KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.499/2017

JUDGEMENT DATED: 13.12.2022

(Against the Order in C.C.No.144/2015 of CDRF, Alappuzha)

PRESENT:

APPELLANTS:

(by Adv. S. Reghukumar)

Vs.

RESPONDENT:

JUDGEMENT

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

          The opposite parties in C.C.No.144/2015 of the Consumer Disputes Redressal Forum, Alappuzha (in short the District Forum) has filed the appeal against the order passed by the District Forum by which they were directed to refund the amount of Rs.75,000/-(Rupees Seventy Five Thousand) after deducting Rs.1,000/-(Rupees One Thousand) as service/processing/ administration charges with interest @8% per annum from the date of filing of the complaint till realisation.  They were also directed to pay Rs.2,000/-(Rupees Two Thousand) towards the costs of litigation.

          2.       The averments contained in the complaint in brief are as follows:  The complainant is an Engineering Student.  Complainant passed State Entrance Examination for Engineering in the year 2013.  As per the system prevailed at that time as per the preference of the student they have to make their option of the course and colleges.  The complainant put her first option as Mar Baselious Engineering College, the second option as Marian Engineering College and the third one as the St. Thomas College of Engineering & Technology, 1^st opposite party.  The Entrance Commissioner at first allotted a seat to the complainant for Civil Engineering at the 1^st opposite party.  As per the procedure to be followed the complainant has no other way but to join at the college of 1^st opposite party and as per the direction of the opposite parties the complainant remitted Rs.55,000/-(Rupees Fifty Five Thousand) as tuition fees and Rs.1,000/-(Rupees One Thousand) as admission fee.  Thereafter the Entrance Commissioner allotted a seat to the complainant at Marian Engineering College, Kazhakkoottam near to her residence.  The complainant approached the opposite parties and requested to return her certificate and the amount paid. T he opposite parties insisted that a letter as directed by them has to be given and the balance tuition fees of Rs.20,000/-(Rupees Twenty Thousand) has to be remitted for the same.  They agreed that if it has been done the certificates will be returned immediately and the amount will be refunded at the earliest.  The complainant has no other option, since the certificate was urgently needed for joining the other college.  The complainant joined the said college and is continuing her studies.  Thereafter the complainant has made several requests to refund the amount of Rs.76,000/-(Rupees Seventy Six Thousand).  Even though the opposite parties agreed to refund the amount they were delaying the matter.  Alleging deficiency in service on the part of the opposite parties the complaint is filed.

3.       The opposite party filed version raising the following contentions: The averment that the complainant has right to get higher option in the second allotment is true.  But in the second allotment also the complainant was allotted admission with the 1^st opposite party.  The first allotment was on 03.07.2013 and the second allotment was on 13.07.2013.  On both occasions, the complainant got allotment to the 1^st opposite party.  Thereafter the complainant all by herself wanted to discontinue and on 18.07.2013 gave a discontinuing request to the 1^st opposite party and as per Government Rules (Clause 12.2 of prospectus) the complainant remitted the entire balance and received back her T.C. and all relevant documents fully understanding and knowing the rules.  The complainant had never made any request or demand of refund of the amount to the opposite parties. The complainant has not made any complaint to the Admission Advisory Committee in the Academic Year or till date.  The opposite parties are not legally bound to pay back the amount to the complainant.  There is no deficiency in service on the part of the opposite parties.  There is no cause of action for the complainant against the opposite parties and the alleged cause of action is false.  The complainant is not entitled to get any of the reliefs prayed for.

          4.       The Power of Attorney Holder of the complainant was examined as PW1 and the friend of her father was examined as PW2.  Exhibits A1 to A9 were marked on the side of the complainant. On the side of the opposite parties RW1 was examined and Exhibits B1 to B5 were marked.

          5.       Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order.  Aggrieved by the order passed by the District Forum the opposite parties had filed the appeal.

          6.       Heard the counsel for the appellants and the Power of Attorney Holder of the complainant who appeared in person.  Perused the records.

          7.       Parties are referred to according to their status/rank in the complaint.

          8.       There is no dispute to the fact that the complainant got admission for Engineering Course in the College of the opposite parties and she had remitted Rs.76,000/-(Rupees Seventy Six Thousand), but not continued her studies there.  Subsequently, the complainant joined the college near to her house and continued her studies.  Her claim for refund of the amount was rejected by the opposite parties.  According to the opposite parties, the second phase of allotment culminated on 17.07.2013 and the complainant gave Exhibit B3 letter requesting cancellation only on 18.07.2013, after the completion of the second phase of allotment.  So the Penal Clause 12.2.4(C) of the prospectus 2013 is liable to be invoked.  So the complainant is not entitled to get back the amount remitted by her.  Exhibit B5 is the prospectus.  As per Clause 12.2.3 in Exhibit B5 no refund of fees will be made to candidates who apply for Transfer Certificate/cancellation of admission under any circumstances after the last date of cancellation of admission notified by the C.E.E. and they will have to pay liquidated damages as stipulated under Clause 12.2.4.  As per Clause 12.2.4 of Exhibit B5 if any candidate admitted against “Government Seats” in Government/Aided/Government controlled/Self Financing/Private Self Financing/KAU/KVASU/KUFOS College discontinues the studies after the closing of the admission in the same academic year, to join other courses/colleges or for other purpose he/she is liable to pay liquidated damages of Rs.75,000/-(Rupees Seventy Five Thousand) for the courses other than MBBS/MDS.  The District Forum relying on Exhibit A9 found that the complainant applied for return of documents /certificates before the last date of cancellation of admission.  Exhibit A9 is the letter issued by the Controller of Entrance Examination.  In that letter it is stated that as per the order of the Hon’ble Supreme Court the last date for admission to the Engineering Courses is 15.08.2013.  Complainant applied for cancellation on 18.07.2013.  As per Exhibit A9 the last date for admission is 15.08.2013.  Considering all these facts the District Forum found that the complainant applied for return of the documents/certificates before the date of cancellation of admission.  The District Forum also found that the opposite parties have not been able to prove and they have not produced evidence or any document to show that the seat vacated by the complainant is still lying vacant thereby causing loss to them.  It is true that there is no ground/reason to interfere with the above finding of the District Forum.  But the question to be considered is whether the District Forum has jurisdiction to entertain the complaint and consider the grievances of the complainant and to pass orders.

          9.       The main contention raised by the appellants is regarding the maintainability of the complaint before the District Forum.  In the version filed by the opposite parties they contended that if the complainant has got any grievance she has to approach the Admission Supervisory Committee.  The counsel for the appellants submitted that the District Forum ought not have entertained the complaint since it has no jurisdiction to entertain and consider the complaint, as the complainant is not a consumer.  He produced the copy of the decision of the Hon’ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (2010) 11 Supreme Court Cases 159 wherein it was held that the respondent as a student is neither a consumer nor university is rendering any service to its students.  Hence Consumer Fora have no jurisdiction to entertain the complaint.  He has also produced the copy of the decision of the National Commission in Anurudh Tamrakar Vs. Global Engineering College, Jabalpur & Others III(2016) CPJ 230(NC) wherein it was held that it is settled law that the student is not a “consumer”.  The Consumer Court has no jurisdiction to entertain the case.  In the decision of the National Commission in Manu Solanki Vs Vinayaka Mission University I(2020) CPJ 210 (NC) it was held that education is not a commodity.  Educational institutions are not providing any kind of services, therefore, in the matter of admission, fees etc. there cannot be any question of deficiency in service.  Institutions rendering education including vocational courses and activities undertaken during process of pre-admission as well as post admission and also imparting excursion tours, picnics, extra co-curricular activities swimming, sports etc. except coaching institutions will, therefore, not to be covered under the provisions of the Consumer Protection Act, 1986.

          10.     Admittedly, the complainant is a student who got admission for Engineering course in the college of the opposite parties and remitted fees, but not continued studies there and joined in another college and pursued her studies there.  The prayer in the complaint is to direct the opposite parties, the educational institution to refund the fees remitted by her before the opposite parties.

          11.     In the light of the dicta laid down in the decisions stated above the complainant is not a consumer and the Consumer Fora has no jurisdiction to entertain and consider the complaint.  The District Forum ought not to have entertained the complaint or it would have dismissed the complaint, finding that the complaint is not maintainable before the District Forum since it has no jurisdiction to entertain the complaint or consider the grievances of the complainant, as the complainant is not a consumer.  The District Forum has no jurisdiction to entertain and consider the complaint and hence the order passed by the District Forum is not sustainable and is liable to be set aside.  We do so.  So the appeal is to be allowed.

          In the result, the appeal is allowed.  The order passed by the District Forum is set aside and the complaint is dismissed as not maintainable.  However, it is made clear that this order will not affect the right of the complainant to approach appropriate Authority/Forum or Civil Court for redressal of her grievances and the complainant is at liberty to approach appropriate authorities for redressal of her grievances, if she so desires.

          Parties are directed to suffer their respective costs.

          Refund the statutory deposit of Rs.25,000/-(Rupees Twenty Five Thousand) made by the appellants, to them, on proper acknowledgment.

SL