Judgment:
Per Shri S.R. Khanzode, Honble Presiding Judicial Member
This appeal is preferred against the order/award dated 20/02/2007 passed in consumer complaint No.82/2005 Shri Swapnil Bandu Kadam V/s. The Principal, Indira Gandhi Engineering College, Koparkhairane by Addl. District Consumer Disputes Redressal Forum Thane (âForum below in short).
There is delay of 149 days in filing appeal. Hence, Misc. Application No.1964/2007 is filed to condone the same.
Reason given for condonation of delay is that copy of the impugned order was received by post on 21/05/2007 by the appellant/org. complainant at his native place. He fell ill due to Infective Hepatitis soon thereafter and advised a complete rest for five months. Appellants affidavit duly corroborated by medical certificate supports his such contention. Delay is neither intentional nor deliberate and thus, being satisfactorily explained, we find it proper to condone the same. Misc. Appl. No.1964/2007 stands allowed accordingly.
Coming to the factual situation, undisputed facts are that the appellant had taken admission in the college of respondent/org. O.P. from its management quota by depositing Rs.56,008/- on 03/08/2004. Said admission was provisional. Appellant got admission in Bharati Vidyapeeth after process of admission controlled by the Government was over and which was pending at the time of taking admission with the respondent. Appellant informed the fact to the respondent and requested refund of money, but in vain. It is alleged that when the appellants mother informed the respondents Trustees that if refund is not allowed then she will not cancel the admission in their college, but on that she was informed that admission of the appellant was already cancelled and the vacancy was filled in by giving admission to another student. Refund was also not allowed pointing to the alleged rules of refund of the respondent. Therefore, this consumer complaint was filed. Forum below dismissed the complaint and feeling aggrieved thereby, this appeal is preferred by complainant himself.
We heard Mr.U.B. Wavikar, Advocate for the appellant and Mr.Hemant Ghadigaonkar, Advocate for the respondent. Perused the record.
The factual situation to which a reference is made while recounting the facts, finds support from the pleadings of the parties as well as from the undisputed correspondence in between the parties which is placed on record.
It is alleged on behalf of the appellant/complainant that on receiving message from the respondent about availability of the admission from management quota in their college, his parents did contact them. They were asked to deposit Rs.56,008/- and the admission was taken. It may be noted that at that time process for admission for free seat as per Government procedure was in progress. It is revealed from the material placed before us that appellant had to take admission in the college of respondent as offered by them considering the uncertainty prevailed over Government controlled admission process. These circumstances particularly considering the fact of uncertainty of admission in engineering colleges, do reveal that appellant in comparison with mighty engineering college institution i.e. respondent is a weak person who had no meaningful choice or option to exercise but to accept the admission offered on the terms of the respondent. Therefore, when the refund of fees (which were paid as per receipt dated 03/08/2004 on record i.e. tuition fee Rs.44,000/-, development fees Rs.12,000/- and other fee Rs.8/-, total amounting to Rs.56,008/-) was refused by the respondent referring to their rules of refund of fees to the effect that the admission if cancelled after 10 days of taking of the admission, no refund could be given. Such clause/rule being unfair, unreasonable and imposed on a weaker section by the mighty one, cannot be enforced. Such view is constantly taken by the Courts of Law and also endorsed once again by the Apex Court in the matter of Central Inland Water Transport Corporation Ltd. V/s. Brojo Nath, AIR 1986 SC 1571 and further applied by the Delhi State Consumer Disputes Redressal Commission in the matter of Apeejay School V/s. M.K. Sangal, (1993) II CPR 62 (Delhi CDRC).
It may be pointed out that not for a single day appellant had taken any education after the admission from the management quota in respondents college. At the time of taking admission in the college of respondent, it was pointed out by parents of the appellant that Government process of admission was since going on and if appellant gets admission on its completion, admission taken in the college of respondent would be cancelled. When the admission was made available as per Government procedure and when mother of the appellant approached the respondent and claimed cancellation of admission and refund of fess, she was asked to meet Trustees of the respondent. What happened in the said meeting is well documented in the pleadings and the correspondence and these facts go almost uncontradicted by the respondent. On coming to know from the Trustees of the respondent that no refund of fees would be given, mother of the appellant informed those Trustees that in that circumstance, she will not cancel the admission with the respondent. On that she was informed that admission of the appellant was already cancelled, vacancy was filled by giving admission to another student and since request for cancellation made after 10 days of initial admission, no refund of fees would be available. As earlier pointed out, the alleged rules for refund of fees cannot be enforced or given effect by the Court of Law including Consumer Fora, which is quasi-judicial authority, in view of circumstances narrated earlier and the law as settled by the Apex Court, supra. Apart from this what emerges here and to which reference is made earlier recounting the events of the meeting between mother of the appellant and the Trustees, request of cancellation of admission since stood withdrawn by mother of appellant on hearing that no refund of fees would be available, instead of acting upon that, mother of the appellant was told that admission was already cancelled and even vacancy caused due to cancellation of admission was filled by giving admission to the another student. This action is also per se illegal since intention/offer to cancel the admission was sought to be revoked or withdrawn on behalf of appellant, there arises no question of voluntarily cancellation of the admission by the appellant and under the circumstance, even rule of refund of fees could not be invoked at all. Action of respondent to refuse to refund the fees is, thus, palpably erroneous in the eyes of law from any angle. Forum below mechanically considered the rule of refund of fees and erred in applying the law to the facts which emerged as almost undisputed facts.
An issue tried to be raised that dispute of the present nature cannot be a consumer dispute. However, imparting of education being covered under Section 2(1)(o) of Consumer Protection Act, 1986, present dispute is very much a consumer dispute and could be entertained by the Consumer Fora. On the point of alleged deficiency in service, the case relied upon by the respondent viz. Shri Ramdeobaba Engineering College V/s. Sushant Yuvraj Rode and Anr., IX-1994(3) CPR 194, is distinguishable on facts and has no application in view of decision of the Apex Court in the matter of In re Central Inland Water Transport Corporation Ltd., supra.
For the reasons stated above, we find that the impugned order/award cannot be supported in the eyes of law. We hold accordingly and pass the following order :-
Order:
1. Misc. Appl. No.1964/2007 for condonation of delay is allowed and delay is condoned.
2. Appeal is allowed. Impugned order/award dated 20/02/2007 is quashed and set aside.
3. Respondent/O.P. do refund Rs.56,008/- to appellant/complainant along with interest @ 9% p.a. from 03/08/2004 till realization.
4. Respondent/O.P. to bear its own cost and pay Rs.5,000/- as cost to the appellant/complainant.
5. Copies of the order be furnished to the parties.