CC No.356.2016

Filed on 02.03.2016

Disposed on.20.07.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 20^th DAY OF JULY 2017

CONSUMER COMPLAINT NO.356/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                              V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 02.03.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay compensation of Rs.1,57,000/- along with interest at 18% p.a., to return the original certificates and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Complainant was the student of the Opposite Party College for pursuing the studies in Hotel Management.  Bachelor’s Degree in Hotel Management for the academic year 2013-14 by payment of fees as detailed below:

The Complainant deposited the original certificates in Opposite Party College that the original marks card of SSLC/10^th Standard, original 1^st and 2nd PUC Transfer Certificate, caste certificate, income certificate etc.  Due to unavoidable circumstances, the student was discontinued the studies and due to financial problems, the fees could not be paid by the student.  The Opposite Party College is illegally withholding money as well as original certificates of the Complainant.  The Opposite Party is not justified in withholding the certificates.   Inspite of repeated visits and requests orally, the original certificates of the Complainant was not returned and refund the fees paid.  The college is not justified in retaining the fee as well as withholding the originals. The College is required to refund a sum of Rs.1,32,000/- as the services of the college was not utilized by Complainant along with interest at the rate of 12%.  The Complainant issued Legal Notice.  Inspite of Opposite Party fails to return the original documents and refund the fee.  Hence, this complaint. 

3. In response to the notice, the Opposite Party put their appearance through their counsel and filed their version.  In the version pleaded that the complaint is not maintainable and is liable to be rejected.  When the Complainant had entered into contract on 18.06.2003 seeking admission for the course in BHM, his parent had signed the application since the Complainant was minor then.  Any allegations of purported claim put forward in the course of the complaint alleging and contending that there has been an offence committed by invoking the provisions of Consumer Protection Act and the complaint is not maintainable.  The contention put forward by the Complainant that he has sought admission to the 4^th Year BHM Course for the academic year 2013-14 by paying 1^st Year fee of Rs.1,32,000/- is undisputed.  The Complainant sought admission by signing an application on 18.06.2013, there is declaration by the candidate as well as the parent/guardian to the effect that “I have gone through the instructions for admission carefully and undertakes to abide by all the conditions”.  Further, the parent has specifically sign the declaration clause, where in it is stated that, “I have known the financial obligation and I can afford to pay all the cost and undertake to pay tuition and other fees payable to the institution under the rules framed from time to time by the management.  Should my ward discontinue the course, I agree to pay the entire course fee before collecting the documents submitted to the college”. Due to unavoidable circumstances, the student was to discontinue the studies and due to financial problems, the fees could not be paid by the Complainant”. Admittedly the Complainant is the defaulter and has not paid the outstanding amount for the course to the Opposite Party-College.   “The student could not continue and hence, he discontinued the education in the Opposite Party esteemed institution”.  But, the alleged date of discontinuing of education is not mentioned.  The Complainant has suppressed the material fact that, the Complainant after getting the admission to the first year and did study both the semesters of the first year of the course and even appeared for the 1^st semester examination conducted by the Bangalore University, but remained un-authorized absent and subsequent years of the course,  without any due intimation to the Opposite Party–College, about his inability or incapacity to continue the course.   The Complainant has not approached the Opposite Party-College, any time to seek the original documents, but all of sudden, after almost 1 ½ years, got issued the 1^st Legal Notice dt.13.12.2015 with false allegation.  The Opposite Party-College had rebutted the allegations and suitably replied to the original 1^st Legal Notice, by reply notice dt.24.12.2015 and after clarification of the allegations and stating the fact, and having agreed to return the original documents to the Complainant, on proper requisition in writing, the Complainant, shot another notice 2^nd Legal Notice dt.15.01.2016 stated that “Since, the father of the student retired and could not pay the entire fees, none to support in the family and student could not pursue further studies”.  Further making additional false allegations stating that a written requisition was made way back in 05.02.2014.  Thus there are lot of contradictions and improvements to the allegations with malafide intentions to illegally extort the money from the Opposite Party College by false and frivolous case and to tarnish the image of the Opposite Party-College.  The Opposite Party-College, though normally collects payment of entire 1^st Year fee at once at the time of admission, had soft corner towards student/Complainant and on request given relaxation towards the payment of fee as and how it is convenient to him, and accepted fees in installments from the Complainant which is spread over a period of 6 months upto December 2013.  That clearly shows that the Complainant has studied and continued the entire course for the 1^st year comprising of 2 semesters, and it is pertinent to note that the Complainant has appeared for the 1^st semester examination, which was held in November 2013 and thereafter while studying 2^nd semester course paid the balance fee due of Rs.45,000/-, on 06.12.2013.  Thus it clearly shows that the Complainant has completed the 1^st year studies and any claim of refund of any of portion of the fee, is illegal, irrational and logical.   Under these circumstances, the complaint is liable to be dismissed. 
4. The Complainant, Joel Leo Mario filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party, the affidavit of one Sri.Abby Mathew has been filed.   Heard the arguments of both parties.

5.      The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
2. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):- Negative

POINT (2):-As per the final Order

REASONS

7. POINT NO.1:- On perusal of complaint and the version of the Opposite Party, it is not in dispute that the Complainant got admitted for Bachelor’s Degree in Hotel Management Course for the academic year 2013-14.  In the Opposite Party Institution, it is not in dispute that the Complainant has paid fee as under:

8. Further to substantiate his case, the Complainant in his sworn testimony, he has reiterated the same and produced the receipts. Under receipt No.11142 dt.16.07.2013, the Complainant had paid tuition fee of Rs.25,000/-.  Under receipt No.10977/- dt.18.06.2013, the Complainant had paid tuition fee of Rs.25,000/-. Under receipt No.11367 dt.17.07.2013, the Complainant had paid Rs.35,000/- this fee is towards uniform charges.  Under Receipt No.11254 dt.17.07.2013, the Complainant had paid Rs.2,600/- towards examination fee.  All these fees are with respect to 1^st semester under receipt No.10700 dt.06.12.2013, the Complainant had paid Rs.45,000/- this amount is with respect to 2^nd semester.  This evidence of the Complainant has not been challenged or disputed by the Opposite Party.  Therefore, it is proper to accept the contention of the Complainant that the Complainant admitted Bachelor’s Degree in Hotel Management for the Academic Year 2013-14 and paid total fee of Rs.1,32,000/-. 

9. It is the case of the Complainant that the Complainant deposited the Original Certificates in Opposite Party College at the time of admission i.e., the original marks card of SSLC, PUC Transfer Certificate, Caste Certificate, Income Certificate etc.  Due to unavoidable circumstances, the Complainant was to discontinue the studies and due to financial problems, the fees could not be paid by the Complainant.  The Opposite Party College is illegally withholding money as well as original certificates of the Complainant.  Inspite of repeated requests and demand made by the Complainant.  The Opposite Party Institution fails to refund the fee and also return the original documents deposited with the Opposite Party.  In order to substantiate this, the Complainant in his sworn testimony, he has reiterated the same.  In support of this, he has produced letter addressed by the Opposite Party to the Complainant it is dt.18.06.2013.  By looking into this document, it is very clear that the Opposite Party have directed the Complainant for producing the Original Marks Card, SSLC, Original Marks Card of PUC, Transfer Certificate, Caste Certificate and Income Certificate about the 1^st Year Bachelor’s Degree in Hotel Management. As per the direction, the Complainant have deposited all his original documents i.e., the Original Marks Card of SSLC, PUC Certificate, Cast Certificate and Income Certificate and also paid the fee.  This fact has not been denied or disputed by the Opposite Party.  Therefore, it is proper to accept the contention of the Complainant that the Complainant has paid a sum of Rs.1,32,000/- and also deposited Original Documents with the Opposite Party.

10. The learned Counsel for the Complainant argued that the Complainant due to unavoidable circumstances and financial problem was to discontinue the course and further he demanded to return all the original documents as well as refund of the fee, instead of refunding the fee paid by the Complainant.  The Opposite Party College is illegally withholding the original documents and unlawfully fails to refund the fee paid by the Complainant.   This amounts to deficiency of service on the part of the Opposite Party, but it is not proper to accept the argument put forth by the learned Counsel for the Complainant.  Since, even by looking into the allegations made in the complaint as well as the evidence placed by the Complainant.  It is definite stand taken by the Complainant that the Complainant has to discontinue the course due to unavoidable circumstances, but he never mentioned in the complaint nor in the evidence what is that unavoidable circumstances and another stand for discontinue the course is of financial problem.  Even to that effect absolutely there is no evidence.  On the other hand, even according to the evidence placed by the Complainant, the Opposite Party have given relaxation to the Complainant regarding the payment of fee.  This is very clear, as the evidence produced by the Complainant i.e., letter dt.18.06.2013 addressed by the Opposite Party to the Complainant.  In that letter, they have clearly mentioned that Rs.25,000/- as tuition fee towards the reservation of the seat for Bachelor’s Degree in Hotel Management for the Academic Year 2013-14.  The tuition fee for the BHM programme is Rs.95,000/- per year and required to pay Rs.25,000/- being part payment of the 1^st Semester tuition fee.  Even at the time of admission also he has to pay for the Uniform for practical classes, Tool kits, Journals, etc provided by the college and University registration fee etc, Rs.35,000/- at the time of admission. As per the direction of the Bangalore University, you are required to remit the fee at the time of admission.  In spite of this, the Opposite Party Institution give relaxation to the Complainant for paying fee. 
11. Even in the version, the Opposite Party is that the Complainant after getting the admission to the 1^st year and take a study both the semesters of the first year of the course and even appeared for the 1^st semester examination conducted by the Bangalore University, but remained un-authorized absent and subsequent years of the course, without any due intimation to the Opposite Party–College.  In support of this defence, Sri.Abby Mathew, Principal of Opposite Party Institution.  In his sworn testimony, he has reiterated the same and produced Bangalore University Statement of Marks Card.  As looking into this document, it reveals that it is with respect to Bachelor’s Hotel Management for the year of examination November 2013 and this marks card with reference to the Complainant.  By looking into this document, it is very clear that the Complainant appear for 1^st semester examination conducted by the Bangalore University through the Opposite Party Institution.  Since the Complainant has not successful the 1^st semester.  This is clear that in the result mentioned as reappeared, from this evidence it is very clear that the Complainant appear for first semester examination.  Since he was not successful in that examination, for that reason, he want to discontinue this course and taking advantage of that he has claiming falsely that the Opposite Party was illegally withholding the original marks card and fails to refund the fee collected by the Opposite Party Institution.  Furthermore, absolutely there is no evidence to believe the contention of the Complainant that the Complainant had made repeated requests and demand, except issuing Legal Notice dt.13.12.2015 to this legal Notice the Opposite Party have given proper reply.  From this evidence placed by the parties, it is crystal clear that the Complainant after admitting the course for Bachelors of Hotel Management in Opposite Party Institution he was attended 1^st year course and appear for 1^st semester examination admitted by the Bangalore University.  Since he was not successful in that 1^st semester examination, due to this only he was to discontinue the course for not any other reason.  If at all, the Complainant was to discontinue the course, he ought to have pleaded in his complaint proper reason but not vague saying that due to unavoidable circumstances.  Therefore, absolutely there is no deficiency of service on the part of the Opposite Party.  Since, the Opposite Party have not illegally retained the fee paid by the Complainant or illegally withholding the originals.  Therefore, the Complainant fails to prove the allegations that there is deficiency of service on the part of the Opposite Party.  Hence, this point is held in the Negative. 

12. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is dismissed.  No cost.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 20^th day of July 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Joel Leo Mario, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of receipt of payment of fees
2. Communication issued by the Principal dt.18^th June 2013
3. Copy of the Legal Notice
4. Copy of the Reminder Notice issued by the Complainant
5. Copy of Newspaper Article dt.23.01.2016 in Bangalore Mirror
6. Copy of the Requisition Letter of Principal

Witness examined on behalf of the Opposite Parties:

1. Sri.John Noronha, Principal, on behalf of the Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

1. Application dt.06.12.2003
2. 1^st Semester Marks Card dt.18.09.2014
3. Reply Letter dt.24.12.2015 along with Acknowledgement
4. Reply Legal Notice dt.15.01.2015
5. Postal Acknowledgement. 

       MEMBER                                                                      PRESIDENT