State Consumer Disputes Redressal Commission
John Rhymant,Thoothoor . vs The Coordinator Convergence Scheme ... on 12 April, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
C.C.No.17/2015
TUESDAY, THE 12th DAY OF APRIL 2022.
Date of complaint filed : 16.06.2015
Date of order pronounced :12.04.2022
Mr.John Rhymant,
S/o John Aloysious,
Robin Cottage,
Near Govt.PHC,
Thoothoor & P.O-629 176. Complainant
-Vs-
1. The Co-ordinator,
Convergence Scheme,
Indira Gandhi National Open University,
(IGNOU), Maiden Garhi,
New Delhi - 110 068. 1st Opposite Party
2. The Co-ordinator,
Convergence Scheme,
Indira Gandhi National Open University,
(IGNOU), Convergence (STH - 6202),
S.T.Hindu College,
Nagercoil - 629 002. 2nd Opposite Party
Counsel for the Complainant : M/s.S.Palani Velayutham, Advocate.
Counsel for the Opposite Party-1 : Mr.V.Paneerselvam, Advocate.
Counsel for the Opposite Party-2 : Mr.M.R.Vijayakumar, Advocate.
This case coming before us for final hearing on 09.12.2021 and on perusing
the material records, this Commission made the following:-
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ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This complaint has been filed by the complainant under section 17 (1) (a) (i) of the Consumer Protection Act, 1986 praying for direction the opposite parties 1 & 2 to furnish the semester exam results from January 2011 batch i.e. 2 nd semester to last semester and also to furnish the 1st year course completion certificates, assignment marks and also other necessary certificates and a sum of Rs.10,00,000/-towards compensation for deficiency in service and unfair trade practice adopted by opposite parties 1 and 2 and a sum of Rs.10,00,000/- towards compensation for mental agony and torture and a sum of Rs.25,00,000/- towards compensation for being deprived from getting a job and handful salary for 2 years and a sum of Rs.20,000/- towards the cost of this proceedings.
2. The case of the complainant is as follows: The complainant got registered for M.B.A Course at Indira Gandhi National Open University (INGOU), Convergence Scheme i.e. first opposite party through the second opposite party. The complainant was selected under regular scheme for the academic year 2010-2013 by the second opposite party‟s college and his examination centre was also the same. He got admitted to the course in the year July 2010 and the said admission is valid upto the year 2018. He was allotted Registration No. as 105695950. The duration of the course is for 3 years from June 2010 to May 2013. As per the instructions of the second opposite party, the complainant paid the semester fee. He paid the first semester fee and appeared for the first semester exams in the July 2010 batch and successfully got 3 cleared his examination. Likewise, he paid fees for the January 2011 batch and appeared for his second semester but his results were not published as he did not paid the semester fees for January 2011 batch instead he paid July 2011 batch. So, his results were cancelled and the same was informed by the first opposite party through a communication dated 02.08.2011. The second opposite party paid the semester fees for the January 2011 batch on 11.01.2011 and the same was informed through a communication dated 14.01.2011 to the first opposite party by the second opposite party. Again on 07.04.2011, the second opposite party sent a communication to include the names of the candidates who remitted the fees for the January 2011 batch including the complainant. The complainant attended the January 2011 batch semester examination and thereafter also he attended the other semester examinations. But the first opposite party did not furnish the results of the complainant stating that he did not pay the fees for January 2011 batch and he paid for July 2011 batch and hence his results were cancelled and the same would not published it is not his mistake, the second opposite party only remitted the semester fees to the first opposite party and it is only an error and the same also informed by the second opposite party to rectify the same by the first opposite party. This act made the complainant to suffer severe mental agony and torture. After completing the course also he could not apply for any job due the adamant attitude of the first opposite party in not furnishing the semester exam results. He sent several communications to the first opposite party and second opposite party but both the opposite parties failed to take action. The act of the first opposite party will amount to deficiency in service to rectify the order error and also and unfair 4 trade practice of receiving the semester fees for July 2011 for twice. The opposite parties would be liable to pay compensation for the latches for not providing the exam results despite continuous request from 26.07.2012 to till date. Therefore, the complainant is entitled to claim compensation for mental agony and torture suffered by the complainant directing the opposite parties 1 & 2 to furnish the semester exam results from January 2011 batch i.e. 2nd semester to last semester and also to furnish the 1st year course completion certificates, assignment marks and also other necessary certificates and a sum of Rs.10,00,000/-towards compensation for deficiency in service and unfair trade practice adopted by opposite parties 1 and 2 and a sum of Rs.10,00,000/- towards compensation for mental agony and torture and a sum of Rs.25,00,000/- towards compensation for being deprived from getting a job and handful salary for 2 years and a sum of Rs.20,000/- towards the cost of this proceedings.
3. The opposite parties entered into appearance through Advocate on 25.08.2015 they have not filed their written version till 17.11.2015. Considering the non filling of written version on their side the matter was adjourned to 16.12.2015 for filing proof affidavit of complainant. Even though the opposite parties were represented on the hearings they have not filed their written version within the statutory period. After filing proof affidavit on the side of complainant the matter was adjourned at request by the opposite parties to file their proof affidavit and they have not filed their proof affidavit also. On 30.08.2018 both opposite parties were set as ex-parte. After marking of documents on the side of complainant the matter was adjourned for filing written 5 arguments on the side of complainant. After filing written arguments on the side of complainant the opposite parties filed an application to set aside the ex-parte order passed against them and also to condone the delay in filing the written version in M.P.S.R.No.185/2019 and M.P.S.R.No.186/2019. Both applications were dismissed as not maintainable on the ground that the Commission has not empowered to set aside it‟s own order under the provisions of Consumer Protection Act 1986 and the application for condoning the delay in filing written version is also not maintainable both applications were dismissed on 25.11.2021. No information was furnished by the opposite parties whether they have approached appellate authority or not? Subsequently, the complainant written arguments is treated as their oral arguments and posted the matter for pronouncing order.
4. In this complaint the complainant examined himself as PW1 by filing proof affidavit and additional proof affidavit were marked as Ex.A1 to Ex.A14 on the side of complainant.
5. Point for consideration is:
Whether the complaint filed by the complainant as a student is maintainable before this Commission or not?
6. Point: The complainant joined in M.B.A Course in the 1st opposite party‟s university and he got his name to be registered for Indira Gandhi National Open University (INGOU), Convergence Scheme through the second opposite party. He got selected under regular scheme for the academic year 2010-2013 by the second opposite party‟s college. The admission was in July 2010 and it was valid upto the year 6 2018. He was allotted a Registration No.as 105695950 and the duration of the course is for 3 years from June 2010 to May 2013. The dispute between the parties is only with regard to cancellation of results by the first opposite party on the ground of non- payment of fees and also the results were not published by the opposite parties.
7. It was held by the Hon‟ble National Consumer Disputes Redressal Commission, New Delhi while disposing the case - III 2016 CPJ 2013 (NC) in the case of - Anurudh Tamrakar -Vs- Global Engineering College Jabalpur and Others. It is settled law that the student is not a „consumer‟. The consumer court has got no jurisdiction to entertain this case. This view is supported by a number of Supreme Court authorities in Bihar School Examination Board -Vs- Suresh Prasad Sinha. In the above case the question was elaborately discussed as follows: the definition of terms, service and deficiency in clause as (o) and (g) Section 2 of the Act which are relevant the extracted below:
8. "Section 2 (o) : „Service‟ means service of any description which is made available to potential users and includes, but not limited to, the provisions of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
"Section 2(g): „Deficiency‟ 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 7 be performed by a person in pursuance of a contract or otherwise in relation to any service".
9. According to the definition of „consumer‟ in Section 2 (d) of the Act, a person who hires or avails of any services for a consideration, is a consumer. The following category of service-availors will not be consumers: (i) persons who avail any service for any commercial purpose; (ii) persons who avail any free service; and (iii) persons who avail any service under any contract of service. A consumer is entitled to file a complaint under the Act if there is any deficiency in service provided or rendered by the service provider.
10. The Board is a statutory authority established under the Bihar School Examination Board Act, 1952. The function of the Board is to conduct school examinations. This statutory function involves holding periodical examinations, evaluating answer scripts, declaring results and issuing certificates. The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its "services" to any candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board, for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be 8 fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis- „-vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. Therefore, student is not a consumer the complaint filed by the complainant is not maintainable and answered accordingly for the point for consideration.
11. In the result, the complaint is dismissed as not maintainable. There shall be no order as to cost in this complaint.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 12th day of April 2022.
Sd/-xxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
List of documents marked on the side of the complainant Ex A1 - Copy of the Student I.D.Card issued by the 2nd opposite party. Ex A2 July 2010 Copy of the Assignment results issued by the opposite parties. Ex A3 14.01.2011 Copy of the letter issued by the 2nd opposite party to 1st opposite party.
Ex A4 07.04.2011 Copy of the letter issued by the 2nd opposite party to 1st opposite party.
Ex A5 02.08.2011 Copy of the communication regarding cancellation of result issued by the 1st opposite party to the complainant.
9Ex A6 14.02.2012 Copy of the communication regarding cancellation of result issued by the 1st opposite party to the complainant.
Ex A7 07.06.2012 Copy of the Email communication by the complainant to the opposite party.
Ex A8 26.07.2012 Copy of the communication sent by the complainant to the opposite party.
Ex A9 10.09.2012 Copy of the letter issued by the complainant to the opposite party.
Ex.A10 18.09.2012 Copy of the communication issued by the 1st opposite party to the complainant.
Ex.A11 08.10.2012 Copy of the communication regarding cancellation of result issued by the 1st opposite party to the complainant.
Ex.A12 07.11.2014 Copy of the Conduct certificate issued by the 2nd opposite party. Ex.A13 20.04.2015 Copy of the Admission Status issued by the opposite parties. Ex.A14 18.05.2015 Copy of the Legal Notice issued by the complainant‟s counsel along with Postal receipt and Acknowledgement card.
List of documents marked on the side of opposite parties.
-Nil-
Sd/-xxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.