State Consumer Disputes Redressal Commission
Ashish Soni vs C.G.Institute Of Medical Science ... on 1 August, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
(A/11/2594)
Appeal No.313/2011
Instituted on 27.05.2011
Ashish Soni, S/o: Shri Kranti Soni,
R/o: Shiwaji Ward No.15, Pandaria,
Dist. KABIRDHAM (C.G.) ... Appellant.
Vs.
1.C. G. Institute of Medical Science (CIMS), Through: Chairman, Sector -2, Bajaj Colony, New Rajendra Nagar, RAIPUR (C.G.)
2. Pt. Ravishankar Shukla University, Through: Vice‐chancellor, G.E.Road, RAIPUR (C.G.) ... Respondents.
(A/11/2621) Appeal No.340/2011 Instituted on 08.06.2011 C. G. Institute of Medical Science (CIMS), Through: Chairman, Sector -2, Bajaj Colony, New Rajendra Nagar, RAIPUR (C.G.) ... Appellant.
Vs.
1. Ashish Soni, S/o: Shri Kranti Soni, R/o: Shiwaji Ward No.15, Pandaria, Dist. KABIRDHAM (C.G.)
2. Pt. Ravishankar Shukla University, Through: Vice‐chancellor, G.E.Road, RAIPUR (C.G.) ... Respondents.
PRESENT: ‐ HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT HON'BLE SHRI V.K. PATIL, MEMBER COUNSELS FOR THE PARTIES IN BOTH APPEALS: ‐ Shri Sourabh Shukla, for Ashish Soni.
Shri Hitendra Tiwari, for C. G. Institute of Medical Science (CIMS).
// {PAGE } // Shri Rajesh Pandey, for Pt. Ravishankar Shukla University.
ORDER Dated: 01/08/2012 PER: ‐ HON'BLE SHRI V.K.PATIL, MEMBER This order will govern disposal of appeal Nos. 313/2011 & 340/2011, which have been filed by the parties, having been aggrieved by the order dated 09.05.2011 of District Consumer Disputes Redressal Forum, Raipur (hereinafter referred for short as "District Forum") in complaint case No.240/2010, whereby the complaint was partly allowed directing the OP no.1 to refund the amount of deposit within a month's period failing which to pay interest @ 6% p.a. Complainant has filed appeal for enhancement of interest rate over the awarded rate of interest, whereas OP No.1 has filed appeal seeking direction to set aside the impugned order. Hereinafter parties will be referred for convenience as per their status before the District Forum. Original of this order will be retained in file No.313/2011 and its copy be placed in 340/2011.
2. Facts of the case are that the complainant is a student, who had submitted an application with OP no.1 institute having deposited // {PAGE } // Rs.300/‐ for the purpose of a common entrance examination of Bachelor of Physiotherapy course (herein after referred for brevity as B.P.T.) which is being conducted by OP No.2 University. Complainant further averred that the aforesaid examination was held on 08.07.2007 OP‐2 intimated him about his selection and also fixed up the counseling date on 29.07.2007, whereby he had to appear before OP no.1. Complainant further averred that on the direction of OP no.2, he contacted OP no.1 and deposited the prescribed fee Rs.15,000/‐ towards B.P.T. course and also deposited counseling fees Rs.250/‐ thus in all he deposited total Rs.15,250/‐ vide receipt No.876/29.07.2007. Complainant further averred that after the counseling, OP no.1 having reserved a seat for admission asked him for a medical certificate, accordingly he got himself examined in the District Hospital, Raipur (C.G.), whereby he was declared medically unfit and for that he was issued a certificate also. Complainant further averred that he submitted aforesaid medical certificate with OP no.1 & OP‐2 respectively on 21.08.2007 & 24.08.2007 and demanded refund of Rs.15,000/‐. Complainant further averred that he was earlier told by OP no.1 that on submission of medical certificate, the seat reserved for him would be cancelled and Rs.15,000/‐ would be refunded, but it was not done. Complainant further averred that OP no.1 neither issued any // {PAGE } // letter of cancellation about the reserved seat for the B.P.T. course nor did refund the amount of deposit Rs.15,000/‐ despite reminding frequently. Complainant further averred that a registered notice was sent to OP no.1 on 05.04.2010 along with all documents and demanded refund of aforesaid deposited amount, but no heed was given and ultimately OP‐ 1 on personally contacting it, refused to refund the amount. Complainant alleged that the act of OP‐1, in not refunding the deposited amount, despite the fact of having submitted a certificate to the effect about his being medically unfit, amounts to deficiency in service and unfair trade practice. Complainant prayed for seeking direction to OPs for refund of the deposited amount Rs.15,350/‐ along with interest @ 12 % p.a. and for paying further compensation of Rs.50,000/‐ towards unfair trade practice & deficiency in service and also Rs.20,000/‐ towards physical & mental agony.
3. OP‐1 in its reply while denying the averments of the complainant averred that the complainant had deposited the amount at his own willingness and did not pursue study of the course without any reasonable cause so refund of the amount would have been contrary to prescribed rules. OP‐1 averred that the medical certificate produced by the complainant did not indicate that he was not able to // {PAGE } // pursue studies due to medical impediment. OP‐1 also averred that it never refused admission to the complainant in the Bachelor of Therapy course which was of 4 years duration and for its each seat, candidates have to wait for it and due to his leaving the course without any reasonable cause, the chance of some other deserving candidate got marred. OP‐1 in its additional version stated that the complainant had participated in the Joint Entrance Examination and after his selection, he was intimated on 14.07.2007 with advice to appear before OP‐1 for counseling and on the basis of merit, he was given admission on 23.07.2007 having collected amount of Rs.15,000/‐. OP‐1 also stated that the complainant did not submit any such medical certificate which could establish that he was prevented to pursue studies because of some medical impediment. OP‐1 stated that the applicant was not declared medically unfit and his medical suffering was of transitory nature which did not prevent him to pursue the course studies. OP‐1 stated that the complainant was not entitled for any compensation, so prayed for dismissal of the complaint allowing it, compensation of Rs.10,000/‐ with cost of Rs.3,500/‐.
4. OP‐2 in its reply averred that the complainant was not its 'consumer' nor it is a service provider. OP‐2 averred that its obligation // {PAGE } // is to provide affiliation to the institutions for implementing different educational courses and conduct examinations, which does not come in the category of providing service. OP‐2 cited few case laws decided by Hon'ble National Commission and also by this commission in support of aforesaid contention. OP‐2 averred that it had not collected any amount from the complainant and it committed no act of unfair trade practice or deficiency in service so the complaint was not entertainable against it, as such was liable to be dismissed.
5. Learned District Forum, having perused the documents produced before it and heard arguments of parties, allowed the complaint partly as per the impugned order.
6. We have perused the documents on record and heard arguments advanced by parties.
7. The question for consideration is whether OP no.1 had committed deficiency in service by not refunding the deposited amount to the complainant and if so, whether the complaint can be allowed enhanced rate of interest on the amount of refund against the rate awarded by learned District Forum in its impugned order.
// {PAGE } //
8. Contention of the OP no.1 is that it had never demanded medical certificate from the complainant and that the medical certificate, which had been produced by the complainant, did not establish that he was unable to pursue the course studies and moreover no affidavit of any doctor had been produced.
9. We find that there is nothing on record to show that OP no.1 had demanded medical certificate from the complainant. As per document at page Sl. No.30 & 31, which is a registration slip for outdoor patients, reveals that on 20.09.2007 the complainant was diagnosed of left Inguinal Hernia and was advised operation after one week. Further as per document at page Sl. No.32 which is a certificate issued by Medical Officer, District Hospital, Raipur, indicates that the complainant was diagnosed of Left Inguinal Hernia and needed to undergo operation for the same. The complainant has not produced any document about the performance of Hernia operation upon him as was advised in the aforesaid medical certificate or any other evidence to show that he developed any such medical impediment, which would prevent him to pursue the course studies. In view of aforesaid, the contention of OP no.1 does find weight to sustain.
// {PAGE } //
10. Another contention of OP no.1 is that it had collected only entrance fee from the complainant and no fee for the study course/tuition fee.
11. We find that as per document at page Sl. No.27, which is a copy of receipt No.1644 dated 29.07.2007, the amount of Rs.15,000/‐, collected by OP‐1, was towards admission fee and not towards tuition fee/study course etc. as such no amount was collected by OP‐1 towards tuition fee / study course. OP‐1 had collected amount Rs.15, 000, towards admission fee only and did never deny the right of admission to the complainant in the B.P.T/ course rather the complainant had abstained from the study course on his own, taking shelter of medical ground. Learned counsel for the complainant argued that no communication was received from OP‐1 regarding confirmation of his admission such as Roll no. or any Identity number but such argument carries no meaning since the complainant him self was not interested in pursuing the course and had made apparently no efforts for seeking admission subsequent to his selection for the B.P.T. course. OP‐1 had collected admission fee Rs.15,000/‐ which appeared to have been utilized towards the process of admission of the // {PAGE } // complainant and since no amount was collected from the complainant towards tuition fee/ study course so due to non pursuance of studies there was no question of refunding any amount, thus the contention of the OP‐1 has substance to sustain. In view of aforesaid, OP‐1 can not be held liable to have committed deficiency in service by not refunding the deposited amount towards admission fee, as erroneously held by learned District Forum.
12. Another contention of OP no.1 is that learned District Forum in the impugned order has observed that the complainant had himself contributed to the act of not pursuing the study of the course in the shelter of being medical unfit, but still allowed interest on refund of amount.
13. We find that the complainant has himself contributed to the act of abstinence from the questioned study course, by taking shelter of medical ground without any conclusive & supportive evidence, so his voluntary act of withdrawal from the questioned B.P.T. course in the absence any reasonable ground, can not be held justifiable since the seat reserved for him prevented chance of another deserving candidate also. Complainant has also not produced any material to show that his // {PAGE } // reserved seat of vacancy, on his withdrawal could be filled by another candidate causing no financial loss to the complainant. Moreover, there is nothing on record to show that there was any provision for refund of admission fee to the applicant in case of voluntary withdrawal from the course. Complainant can not get benefit out of his own contributory act of default. Learned District Forum has arrived at an erroneous conclusion to allow refund of the deposited amount towards admission fee along with interest.
14. In the facts of the case and foregoing discussion, we find substance in the contentions of OP no.1, as such the impugned order of learned District Forum, is not sustainable and therefore, is set aside. The complaint of the complainant is also dismissed. No order as to cost of this appeal.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/08/2012 /08/2012