State Consumer Disputes Redressal CommissionRungta College Of Dental Science & ... vs Shweta Kashyap on 23 April, 2018CHHATTISGARH STATE
           CONSUMER DISPUTES REDRESSAL COMMISSION,
                     PANDRI, RAIPUR (C.G).

                                                        Appeal No.FA/2018/09
                                                      Instituted on : 03.02.2018

Director,
Rungta College of Dental Science and Research,
Kohka, Kurud Road,
Bhilai, Tehsil & District Durg (C.G.)       .... Appellant (Opposite Party)

     Vs.

Shweta Kashyap, W/o Ajay Kashyap,
R/o - 147, Crystal Ideal City,
Awadhpuri, Khajurikala,
Bhopal, District Bhopal (M.P.)                 .... Respondents (Complainant)

PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER

COUNSEL FOR THE PARTIES :
Shri Anurag Thaker, Advocate for the appellant (O.P.).
Shri Hitesh Baghmar, Advocate for the respondent (complainant).

                                  ORDERDATED : 23 /April/2018
           PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.This appeal is directed against the order dated 07th December, 2017,

passed by District Consumer Disputes Redressal Forum, Durg (C.G.)

(henceforth "District Forum") in Complaint Case        No.C.C./15/796. By the

impugned order, learned District Forum, has allowed the complaint of the

complainant and directed that :-(1) The O.P. will pay the extra amount of fees Rs.84,000/- (Rupees Eight

           Four Thousand, which has been taken by the O.P., to the

           complainant.(2) The O.P. will pay Rs.30,240/- towards interest on the extra amount

           of fees taken by it, to the complainant.// 2 //

      (3) If the O.P. will not pay the above amount within stipulated period,

          then the O.P. will be liable to pay interest @ 9% on above amount

          from the date of order till realization, to the complainant.

      (4) The O.P. will pay a sum of Rs.5,000/- (Rupees Five Thousand)

          towards cost of litigation to the complainant.2.    Briefly stated the facts of the complaint of the complainant are that the

complainant is a dentist who had completed her graduation from Rungta

Sciences and Research. She had joined in the year 2005 and had completed her

graduation in the year 2009 as the time span of the course was four years. The

complainant was thereafter married and she presently writes her name as

Shweta Kashyap while before marriage she wrote her name as Shweta

Baghmar. The complaint is filed against Director, Rungta College of Dental

Sciences and Research, which is located at Bhilai. The complaint is filed in

respect of excess tuition fee charged for the academic session 2005-06 to the

tune of Rs.84,000/-, which is not in consonance with order issued by the

Chhattisgarh Government, Department of Higher Education, Technical

Education, Human Resources, Science and Technology dated 13.06.2006

bearing Serial No.F 18-20/2003/42 Part-1. The aforesaid order was issued

pursuant to directions of the Committee constituted to determine fees charged

i.e. the fees structure of private unaided medical educational institutions. The

aforesaid Committee was formed pursuant to the judgment of Hon'ble Apex

Court in the case ofIslamic Academic of Education & Others Vs. State of

Karnataka & Others. The proof of the excess tuition fee charged for academic

session 2005-06 is marked as Annexure A-1 and is in the form of cash receipt.// 3 //

The receipts of subsequent academic sessions i.e. 2006-07, 2007-08 and 2008-09

are also attached to support the averment made in subsequent paragraph that

the excess tuition fees charged was never adjusted in the subsequent academic

session. The cash receipts for subsequent academic sessions i.e. 2006-07, 2007-

08 and 2008-09 are marked as Annexure A-2, Annexure A-3 and Annexure A-4.

The grievance of the complainant is that the inspite of order issued by the

Chhattisgarh Government, Department of Higher Education, Technical

Education, Human Resources, Science and Technology dated 13.06.2006 being

Serial No.F-18-20/2003/42 Part 1 fixing the tuition fee i.e. Rs.1,31,000/- that

could be charged for the course of Bachelor of Dental Sciences by Rungta

College of Dental Sciences and Research for the academic session 2005-06, the

tuition fee charged was Rs.2,15,000/-, which was in excess of Rs.84,000/- and

the aforesaid amount i.e. Rs.84,000/- was never refunded or adjusted against

tuition fee or various charges to be borne by the complainant for subsequent

academic sessions i.e.2006-07. The complainant ran from pillar to post but the

exercise did not yield any result as the institution never adjusted the tuition

fee nor it refunded the excess tuition fee charged for academic . It is sine qua

non to note here that the complainant had tried to contact the concerned

authorities working at the institution but no positive response was received

from their end to the horror of the complainant.          They even failed to

acknowledge that excess tuition fee charged for academic session 2005-06

needs to be refunded to the complainant. The present case is covered by the

decision of this District Forum in Pallavi Sahu Vs. Director Rungta College of

Dental Sciences and Research dated 31.03.2012 bearing Case No.294/2011.

The present complaint is being filed within the limitation prescribed under
                                      // 4 //

Section 24A of the Act reason being the cause of action for the purpose of the

aforesaid section would arise when the O.P. would deny refund of excess the

charged but since in the present case the complainant was assured by the O.P.

that excess tuition fees would be adjusted in subsequent academic sessions or

refunded, no cause of action arose i.e. they never denies it. The complainant

tried of running from pillar to post for the last 9 years was impliedly denied

the excess fees charged in the year 2015. Thus the complainant filed consumer

complaint before the District Forum as the cause of action arose after implied

denial. Infact the O.P. should explain the         delay in refunding excess fees

charged inspite of being given ample amount of years to refund the same. The

excess fee was charged contrary to order issued by Chhattisgarh Government,

Department of Higher Education, Technical Education, Human Resources,

Science and Technology dated 13.06.2006 being Serial No.F-18-20/2003/42 Part- 1 .   Hence the complainant filed the instant complaint and prayed for

granting reliefs, as mentioned in the complaint.3.      The O.P. filed its written statement and averred that the complainant

took admission in O.P. institution in the year 2005 and after studying four

years, she left the O.P. institution. The O.P. has refunded Rs.84,000/- to the

complainant through payment vouchers, the details of which is as under :-I)      Payment Voucher    Dated 12.07.2010        Rs.18,000/- (Annexure NA-1)

II)     Payment Voucher    Dated 13.07.2010        Rs.17,500/- (Annexure NA-2)

III)    Payment Voucher     Dated 14.07.2010       Rs.19,000/- (Annexure NA-3)

IV)     Payment Voucher    Dated 16.07.2010        Rs.15,000/- (Annexure NA-4)
                                     // 5 //

V)    Payment Voucher      Dated 17.07.2010    Rs.14,500/- (Annexure NA-5)

                                               Rs.84,000/-At the time of receiving the amount in cash, the complainant has signed on the

revenue ticket. The complainant has filed the instant complaint with malafide

intention. The complaint is barred by time. The complainant has not filed the

instant complaint with clean hands. The complainant has given false evidence

in the form of affidavit, which comes in the category of punishable offence

underSection 191of Indian Penal Code, 1860 and underSection 193, there is

provision to give imprisonment of 7 years and to impose penalty.           The

complainant has received the entire amount Rs.84,000/- in the year 2010,

therefore, from 2010 to 2015 the complainant did not demand refund of the

amount and did not submit any complaint before the O.P. and after five years,

in the year 2015 the complainant has filed false complaint before the District

Forum to illegally recover the amount. The complaint is liable to be dismissed.4.    The complainant has filed documents. Annexure A-1 is receipt dated

10.08.2005 issued by the O.P., Annexure A-2 is Receipt dated 27.01.2007 issued

by O.P., Annexure A-3 is Receipt dated 09.10.2007 issued by O.P., Annexure A-

4 is Receipt dated 29.09.2008 issued by O.P., Annexure A-5 is order dated

13.06.2006 of Deputy Secretary, Technical Education, Human Resources,

Science and Technology Annexure A-6 is details regarding other charges.5.    The O.P. has also filed documents. Annexure NA-1 is payment voucher

dated 12.07.2010, Annexure NA-2 is payment voucher dated 13.07.2010,

Annexure NA-3 is payment voucher dated 14.07.2010, Annexure NA-4 is
                                     // 6 //

payment voucher dated 11.07.2010, Annexure NA-5 is payment voucher dated

17.07.2010.6.    Learned District Forum, after having considered the material placed

before it by the parties, has allowed the complaint and directed the O.P. to pay

the amount, as mentioned in para 1 of this order.7.    Shri Anurag Thaker, learned counsel appearing for the appellant (O.P.)

has argued that the impugned order passed by the District Forum, is

erroneous. The complaint of the respondent (complainant) is barred by time.

The amount of Rs.84,000/- was refunded by the O.P. to the complainant. The

amount of Rs.18,000/- was refunded on 12.07.201, the amount of Rs.17,500/-

was refunded on 13.07.2010, the amount of Rs.19,000/- was refunded on

14.07.2010, the amount of Rs.15,000/- was refunded on 16.07.2010 and the

amount of Rs.14,500/-was refunded on 17.07.2010 by the O.P. to complainant.

Thus total amount of Rs.84,000/- was refunded by the O.P. to the complainant.

The O.P. had obtained the report of Handwriting Expert Dr. Sunanda Dhenge,

who specifically opined that when all above observations taken together, she

came to the conclusion that writer of questioned signature Q1 to Q5 on

voucher are having common authorship with N1, N2, N7 to N10, N15. She has

also concluded that comparative signature N3 to N6, N11 to N14 and rest

comparative    signatures marked as N7 to N10, N15, N1, N2 are having

different authorship.   From the report of the Handwriting Expert, it is

established that the complainant herself had received the amount from the

O.P., therefore, the impugned order passed by the District Forum is erroneous
                                     // 7 //

and is liable to be set aside. The appeal filed by the appellant (O.P.) may be

allowed and impugned order be set aside.8.    Shri Hitesh Baghmar, learned counsel appearing for the respondent

(complainant) has argued that the complainant completed        her graduation

from Rungta Science and Research. She had joined in the year 2005 and had

completed her graduation in the year 2009. The complainant deposited tuition

fees of Rs.2,15,000/- ass charged by the O.P. and the O.P. received the amount

of Rs.84,000/- in excess, which was not        adjusted by the O.P. as per

Government order. The O.P. recovered excess fees of Rs.84,000/- from the

complainant. The complainant demanded the excess fees but the O.P. did not

refund the same. The complaint is within limitation because the cause of

action arosed when the O.P. denied to refund the amount. The expert opinion

filed by the O.P. is not reliable. The report of handwriting expert is based on

the original documents. The O.P. did not file original payment vouchers. On

the basis of photocopies of the payment vouchers, the report was given by the

Handwriting Expert, therefore, the report is not reliable. The expert report is

very weak piece of evidence, therefore, the report of Dr. S.K. Dhenge is not

reliable and cannot be a basis for proving the signature of the complainant.The O.P. has not proved that the amount was refunded by it to the

complainant. The impugned order passed by the District Forum, is just and

proper and does not call for any interference by this Commission. The appeal

filed by the O.P. be dismissed. He placed reliance onTriveni Prasad V.

Indrapal Kachhi, 1996 (1) M.P.Weekly Notes 37;Punit Rai Vs. Dinesh

Chaudhary, 2004 (1) M.P. Weekly Notes 244;S. Gopal Reddy Vs. Stateof
                                     // 8 //

Andhra Pradesh, AIR 1996 SC 2184 and Khemchand Vs. Parvat Singh, 1996

(II) M.P. Weekly Notes 125.9.     We have heard learned counsel appearing for both the parties and have

also perused the record of the District Forum.10.    The complainant pleaded that the complainant got admission in the

O.P. Institution and she deposited the tuition fee. According to Order No.F-

18-20/2003/42 Part I dated 13.06.2006 issued by State Government, the tuition

fees was fixed Rs.1,31,000/- but the O.P. charged the amount of Rs.2,15,000/-

from the complainant for academic session 2005-06. It shows that the O.P. had

recover Rs.84,000/- in excess from the complainant for the academic session

2005-06.11.    According to the complainant the cause of action was accrued when the

O.P. denied to refund the excess amount, but the complainant did not mention

in her complainant that in which date exactly the O.P. denied to refund the

extra amount to her.12.    According to the O.P., it refunded the amount of Rs.84,000/- to the

complainant through payment vouchers on 12.07.2010, 13.07.2010, 14.07.2010,

16.07.2010 and 17.07.2010. The complainant did not file copy of application to

show that when she submitted application for refund of amount before the

O.P.   Annexure A-5 is copy of order dated 13.06.2006 issued by State

Government. According to the said order, it is essential for the Institutions to

adjust the excess amount , which was recovered by the Institution. The above

order was issued by the State Government on 13.06.2006. If t he O.P. did not
                                      // 9 //

follow the above order issued by the State Government, then it is incumbent

upon the complainant to submit application before the O.P. for adjustment of

amount before the O.P., but the complainant did not produce copy of any

application to prove that he had submitted application before the O.P. for

refund of the amount.13.   The complainant in compliance of order dated 28.04.2017 of the District

Forum , amended the complaint in which the complainant pleaded that the

present complaint being filed within the limitation prescribed under Section

24A of the Act reason being cause of action for the purpose of aforesaid

Section would arise when the answering respondent would deny refund of

excess fee charged. The complainant further pleaded that the complainant

tired of running from pillar to post for the last 9 years was impliedly denied

the excess fees charged in the year 2015.14.   Except pleading, the complainant has not filed any documents to prove

that she continuously contacted with the O.P. for refund of the amount. No

single application or letter has been filed by the complainant in which the

complainant demanded refund of fees. Even the complainant did not file

copy of the legal notice sent by her to the O.P. On the contrary, the O.P.

specifically pleaded in para 2 of its written statement that the amount was

refunded by it to the complainant.          The last payment was made to the

complainant on 17.07.2010, therefore, the cause of action was accrued on

17.07.2010, whereas the instant complaint has been filed by the complainant
                                        // 10 //

on 28.12.2015 i.e. after near about five year and five months, therefore, the

complaint is hopelessly barred by time.15.   So far as merits of the case is concerned, the             O.P. has specifically

pleaded that it refund the excess fees amount to the complainant. The O.P. has

filed copy of payment vouchers. The complainant did not file any application

for producing original payment vouchers by the O.P.               The O.P. obtained

expert opinion of Dr. S.K. Dhenge.             So far as expert report is concerned,Section 45of the Indian Evidence Act, 1872 read thus :-"45.    Opinions of Experts : When the Court has to form an opinion upon a
      point of foreign law, or of science or art, or as to identity of handwriting or
      finger impressions, the opinions upon that points of persons specially skilled in
      such foreign law, science or art, or in questions as to identity of handwriting or
      finger impressions are relevant facts.Such persons are called experts."16.   In Murarilal Vs. State of M.P., AIR 1980 SC 531, in para 11, Hon'ble

Supreme Court has observed thus :-"11.    We are firmly of the opinion that there is no rule of law, nor any rule of
      prudence which has crystallized into a rule of law, that opinion evidence of a
      handwriting expert must never be acted upon, unless substantially
      corroborated. But, having due regard to the imperfect nature of the science of
      identification of handwriting the approach as we indicated earlier, should be
      one of caution.    Reasons for the       opinion must be    carefully probed and
      examined. All other relevant evidence must be considered. In appropriate
      cases, corroboration may be sought. In cases where the reasons for the opinion
      are convincing and there is no reliable evidence throwing a doubt, the
      uncorroborated testimony of an handwriting expert may be accepted. There
                                        // 11 //

       cannot be any inflexible rule on a matter which, in the ultimate analysis, is no
       more than a question of testimonial weight. We have said so much because this
       is an argument frequently met with in subordinate courts and sentences torn
       out of context from the judgments of this Court are often flaunted."17.    So far as expert opinion it concerned, it is admission evidence and when

expert give his/her opinion along with reason and relevant material, it would

then be for the Court to see correctness of opinion and to reach to own

conclusion.18.    In the instant case, Dr. S.K. Dhenge, the Handwriting Expert, gave

detailed reasons in her report and opined that "When all above observations

taken together, I came to the conclusion that writer of questioned signature Q1

to Q5 on voucher are having common authorship with N1, N2, N7 to N10,

N15. I have also conclude that comparative signature N3 to N6, N11 to N14

and rest comparative signatures marked as N7 to N10, N15, N1, N2 are having

different authorship."     On the contrary the complainant did not file any

application before the District Forum for obtaining expert opinion in rebuttal

of the expert opinion given by Dr. S.K. Dhenge.19.    Therefore, the expert opinion of Dr.S.K. Dhenge is reliable and on the

basis of the above report, it appears that the complainant had already received

the amount of Rs.84,000/- from the O.P.20.    Hence, the finding recorded by the District Forum is erroneous and is

liable to be set aside.// 12 //

21    Hence, the appeal filed by the appellant (O.P.) is allowed and the

impugned order dated 07.12.2017, passed by the District Forum, is set aside.

Consequently, the complaint filed by the respondent (complainant), shall

stand dismissed. No order as to the cost of this appeal.(Justice R.S. Sharma)            (D.K. Poddar)             (Narendra Gupta)
       President                      Member                     Member
   23 /04/2018                    23 /04/2018                23 /04/2018