K Krishna Mohan vs M S Dayakar Rao

AGGRIEVED by the dismissal of his complaint CD/46/94 by the District Forum Anantapur, this appeal is preferred by the Complainant.

ACCORDING to the complainant he joined in January, 1993 in 1st opposite party College and paid a sum of Rs. 1,60,000/ - to the management of the first opposite party. One month after his joining i.e. in February, 1993 C.B.C.I.D. officials inspected the college and ordered closure of the college as there was no recognition obtained by college from Indian Medical Council and the cash deposits of the college which were in the local bank were frozen by the District Collector, Warangal i.e. second opposite party. The first opposite party issued a cheque for Rs. 1,47,000/ - on 8.11.93 by way of refund. But as there was a freeze of funds, the cheque could not be encashed. Alleging that without obtaining the permission, the management of the first opposite party should not have admitted the students and deduction of Rs. 13,000/ - from Rs. 1, 60,000/ -and issue of cheque for balance of Rs. 1,47,000/ - is not justified, the complainant sought a direction to the opposite party No. 1 to make alternative arrangement for payment of the entire amount without making any deduction and also pay a sum of Rs. 5,000/ - towards expenses incurred and Rs. 20,000/ - for causing mental agony and inconvenience. The complainant also sought a direction to the second opposite party to expedite the investigation in early settlement of the amount.

THE second opposite party remained ex - parte.

THE first opposite party in its version stated that it has been taking all proper steps against the Government to expedite investigation and at the time of admission of the students, the parents were informed about the steps taken to get the recognition from the Indian Medical Council and that having full knowledge that there was no recognition at that point of time, the complainant joined in the college. The complainant and his father also executed an undertaking expressing full faith in the institution and also a bond to the effect that the complainant expressed his willingness to take the risk of joining the institution. Even though there was no recognition, the management of the college tried its level best to disburse the refundable amount after deducting Rs. 13,000/ - towards tuition fee, hostel fee etc., for one month and in fact the amounts were refunded to 15 students and the complainant was informed on 6.10.93 itself to come and take the amount. But the complainant did not choose to approach the first opposite party till 8.11.93 and by that time the amounts were frozen by the second opposite party. The opposite party No. 1 therefore issued a cheque for Rs. 1,47,000 A According to the first opposite party the funds are available in the bank and as and when the freeze is released, it is prepared to honour the cheque and pay the amount of Rs. 1,47,000/ - to the complainant. Hence it is contended that there is no deficiency of service on the part of the opposite party No. 1. No oral evidence was adduced by both the parties.

ON behalf of complainant Exs. Al to A3 were marked and on behalf of the opposite parties Exs. B1 to B9 were marked.

THE District Forum held that due to freezing of amount by the District Collector pending investigation, the first opposite party could not pay the amount, but issued a cheque in that regard for Rs. 1,47,000/ -, after deducting Rs. 13,000/ - towards lodging, boarding, coaching charges for one month. It further found that as could be seen from Exs. B1 and B2 the complainant was informed that the college did not have the permission, but yet to receive the permission from the Indian Medical Council and the complainant took the risk and executed a bond to the effect that he is taking the risk in joining the college pending obtaining of permission. Since the amount is available and the same could not be refuded due to freeze, the District Forum held that the complainant is not entitled to any relief and as the amount could not be received by the complainant due to the circumstance beyond the control of the opposite party No. 1, it dismissed the complaint. Aggrieved by the said order, this appeal is preferred by the complainant.

IT is submitted by the learned Counsel for the appellant that there is deficiency of ser vice on the part of the opposite party in admitting the students without obtaining requisite permission. Normally it should have been so. But in the instant case, as evidenced by Ex. B 1, the undertaking executed by the complainant and his father and also Ex. B2 the bond executed by the complainant it is clear that the complainant was informed that the opposite party No. 1 applied for permission and it is under process and that permission has not been received from the Indian Medical Council. Hence the opposite party No. 1 made it known to the complainant that permission has not yet been received and there is a risk involved in joining the college. Inspite of it the complainant joined the college on his own accord and executed Exs. B1 and B2, and hence there is no question of any mis -representation or unfair trade practice by the opposite party No. 1. Since they have made it clear to the complainant at the time of admission itself that permission has not yet been received and as the complainant agreed to take the risk on his own accord as evidenced by Exs. B -l and B -2, we are in agreement with the view of the District Forum that there is no deficiency of service on the part of the opposite party No. 1 as there is no mis -representation or unfair trade practice.

THE learned Counsel for the appellant cited before us the decision of the National Consumer Disptues Redressal Commission, Delhi in Akhil Bharatiya Grahak Panchayat & Anr. v. Secretary, Sharda Bhavan Educational Society & Ors., II (1994) CPJ 15 (NC). In the instant case, the opposite party society had permission to admit only 30 students. But it admitted more than 30 students and the complainants in that case being the students coming in 30 excess students admitted. After completion of D -Pharmacy course, the complainants have to wait for a period of two years to register their names to enable them to practise as there is no permission from the concerned authorities to admit more than 30 students in the institution. The National Commission held that as on the date when the complainants were admitted the college had only permission to admit 30 students. Since they admitted the complainants and ultimately the approval was given only some time in 1991 -92 as the complainants have to wait for a period of two years for registration of their names, it was held that there was unfair trade practice, as well as deficiency in service.

BUT in the said case admittedly the complainants were put on notice that the institution did not have permission to admit the complainant and that there is a risk involved in getting admission. But in the instant case as could be seen from Exs. B -l and B -2 the complainant was clearly put on notice that the first opposite party college applied for permission and yet to receive the same by the date of admission and the complainant having full knowledge of the situation and having accepted the same paid the requisite amount and got admission. Hence it cannot be said that there is any unfair trade practice or misrepresentation. The opposite party No. 1. has sufficient funds in the bank to refund the amount of Rs. 1,47,000/ - for which it issued a cheque which could not be encashed on account of freeze by the District Collector pending enquiry. Since the opposite party No. 1 is willing to refund the amount to Rs. 1,47,000/ - as and when the freeze is lifted, it cannot be said that there is any deficiency of service on the part of the opposite party.

SO far as deduction of Rs. 13,000/ - is concerned, we are in agreement with the District Forum that the said amount is reasonably deducted towards tuition fee, hostel and other expenses for one month of stay and study by the complainant in the institution. We are therefore in agreement with the District Forum that there is neither unfair trade practice nor deficiency of service on the part of the opposite parties. As and when the freeze is lifted, the first opposite party has to refund an amount of Rs. 1,47,000/ - to the complainant. We also wish to observe that the enquiry was started some time in February, 1993 and the amount of the first opposite party was frozen due to which the first opposite party could not refund the amounts to all the students even after a period of three years. We hope that the District Collector, Warangal will take appropriate steps for expeditious completion of enquiry.

THE appeal is accordingly dismissed. There shall be no order as to costs in this appeal. Appeal dismissed.