National Consumer Disputes Redressal
Bhupesh Khurana And Ors. vs Vishwa Buddha Parishad And Ors. on 29 September, 2000
ORDER
C.L. Chaudhry, J. (Member)
1. There are eleven Complainants. All the Complainants are having the same interest and the Complainants have preferred the present complaint against the same Opposite Party with the same cause of action seeking similar and identical reliefs.
2. The complaint proceeds on the allegations that the Complainants are young students having passed the 12th standard and looking for their better professional future, responded to the advertisement issued by the Opposite Parties. All the Complainants were having excellent academic record and looking forward their better future career prospects. The Opposite Parties are running an institution collectively in the name of Buddhist Mission Dental College and Hospital. The College was established by Vishwa Buddha Parishad which was established in April, 1977. The College was stated to be started functioning from the year 1988. The Opposite Parties advertised in the national newspaper (English Edition) for admission for BDS course 1991-92 inviting applications for admission for first year of BDS course. According to the complainant, in the advertisement, the Opposite Parties have categorically and clearly written that the College is "under Magadh University, Bihar, and Dental Council of India, New Delhi". According to the Complainants, similar kind of advertisements were published in the newspapers for the academic session of 1991-92 and 1992-93. In the prospectus issued by the college it was clearly mentioned that the college run by the Opposite Parties is affiliated with Magadh University and recognised by Dental Council of India, there by giving clear impression that the said college is duly recognised by the Dental Council of India which is a statutory body for the purpose of running such kind of institution and also affiliated with Magadh University for the purpose of conducting the annual BDS examination and giving the degree course on completion of the course. The prospectus also mentioned that the institution fulfils all the conditions to be of an institution as required by the Dental Council of India. The Complainants in bona fide and good faith, accepted the information of the Opposite Party as an authentic and correct and sought admission in the BDS course and paid a substantial amount as demanded by the opposite Party under various heads. The Complainants also paid admission fee, tuition fee for which no receipt was given. At the time of admission ,the Complainants were assured by the Opposite Parties that the College was fully equipped with library, laboratory, medical appliances and instruments, hostel accommodation and had a well qualified teaching staff. Thereafter, it was found that the assurances of the Opposite Parties were young. In fact, there was no regular qualified teaching staff to teach the students. The laboratory was ill equipped and there were no instruments and other articles of the laboratory. However, the Complainants in the interest of their career continued their studies as a first year dental course with the hope that after qualifying the dental course, the Complainants shall have a bright future. They attended their classes regularly for full session after their admission for the session 1991-92. However, the Complainants started getting worried when the University examinations due to be held in September, 1992, were not in sight. The Complainants along with their parents, made enquiry from the Opposite Party about the reasons as to why the annual examination was not conducted in time by the Magadh University. But, the Opposite Parties time and again gave assurances to the Complainants that the examinations would be held on time. In spite of number of requests and reminders made by the Complainants, no date-sheet for examination was declared till December, 1992. The Complainant, lastly, approached the governing authority and they came to know that the College was neither affiliated to Magadh University nor recognised by the Dental Counsel of India and thereby unable to hold the examinations. The parents of the Complainants had written a letter dated 3rd January, 1993, to the Opposite Parties bringing to their notice the injustice and loss caused to their boys. In response to that letter, the Opposite Parties by their reply dated 1st February,,1993 admitted that the Collate was not affiliated with Mahadh University. Huge amount was collected by the Opposite Parties for admission fee, capitation fee, college dues etc. during the stay at Patna. The Complainants have also purchased medical books necessary for their studies, instruments required for attending practical classes. All these expenses were incurred by the Complainants for attending their studies in BDS course, which remained incomplete like a dream on account of fraud played by the Opposite Parties. Not only the Complainants suffered mental tortue, financial losses, harassment because of the loss of their two valuable academic years, but also had to bear additional expenses for their fresh admission in other dental colleges/professional courses in the interests of their future career and prospects. Such omission and commission and conduct of the Opposite Parties amount of deficiency in service. The Complainants are legally entitled to recover for expenses incurred by them during the course of stay along with compensation and damages. It is pertinent to mention that the Opposite Parties have published similar type of advertisement for the academic years 1992-93 and 1993-94 and most of the student who took admission in the 1st year BDS course, left the institution after staying 3 to 6 months, when they had learned that the college was neither affiliated to Magadh University, Patna, nor recognised by the Dental Council of India, New Delhi. The Complainants alleged that the omission and commission on the part of the Opposite Parties while making such false representation that the College was affiliated and proved by the Magadh University and Dental Council of India amounted to unfair trade practice under the provisions of the Consumer Protection Act. The Opposite Parties College did not fulfil requisite conditions specified therein for granting of the affiliation by the University. As such, the services of the Opposite Parties tantamount to deficiency in service and the Complainants should by awarded suitable compensation. The Complainants have wasted their two years and suffered mentally and financially due to the deficiency in service and wilful negligence on the part of the Opposite Parties. Had the examinations been held on time, the Complainants would have been able to complete the BDS course in the said period of 4 years and secured employment or started their professional activity. The Complainants have suffered irreparable loss and injury because of such acts of omission and commission on the part of the Opposite Parties. In these premises the Complainants have claimed award of compensation of the tune of Rs.1,21,94,000/-.
3. On being noticed, the Opposite Parties have contested the claim of the Complainants. In their reply, it is stated that the complaint has been filed jointly by a number of Complainants raising different claims. The compensation asked for by each of the Claimant is different. Many of the students have not even paid their fee, but are demanding the same. The Complainants are also asking for damages which are of remote nature. Because the cause of action has arisen in Patna, therefore, the grievances of the Complainants should be agitated before the appropriate forum at Patna. On merits it is stated that the Bhudist Mission Dental College and Hospital is a purely minority institution established and managed by Vishwa Bhudha Parishad. The Dental College was establish in the year 1988. At the time of admission into the Dental College the prospectus mentioned that the College was under Magadh University, Bodhgaya and Dental Council of India. Further, the prospectus of the college narrates that the institution was seeking affiliation. The Opposite Party took all possible steps for getting the recognition of the college. On 20th of July, 1989, a letter was written to the Dental Council of India, New Delhi to take necessary steps for its recognition. On 1.9.89 an application with a draft of Rs.1,000/- as inspection fee was submitted to the Magadh University for taking necessary action and for carrying out the inspection. No steps were taken to carry out the inspection. In the meantime, the State Government took out of policy decision not a permit establishment of any institution imparting education in medical courses in the private sector. It was on that account that the Dental Council of India did not carry out any inspection. The decision of the State Government was challenged in the High Court of Judicature at Patna which held that the stand of the State Government was not tenable. In spite of the judgment of the High Court, the Dental Council of India was reluctant to carry out inspection in spite of repeated requests made to them that the interests of students were suffering. The Respondents received a letter dated 20th April, 1995, from the Dental Council of India wherein they had appointed Dr. Mohd. Faizuddin and Dr. P.D. Bora as visitors to inspect and report to the Council about the physical facilities such as building, space, staff, qualification, teaching experience, etc. According to the Respondents, they have been diligent at all times to see that the institution got the affiliation. They have not been negligent at any time and, therefore, it could not be said that they had adopted an unfair trade practice. it was reiterated on behalf of the Opposite Party that the said college was under Magadh University, Bihar and was seeking affiliation. Nowhere it was claimed that it was already affiliated to Magadh University and Dental Council of India. The prospectus clearly states that the Dental College "seeks" affiliation with Magadh University, Bodhgaya, Bihar and it no where states that the Dental College was duly recognised by the Dental Council of India. It was denied that any capitation fee was charged from the students. The College was fully equipped with library, laboratory etc. and had all the facilities as required by any Dental College. The Complainants and their parents were all along informed about the progress that the College was making towards getting affiliation. In spite of its efforts the affiliation could not be obtained for the reasons beyond the control of the Opposite Party. The complainants were informed that the cause of the delay in not conducting the examination was on account of the delay on the part of the Dental Council of India to carry out its inspection. The damages and compensation claimed by the Complainants were denied.
4. In the rejoinder filed on behalf of the Complainant, they have denied the allegations of the opposite Parties and have reiterated the allegations made in the complaint. The omission and commission on the part of the Opposite Parties by making false representations that the College is under Magadh University, Bodhgaya, Bihar and Dental Council of India amounts to unfair trade practice. The printing on the advertisements, brochures and prospectus that the College is under Magadh University and Dental Council of India proves that the sole aim of the Opposite Party was to dupe the innocent student. The Opposite Party without getting affiliation from the Magadh University and recognition from the Medical Council of India published advertisement for admission in the BDS course only with a view of mislead, defraud, cheat the Complainants and other students. Affiliation and recognition should have been done before the commencement of the studies of the college. Running of the said institution without having statutory affiliation and recognition from the competent authority tantamount to illegal and unauthorised and unfair activity. In case, the Complainants had any idea that to College was not recognised/affiliated they would not have sought admission to the college. They had to part with huge amount on account of admission expenses, purchase of books, miscellaneous expenses and hostel expenses for two years. The Opposite Parties also published similar advertisements for the academic year 1994-95. The Opposite Parties were trying to mislead and defraud the students.
5. The parties were given opportunity to file affidavit by way of evidence in support of their respective cases which opportunity they have availed of.
6. We have heard the learned Councel for the parties. It was urged on behalf of the Complainants that the Opposite made a false representation in the advertisement that the college was under "Magadh University, Bihar and Dental Council of India, New Delhi." On the basis of this representation, they sought admission in the College. If he College was not recognised/affiliated by the Magadh University and the Dental Council of India, the Opposite Parties should not have admitted the students for the B.D.S. Course. They should not have played with the academic careers of the student. Imparting of education is a service under the provisions of the Consumer Protection Act and there is a clear deficiency in service on the part of the Opposite Parties. The entire defence that is stayed by the Opposite Parties that in the Prospectus they have used the word seeks affiliation which would show that the College was not affiliated/recognised is unfounded in the context of the advertisement and the other material published by the Opposite Parties, which clearly establishes that there was a clear representation that the College was affiliated with the Magadh University and was recognised by the Dental Council of India. If the College was not affiliated/recognised, the Opposite Party had no right to invite applications and admit students. Two valuable academic years of the Complainants had gone waste because of the omission, Commissioner and negligence on the party of the Opposite Parties. The Complainants deserve to be compensated for the loss of two valuable years of their career.
7. On the other hand, the Counsel for the Opposite Parties contended that there was no lapse on the part of the Opposite Parties as they have been pursuing the matter diligently at all time to see that the institution gets the affiliation and they have not been negligent at any time. At the time of admission into the Dental College, the prospectus mentioned that the College was "under Magadh University, Bodhgaya and the Dental Council of India". Further the prospectus of the College narrates that the institution was seeking affiliation. It was also argued that the Complaint was bad for misjoinder for parties and causes of action.
We have considered the relevant contentions of the parties. The advertisement that is relied upon by the Complainants is support of their case, reads as under:
"THE BUDDHIST MISSION DENTAL COLLEGE & HOSTEL (Under Magadh University, Bodh Gaya & D.C.I., New Delhi Siddharth Nagar, New Bailey Road, Patna-810305 A Premier Dental College of Bihar, Established and managed by VISHWA A BUDDHA PARISHAD, under article 30(1) of the constitution of India, Fulfilling all the criterion and conditions of Dental Council of India.
ADMISSION NOTICE FOR BDS Course 1993-94 Applications are invited for admission in 1st year (B.D.S.) Course Eligibility: I.Sc. or Equivalent degree with a minimum 50% marks (40% in case of reserved candidates) in Physics, Chemistry, Biology Group.
Application form and prospects can be had from the office on Payment of Rs.100/- (or Rs.110/- by DD in the name of the College if Requested by Post.
Late date for submission of applications is 30.8.93 Separate Hostel facility for boys and girls in the campus. Preference to Buddhist and other minority candidates.
NO CAPITATION FEE (R.A. VATSYAYAN) Secretary Phone No. R.234998/C. 427102, 427918 STD Code 0612"
8. It clearly states that the Buddhist Mission Dental College and Hospital is under Magadh University, Bodh Gaya and the Dental Council of India, New Delhi. In the advertisement, there is no mention at all that the College was seeking affiliation withe Magadh University or and recognition by the Dental Council of India. Rather, it describes as a premier dental college of Bihar established and managed by the Vishwa Buddha Parishad under Article 30(1) of the Constitution of India, fulfilling all the criterion and conditions of Dental Council of India. From the advertisement, one is bound to get the impression that the College was affiliated to Magadh University, Bodh Gaya and was recognised by the Dental Council of India. The Opposite Parties have placed reliance upon the prospectus issued by the College. The relevant portion of the prospectus reads as under:
"The Buddhist Mission Dental College and Hospital The year 1988 will remain as a land mark in the history of progress of educational activities of the Vishwa Buddha Parishad, Patna for it was during this year the Buddhist Mission Dental College and Hospital took its inception. The academic syllabus of the college meets the standard as per Dental Council of India's rules and as prescribed by the Faculty of Dental Sciences, Magadh University, Bodh Gaya, Bihar to which this institution seeks affiliation for the purpose of examination and award of B.D.S. Degree. The college has 13 well equipped department as well as equipped clinics with modern equipments to impart satisfactory training and efficient treatment. The college has got a well provided library subscribing most of the modern Dental Journals along with audio video tapes and transparencies of recent advances in Dentistry. In addition, the college provides a reading room where periodicals and journals on youth activities are mode available for the purpose of discussion and recreation.
Buddhist Mission Dental College & Hospital is purely a non-Govt. and self financed inst. Managed by the ministry Community of Buddhist (V.B.P.). Any kind of gifts/help in cash and kind from the parents, guardians or well wishers will be thankfully accepted by Vishwa Buddha Parishad, against receipt".
9. The Opposite Parties derive support from the phrase "to which this institution seeks affiliation for the purpose of examination and award of degree in B.D.S", in support of their arguments that it was mentioned in the prospectus that the College was seeking affiliation for the purpose of examination and award of B.D.S. degree. To our mind, the contention is unfounded. Reading the advertisement and prospectus as a whole, there is no manner of doubt that the permission given was that the College was affiliated with the Magadh University and was recognised by the Dental Council of India. If the College has not been affiliated and recognised, there was no occasion in admitting the students and wasting their valuable academic years. More over, the Opposite Parties have been admitting the students right from the year 1991-92 upto the year 1995 on this representation that the College was affiliated and recognised by the Dental Council of India. It cannot be denied that without affiliation to the Magadh University and recognition granted by the Dental Council of India, the so called dental degree of B.D.S. is just a useless piece of paper. The representation given in the advertisement that the College was under Magadh University and by the Dental Council of India could be taken by a common person to mean that the college had been given recognition by the Dental Council of India and was affiliated to the Magadh University.
10. The Supreme Court in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa and Others, reported as AIR 1978 SC 548 at page 583 (pr. 118) observed as under:
"In the case of the University or an educational institution, the nature of activity is, ex hypothesis, education which is a service to the community. Ergo, the University is an industry".
11. Imparting of education by an educational institution for consideration falls within the ambit of 'service' as defined in the Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The Complainants had hired the services of the Respondent for consideration so they are consumers as defined in the Consumer Protection Act.
12. It is an obvious case of misrepresentation on behalf of the Respondents and tantamount to unfair trade practice. The Complainants were admitted in the B.D.S. course for imparting education for consideration for which the college of the respondent was not affiliated and recognised for imparting education This clearly fall within the purview of deficiency as defined in the Consumer Protection Act, which reads as under:
"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".
13. So, we hold there is deficiency in service on the part of the Respondents and the Claimants are entitled to the reliefs claimed in the complaint.
14. The other contention of the Respondent that the complaint is bad for misjoinder of parties and causes of action has no merit. The complainants have preferred the complaint against the same parties on the same cause of action seeking similar and identical reliefs.
15. The next question that arises for consideration is regarding the compensation to be awarded to the Complainants. They studied in the College for two years which has gone waste. The Complainants have paid the admission fee and have incurred other expenses such as stay in the hostel, purchase of books and other miscellaneous expenses. Taking into consideration the totality of the circumstances, we direct the Respondents Nos. 1 to 4 to refund the admission expenses paid by the Complainant at the time of admission with interest calculated at the rate of 12% p.a from the date of receipt of the amount till date of payment and also pay Rs.20,000/- to each of the Complainants by way of compensation for the expenses defrayed on purchase of books, mess expense, hostel expenses for two years and for the loss of two valuable academic years. The admission expenses paid by the Complainants are indicated below:
Sl.No. Name of the Complainant Date of Payment Amount 1. Bhupesh Khurana 4.1.92 Rs. 63,000/- 2. Gurinder Singh Geet 12.11.92 Rs. 67,000/- 3. Mata Hans 26.9.91 Rs. 48,000/- 4. Renu Kamra 8.1.92 Rs. 63,000/- 5. Ashutosh Gopal 31.3.92 Rs. 63,000/- 6. Manish Agarwal 17.8.91 Rs. 63,000/- 7. Rahul Kalra 12.10.91 Rs. 36,000/- 8. Saurabh Agarwal 16.9.91 Rs. 63,000/- 9. Anil Arora 12.10.91 Rs. 33,000/- 10. Anju Mittal 4.8.92 Rs. 52,000/- 11. Sunita Sharma 31.8.92 Rs. 67,000/- 12. Alok Kant 15.1.92 Rs. 63,000/-
16. The Complainants have claimed refund of donation and capitation fee which according to them was paid in case but no receipt was issued by the Respondent. The Respondent have denied receipt of such donations or capitation fee. There is nothing on the record to establish that the Complainants have paid donation and capitation fee. So, we are not inclined to grant any relief to the Complainant in this regard. The Respondents shall pay Rs.10,000/- by way of costs of this petition. The Respondents are allowed two months time to pay the amount as directed above. The Complaint is finally disposed of.