by the Board. However, the appellant in order to earn money violated these directions and proceeded with the admission in the hope of getting reaccreditation. Thus, the act of the appellant was wrong ab initio. Accordingly, the deficiency on the part of the appellant is clearly established.

It was mentioned by the learned counsel for the complainant that the stipend was given for working in the hospital so the appellant cannot claim refund of this amount from the complainant. The learned counsel further stated that Rs.3.5 lakhs was paid as fees. When asked about the receipt of this amount, the learned counsel replied that the complainant has misplaced the receipt and he has no proof to offer for this payment. The compensation of Rs.5 lakhs has been awarded to compensate the loss of one and a half academic years. Learned counsel for respondent no.1 referred to the decision of the Hon'ble Supreme Court in Khaja Educational Society and others Vs. E. Veesha Yadav and another, 2013(1) CPC 595, wherein the Hon'ble Supreme Court has held that order for refund of fees and award of compensation was absolutely legal in a similar case. In regard to non-availability of the receipt for payment of Rs.3.5 lakhs as fees, the learned counsel mentioned that the Hon'ble Supreme Court in Buddhist Mission Dental College & Hospital Vs. Bhupesh Khurana and others, 2009 (4) SCC 473 has allowed the amount of capitation fee by way of award of compensation as no receipt was given for the capitation fee. Learned counsel for the respondent further mentioned that there is a delay of 25 days in preferring the appeal by the appellant. Hence, prima facie the appeal is not maintainable and cannot be considered on merits.

I have carefully considered the arguments advanced by both the learned counsel for the parties and perused the record.

First of all, Registry has reported a delay of 25 days in filing the appeal. As the delay is of only 25 days, the delay is condoned on the grounds mentioned in the application for condonation of delay at a cost of Rs.10,000/- to be paid to the respondent no.1/complainant.

Coming to the merits of the case, it is seen that the letter dated 20.7.2007 was issued as selection letter by the appellant institution which clearly states that :

"this appointment is provisional subject to registration of the DNB Board, New Delhi after renewal of reaccreditation."

Thus, the complainant was aware that the accreditation was not there for the course and the admission/appointment was in anticipation of reaccreditation. Even then the complainant took the risk and deposited the fees and got the appointment. On the other hand, it is also true that National Examination Board had issued a direction dated 9.7.2007 that the admission should not be taken as the accreditation had expired. Even then the appellant institution took admission clearly violating the guidelines issued by the respondent no.2. This fact does not significantly reduce the importance of the fact that the complainant took admission fully knowing that course was not accredited by the Board. However, the deficiency on the part of the appellant is clearly established though contributory negligence on the part of the complainant is also established.

The State Commission has ordered refund of Rs.3.5 lakhs as fees . However, the complainant has not been able to give any proof for depositing of this amount as fees. It has been stated that the receipt has been misplaced. Thus, clearly, if a receipt was given, this was not the capitation fees or some extra amount that was taken unauthorisedly by the appellant and therefore, the judgment of the Hon'ble Supreme Court referred to by the learned counsel for the respondent in Buddhist Mission Dental College & Hospital Vs. Bhupesh Khurana and others (supra) cannot be applied in the present case.

In this regard, it is also to be noted that the selection letter clearly states that fees as per DNB norms was to be deposited. There is no separate letter asking the complainant to deposit Rs.3.5 lakhs as fees available on record. On the other hand, the appellant/OP in their written statement has also mentioned that fees of Rs.3.5 lakhs was not received, however, fees as per DNB norms was deposited by the complainant. The appellant has also not mentioned the exact amount of such fees as per the DNB norms. No exact amount of fees charged from the complainant has been disclosed by the appellant/OP, whereas the complainant has specifically pleaded that fees of Rs.3.5 lakhs was deposited by him. In these circumstances, the State Commission was right in assuming that fees of Rs.3.5 lakhs was paid by the complainant to the appellant. In the light of the non disclosure of the amount received by the appellant, I am also inclined to agree with the finding of the State Commission in this regard.

So far as the question of award of compensation of Rs.5 lakhs by the State Commission is concerned, it is true that the complainant has lost his one and half years in his academic journey, though he himself had taken risk for the same. Moreover, the appellant also paid stipend to the complainant @ Rs.13,000/- per month and as the complainant has not completed the course and as the course was not accredited by respondent no.2, this money has been paid by the appellant from their own funds with no returns to them. When the complainant resigned, the appellant did not ask for refund of the stipend paid by them. As the State Commission has ordered refund of Rs.3.5 lakhs to the complainant, even when the complainant is not able to prove the deposit of this amount, I do not find any justification for awarding huge compensation of Rs.5 lakhs when the appellant has already paid the stipend of Rs.13,000/- per month to the complainant. In these circumstances, the order of the State Commission in respect of award of compensation of Rs.5 lakhs is not sustainable and is liable to be set aside.

Based on the above discussion, the appeal is partly allowed and the order of the State Commission in respect of award of Rs.5 lakhs as compensation to the complainant is set aside. The remaining order of the State Commission is upheld.