State Consumer Disputes Redressal Commission
S.B. Patil Dental College And Hospital & ... vs Mohinder Singh Thind & Anr. on 21 January, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.706 of 2009.
Date of Institution: 20.05.2009.
Date of Decision: 21.01.2014.
1. S.B. Patil Dental College and Hospital, Naubad, Bidar, 585402,
Karnataka State, through its Principal.
2. The Principal, S.B. Patil Dental College and Hospital, Naubad,
Bidar, 585402, Karnataka State.
3. S.B. Patil Institute for Dental Science and Research, Naubad,
Bidar, 585402, Karnataka State, through its Principal.
.....Appellants.
Versus
1. Mohinder Singh Thind S/o Sh. Chanan Singh, R/o 80, Ranjit
Avenue, Kapurthala.
2. Sukhwinder Singh S/o Sh. Surjit Singh, R/o Dudwindi, Tehsil
Sultanpur Lodhi, District Kapurthala, Prop. Educare India.
...Respondents.
First Appeal against the order dated
08.04.2009 passed by the District
Consumer Disputes Redressal Forum,
Kapurthala.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
...................................
Present:- Sh. N.K. Manchanda, Advocate, counsel for the appellants.
Sh. Rajbir Wasu, Advocate, counsel for respondent no.1. Respondent No.2 Exparte.
------------------------------------------ First Appeal No.706 of 2009 2 INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
This order will dispose of the two (2) appeals i.e. F.A. No.706 of 2009 (S.B. Patil Dental College and Hospital & Ors. Vs Mohinder Singh Thind & Anr.) and F.A. No.1505 of 2011 (Mohinder Singh Thind Vs S.B. Patil Dental College and Hospital & Ors.) as both the appeals are directed against the same order dated 08.04.2009 passed by the learned District Consumer Disputes Redressal Forum, Kapurthala (in short "the District Forum"). Facts are taken from F.A. No.706 of 2009 and the parties would be referred by their status in this appeal.
2. Facts in brief are that Sh. Mohinder Singh Thind, respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants/opposite parties no.1 to 3 (hereinafter called "the appellants") and respondent no.2/opposite party no.4(hereinafter called "respondent no.2"), making the averments that respondent no.2 approached him at Kapurthala, stating that he is arranging admissions in various Medical & Dental Colleges in Southern India and he can manage to get admission of the son of respondent no.1, namely Sh. Yuvraj Singh in S.B. Patil Institute for Dental Sciences & Research, Bidar, Karnataka and for that, he will charge Rs.15,000/- as his fee. Respondent no.2 told that he has got admission to a number of students. Respondent no.1 agreed to pay Rs.15,000/- and paid the same to him in cash and a demand draft for Rs.2.50 lacs for first academic year was sent to the appellants on 28.09.2004 through respondent no.2. The son of respondent no.1 was admitted in the college of the appellants and he attended the classes for the first First Appeal No.706 of 2009 3 academic year. The teaching faculty of the college and environment of the college of the appellants was not upto the mark and the education standard was very poor.
3. Respondent no.1 was shocked to receive the letter dated 13.02.2006 in which it was asked by appellant no.2 that a fee of Rs.2.50 lacs for the second academic year i.e. 2005-2006 be paid immediately, or else the exam Hall Ticket will not be issued to the son of respondent no.1 for appearing in the examination. As the academic year of the son of respondent no.1 was at stake, so he was forced to pay Rs.2.50 lacs in advance vide drafts in favour of appellant no.1 and the receipts were issued.
4. The son of respondent no.1 never joined the college in second academic year and never attended any class in the second academic year, as the studies were very poor. Respondent no.1 asked the appellants to refund Rs.2.50 lacs paid on account of academic fee for the second academic year which was received under threat. The appellants told that respondent no.1 can get the refund of the fee for second academic year only when the second academic year of the college is over and that too through respondent no.2 through whom the fee of first session was sent. The second academic year of the college was over on 15th October, 2006, but the appellants did not refund the amount. The appellants kept on lingering the matter on one pretext or the other. There is deficiency in service on the part of the appellants and respondent no.1 suffered lot of mental tension and harassment and is entitled to compensation of Rs.50,000/-.
5. It was prayed that the appellants may be directed to refund Rs.2.50 lacs along with interest @ 12% p.a. w.e.f. October, 2006 till realization and to pay Rs.50,000/- as compensation for harassment. First Appeal No.706 of 2009 4
6. In the written version filed on behalf of the appellants, preliminary objections were taken that the District Forum has no jurisdiction to try and decide the present complaint. No part of cause of action has arisen within the jurisdiction of the District Forum. The admission was given for study of BDS course in Bidar town of Karnataka State and the Consumer Forum of Bidar has the jurisdiction. The complaint is not maintainable. The complaint is also barred by limitation. The cause of action arose in the month of February, 2006 and the complaint was to be filed within two years, but it was filed after that.
7. The college of the appellants is recognized by the Dental Council of India. The running of a Dental College is a very expensive affair. The law provides that unless the entire fee is paid, it will be difficult to run the college. Respondent no.1 was made very clear that the entire fee of Rs.10.00 lacs has to be paid @ Rs.2.50 lacs per year till the course is completed. The agreement was executed between respondent no.1 and the appellants for payment of the amount. The son of respondent no.1 was admitted in the academic year 2004-05 and he paid Rs.2.50 lacs towards the fee for the study of first year. The proposal was sent in respect of the son of respondent no.1 for appearing in the examination conducted by the Rajiv Gandhi University of Health Sciences, Bangalore, who appeared, but failed and he was called upon to undertake the course and pay the fee for second year as admitted for the second academic year 2005-06, but he did not make the payment. He was again asked to make the payment. After receiving the notice, respondent no.1 and his son vanished from the college premises and were not available. The son of respondent no.1 left the course and did not come back to the college. Now the appellants have First Appeal No.706 of 2009 5 approached the civil court, Bidhar, claiming Rs.5.00 lacs against respondent no.1 and his son. The appellants do not know respondent no.2. The teaching faculty and the college environment of the appellants was upto the mark. The appellant college is being run from academic year 1991-92 onwards and is one of the best Dental Colleges in the State of Karnataka. The Dental Council of India has been making inspections from time to time and the infrastructure provided was observed to be excellent. At no point of time, respondent no.1 came forward to demand the fee. On the other hand, the appellants have been demanding the payment of fee of the years which has not been complied. There is no deficiency in service on the part of the appellants. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
8. In the written version filed on behalf of respondent no.2, preliminary objections were raised that the answering respondent met with an accident and is still under treatment and is not in a position to submit the complete reply.
9. On merits, it was admitted that he agreed to facilitate the admission of the son of respondent no.1 in the Medical Dental College of the appellants and the amount of Rs.15,000/- was charged on account of various expenses. The answering respondent has spent much amount on traveling expenses, telephone bills and postal and courier charges for negotiating the admission of the son of respondent no.1. The answering respondent has no role in the matter of refund of admission fee. The son of respondent no.1 joined the classes. It was admitted that respondent no.1 approached the answering respondent for refund of Rs.2.50 lacs from the appellants. The answering respondent made sincere efforts to get the amount of Rs.2.50 lacs First Appeal No.706 of 2009 6 refunded from the appellants and there is no deficiency in service on the part of respondent no.2. Denying other allegations of the complaint, it was prayed that the complaint may be dismissed.
10. Parties led evidence in support of their respective contentions by way of affidavits and documents.
11. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the son of respondent no.1 got admission in the first year for the academic session 2004-05 under the Management Quota in appellant college at Bidar and he studied there for the first year. He never joined the college to continue the study for the second year. Respondent no.1 requested appellants no.2 & 3 to refund Rs.2.50 lacs which were received from respondent no.1 as fee for second academic year of BDS course of his son Yuvraj Singh. This amount was duly received by the appellants vide receipts Ex.C-3 and Ex.C-4. The studies of second academic year were over on 5th October, 2006 and respondent no.1 again requested the appellants for refund of fee of the second academic year. The complaint was allowed and the appellants were directed to refund Rs.2.50 lacs and to pay Rs.5,000/- as costs to respondent no.1.
12. Aggrieved by the impugned order dated 08.04.2009, the appellants have come up in the present appeal, with a prayer to set aside the impugned order.
13. On the other hand, respondent no.1/complainant has filed the cross appeal i.e. F.A. No.1505 of 2011 (Mohinder Singh Thind Vs S.B. Patil Dental College and Hospital & Ors.), with a prayer to enhance the compensation as claimed in the complaint. First Appeal No.706 of 2009 7
14. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellants and respondent no.1.
15. Respondent no.2 has not contested the appeal and was proceeded against exparte.
16. The appeal was filed on the grounds that the District Forum has not appreciated the evidence and passed the impugned order. There was no cause of action nor the District Forum had the jurisdiction. The findings of the District Forum are based on conjectures and surmises. The District Forum has failed to appreciate that respondent no.1 was made clear that the entire fee of Rs.10.00 lacs has to be paid @ Rs.2.50 lacs per year till the course is completed and the agreement dated 30.09.2004 was executed, but the District Forum has not taken notice of the same. Neither respondent no.1, nor his son made any payment for the second academic year, as he left the course and did not come back to the college. There is no deficiency in service. The complaint was also time barred. The seat vacated by the son of respondent no.1 remained vacant and the appellant college suffered huge loss. It was prayed that appeal may be allowed and the impugned order may be set aside.
17. On the other hand, the counsel for respondent no.1 has contended that the impugned order passed by the District Forum is legal and valid and there is no ground to interfere with the same and the appeal may be dismissed. It has been further argued that the complaint may be allowed. Reliance has been placed on "Khaja Educational Society & Ors. Vs E. Veesha Yadav & Anr.", 2013 (1)CPC-495 (SC). First Appeal No.706 of 2009 8
18. The present dispute pertains to education matter. The complaint filed by respondent no.1 against the appellants and respondent no.2 was allowed by the District Forum, directing the appellant to return the fee etc. paid by respondent no.1 along with interest and costs. The District Forum has not appreciated the law, prevailing at present, in its right earnest. It has been held by the Hon'ble Supreme Court that the University is not a service provider and the student is not a consumer. Hon'ble Supreme Court in case "Maharishi Dayanand University Vs Surjeet Kaur", 2010 (2) Consumer Protection Cases-696, relying upon its earlier judgment in case "Bihar School Examination Board Vs. Suresh Prasad Sinha", (2009) 3 CPC-217, in Para-19 referred the above judgment and reproduced the order (relevant portion) as follows:-
"12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services" to any candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-à-vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the First Appeal No.706 of 2009 9 secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination."
19. Relying upon the above proposition of law, it was again held by the Hon'ble Supreme Court that the University/Board is not a service provider, nor the student is a consumer and the examination fee does not come under the category of consideration for providing a service. Hon'ble Supreme Court recently in a case "P.T. Koshy & Anr. Vs Ellen Charitable Trust & Ors.", 2012(3) Consumer Protection Cases-615, held that the education institutions are not providing any kind of service. Therefore, in the matter of admission fee, etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act.
20. Learned counsel for respondent no.1 has relied upon "Khaja Educational Society & Ors. Vs E. Veesha Yadav & Anr.", 2013 (1)CPC-495 (SC), wherein the refund of fee was allowed. This authority of the Hon'ble Supreme Court is not the latest law laid down by the Hon'ble Supreme Court, because in the above note case, the Special Leave to Appeal (Civil)No.24819/2009 was decided on 04.05.2012, whereas the authority of the Hon'ble Supreme Court in case P.T. Koshy & Anr. Vs Ellen Charitable Trust & Ors. (supra) was laid in Special Leave to Appeal (Civil) No.22532/2012 which was decided on 09.08.2012. This decision rendered by the Hon'ble Supreme Court in case P.T. Koshy & Anr. Vs Ellen Charitable Trust & Ors. (supra), is the latest law and the same has to be followed. First Appeal No.706 of 2009 10
21. In view of above discussion and the latest law laid down, the District Forum had no jurisdiction to entertain any complaint regarding refund of admission fee, tuition fee, etc. The order under appeal passed by the District Forum is not sustainable in the eyes of law. The complaint was required to be returned to respondent no.1 for presenting the same before the appropriate authority, having jurisdiction.
22. Accordingly, the appeal filed by the appellant is accepted and the order under appeal dated 08.04.2009 passed by the District Forum is set aside. No order as to costs.
23. Copy of the order be sent to the District forthwith, with the direction that after due service of respondent no.1/complainant, the complaint alongwith documents should be returned to him, for presenting the same before the appropriate authority, having jurisdiction.
24. It is made clear that the time spent from the date of filing of the complaint till today is excluded for the purpose of limitation.
25. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.1,50,000/- vide receipt dated 02.07.2009 in compliance of the order dated June 04, 2009 passed by this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to appellant no.1 by way of a crossed cheque/demand draft after the expiry of 45 days.
First Appeal No.1505 of 2011:-
26. In view of the reasons and discussion held in F.A. No.706 of 2009 (S.B. Patil Dental College and Hospital & Ors. Vs Mohinder First Appeal No.706 of 2009 11 Singh Thind & Anr.), the F.A. No.1505 of 2011 (Mohinder Singh Thind Vs S.B. Patil Dental College and Hospital & Ors.) is dismissed. No order as to costs.
27. The arguments in both these appeals were heard on16.01.2014 and the orders were reserved. Now the orders be communicated to the parties.
28. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
29. Copy of the order be placed in F.A. No.1505 of 2011 (Mohinder Singh Thind Vs S.B. Patil Dental College and Hospital & Ors.).
(Inderjit Kaushik) Presiding Judicial Member (Jasbir Singh Gill) Member January 21, 2014.
(Gurmeet S)