Sonal Matapurkar vs S Nigalingappa Institute Of Dental Science

THESE three Original Petitions raise identical questions of facts and law and are being disposed of by a common Order.

THE facts in brief necessary for the disposal of these complaints may be noticed. Sri Hasanamba Education Trust (Registered), the 2nd opposite party, established in the year 1991 - 92 Sri S. Nijalingappa Institute of Dental Science, Vidyanagar, Hassan, the 1st opposite party (for short called college). The Government of Karnataka by its letter dated 24.9.91 to the University of Mysore recommended grant of affiliation to the 1st opposite party. The opposite par ties issued -a prospectus for the year 1992 -93 and also issued an advertisement in all leading daily newspapers offering admissions in B.D.S. Course commencing from August, 1992. A copy of the prospectus is Annexure 1 to the complaint and is admitted by the opposite parties. The complain ants allege that they applied for admission in the B.D.S. Course, being eligible and completed all requisite formalities and made the deposits and paid the fees as detailed in Schedule -A separately attached to each of the complaints. It is alleged that at the time of admission, the complainants were assured by the opposite parties that the College is fully equipped with library, laboratories, anatomy museum, medical appliances and instruments, hostel accommodation duly furnished, well qualified teaching staff as mentioned in the prospectus and has recognition from the State Medical Council as well as the Dental Council of India, New Delhi. It is further alleged that the opposite parties in all admitted 84 students, all on the basis of donations and exorbitant fees in the Dental Course commencing in July, 1992, while the sanctioned seats were only 25 and a temporary permission was granted later for 40 seats only. It is further alleged that in the end of session for the year 1992 -93 the opposite parties Held the pre -university examination of all the students in phases on the basis of which every student of the Dental Course including the complainants were fully assured by the opposite parties that all the 84 students of the First Year Dental Course would appear in the final examination of the University for First Year Dental Course to be Held in July, 1993. The complainants state that they were shocked to know that they have not been allowed to appear in the University examination due to be Held on 16.7.93. The complainants and others filed writ petitions in the High Court of Karnataka at Bangalore with a petition for directions to provisionally allow the complainants and others to appear in the First Year Dental Course University examination, but the said permission was refused by the High Court for the reason that the opposite parties had admitted 44 more students than the sanctioned strength illegally and unauthorisedly. We will notice the proceedings in Courts later. The complainants alleged that the opposite parties fraudulently induced the complainants and others to seek admissions and collected the donation fee, college dues, registration fee, hostel fee from the date of admission till about September, 1993. The complainants further allege that they had to incur further expenses in the purchase of medical books necessary for studies, instruments required for attending the practical classes and on travelling from their places of residence to Hassan and back. The complainants allege that they have suffered mental torture, financial loss, harassment due to the acts of omission and conduct of the opposite parties and those acts/omissions amount to deficiency in service. Each of the complainants claim a compensation of Rs. 24,60,400/ - under various heads.

ON being noticed the opposite parties filed their written version. It is admitted that the Government of Karnataka vide its letter dated 24.8.91 recommended grant of affiliation to Sri S. Nijalingappa Institute of Dental Science at Hassan and that the University of Mysore granted permanent affiliation to the said College vide its order dated 2.7.92. It is pleaded that the 2nd opposite party has invested over two crores to establish proper infrastructure and other facilities to maintain high standard of Dental Education as required by the Dental Council of India, that the College is well equipped with all laboratory facilities and has qualified and experienced teaching staff and that the Management has pro vided proper building and accommodation facilities for the purpose of laboratories, administration, library, theory class rooms, girls hostel and boys hostel etc. It is, however, admitted that the student strength sanctioned in the letter dated .2.7.92 is 40. It is pleaded that the opposite parties earlier wrote letter dated 25.5,92 to the Dental Council of India well ahead of the commencement of the academic year 1992 -93 apprising the Dental Council that the said college is the only Dental College in the Maland Districts of Karnataka like Hassan, Chikamanglur, Coorg, Mandya and that the College had enough academic infrastructure and facilities to cater to over 100 1st year B.D.S. students at a time and, there fore, the management requested the Council to fix the intake of the College as 100 for 1st year B.D.S. from 1992 -93. It is admitted that since the academic session was about to start the College admitted 44 additional students between 5.6.92 to 10.8.92 on a provisional basis. It is further pleaded that the Dentists (Amendment) Ordinance, 1992 was issued on 27.8.92 (the said Ordinance was replaced by Dentists (Amendment) Act, 1993 and under the said Ordinance/ the power to grant approval of additional intake of students was conferred on the Central Government. The opposite parties then addressed the letter dated 8.9.92 to the Joint Secretary, Ministry of Health and Family Welfare, Union of India to fix the intake of the college for 1st year B.D.S. course as 84 students and a similar letter was written to the Secretary, Dental Council of India and detailed reference is made in the written version to the correspondence exchanged in this regard. The opposite parties also state that the management and some of the students including the complainants moved the High Court of Karnataka by way of writ petitions and for grant of interim relief, that the learned Single Judge rejected the prayer for interim relief and that the Division Bench on appeal allowed the students including the complainants to appear in the examination to he Held in June/July, 1994. Ultimately, the Dental Council of India vide its Order dated 17.6.95 accorded approval for the admission of 44 additional students during the year 1992 -93. The Government of India also accepted the decision of the Dental Council to approve the admission of excess 44 students vide its order dated 15.12.95. It is pleaded that the complain ants did not avail of the approval or appeared in the next examination.

THE opposite parties, however, allege that the admissions were made on provisional basis and the complainants were. fully aware of the provisional nature of the admission as the complainants herein gave an undertaking to the College marked as Annexure R/T to their writ ten version. It is pleaded that the complainant Sonal Matapurkar. deposited Rs. 1,50,000/ - to wards non -refundable college improvement fund, similarly complainant Vishal Matapurkar de posited a sum of Rs. 1,50,000/ - towards the non refundable college improvement fund and the complainant Vandana Bansal deposited a sum of Rs. 1 lakh only towards the non -refundable college improvement fund. It is further pleaded that the complainants, Vandana Matapurkar and Vishal Matapurkar did not pay any amount to wards caution deposit money, however, the complainant Vandana Bansal deposited Rs. 12.000/ - towards the caution deposit money and that apart from this, the complainant paid only the regular fees as enumerated in the schedule annexed with the written version. It is pleaded that none of the complainants made any other payments either -to the 1st opposite party or to the 2nd opposite party and the allegations to the contrary in the complaint are vehemently denied. The opposite parties submit that they are not guilty of deficiency in service and are not liable to pay any amount to the complainants. The parties have not chosen to lend any oral evidence and have relied upon the pleadings supported by affidavits and the admitted documents. We have heard Mr. Sarvesh Bisaria, Advocate for the complainants and Mr. S.N. Bhatt, Advocate for the opposite parties and have gone through the records.

THE prospectus for the year 1992 -93, Annexure -1, (admitted document) contains the information, inter alia, to the affiliation, academic programme, admission, admission eligibility, eligibility for foreign students, registration of application, regulations and scheme of B.D.S. Examination, besides course contents etc. It is mentioned that the College is affiliated to the University of Mysore and approved by the Government of Karnataka and the College was started following the Dental Council of India''s letter No. DE -22 -90 -2027 dated 20th November, 1991. How ever, neither of the parties have filed the said letter dated the 20th November, 1991. The prospectus does not disclose the student strength or the total number of the approved admission strength for 1st year B.D.S. course. The opposite parties have placed on record the copy of the order for continuation of affiliation (Annexure R B at pp.104 -105) which shows that as per the recommendations of the University Affiliation Committee/ the admission strength for 1st year B.D.S. was fixed at 40. The opposite parties con cede that they admitted 44 additional students between 5.6.92 and 10.8.92. There is not an iota of evidence on record that the complainants were made aware at the time of the issue of prospectus or even at the time of admission of the total sanctioned student strength. There was no additional sanction either by the University of My sore or by the Dental Council of India granted to opposite parties for admission of 44 additional students for the 1st year Dental Course commencing from 1992 -93. There is also no material to show that the complainants were made aware of the opposite parties letter dated 25.5.92 (Annexure -R/C) to the Dental Council of India for refixing the intake of the College as 100 of the 1st year B.D.S. course from 1992 -93. Thus, there is a clear active concealment of fact by the opposite parties of the total sanctioned student strength. It is a case of suppressio veri. The concealment of the true nature of the extent of sanctioned student strength in the prospectus issued is practising fraud on the students seeking ad mission.

THERE is a bare assertion in the counter -version that the complainants herein gave an undertaking to the College that they were aware that the admissions were purely provisional. The copies of the undertakings have been filed but these are denied in the rejoinder. The so -called undertakings have to be read in the context of the prospectus issued. The prospectus under the heading "Registration of Application" provides: "The admissions are at the discretion of the management. All admissions are provisional and are subject to the final approval by the University." The undertaking reads as under: "I have read the Rules and Regulations pertaining to the course to which I have joined and I am aware that my admission to the course is purely provisional, subject to the final approval of the University after scrutiny." The prospectus does not specify that such an undertaking is required only from students who were seeking admissions in excess of the sanctioned strength. The inference is irresistible that such undertakings must have been taken from the 40 students also, as the scrutiny had to be carried out by the University before giving final approval to admissions. The scrutiny by the University is for the purpose of approval of the admission in relation to the admission eligibility and cannot be construed only by the sanctioned strength. It is thus clearly established on record that the opposite parties knowing fully well that there was no additional sanction either by the University of Karnataka or by the Government of Karnataka or by the Dental Council of India admitted 44 additional students for the 1st year Dental Course during the year 1992 -93. The Dental Council of India, when it became aware, issued a public notice to the effect: Any persons who establishes a Dental College for Dental Courses or any Dental Institution which increases the admission capacity without the previous permission of the Central Government/Dental Council of India are hereby warned not to advertise or admit students otherwise they will be liable to action as warranted by law. This is in public interest.

THE sanction letter issued by the Dental Council of India later also reflects the unauthorised act of admissions by the opposite parties. The Dental Council of India granted a one -time exemption for the 44 students who were admitted in excess of the sanctioned quota during the academic year 1992 -93. The complain ants could not avail of this concession as in the meantime they joined Dental Course in other recognised Dental Colleges but this does not mean that the complainants condoned the negligence or deficiency in service on the part of the opposite parties. The letter reads as follows: "Please refer to your letter dated 23.5.95 on the above subject. Since your college is already an established Dental College with 40 admissions and the excess admission of 44 was made prior to 1.6.92, which was before the Dentists Amendment Act, 1933 came into force, your request to approve the excess admission has been examined and order issued. In order to avoid hard ship to the students, the excess admission of 44 made during the year 1992 -93 is approved as one time basis, after taking note of the report of the Council''s inspections and the order of the Karnataka High Court as well as Supreme Court. You are hereby warned not to make any admission in excess of the sanctioned in take in future without the prior sanction of the Government of India/Dental Council of India."

IT is manifest that the admission of 44 additional students was by wrongful representation or active concealment by the opposite parties that the College was authorised to make these admissions being affiliated to the University of Mysore and approved by the Government of Karnataka. The opposite parties fraudulently suppressed the vital information from the complainants that their admissions were outside the sanctioned student strength of 40 numbers. Deficiency in service as defined in Section 2(g) of the Act means: "Any fault, imperfection, shortcoming or inadequacy in the quality, nature and man ner of performance which is required to maintain by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service." The concealment of the true nature of the extent of sanctioned student strength in the prospectus issued is practising fraud on the students seeking admissions and thus, there is a clear deficiency in service within the scope and ambit of the Act. We may also briefly notice the proceed ings in the Courts filed by the opposite parties as well as the 44 students. The 44 students who were admitted to the 1st year B.D.S. Course for the academic year 1992 -93 were not permitted to take the 1st year B.D.S. examination which was then in the offing on 16th July, 1993 and they moved the High Court by writ petitions. It is obvious that the complainants became aware at that time of the unauthorised admissions by the opposite parties. The learned Single Judge be fore whom the Writ Petitions came up for hearing rejected the prayer for interim relief after holding that the Writ Petitioners admitted to the 1st year B.D.S. Course by the opposite parties were in excess of the permitted quota of 40 students and so they were as good as students of unrecognized institutions and could not be al lowed to take up the examinations pending Writ Petitions. The Division Bench of the Court before whom the appeals were filed by its order dated 15.7.93 rejected the request of the 44 students. A supplementary examination was due to be Held on 15th January, 1994. The Writ Petitioners again approached the High Court. An interim order was made on the 12th January, 1994 directing that the 44 students including the complainants were to be permitted to appear in the examination to be Held in June/July, 1994. The Dental Council of India filed a Special Leave Petition before the Supreme Court being S.L.P. No. 12068 12112 of 1994 and an ex -parte stay of the order of the High Court dated 12.1.94 was granted by the Supreme Court in its order dated 1.9.94. Subsequently, the Dental Council of India granted special permission to accommodate additional students admitted during the year 1992 -93 in the College. The .Special Leave Petition was finally dismissed on 10.7.95 being infructuous. The Supreme Court referred to the letter, quoted above, but expressed no opinion on the merits of the case. The filing of the Writ Petitions by the complainants cannot be construed that the complainants were made aware at the time of the issue of the prospectus or even at the time of the admission of the total sanctioned student strength. The filing of the Writ Petitions by the complainants was only with a view to save one academic year, when they were not permitted to take the 1st year B.D.S. examination which was then in the offing on 16th July, 1993.

THAT takes us to the consideration of the question as to quantum of compensation for the loss suffered by the complainants due to the negligence and deficiency in service of the oppo site parties. The complainants alleged that they suffered immense mental torture which is irreparable as well as the financial loss as the complainants were not allowed to sit in the 1st year University examination only on account of the fraud played by the opposite parties who extracted money by illegal means after inducing the complainants and their parents. The details of the compensation that is claimed for the mental torture and the financial loss have been mentioned in the Schedule ''A'', separately attached to each of these complaints. The complainants have not led any evidence oral or documentary to substantiate the alleged admission expenses/ hostel expenses, college expenses, personal expenses or miscellaneous/ other expenses and additional expenses for further admission. There is also no evidence on the record as to the damages claimed for mental torture as Rs. 7 lakhs and career loss as Rs. 5 lakhs. The complainants have only placed on record some receipts as Annexure -II to each of the complaints. The opposite parties have admitted the payments as mentioned in the earlier part of the order. They have also filed a statement showing the amount collected from the complainants towards the College fees, management fee, refundable caution deposit and contribution to development fund. These are as follows: KUMARI VANDANA BANSAL College Fee Rs. 5/675/ -* vide Rt. No145 dated 8.8.92 Management Fee Rs. 7/925/ vide Rt. No. 143 dated 8.8.92 Hostel Deposit Rs. 3000 vide Rt. No. 233 dated 20.8.92 Refundable Deposit Rs. 12000 vide Rt. No. 30 dated 5.8.92 Development Fund Rs. 50,000 vide Rt. No. 42 dated 7.8.92 Development Fund Rs. 50,000 vide Rt. No. 73 dated 20.8.92 * Eligibility Fee of Rs.600/ - directly remitted to the Mysore University by the candidate. xxx xxx xxx KUMARI SONAL MATAPURKAR College Fee Rs. 6175 vide Rt. No. 182 dated 8.8.92 Management Fee Rs. 7925 vide Rt. 180 dated 8.8.92 Hostel Deposit Rs. 6000 * vide Rt. No. 289 dated 16.4.93 Development Fund Rs. 1,50,000 vide Rt. No. 117 dated 7.11.92 *This amount includes the Hostel Deposit of the Vishal Matapurkar xxx xxx xxx Mr. VISUAL MATAPURKAR College Fee Rs. 6,175 vide Rt. No. 183 dated 8.8.92 Management Fee Rs. 7,925 vide Rt. No. 179 dated 8.8.92 Development Fund Rs. 1,50,000 vide Rt. No. 118dated7.11.92 16. An extract of the fee details pertaining to the academic year 1992 has been filed. We proceed to assess the amount paid by the complain ants on the basis of the admission of the opposite parties contained in these extracts. This is the amount of the actual loss suffered by the claim ants for the infructuous expenditure incurred by them due to the negligence and deficiency in service of the opposite parties in admitting students far in excess of the sanctioned strength. The complainants are entitled to the refund of the said amount by way of compensation for the loss suffered by the complainants due to the negligence and deficiency in service of the opposite parties. The amount will also carry interest @ 18% p.a. from the date of the receipt of the amount of the opposite parties and till the date of the payment. The quantum of damages and the loss suffered had to be established by cogent and convincing evidence but the claimants have failed to substantiate the same. Hence, no relief can be granted on that account. 17. Accordingly the complaints are partly allowed. Kumari Vandana Bansal is awarded a compensation of Rs. 1,28,600/ - Kumari Sonal Matapurkar is granted a compensation of Rs. 1,70,105/ - and Mr. Vishal Matapurkar is granted a compensation of Rs. 1,64,100/ - with interest at the rate of 18% per annum from the date of receipt of payment by the opposite parties till realisation of the amount by the claimants. The opposite parties are directed to make the payments within two months from the date of receipt of this Order. Each of the complainants are also awarded costs of Rs. 2,000/ - each against the opposite parties. Complaints partly allowed.