K.RAVINDRANATH KOTTOOR vs PRESIDENT, EXECUTIVE COMMITTEE, KEMPEGOWDA INSTITUTE OF MEDICAL SCIENCES

THIS complaint is filed by Sri K. Ravindranath Kottoor and his son Sri Vinayak Kottoor of Koramangala, Bangalore, against the President, the General Secretary, and the Principal of Kempegowda Institute of Medical Sciences, Visweshwarapuram, Bangalore (for short ''Institute'') alleging deficiency of service in connection with allotment of a first year MBBS seat.

THE facts of the case as set-out in the complaint are as follows : THE first complainant approached opposite party No. 2 Mrs. Vasanthi Shivanna for securing admission for a first year MBBS course in KIMS for his son on 6.10.1994 and on that occasion he was informed by opposite party No. 2 that Vinayak Kottoor will be given a seat if requisite admission fee is paid within a period of 10 days. He was also informed that the payment should be made in cash and no cheque or demand draft will be accepted. According to this instruction when complainant No. 1 met one Sri Narayana Gowda on 17.10.1994 he prepared a summary of the break up of the amount which showed that a sum of Rs. 16,26,964/- and another sum of Rs. 1,50,000/- amounting to in all Rs. 17,76,964/- to be paid as contribution to the Institute. THE said Sri Narayana Gowda thereafter took complainant No. 1 to two different Banks, one inside and the other outside the college campus, and prepared cash deposit challans on the basis of which the complainants paid the money to both these Banks. Sri Narayana Gowda however kept the counter foils of the challans with himself and when the complainants asked him to give a receipt they were told that an official receipt will be issued in due course. Immediately thereafter a sum of Rs. 5,24,000/- was paid to opposite party No. 2 for which no receipt was issued either on the spot or later. Since complainant No. 1 was in an anxiety to obtain admission to his son he also did not press for a receipt at that time. It is the case of the complainants that at the time of making payments complainant No. 1 had made it clear to opposite party No. 2 that Vinayak Kottoor had appeared for a common entrance test and in case he comes out successful the money paid will have to be refunded. It is stated that neither in the prospectus of the Institute nor in any other document of the Institute there is any condition which stipulate that the money once paid is not refundable. It is stated that opposite party No. 2 had in fact cited some cases where the money was refunded when the seat was surrendered.

It so transpired that Vinayak Kottoor passed the common entrance test and was allotted a seat at M.S. Ramaiah Medical College on merit basis on 12.11.1994. This fact was brought to the notice of opposite party No. 2 on 14.12.1994 with a request to refund the amount. It is stated that opposite party No. 2 informed complainant No. 1 that the Board will meet after the General Election results were announced and hence asked him to contact her after 15.12.1994. On 16.11.1994 she gave instructions to the college office to return the original certificates of Sri Vinayak Kottoor to enable him to produce them before the college which he was supposed to join. Vinayak Kottoor accordingly joined M.S. Ramaiah Medical College w.e.f. 21.11.1994. In this view of the matter it is stated that the opposite party Institute could not have included the name of Vinayak Kottoor in the list submitted to the University after 15.12.1994 and hence it is evident that the seat vacated by him cannot be said to have lapsed. It is stated that Vinayak Kottoor had not attended KIMS college even for a single day and as such there is no cause for the opposite parties to deny refund of the amount legally due back to the complainants. It is stated that complainant No. 1 contacted Mr. Guthala Gowda, President of the Institute to refund the amount, but he directed complainant No. 1 to contact opposite party No. 2 who was the General Secretary of the Vokkaligara Sangha. Accordingly when complainant No. 1 contacted opposite party No. 2, she denied having received any instructions from Sri Guthala Gowda and also did not take any positive action to refund the amount. It is stated that aggrieved by such an illegal manoeuvre on the part of opposite party No. 2 the complainants are compelled to approach this Commission for the redressal of their grievance.

THE opposite parties filed their objection on the following terms : (1) THE complainants are not consumers inasmuch as no service has been rendered to them. (2) THE first complainant''s son was admitted to the medical college and thereafter the complainants approached for refund of the amounts on the premises that the student had been admitted to some other college. It is not true that a sum of Rs. 23,00,964/- had been paid to the Institute as contended by the complainants. THEy had in fact paid only a sum of Rs. 16,26,964/- for which necessary receipts have also been issued. THE Hon''ble Supreme Court had allowed the opposite parties to admit 10% of the students for NRI/management quota. However there was shortage in the NRI students seeking admission. Hence O.Ps. were at liberty to admit any student against that quota. In the said quota Vinayak Kottoor was admitted. However after a month the complainants approached opposite party No. 2 to return the entire amount paid by them which opposite party No. 2 did not concede in view of the fact that the seat had already been allotted to complainant No. 2 and if the money is refunded the Institute will lose not only the student but also the money. THE opposite parties depended on the amount paid by the NRI students to run the Institute because 90% of the seats were allotted by the Government, 50% on merit basis and 40% on payment basis. Hence no lapses can be attributed to the opposite parties for denying refund since such refund would entail definite loss to the Institute. Complainant No. 2 had chosen not to attend the classes despite being admitted against a valid seat and that being so, the complainants are not entitled to any refund, particularly when the student had left the college voluntarily.

(3) After admission of the students to the college the management had forwarded a list of students to the University showing the names of the students who had been admitted to the college and had also remitted the requisite fee. Hence no stigma of deficiency of service can be attributed to the Institute.

For these and other reasons set-out in the objections it was prayed that the complaint be dismissed as motivated and is bereft of any merits whatsoever. Both parties have filed their affidavit evidence. THE first complainant has examined himself as C.W. 1 and was also cross-examined. On behalf of the opposite parties R.W. 1 Dr. K.M. Srinivasa Gowda, R.W. 2 Sri. T. Pilla Bhyrappa and R.W. 3 Smt. Vasanthi Shivanna tendered their oral evidence. Exs. C1 to C19 were marked for the complainants while the opposite parties relied upon Exs. R1 to R18. We have heard Mr. K.C. Shiva-subramanyam, learned Counsel for the complainants and Mr. A.S. Nagabushana Rao, learned Counsel for the opposite parties. Mr. Shivasubramanyam, while taking us through the facts of the case brought to our notice that during the relevant year, namely, in 1994-95 the Institute had 10% NRI/management quota out of a total number of intake of 120 seats. Vinayak Kottoor was a Canadian national who had opted for a specific NRI/management seat and on the promise that such a seat would be made available to him the payments as demanded by the opposite parties were made. The learned Counsel pointed out that in the initial stages the stand taken by the opposite parties was that Vinayak Kottoor was given a seat out of the 10% quota which was admissible to the Institute as per the decision of the Hon''ble Supreme Court. At the evidence stage however the opposite parties shifted their stand to contend that during the relevant year the NRI/management quota admissible to them was 15% and not 10%. In this connection the learned Counsel invited our attention to the evidence of RW1 and also to para 4 of the version. It was also pointed out that opposite party No. 2 who was the Secretary during the year 1994-95 had stated in para 13 of her affidavit that Vinayak Kottoor was admitted against NRI/management quota. The learned Counsel made it clear that the decision of the Hon''ble Supreme Court permitting 15% of NRI/management quota related to the year 1993-94 and not to the year 1994-95 as construed and acted upon by the opposite parties, which is a deliberate manoeuvre to provide a veneer to legitimize the deficiency they have perpetrated. In fact Exs. R6 to R11 shows clearly that the opposite parties had shown only 12 seats as NRI/management seats; nevertheless, in an effort to cover up, they had come out with an after-thought that according to them the quota permissible for 1994-95 was 15% and not 10%. Such a manoeuvre was sought by mentioning the name of Vinayak Kottoor under the backlog quota in Ex. R11 which only mocks at the earlier admission that the seat allotted to him was NRI/management seat. The money was in fact collected from the complainants on the specific promise that Vinayak Kottoor would be given a seat under the foreigners quota which is a NRI quota since he was a Canadian national.

THE learned Counsel further pointed out that according to the evidence of RW1 the marks card was returned to Vinayak Kottoor on 17.11.1994 who joined M.S. Ramaiah Medical College on 21.11.1994. It was pointed out that by the time the certificate was handed over, the last date for admission to 1st year MBBS was not over since Ex. C15 clearly indicates that the last date for admission with penal fee was 15.12.1994 as per the notification issued by the Registrar of Bangalore University. Hence the contention of the opposite parties that the seat went waste was evidently not a truthful version. According to Ex. R11 (Col. 15) two students had been admitted to the same class as late as 28.11.1994 which only showed that there was no wastage of seat on account of Vinayak Kottoor vacating his seat. Moreover it was pointed out by the learned Counsel that in Ex. R11 against Vinayak Kottoor''s name at Col. 19 no marks card or other document is shown as having been sent to the University, which only reflected the fact that the opposite parties knew that he was not getting a seat under any quota. THE learned Counsel also brought to our notice that in Ex. C19 Director of Medical Education had instructed the Secretary of the opposite party Institute to refund the admission fee paid by the complainants. However, the opposite parties have not complied with the direction on the premises that fees once collected cannot be refunded. R.W. 2 has admitted in evidence that there is no such term in the prospectus. But R.W. 1 says that such a term was displayed on the notice board. R.W. 3 has however stated that she has not put any such information on the notice board but it might have been put by someone else. She has however failed to identify such person during the course of the evidence. In the circumstances, the learned Counsel prayed that the sum of Rs. 17,76,964/- paid by the complainants may be directed to be refunded to them with interest. In support of his various contentions the learned Counsel also relied on the following decisions while summing up his arguments on the above lines. The learned Counsel for the opposite parties however contended that the complainant does not mention anywhere that a valid seat was not given to Vinayak Kottoor. The learned Counsel pointed out that when a valid seat was given to a student and thereafter when he does not choose to attend the classes, no deficiency of service could be attributed to the Institute. It was brought to our notice in specific terms that Vinayak Kottoor (complainant No. 2) had taken back his marks card before the list of candidates was submitted to the University and consequently he was the only candidate whose name was not approved by the University. The seat vacated by complainant No. 2 consequently fell vacant and if in such circumstances the money paid is refunded it would only entail in certain loss to the Institute which is not getting any assistance by way of grants from Government. Complainant No. 2, despite being given a valid seat, had chosen to leave the college on the alleged contention that he had secured a merit seat elsewhere; once the fees are paid they are not liable to be refunded under any circumstance. The fact that the fees paid cannot be refunded has specifically been notified on the notice board. This should have been gone through by the complainants before opting for a seat in the Institute. The learned Counsel argued vehemently that the complainants wanted a valid seat which has been duly complied with. The Institute was permitted to allot a seat under NRI quota or management quota or backlog quota to the students which are all valid seats and hence no deficiency of service could be attributed to the opposite parties. While summing up his arguments on these lines the learned Counsel also relied on the following decisions : (1) II (2000) CPJ 282 Tamilnadu State Commission (2) I (1993) CPJ 91 Gujarat State Commission. In the context of the diverse contentions raised by either side, the following issues are liable to be set down for consideration. (1) Whether both the complainants can be said to be consumers within the meaning of that expression under the Consumer Protection Act (for short ''the Act'') ? (2) Whether the complainants have established deficiency of service on the part of the opposite parties with acceptable evidence ? (3) What order ?

POINT No. 1 : One of the contentions raised by the opposite parties in the statement of objections filed by them is that it was the student Vinayak Kottoor who had paid consideration to the opposite parties and hence his father K. Ravindranath Kottoor had no locus standi under the Act to maintain a complaint. We have no hesitation to reject such contention outright since it is not the case of the opposite parties even remotely that it was his own money which Vinayak Kottoor had paid for securing admission to the 1st year MBBS course. This Commission had, by an order dated 26.4.1997, permitted Vinayak Kottoor to come on record as complainant No. 2 since he was the beneficiary of the service sought to be availed of the opposite parties by his father, the first complainant. The Hon''ble Supreme Court in Spring Meadows Hospital v. Harjot Ahluwalia through K.S. Ahluwalia & Anr., has held that even a member of the family cannot be denied the status of a consumer under the Act since it is a beneficial legislation which should receive a liberal construction. Under Clause (ii) of Section 2(1)(d), a consumer means a person who hires or avails of any services and includes any beneficiary of such services. The parents would come within the definition of consumer, having hired the services and the children would also become a consumer under the inclusive definition, being a beneficiary of such services. The ratio of this judgment is squarely applicable to the present case and hence we hold that both the complainants are consumers having necessary credentials to file a complaint under the Act. Hence we answer POINT No. 1 in the affirmative.

POINT No. 2 : The dispute raised by the complainants spawns among others, an important issue namely, what was the type of seat which was sought on behalf of complainant-2 to enable him to prosecute his studies in the opposite party Institute in the Ist year MBBS course ? According to the affidavit-evidence filed by complainant-1, during the course of enquiry he was informed by the opposite parties in October, 1994 that his son would be accommodated against an NRI/management seat if requisite admission fee is paid. During argument the learned Counsel for the complainants has made it clear that what was sought for from the opposite party Institute was a NRI/management seat and not a seat in any other category. It was stated emphatically that only on the promise of the management, particularly that of opposite party No. 2, that a valid NRI/management seat would be made available to complainant-2, requisite fees were paid to the Institute. Such a contention in fact has not been contested by the opposite parties. The stand taken by the opposite parties throughout the proceedings is that what was allotted to complainant-2 was a valid seat and hence there was no short-coming in their service. In the pleadings and oral evidence adduced in this case the bone of contention between the parties has been whether a valid seat was given to complainant-2 or not and it is on this specific point that the entire gamut of this case revolves. The complainants maintain steadfastly that what was given was not a valid seat, while the opposite parties are equally steadfast that what was given to complainant-2 was very much a valid seat and nothing lesser. In order to get an insight into the true nature of the dispute it is necessary to see in the first instance the extent of the seats admissible to the opposite parties for being allotted under NRI/management quota. Before examining this point from a proper perspective, it is however relevant to advert to the payments that has passed hands by way of consideration between the parties for the purpose of allotment of a seat to complainant-2. According to Ex. C15, the complainants have paid a sum of Rs. 16,29,976/- towards fees which has been acknowledged by the opposite parties under various receipts, from Exs. R1 to R5. The opposite parties have not denied receipt of these amounts at any stage of the proceedings. The contention of the complainants is that even though the opposite parties received such a large sums of money, which was in fact paid on the specific assurance that a valid seat would be given to complainant-2, the opposite parties had manoeuvred to give him a seat outside NRI/management quota and hence having gone back on their promise the amount is liable to be refunded in full.

In the context of such a contention it is necessary to ascertain in the first instance what was the actual quota of seats allotted to the opposite party Institute for the Ist year MBBS course during 1994-95. It is also necessary to see what was the actual NRI/management quota which was available to students like complainant-2 out of the total intake so allotted. Ex. R18 is a notification issued by Government of Karnataka on 9.8.1994 substituting Rule 12B of the Karnataka Selection of Candidates for Admission to Engineering, Medical, Dental Courses Rules, 1993, which reads as follows : "12B. Reservation of seats for non-resident Indian Candidates and others.-The management of any private aided or unaided institution, as the case may be, may admit (on the basis of merit). (i) non-resident Indians or foreigners to the extent of not more than ten percent of the intake; (ii) others to the extent of not more than five percent of the intake, determined for a course of study in an academic year : Provided that such admission shall only be against ''payment seats''."

According to this notification, a private institution like the opposite party Institute can allot not more than 10% of the intake to non-resident Indians or foreigners. The rule further provides that the Institute can also admit others who are not non-resident Indians or foreigners to the extent of not more than 5% of the intake.

IT has been admitted by R.W. 1, the Principal of the Institute during the relevant period, that during the academic year 1994-95 the sanctioned intake for the opposite party Institute for MBBS Ist year course was 120. According to this strength of intake, it was admissible for the opposite parties to allot 12 seats to non-resident Indians or foreigners under NRI/management quota and to allot 6 seats to others mentioned in Rule 12B(ii) reproduced above. However, it is the contention of the opposite parties that at the time when admission was given to complainant-2, the Institute enjoyed 15% NRI/management quota and not 10% of the intake as erroneously contended by the complainants. On this point R.W. 1 has, during the course of his cross-examination, answered a specific question as follows : "(Q) I put it to you that during the year 1994-95, out of 120 seats the management quota was ten percent. (A) IT was not ten percent according to our understanding. According to our understanding it was fifteen percent."

A similar deposition has been made by R.W. 3 Smt. Vasanti Shivanna also. xxx Not reproduced xxx She has amplified such an answer by a further deposition on the following lines : Xxx Not reproduced xxx These depositions clearly indicate that according to the opposite parties the NRI/management seat available to them during the year 1994-95 was 18 which approximate to 15% of the total intake. IT was argued before us that these 18 seats include the backlog quota which is permissible to be included under the overall 15% NRI/management quota and hence even though the amended Rule 12B stipulates 10% of the total intake, it excludes the backlog quota. As a result, when complainant-2 was given a seat under backlog quota, he was in fact being given a valid seat as approved by the Hon''ble Supreme Court. However, R.W. 3 has simultaneously spoken to on the following terms with regard to the notification issued by Government (Ex. R18) xxx Not reproduced xxx

IT is however curious to observe that R.W. 1 has stated in his deposition that he was not sure as to whether the decision of the Hon''ble Supreme Court permitting 15% of the management quota was not applicable to the year 1994-95. These depositions read together would indicate in no uncertain terms the contradicting perspective from which the judgment of the Hon''ble Supreme Court and the Government notification was interpreted by the management. According to opposite party No. 2, the Hon''ble Supreme Court has made it clear that NRI/management quota was 10% for the year 1994-95, but according to her it was exclusive of the backlog quota. However, opposite party No. 3 was not sure whether the decision of the Hon''ble Supreme Court permitting 15% of management quota was applicable to the year 1993-94 or 1994-95. These two were top level functionaries of the Institute during the relevant period, having highest academic and administrative responsibilities and hence when they read through the intention of the Hon''ble Supreme Court and the State Government differently, we are not in a position to ascribe much credibility to the evidence adduced by them. At this juncture it is relevant to see Ex. R6 which is a list sent by the Institute for approval of the NRI/management seats to the University for the year 1994-95. In the said list the number of seats given under NRI/management quota was 12 even though the caption indicated that the management quota was admissible at 15%. The name of complainant-2 does not appear in this list. However his name appears in Ex. R11 which is stated to be the backlog quota under which seats have been given to 8 students from Sl. Nos. 120-127. The name of complainant-2 figures at Sl. No. 124 of this list. It is however significant to note that in Ex. R11 there is a blank against the name of complainant-2 at Col. 19. This column is meant to show the types of certificates enclosed to the statement. It is the case of the opposite parties that even though the Institute had sent his name to the University, it was not approved by the University only for the reason that on the day the list was sent through the Director of Medical Education, the certificates of complainant-2 were not available as he had taken them back. The contention of the complainants on the other hand is that the name of complainant-2 in Ex. R11 was only a make-believe since the opposite parties knew that the University will not approve his admission since no valid seat had been given to him. To what extent such a contention is sustainable will be adverted to at later stage during the course of this judgment. It is relevant at this juncture to observe that the opposite parties have not made any reference to a backlog quota in their version or for that matter even in their affidavit. For the first time a reference to this quota has appeared during the course of evidence, particularly in the deposition of Smt. Vasanti Shivanna. Thereafter R.W. 1 has volunteered himself to say, during the course of his cross-examination, that though the intake includes management quota, it excludes backlog seats. In other words, according to him, in addition to 10 per cent NRI/management seat, the backlog quota also could be allotted by the management on par with NRI/management quota and between the two no difference whatsoever existed.

IN para 13 of the affidavit of opposite party No. 2 it is however clearly stated that complainant-2 was given a NRI/management seat. Such a deposition is supported by the evidence of R.W. 2 Sri Pillabrappa who has spoken to on the following terms : xxx Not reproduced xxx It is, therefore, evident from these depositions that what was in fact promised and sought to be given to complainant-2 was not a seat from the backlog quota but a specific seat from the NRI/management quota as desired by the complainants while paying the heavy admission fees. We see from the material placed on record that the contention that a seat under backlog quota was also a valid seat on par with NRI/management quota is not supported by evidence. IN fact, Ex. R18 does not mention anything about a backlog quota which is admissible to the opposite parties in addition to 10 per cent NRI/management quota approved by the Hon''ble Supreme Court for the year 1994-95. The concept of the backlog quota being a separate quota admissible in addition to the quota fixed under Ex. R18 is alien to the intention of the Government notification which is based on the order of the Supreme Court. The opposite parties have also not thrown much light on the genesis of this backlog quota, nor have they produced any documentary evidence to show under what circumstances a seat under the backlog quota has the same credential as a valid seat under the approved NRI/management quota. From the material placed on record by them we see precious little to equate a seat under the said quota with a seat under NRI/management quota. We are, therefore, not in a position to countenance the argument that giving a seat under this quota to complainant-2 is akin to giving a valid seat to him under the NRI/management quota as approved in Ex. R18. We are also not inclined to believe that by giving a seat in this category the opposite parties have not committed a short-coming in the manner of their performance after assuring the complainants of a valid seat under the NRI/management quota.

MR. Shivasubramanyam, learned Counsel for the complainants has brought to our notice that even though the opposite parties received the various payments from the complainants on 17.10.1994 they have issued receipts pre-dating them to 6.9.1994 with a view to suppress the fact that they were aware of the decision of the Hon''ble Supreme Court allowing them only 10 per cent NRI/management quota. Ex. R18 which prescribes 10 percent quota for the management to be given to NRI or foreigners on the basis of the decision of the Hon''ble Supreme Court was in fact issued on 9.8.1994 and hence even if there was any intention to pre-date the receipts with an ulterior motive, the fact remains that the said Government notification had been issued even earlier to the date to which the receipts were pre-dated. It is, therefore, not possible to believe that whatever be the modus operandi adopted by the opposite parties, they were unaware of the actual NRI/management intake admissible to them on the date on which complainant-2 sought for admission in the Institute. Hence we are of the view that when the complainants sought for a seat in the Ist year MBBS course, the opposite parties were well aware of the NRI/management quota admissible to them. Nevertheless, when they allotted a seat beyond the stipulated 10 percent of the total intake on the premises that the said 10% excluded the backlog quota, which was also admissible to them for allotment as a valid seat, they are guilty of perpetrating deficiency in service within the meaning of that expression under the Consumer Protection Act. One other aspect of the case on which arguments have been emphatically advanced by the opposite parties is that when complainant-2 left the Institute, the consequential vacancy had lapsed and in such a circumstance if the payments made by the complainants are refunded, it virtually results in avoidable loss to the opposite parties. Such a contention has been specifically taken in para 4 of the statement of objections, stating that when the Institute is dependent on the money collected by allotting seats under management quota for its maintenance, any loss of such revenue will only tend to adversely affect the running of the Institute. It is further averred that the seat vacated by complainant-2 has not been given to any other student and hence there is no scope whatsoever to return the money. We are however not convinced with such an averment since we see from Column 15 of Ex. R11 that 2 students have been admitted under the backlog quota on 28.11.1994 which is later than the date on which complainant-2 left the Institute. We however see some correction in the date mentioned in Column No. 15 against these two students; nevertheless, we will have to take the corrected date as the true date since Ex. R11 has been produced by the opposite parties and not by the complainants. Ex. R11, therefore, provides a sure indication that the seat vacated by complainant-2 had been allotted or rather it had not lapsed since the first seat given to someone else after complainant-2''s departure will have to be reckoned against the seat he has vacated. Hence the averment of the opposite parties that the seat has lapsed and consequently the complainants are not entitled to any refund has no merit in it. We have no reason to believe that the refund of monies paid by the complainants would result in ultimate loss to the opposite parties as contended by them.

Having come to such a conclusion, the only other point that needs a closer look is whether the opposite parties had made known in specific terms or at least given an impression to the complainants that monies once paid is not refundable under any circumstance. R.W. 2 Sri Pillabyrappa has stated in his evidence that a sum of Rs. 17,76,964/- has been received by the Institute from complainant-2 which includes donation, tuition fee for 5 years etc. This sum will have to be reckoned as the actual amount paid by the complainants for the purpose of this complaint since the complainants have also stated in their written argument that they are restricting their claim to this amount, having abandoned the claim for a sum of Rs. 5,00,000/- which is also alleged to have been paid to opposite party No. 2 for which no receipt is stated to have been issued.

THE case made out by the complainants with regard to these payments is that since complainant-2 had not attended the class in opposite party Institute even for a single day and as the seat vacated by complainant-2 had been allotted to someone else, they are entitled to refund of the whole amount. In her affidavit opposite party No. 2 has however stated that once the seat is allotted, there cannot be any refund which by extension would also mean that once the seat is allotted, no refund can be claimed even if the student has not attended any class. During the course of the proceedings a case has also been sought to be made out that since complainant-2 had left the Institute voluntarily, he is not legally entitled to any refund. However, the learned Counsel for the complainants was vociferous that such a contention has no basis since, the prospectus which is the comprehensive guide to prospective students and their parents in matters of admission, payment of fees, vacancy of seats etc. is silent about inadmissibility of refund, the opposite parties are estopped from making a motivated contention later on that no refund is admissible. In the context of such rival contentions it is apt to go through the deposition of R.W. 1, the Principal of the Institute, who has spoken to as follows : "I do not know if there was no indication in the prospectus that the admission fee etc. once collected will not be refunded under any circumstance."

In other words, he was not sure about the non-existence of a clause in the prospectus that fees once paid is not refundable. The final word on this point has however been said by Mr. Pillabyrappa, R.W. 2, when he deposed categorically that the prospectus does not contain such a condition. Such a deposition tends to support the contention of the complainants that the prospectus is bereft of any warning about non-refund of fees if the student leaves the college without attending classes.

IN the affidavit of opposite party No. 2 it is however mentioned that the information relating to non-refund is notified in the notice board. On this point the deposition of R.W. 1 is as follows : "I do not know if anything was reflected in the notice board to the same effect." (about admissibility of refund). In fact, opposite party No. 2 who was the Secretary during the relevant period has deposed at one stage that she has not put up such a notification in the notice board, but someone else has put it there. The Principal of the Institute, according to his admission, is not aware of such a notification on the notice board. The Secretary and the Principal are evidently the two authorities who should have known about the existence or otherwise of such an important information which is crucial to prospective students; but when both of them have not notified such information, we are constrained to believe that no such information was displayed on the notice board for the information of prospective students or their parents. If that be so, the argument of the learned Counsel for the opposite parties that the complainant ought to have gone through the information displayed on the notice board before decided upon seeking a seat is bereft of any merit whatsoever. Hence, in the ultimate analysis, it is evident that there was no warning to the complainants either in the prospectus or in the notice board that fees once collected is not liable to be refunded under any circumstances. Consequently, the opposite parties are not entitled to come up with a defence that it was within the knowledge of the complainants that if the student left the college midway after admission, no refund will enure to their benefit. Incidentally, it is not the case of the opposite parties that complainant-2 had attended any class. It is also not their case that he was expelled from the Institute on disciplinary grounds. If that be so, we see no merit in the argument that once the seat is allotted, no refund is admissible under any circumstance, particularly when such an information was not available to the complainants at the time of admission. We see from Ex. C19 that the Director of Medical Education had in fact issued instructions to the Secretary of the KIMS on 31.3.1997 to refund the admission fees to Vinayak Kottoor, which according to the learned Counsel for the complainants the opposite parties have not complied with even today. From the overall facts and circumstances of the case brought into being on record, we believe that the opposite parties were evidently seeking to appropriate the payments made by the complainants for illegal enrichment, despite the fact that an invalid seat had been allotted to complainant-2, contrary to his options. We are convinced from the material on record that the opposite parties knew that they were allotting complainant-2 an invalid seat.

BEFORE we conclude, we deem it necessary to observe that during the course of oral evidence the witnesses, particularly R.W. 1 and R.W. 3 were not open and forthright in their deposition. We had occasion to observe that at crucial stages they had bouts of memory lapses or pleaded ignorance of the issues with which they were supposed to be ordinarily conversant. For example, R.W. 1 who was the Principal of the college at the relevant period has stated that he did not know that there was no indication in the prospectus that fees once collected cannot be refunded. He also deposes that he does not know if anything was displayed in the notice board that the fees collected cannot be refunded. He was also not sure whether the decision of the Hon''ble Supreme Court permitting 15 percent of management quota was not applicable to the year 1994-95. Likewise, R.W. 3, who was the Secretary during the same period has also come up with similar answers during her cross-examination. For example, she has stated that she did not have the complete knowledge as to the name of the Bank to which the funds of the Institute are credited. On matters relating to money transactions she has deposed that such matters fell within the domain of the Accounts Department and hence it would be difficult for her to answer the questions.

THESE are the types of evidence that has no place when transparency and legality exists side by side. From the material placed on record, and in particular from the evidence let in by R.W. 1 and R.W. 3, we find that there was calculated efforts on the part of the opposite parties to deny the refund to which the complainants were legally entitled to. The omission to mention about non-refund of the fees in the prospectus could either be a genuine lapse or a calculated move; but the fact remains that an educational institution cannot be allowed to make a gain at the expense of a student. Beneath the properly orchestrated effort to present a veneer of administrative bona fides we find an equally well co-ordinated manoeuvre on the part of the opposite parties to deprive the complainants of the refund they are legally entitled to and hence we have no qualms about coming to a conclusion that the opposite parties have perpetrated deficiency in service within the meaning of that expression under the Act. In the result, we answer point No. 2 in the affirmative. Point No. 3 : In the view that we have taken above, the complainants are entitled to refund of the amounts paid by them at the time of admission. In this context it has to be observed that the opposite parties have not come up with any contention at any stage of the proceedings that complainant-2 has utilised any service of the opposite parties consequent on his admission to the college. It is also not their case that in the event of the dispute going against them, no refund of a particular portion of payment is permissible under law or under any specific contract entered into between the parties. The contention of the opposite parties ab initio has been that the entire payment made by the complainants is forfeited and no portion of it is refundable under any circumstance. When, however we reach a conclusion that there is no merit in such a contention, the logical corollary presenting itself before us is that the opposite parties are liable to refund the entire sum of Rs. 17,76,964/-, which R.W. 2 has confirmed as having been received from the complainants. This sum is payable with interest at 15 percent per annum from the respective dates of payment till realisation. We however feel that there is no good cause for the complainants to claim any compensation for mental distress, in the facts and circumstances of this case.

In the result, we make the following : ORDER The complaint is allowed. The opposite party Kempegowda Institute of Medical Sciences is directed to pay a sum of Rs. 17,76,964/- (Rupees seventeen lakhs seventy six thousand nine hundred and sixty four) to the complainants, together with interest thereon at 15 percent p.a. from the respective dates of payment till realisation. We also direct that a sum of Rs. 5,000/- (Rupees five thousand) shall be paid to the complainants towards costs in these proceedings. Complaint allowed.