Dental College & Hospital Vs. Bhupesh Khurana & Ors.  INSC 317
(13 February 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELATE JURISDICTION CIVIL APPEAL NO.1135 of 2001 Buddhist
Mission Dental College & Hospital ..... Appellant Versus Bhupesh Khurana
& Others ..... Respondents
Dalveer Bhandari, J.
appeal is directed against the judgment dated 29.9.2000 passed by the National
Consumer Disputes Redressal Commission, New Delhi (for short `the Commission')
in Original Petition No. 168 of 1994.
complaints were filed before the Commission against the appellant herein, viz.
Buddhist Mission Dental College and Hospital through its Secretary Shri R.A. Vatsayayan.
appellant published an advertisement in the Hindustan Times, an English
national daily, on 25.7.1993 inviting applications for admission in the Degree
Course of Bachelor of Dental Surgery (for short, BDS). In the said
advertisement, it was specifically highlighted that the appellant college is a
premier dental college of Bihar established and managed by the Vishwa Buddha
Parishad under Article 30 of the Constitution of India. It was also mentioned
right under the name of the appellant's college that the said institution is "The
Buddhist Mission Dental College and Hospital" under Magadh University,
Bodh Gaya and Dental Council of India, New Delhi, Siddharth Nagar, New Bailey
Road, Patna. The said advertisement is reproduced as under:
3 "THE BUDDHIST
MISSION DENTAL COLLEGE & HOSPITAL"
University, Bodh Gaya, and Dental Council of India, New Delhi, Siddharth Nagar,
New Bailey Road, Patna-801305) A premier Dental College of Bihar, established
and managed by VISHWA BUDDHA PARISHAD, under Article 30(1) of the Constitution
of India, fulfilling all the criterion and conditions of Dental Council of
ADMISSION NOTICE FOR
BDS COURSE 1993-94 Applications are invited for admission in 1st year (B.D.S.)
Or Equivalent degree with a minimum 50% marks (40% in case of reserved
candidates) in Physics, Chemistry, Biology Group.
Application form and
prospectus can be had from the office on payment of Rs.100/- (or Rs.110/- by DD
in the name of the college if requested by post).
Last date for submission
of application is 30.08.1993. Separate hostel facility for boys and girls in
the campus, preference to Buddhist and other minority candidates.
NO CAPITATION FEE
(R.S. Vatsyayan) Secretary"
complainants, respondents herein, who have all passed 12th standard examination
with Physics, Chemistry and Biology and have secured good marks and were in
search of brighter career prospects, believing the facts incorporated in the
advertisement of the appellant to be true, applied for admission to the
appellant's college in the academic session 1992-93. In the complaint, it was
stated that in the advertisement it was specifically mentioned "No
Capitation Fee". This obviously gave the impression that no capitation fee
would be charged from the students. But in fact, at the time of admission,
Rs.1,00,000/- was taken in cash from each of the respondents and despite
repeated requests made by the respondents, no receipt for the amount paid by
them was given. When the respondents insisted upon the receipts of the said
amount paid, they were threatened that if they persisted on the demand of
getting the receipts, their admission would be cancelled. It is further alleged
in the complaint that the respondents had paid a substantial amount under
various heads viz., admission fee, tuition fee, development charges, charges of
consumables, house-in-practicals, sports, magazines, library etc.
respondents also started attending classes after joining the appellant college.
The respondents after several months came to know that the claim made by the
appellant to the respondents in the advertisement as well as in the prospectus
was false, because the appellant college was neither affiliated to the Magadh
University nor it was recognized by the Dental Council of India.
the complaint, the respondents also mentioned that they were informed by the
appellant that the college is well equipped with library, laboratories, anatomy
museum, medical appliances and instruments, hostel accommodation duly furnished
and well qualified teaching staff. But, in fact, there was no regular qualified
staff, no anatomy museum, library had hardly any relevant books, laboratory was
ill- equipped, as most of the necessary instruments/equipments were either not
available and those which were available were very few in number and were
grossly inadequate for the students who were admitted in each session.
respondents had spent a huge amount for admission and, moreover, they were also
given all sorts of assurances that soon everything would be made available to
the students and all facilities would be provided immediately after getting the
affiliation by the Magadh University and recognition by the Dental Council of
India. The respondents also alleged that usually in the aforesaid course of
four years, at the end of each year, the examination is supposed to be
conducted, but the appellant did not conduct any examination at all by the end
of 1994 and there was no hope of examination being conducted in the near
was also alleged that no efforts had been made. There was no development in
connection with the affiliation or recognition of the appellant college and no
efforts were being made to improve the standard of the said institution by
appointing regular teaching staff with proper qualification, providing
sufficient number of relevant books in the library and for providing other
facilities to the students for which all sort of assurances were made to them.
respondents were deeply frustrated because their entire academic career was
ruined. Therefore, they preferred claim petitions before the Commission. The
Commission by its order dated 29.9.2000 found merit and substance in the
complaints filed by the respondents and categorically held that there was
insufficiency of services on the part of the appellant and that the respondents
were legitimately entitled to the claims made in the petition.
Commission directed the appellant to refund the admission expenses paid at the
time of admission along with interest at the rate of 12% per annum from the
date of receipt of the amount till the date of payment and also Rs.20,000/- to
each of the respondents by way of compensation for the expenses defrayed on
purchase of books, mess expenses, hostel expenses for two years and for the
loss of two valuable academic years. Since there was no receipt of capitation
fee/donation paid by the respondents, the Commission inter alia did not grant
any relief to the respondents in that regard.
Commission directed that the appellant shall pay Rs.10,000/- by way of costs of
appellant, aggrieved by the impugned order of the Commission dated 29.9.2000,
preferred this appeal under Section 33 of the Consumer Protection Act, 1986
read with Order XX-F of the Supreme Court Rules, 1966.
Court admitted the appeal and issued notice and directed vide order dated
23.2.2001 that "there shall be interim stay of the operation of the
judgment/order under challenge subject to the condition that the appellant
deposits the sum as directed therein with the National Commission within four
respondents filed cross objection and prayed that the appellant be directed to
- (a) allow this cross objection and direct the appellant to pay Rs.1,00,000/-
which was charged as capitation fee, with interest, at the rate of 15% from the
date of admission till the date of payment; (b) direct the appellant to pay
Rs.1,25,000/- as compensation instead of Rs.20,000/- only; and (c) direct the
appellant to pay cost for the present proceedings.
have heard the learned counsel for the parties at length. The learned counsel
appearing for the respondents brought to our notice that the appellant had not
complied with the order passed by this Court on 23.2.2001. After hearing
learned counsel for the parties, this Court passed the following order dated
Consumer Disputes Redressal Commission, New Delhi in the impugned order,
directed respondent Nos. 1 to 4 to refund the admission expenses paid by the
complainants at the time of admission with interest calculated at the rate of
12% p.a. from the date of receipt of the amount till date of payment and also
Rs.20,000/- to each of the complainants by way of compensation for the expenses
defrayed on purchase of books, mess expenses, hostel expenses for two years and
for the loss of two valuable academic years.
This Court while
admitting appeal on 23.2.2001 directed that there shall be interim stay of the
operation of the judgment/order under challenge subject to the condition that
the appellant deposits the sum as directed therein with the National Commission
within four weeks.
It is not disputed by
learned counsel appearing for the appellant that neither the interest nor the
payment of Rs.20,000/- each has been deposited or paid to the complainants
despite clear orders of the Commission.
According to the
complainants, the appellant is clearly in breach of the order of this Court.
appearing for the appellant fairly submitted that the interest amount and the
payment of Rs.20,000/- each to the complainants 10 by way of compensation
would be deposited before the National Commission within one week from today.
In view of this
undertaking, we are not taking any action against the appellants (who were
respondent nos. 1 to 4 before the National Commission). Let this amount be
deposited within one week from today before the National Commission. It is made
clear that the interest amount would be paid from the date of receipt of the
amount till the date of payment (as directed by the Commission).
List this matter
again on 3.12.2008 as part- heard.
The parties are
permitted to file written submissions by Monday, i.e. 1st December, 2008."
the matter again came up on 3.12.2008, learned counsel appearing for the
appellant fairly submitted that despite his clear advice to the appellant to
comply with the order passed by this Court on 26.11.2008, the same has not been
complied with. The respondents prayed that the contempt notices be issued to
the appellant. At that stage, we deemed it appropriate to hear the appeal and
pass the final order.
was submitted that the appellant started this college and wanted to impart high
quality education in right earnest and immediately after establishing the
college wrote a letter on 23.6.1989 to the Dental Council of India informing it
about the establishment of the appellant's college and sought approval for it.
It was also mentioned that the Union Ministry of Health and Family Welfare also
wrote to the Dental Council of India vide its letter dated 5.9.1991
recommending inspection of the college as a part of process of seeking
approval. It was also mentioned that the Officer on Special Duty, Governor
Secretariat, Bihar wrote to the Vice Chancellor of Magadh University for taking
immediate action in respect of grant of affiliation. It was also mentioned that
the appellant had made efforts to get approval from the Dental Council of India
and affiliation from the Magadh University, but the desired affiliation and
approval were not received.
learned counsel for the appellant argued that in unmistakable terms it was
mentioned that "the academic syllabus of the college meets the standard as
per the Dental Council of India Rules and as prescribed by the faculty of 12
Dental Science, Magadh University, Bodh Gaya, Bihar to which this institution
seeks affiliation for award of Bachelor of Dental Science (BDS) degree."
It was submitted that if the prospectus is read as a whole it conveyed the
information in no uncertain terms that the infrastructure available with the
appellant institution and the integral reading of the prospectus did not even
remotely indicate that the information concerning the approval of the Dental
Council of India and affiliation with the Magadh University was tried to be
was submitted that the appellant's Institute was anxious to hold the
examination. The management of the appellant institute was deeply concerned
about their handicapped in respect of holding examination as the students
including respondent nos.1 to 12 were being deprived from appearing in the
examination even after receiving high quality education. It is also mentioned
by the appellant that they made all efforts to get the recognition and
appellant again tried to canvass that the appellant's institute is an industry
and the service rendered by the appellant institute amounts to deficiency in
service within the meaning of section 2(1)(g) of the Consumer Protection Act.
Apart from this, the
allegation of unfair trade practice within the meaning of section 2(1)(r) of
the Act against the appellant are without any merit.
respondents also filed cross objections in this court stating that the
respondents had paid donation/capitation fee of Rs.1 lakh in cash at the time
of admission. The appellant institute did not issue any receipt of
donation/capitation fee despite repeated requests.
Bhupesh Khurana, respondent no.1, filed an affidavit before the National
Commission in which it was clearly mentioned that on the demand of the
appellant institute, the parents of the complaintants/respondents paid
capitation fee/donation of Rs.1 lakh per student to the institute for which no
receipt was issued despite insistence.
appellant also mentioned that it has made huge investment and they have
legitimate expectation that affiliation and recognition would be granted to
them by the Magadh University and the Dental Council of India.
respondent in the cross objections denied the claim of the appellant and
submitted that there was no regular qualified teaching staff. There was no
anatomy museum, library had no relevant book, laboratory was ill-equipped as
most of he necessary instruments/equipments were either not available and those
which were available were very few in numbers and were not sufficient for the
students who were admitted in each session.
respondents also submitted that they had spent huge amount for admissions and
were given all sorts of assurances that soon everything would be made available
to the students and all facilities would be provided immediately after getting
the affiliation by the Magadh University and recognition by the Dental Council
respondents also complained that in the course of four years, at the end of
each year the examination must be held but no examination was held till the end
of 1994 and there was no hope of examination being held in the near future
because the appellant did not get either affiliation or recognition. The
respondents also mentioned in the cross objection that charges of
hostel/private accommodation were nearly Rs.15000/-, mess charges more than
Rs.500/- per month and miscellaneous expenses including pocket money for two
years were around Rs.10000/- to Rs.15000/-. Apart from that, each student had
spent more than Rs.6000/- to Rs.7000/- as traveling expenses and around
Rs.8000/- to Rs.10000/- on books. Thus, it is obvious that actual expenses of
each student were more than Rs.60000/- to 70000/-.
respondents claimed that the Commission failed to appreciate that at the time
of admission, each student had paid a sum of Rs.1,00,000/- as
donation/capitation fee. Each student has lost two academic years by taking
admission in 16 this institute which was neither recognized nor affiliated.
The entire educational career of the respondents has been ruined.
learned counsel for the appellant reiterated the submissions made before the
Commission. The appellant submitted that it was its earnest desire to impart
high quality education and it has spent enormous amount on infrastructure and
despite their best efforts they have not been able to get affiliation from the
Magadh University or the recognition from the Dental Council of India. The
appellant also submitted that looking to the infrastructure available, the
Magadh University must grant affiliation and the Dental Council of India must
appellant submitted that imparting education cannot amount to trade and,
therefore, the Consumer Forum lacks jurisdiction to deal with the complaint
filed by the respondent and the reliance placed in the case of Bangalore Water
Supply and Sewerage Board v. A. Rajappa &
Others AIR 1978 SC
548 was not correct.
respondents alleged that they have been misled by the advertisement published
in "The Hindustan Times" dated 25.07.1993 inviting application for
admission in the four years degree course of BDS. In the said advertisement, it
was clearly mentioned that Buddhist Mission Dental College and Hospital is a
premier Dental College of Bihar established and managed by Vishwa Buddha
Parishad under Article 30 of the Constitution of India. It was also mentioned
right under the name of the College that the said institution is "The
Buddhist Mission Dental College and Hospital" under Magadh University,
Bodh Gaya and Dental Council of India. Because of this misleading
advertisement, the students were misled and after paying huge capitation fee
took admission in the appellant institute. The said advertisement was repeated
in the next academic year. The respondents made serious grievance that because
of misleading advertisement, their academic career has been totally ruined.
They have lost their two valuable academic years and huge amount of money which
their parents had paid with great difficult.
have considered the rival contentions of the parties.
is an admitted position that the appellant institute is neither affiliated with
the Magadh University nor recognized by the Dental Council of India. In absence
of affiliation by the Magadh University and recognized by the Dental Council of
India, the appellant institute could not have started admissions in the four
years degree course of BDS. The Commission after hearing the learned counsel
for the parties rightly came to the conclusion as under:
"To our mind,
the contention is unfounded.
advertisement and prospectus as a whole, there is no manner of doubt that the
impression given was that the College was affiliated with the Magadh University
and was recognized by the Dental Council of India. If the College has not been
affiliated and recognized, there was no occasion in admitting the students and
wasting their valuable academic years.
opposite parties have been admitting the students right from the year 1991-92
upto the year 1995 on this representation that the College was affiliated and
recognized by the Dental Council of India. It cannot be denied that without
affiliation to the Magadh University and recognition granted by the V, the
so-called dental degree of BDS is just a useless piece of paper. The
representation given in the advertisement that the College was under Magadh
University and by the Dental Council of India could be taken by a common person
to mean that the college had been given recognition by the Dental Council of
India and was affiliated to the Magadh University."
Commission also held that this Court in Bangalore Water Supply and Sewerage
Board (supra) held as under:
[para 118 at page
583]:- "...In the case of the University or an educational institution,
the nature of the activity is, ex hypothesi, education which is a service to
the community. Ergo, the University is an industry..."
further held as under:
education by an educational institution for consideration falls within the
ambit of `service' as defined in the Consumer Protection Act.
Fees are paid for
services to be rendered by way of imparting education by the educational
If there is no
rendering of service, question of payment of fee would not arise. The
complainants had hired the services of the respondent for consideration so they
are consumers as defined in the Consumer Protection Act."
Commission rightly came to the conclusion that this was a case of total
misrepresentation on behalf of the institute which tantamounts to unfair trade
practice. The respondents were admitted to the BDS Course for receiving
education for consideration by the appellant college which was neither
affiliated nor recognized for imparting education. This clearly falls within the
purview of deficiency as defined in the 20 Consumer Protection Act, which
defines the `deficiency' as under:
means any fault, imperfection, shortcoming or inadequacy in the quality, nature
and manner of performance which is required to be maintained by or under any
law for the time being in force or has been undertaken to be performed by a
person in pursuance of a contract or otherwise in relation to any
the Commission rightly held that there was deficiency in service on the part of
the institute and the claimants respondents are entitled to claim the relief as
prayed in the plaint. The appeal filed by the appellant is devoid of any merit
and deserves to be dismissed.
far as the cross objections filed by the respondents are concerned, we are of
the opinion that the appellant institute by giving totally misleading and false
advertisement clearly misled the respondents that the institute is affiliated
by the Magadh University and recognized by the Dental Council of India. The
respondents have lost their two valuable academic years which would have
tremendous impact on their future career. Though the respondents have clearly
stated in 21 the affidavit that they had paid capitation fee/donation of Rs. one
lakh each and despite repeated requests, receipts were not given, which fact
has been denied by the appellant. In view of the disputed question of fact, it
is difficult for us to give any specific finding allowing the contention of the
respondents and to give direction to refund this amount with interest to them.
However, we strongly feel that the appellant institute has played with the
career of the students and virtually ruined their career and the respondents have
lost two valuable academic years.
our considered view, on consideration of the totality of the facts and
circumstances of the case and in the interest of justice, we deem it
appropriate to pass the following directions:
(i) The respondents
(complainants) would be entitled to the compensation as directed by the
National Consumer Disputes Redressal Commission. In case the amount has been
deposited, the respondents would be entitled to withdraw the same.
(ii) We further
direct the appellant institute to additionally pay compensation of Rs. one lakh
to each of the respondents (complainants).
(iii) We also direct
the appellant institute to pay cost of litigation which is quantified at Rs.
one lakh to each of the respondents (complainants).
(iv) The appellant
institute is directed to pay the amount of compensation and costs within a
period of two months.
appeal filed by the appellant is accordingly dismissed with costs and the
cross-objections filed by the respondents are allowed with costs in terms
indicated in the preceding paragraphs.
the appeal and cross objections stand disposed of.
(Harjit Singh Bedi)