State Consumer Disputes Redressal Commission
Narinder Gupta vs Nishu Bala & Ors. on 18 December, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1499 of 2009.
Date of Institution: 22.10.2009.
Date of Decision: 18.12.2013.
Narinder Gupta C/o Delhi Medical Hall, Sangrur, Ex-Chairman of Guru
Ram Dass College of Technical Education, Sangrur.
.....Appellant.
Versus
1. Nishu Bala, D/o Sh. Janak Raj, R/o Ward No.7-A/226, Pathshala
Mohalla, Dhuri, District Sangrur.
....Respondent/complainant.
2. Guru Ram Dass College of Technical Education, Sangrur,
through its Principal.
3. IASE University, Sardarshahr (Rajasthan)-331401, through its
Registrar.
...Respondents.
First Appeal against the order dated
30.09.2009 passed by the District
Consumer Disputes Redressal Forum,
Sangrur.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. Sandeep Bhardwaj, Advocate, counsel for the appellant.
None for respondent no.1.
None for respondent no.2.
Respondent No.3 Exparte.
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First Appeal No.1499 of 2009 2INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Sh. Narinder Gupta, appellant/OP-2 (In short "the appellant") has filed this appeal against the order dated 30.09.2009 passed by the learned District Consumer Disputes Redressal Forum, Sangrur (in short "the District Forum").
2. Facts in brief are that Ms Nishu Bala, respondent/ complainant (hereinafter called "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant and respondents no.2 & 3/OPs-1 & 3, on the grounds that she wanted to do Diploma in Medical Laboratory Technology (DMLT) and after seeing the pamphlet of respondent no.2 college, respondent no.1 approached the appellant for consultation to do DMLT. The appellant asked respondent no.1 to do Certificate in Medical Laboratory Technology (CMLT) as the necessary qualification for taking admission in DMLT was 10+2 or CMLT. Respondent no.1 was Matriculate and on the asking of the appellant, she took admission in CMLT in September, 2004 in respondent no.2 college, whose chairman was the appellant at that time. Respondent no.1 deposited the fee as per the direction of the appellant, including the fee of examination and she was issued roll number. She appeared in the examination and was declared pass and certificate of CMLT first semester was issued by respondent no.3 which was handed over to respondent no.1 by the appellant. Thereafter, the fee for second semester was got deposited by the appellant, including the exam fee of second semester of CMLT. After the examination, the appellant asked respondent no.1 to deposit the fee for DMLT. On asking about the result of CMLT, the appellant told respondent no.1 that she has passed First Appeal No.1499 of 2009 3 in second semester and a certificate to that effect will be sent. On the assurance of the appellant, respondent no.1 deposited the fee for DMLT and kept on depositing the fee time to time as asked by the appellant for DMLT. Examination fee for DMLT first semester was got deposited by the appellant and thereafter, roll number was issued by the appellant. Respondent no.1 appeared in the exam, but the result was not declared.
3. Respondent no.1 demanded the certificate of CMLT second semester and of the DMLT first semester from the appellant and the appellant assured that she has cleared CMLT second semester as well as DMLT first semester and asked respondent no.1 to deposit the fee for DMLT second semester. On the assurance of the appellant, respondent no.1 deposited the fee of DMLT second semester, including the examination fee of second semester and she was issued roll number by the appellant and she appeared in the examination of DMLT second semester, but the result of the same was also not declared. The appellant left the college and started his medical shop. Respondent no.1 approached the appellant a number of times, but he did not show any concern and threatened her. When respondent no.1 approached respondent no.2 to inquire about her result of CMLT second semester and both the semesters of DMLT, then respondent no.2 told her that she has to deposit the fee for third semester of DMLT and thereafter the result and detailed marks card will be issued by respondent no.3. Respondent no.1 deposited Rs.4,500/- as fee for third semester of DMLT in June, 2008, but no receipt was issued. Role number for the third semester of DMLT was also issued and the examination was held in July, 2008, but again no result was issued to her. Respondent no.1 asked respondent no.2 about the result and then it was told that her First Appeal No.1499 of 2009 4 CMLT has not been cleared, so she has to deposit the fee of CMLT second semester and to appear in CMLT second semester. Respondent no.1 asked him to show her result of CMLT, but respondent no.2 refused. Respondent no.1 contacted respondent no.3 on telephone to inquire about the truth and to know whether the exams taken by the appellant and roll number issued by the appellant to her were ever issued from the University and whether she has cleared the CMLT second semester and DMLT first and second semester, but respondent no.3 refused to give any information and asked her to approach the appellant and respondent no.2.
4. The appellant has spoiled her career due to his unfair trade practice. The appellant has charged excess fee for sending the fee to respondent no.3 and to bring the roll number, result etc. Respondent no.1 was harassed by the appellant and respondents no.2 & 3 for four years and she remained under mental stress. She is entitled to compensation of Rs.2.00 lacs and Rs.15,000/- as litigation expenses.
5. It was prayed that the appellant and respondents no.2 & 3 may be directed to issue the result card of CMLT second semester and DMLT first, second and third semester and to issue DMC and to pay Rs.2.00 lacs as compensation and Rs.15,000/- as litigation expenses.
6. In the written version filed on behalf of respondent no.2, it was pleaded that the complaint is not maintainable against respondent no.2. It was pleaded that respondent no.2 is merely an entity of Mata Savitri Devi Memorial Welfare Society and the appellant is a founder member of the society, who established GRD College of Technical Education, Sangrur under the resolution of is society. As per pleadings, respondent no.1 got admission in September, 2004 in GRD College and she has given two applications. Respondent no.1 has not come to First Appeal No.1499 of 2009 5 the District Forum with clean hands. Respondent No.2 College is providing only the distance education, being affiliated with IASE University, Rajasthan. Other allegations were denied and in the preliminary objections, it was pleaded that respondent no.1 is trying to mislead the District Forum and she has concealed true facts and she cannot be allowed to take advantage of her own wrongs. It was prayed that the complaint may be dismissed.
7. In the written version filed on behalf of the appellant, it was pleaded that the complaint is not maintainable against Ex-Officio member of the institute. The appellant ceased to be chairman of the society w.e.f. 21.01.2008 and the complaint is not maintainable. The appellant has no direct dealing with the student. Respondent no.1 has taken admission in respondent no.2 college. The annual fee of the course was Rs.12,000/- and respondent no.1 deposited only Rs.10,000/- per annum. Examination was conducted by respondent no.3 and respondent no.3 is responsible for declaration of the result. On receipt of complaint, the appellant informed respondents no.2 & 3. The entire record is with respondent no.2. Respondent no.2 requested respondent no.3 to declare the result of respondent no.1 and there is no deficiency in service on the part of the appellant. Respondent no.3 is responsible to declare the result or to give detailed marks card. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
8. In the written version filed on behalf of respondent no.3, preliminary objections were taken that respondent no.1 has not challenged any rules, by-laws, act and conduct of respondent no.3. Respondent no.3 is a university and the complaint is not maintainable against it. The entire set of facts given in the complaint show that First Appeal No.1499 of 2009 6 respondent no.1 has the grievance against the appellant and respondent no.2.
9. On merits, it was submitted that respondent no.1 has not contacted respondent no.3 and respondent no.1 has not mentioned her enrollment number or roll number for verification of details. There is no reason for impleading the answering respondent. All other allegations were denied and it was prayed that the complaint may be dismissed.
10. Parties led evidence in support of their respective contentions by way of affidavits and documents.
11. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that appellant and respondent no.2 are responsible for causing harassment and loss of four precious academic years of respondent no.1 and the appellant and respondent no.2 were directed jointly and severally to pay to respondent no.1 a consolidated amount of Rs. 50,000/- as compensation for harassment and Rs.3,000/- as costs of litigation.
12. Aggrieved by the impugned order dated 30.09.2009, the appellant has come up in appeal.
13. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant.
14. Neither the counsel for respondent no.1 nor of respondent no.2, nor anybody else appeared at the time of arguments.
15. Respondent no.3 has not contested the appeal and was proceeded against exparte.
16. The appeal was filed on the grounds that the present dispute is not covered under the Act. The District Forum has not First Appeal No.1499 of 2009 7 appreciated the fact that the fee was received by respondent no.2, as is clear from receipts Ex.C-5 to Ex.C-15. The appellant was chairman at that time, but he has not received any fee in his personal capacity and the appellant cannot be burdened to refund the fee in his personal capacity after he has ceased to be the chairman of the society. The District Forum ignored document Ex.R-8, written by respondent No.3 University to respondent no.1, wherein it is mentioned that respondent no.1 did not take the examination of second semester of CMLT and one paper of DMLT. Third semester was also not cleared by respondent no.1. Respondent no.1 could not pass the examination in time due to which her result could not be declared. Respondent no.1 cleared the examination of fourth semester of DMLT in the year 2006. The findings returned by the District Forum are against the factual position. The District Forum has wrongly believed the version of respondent no.1 that the roll numbers were issued to her for the first and second semester of DMLT whereas there is no such evidence on record. Respondent no.1 herself was at fault as she could not clear the examination of second semester of CMLT as is clear from letters Annexures R-8, C-18 and A-
1. The order passed by the District Forum is not sustainable and the same may be set aside.
17. We have considered the version of the appellant as given in the appeal and have minutely scrutinized the entire record.
18. Respondent no.1 took admission in respondent no.2 college and the said college was affiliated with respondent no.3 University. Respondent no.1 herself admitted that she has paid the admission fee, examination fee and appeared in examination of CMLT and DMLT semesters, but her results for second semester of CMLT and first semester of DMLT were not cleared. The subject matter of the First Appeal No.1499 of 2009 8 present appeal relates to education matter and such like matters have been excluded from the jurisdiction of the District Forum or of this Commission by various judgments of the Hon'ble Supreme Court. It has been held by the Hon'ble Supreme Court that the University is not a service provider and the student is not a consumer. Hon'ble Supreme Court in case "Maharishi Dayanand University Vs Surjeet Kaur", 2010 (2) Consumer Protection Cases-696, relying upon its earlier judgment in case "Bihar School Examination Board Vs. Suresh Prasad Sinha", (2009) 3 CPC-217, in Para-19 referred the above judgment and reproduced the order (relevant portion) as follows:-
"12. 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 fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-à-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 First Appeal No.1499 of 2009 9 the charge paid for the privilege of participation in the examination."
19. Relying upon the above proposition of law, it was again held by the Hon'ble Supreme Court that the University/Board is not a service provider, nor the student is a consumer and the examination fee does not come under the category of consideration for providing a service. Hon'ble Supreme Court recently in a case "P.T. Koshy & Anr. Vs Ellen Charitable Trust & Ors.", 2012(3) Consumer Protection Cases-615, held that the education institutions are not providing any kind of service. Therefore, in the matter of admission fee, etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act.
20. In view of above discussion and the law laid down, the District Forum had no jurisdiction to entertain any complaint regarding refund of admission fee, tuition fee, etc. in view of the law laid down by the Hon'ble Supreme Court. The order under appeal passed by the District Forum is not sustainable in the eyes of law. The complaint was required to be returned to respondent no.1/complainant for presenting the same before the appropriate authority, having jurisdiction.
21. Accordingly, the appeal filed by the appellant is accepted and the impugned order under appeal dated 30.09.2009 passed by the District Forum is set aside. No order as to costs.
22. Copy of the order be sent to the District Forum forthwith, with the direction that after due service of respondent no.1/complainant, the complaint along with documents should be returned to her, for First Appeal No.1499 of 2009 10 presenting the same before the appropriate authority, having jurisdiction.
23. It is made clear that the time spent from the date of filing of the complaint till today is excluded for the purpose of limitation.
24. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
25. The arguments in this appeal were heard on 06.12.2013 and the order was reserved. Now the order be communicated to the parties.
26. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member December 18, 2013.
(Gurmeet S)