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2008(2) CPR 140
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA
Arun Kumar Goel,(Retd.) President and Mrs. Saroj Sharma, Member
Dr. Prem Seth & Anr. —Appellants
versus
Indira Gandhi Medical College and Hospital, Shimla & Anr. —Respondents
Appeal No. 221/2007 with Appeal Nos. 239/2007 and 240/2007
Decided on 20-3-2008
Counsel for the Parties:
For the Appellants:Mr. Sanjay Judge, Advocate.
For the Respondents: Mr. S.D. Vasudeva, ADA.
IMPORTANT POINT
Whereafter the complainant left the College and seat vacated by complainant was filed by Collegel/Institution, refund of amount deposited by complainant could not be denied on plea that prospectus and admission form provided for non-refund of the amount.
Headnote:Consumer Protection Act, 1986—Sections 12 and 17—Deficiency in service—Claim for refund of fee and charges deposited for the course of MBBS—Appellants in three cases applied for MBBS course under NRI quota and paid the amount in question—Appellant got admission in other College and left the opp. Party College mid way and applied for refund of amount—Refund of amount was denied in terms of the prospectus and clauses of admission form—District Forum accepted defence contention and dismissed complaints—Appeal—Against three seats vacated by appellants, three fresh candidates were admitted and they had paid full amount which had been charged from complainants—Whether respondents could be permitted and were legally entitled to refuse refund to appellants? No.
Held: In Our considered view answer would be in the negative. And if the argument of Mr. Vasudeva is taken to its logical end, it would lead to a very piquant situation which will only lead to one thing i.e. the undue enrichment of the State. On this basis the submission based on the above extracted terms of prospectus and condition from the admission form is also without any merit and is thus rejected. Respondents should not forget that it is not a private litigant. Providing education is one of the basic functions of the welfare state even under the scheme of Constitution of India, may be not the fundamental right, but it certainly is a part of the directive principles of the state policy, enshrined under the Constitution of India. (Para 11)
The terms of prospectus even if strictly applied to the facts of the present case as was urged by Mr. Vasudeva make those against public policy within the meaning of Section 23 of the Contract Act as those are unconscionable, unfair and unreasonable, therefore being opposed to public policy are void under the law of Contract. Concept of unconscionableness, unfairness, unreasonableness were dealt with elaborately in the judgment of the Hon’ble Supreme Court mentioned in the preceding para. We are further of the view that the conditions regarding non-refund of the fees based on the terms of prospectus, as well as the admission form were detrimental to the appellants. But as already observed they were in no win situation because only option open to them was to take it or leave it. (Para 15)
In this view of the matter the admission form in the facts and circumstances of this case is nothing but unconscionable contract between the State and its Medical College on one side and the appellants on the other. It hardly needs to be reiterated that the State in the peculiar circumstances of this case was in a superior bargaining position. As for MBBS course during the relevant year i.e. 2004-05, it was running two colleges imparting MBBS education. Thus on this ground also the terms of prospectus, as well as the conditions and declaration contained in the admission form is covered by Article 14 and have fair and just.
Last but not the least, all acts of the State have to be tested on the touchstone of Article 14 of the Constitution of India, which we are sorry to observe that they fail.
No other point is urged.
In view of the aforesaid discussions, all these appeals are allowed and as a result of it complaints filed by the appellants being
(a) Complaint No. 38/2005;
(b) Complaint No. 39/2005; and
(c) Complaint No. 41/2005, as filed before District Forum below are allowed.
Consequently the respondents are directed to refund the amount charged from the appellants by or before 30.4.2008 along with 6% interest from the date(s) when the fresh candidates were admitted after the seats were vacated by the concerned appellant in each appeal. It is, however, clarified that in case needful is not done on or before this date interest payable shall be 10% per annum from the date of payment/deposit whichever is earlier. Appellants are also held entitled for costs which are quantified at Rs. 1000/- each appeal to them. (Paras 17 to 19)
Result: Appeal allowed.
Arun Kumar Goel(Retd.) President—We have taken up these appeals together since identical questions of law and fact are involved therein.
2. Facts are by and large admitted and are being briefly noted which are relevant for the disposal of these appeals. Admittedly, appellant No. 2 in all the three cases applied for the MBBS course under NRI quota during the year 2004-05 in response to the prospectus issued by the Himachal Pradesh University, Shimla. Appellant No. 1 in all these appeals are the parent of respective appellant No. 2 in each appeal.
3. It is further admitted case of the parties that NRI seats are filled in on payment in foreign currency or its equivalent amount in Indian currency. All the three appellants were admitted after they had paid the amount in question.
4. It appears that these appellants got admission against free seats elsewhere, as such they left the college mid-way and requested the Authorities that they want to discontinue their studies to MBBS course against the NRI seats against which seats they were admitted on payment of the amount as aforesaid. Since appellants were leaving the college, they also applied for the amount which was deposited by them.
5. Now the dispute starts. Reason being that the appellants were insisting for refund of amount deposited by them, whereas the respondent taking shelter under the prospectus of the relevant year i.e. 2004-05, as well as the clauses of the admission form including declaration therein, were insisting that no refund is admissible.
6. It is also admitted case of respondents that against the three seats vacated by the appellants in these appeals, they admitted three fresh candidates and have charged money from them as was payable for the seats meant against NRI quota in full, i.e. the same amount as was paid by the appellants.
7. We have heard learned counsel for the parties and with their assistance have examined the record of these appeals. In the light of the above facts the only question needs determination by us is, whether the respondents can be permitted to claim that they are entitled to undue enrichment under the shelter of the terms of prospectus as well as the terms and declaration contained the admission form. District Forum below after placing reliance on clause 3 of the prospectus which is to the following effect dismissed the all 3 complaints, hence these appeals :-
Note : Should the last day fall on Sunday or a holiday the fees shall be payable on the next working day.
Fees once paid shall not be refunded but in the case of students who are prevented by illness or for other reasons beyond their control from attending the College in the year for which they paid usual fees, the Principal may direct that the whole or part of the amount of fees shall not be again paid for the year in which such students joined the College.
The student seeking admission first time to the hostel shall pay the room rent from the month of admission at the rate of Rs. 15/- per mensum along with the caution money of Rs. 150/- for admission to the hostel.
8. Similarly, while contesting these appeals Mr. Vasudeva laid great emphasis on the declaration given by both the appellants in these 3 cases. For ready reference declaration is also extracted hereinbelow:-
12. declaration by the applicant and the guardian:
(a) I declare that the entries made by me in the form are correct to the best of my knowledge. I am conscious that if any of the entries are found to be incorrect, my admission is liable to be cancelled.
(b) I have read carefully the Prospectus supplied by the University and I undertake to abide by the rules of the College/University.
(c) I hold myself responsible for payment of fees and other dues on the dates according to the schedule given in the Prospectus.
(d) My ward was never disqualified in any examination.
9. It was pointed out by Mr. Vasudeva that appellants cannot be allowed to wriggle out of the above extracted portion of the prospect
