State Consumer Disputes Redressal Commission
Ggdsd vs Harsimran Singh on 31 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 209 of 2013 Date of Institution : 23.05.2013 Date of Decision : 31.05.2013 Goswami Ganesh Dutta Sanatan Dharam College, Sector 32, Chandigarh through its Principal. Appellant/Opposite Party No.1. Versus Mr. Harsimran Singh Bedi, Aged about 21 years, son of Kanwardeep Singh, R/o # 1602, Phase-10, Sector 64, Mohali, Punjab, through Attorney. .Respondent/Complainant. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by: Sh. Rohit Dheer, Advocate for the appellant.
PER DEV RAJ, MEMBER.
This appeal is directed against the order dated 17.04.2013 of the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), passed in Consumer Complaint No.632 of 2012 vide which, it accepted the complaint of the complainant against Opposite Parties No.1 and 2 and directed them, as under: -
14] In view of the above discussion as well as settled position of law, we are of the opinion that the complaint must succeed.
The same is accordingly allowed.
The OPs No.1 & 2 are directed to jointly & severally refund the fee of the complainant i.e. Rs.30,982/-, after making deduction of processing fee of not more than Rs.1000/- and the fee for the months of July to Sept., 2010 i.e. the date/month on which refund was sought by the complainant vide Ann.C-3, along with interest @9% p.a. from 01.10.2010 till the date of order i.e. 12.4.2013. The OPs are also directed to jointly & severally pay compensation of Rs.10,000/- for causing mental tension and physical harassment to the complainants, apart from paying litigation cost of Rs.5,000/-.
This order be complied with by the OPs No.1 & 2 jointly & severally, within a period of 30 days, from the date of receipt of its copy, failing which they shall be liable to pay an interest @12% p.a. on the above awarded amount including compensation amount, from the date of order i.e. 10.4.2013 till its actual payment, besides paying litigation cost of Rs.5,000/-.
However, the complaint qua OPs No.3 to 5 stands dismissed.
2. The facts, in brief, are that the complainant applied for admission in Goswami Ganesha Dutt Sanatan Dharam College, Sector 32-C, Chandigarh (hereinafter to be referred to as College) Opposite Party No.1, in Bachelor of Computer Application Part-1, for the Session 2010-11 by submitting the prescribed Format No.6400 for the same. The complainant paid fees of Rs.30,982/- vide receipt dated 6.7.2010 (Annexure C-2). It was stated that the classes for the course study had not started and in the meantime, the complainant applied for admission in Panjab Technical University, Jalandhar for engineering course and he was allotted a seat in Rayat Bahra Institute of Engineering and Technology, Mohali District where he joined on 27.9.2010. Thereafter, the complainant applied for the refund of fees of Rs.30,982/- vide application dated 27.9.2010 but the Principal was not available. It was further stated that the complainant again visited the Opposite Parties for refund of the amount on 30.9.2010 and delivered letter (Annexure C-3), but the matter was put off by the Opposite Parties, on one pretext or the other. It was further stated that a notice dated 13.9.2012 was sent to the Opposite Parties (Annexure C-4), but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for directing the Opposite Parties to refund Rs.30,982/- alongwith interest @24% per annum, Rs.50,000/- as compensation for harassment and mental agony and Rs.25,000/- as costs of litigation, was filed.
3. Opposite Parties No.1 and 2, in their written version, admitted the fact as regards admission of the complainant in Opposite Party No.1 College and receipt of fees of Rs.30,982/-. It was stated that the complainant was not entitled to the refund of fee, as per rules & regulations mentioned in the college prospectus as well as UGC guidelines in this regard. It was further stated that no document in support of admission of the complainant to the alleged B. Tech Four Year Course in Rayat Bahra Institute of Engineering and Technology was produced by the complainant. The remaining allegations were denied. It was pleaded that there was neither any deficiency, in rendering service, on the part of the Opposite Parties No.1 and 2, nor did they indulge into unfair trade practice.
4. Opposite Parties No.3 and 4 did not appear before the District Forum, despite service and accordingly, they were proceeded against exparte vide order dated 11.12.2012.
5. Opposite Party No.5 in its written version, took up an objection that the complainant was not a consumer qua it and the complaint was barred by time. It was stated that there was no privity of contract between the complainant and Opposite Party No.5 and no amount of money/consideration was paid by him to it, and as such no services were rendered by it. It was further stated that the entire complaint and the annexures/documents were not signed or authenticated by the complainant; and even the affidavit filed by him, in support of alleged facts and circumstances of the case, was not signed by him.
6. The parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint against Opposite Parties No.1 and 2 only, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
9. We have heard the Counsel for the appellant/Opposite party No.1, at the preliminary stage, and, have carefully perused the record of the District Forum.
10. The Counsel for the appellant submitted that the District Forum erred in passing the impugned order dated 17.04.2013 as the complainant never appeared, deposed or led any evidence in support of his claim. It was further submitted that even the Consumer Complaint and the affidavit in support of the said complaint were not singed by Sh. Harsimran Singh Bedi complainant. It was further submitted that the District Forum failed to appreciate the fact that the complainant approached the District Forum by suppressing and circumventing the material facts in an arbitrary and illegal manner and there is no legal document to show the competence of the alleged attorney to file the complaint. It was also submitted that Annexure C-6/Annexure A-2 termed as Power of Attorney without any verification or attestation, being the alleged photocopy of printout of an email attachment is prima facie a fake, forged, illegitimate, illegal and unconstitutional document and thus inadmissible in the eye of law. It was further submitted that the complaint was not maintainable in the present form as Sh. Kanwardeep Singh Bedi is not the consumer of the Opposite Parties. It was further submitted that even the affidavit had not been signed by the complainant himself. The appellant placed reliance on Mahendra Pratap Singh Vs. Padam Kumari Devi, AIR 1993 all 143, that a power of attorney holder cannot give evidence on behalf of his principal. It was pleaded that in Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd., AIR 2005 SC 439, it was held that power of attorney did not have personal knowledge of the matter, and, therefore, he could neither depose on his personal knowledge nor could he be cross-examined on those facts. It was further submitted that the District Forum failed to appreciate that the complaint filed by the complainant was not maintainable in view of Order III Rule 1 C.P.C. The Attorney Sh. Kanwardeep Singh Bedi was not the authorized agent of the Principal. It was also submitted that the complainant did not approach the District Forum with clean hands, and suppressed true facts from the District Forum. It was further submitted that Annexure C-3 annexed with the complaint was falsely created and concocted document, which showed that the complainant belonged to economically weaker section but Annexure C-6, showed that Sh. Harsimran Singh Bedi was sent for further studies to Canada. It was further submitted that the Honble Apex Court in case S. P. Chengalvaraya Naidu Vs. Jagannath & others, 1993 Supp 3 SCR 422 observed that a person, whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out of the court at any stage of the litigation. It was further submitted that the complainant did not have any locus-standi to file the complaint. The District Forum overlooked that the complaint was purely barred by limitation in view of Section 24A of the Act. It was further submitted that the Opposite Parties were neither deficient in rendering service nor indulged into unfair trade practice. According to the appellant, the District Forum erred and failed to appreciate that the complainant was not entitled to refund of fees as per the settled Rules and Regulations mentioned in the College prospectus. It was further submitted that the case of the complainant did not fall under the relevant UGC guidelines issued vide public notice bearing Memo No.F.No.1-3/2007(CPP-II). It was further submitted that the Ministry of Human Resources & Development and UGC, in the public interest, decided that institutions and Universities shall maintain a waiting list of students/candidates and in the event of the student/candidate withdrawing, before the start of the course, the wait listed candidate should be given admission against the vacant seat. It was further submitted that as per page No.11 of College prospectus for the Academic Session 2011-2012, last date of admission with late fee with permission of the Vice Chancellor was 31.08.2010 whereas, the complainant opted to withdraw from the College vide letter dated 27.09.2010. It was further submitted that the District Forum erred and failed to appreciate that no refund of fee was permissible in view of the principle of estoppel. It was further submitted that no student could be admitted to the College after 31.08.2010 and therefore, the seat vacated could not be filled. It was further submitted that the District Forum fell in grave error and passed the impugned order. It was further submitted that the complainant gave a declaration that he had would abide by the Rules and Regulations of the College and Panjab University. The complainant had also declared that he was joining the College with express permission of his parents. It was further submitted that the complainant had also declared that if he withdrew from the College, he would not claim the refund. It was further submitted that the impugned order, passed by the District Forum, being unsustainable, in the eye of law, be set aside.
11. The fact that the complainant/respondent took admission in Bachelor of Computer Application (Part I) during the Session 2010-2011 in the college of Opposite Party and paid an amount of Rs.30,982/- as fees vide Receipt dated 6.7.2010 (Annexure C-2) is not in dispute. It is also in evidence that the complainant was allotted a seat in Rayat Bahra Institute of Engineering and Technology, Mohali District where he joined on 27.9.2010. The complainant applied for refund of fees of Rs.30,982/- vide letter dated 27.9.2010 (Annexure C-3) addressed to the Principal, GGDSD College, Chandigarh, which was duly acknowledged on 30.09.2010 and thereafter, he sent letter dated 13.9.2012 (Annexure C-4) through registered post (Annexure C-5). The complaint before the District Forum was filed on 28.09.2012. Therefore, the complaint was well within the period of limitation as per the provisions of Section 24(A) of the Act. The submission of the Counsel for the appellant, therefore, being without merit must fail and the same stands rejected.
12. As regards the argument of the Counsel for the appellant that the complaint was not maintainable in view of the provisions of Order III Rule 1 of C.P.C, the Honble Apex Court in Savita Garg Vs. Director, National Heart Institute, IV (2004) CPJ 40 (SC) observed that the provisions of the Code of Civil Procedure, are applicable, to a limited extent, to the proceedings before the Consumer Fora. The Honble Supreme Court further observed as under:
The Consumer Forum is primarily meant to provide better protection in the interest of the Consumers and not to short-circuit the matter or to defeat the claim on technical grounds.
In State of Karnataka Vs. Vishwabharathi House Building Coop. Society and Others, I (2003) CPJ 1 (SC), it was held by the Honble Apex Court that the C. P. Act is a comprehensive and self-contained piece of legislation and its object is to decide consumers complaints expeditiously, via summary procedure. It is settled that the Consumer Foras act under a benevolent law where the claims of the Consumers are not to be brushed aside, on frivolous grounds. The complaint, thus, filed by the complainant, through his father, who was appointed by him as his attorney was maintainable. The father of the complainant being well versed with the facts of the case was competent to file affidavit, in support of the averments, contained in the complaint. The submission of the Counsel for the appellant, thus, being without merit must fail and stands rejected.
13. Though as per the contents of the prospectus, the last date of admission was 31.08.2012, yet as rightly observed by the District Forum, the appellant did not produce any record to show that the seat vacated by the complainant was not filled. The appellant/Opposite Party, also did not reply to the communications of the complainant. The case of the complainant was squarely covered under the guidelines of UGC (Annexure R-3), which stipulate that Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the Institution must return the fee collected with proportionate deduction of monthly fee and proportionate hostel rent wherever applicable. The fee of Rs.30,982/- deposited by the complainant was apparently for the entire Academic Session starting from 2nd July 2010 to 3rd April 2011, followed by the University Examination from 4th April 2011, vacations etc. up to 8th July 2011 (as per the College calendar depicted in the prospectus at Pages 51 and 52 of the District Forum file). The complainant, for the first time, informed Opposite Party No.1, to discontinue his studies on 27.9.2010, which is duly acknowledged in the office of Opposite Party No.1 on 30.09.2010. As the fees was taken for the entire year and the Opposite Party did not adduce any evidence that the seat vacated by the complainant was not filled, the fees for the period July 2010 to September 2010 i.e. for three months, was deductible. Therefore, out of total fee of Rs.30,982/-, after deducting fee for three months and processing fee of Rs.1,000/-, the balance fee was required to be refunded to the complainant, which the District Forum rightly ordered vide the impugned order. By not refunding the fees, as indicated above, the appellant/Opposite Party No.1, indulged into unfair trade practice. The findings of the District Forum, in this regard, being correct are affirmed.
14. No other point, was urged, by the Counsel for the parties.
15. For the reasons recorded above, the appeal filed by the appellant/Opposite Party No.1, is dismissed, at the preliminary stage, with no orders as to costs. The impugned order, passed by the District Forum, is upheld.
16. Certified Copies of this order be sent to the parties, free of charge.
17. The file be consigned to Record Room, after completion.
Pronounced.
31st May 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.209 of 2013) Argued by:Sh. Rohit Dheer, Advocate for the appellant.
Dated the 31st day of May, 2013.
ORDER Vide our detailed order of the even date, recorded separately, this appeal filed by the appellant/Opposite Party No.1, has been dismissed, at the preliminary stage, with no order as to costs.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad