R. Lakshminarasimha Rao, Member:
1. Dissatisfied by the order of the District Forum, the appellant filed the appeal.
2. The facts of the case are that the respondent No. l a operating educational consultancy situated at Hyderabad, Andhra Pradesh, collects fees from the students and sends them abroad for higher academic studies to various Universities and also sends to respondent No. 1s University as its agent. Attracted by the advertisements made by the respondent Nos. 1 and 2 in the News papers and Television and as he was interested in pursuing his higher studies approached the respondent No. 1 and enquired about the fees structure and the details of the course i.e. Masters in Public Health and paid a sum of 8,200 English Pounds to the respondent No. l which is equivalent to Indian Rs. 7,30,000 and with reference to this two receipts one for 4,350 English Pounds vide No. 3392 dated 26.6.2008 and another for 3,850 English Pounds with receipt No. 3453 dated 22.7.2008 issued by respondent No. 1. The respondent No. 2 after the receipt of the money from the respondent No. 1 gave a letter dated 30.9.2008 that the appellant has been admitted to MSc. in Public Health and the duration of the said course is from September 2008 to end of April 2010.
3. The appellant went to the United Kingdom on receipt of the letter of admission from respondent No. 2. After reaching the University he found that neither the respondents University is recognized by Government of India nor the Degree of MSc in Public Health offered by respondent No. 2 is recognized by Medical Council of India and that the degree offered by respondent No. 2 is un-recognized and was just a scrap of paper. The appellant fell sick and hospitalized in United Kingdom after knowing the un-recognition of the degree offered by the respondent No. 2. The appellant made a number of requests to the respondent Nos. l and 2 in person and by telephone for the refund of fees, finally the appellant received e-mail from Miss. Cathy Lapwood, International Office Manager, University of Bedfordshire, Park Square, Luton, LUI 3 JU, United Kingdom that they were willing to refund a sum of 2,487.50 English Pounds as against the amounts claimed by the appellant. However, the appellant had not accepted the offer of the respondent for partial payment.
4. The respondent No. l resisted the case contending that the provisions of the Consumer Protection Act are not applicable to the facts of the case as the appellant is not a consumer under the Sub-section (ii) of Section 2(1)(d) of the Consumer Protection Act and the appellant had neither hired nor availed of any services from the respondent No. 1 for any consideration. All services provided by respondent No. l is provided to students completely free of cost. The respondent No. l provides services to the students without any consideration or charges. The bank drafts in the sum of 4,350 English Pounds and 3,850 English Pounds totalling to 8,200 Pounds were issued in the name of respondent No. 2 and were collected by respondent No. l for onward transmission to respondent No. 2. All payments made by the appellant were made to respondent No. 2.
5. The respondent No. l submitted that it is an agent of various foreign Universities including respondent No. 2. All payments were made by the appellant are received by the respondent No. 2. Respondent No. l had no other role in this regard except to send the bank drafts of 8,200 Pounds to the respondent No. 2. No refund can be attributed to respondent No. l as respondent No. l was only the âdisclosedâ agent of respondent No. 2. The provisions of the Contract Act, 1872, clearly provide that an agent is not liable for the acts of a disclosed principal subject to a contract to the contrary provided in Section 230 of Indian Contract Act. The liability if any, to the appellant was that of respondent No. 2. The agent of respondent No. 2 i.e. respondent No. l cannot be sued when the principal party i.e. respondent No. 2 has been disclosed to the appellant. The appellant was well aware of the fact that the M.Sc. in Public Health course is fully validated in accordance with the English Law. The appellant was not keeping well and to pursue treatment and medication for a minimum of one year he had to return to India and his student Visa was cancelled by the U.K. Authorities. Subsequently, his demand for re-admission was turned down by the respondent No. 2.
6. The respondent No. 2 filed counter contending that District Forum has no territorial jurisdiction over respondent No. 2, University of Bedfordshire, which is a Foreign University situated at Bedfordshire in the U.K., Sub-section (2) of Section 1 of the Consumer Protection Act, 1986. The entire cause of action in this matter arose in Bedfordshire in England outside the jurisdiction of this Forum. The appellant has filed only the covering page of the offer letter dated 27.6.2008 and has conveniently omitted the other pages thereof. The said offer letter, inter alia states that all contracts and agreements are governed by English Law and the jurisdiction of the English Courts. The appellant accepted the offer of respondent No.2 and enrolled for the M.Sc. Public Health Course with University of Bedfordshire, England, U.K. in September 2008 thus, signifying a concluded contract between the appellant and respondent No. 2. The contract was entered into, concluded and conducted solely in England. The respondent No. 2 submits that the Courts of India do not have the jurisdiction to deal with the claims raised by the appellant. The appellant is a student who had done his Graduation in dental science. The appellant expressed an interest to undertake Post Graduation studies in the U.K in a non-clinical course related to his bachelors degree. Subsequently, the appellant applied to three universities in U.K. University of East London, University of Dundee and University of Bedfordshire for a Master of Public Health Programme after counselling by respondent No. l. The appellants application was accepted inter alia by the University of Bedfordshire by its letter dated June 27, 2008 which set forth the terms of this offer of admission.
7. The appellant concealed both from the respondent No. l and respondent No. 2 and the British Visa authorities that he was suffering from a mental disorder known as âSchizophrenia for the last several years.
8. The appellant suffered a âSchizophrenia attack in the U.K. on or around December 2008. The appellant was taken in custody from the airport by the U.K. authorities and admitted to a Mental Health Agency establishment on December 27, 2008. He was treated for 8-10 days for his condition after which the Mental Health Agency of the U.K. recommended him to return to India to pursue treatment and medication for a minimum of one year. Subsequently, the U.K Authorities cancelled his student Visa as he could not continue his studies in the U.K. and the appellant returned to India on or around January 2009. On March 26, 2009 the appellant submitted to respondent No. 2 a âSuspension of Studies Form informing respondent No. 2 that he was withdrawing from the University on account of his mental illness. The suspension of studies application was not accepted by respondent No. 2 owing to the fact that more than half the course was already concluded, and the appellant was informed accordingly. The appellant thereafter addressed communication to respondent No. 2 and respondent No. 1 asking to re-continue his course in England, U.K. including letter, e-mails dated April 15, 2009 and July 15, 2009 wherein he has inter alia insisted that the respondent No. 2 admit him midway through the same course.
9. The appellant attended the University from September 2008 upto December 13, 2008 which is nearly a third part of the course and a total duration of about 82 working days. The tuition fee policy of respondent No. 2 clearly sets forth that no student shall be refunded any fees, or payment if he withdraws after more than 61 days of the course.
10. On compassionate grounds, respondent No. 2 choose to offer to the appellant a refund of the fees paid by the appellant in the sum of 2,487.50 English Pounds of the fees paid.
11. The appellant has filed his affidavit and the documents Exs. A1 to A11. On behalf of the respondent No. 1 Ms. Ruchika Castelino, Authorized Signatory and Director, and on behalf of the respondent No. 2 Ms. Catherine Jayne Wall, Indian Operations and University Solicitor filed affidavits and the documents, Exs. B1 to B27.
12. Dissatisfied with the award of 2,487.50 UK Pounds with interest @ 6% per annum, the complainant has filed the appeal contending that the appellant had paid 8,200 UK Pounds to the respondents and entitled to the refund of the same amount and that the course offered by the respondents MSc Public Health Courses is not recognized by the Government of India, Universities Grant Commission and Medical Council of India and that the respondents did not disclaim the course is unrecognized. It is contended that the respondents had not advertised that the courses offered by them are unrecognized. It is submitted that as per the circular issued by the Universities Grant Commission a student leaving the institute entitled to the refund of the amount paid by him minus Rs. 1,000 to be deducted towards administration charges. It is submitted that the appellant was in the UK for three months and returned to India for treatment as he fell sick and could not continue his studies with the respondent No. 2 University. It is contended that the respondents had not furnished details of break-up of fees in the prospectus and that they had collected the entire fees in advance which amounts to unfair trade practice.
13. The point for consideration is whether the appellant is entitled to the refund of 8,200 UK Pounds equivalent to the amount in Indian currency?
14. The appellant joined the respondent No. 2 University on information about the MSc Public Health Courses furnished by the respondent No. l. The duration of the course is one and half years. The appellant had paid an amount of 4,350 UK Pounds on 20.6.2008 and 3,850 UK Pounds on 22.7.2008 evidenced by the receipt bearing Nos. 3392 and 3453 respectively issued by the respondent No. l. The respondent No. 2 has addressed letter dated 30.9.2008 informing the appellant that the appellant was enrolled as full time student at the respondent No. 2 university for MSc in Public Health and the course commenced in September 2008 and will end with graduation in April 2010. The respondent No. 2 informed the appellant that he is entitled to receive any help with fees or a student loan from the British Government as also that the respondent No. 2 University was formerly known as the University of Luton.
15. The appellant was admitted to Central and North West London NHS Foundation Trust on 27.12.2008 and he was discharged on 6.1.2009 from the hospital. He was diagnosed with schizophrenia. The appellant attended the respondent No. 2 from September 2008 upto December 2008. The appellant returned to India and informed the respondent No. 2 in the month of March 2009 that he was going to suspend his study and requested for refund of the amount paid by him. The respondent No. 2 states that on compassionate ground, they had chosen to offer to the appellant a refund of the fees to the tune UK Pounds 2,487.50.
16. Against the order of the District Forum neither the respondent No. l nor the respondent No. 2 has filed appeal and thereby allowed the findings returned by the District Forum in regard to the jurisdiction, deficiency in service and their liability to become final. We need not dwell on these aspects considering the finality attained by the order of the District Forum. Insofar as the enhancement of the amount claimed by the appellant is concerned, the appellant paid UK Pounds 8,200 and the respondent No. 2 had agreed to refund the amount of 2,487.50 UK Pounds. As seen from e-mail sent to the appellant, the respondent No. 2 had made the calculations as follows:
|Tuition fee paid by student||:||8200|
|Commission paid to the agent||:||1522.50|
|Tuition fee for the 11 weeks|
|the Appellant stayed at the|
|At 290 per week of the 30|
|weeks Course period, for|
18. The learned Counsel for the appellant has relied upon the following decisions:
III (2009) CPJ 33 (NC) wherein the Honble National Commission held that the student who discontinued his studies after one year is entitled to refund of the money for the period not attended.
I (2009) CPJ 3 (NC). The National Commission held that in terms of the notice issued by the Universities Grant Commission, the universities and institutions should refund the fee of the student who had discontinued or withdrawn from the institute and secured admission in another institute.
In VII (2009) SLT 240=(2009) 4 SCC 473, the Honble Supreme Court held that a dental college which was not affiliated with the university nor recognized by the Dental Council of India has rendered deficient service by admitting the students to BDS course.
I (2009) CPJ 25 (SC)=II (2009) SLT 56=(2009) 10 SCC 313, wherein the Supreme Court referring to Sections l3(4-A), (4-B), (4-C), 12, 11, 14, 15, 25, Sch.II and Sch.II Pt. II of the Indian Medical Council Act, 1956 held that screening test to the persons who obtained medical qualification granted by any medical institution in any country outside India is mandatory to check large scale irregularities of commercialization of medical education leading to certification of ineligible doctors and so as not to let doctors with half-baked knowledge due to inadequate training or eligibility standards to treat patients in India.
In 2008 (4) CPR 414 (NC), the National Commission held that as per the public notice issued by the UGC, an institute cannot retain the tuition fee and it is liable to refund the amount with interest and costs. The National Commission held that the institute had not given details of break-up of fees in the prospectus, like the admission fees, tuition fees, library fees, hostel fees, boarding and lodging fees-extra curricular activities fees, laboratory fees etc., to ascertain what amount can be refunded and what cannot be refunded. It was held that the institute failed to file attendance register extract or muster rolls to prove their bona fides having provided requisite services.
19. In the case on hand also the respondents had not furnished the details of break-up fees in the prospectus. The respondents had not informed appellant or the other students about the registration and recognition of the course.
20. The learned Counsel for the respondents has relied upon the following judgments:
In World Tanker Carrier Corporation v. SNP Shipping Services Pvt. Ltd. and Others, reported in IV (1998) SLT 708=II (1998) CLT 139 (SC)=(1998) 5 SCC 310, a collusion occurred between a vessel and another vessel on high seas off the coast of a foreign country. Both the vessels were foreign vessels. The persons claiming ownership rights except a company registered in India were foreigners neither doing any business in India nor filing any liability action in India. In those circumstances, the Supreme Court held that Court in India will have no jurisdiction to try the matter. In the case on hand the respondent No. 2 University has been registering the students, collecting the fees from them through the respondent No. l. As such the ratio laid down in the aforementioned case is not applicable to the facts of the present case.
In ABC Laminart Pvt. Ltd. and Another v. A.P. Agencies, Salem, reported in (1989) 2 SCC 163, the Supreme Court held that excluding jurisdiction of one of the Courts by the parties and confining the jurisdiction to a Court having jurisdiction is permissible. The Apex Court held that where there may be two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen there within, if the parties to the contract agreed to vest jurisdiction in one such Court to try the dispute which might arise as between themselves the agreement would be valid.
In M/s. Angile Insulations v. M/s. Davy Ashmore India Ltd. and Another, reported in 60 (1995) DLT 522 (SC)=II (1995) BC 372 (SC)=AIR 1995 SC 1766, the Supreme Court held that parties to a contract may agree to vest jurisdiction in one Court when two or more Courts are competent to entertain the matter.
In Navdeep Singh v. I.I.T.T. College of Engineering, Village Pojewal, (2003-2) CXXXIV Dist, the Punjab Law Reporter, the Punjab and Haryana High Court held that the provisions contained in prospectus are binding on the parties and Court cannot issue direction which may result violation of the provisions of the prospectus.
In Dalip Singh v. State of Uttar Pradesh and Others, reported in IX (2009) SLT 167=(2010) 2 SCC 114, the Supreme Court had deprecated the abuse of process by the parties to the litigation who resort to falsehood and unethical means for achieving their goals.
In S.P. Cehngalvaraya Naidu (Dead) By LRs. v. Jagannath (Dead) By LRs. and Others, reported in II (1993) BC 546 (SC)=(1994) 1 SCC 1, the Supreme Court held that non-disclosure of relevant and material documents with a view to obtain advantage amounts to fraud and a decree obtained by fraud is to be treated as nullity and can be questioned in collateral proceedings.
In Central Board of Secondary Education v. Vineeta Mahajan (Ms.) and Another, reported in I (1994) CCR 102 (SC)=(1994) 1 SCC 6, in that case, a candidate was found to be in possession of papers relevant to the examination and it was held to be sufficient to hold that the candidate has used unfair means at the examination. The possession of the incriminating material was held to be not relevant whether the intention is bona fide or mala fide.
21. The ratio laid down in the aforementioned cases is in regard to dispute pertaining to the jurisdiction of the Court which is not relevant to the facts of the case since the respondent No. 2 conducted the transactions through the respondent No. l in India and the respondents had not challenged the order of the District Forum and allowed the findings of the District Forum in regard to the jurisdiction to become final.
22. A perusal of the calculations made by the respondent No. 2 to refund the amount to the appellant would show that the period of 30 weeks is contradictory to the period of course mentioned in letter dated 30.9.2008. In the letter the respondent No. 2 had specifically stated that the course would commence in the month of September 2008 and will end with graduation in April 2010. Thus in the light of contents of the letter dated 30.9.2008, the calculations made and sent through e-mail do not match to the period of the appellant stay with the respondent No. 2 University as also the remaining period of the course.
In any view of the matter the amount of 2,457.50 UK Pounds promised to be refunded to the appellant is not proportionate to the left out period of the course. The amount agreed to be refunded and directed to be paid by the District Forum is 2,467.50 UK Pounds. In the circumstances we are of the opinion that the appellant is entitled to and the respondents are liable to pay 3,000 UK Pounds as also the rate of interest granted by the District Forum is too low in the circumstances where the appellant was to return abruptly to India and could not have the opportunity to prosecute the course with the respondent No. 2 university. The promise made by the respondent No. 2 to refund 2,457.50 UK Pounds the appellant and the respondent No. 2 not keeping it despite courting an adverse order from the District Forum has to be considered while taking into account of the rate of interest at 6% per annum as awarded by the District Forum. In the circumstances of the case, we are inclined to enhance the rate of interest from 6% per annum to 9% per annum. Accordingly, the order of the District Forum is liable to be modified.
23. In the result, the appeal partly allowed. The order of the District Forum is modified. The opposite party Nos. l and 2 are directed to refund 3,000 UK Pounds payable in India currency of Rs. 2,54,538 as on today with interest @ 9% per annum from 26.9.2009 till payment together with costs of Rs. 3,000. Time for compliance four weeks.
Appeal partly allowed.