State Consumer Disputes Redressal Commission
University Of Calicut, vs Prebin, on 25 June, 2011
Daily Order
First Appeal No. A/10/546 (Arisen out of Order Dated 13/05/2010 in Case No. CC278/05 of District Kollam) 1. SECRETARY,KSEB VYDYUDHI BHAVAN,PATTOM, TRIVANDRUM KERALA ...........Appellant(s) Versus 1. RADHA VENAD CONNECTION WEB WORLD ENTERPRISES,CHINNAKKADA KOLLAM KERALA ...........Respondent(s) BEFORE: Sri.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No: 546/2010
JUDGMENT DATED:25-06-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
1. University of Calicut, Repd. by its Registrar.
: APPELLANTS
2. The Controller of Examination, University of Calicut, Caicut-673 635.
(By Adv:Sri.G.S.Kalkura) Vs.
1. Prebin, S/o K.S.Prasad, Prebin Nivas, Pangal, Industrial Estate Post, Puduppariyaram Village, Palakkad - 678 7734.
(R1 by Adv:Sasthamangalam Sri. Jayakrishnan)
2. State of Kerala, : RESPONDENTS Rep. by its District Collector, Palakkad.
3. The Principal, Govt Victoria College, Palakkad.
JUDGMENT SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER Appellants are the opposite parties 2 and 3 and that respondents 1 to 3 are the complainant and opposite parties 1 and 4 respectively in CC.120/09 on the file of CDRF, Palakkad. The complaint therein was filed alleging deficiency of service on the part of opposite parties 1 to 4 in not publishing the complainant's result of the 2nd year B.A examination due to the missing of answer sheet. It was further alleged that due to the aforesaid failure in publishing result of the complainant's 2nd year B.A. examination the complainant was not issued B.A.Degree from the University and it resulted in loss of 3 years to the complainant and thereby the complainant suffered mental agony, inconvenience and financial loss. Thus, the complainant claimed compensation of Rs.4.lakhs under various heads.
2. Notice in the said complaint was served on the opposite parties and all of them entered appearance; but only the opposite parties 2 and 3 filed written version denying the alleged deficiency of service. It was contended that the University did not get the answer script of the complainant and it resulted in causing delay in issuing the degree certificate and mark list. It was further contended that the complainant and his father were adamant in the matter and that the complainant was not prepared to write supplementary examination for the 2nd year Hindi paper 3 and it is only because of the insistence of the complainant and his father to issue the mark list for the missing answer script caused the entire problem which resulted the delay of publishing the 2nd year examination result and thereby there occurred delay in issuing the BA degree certificate. It was further contended that the opposite parties issued BA Degree certificate to the complainant as directed by the Hon'ble High Court in the writ petition filed by the complainant. Thus, the opposite parties 2 and 3 prayed for dismissal of the complaint.
3. From the side of the complainant Exts.A1 to A22 documents were produced and marked. No oral evidence was adduced in the matter. On the basis of the facts and evidence on record, the Forum below passed the impugned order dated:13th July 2010 directing the opposite parties to pay an amount of Rs.1.lakh to the complainant as compensation for deficiency of service on their part with cost of Rs.1000/-. The opposite parties are made jointly and severally liable to pay the decreed amount within one month from the date of receipt of the order, failing which they are made liable to pay interest at the rate of 9% per annum from the date of the order till realization. Hence the present appeal.
4. We heard both sides. The learned counsel for the appellants/opposite parties 2 and 3 submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently challenged the very maintainability of the complaint in CC.120/09 on the file of CDRF, Palakkad. It is submitted that the complainant is not a consumer and the opposite parties are not service providers coming within the ambit of the Consumer Protection Act, 1986 and that the Forum below had no jurisdiction to entertain the complaint in CC.120/09. He much relied on the decision rendered by the Hon'ble Supreme court in Bihar School Examination Board Vs. Suresh Prasad Sinha reported in (2009) 8 SCC 483 and argued for the position that the appellant/University has been performing the statutory function by conducting academic examinations and that the appellant/University does not provide any service as contemplated under the Consumer Protection Act, 1986 and that the complainant being an examinee of the said examination is not a consumer. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the 1st respondent/complainant supported the impugned order passed by the Forum below. He submitted that the opposite parties did not take such a contention regarding the maintainability of the complaint and jurisdiction of the CDRF, Palakkad in their written version. He also relied on the decision rendered by the Hon'ble National Commission dated:12th November 2010 in the University of Kerala and another Vs. Asha.A in writ petition No.3386/2010 and argued for the position that imparting education can be treated as service coming within the ambit of the Consumer Protection Act and the Consumer Forum has jurisdiction to deal with the complaint alleging deficiency of service on the part of the University or other educational institutions and that the fee paid is to be considered as consideration for the services rendered by way of imparting education by the educational institution. He has also relied on the decision of the Rajasthan State Consumer Commission in National Law University Vs. Gnana Sahayam Sihag and Others reported in II (2010) CPJ 123 and submitted that conducting examination by the University is to be treated as service under the Consumer Protection Act and the University can be considered as service provider and student of the University is to be treated as consumer under the Consumer Protection Act. He also submitted that the 1st respondent/complainant suffered mental agony, inconvenience and loss of valuable years due to the deficiency of service on the part of opposite parties 1 to 4. Thus, the 1st respondent prayed for dismissal of the present appeal.
5. Points that arise for consideration are:-
1. Whether the Forum below (CDRF, Palakkad) had jurisdiction to entertain the complaint in CC.120/09?
2. Whether the complainant in the consumer complaint No.120/09 can be considered as a consumer and the opposite parties 2 to 4 as service providers coming within the ambit of the Consumer Protection Act, 1986?
3. Whether there was any deficiency of service on the part of the opposite parties as alleged by the complainant in CC.120/09?
4. Is there any legally sustainable ground to interfere with the impugned order dated:13th July 2010 passed by CDRF, Palakkad in CC.120/09?
6. Point Nos:1 and 2:-
There is no dispute that the 1st respondent/complainant was a student for B.A.Degree course in Government Victoria College, Palakkad. The 4th opposite party was the Principal of the said college. The said college is affiliated to University of Calicut (2nd opposite party). The 3rd opposite party is the Controller of Examinations, University of Calicut. It is an admitted fact that the 1st respondent/complainant appeared for the 2nd year B.A. examination conducted by the 2nd opposite party/University of Calicut. The said examination was conducted in May 2006. Admittedly, the result of the 2nd year B.A. examination of the complainant was not published on the ground that the University did not get the answer of script of the complainant for the 2nd year Hindi 3rd paper. The 2nd opposite party/University and its Controller of Examination blamed the 4th opposite party, the Principal, Government Victoria College, Palakkad in not forwarding the answer script of the Hindi 3rd paper after its evaluation. On the other hand, the 4th opposite party would contend that the answer script was forwarded to the University and the same was mis placed at the university itself. Anyhow, the complainant's 2nd year B.A. examination result was not published by the university on the ground of non availability of the answer script of the Hindi 3rd paper. Admittedly, the complainant completed his 3rd year of the B.A.Degree course and he also wrote the 3rd year B.A. Examination and passed in the said examinations conducted for the 3rd year B.A. Degree course. But, the complainant did not get his B.A Degree certificate due to the failure of the University in publishing his result for the 2nd year B.A. Examination. The 1st respondent/complainant approached the Hon'ble High Court by moving a writ petition and by virtue of the direction issued by the Hon'ble High Court, the 2nd opposite party/University of Calcutta issued B.A Degree certificate to the complainant. Admittedly, the BA Degree certificate was issued to the complainant in the year 2009. Thus, in fact the complainant lost his 3 valuable years in getting his B.A. Degree certificate. There can be no doubt about the fact that the complainant suffered mental agony and financial loss on account of the aforesaid negligence on the part of the opposite parties 2 and 3 in conducting the examination, evaluating the answer scripts and publication of the result of those examinations. The aforesaid negligence adversely affected the interest of the complainant in getting his BA degree certificate in time.
7. The case of the complainant is that he is a consumer and the opposite parties are service providers coming within the ambit of the Consumer protection Act, 1986. It is true that the opposite parties did not challenge the very maintainability of the complaint and jurisdiction of the Forum below to entertain the complaint in CC.120/09. But in the present appeal memorandum, appellants/opposite parties 2 and 3 have taken the contention that the 1st respondent/complainant is not a consumer and that the Forum below has no jurisdiction to adjudicate the dispute involved in the complaint in OP.120/09. In the appeal memorandum itself it is stated that in view of the decision of the Hon'ble Supreme Court in Bihar School Examination Board Vs. Suresh Prasad Sinha in Civil Appeal No.3911/03, the dispute involved in the complaint cannot be treated as a consumer dispute and that the Forum below failed to consider the principle enunciated in the Bihar School Examination Board's case (supra). So, this State Commission is legally bound to consider the aforesaid issue regarding the maintainability of the complaint in OP.120/09 and the jurisdiction of the CDRF, Palakkad in entertaining the said dispute involved in the complaint.
8. The complaint was filed alleging deficiency of service on the part of the opposite parties in publishing the complainant's result for the 2nd year B.A. Degree examination. It is the case of the complainant that there occurred negligence amounting to deficiency of service in evaluating the answer script of the complainant and also in publishing his result in the said examination. Admittedly, the appellant/2nd opposite party, University of Calicut conducted the 2nd year B.A Degree examination under the provisions of the Calicut University Act. Thus, the appellant/opposite party, Calicut University conducted the academic examinations under the provisions of a statute and thereby the appellant/University performed the statutory function by conducting University Examination. The mere fact that the complainant paid examination fee cannot be treated or considered as consideration for providing service by the University. It has been held by the Hon'ble Supreme Court in Bihar School Examination Board Vs. Suresh Prasad Sinha reported in (2009) 8 SCC 483 that statutory board does not provide any service in the term used in the Act and examinee is not a consumer. It is also held that the statutory board like the University or other institutions are not service providers and that the examinee is not a consumer. It is further held that the examination fee paid by the examinee is not a consideration for providing any service by the statutory board like University or examination board. It is categorically held that an examinee does not fall within the purview of the Consumer Protection Act. The principle enunciated by the Hon'ble Supreme Court in the Bihar School Examination Board's case (supra) can be made applicable in the present case. The facts and circumstances of the reported case would squarely applicable to the complaint in CC.120/09. Thus, the Forum below cannot be justified in not relying on the decision rendered by the Hon'ble Supreme Court in Bihar School Exaination Board's case (supra). This State Commission have no hesitation to hold that the complainant in CC.120/09 on the file of CDRF, Palakkad is not a consumer and the appellant/opposite party, University of Calicut is not a service provider coming within the ambit of the Consumer Protection Act. If that be so, the dispute involved in the aforesaid complaint cannot be termed or treated as a consumer dispute and that the Forum below had no jurisdiction to entertain the complaint in CC.120/09. Therefore, the impugned order passed by the Forum below is liable to be set aside. Hence we do so.
9. The learned counsel for the 1st respondent/complainant much relied on the decision rendered by the Hon'ble National Commission in the Revision Petition No.3386/10 in the case of University of Kerala and Another Vs. Asha.A. But the facts and circumstances of the aforesaid revision petition cannot be made applicable to the present case in our hand. But as far as the facts of the present case is concerned, the principle enunciated by the Hon'ble Supreme Court in Bihar School Examination Board's case is to be made applicable. The facts of the aforesaid reported case are squarely applicable to the facts of the present case. Thus, this State Commission have no hesitation to reject the case put forward by the learned counsel for the 1st respondent/complainant. The present appeal is to be allowed by setting aside the impugned order dated:13th July 2010 passed by CDRF, Palakkad in CC.120/09. These points are answered accordingly.
10. Point Nos.3 & 4:-
The forgoing discussions and the findings thereon would make it clear that the Forum below had no jurisdiction to entertain the dispute regarding deficiency of service on the part of the opposite parties in CC.120/09. So, the aforesaid issue regarding the negligence and deficiency of service on the part of the opposite parties is left open for consideration by a competent Civil Court or other authority legally constituted under law. The materials available on record would make it crystal clear that the opposite parties were negligent in conducting the examination for the 2nd year, B.A.Degree examination and publishing the result of the complainant who appeared for the aforesaid examinations during April, 2006. So, the 1st respondent/complainant has got a god case for getting damages for the negligence and lapses on the part of the opposite parties. But the agencies constituted under the Consumer Protection Act, 1986 have no jurisdiction to entertain the dispute regarding negligence on the part of the University and other educational institutions coming under the University. Therefore, the complainant in CC.120.09 has to approach a Civil Court competent to decide the aforesaid issues involved in the complaint in CC.120/09. Of course the complainant is entitled to get the time spent by him in prosecuting the aforesaid CC.120/09 and in defending the present appeal No. 546/10 exempted under Sec.14 of the Limitation Act. Hence we hold that the impugned order passed by the Forum below is legally unsustainable. These points are answered accordingly.
In the result, the above appeal is allowed and the impugned order dated:13th July 2010 passed by CDRF, Palakkad in CC.120/09 is set aside. The parties to the appeal are directed to suffer their respective costs throughout. The 1st respondent/complainant is entitled to get the time spent for prosecuting the complaint in CC.120/09 and in defending the present appeal excluded under sec.14 of the Limitation Act, in the event the complainant is interested in prosecuting the matter before a competent Civil Court.
M.V. VISWANATHAN: JUDICIAL MEMBER VL.
[ Sri.M.V.VISWANATHAN] PRESIDING MEMBER