JAGRUT NAGRIK vs VICE CHANCELLOR, SARDAR PATEL UNIVERSITY

THIS appeal arises from order dated 13.11.2002 rendered by the learned Consumer Disputes Redressal Forum, Kheda in Complaint Application No. 171 of 2000 dismissing the complaint, with no order as to costs. It was the case of the complainants that complainant No. 2 paid fees in the total sum of Rs. 15,000/- for M.Sc., Bio-technology Programme to the opponent University as per the particulars set out in the complaint. It was his case before the learned Forum that he applied for admission to self-finance M.Sc., Bio-technology Programme for the academic year 1998. In response he was informed by letter dated 6.8.1998 received by him on 10.8.1998 that he was selected for admission to the course and he should pay to the Accounts Section of the opponent University fee in the total sum of Rs. 15,000/- on or before 10.8.1998 and report to the Head of the Department failing which his admission would stand cancelled. Acting upon the said letter, he rushed to the opponent and paid fees of Rs. 15,000/- and reported to the Dean of the Faculty, who brought to his notice that the respective course had commenced 20 days before the date on which he paid fees and that he would be selected in the 2nd or 3rd batch. It was his grievance before the learned Forum that he was not informed in the letter that he would be selected for the 2nd or 3rd batch and that the course had already commenced resulting into he being placed in the 2nd or 3rd batch. It was very difficult for him to cover up the course of 20 days which he already missed as reported to him. However, he also made efforts for getting accommodation in the hostel but the Warden of the hostel flatly refused to accommodate him in the hostel with the result that it became impossible for him to join the course. He, therefore, requested for refund of his deposit amount of Rs. 15,000/-. He also requested to consider his case as a special case in the circumstances of the case by his letter dated 11.8.1998. The opponents refused to give refund on the plea of rules and regulations of the opponent University not permitting such refund. He, therefore, approached the learned Forum with the prayer for refund of Rs. 15,000/- with interest at the rate of 18% p.a., expenses in the sum of Rs. 500/-, compensation in the sum of Rs. 1,000/-, and cost of the case in the sum of Rs. 500/-.

OPPONENT University resisted the complaint inter alia on the ground that as per the provisions of the prospectus of the University, the course had started and the complainant ought to have known about the fact that the course had started 20 days before he paid the fees. Since the complainant opted to withdraw his admission, one Toral Dhrubhai Patel had taken admission and she had completed her first term. Hence, the submission that the complainant could not have managed to complete the first term as the course started 20 days before the date on which he had paid up/deposited the fees was not acceptable. OPPONENT University also contended that there was no provision for refund of the amount of fee/amount of deposit of fees under the rules and regulations of the University and, therefore, there was no deficiency in service on the part of the opponent University in refusing to refund the amount of fees. OPPONENT University, therefore, prayed for dismissal of the complaint with cost. Learned Forum after considering the material placed on record came to the conclusion that although the complainant could be said to be a consumer in the eye of law, there was no deficiency in service on the part of the opponent University inasmuch as it did not refuse to render service of education which was promised to the complainant. It was only on account of the circumstances attending the complainant himself that the complainant had to withdraw from getting education as proposed by him. The learned Forum has also observed that it would not be possible to give hostel accommodation to every student and refusing to give hostel accommodation would not amount to deficiency in service. The learned Forum, therefore, came to the conclusion that the complainant would not be entitled to refund of the fees which he paid particularly when the circumstances which he presented could not be said to be exceptional circumstances. That is how the complaint came to be dismissed by the learned Forum.

We have heard the learned representative for the complainants and the learned Advocate for the opponent University. Short question which arises for our consideration is whether there is any deficiency in service on the part of the opponent University in the background of the facts noted hereinabove. It has been submitted on behalf of the opponent University that since the rules provided for forfeiture of the amount of fees deposited or paid by the student, refusal to refund the said amount would not amount to deficiency in service. It has also been submitted before this Commission that there are no specific averments which would go to indicate allegation of deficiency in service on the part of the opponent University. The concept of deficiency in service cannot be alleged or considered in abstract but it has to be viewed in the facts and circumstances of each case. In the present case, it is not disputed that the complainant received letter from the opponent University on the date on which he was required to accept or required to pay the fees, failing which he would lose admission. He had no time at his disposal to make inquiry into the basic facts with regard to whether the course had already started and whether he would get admission in the hostel. Both these factual aspects were vital to the complainant for prosecution of his study in the opponent University. Immediately after having paid up fees he had reported to the Dean as stated in the letter which he received from the opponent University. It is only then that he came to know about the fact that the course already started 20 days before the date on which he paid the fees. He also came to be informed that he would get his placing in the 2nd or 3rd batch. It would clearly appear that he still thought of attending the course and he, therefore, proceeded to enquire whether he would get accommodation in the hostel or not. He belongs to a town which is away from the town in which he was to prosecute his studies. Therefore, it was obvious for him that he gets some accommodation to stay in the town in which he was to prosecute the studies. Obviously therefore, he proceeded to enquire of hostel accommodation and there also he had to return with a pale face. Depressed as he was, he had no alternative except to decide for retracting the admission which he had got in the opponent University. In our considered opinion, there cannot be any harder circumstances than these for the authority of the opponent University to come to the conclusion that exceptional circumstances did exist for refund of the amount of fees. Since his place was already taken by another student without any passage of time, the opponent University was not at a loss. Therefore, that circumstance also weighed in favour of granting refund of fees to the complainant. In our considered opinion there clearly appears to be non-application of mind on the part of the concerned officer/s in opponent University which precisely can be said to be deficiency in service. Educational institutions are not commercial institutions and they do not thrive upon profiteering from the fees collected from the students. Retention of the amount of Rs. 15,000/- by the opponent University in the aforesaid circumstances would clearly amount to deficiency in service. Even if this is treated as a case of breach of contract, although it is not so stricto sensu, the opponent University would not be entitled to retain the amount as it would amount to penalty and not reasonable compensation. We have borne in mind the provisions of Section 74 of the Contract Act in the light of the aforesaid circumstances for our coming to the conclusion that the amount retained by the University would be nothing but penalty.

IN view of the aforesaid circumstances, the complainant would clearly be entitled to refund of the fees which he paid to the opponent University. The learned Advocate attending for the respondents drew our attention to a decision of the Rajasthan State Consumer Disputes Redressal Commission in the case of Anil Kumar v. Vipro G.E. Medical System Ltd. & Anr., reported in II (1995) CPJ 300. In our considered opinion this decision will have no application to the facts of the present case for the simple reason that the complainant before the Rajasthan State Commission had merely made grievance with regard to breach of contract de hors deficiency in service. We have also gone through the decision of the Karnataka State Consumer Disputes Redressal Commission in the case of Dr. (Mrs.) Kalyani Gandhi v. The Branch Manager, M/s. Indian Airlines & Anr., reported in II (1993) CPJ 671. In that case the complainant averred that after travelling by opponent airlines, the minor child was alighting from the aircraft when the ladder that was bridging the ground and the aeroplane collapsed trapping her left leg. There was no allegation with regard to any negligence on the part of the opponent airlines or deficiency in service rendered by it. It is in that light that the Karnataka State Commission had an occasion to observe that the allegations made in the complaint would not constitute a complaint as per the provisions of the Consumer Protection Act, as no averment in the complaint with regard to deficiency in service could be worked out. Even this decision would not be applicable to the facts of the case as noted above.

WE now take ourselves to the claim of compensation. In our considered opinion, the complainant would not be entitled to such claim particularly when he having had little time to deliberate upon the situation in which he was placed he did not bother to make enquiry in the first instance as to whether he would be in a position to prosecute the studies. In our considered opinion he would have to make enquiry about his residence in the town in which he was to prosecute his studies in the first instance. The situation which arose for him was partly the result of his own haste. Bearing in mind such state of affairs attending the complaint, he would not be justified in claiming compensation from the opponent University. Insofar as interest is concerned this is a fit case where decision of the Apex Court in the case of Kaushnumma Begum v. The New India Assurance Company Limited, I (2001) SLT 300=I (2001) ACC 151 (SC)=2001 (1) Supreme Today 5, is required to be applied and not more than 9% interest from the date of complaint can be awarded in favour of the complainant. In above view of the matter, we propose to pass following order. ORDER Impugned order dated 13.11.2002 rendered by the learned Consumer Disputes Redressal Forum, Kheda in Complaint Application No. 171 of 2000 is hereby set aside. The complaint filed by the complainant No. 2 is hereby granted on the following terms. Opponent University will refund to the complainant Rs. 15,000/- with interest at the rate of 9% p.a. from the date of complaint till payment, within six weeks from today. There shall be no order as to cost throughout. Appeal allowed.