Pydah College Vs. E. Mohan Rao and Another

S. Parvatha Rao, President:

1. The opposite party No. 1 in Consumer Case No. 563/1994 before the Visakhapatnam District Forum is the appellant before us questioning the order of that District Forum dated 25.10.1997 partly allowing the same and directing the appellant herein to pay to the complainant (first respondent herein) a sum of Rs. 6,250/- within two months together with interest @ 15% per annum if the same was not paid within two months from the date of the order and also costs of Rs. 500/-.

2. The complainant is father of E. Kiran Kumar who applied for a seat in the Post Graduate course run by the appellant for a degree of Master of Computer Application (MCA Course for short). It is not in dispute that MCA course is for three years and the appellant college is affiliated to the Andhra University. E. Kiran Kumar was interviewed and selected for admission by the appellant and was asked to remit Rs. 15,000/- towards tution fees for the first year. The complainant who accompanied him did not come prepared to pay the entire amount and was ready to pay Rs. 10,000/-, he was asked to remit the same towards part fee for the first year and he paid the same on the same day and that is not disputed by the appellant. E. Kiran Kumar was then admitted and was given time to produce the original certificates like Transfer Certificate etc. It is also not in dispute that E. Kiran Kumar attended classes and participated in internal evaluation and pursued studies for about three months. The complainant addressed a letter dated 5.5.1994 to the appellant requesting refund of part of consideration paid by him on the ground that the original certificates which had to be produced by E. Kiran Kumar could not be produced. The appellant in its reply letter dated 9.5.1994 refused to refund the same and on the other hand required him to pay the balance consideration of Rs. 5,000/-. The complainant thereafter got issued a lawyer notice dated 30.6.1994 to the appellant which was received by it on 1.7.1994. As there was no response from the appellant, the complainant approached the Visakhapatnam District Forum complaining that there was deficiency in service on the part of the appellant for default in arranging refund of consideration paid on the ground that it retained the tution fees for the first year without rendering commensurate service.

3. In the counter filed by the Principal on behalf of the appellant it is stated that the candidate E. Kiran Kumar gave an undertaking on 9.3.1994 requesting for one week time for submission of Transfer Certificate and other original certificates and that he should be allowed to sit in the classes at his own risk, and that he was accordingly allowed to sit in the classes on payment of Rs. 10,000/- towards part of annual tution fee and on his promise to pay the balance of Rs. 5,000/- within one month. It is also stated that he attended classes and submitted assignment books for the purpose of internal evaluation as a part of the scheme of the examinations prescribed by the Andhra University, to which the appellant College was affiliated. It is also stated that at the time of submission of the application by E. Kiran Kumar he and his father were given the rules and regulations of the appellant and that in the said rules, it is specifically mentioned in Clause (e) that “fees once paid shall not be refunded under any circumstances”. It is further stated that E. Kiran Kumar left the appellant college after attending the classes on his own failing to produce the transfer certificate and other certificates in original as promised by him. On that basis on behalf of the appellant it is contended that the complainant was not entitled to get back the amount of Rs. 10,000/- paid towards part of tution fee both in view of the rule position as well as the fact that his son E. Kiran Kumar attended the classes and received tution and also submitted consignment work as part of internal assessment. It is also stated that the appellant sent a reply to the notice got issued by the complainant. It is also stated in the counter filed on behalf of the appellant as follows:

“Due to giving up the college by the said E. Kiran Kumar the opposite party (appellant herein) suffered heavy loss and nobody has joined in the middle of the year and all the three years the seat has to be kept vacant. He is thus liable to compensate the college for loss of tution fee of Rs. 30,000/- for the rest of the two yearscourse at Rs. 15,000/-.per year”.

No documents were filed before the District Forum as evidence apart from the affidavits in lieu of oral evidence.

4. From the record of the District Forum, we noticed that though the complainant in his complaint referred to list of documents, none of them were found in the record. In the evidence affidavit dated 17.4.1995 filed by the complainant he did not deny the statement made in the counter filed on behalf of the appellant that at the time of receiving the application from E. Kiran Kumar the complainant received the rules and regulations of the college, wherein it was stated that the fees once paid would not be refunded under any circumstances. On the other hand he admitted as follows:

“I submit further that my son joined in the same course elsewhere i.e.at Srikakulam by then i.e.much prior to 27.1.1994”.

5. In the evidence affidavit filed by the Principal on behalf of the appellant it was stated that the balance sum of Rs. 5,000/- for the first year was agreed to be paid within one month by the complainant and his son and that it was also further agreed that all the original certificates would be supplied and that E. Kiran Kumar was admitted at his risk because at the time of the assessment the original certificates were not submitted. The Principal also further stated in that affidavit as follows :

“I submit that at the time of the admission the complainant was served with a booklet of the college, containing all the rules and regulations of the opposite party. As per the Clause (f) of the terms and conditions “once fees paid shall not be refunded under any circumstances”.

I am herewith filing the booklet and the same may be marked as Exhibit B1. Hence the complainant is not entitled to get back the amount of Rs. 10,000/-as per Clause (f) of the terms and conditions. The complainant failed to pay the balance fees of Rs. 5,000/-. This opposite party is reserving its right to take suitable action against the complainant.

I submit that the complainant without paying the balance fees of Rs. 5,000/- left the college in the middle of the academic year and thereby this opposite party sustained heavy loss besides Rs. 5,000/- and also all the three years the seat of the complainant is kept vacant and nobody will join for subsequent years”.

It is also stated that at the time of joining/ the complainants son gave an undertaking letter on 27.1.1994 and that the same was being filed and that it should be marked as Ex. B2. It is stated that as per the letter, he agreed to produce all the necessary original certificates on or before 5.2.1994 and that again on 9.3.1994 he agreed to produce the original certificates within one week and that the said letter was also being filed and that it should be marked as Ex. B3. It is also asserted that the complainants son on his own left the college and that the college never objected for his continuing the course subject of course to the production of all the original certificates which he was bound to produce and also payment of the balance of tuition fees as promised by him at the time of admission.

6. In its order dated 25.10.1997, the District Forum found that the fees for the first year MCA course was Rs. l5.000/- and that the complainants son paid only Rs. 10,000/- towards tuition fee. The District Forum held that as the complainants son attended classes for three months only and did not attend classes for the rest of the first year, so far as the period for which the complainants son did not attend classes there was deficiency in service, and therefore he was entitled to get back the fees proportionately. On that basis the District Forum directed the appellant to pay a sum of Rs. 6,250/- being the proportionate amount for the period during which service was not rendered. The District Forum observed that the prospectus filed by the appellant showed that it was specifically mentioned in Clause (c) “that fees once paid shall not be refunded under any circumstances”. The District Forum also noticed that there was a clause in the prospectus stating that “the student selected for admission into the college should pay the necessary college fees within the stipulated time otherwise the seat will be allotted to the next candidate in the waiting list” and that as per this clause in the natural course the appellant college would have a right to allot the seat to the next candidate in the waiting list. The District Forum also observed that when the complainants son failed to produce the Transfer Certificate and other certificates as undertaken by him it was not known as to why the appellant allowed the candidate to sit for classes for three months and that though the appellant had taken a plea in the counter that no body joined in the place of the complainants son in the academic year 1993-1994 and in the subsequent two years, no material was placed to establish the same. On that basis the District Forum rejected the contention advanced on behalf of the appellant that it suffered heavy loss as no body joined not only in the first year but also in the subsequent two years after the complainants son left the college in the middle of the year.

7. We find that the District Forum erred in holding that so far as the period for which the complainants son did not attend the classes there was deficiency in service on the part of the appellant. The District Forum failed to fully appreciate that the complainant and his son suppressed the fact that the son already joined another college at Srikakulam much prior to 27.1.1994 and that therefore the complainant did not come with clean hands at the time when he approached the appellant and joined his son undertaking to produce the transfer and other certificates in original and to pay the balance fees of Rs. 5,000/- within one month. The District Forum also failed to notice the fact that the appellant was all the time willing to render service undertaken by it, and that it was the complainant who withdrew his son after three months and who failed to produce the transfer and other certificates — obviously because they were submitted already to the other college at Srikakulam and that college perhaps declined to return them. It is in that context that Clause (c) in the prospectus becomes relevant when admittedly the complainants son discontinued his studies in the appellant college on his own, voluntarily, after pursuing studies for three months. Whether the seat vacated by the complainants son remained vacant for the rest of the year and for the next two years because no body joined will be relevant in considering the claim of the appellant for compensating it for the loss allegedly suffered by it because of that. It is not so relevant for considering whether there was any deficiency in service on the part of the appellant when the complainants son left the college voluntarily without complying with the undertakings given by him. On the facts of the present case we are satisfied that there is no deficiency in service undertaken by the appellant college and that the complainant is not entitled to any relief because he approached the appellant college and gained admission for his son by suppressing the fact that his son already was admitted in another college at Srikakulam much prior to 27.1.1994. We are supported in this view by the decisions of the National Commission.

8. In Ramdeobaba Engineering College v. Sushant Yuvraj Rode and Anr., III (1994) CPJ 160 (NC), the National Commission was dealing with a case where provisional admission was given to the complainant in the first year Engineering and admission fee of Rs. 8,800/- and security deposit of Rs. 2,000/- was paid by him. Subsequently the complainant in that case secured admission in another college and sought refund of the fees and security deposit paid by him. The National Commission held as follows :

“This is a case where there has been no deficiency of service on the part of the revision petitioner Engineering College. The respondent complainant Shri Rode withdrew from the College to join another institute voluntarily and as such there was no deficiency in service on the part of the revision petitioner Engineering College. Non-refund of admission fee is not a deficiency in service. Admission fee is a consideration for admission and the service which the Engineering College was to render to the student in the matter of his pursuing studies in the college after admission.It is a quid pro auo for such service”. (Emphasis applied)

In that case the college was prepared to refund the security deposit of Rs. 2,000/- but declined to refund the so-called ‘admission fees of Rs. 8.800/-, which the National Commission observed was not merely for admission but also for the service which the Engineering College would be rendering to the student after admission in the matter of his studies. The District Forum failed to correctly understand the ratio of the decision of the National Commission which clearly held that there was no deficiency in service on the part of the college when the student voluntarily left — in that case, after he got admission subsequently in another college.

9. In Homoeopathic Medical College and Hospital v.Gunita Virk, I (1996) CPJ 37 (NC), the National Commission was inclined to accept the contention advanced on behalf of the college that “dues once paid were not refundable as per the terms and conditions of the prospectus” holding as follows:

“We do not think it necessary to go into the question whether the rule in the prospectus about the non-refund of fee is unconscionable or not, in detail. Suffice it to say the FORA constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal. It is for the Civil Court to determine this point. If a student / students apply for admission and deposit the fees and later on do not want to join the course, then the seat/seats so vacated will remain vacant throughout the academic year. In such circumstances it will become very difficult for any institution to run in a proper manner”.

This decision clearly supports the contention advanced by the appellant in the present case.

10. In Principal, Bharat I.T.C. v. M.K. Muraleedharan, 1996 (2) CPR 35, the Kerala State Consumer Disputes Redressal Commission rejected the claim for refund of fees observing as follows:

“From the circumstances what we could gather is that he got admission to the I.T.I course in Government ITI Kannur and therefore he wanted to leave the opposite party institution to join that course. Of course he demanded refund of fee. Without entering a finding that there is deficiency on the part of the opposite party it will not be possible to make a direction to refund the amount. It is not on account of defect in the service of the opposite party that he left the institution, but because he wanted to join the Government I.T.I.”

11. To the same effect is the decision of the Kerala State Consumer Disputes Redressal Commission in Dr. A.F.A. Mascarenhas, Principal, ST. Johns Medical College, Bangalore v. Prof. Jose V.V., 1996 (1) CPR 269. In that case also there was a condition in the prospectus stating as follows:

“Deposits and fees will not be refunded. If the candidates do not join the college, after joining before completing the course”.

and that deposits and fees paid would not be refunded if a candidate leaves the college before completing the course. The complainant in that case attended classes for 13 days and left the college on his own accord on his getting admission in an Engineering College. The Kerala State Commission held that there was no deficiency on the part of the college to render any service for which the fees was collected and that if the party did not avail of the service that could not be termed as deficiency within the meaning of the Consumer Protection Act.

12. To the same effect are the decisions of the Consumer Disputes Redressal Commission, Union Territory, Chandigarh in D.A.V. Public School v.P.K. Verma, 1996 (3) CPR 1, and Principal, Saint Xaviers High School v.Sunil Dutt Sharma, I (1998) CPJ 229=1997 (3) CPR 527.

13. The Haryana State Consumer Disputes Redressal Commission in Master Sandeep Raja Goyal v. Chaman Vatika, I (1997) CPJ 523, following the decision of the National Commission in Homoeopathic Medical College and Hospital, Chandigarh, (supra), held that the FORA constituted under the Consumer Protection Act had no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal and refused to go into the question of equity.

14. The decision of the National Commission in Homoeopathic Medical College and Hospital, Chandigarh,(supra), was not noticed by this Commission in Adarsha Residential College v. Narayana Rao Noule and Anr., II (1998) CPJ 436=(1997) 5 CTJ 638=1997 (3) CPR 385. However in that case it was specifically held that the complainants son had not accepted the terms and conditions mentioned in the application because it did not bear his signature and that the student studied only for 14 days.

15. The Principal, Maharshi Veda Vigyan Mahavidyala Womens College v. P. Sankar Rao, 1994 (3) CPR 461, is a decision rendered by the A.P. State Commission before the decision of the National Commission rendered on 30.10.1995 in the case of Homoeopathic Medical College and Hospital, Chandigarh (supra).

16. From the rulings of the National Commission it follows that when a student voluntarily leaves an educational institution, there is no deficiency in service on the part of that educational institution so as to entitle that student for refund of fees already paid for the period he did not receive instruction because of his leaving the institution on his own volition. The rationale for this is that the educational institution is willing and ready to impart education but it is the student who is responsible for not receiving the service by leaving the institution abruptly. No equitable considerations weigh, under those circumstances, when in fact there is no deficiency in service. It is afortiorari case when the prospectus of the educational institution places the position beyond doubt. The State Commissions are bound by the rulings of the National Commissions it has been so held by the National Commission in Chairman, Board of Examinations, Madras v. Mohideen Abdul Kader.

17. In view of the decisions of the National Commission referred to above, we have to hold that the District Forum erred in directing the appellant to refund portion of the tution fees received by it on the sole ground that it did not impart any service when admittedly the complainants son left the institution abruptly. More so, when admittedly the complainant got his son joined in the appellant college suppressing the fact that he already joined another college at Srikakulam.

18. In the result, the order of the Visakhapatnam District Forum dated 25.10.1997 in C.C. No. 563/1994 is set aside and the appeal is accordingly allowed. No costs.

Appeal allowed.