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Himachal Pradesh High Court · body

2001 DIGILAW 278 (HP)

BHARAT v. BABA MUNGIPA EDUCATION TRUST

2001-10-08

ONKAR CHAND THAKUR, PREM CHAUHAN, SURINDER SARUP

body2001
ORDER Justice Surinder Sarup (Retd.) President: 1. This complaint has been filed by one Bharat against six persons who have been arrayed as opposite parties. The prayer in the complaint is that he may be compensated for the loss that he has suffered qua his career, and also for the mental, physical and financial trauma suffered by him due to mis-representation of Baba Mungipa Education Trust opposite party No. 1 and the fraud played by the opposite parties on him, in terms of the order of the Gauhati High Court in the State of Assam. The total amount, thus, claimed in the complaint is Rs. 20,00,000/- alongwith interest 24% per annum with effect from 2.9.1992, on which date the cause of action allegedly arose to the complainant. 2. It has been stated in the complaint that he is a student residing at Solan in the State of Himachal Pradesh. He had his higher education from government College, Solan and as a student of that institution, he graduated with a Degree in B.Sc. from Himachal Pradesh University, Shimla. He, alongwith his father met opposite party No. 2 Dr. Om Prakash Sharma, projecting himself as the Chairman of the Baba Mungipa Education Trust, opposite party No.1, sometime in the middle of July. 1992 at New Delhi. The said Chairman informed the complainant and his father that a new Medical College had been sanctioned in favour of the Trust by the government of Tripura in the north-east of the country. He further informed that the . Trust in consequence thereof had decided to take a capitation fee between Rs. 5.00 lacs to 7.00 lacs from each desirous candidate/student for admission in the said Institution, and if the complainant was so interested, he should await and look for an advertisement in the newspapers, which would appear in the last week of July or 1st week of August, 1992, and meanwhile arrange for the funds of the capitation fee. The said Chairman also informed them that he has many friends in the State of Himachal Pradesh and he would visit Solan and Shimla in the last week of August/1st week of September, 1992 primarily for the purpose of admitting students in the proposed Medical College at Tripura. 3. The said Chairman also informed them that he has many friends in the State of Himachal Pradesh and he would visit Solan and Shimla in the last week of August/1st week of September, 1992 primarily for the purpose of admitting students in the proposed Medical College at Tripura. 3. In consequence of the advertisement purporting to be a notice in the newspapers dated 1.8.1992, the complainant applied for the application/admission form-cum-Prospectus of the said Medical College which was available at Tripura Bhawan, New Delhi, and the Chairman aforesaid was also camping there in connection with the admission. A copy of the advertisement and original prospectus have been annexed as Annexure C-1 and C-2 with the complaint. According to the complainant, he filled up the admission form and sent the same to the Trust of the opposite parties, alongwith declaration which was duly signed by him and his father. This was done in the middle of August. 1992 to the address of the Trust, in question, at Bhiwani in the State of Haryana. 4. Thereafter, he approached the Chairman Dr. Om Prakash Sharma at Bhiwani in Haryana as well as at Tripura Bhawan in New Delhi for further instructions in the matter. Ultimately, he was informed that the Chairman would himself be visiting Solan and Shimla sometime in the first week of September, 1992. At his instance and on his behalf, his maternal uncle had a talk with the Chairman regarding capitation fee/donation, in this connection in the last week of August. 1992. his father, namely, Dr. D.N. Kishore and his two maternal uncles met the said Chairman in the presence of one Dr. Ratinder Dutta. Director of Medical Services/Chief Advisor and Special Secretary (Health) Tripura Government at Tripura Bhawan, New Delhi. After negotiations, Dr. Om Prakash Sharma, Chairman, ultimately agreed to accept capitation fee/donation in the sum of Rs. 5.00 lacs on behalf of the complainant for his admission in the proposed Medical College at Tripura provided the amount was paid in lumpsum. Additionally he raised a demand of Rs. 30,000/- to be paid per annum. During this meeting the said Chairman showed his father and maternal uncles certain letters and other documents satisfying them and confirmed that the Trust was genuinely starting a Medical College in Tripura. This representation in his part bonafide led the father and maternal uncles of the complainant to believe him. 30,000/- to be paid per annum. During this meeting the said Chairman showed his father and maternal uncles certain letters and other documents satisfying them and confirmed that the Trust was genuinely starting a Medical College in Tripura. This representation in his part bonafide led the father and maternal uncles of the complainant to believe him. However, as it later transpired, the complainant was actually being trapped by the said Chairman Dr. Om Prakash into parting with such a heavy amount in hope of starting his Medical career through admission in the proposed Medical College. 5. Thereafter, in the first week of September, 1992, the two maternal uncles of the complainant alongwith some other local persons of Solan who were known to the said Dr. Om Prakash Sharma, as well as two sisters of the mother of the complainant, who came from Kullu alongwith part of the funds by way of loan, met the said chairman at Solan where he was paid the agreed amount totaling Rs. 5,30,000/- i.e. capitation fee/donation plus annual fee of Rs. 30,000/-, this payment was made partly by bankers cheques and partly in cash. In taken of having received the said amount of Rs. 5,30,000/-, opposite party No. 2 issued a slip by way of acknowledgement regarding the same dated 2.9.1992, a photo copy of which is Annexure C-3 with the complaint. 6. The opposite party No. 2 advised the complainant to immediately visit Agartala and he accordingly traveled all the way to reach there by the end of first week of September, 1992 in the company of his father. In reaching there, he discovered that except for him there was no other student and only one Shri S. Kumar, Executive Officer was present. He was asked to temporarily reside in the office room of the said Executive Officer while his father returned to Solan after few days. Despite the doubts in the mind of the complainant about the bonafides of the opposite parties, particularly the Chairman, the opposite No. 2 in the matter, he was constantly assured by Shri S. Kumar, Executive Officer that arrangements were being made to start the classes in the Medical College. Ultimately, in March, 1993, some staff was hired on salaries, the figures of which are not known to the complainant. Ultimately, in March, 1993, some staff was hired on salaries, the figures of which are not known to the complainant. According to the complainant, he kept on residing at Agartala from almost the beginning of September, 1992 till march, 1993. During this period, he was asked to pay hostel charges of Rs. 5,000/-, transportation fee from Hotel to college of Rs. 10,000/- an fee for library books, uniform etc. and in this manner, he incurred an expenditure of another Rs. 50,000/-. Ultimately, he was given a room in the Hostel in Mrach, 1993. a representation made by opposite party No. 1 in the Prospectus that there was a Hostel building in existence at the spot turned out to be false. Infact, the entire Prospectus was false and exaggerated. This led to the impression ultimately by the complainant and his relations aforementioned that a fraud had been played on them. 7. The complainant came to learn ultimately that the proposed medical College was neither affiliated to any University nor it was recognized by the Medical Council of India, although under the provision of medical Council Act, as amended by inserting Clause 10(a) therein, prior permission of the Government of India through the Medical Council of India was mandatory for any organization or Trust to start a medical College in the country. The complainant and other duped students subsequently learnt that the University and the State Government of Tripura had been seeking clarification/information regarding the establishment of the so-called Medical College by the opposite party No.1, which was neither replied to nor clarified. Ultimately, the State Government of Tripura finally informed the opposite party No. 1 i.e. the Trust to close down the so-called medical college vide its communication No. F-3 (2-115) - Plan/MS/93 dated 12.7.1993, and to vacate all the buildings which has been temporarily given to the so-called Trust by the State Government. Copy of the said letter is Annexure C-4 with the complaint. 8. In the above circumstances, some duped students moved a petition, in the Gauhati High Court, in which interim stay was granted, copy of which is Annexure C-5. No doubt, the Baba Mungipa Education trust was made a respondent in the said proceedings before the Gauhati High Court. Ultimately, that petition was disposed of by an order dated 16.5.1994. 8. In the above circumstances, some duped students moved a petition, in the Gauhati High Court, in which interim stay was granted, copy of which is Annexure C-5. No doubt, the Baba Mungipa Education trust was made a respondent in the said proceedings before the Gauhati High Court. Ultimately, that petition was disposed of by an order dated 16.5.1994. In view of the order of the Gauhati High Court dated 16.5.1994, a Special Leave Petition bearing No. 18168 of 1994 was moved in the Supreme Court of India, but the same was ultimately dismissed by the order dated 20.3.1998. 9. There was a number of meetings between the complainant and his relations i.e. maternal uncles etc. at Bhiwani with the opposite parties. Ultimately, in a meeting held on 7.12.1998, an assurance was given by them that they will take possession of the land offered by the Tripura Government and make out the deficiencies pointed out by the Medical Council of India, get the College inspected and thereafter start classes, but no action on this assurance was taken subsequently by them, they also refused to refund the capitation fee/donation to the complainant. 10. In para-1 of the complaint, it has been stated that two notices were served on the opposite parties by the complainant, one directly and the next one through his Advocate dated 27.7.1998 and 13.8.1998, copies of which are Annexure C-6 and C-7. Since nothing came out of the same, this led to the filling of the complaint on the twin grounds of deficiency in service and unfair trade practice. In para - 15 of the complaint, the break-up of the loss suffered by the complainant due to the actions of the opposite parties has been given and in this manner a total amount of Rs. 22,10,000/- has been stated, as being loss suffered by him, but he has restricted his claim to the round figure of Rs. 20,00,000/-, as aforementioned. The complaint is duly supported by the affidavit of the complainant himself. 11. 22,10,000/- has been stated, as being loss suffered by him, but he has restricted his claim to the round figure of Rs. 20,00,000/-, as aforementioned. The complaint is duly supported by the affidavit of the complainant himself. 11. A composite reply has been filed by the opposite parties in which the following preliminary submissions/objections have been taken; (i) that no complaint under the Consumer Protection Act, hereinafter to be called the Act is maintainable against an educational institution like the opposite party No. 1; (ii) that the cause of action relates to the State of Tripura and the complaint, if any, can only be filed there, hence this commission has no territorial jurisdiction in the matter; (iii) that the complaint is hopelessly time barred having been filed after more than 6years of the alleged cause of action; and lastly the amount clamed is below Rs. 5,00,000/-, thus, ousting the jurisdiction of this Commission for pecuniary reasons. This last preliminary objection appears to be on some mis-apprehension inasmuch as the total amount claimed in the complaint is Rs. 20,00,000/-, as already indicated above. 12. On merits, it has been admitted that the complainant purchased prospectus etc. Pursuant to the public advertisement, in other words, the offer of admission in the proposed Medical College at Agartala in the State of Tripura, has been admitted. It has also been admitted that the admission fee was paid by the complainant against regular receipts of the Institution, which according to the reply, have not been placed on the record. It has been stated that the institution is a registered Trust and no payment is received on its behalf except against a proper receipt. Although it has been denied that an amount of Rs. 5,30,000/-was taken from the complainant, on the very next breath it has been stated that the respondent cannot be made responsible for frequent visits volunteered by the complainant and his wards, in the enquiry for his career in their own interest without the knowledge or asking of the respondent. 13. As regards the recognition by the Medical Council of India, the stand taken in the reply is that the report of the Medical Council of India Obtained by the institution did not point out any deficiency, as the same was prepared after the institution deposited Rs. 13. As regards the recognition by the Medical Council of India, the stand taken in the reply is that the report of the Medical Council of India Obtained by the institution did not point out any deficiency, as the same was prepared after the institution deposited Rs. 2,00,000/- as its charges, which is evident from the letter dated 20.8.1997, copy of which is Annexure R-1 with the reply. The report of the medical Council of India dated 16.9.1997 has been placed on record vide its copy Annexure R-2. The stand taken in the reply is that the building could not be constructed by the respondents due to certain administrative reasons at the level of the Government, but the Trust management remained regularly and earnestly pursuing to materialize the possession of the land for the construction of the building, in view of the commitment of the Government which later was withdrawn by the Government itself due to political change or otherwise. 14. In para-8 of the reply, it has been stated that the College of the respondent-Trust was granted provisional recognition by the Syndicate of Tripura University pursuant to the report of the Medical Council of India, which was prepared after enquiry conducted by Medical Council of India following the directions of the supreme Court of India. A copy of the letter of the Registrar dated 25.9.1997 has been filed as Annexure R-3 in this behalf. However, the formal recognition to the institution could not be obtained due to the sole reason that the Trust could not construct its own building due to the fact that the land was not given by the government despite assurance. Copy of letter dated 3.10.1997 issued by the Director, Health Services, Government of Tripura to the Trust management has been filed in this behalf as Annexure R-4. A copy of bank guarantee to the tune of Rs. 50,00,000/-as security to run the College, in question, which is dated 24.4.1997 is Annexure R-5. It has been admitted in the reply to this extent that the only deficiency of the College was that its building could not be constructed for reasons beyond the control of the opposite parties. A copy of bank guarantee to the tune of Rs. 50,00,000/-as security to run the College, in question, which is dated 24.4.1997 is Annexure R-5. It has been admitted in the reply to this extent that the only deficiency of the College was that its building could not be constructed for reasons beyond the control of the opposite parties. In para-9 of the reply, it has been stated that except for the period when the matter remained sub-judice before the Gauhati High Court and the supreme Court of India, the opposite parties have been vigorously pursuing the matter of taking possession of land as well as seeking recognition. Significantly, in the same para, it has also been stated in the reply that the pleas of the complainant as to the refund of money are wrong and baseless since he has not leveled any allegations specifically on account of studies, teaching not imparted to him, which shows that the Institution of Trust with its adequate infrastructure staff and study material has provided adequate facilities to its students. Therefore, according to the reply, whatever fee was paid by the complainant against valid receipts of the institution are not liable to be refunded. 15. The receipt of any notice from the complainant alleged in the complaint has been denied, but the stand has also been taken that as per the amount of loss alleged to have been suffered by the complainant as stated in the said notice vide Annexures P-6 and P-7 would only made out a case for the complainant to approach the appropriate District Forum and not this commission. Any deficiency of service as alleged by the complainant has been denied. At the same time, it has been stated that the loss, if any, which occurred to him on account of closure of classes due to the order of the State Government was due to an act beyond the control of the opposite parties. The reply has been supported by the affidavit of Shri Om Prakash Sharma, i.e. opposite party No. 2. 16. Rejoinder has been filed by the complainant in which the submissions made in the reply have been controverted and the allegations made in the complaint have been reiterated. 17. Before taking up the merits of the complaint, the preliminary submissions/objections referred to in para-1 above need to be dealt with. 16. Rejoinder has been filed by the complainant in which the submissions made in the reply have been controverted and the allegations made in the complaint have been reiterated. 17. Before taking up the merits of the complaint, the preliminary submissions/objections referred to in para-1 above need to be dealt with. It would be pertinent to state here that initially we have heard the learned counsel for both the parties in respect of the preliminary objections raised in the reply of the opposite parties and referred to above on 20.3.2001 and since we were of the view at that stage that the said objections go to the root of the matter, we deemed it appropriate to decide on the same before proceeding to the merits of the case, subject to the decision of the preliminary point referred to above. Hence, orders were reserved. Subsequently, we pronounced orders on the said aspect of the case on 8.5.2001, the same may be read as part of this final order. 18. To reiterate the said reasons, insofar as the jurisdiction of the consumer courts vis-a-vis the complainant being a consumer or not is concerned, the contents of the complaint as a whole indicate that he is aggrieved against the alleged deficiency of service of the opposite parties, as per the statement of facts contained in the complaint, and set out in detail here above. The question now arises whether a complaint in the present nature is maintainable against an educational-institution like the opposite party No. 1. In support of this objection, learned counsel for the opposite parties has played reliance on an earlier decision of this commission in the case of Secretary, Board of School Education, Kangra at Dharamshala V. Meena Tempta (Appeal No. 55 of 1998, decided on 6.11.1998). As per the ratio of that decision, which in turn has placed reliance on a decision of the National commission in the case of Chairman, Board of Examinations. Madras V. Mohideen Abjul Kader. I (1997) CPJ 49 (NC). A candidate who appears for an examination cannot be regarded as a person who has hired or availed of the service of a university or Board for consideration and he cannot be held as a consumer’. Madras V. Mohideen Abjul Kader. I (1997) CPJ 49 (NC). A candidate who appears for an examination cannot be regarded as a person who has hired or availed of the service of a university or Board for consideration and he cannot be held as a consumer’. It is manifest that both these decisions of the national Commission as well as this commission in those cases are not applicable herein inasmuch as grouse of the complainant is entirely different, he having been deemed to be admitted in a Medical College in the State of Tripura at Agartala, as per the admitted case on the basis of the pleadings of the parties narrated above, and yet failed to get any education because of a non-existent Medical College, despite having made payment of capitation fee/donation as well as the admission fee etc. 19. On the other hand, the learned counsel for the complainant has placed reliance on another decision of the National Commission in the case of Bhupesh Kurana V. Vishwa Budha Parishad, (2000) NCJ (NC) 637. It has been specifically laid down in that decision that imparting of education by an educational institution for consideration falls within the ambit of service’ as defined in the Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The facts of the case were also somewhat similar inasmuch as the advertisement and prospectus giving the impression that the college was affiliated with Magadh University and was recognized by the Dental Council of India, on the basis of which the complainants were admitted in BDS course for imparting education of consideration for which the College, in question, was not affiliated and recognized, in these circumstances it was held that it was a deficiency in service and on the merits of that case, direction was given to refund the admission expenses paid by the complainants at the time of admission with interest, alongwith a sum of Rs. 20,000/- as compensation. In our considered view, this decision of the National commission clinches the matter against the opposite parties on the question of jurisdiction of this commission to entertain the instant complaint on the ground of deficiency in service. 20,000/- as compensation. In our considered view, this decision of the National commission clinches the matter against the opposite parties on the question of jurisdiction of this commission to entertain the instant complaint on the ground of deficiency in service. The aforesaid decision of the national Commission Bhupesh Khuranas case is not the only one on the subject. Reliance has also been placed on behalf of the complainant on three other decisions on this point which support the arguments of his learned counsel, namely; III (1993) CPJ 1547; II (1994) CPJ 5. The second objection is that the cause of action arose in the State of Tripura and the complaint, if any, can only be fled there, hence this commission has no territorial jurisdiction in the matter. In support of this submission, the learned counsel for the opposite parties has plaved reliance on two decisions, namely, India Airlines Corporation & Ors. V. Consumer Education & Research Society, Ahmedabad & Anr., II (1991) CPJ 686 (NC) and Chander Kanta Bansal & another V. K.L.M. Royal Dutch Airlines, New Delhi & Others, III (1992) COJ 291. In the first cited case, it was held that the State Commission constituted under the Act cannot validly entertain a complaint against compensation and exercise jurisdiction to adjudicate upon it in a case where no part of cause of action has arisen with its territorial jurisdiction merely because the Corporation has a branch office within the territory of the concerned state. In the case of Chander Kanta Bansal ibid, it has been held by the Haryana State Commission that when the total transaction between the parties took place in Delhi, although the complainants reside in Hissar District of Haryana, the Hissar District Consumer Forum rightly dismissed the complaint for want of territorial jurisdiction. In the other hand, the learned counsel for the complainant has placed reliance on a decision reported in I (1995) CPJ 247 on the point of territorial jurisdiction (Director of Admissions V. Dr. Radha Narayanan M.B.B.S.). In that case, the fees for education were paid through demand drafts which were got prepared from Palakkad, a place in the State of Kerala and were sent through post also from the same place. The institution in which the admission was south was located at another place. Radha Narayanan M.B.B.S.). In that case, the fees for education were paid through demand drafts which were got prepared from Palakkad, a place in the State of Kerala and were sent through post also from the same place. The institution in which the admission was south was located at another place. Yet, it was held on the basis of these facts that part of cause of action in that case arose at Palakkad within the jurisdiction of Palakkad District Forum. 20. Insofar as the authorities cited on behalf of the opposite parties by their learned counsel on the point of territorial jurisdiction of this State Commission to entertain the complaint herein are concerned, they are distinguishable on facts, in both these case, no part of cause of action arose within the territorial jurisdiction of the consumer court concerned and, therefore, it was held that the same had no territorial jurisdiction in the matter therein. The facts here are different, namely, sometimes in the month of September, 1992, the opposite party No. 2 visited Solan and he was paid the agreed amount of Rs. 5,30,000/-partly in cash and partly by banker cheques on 2.9.1992 also at Solan, as per the allegations in the complaint. These facts have not been specifically denied in the reply of the opposite parties, .therefore, notwithstanding the fact that the alleged Medical college was located at Agartala in the State of Tripura, part of the case of action arose at Solan in the State of Himachal Pradesh, in view of the provisions of Section 11 (2)(C) of the Act. Therefore, we have no hesitation in holing that this commission has territorial jurisdiction in the matter. 21. Lastly, we come to the point of limitation. On this aspect, the contents of para-22 of the complaint are to the effect that the complainant served two notices, one directly and one through his counsel on the opposite parties on 27.7.1998 and 13.8.1998, copies of which are annexed as Annexures C-6 and C-7 with the complaint requesting the Baba Mungipa Education Trust, opposite party No. 1 to compensate him, but to no avail. Although these allegations have been denied in the reply by stating that the opposite parties did not receive any such notices as Annexures C-6 and C-7, a perusal of the two documents indicates that such notices were infact sent on behalf of the complainant. Although these allegations have been denied in the reply by stating that the opposite parties did not receive any such notices as Annexures C-6 and C-7, a perusal of the two documents indicates that such notices were infact sent on behalf of the complainant. In this connection, Annexure C-6 purports to have been dispatched under Postal certificate, which would be, prima facie, evidence of sending of such a notice and the same is addressed to the opposite parties Nos. 2 and 3. Annexure C-7 purports to be a legal notice issued from the office of Shri B.N. Mehta, Advocate of Shimla and it is indicated therein that the same was sent by a registered post Acknowledgement Due. There is no reason for us to doubt the authenticity of this notice also Mere denial of receipt of these two notices, without there being any rebuttal evidence produced by the opposite parties in this behalf, is not sufficient to dislodge this part of I the evidence on behalf of the complainant, the complaint having been ; filed within less than one year from the respective dates of both these notices i.e. on 7.4.1999, is definitely within limitation as prescribed under Section 24-A of the Act. Therefore, we find no force in this last preliminary objection also 22. Now we come to the merits of the case, in order to show the factum of payment of capitation fee/donation to the opposite party No. 2 at Solan in September, 1992 the complainant has placed reliance on documents Annexures C-B to C-22. A perusal of these documents show that the father of the complainant i.e. Dr. D.N. Kishore withdrew a sum of Rs 1,00,000/- from his G.P. Fund Account no.H.Med-2192 for the purpose of funding education of his son, namely, the complainant. A perusal Of the sanction order Annexure C-B in this behalf indicates that this exercise was done in the month of July/August, 1992 Annexure C-9 is the G.P. Fund Statement of Dr. Kishore i.e. the father of the complainant of the year 1990-91 showing balance of Rs. 1,55,583/-. Annexure C-10 is a certificate from the State Bank of Patiala, Solan Branch dated 4.11.1994 indicating that Mrs. Raj Kishore, namely the mother of the complainant had purchased banker cheques amounting to Rs. 2,50,000/- by taking loan from the Bank against their fixed deposit. Kishore i.e. the father of the complainant of the year 1990-91 showing balance of Rs. 1,55,583/-. Annexure C-10 is a certificate from the State Bank of Patiala, Solan Branch dated 4.11.1994 indicating that Mrs. Raj Kishore, namely the mother of the complainant had purchased banker cheques amounting to Rs. 2,50,000/- by taking loan from the Bank against their fixed deposit. It is also indicated therein that the Banker cheques were favouring Shri Om Prakash Sharma and were cleared/paid by the Bank on 9.9.1992. Be it stated that Shri Om Prakash Sharma is opposite party No. 2 in the complaint. Annexure C-11 is the affidavit of Smt. Shakuntla Gupta. It has been deposed therein that the mother of the complainant i.e. Smt. Raj Kishore is the real younger sister of the deponent and Shri Bharat i.e. the complainant in her only son. It has further been stated therein that on her sisters request, the deponent has withdrawn by cheque a sum of Rs. 40,000/- from her Account No. 38060 in the State Bank of India, Kullu and another sum of Rs. 40,000/- by way of cheque from Account No. 576 in State Bank of India, Bhunter totaling Rs. 80,000/- to provide loan to her sister of paying capitation fee/donation for admission of her son Bharat in a Medical College. Annexure C-12 is the affidavit of Dr. Shanta Gupta is which it has been deposed that Smt. Raj Kishore is her real sister and Bharat i.e. the complainant is her son. It has further been deposed that on being approached by Smt. Raj Kishore, the other sister i.e. Miss Shakuntla Gupta withdrew Rs. 80,000/- by way of two cheques from her bank Accounts for funding the education of the complainant by way of paying donation and granting admission at the behest of opposite party No. 2 who had arrived at Solan on 2.9.1992. It has been deposed in para - 5 of the said affidavit of Dr. Shanta Gupta that after negotiations Shri Om Prakash Sharma i.e. opposite party No. 2 was paid Rs. 5,00,000/- as capitation fee and Rs. 30,000/- as annual tuition fee. Annexure C-13 is an affidavit notarized by one Gary Thomas, Notary Public, State of Illinois in USA. This affidavit purports to have been sworn by one Santosh Chand deposing that she resides in St. Louis, Missouri. 5,00,000/- as capitation fee and Rs. 30,000/- as annual tuition fee. Annexure C-13 is an affidavit notarized by one Gary Thomas, Notary Public, State of Illinois in USA. This affidavit purports to have been sworn by one Santosh Chand deposing that she resides in St. Louis, Missouri. According to that affidavit the deponent is a Physicians and that on or about 25.8.1992, the deponent had sent the amount of 3000 to her sisters son Bharat Kishore nephew of the deponent for tuition for medical school. 23. Annexure C-14 is the affidavit of dr. D.N. Kishore who has deposed in detail the facts as set out in the complaint and narrated above. In para-8 of the said affidavit, it has been deposed by him that Shri Om Prakash Sharma i.e. opposite party No. 2 was paid Rs. 5,30,000/- including two banker cheques on State Bank of Patiala amounting to Rs. 2.50 lacs. This amount is purported to have been paid at Solan at the residence of the deponent on 2.9.1992 as per the contents of para-6 of the said affidavit. Annexure C-15 is the affidavit of Smt. Raj Kishore regarding taking of loan against her fixed deposits from the State Bank of Patiala, Solan to the extent of Rs. 2.50 lacs. It has further been deposed therein that on 2.9.1992 when Shri Om Prakash Sharma arrived at her house, two banker cheques in the said amounts were handed over to him through one Shri Roshan Lal. Annexure C-16 is the affidavit of one M.K. Kapur who has deposed that he was working as Manager, State Bank of Patiala, Solan in 1992. On 2.9.1992, he had visited the house of Dr. D.N. Kishore on his request where he found many relations of the said doctor to be present alongwith some other persons including one official of the Deputy Commissioners office. It was finally decided with Shri Om Prakash Sharma that a sum of Rs. 5,00,000/- will be paid as capitation fee for admission of Mr. Bharat, son of Dr. D.N. Kishore and Rs. 30,000/- will be paid for one years tuition fee. This was for admission of Shri Bharat to Medical College in Agartala and it has also been stated by the deponent vide Annexure C-16 that the entire money including two banker cheques totaling Rs. Bharat, son of Dr. D.N. Kishore and Rs. 30,000/- will be paid for one years tuition fee. This was for admission of Shri Bharat to Medical College in Agartala and it has also been stated by the deponent vide Annexure C-16 that the entire money including two banker cheques totaling Rs. 5.30 lacs was counted by Shri Roshan Lai of Deputy Commissioners office and handed over to Shri Om Prakash Sharma, Chairman of the Trust who gave in writing on plain paper admitting Shri Bharat to Medical College in Agratala without mentioning the amount in the receipt. Annexure C-17 is the affidavit of Rohan Lal to the same effect as deposed by Shri M.K. Kapur. Similar is the affidavit of Shri Laiq Ram Sharma, Annexure C-18. Annexure C-19 is the affidavit of Shri Dhani Ram to the effect that he was working as Accountant in the Chief Medical Oficers office, Solan, in the Year 1992-93 and that Dr. D.N. Kishore was also working as Medical Officer in District Hospital, Solan. A sum of Rs. 1.00 lac was sanctioned in his favour as G.P. Fund withdrawal vide order No. HFWF.H (III) (3)-12/91 dated 24.8.1992 by the director. Health Services, Himachal Pradesh, Shimla, and the bill was drawn from the State Bank of Patiala, Solan in the month of September, 1992, releasing the case payment of Rs. 1.00 lac to Dr., D.N. Kishore, Annexure C-20 is the affidavit of Mrs. Satya Kant, who has deposed that she was working as staff nurse in the District Hospital, Solan in the year 1992-93 and that Dr. D.N. Kishore who was working as Meidcal Officer there, had sent her a message on 2.9.1992 that a sum of Rs. 1.00 lac sanctioned in his favour from out of his G.P. Fund may be brought from the office Accountant Shri Dhani Ram and be delivered at his house as he needed money immediately. She accordingly went with the said amount to his house and delivered the same there. Annexure C-21 and C-22 are the affidavits of Dr. J.L. Gupta and Shri Mohindra Lal who have deposed that Smt. Raj Kishore wife of Dr. D.N. Kishore is their real younger .sister and Bharat is their son. She accordingly went with the said amount to his house and delivered the same there. Annexure C-21 and C-22 are the affidavits of Dr. J.L. Gupta and Shri Mohindra Lal who have deposed that Smt. Raj Kishore wife of Dr. D.N. Kishore is their real younger .sister and Bharat is their son. They have also deposed to the facts as set out above, both in the complaint as well as in the other evidence already referred to above, meaning thereby that both are witness to the transaction of payment of donation/capitation fee plus annual tuition fee totaling Rs. 5,30,000/-on behalf of the complainant to Shri Om Prakash Sharma in his capacity as Chairman of the Baba Mungipa Education Trust i.e. opposite party No.2. 24. As against the above voluminous evidence of the complainant, the opposite parties have merely relied on the affidavit of Shri Om Prakash Sharma i.e. opposite party No. 2 by way of rebuttal. Except for the bare denial in para-5 of the said affidavit to the effect that the deponent never visited Solan as alleged in connection with the admission, there is no cogent rebuttal to the evidence of the complainant discussed in detail here above. 25. However, in order to ensure that justice is not only done but appears to be done on the record, reference may be made to certain documents which have been filed alongwith the reply on behalf of the opposite parties. Annexure R-1 is a copy of a communication from the Medical Council of India to the Secretary, Baba Mungiapa Education Trust i.e. opposite party No. 3 which is dated 20.8.1997. This relates to a demand for remitting inspection fee of Rs. 2.00 lacs with the said Council so that it may carry out the inspection of the institution of the opposite parties and submit the inspection report to the Supreme Court. Annexure R-2 is again a copy of another communication dated 16.9.1997 between the Medical Council of India and the Chairman of the said Trust i.e. opposite party No. 2 Annexure R-3 is a letter from Triputa University addressed to the said Chairman dated 23.9.1997. Similarly, Annexure R-4 is addressed from the government of Tripura, Directorate of Health Services to the Secretary of the said Trust which is dated 3.10.1997. Similarly, Annexure R-4 is addressed from the government of Tripura, Directorate of Health Services to the Secretary of the said Trust which is dated 3.10.1997. Annexure R-5 is a deed of Guarantee dated 24.4.1997 by the Punjab and Sindh Bank, Bhiwani in favour of Tripura University, Agartala on the request of the said Trust. 26. The import of all these documents is probably to show the so-called bonafides of the opposite parties that they were doing their best to set up the Medical Institution, referred to above, at Agrtala in Tripura. Be that as it may, these documents have no bearing on the consumer dispute raised herein, namely, taking of donation/capitation fee as well as annual fee charges etc. to the tune of Rs. 5,30,000/- in all from the complainant, as alleged in the complaint and further established from the voluminous documentary evidence already discussed above. 27. At this stage, it would not be out of place to also make a brief reference to the reply filed by the opposite parties Nos. 3 & 4 i.e. Shri Radhe Shayam Kaushik, Secretary-cum-Trustee and Shri Shayam Sunder Sharma, Treasurer-cum-Trustee respectively of the said Education Trust. Apart from the same preliminary submissions/objections which have been taken in the consolidated reply an dealt with here above, on merits their stand is that the allegation of charging of capitation fee by Shri Om Prakash Sharma, opposite party No. is not in the knowledge, whatsoever, of the opposite parties Nos. 3 & 4 and hence is denied. Apart from this stand, the said opposite parties Nos. 3 & 4 have adopted the plea as taken in the reply filed on behalf of opposite party No. 2. 28. At this stage, reference must be made to the copies of Judgment and orders of the Gauhati High Court dated 16.5.1994 as well as the Supreme Court dated 20.3.1998 respectively. The same are annexure C-24 to C-26 on the record, also by way of evidence on behalf of the complainant. 28. At this stage, reference must be made to the copies of Judgment and orders of the Gauhati High Court dated 16.5.1994 as well as the Supreme Court dated 20.3.1998 respectively. The same are annexure C-24 to C-26 on the record, also by way of evidence on behalf of the complainant. Annexure C-24 i.e. the judgment and order of the Gauhati High Court clearly indicates-that the case before the said High Court related to the fate of 80 students lured/induced by Baba Mungipa Education Trust which was arrayed as respondent No. 7 in the case before the said High Court) to take admission in the college purported to have been set up by the said Trust at Agratala in Tripura for medical education. The finding recorded in the said Judgment and order of the said High Court is that a huge amount of money has been realized from the students and now the fate of all them is uncertain. They are hanging in vacuum and their future is bleak. It is a hard case. But at the same time it has been observed that it is settled law that a hard case cannot make bad laws, therefore, in exercise of the jurisdiction of the said High Court, the concerned Bench expressed its helplessness to give any relief to the helpless students, but at the same time had expressed the hope and trust that if it is allowed by law and if it is within the bounds of law, the State of Tripura, the Tripura University, the Indian Medical council as well as Union of India shall take a positive attitude in the matter and do the needful to save these 80 helpless students who are the victims of an unfortunate deal which was made by the Trust without following the Rules and the law. It was also observed by the said High Court vide Annexure C-24 that if necessary, the authority may do the needful to fix up the responsibility on the Trust and make provisions for return of the money spent by the students from the Trust. The long hands of the authorities are found capable to find out ways and means to help the students. 29. The long hands of the authorities are found capable to find out ways and means to help the students. 29. It appears that Baba Mungipa Medical College & Research Centre Students Guardians Forum and another filed the Special Leave Petition in the Supreme Court and the decision given in that matter dated 3.11.1997 is incorporated in Annexure C-25, which is a Xerox copy thereof. The operative part of that decision is to the effect that the Apex Court was of the view that until and unless the defects pointed out by the Medical Council are removed, there cannot be any question of granting recognition to the College. The College authorities will be entitled to cure the defects pointed out in the Inspection Report and thereafter they may apply to the Medical Council for a further inspection. It would be for the Medical Council of India to decide whether the College had all the facilities for imparting proper medical education. 30. Annexure C-26 is a Xerox copy of another decision given by the Supreme Court in the case of Baba Mungipa Medical college V. Government of Tripura etc. The operative part of that decision in that the question of recognition of the said College is essentially to be considered and decided by the Medical Council of India as per its norms and guidelines. That recognition has not so far been given. Therefore, it was not considered appropriate to keep the matter pending before the Supreme Court any further and it was disposed of with the direction that in the event the Medical Council of India grants recognition to the College and the College authorities consider the question of admission or regularization of admission of the students, they shall consider the cases of the Students who were already in the College and pass appropriate orders with regard to them under rules. A direction has also been issued therein that the College authorities may take into consideration that these students were already admitted and would have continued with their studies had the college been recognized. 31. It is the agreed case of both the parties that despite the observations/directions of the Gauhatti High Court and the Supreme Court, referred to above, the so-called Medical College at Agartala in Tripura never became functional. 31. It is the agreed case of both the parties that despite the observations/directions of the Gauhatti High Court and the Supreme Court, referred to above, the so-called Medical College at Agartala in Tripura never became functional. That being the factual position, and in the reply on behalf of the opposite parties, instead of controverting the case set up in the complaint, more or les has the effect of admitting the same, in our considered view the complainant has been fully able to establish his case of deficiency in service on the part of the opposite parties. Not only that, we would go to the extent of holding that the unfortunate complainant, alongwith other hapless young individuals i.e. 80 in all as per the findings of the Gauhati High Court, referred to above were lured/induced by the Baba Mungipa Education Trust, ( mostly at the instance of the Chairman Shri Om Prakash Sharma, to take admission in a non existent Medical College at Agartala in the State of Tripura. The complainant has also been able to establish conclusively that he was made to part from his parents and other relations with a total amount of Rs. 5,30,000/- on the representation of I opposite party No. 2, without having had a days education even in the Medical College, although he spent almost one year there cooling his heels for which his parents etc. had to incur additional expenditure. For the reasons recorded above, this complaint is accepted by holding that there has been deficiency in service on the part of the opposite parties within the meaning under the Act. The complainant is, thus, entitled to the following relief(s): Refund of capitation fee and one years tuition fee paid through Cash, Cheques, drafts etc. to opposite party No. 2 as Chairman on behalf of opposite party No: 1 and the other opposite parties at Solan in September, 1992 5,30,000.00 The annual fee paid for the second year by the complainant while he was forced to waste his time at Agartala without getting any education. 30,000.00 Expenditure incurred on books, hostel fee, medical equipments, uniform, traveling charges to Agartala and home for a period of V2 year approximately. 1,00,000.00 Litigation expenses before Gauhati High Court and the supreme Court. 40,000.00 Compensation/damages for the loss of carrier, harassment, trauma etc. suffered by the complainant. 50,000.00 Cost of litigation before this commission. 5,000.00 Total Rs. 30,000.00 Expenditure incurred on books, hostel fee, medical equipments, uniform, traveling charges to Agartala and home for a period of V2 year approximately. 1,00,000.00 Litigation expenses before Gauhati High Court and the supreme Court. 40,000.00 Compensation/damages for the loss of carrier, harassment, trauma etc. suffered by the complainant. 50,000.00 Cost of litigation before this commission. 5,000.00 Total Rs. 7,55,000.00 Out of the above amounts, the amount of Rs. 5,30,000/-awarded against item No. (i) above shall carry interest @ 18% per annum from the date of payment i.e. 2.9.1992 till realization, while the other amounts awarded against the remaining items shall carry interest of 12% per annum from the date of filling of the present complaint. The opposite parties are liable to pay the above amounts totaling Rs. 7,55,000/- to the complainant jointly and severally within one month from today. The complaint stands disposed of accordingly.