State Consumer Disputes Redressal Commission
The Proprietor, Gandhi Institute Of ... vs Arup Sarkar on 28 May, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/636/2014 (Arisen out of Order Dated 31/03/2014 in Case No. Complaint Case No. CC/87/2013 of District North 24 Parganas DF, Barasat) 1. The Proprietor, Gandhi Institute of Management & Technology Prop., Mrs. Sarbani Das, D/o Santi Pada Das, AG-7, Salt Lake, Sector-II, P.S. East Bidhan Nagar, Kolkata-700 091, Dist. North 24 Pgs., West Bengal. ...........Appellant(s) Versus 1. Arup Sarkar S/o Uday Sarkar, Nimtala Bazar, P.S. Haringhata, P.O. Nimtala, Dist. Nadia. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. Rajesh Biswas Mr. Sibajisankar Dhar, Advocate For the Respondent: ORDER 28.05.2015 JAGANNATH BAG, MEMBER
The present appeal is directed against the order dated 31.03.14 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas, in CC Case No. 87/2013, whereby the complaint was allowed on contest against the OP with costs.
The Complainant's case , in brief, was as follows:
The Complainant being attracted by a newspaper advertisement went to the OP, namely, Gandhi Institute of Management and Technology, for admission in BCA course, which was said to have been recognized by UGC and approved by AICTE . He paid Rs. 400/- for prospectus and Rs. 10,000/- for registration on 6th June 2012. He took admission in the hostel of the institute . But, after a few days he saw that substandard food was being served. In the Fees Structure as supplied by the institute it was mentioned that free laptop and foreign trip would be arranged. The classes started on 18th June 2012 . The students were asked to submit original Admit Cards and Mark Sheets of Madhyamik and Higher Secondary Examinations for the purpose of registration in the University, namely EIILM University. But no registration certificate was received by the Complainant or by any other student. He was pressurized to purchase 8 journals @ Rs.150/- per journal from the institute. The classes of BCA were not held regularly due to the absence of Lecturers. In the month of December 2012, a class test was held, but no University Examination was held . He and others were compelled to pay Rs. 3,000/- for College Fusion. Again, they were asked to pay service charge @ 12 % on the tuition fees paid by them. It was noticed that the institute printed pictorial pamphlets containing photographs of current students continuing studies in First Year MCA stating that he / she got employment under reputed organisations which were false . The unfair acts of the institute raised suspicion amongst the students. The Complainant stopped attending the college. A total payment amounting to Rs.1,15,700/- on various accounts was made apart from another sum of Rs. 24,000/- on account of Caution Deposit and Hostel Fees for the months of August 2012 to December 2012. As the Complainant suffered huge financial loss and mental agony because of unfair trade practice by the institute, a complaint was lodged before the Ld. Forum below with prayer for direction upon the OP to pay a total sum of Rs. 6,61,584/-, being the claimed refund of the expenses incurred as well as cost and compensation.
The complaint was contested by the OP by filing W.V in which each and every allegation was denied asserting that the complaint was not maintainable .
It was specifically contended that the OP being an educational institution offers different courses of distance education. The examination is conducted by the OP institute, but preparation of question papers, evaluation of answer-sheets and publication of results are done by the concerned University. The institute runs only to arrange the classes , recruit faculties and arrange the examinations. It was further contended that the Complainant failed to submit the Migration Certificate which was required for registration. The OP had no negligence on their part and accordingly, dismissal of the case was prayed for.
Ld. Forum below, after having gone through the materials on record including documents filed by the Complainant, observed that the Complainant had deposited an amount of Rs.1,15,700/- which was not disputed by the OP. Ld. Forum below observed that the OP never stated that the seat against which the Complainant took admission for the BCA course remained vacant. Ld. Forum also observed that the OP had a moral duty to refund the major part of the fees after deduction of some amounts as administrative costs, but instead, the OP harassed the Complainant who has suffered mental pain, agony and harassment . Accordingly, Ld. Forum below allowed refund of Rs. 10,000/- as Registration Fee + Rs. 64,102/- as proportionate course fee, apart from payment of Rs.5,000/- as costs and Rs.12,000/- as compensation for mental pain, agony and harassment. In case of non-compliance of the order, the OP would have to pay Rs. 200/- per day from the date of order till realization.
Being aggrieved by and dissatisfied with the impugned order, the OP has come up before this Commission for setting aside the impugned order .
Ld. Advocate appearing for the Appellant submitted that the status of the institute is that of study centre and the Appellant institute is not a University. The fees etc. collected from the students are deposited to the University. The Respondent/Complainant enrolled himself with the institute as a student, who is not a consumer and as such, the complaint was barred by limitation. The concerned University has not been made a party in the original complaint case. In that position, the complaint should have been dismissed by the Ld. Forum below for non-joinder of necessary party. The OP institute only arranges the classes, recruits faculties and arranges the examinations. The Respondent/Complainant, having failed to submit the Migration Certificate which was required for registration, left the institute with a view to taking admission in another institute and filed the complaint case with a malafide intention to take refund of fees etc. in a very unlawful manner. Ld. Forum below has passed the order without due consideration of the material facts and documents placed before them and without having any jurisdiction in the matter. In citing the order of the Hon'ble National Consumer Disputes Redressal Commission as reported in 2014 (3) CPR 152 (NC), Ld. Advocate asserted that education is not a commodity and educational institutions are not providing any kind of service . This view of the Hon'ble Apex Court as taken in P.T. Koshi and Anr. vs- Ellen Charitable Trust and Ors., in Civil Appeal No. 22532/2012 , decided on 09.08.2012, is equally applicable in the present case . The order passed by the Ld. Forum below deserves to be set aside. The Appellant had no deficiency or negligence on their part.
Authorized representative appearing for the Respondent /Complainant submitted that the advertisements published by the institute offered a lot of facilities for the students who would enroll themselves with the institute. Several promises were made, but there was no fulfillment of such promises. Registration of the student was held up . The quality of food in the hostel was very poor and classes were not held regularly and on several occasions, unscheduled fees were charged. Everything was done at the whims of the authority of the institute. It is only a new point raised at the appeal stage that a student is not a consumer and education is not a commodity. Such point was never raised before the Ld. Forum below in their W.V. It was only submitted that the institute has approval of various Universities and the institute acts as coordinator who enrolls the students, remits necessary fees and sends documents and certificates etc. The OP institute in every way deprived the Complainant and other students without taking any care of their career building . There was deficiency in service and negligence on the part of the OP institute which the Ld. Forum below closely examined and decided the complaint with award of compensation cost and partial refund of fees. There is no question of setting aside the impugned order.
Ld. Advocate referred to a number of cases as decided by Hon'ble National Consumer Disputes Redressal Commission, namely, Bhupesh Khurana and Ors -vs- Vishwa Buddha Parishad and Ors (Original Petition No. 168 of 1994, decided on 29.09.2000) wherein it has been held that the students hired the services of the Respondents for consideration so, they are consumers as defined in CP Act. Again, in IIIT College of Engineering, Chandigarh -vs- Vikas Sood and Ors. (Revision Petition No. 648/672 of 2007 of NCDRC decision dated 2nd April 2013), it was held that the degree course for information technology being conducted by the Petitioner's college for the session 2000-2001 was neither affiliated with HP University or with AICTE , Delhi . The unfair trade practice being conducted by the Petitioner's college was established and the Revision Petition was dismissed. In another case, namely, HCNI Education -vs- Narendra Pal Singh (Revision Petition No. 2161 of 2012 of NCDRC order passed on 30th May 2013) , it was held that the OP was running the MBBS program, but produced misleading information and it was not only deficient in rendering service but also indulging into unfair trade practice. From all facts and circumstances , it is established that the institute has been indulging in unfair trade practice on the basis of false promises and manipulated information. The appeal should therefore be dismissed by upholding the impugned order.
Decision with Reasons We have gone through the memorandum of appeal together with copies of the impugned order, the petition of complaint and the W.V. submitted by the OP / Appellant before the Ld. Forum below, apart from other documents including receipts showing payment of fees etc by the Complainant.
Brief notes of argument filed by the Respondent have been gone through.
It is a fact that the Complainant enrolled himself with the OP's institute in 3 Years BCA degree course which was claimed to have been recognized by and affiliated to Periyar University. He deposited necessary fees. The Respondent / Complainant having not received the Registration Certificate from the concerned University became suspicious about actual affiliation or recognition by any University, not to speak of various Universities as stated in Written Version page 2. He wanted to withdrew his studentship from the OP institute and demanded refund of the entire amount paid by him.
It is the case of the Appellant/OP that they are acting as coordinator of the University and their main functions are to enroll the students, remit necessary fees and send documents and necessary certificates .
It is also the case of the OP Appellant that the Respondent / Complainant left the institute at his own whim and asked for refund of the course fees .
Ld. Forum below in their order held that imparting education is not a trade but a service against payment of fees, that the OP has 'moral duty' to refund the major part of the fees after deduction of some amount as administrative costs and that, from the materials on record it is evident that the Respondent/Complainant left the institute being dissatisfied with the functioning of the OP Institute in so far as the classes were not held regularly and his career was at stake.
The fact remains that the Respondent/ Complainant was a student under the OP institute. The Hon'ble National Consumer Disputes Redressal Commission by their order as reported in 2014 (3) CPR 152 (NC) decided on 02.05.2014 and also in another order reported in 2015 (2) CPR 81 (NC) wholly relied on the judgment of the Hon'ble Apex Court in Civil Appeal No. 22532/2012 and took the same view as expressed by the Hon'ble Apex Court in Maharshi Dayanand University -vs- Surjeet Kaur 2010 (11) 159 = 2010 (2) CPJ 696 SC holding that educational institutions are not providing any kind of service and therefore, in the matter of admission fees etc, there can not be a question of deficiency in service and such matters can not be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
Going by the above discussion, we are of the considered view that the present appeal succeeds and the impugned order is liable to be set aside.
Hence, Ordered That the appeal be and the same is allowed . The impugned order stands set aside and consequently, the complaint stands dismissed. However, the Complainant shall have liberty to get his grievance redressed by the proper Forum or Civil Court, as per law . There shall be no order as to costs. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER