National Consumer Disputes Redressal
Indira Gandhi Medical College & ... vs Dr. Arun K. Narula & Anr on 29 July, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2323 OF 2008 (Against the Order dated 20/03/2008 in Appeal No. 221/2007 of the State Commission Himachal Pradesh) 1. INDIRA GANDHI MEDICAL COLLEGE & ANR Shimla - 171 001 Himachal Pradesh 2. STATE OF HIMACHAL PRADESH Shimla Shimla Himachal Pradesh ...........Petitioner(s) Versus 1. DR. PREM SETH & ANR House No. 14-C/2, Lane No.2, Dayanand Nagar Amritsar Punjab 2. KAUSHAL SETH House No. 14-C/2, Lane No. 2, Dayanand Nagar Amritsar Punjab ...........Respondent(s) REVISION PETITION NO. 2324 OF 2008 (Against the Order dated 20/03/2008 in Appeal No. 239/2007 of the State Commission Himachal Pradesh) 1. INDIRA GANDHI MEDICAL COLLEGE & HOSPITAL&ANR Shimla Shimla-171001 Himachal Pradesh 2. STATE OF HIMACHAL PRADESH Health and family Welfare Shimla shimla Himachal Pradesh ...........Petitioner(s) Versus 1. DR. ARUN K. NARULA & ANR Narula CT Scan & Reserch Centre Civil Road Rohtak Haryana 2. APOORVA NARULA Narula CT Scan & Research Centre Civil Road Rohtak Haryana ...........Respondent(s) REVISION PETITION NO. 2325 OF 2008 (Against the Order dated 20/03/2008 in Appeal No. 240/2007 of the State Commission Himachal Pradesh) 1. INDIRA GANDHI MEDICAL COLLEGE & ANR Shimla Shimla-171001 Himachal Pradesh 2. STATE OF HIMACHAL PRADEHS Shimla Shimla Himachal Pradesh 3. MS.RAVINA BEDI 181,Sector 33A Chandigarh Chandigarh ...........Petitioner(s) Versus 1. DR. R.S. BEDI & ANR 181,Sector 33-A Chandigarh Chandigarh ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. Ajay Marwah, Advocate For the Respondent : MR. SANJAY JUDGE MR. SANJAY JUDGE Dated : 29 Jul 2015 ORDER DATED : 04.07.2014 PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER These revision petitions arise out of common order of learned State Commission; hence, decided by common order.
2. These revision petitions have been filed by the petitioners against the order dated 20.03.2008 passed by the H.P. State Consumer Disputes Redressal Commission, Shimla (in short, 'the State Commission') in Appeal Nos. 221,239 & 240/07 - Indira Gandhi Medical College & Hospital & Anr. Vs. Dr. Prem Seth & Anr., Dr. Arun K. Narula & Anr. & Dr. R.S. Bedi & Anr. by which, while allowing appeals, order of District Forum dismissing complaints was set aside and complaints were allowed.
3. Brief facts of the case are that complainant/Respondent student got admission under NRI category in MBBS course with OP-1/Petitioner-1 Medical College under control of OP No.2/Petitioner No. 2 and fees was deposited for the year 2004-05. Due to some family circumstances, originating after joining the said college, complainants were forced to leave the said course on 15.8.2004 and OP No. 1 was duly informed. Seats surrendered by complainants were filled by some other candidates who deposited fees for whole of the year equal to the amount deposited by complainants. Complainants approached OP for refund of the fees, but fees was not refunded. Alleging deficiency on the part of OP, complainants filed complaint before District forum. OP resisted complaint and submitted that complainants after depositing fees vacated the seat on their sweet will and seat was offered to next candidate. There was no provision in the prospectus for refund of fees, as such, and there was no deficiency in service and prayed for dismissal of complaint. Learned District forum after hearing both the parties dismissed complaints. Appeal filed by the complainants were allowed by learned State Commission vide impugned order and learned State Commission directed petitioner to refund the amount charged from the complainants along with 6% p.a interest and further pay cost of Rs.1,000/- in each appeal against which, these revision petitions have been filed.
4. Heard learned Counsel for the parties and perused record.
5. Learned Counsel for the petitioner submitted that inspite of no deficiency on the part of petitioner and no provision for refund of fees, learned State Commission committed error in allowing appeals and directing refund of fees; hence, revision petitions be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law, which does not call for any interference; hence, revision petitions be dismissed.
6. The core question in these revision petitions is firstly whether there was any deficiency on the part of petitioner and if so, whether petitioner was bound to refund the fees; even though, there was no provision for refund of the fees.
7. Admittedly, complainants-students were admitted under NRI quota in the MBBS course conducted by OP and complainants deposited fees for that year. As per certificate of the Principal of OP, complainants attended some classes of Anatomy and Physiology. Later on, complainants submitted that on account of some family circumstances they did not want to continue with the course, whereas it appears that as complainants got admission in other college, they shifted to other college and prayed for refund of fees. No deficiency has been pleaded in reference to studies imparted by OP No. 1 and complainants have withdrawn and vacated seat at their sweet will. Learned Counsel for the petitioner has drawn our attention to definition of deficiency enumerated in Section 2 (vi) (g), which runs as under:
(vi)(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service"
and further submitted that as deficiency has neither been pleaded or proved, complainant does not fall within the purview of consumer under the C.P. Act. Admittedly, complainant has not alleged any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance of studies by the OP and in such circumstances, no deficiency can be attributed on the part of OP and in the absence of deficiency, complaint is not maintainable under the C.P. Act.
8. Learned Counsel for the respondent submitted that petitioner has committed deficiency in not refunding fees deposited by the respondents as no loss was caused to the petitioner due to providing seat to the other candidate after taking requisite fees. No doubt, admittedly, no loss has been caused to the petitioner as seat vacated by respondent was given to the next candidate on payment of full fees, but the core question is whether petitioner was under an obligation to refund the fees deposited by the respondent on vacating seat at his sweet that too without any deficiency in the education on the part of petitioner. Clause 3 of the prospects reads as under:
"Note: Should the last day fall on Sunday or a holiday the fees shall be payable on the next working day.
Fees once paid shall not be refunded but in the case of students who are prevented by illness or for other reasons beyond their control from attending the College in the year for which they paid usual fees, the Principal may direct that the whole or part of the amount of fees shall not be again paid for the year in which such students joined the college.
Clause 12 of the declaration signed by the Complainant and his guardian runs as under:
"12. Declaration by the applicant and the guardian:
I declare that the entries made by me in the form are correct to the best of my knowledge. I am conscious that if any of the entries are found to be incorrect, my admission is liable to be cancelled.
I have read carefully the prospectus supplied by the University and I undertake to abide by the rules of the College/University.
I hold myself responsible for payment of fees and other dues on the dates according to the schedule given in the prospectus".
9. Perusal of these clauses clearly reveals that fees one paid was not refundable, but was adjustable in case of illness or other reason beyond control of the student. As complainant had withdrawn from the college at his sweet will, he was not entitled to refund of fees though, petitioner has not suffered any loss of fees.
10. Learned State Commission has allowed appeal on the basis of observations made in paragraphs 10, 11 & 15, which runs as under:
"10. However, core question in all these appeals before us is that after the concerned appellant having left the college and against the seat vacated by him, respondents having admitted other students that too after charging full fees from the new entrants, are they legally entitled to refuse refund to the appellants or not.
11. In our considered view answer would be in the negative. And if the argument of Mr. Vasudeva is taken to its logical end, it would lead to a very piquant situation which will only lead to one thing i.e. the undue enrichment of the State. On this basis the submission based on the above extracted terms of prospectus and condition from the admission form is also without any merit and is thus rejected. Respondents should not forget that it is not a private litigant. Providing education is one of the basic functions of the welfare state even under the scheme of Constitution of India, may be not the fundamental right, but it certainly is a part of the directive principles of the state policy, enshrined under the Constitution of India.
15. The terms of prospectus even if strictly applied to the facts of the present case as was urged by Mr. Vasudeva make those against public policy within the meaning of Section 23 of the Contract Act as those are unconscionable, unfair and unreasonable, therefore being opposed to public policy are void under the law of Contract. Concept of unconscionableness, unfairness, unreasonableness were dealt with elaborately in the judgment of the Hon'ble Supreme Court mentioned in the preceding para. We are further of the view that the conditions regarding non refund of the fees based on the terms of prospectus, as well as the admission form were detrimental to the appellants. But as already observed they were in no win situation because only option open to them was to take it or leave it".
11. We do not agree with the reasons advanced by learned State Commission while allowing appeal and we have to go according to terms and conditions agreed by the parties at the time of admission. As per terms & conditions of the admission, fees was non-refundable and no deficiency of service pertaining to the studies has been attributed to the petitioner and are not entitled to refund the fees.
12. Learned Counsel for the respondent has placed reliance on I (2012) CPJ 194 (NC) - Fiit Jee Ltd. Vs. Dr. Minathi Rath in which, it was held that student was entitled to refund of advance fees for unattended second year of course, whereas in the case in hand respondent attended classes in Petitioner College for some time and has not deposited fees for subsequent years. He also placed reliance on III (2010) CPJ 310 (NC) - Andhra University & Anr. Vs. Janjanam Jagedeesh in which it was held that student was entitled to refund all the fees as he had withdrawn from course without attending any class within a week, whereas in the present case respondent has attended classes for some days. He also placed reliance on I (2009) CPJ 3 (NC) - Nipun Nagar Vs. Symbiosis Institute of International Business in which refund of fees was allowed as student withdrew before starting of the course, whereas in the present case student had participated in some classes conducted by the petitioner. He also placed reliance on II (2009) CPJ 314 (NC) - Comed-K Vs. T. Nagamani in which refund of fees was upheld as student did not attend a single day in OP college and withdrew candidature before second round of Counselling, whereas in the case in hand complainants attended classes conducted by petitioner.
13. As complainants attended classes for some days they were not entitled for refund of fees and OP rightly declined to refund fees and District Forum rightly dismissed complaint, but learned State Commission committed error in allowing appeals.
14. Complainants have not disclosed in their complaints that they got admission in other college, so withdrew from the OP College and vacated seats. They have not come with clean hands and have suppressed material fact. On account of suppression of material facts, complaints were liable to be dismissed.
15. As complainants have suo moto at their sweet will have vacated seats they are not entitled for refund of fees which can be illustrated by following example. Suppose a person purchases state run bus ticket from Delhi to Jaipur and drops in the mid-way and vacates seat and it is occupied by other passenger after charging fare, he will not be entitled to get refund of the charges for the journey not undertaken by him in the absence of any rule entitling him refund of fare.
16. In such circumstances, we are of the view that no deficiency was committed by petitioner in refusing refund of the fees and revision petitions are to be allowed.
17. Consequently, revision petition filed by the petitioners are allowed and impugned order dated 20.3.2008 passed by learned State Commission in Appeal Nos. 221,239 & 240/07 - Indira Gandhi Medical College & Hospital & Anr. Vs. Dr. Prem Seth & Anr., Dr. Arun K. Narula & Anr. & Dr. R.S. Bedi & Anr. are set aside and order of District forum dated 16.4.2007 in Complaint No. 38/05, 39/05 and 41/2005 are affirmed with no order as to costs.
(K.S. CHAUDHARI) PRESIDING MEMBER DATED : 04.07.2014 PER DR. B.C. GUPTA, MEMBER These three revision petitions have been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 20.03.2008, passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (in short 'the State Commission') in appeal no. 221 of 2007, "Indira Gandhi Medical College & Anr. versus Dr. Prem Seth & Anr., appeal No. 239 of 2007, "Indira Gandhi Medical College & Anr. versus Dr. Arun K. Narula & Anr." and appeal No. 240 of 2007, "Indira Gandhi Medical College & Anr. versus Dr. R.S. Bedi & Anr." by which, while allowing the appeals, the order dated 16.04.2007, passed by the District Forum, dismissing the consumer complaints in question, was set aside and the complaints were allowed.
2. I am writing this order separately, since I am not in agreement with the draft order recorded by learned brother, Mr. Justice K.S. Chaudhari, Presiding Member.
3. Briefly stated, the facts of the case are that complainant - 2 / respondent - 2, student in each case, got admission under the NRI category in the MBBS course with the OP-1/petitioner-1 Medical College under the control of OP-2/Petitioner-2 and the requisite fees was deposited for the year 2004-2005. However, after joining the said college, the complainants left the course on 15.08.2004 and OP-1 was duly informed. It is also stated that the seats surrendered by the students were filled by other candidates, who deposited the full amount of fees for the whole year, meaning thereby that the medical college received the fees twice for the same seat. The complainants approached OP-1 for refund of the fees deposited by them, but the said fees was not refunded on the ground that the same was non-refundable as per the terms and conditions, mentioned in the prospectus for the said admission. Alleging deficiency on the part of the OPs, the consumer complaints were filed before the District Forum. The OPs stated in their reply that there was no provision in the prospectus for refund of fees and hence, there was no deficiency in service on their part. The District Forum after taking into account the evidence of the parties, dismissed the consumer complaints in all three cases. However, the appeals filed against the order of the District Forum dated 16.04.2007, were allowed by the State Commission vide impugned order dated 20.03.2008. The State Commission directed the petitioner to refund the amount charged from the complainants alongwith interest @6% p.a. from the dates the fresh candidates were admitted and further pay a sum of `_1,000/- as cost in each case. It is against this order that the present petitions have been made.
4. At the time of arguments before us, the learned counsel for the petitioners submitted that the students applied for admission to the MBBS course under the NRI category in response to advertisement given by the petitioner. They were given admission against the NRI quota seats and they deposited the necessary fees and also attended classes for a few days. However, they surrendered the seats due to family circumstances and wanted refund of the fees deposited by them, but there was no provision for refund of these fees as stated in the prospectus. The complainants (parents as well as students) had signed declaration on the application form saying that they had carefully read the prospectus supplied by the university and they undertook to abide by the rules of the college / university. There was, therefore, no deficiency in service on the part of the petitioners. As stated in reply to the consumer complaints, the students had deposited 13000 US dollars equivalent to Indian ` 5,99,560/- vide receipt dated 28.06.2004. The petitioner-1 medical college also sought a clarification from petitioner-2 Government, regarding the refund of the fees, and they were informed that the complainants were not entitled for refund of fees. The learned counsel has drawn our attention to an order passed by this Commission in RP No. 4464 of 2012 "Globsyn Business School versus Mayuri Ghosh," saying that on similar facts, the National Commission had dismissed the consumer complaint in question and refund was not allowed. The learned counsel also stated that the petitioner college was not a profit-making institution and the money collected from the students was being utilised for the treatment of poor patients.
5. The learned counsel for the respondent stated that the order passed by the State Commission was in accordance with law as the State Commission observed that OPs could not charge fees for the same seat for two different candidates. The State Commission also held that the terms and conditions mentioned in the prospectus were not binding upon the complainants, as these are against public policy and hence, amounted to an unconscionable agreement. The OPs were in a superior bargaining position, vis-à-vis, the complainants and hence, their action was not just and fair. On behalf of the respondents, written arguments have also been placed on record in which it has been stated and also argued orally that as per the guidelines of the Medical Council of India, the shifting of seats was permissible from one college to another upto 30th September of every year. The complainants had, however, given intimation about the vacation of seats on 25.08.2004 and hence, they were entitled for refund.
6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
7. The core issue for consideration in the present case is whether the OPs were liable to refund the amount of fees in question to the students on vacating the seats, in view of the fact that these were got filled by other candidates and full amount of fees for the whole year was also charged from the new students.
8. It is an admitted case of the parties that the complainants/students obtained admissions in the petitioner medical college against the seats under NRI quota and deposited the necessary fees. They also attended classes in the said college for a few days, but later on, they submitted that on account of some family circumstances, they did not want to continue with the course. Presumably, they shifted to another college and asked for refund of fees from the petitioner medical college, which was denied on the ground that as per the conditions stated in the prospectus, there was no provision for the refund of the fees. It is true that as per clause 3 of the relevant prospectus, the fees once paid could not be refunded. It is also true that the students as well as their parents have signed clause 12 of the declaration on the admission form that they undertook to abide by the rules of the college/university. The broad question, however, arises whether the terms and conditions contained in the said prospectus have a binding effect on the parties concerned and relief can be denied to the students solely on the ground that they undertook to abide by such terms and conditions. In this regard, reference could be made to a plethora of judgements / orders delivered by this Commission and other courts, where such refunds have been allowed, based on certain guidelines issued by the University Grants Commission (UGC) and the All India Council for Technical Education (AICTE). The UGC issued a circular dated 23.04.2007, F. No. 1-3/2007 (CPP-2), in which, it was stated as below:-
" PUBLIC NOTICE It has come to the notice of the University Grants Commission that institutions and Universities including institutions deemed to be universities are admitting students to various programmes of studies long before the actual starting of academic session; collecting full fee from the admitted students; and retaining their schools / institutions leaving certificate in original. The Institutions and Universities are also reportedly confiscating the fee paid if a student fails to join by such dates.
2. The Commission is of the view that the Institutions / Universities, by way of retaining the certificate in original, force retention of admitted students which limits the opportunities for the candidates from exercising other options of joining other institutions of their choice. However, it would not be permissible for institutions and Universities to retain the school/Institution leaving certificate, mark sheet, caste certificate and other documents in original.
3. The Ministry of Human Resource Development and University Grants Commission have considered the issue and decided that the Institutions and Universities, in the public interest, shall maintain a waiting list of students / candidates. In the event of a student / candidate withdrawing before the starting of the course, the waitlisted candidates should be given admission against the vacant seat. The entire fee collected from the student, after a deduction of the processing fee of not more than Rs.1000/- (one thousand only) shall be refunded and returned by the Institution / University to the student / candidate withdrawing from the programme. 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 deemed to be university must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable.
4. The Universities / Institutions are requested to abide by the Instructions issued by the UGC. The UGC, shall on its own or on receipt of specific complaints from those affected, take all such steps as may be necessary to enforce these directions.
5. Institutions / Universities are also required to convey these instructions to the college affiliated to them."
9. It has been clearly stated in the above circular that the Ministry of HRD, Government of India and the UGC had decided that the fees shall be refunded after deduction of a processing fee of not more than ` 1000/-, if the seat vacated by a candidate had been filled by another candidate.
10. The said circular of the UGC was again circulated to the Vice- Chancellors/Directors of all the institutions vide F.No.6-1 (7)/2006(CPP-I) dated 22.06.2011 and it was stated as follows:-
"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 deemed to be university must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable."
11. The UGC vide their DO letter No. 14-32/2011 (CPP-II) dated 25.04.2013 issued, "Guidelines for Students Entitlement" and these guidelines are also available on the UGC website www.ugc.ac.in. It has been specifically stated that these guidelines applied to all the colleges and universities in the country (this expression includes every institution of higher education even if it is not called college/University) without any exception. It has been stated that it shall be mandatory for every college/university to publish these guidelines in full in their prospectus and also paste them on the home-page of their website. It has been stated in clause 3 of these guidelines as follows:-
"3. Fee and Financial aid 3.1. The students are entitled to prior and full information about amount, components, frequency and mode of any kind of payment including fees or charges of any other kind and refund rules. If a student withdraws before the beginning of the course the student should be refunded the entire fee given to it with a maximum deductions of Rs.1000. [As notified by UGC on 23rd April 2007, F. No. 1-3/2007 (CPP-II)]"
12. The All India Council for Technical Education (AICTE) also issued similar guidelines vide their circular No. AICTE/legal/04(01)/2007, April 2007 saying that in such cases the fees should be refunded after retaining ` 1000/- as processing fees.
13. In a case, "RP No. 1336 of 2008, "Nipun Nagar versus Symbiosis Institute of International Business", it was ordered by this Commission on 07.11.2008 that the public notice issued by the UGC as reproduced above should be followed and the refund of fees should be allowed to the respective students alongwith interest.
14. In RP No. 347 of 2012, "Ganpati College of Engineering versus Vijeta and Ors." and similar petitions, the National Commission vide order dated 25.05.2012, ordered that the refund of fees should be permitted, even if the seats left vacant had not been filled.
15. In RP No. 3926 of 2009, "The Registrar, Andhra University versus Janjanam Jagedeesh" decided on 06.07.2010, the Bench of the National Commission headed by the then Hon'ble President, directed refund of fees on similar considerations, relying upon the public notice issued by the UGC. In this judgement, the National Commission have dealt with a judgement of the Hon'ble Supreme Court in the case of "Bihar School Examination Board versus Suresh Prasad Sinha (2009) 8 SCC 483, in which it had been stated that the university was not rendering any service and the respondent was not a consumer. The National Commission held that the said judgement had been delivered by the Hon'ble Supreme Court in the context of the conduct of examination only, whereas in cases involving refund of fees, the UGC guidelines as contained in the public notice stated above were applicable.
16. The learned State Commission allowed the appeal filed by the complainants / respondents and observed as follows:-
"10. However, core question in all these appeals before us is that after the concerned appellant having left the college and against the seat vacated by him, respondents having admitted other students that too after charging full fees from the new entrants, are they legally entitled to refuse refund to the appellants or not.
11. In our considered view answer would be in the negative. And if the argument of Mr. Vasudeva is taken to its logical end, it would lead to a very piquant situation which will only lead to one thing i.e. the undue enrichment of the State. On this basis the submission based on the above extracted terms of prospectus and condition from the admission form is also without any merit and is thus rejected. Respondents should not forget that it is not a private litigant. Providing education is one of the basic functions of the welfare state even under the scheme of Constitution of India, may be not the fundamental right, but it certainly is a part of the directive principles of the state policy, enshrined under the Constitution of India.
15. The terms of prospectus even if strictly applied to the facts of the present case as was urged by Mr. Vasudeva make those against public policy within the meaning of Section 23 of the Contract Act as those are unconscionable, unfair and unreasonable, therefore being opposed to public policy are void under the law of Contract. Concept of unconscionableness, unfairness, unreasonableness were dealt with elaborately in the judgment of the Hon'ble Supreme Court mentioned in the preceding para. We are further of the view that the conditions regarding non refund of the fees based on the terms of prospectus, as well as the admission form were detrimental to the appellants. But as already observed they were in no win situation because only option open to them was to take it or leave it."
17. The learned State Commission also held in the impugned order that after admission of three new students on payment of full fees, as had been charged from the complainants, the denial of refund shall be violative of the Article 14 of the Constitution of India as refusal or arbitrary.
18. It has been argued in the present case that the students did attend classes for a few days before leaving the college. I do not think this factor has any significant impact on the refund of the fees deposited by them in view of the fact, that the medical college have again charged the full fees from the students, who were admitted in the seats vacated by the complainants.
19. The entire factual matrix of the case in hand makes it very clear, therefore, that the petitioners did indulge in deficiency in service by their act of denying the refund of the fees to the complainants/students in view of the fact that they had realised the full amount of fees from the students who occupied the same seats vacated by the complainants. The petitioners cannot take shelter under some clause mentioned in the prospectus, saying that fees was non-refundable, as such act shall amount to an unconscionable contract, as held by the State Commission. Moreover, the petitioner no. 1 is a Government-run Medical College and hence, an instrumentality of the State. The decisions taken by the Government of India and the guidelines/circulars issued by the University Grants Commission are fully applicable to them. They are, therefore, bound to return the fees deposited by the complainant in accordance with these guidelines/circulars issued from time to time.
20. In view of the discussion above, it is held that the present revision petitions are devoid of any merit and the same are ordered to be dismissed and the impugned order passed by the State Commission is upheld. There shall be no order as to costs.
(DR. B.C. GUPTA) MEMBER DATED : 04.07.2014 PER JUSTICE K.S. CHAUDHARI In R.P. Nos. 2323, 2324 & 2325 of 2008 - Indira Gandhi Medical College & Hospital & Anr. Vs. Dr. Prem Seth & Anr., Indira Gandhi Medical College & Hospital & Anr. Vs. Dr. Arun K. Narula & Anr. and Indira Gandhi Medical College & Hospital & Anr. Vs. Dr. R.S. Bedi & Anr., arguments were heard on 11.02.2014 by our Bench. Judgment was dictated by Hon'ble Mr. Justice K.S. Chaudhari, Presiding Member and sent for approval of Hon'ble Dr. B.C. Gupta, Member. Hon'ble Dr. B.C. Gupta, Member sent dissenting judgment. As Members of the Bench differ in their opinion, the matter may be placed before Hon'ble President, NCDRC under Section 20(i)(iii) of the C.P. Act for appropriate directions. The legal question is:
Whether there is any deficiency on the part of petitioner and if so, whether petitioner was bound to refund the fees even though there was no provision for refund of fees.
Justice K.S. Chaudhari Member Registrar I/c
Under section 20(1A)(iii) of the Consumer Protection Act, 1986, before making a reference to the Hon'ble President, the Members of the Bench are required to state the point(s) on which they differ in their opinion. In the instant case, such point(s) of difference are as follows:-
(i) Whether a student admitted in a Government Medical College under NRI quota, can be denied refund of the fees on leaving the college, keeping in view the fact that the seat vacated by him had been filled by another student, from whom full amount of fees has been charged again?
(ii) Whether the said Government Medical College is required to follow the guidelines/instructions, issued by the University Grants Commission (U.G.C.) vide their circular dated 23.04.2007 and reiterated vide their circular dated 26.02.2011 and again vide letter dated 25.04.2013, according to which, such fees is to be refunded, after deducting a token amount?
(iii) Whether the orders already passed by this Commission in RP No. 1336/2008 decided on 07.11.2008, RP No. 347/2012 decided on 25.05.2012 and RP No. 3926/2009 decided on 06.07.2012, in which the refund of fees has been allowed based on UGC guidelines, are to be followed or not?
(DR. B.C. GUPTA) MEMBER Dated : 24th July, 2015 JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER The above mentioned petitions have been referred under section 20 (1A) (iii) of the orders of the Hon'ble President for third member opinion consequent upon the difference of opinion between Hon'ble Justice K S Chaudhari ( Presiding Member) and Hon'ble Dr. B C Gupta ( Member). The facts of the case are not being recorded as the same have been duly recorded in the conflicting judgment of Hon'ble Justice K.S.Chaudhari and Hon'ble Dr. B.C.Gupta.
2. I have heard learned counsel for the parties and perused the record. I have also carefully gone through the judgments of the above noted members of the Bench.
3. The dispute in this revision petition relates to the plea of the refund of fees deposited by respective complainants on account of they having surrendered their seats. It is undisputed fact that after the surrender of seats by the respective complainants, the petitioners had filled up the seats vacated by the respective complainants by giving admission to other students, meaning thereby that because of surrender of seats by the complainants, the petitioner Institute has not suffered any financial loss.
4. The Learned District Forum on consideration of record relying upon condition no.3 in the prospectus dismissed the complaint holding that as per the agreement between the parties, the fee was not refundable.
5. Being aggrieved by the order of the District Forum, the respondents complainants preferred an appeal before the State Commission and the State Commission accepted the appeal, set aside the order of the District Forum and directed the petitioner opposite parties to refund the fee deposited by the complainants and allowed 6% interest from the date on which the seats vacated by them were filled by fresh candidates. Petitioners are expected to refund the amount on or before 30.04.2008 failing which it was clarified that interest shall be payable @ 10% p.a.
6. Aggrieved of the order of the State Commission, the petitioner has preferred the revision petition. Hon'ble Justice K.S.Chaudhari after hearing the parties allowed the revision petition and ordered dismissal of complaint in view of clause 3 and declaration clause 12 which was signed by the complainants / guardians. The relevant clauses are reproduced as under:
Clause 3 "Note: Should the last day fall on Sunday or a holiday the fees shall be payable on the next working day.
Fees once paid shall not be refunded but in the case of students who are prevented by illness or for other reasons beyond their control from attending the College in the year for which they paid usual fees, the Principal may direct that the whole or part of the amount of fees shall not be again paid for the year in which such students joined the college."
Clause 12 of the declaration "12. Declaration by the applicant and the guardian:
I declare that the entries made by me in the form are correct to the best of my knowledge. I am conscious that if any of the entries are found to be incorrect, my admission is liable to be cancelled.
I have read carefully the prospectus supplied by the University and I undertake to abide by the rules of the College/University.
I hold myself responsible for payment of fees and other dues on the dates accordingto the schedule given in the prospectus".
7. Hon'ble Dr. B.C.Gupta vide his separate order differed with the opinion of Hon'ble Justice K.S.Chaudhari and relying upon the UGC guidelines as also the fact that the seats vacated by the complainants were filled up by admitting fresh candidates, took the view that petitioners were liable to refund fee particularly when they have not suffered any financial loss by filling up the other seats by other students.
8. I have heard learned counsel for the parties and perused the record. I have also gone through the well-reasoned judgments authored by Hon'ble Justice K.S.Chaudhari, Presiding Member and Hon'ble Dr. B.C.Gupta, Member.
9. Learned counsel for the petitioners have drawn my attention to clause 3 and the declaration clause 12 of the prospectus which was admittedly signed by the candidates / guardians. It is contended that from the aforesaid clauses, it is clear that complainants deposited fee pursuant to their admission with full knowledge that in the event of their vacating seats, they would not be refunded the fee. Therefore, it cannot be said that petitioners have committed deficiency in service in declining to refund the fees and they cannot be directed to refund the fees.
10. Learned counsel for the respondents on the contrary has argued in support of the impugned order of the State Commission and line of reasoning taken by Dr. B.C.Gupta in his dissenting order.
11. I tend to agree with the view taken by Hon'ble Dr. B.C.Gupta. No doubt, clause 3 of the prospectus provides that fees once deposited shall not be refunded but the fact remains that in the instant case, admittedly the seats vacated by the respective complainants were filled by the other candidates. From this it is clear that due to withdrawal of candidature by the complainants, the petitioners have not suffered any financial loss. In my considered view the purpose of providing non-refundable clause in the prospectus is not to make unearned gains but to guard against any financial loss due to sudden withdrawal by a student which results in leaving a seat vacant . As the petitioners admitted other candidates in the seats vacated by the complainants and took the fees from them, in my opinion the equity demands that they should have refunded the fees deposited by the complainants. Thus, I agree with the view taken by Hon'ble Dr. B.C.Gupta in his dissenting judgment based upon the UGC circulars clarifying that in case a student leaves the seat after joining the course and if the seat consequently falling vacant has been filled in by another candidate by the last date of admission, the institution deemed to be university must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable.
12. In view of the above, I conclude that the refusal of the petitioners to refund the fees after having filled in the seats vacated by the complainants by other candidates is unfair and amounts to deficiency in service and they are bound to refund the fees to the respective complainants.
13. The third Member reference is answered as above. Registrar is directed to place the aforesaid opinion before the concerned Bench for pronouncement of order.
(AJIT BHARIHOKE, J.) PRESIDING MEMBER DATED :- 29.07.2015 PER JUSTICE K.S. CHAUDHARI & DR. B.C. GUPTA, MEMBER In R.P. Nos. 2323, 2324 & 2325 of 2008 - Indira Gandhi Medical College & Hospital & Anr. Vs. Dr. Prem Seth & Anr., Indira Gandhi Medical College & Hospital & Anr. Vs. Dr. Arun K. Narula & Anr. and Indira Gandhi Medical College & Hospital & Anr. Vs. Dr. R.S. Bedi & Anr., arguments were heard on 11.02.2014 by our Bench. Judgment was dictated by Hon'ble Mr. Justice K.S. Chaudhari, Presiding Member and sent for approval of Hon'ble Dr. B.C. Gupta, Member. Hon'ble Dr. B.C. Gupta, Member sent dissenting judgment. As Members of the Bench differed in their opinion, the matter was placed before Hon'ble President, NCDRC under Section 20(i)(iii) of the C.P. Act for appropriate directions. Hon'ble President referred the matter to Hon'ble Mr. Justice Ajit Bharihoke. Hon'ble Mr. Justice Ajit Bharihoke agreed with the judgment delivered by Hon'ble Dr. B.C. Gupta, Member.
In the light of majority judgment, revision petitions filed by the petitioners are dismissed with no order as to costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER