State Consumer Disputes Redressal Commission
Sakshi Otwani vs Delhi Academy Of Medical Science Pvt. ... on 6 June, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/242
Instituted on : 25.03.2017
Sakshi Otwani, D/o Shri Anil Otwani,
Aged about 20 years,
R/o : Near Ayappa Temple, Bhartiya Nagar,
Bilaspur (C.G.) ... Appellant/Complainant
Vs.
1. Delhi Academy of Medical Sciences Pvt. Ltd.,
Through : Its Director,
4-B, 3rd Floor, Grover Chamber,
Near Metro Station, Pusa Road, Karol Bagh,
New Delhi - 110005
2. Luv Jaiswal, Centre Head,
Delhi Academy of Medical Sciences Pvt. Ltd.,
Arora Niwas, In front of CIMS Auditorium,
District Bilaspur (C.G.) ... Respondents/OPs
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Anshuman Shrivastava, Advocate for the appellant (complainant).
Shri Ajay Kumar Dwivedi, Advocate for the respondents (OPs).
ORDER
DATED : 06/06/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 15.03.2017, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum") in Complaint Case No.472/2016. By the impugned order, learned District Forum, has dismissed the complaint of the complainant.
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2. Briefly stated, the facts of the complaint of the complainants are that the complainant is a second year student of All India Institute of Medical Sciences, Raipur as she is pursuing the course of MBBS. The complainant is desirous of obtaining degree of Post Graduate in medical and in order to get the best coaching she had taken the scholarship test, which was conducted by the O.P. No.1 at its various centre's which include at the centre of O.P. No.2. All possible endeavors were made by the complainant to take the entrance test in the mid of a professional exam. The performance of the complainant in the entrance test was excellent to get a rank among the top 20. The scholarship exam for the purpose of getting coaching from Delhi Academy of Medical Sciences Private Limited held on 23.10.2016. The complainant after completion of exam submitted her answer sheet to Mr. Luv Jaiswal, who is the Head-in-Charge of the Delhi Academy of Medical Sciences Private Limited, Bilaspur. The complainant came to know on 30.1.2016 that the result of the exam, which was conducted on 23.10.2016 has been declared and she did not find her name in the list published by O.P. No.1. The complainant was confident that she must get a position in first 20 of the list, but all the expectations were shattered when she came across to the result, which was uploaded by the O.P. No.1 on its website. On the very same date the complainant made a contact to the O.P. No.2 and had enquired about a result. During the course of conversation, it has cropped up that Mr. Luv Jaiswal did not send the answer sheet of the complainant to the O.P. No.1. The complainant was anticipating that the proper reply would be given by // 3 // Mr. Luv Jaiswal with regard to the answer sheet, but nothing substantial has been done by Mr. Luv Jaiswal. After running from pillar to post, the complainant made a contact to the O.P. No.1 and all of sudden the efforts were made by the complainant to obtain the answer sheet of the complainant from the O.P. No.2. The result of the exam was declared on 30.11.2016, whereas the result of the complainant was declared on 03.12.2016 and she was informed that she had scored 28th rank at All India Level. It is beyond the understanding of a common man that how the 28th rank has been awarded to the complainant when in the result dated 30.11.2016 someone else was already placed at Sr. No.28 in the list of selected candidates. The complainant time and again made a number of representations to the O.P. No.1 to show the answer sheet of the complainant as well as the answer sheets of those students who were place above to the complainant in the select list. Despite of number of communications made by the complainant till date, no heed has been paid by the O.P. No.1 to the legitimate demand of the complainant. Hence, the complainant filed instant complaint before the District Forum and prayed for granting reliefs as prayed in the prayer clause of the complaint.
3. The OPs filed written statement and raised preliminary objection. The OPs averred that the complainant has approached the District Forum with unclean hands and is guilty of suppressing material facts and as such, the present complaint is liable to be dismissed with cost. The District Forum has no jurisdiction to entertain the present complaint. The parties in the present matter have raised a substantial disputed questions of facts and law which // 4 // cannot be adjudicated under summary proceedings, but only in Civil Court by leading proper evidence, the present matter can be adjudicated. The disputed questions of facts are involved and as such, the Consumer Forum established under the Consumer Protection Act, 1986 cannot entertain the present complaint. Thus, the present complaint is liable to be dismissed. No cause of action arisen in favour of the complainant and against the OPs for filing the present complaint and as such the present complaint is liable to be dismissed in accordance with Order 7 Rule 11 CPC. There is no deficiency in service or negligence on the part of the OPs. The present complaint is false, vexatious and has been filed with malafide intent and is clear case of an attempt on the part of the complainant to misled the District Forum into believing that the OPs were negligent in providing the services to the complainant, which is not the case. The present complaint is not maintainable before the District Forum as the District Forum has no territorial jurisdiction to deal with the present complaint. Neither the O.P. No.1 Institute is situated within the local limits of jurisdiction of the District Forum, Bilaspur nor the cause of action wholly or in parts has arisen within the local limits of the jurisdiction of District Forum, Bilaspur. The complainant appeared for the DAMS Scholarship Test (hereinafter referred to as "DST") for availing the Scholarship for taking admission in Pre Foundation. Three Years Course conducted by the OPs at all India Level. The DST was conducted on 23.102016. The complainant was the only student who appeared in the DST in the Bilaspur Centre of the OPs. The OPs offers scholarship facilities on the // 5 // basis of the ranking of the students who appear in the DST. The result of DST was declared on 30.11.2016 and the merit list was uploaded on the official website of the OPs. The students, who wished to apply for scholarship as applicable to them under the Scholarship scheme with regard to their respective ranking, were to make a formal application on or before 31.12.2016 Within a week from the declaration of the result on 30.11.2016, the complainant's father approached the Head Office of the OPs informing that the result of the complainant was not available in the merit list released by the OPs. As soon as this information was communicated to the OPs, the OPs immediately took steps to inquire into the matter. On inquiry, it was brought to the notice that the answer sheet was not received by the OPs and hence, could not be evaluated along with the other answer sheet. The OPs acting bonafidely and diligently, immediately took steps to provide the result of the complainant as soon as possible and hence, as admitted by the complainant in her complaint, the OPs communicated the result of the complainant on 03.12.2016 i.e. within 3 days from the date of the declaration of the merit list by the OPs on 30.11.2016. Along with the result, the OPs duly informed the complainant that as per the Scholarship Scheme she is entitled to the following :-
a) That, the complainant is entitled to get any test series i.e. OLTS and Combo test series free of cost; or // 6 //
b) that, if the complainant wishes to join any class room course she can avail 10% discount in the course fee fixed for the said course.
The above mentioned entitlements are applicable in the alternative and not concurrently. Hence the complainant had the choice to apply for either of the two options within the time prescribed for availing the required Scholarship Scheme. However, the complainant never approached the OPs declaring her intention to avail the above scheme, and within two weeks of receiving her result filed this complaint. This is clearly indicative of the fact that the complaint filed by the complainant is false, frivolous and vexatious qua the OPs and has been only filed with malafide intention, in order to harass and extort money from the OPs. The present complaint is neither maintainable in the eyes of law nor in present facts and circumstances and hence liable to be dismissed in limine against the OPs, as it does not show any cause of action in favour of the complainant and against the OPs. The complainant approached the OPs on 05.01.2017 enquiring about the discount available to her under the Scholarship Scheme, to whom it was informed that the last date to apply for availing the benefit under the Scholarship scheme was 31.12.2016 and since the complainant neither communicated the option she wishes to opt nor did she indicate any intention of availing the benefit under the Scheme at all, hence the same cannot be provided to her at such belated stage.
// 7 // However, it was also informed to the father of the complainant that since the complainant has enrolled in the Group Scheme of the Raipur Branch, wherein every student under the Group Scheme is eligible for 15% discount each, and accordingly she has already been accredited with 15% discount in the said course. Therefore, it does not lie in the mouth of the complainant to claim discounts over discounts without any reason whatsoever. In the present case, the complainant had accepted the terms and conditions of admission in the group scheme of the Raipur Branch thereby availing the 15% discounts in the said course fees, it thus, becomes a contractual agreement between the parties which cannot be violated in a whimsical manner. The OPs is a well reputed Instituted for having successfully coached a large number of Doctors/Medical Students for appearing in the competitive exam for post graduate medical course and also that in the present complaint no allegation per se regarding unfair trade practice or deficiency in service has been made against the OPs. The process of evaluation and ranking is a mechanical process whereby the answer sheets of the students appearing in the DST, which are in form of OMR Sheet, are put into the system and are accordingly evaluated. Also, the rankings are given by the specialized software using standard formulas of ranking. In the entire process of evaluation of the OMR Sheet and ranking, there is bear minimal human interaction involved, hence there arises no valid ground for deficiency in services by the // 8 // OPs. The present complaint is not maintainable as the complainant (student) is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. Imparting of education is a noble cause and not a service. Further the education cannot be equated with commercial activity. The OPs institute is imparting education for the benefits of the public and the object behind it is noble cause and the same cannot be brought within ambit of service as contemplated in the Consumer Protection Act, 1986. The complaint is liable to be dismissed.
4. The complainant has filed documents. Document Annexure A-1 is Admission Form, Annexure A-2 is email dated 05.12.2016 sent by the complainant to the OPs.
5. The OPs have filed documents. Annexure A is copy of the Scholarship Scheme, Annexure B is copy of Student Ledger Receipt dated 15.01.2017.
6. Learned District Forum, after having considered the material placed before it by the parties, has dismissed the complaint by the impugned order.
7. Shri Anshuman Shrivastava, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) is a third year student of All India Institute of Medical Sciences, Raipur and she is pursuing the course of M.B.B.S. The appellant (complainant) is desirous of obtaining degree of postgraduate in medical and in order to get the best // 9 // coaching she had taken scholarship test, which was conducted by the O.P. No.1at various centres. The scholarship exam for the purpose of getting coaching from Delhi Academy of Medical Sciences Private Limited held on 23.10.2016. The appellant (complainant) after completion of exam submitted her answer sheet to O.P. No.2, who is the Head-in-Charge of the Delhi Academy of Medical Sciences Private Limited, Bilaspur. The examination was conducted on 23.10.2016 and the result was declared on 30.11.2016. The appellant (complainant) was confident that she must get a position in first 20 of the list, but all the expectation were shatter when her name was not found in first 20 of the list. The appellant (complainant) contacted to the O.P. No.2 and had enquired about the result. During the course of conversation, it came to know that the O.P. No2 did not send the answer sheet of the appellant (complainant) and he did not give proper reply. The result of the appellant (complainant) was declared on 03.12.2016 and she was informed that she had scored 28th rank at All India Level. It is beyond understanding of a common man that how the appellant (complainant) got 28th rank when in the result dated 30.11.2016 some else was already placed at Sl. No.28. Due to negligent act of the respondent (OPs), the appellant (complainant) deprived from getting scholarship. The respondents (OPs) committed deficiency in service. The learned District Forum did not appreciate the above facts and dismissed the complaint of the appellant (complainant). The impugned order passed by the District Forum, is erroneous and is liable to be // 10 // set aside. The appellant (complainant) is entitled to get reliefs, as prayed in the prayer clause of the complaint. The appeal may be allowed.
8. Shri Ajay Kumar Dwivedi, learned counsel appearing for the respondents (OPs) has argued that the appellant (complainant) is not consumer of the respondents (OPs) and the dispute between the parties is not consumer dispute. The reliefs sought by the appellant (complainant) from the respondents (OPs) cannot be granted by the District Forum. Only Civil Court or Hon'ble High Court is competent to award such type of relief. No cause of action arisen in favour of the appellant (complainant) and against the respondents (OPs) for filing the instant complaint. The respondents (OPs) did not commit any deficiency in service or negligence. The complaint is not maintainable. The respondents (OPs) offers scholarship facilities on the basis of the ranking of the students who appear in the DST. The result of DST was declared on 30.11.2016 and the merit list was uploaded on the official website of the respondents (OPs). The respondents (OPs) acting bonafidely and diligently, immediately took steps to provide the result of the appellant (complainant) as soon as possible and the appellant (complainant) was intimated regarding her result on 03.12.2016 i.e. within 3 days from the date of the declaration of the merit list by the respondents (OPs) on 30.11.2016. . The process of evaluation and ranking is a mechanical process whereby the answer sheets of the students appearing in the DST, which are in form of OMR Sheet, are put into the system and are accordingly evaluated The appellant (complainant) is not consumer under Section 2(1)(d) of the // 11 // Consumer Protection Act, 1986. The learned District Forum has rightly dismissed the complaint of the appellant (complainant). The appeal filed by the appellant (complainant) be dismissed.
9. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum, as well as the impugned order.
10. The appellant (complainant) sought following reliefs :-
"I. The respondent No.1 be may kindly be directed to place before the Hon'ble Forum not only the answer sheet of the complainant but also the answer sheets of those candidates, who are being placed above to the complainant in the merit list.
II. Further directions may kindly be issued to the respondent No.1 to extend the benefit of scholarship, which is given to the students, who have secured position in first 20 of the merit list.
III. The respondents be directed to pay an amount to the tune of Rs.2 lacs for committing an act of deficiency in service and unfair trade practice."
11. Learned District Forum has observed in the impugned order that looking to the answer sheet and result sheet filed by the respondents (OPs), the ground taken by the appellant (complainant) is baseless. The complaint is liable to be dismissed and the same is dismissed.
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12. In Parveen Rani Vs. Punjab School Education Board & Anr. III (2003) CPJ 164 (NC), Hon'ble National Commission has observed thus :-
"3. In the case of Unnikrishnan v. State of A.P., 1993 (1) SCC 645, Hon'ble Supreme Court held as follows :-
"The fundamental purpose of education is the same at all times and in all places. It is to transfigure the human personality into a pattern of perfection through a synthetic process of the development of the body, the enrichment of the mind, the sublimation of the emotions and the illumination of the spirit. Education is a preparation for a living and for life, here and hereafter.
Today, the frontier of knowledge are enlarging with incredible swiftness. The foremost need to be satisfied by our education is, therefore, the eradication of illiteracy which persists in a depressing measure. Any effort taken in this direction cannot be deemed to be too much.
Education has never been commenced in this country. Making it one is opposed to the ethos and traditions and sensibilities of this nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since time immemorial. It has been treated as a religious duty."
In a catena of judgments, this Commission has expressed the same view latest being the case of Chairman, Board of Examination, Madras v. Mohideen Abdul Kader, II (1997) CPJ 40 (NC), wherein this Commission held :
"What this Commission has decided in earlier cases is that a University or the Board in conducting public examination, evaluation answer papers, announcing the results thereof and thereafter conducting re-checking of the mark of any candidate on the application made by the concerned candidate is not performing any service for // 13 // hire and there is no arrangement of hiring of any service involved in such a situation as contemplated by Section 2(1)(o) of the Act. A candidate who appears for the examination cannot be regarded as a person who had hired or availed of the services of the University or Board for consideration."
13. In Institute of Cooperative Management Vs Naveen Kumar Chaudhary, Shitanshu Ranjan, Anshul Saini, Anamika Singh, Nisha Aarif Faridi, III (2014) CPJ 120 (NC), Hon'ble National Commission, has observed thus :-
"9. We have perused the Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483, wherein it was held that statutory Board does not provide any service in the sense, the term is used in the Act and examinee is not a consumer.
It was held that Board is not a service provider. In para 11 of the said judgment, it was held as under :
"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 the answer scripts, declaring the 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".
10. The learned Counsel for petitioner has also referred to the judgment of Hon'ble Apex Court titled P.T. Koshy & Anr. v. Ellen Charitable Trust // 14 // & Ors., in Civil Appeal No.22532/2012, decided on 9.8.2012, wherein it was held as under :-
"In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur, 2010 (11) SCC 159, wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees, etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
In view of the above, we are not inclined to entertain the special leave petition. Thus, the Special Leave petition is dismissed."
13. In a recent judgment in Civil Appeal No.697 of 2014, titled Indian Institute of Bank & Finance (IIBF) v. Mukul Srivastava, dated 17.1.2014, passed by the Hon'ble Apex Court, the Hon'ble Apex Court has also referred to the judgments reported in Bihar School Examination Board v. Suresh Prasad Sinha (supra), Maharshi Dayanand University v. Surjeet Kaur (supra) and Jagmittar Sain Bhagat v. Director Health Services, Haryana & Ors., III (2013) CPJ 22 (SC) = 2013 (10) SCC 136 holding that the student, under such circumstances, is not a 'consumer'." 14 In Bihar School Examination Board & Ors. vs. Kundan Kumar & Anr., I (2015) CPJ 97 (NC), Hon'ble National Commission, has observed thus :-
"6. Learned Counsel for the petitioner submitted that there was no relationship of consumer and service provider between the parties, so complaint was not maintainable. He has placed reliance on the judgment of Hon'ble Apex Court in C.A. No.3911 of 2003 Bihar School Examination // 15 // Board v. Suresh Prasad Sinha, VII (2009) SLT 109 = IV (2009) CPJ 34 (SC), in which it was observed as under:
"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 the answer scripts, declaring the 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 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 the charge paid for the privilege of participation in the examination.
11. The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a // 16 // consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi-commercial activity). But the Act does not intended to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer-scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service-provider for a consideration, not convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a 'service provider' and a student who takes an examination is not a 'consumer' and consequently, complaint under the Act will not be maintainable against the Board.
7. Aforesaid judgment makes it crystal clear that when Examination Board conducts an examination in discharge on its statutory functions involving holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates then there is no relationship of consumer and service provider between the parties and, as such, complaint was not maintainable before District Forum. Learned Counsel for the respondent could not place any citation of Hon'ble Apex Court contrary to aforesaid judgment and in such circumstances, revision petition is to be allowed.
15. On the basis of above cited judgments and looking to the reliefs sought by the appellant (complainant), it appears that the appellant (complainant) is not a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 and the dispute between the parties is not a consumer dispute. The reliefs sought by the appellant (complainants) against the respondents (OPs) cannot be awarded by the Consumer Fora, therefore, the // 17 // complaint is not maintainable before the District Forum. The appellant (complainant) is not entitled to get any reliefs from the District Forum or State Commission. The learned District Forum, has rightly dismissed the complaint of the appellant (complainant).
16. Therefore, the finding recorded by the District Forum, is just and proper and does not suffer from any infirmity, irregularity and illegality, hence does not call for any interference by this Commission.
17. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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