State Consumer Disputes Redressal Commission
Parwati Prema Jagati Saraswat Vihar vs Master Abhisek Kweera And Andother on 5 September, 2022
Appeal No. 114 of Parwati Prema Jagati Saraswati Vihar 05.09.2022
2017 Vs.
Master Abhishek Kweera and Ors.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 14.07.2017
Date of final hearing: 02.09.2022
Date of Pronouncement: 05.09.2022
First Appeal No. 114 / 2017
Parwati Prema Jagati Saraswati Vihar
Durgapur, Birbhatti, Nainital
Through its Authorised Signatory & Office In Charge
Sh. Vijendra Nath Gupta
(Through: Sh. Vaibhav Jain, Advocate)
.....Appellant
VERSUS
1. Master Abhishek Kweera S/o Sh. Shiv Narayan Kweera
R/o Dhaulkhera, Haldwani, Nainital
Through its Natural Guardian and Father
Sh. Shiv Narayan Kweera
2. Sh. Shiv Narayan Kweera S/o Sh. Daan Singh Kweera
R/o Dhaulkhera, Haldwani, Nainital
None for Respondent Nos. 1 & 2
3. The Manager, Parwati Prema Jagati Saraswati Vihar
Durgapur, Birbhatti, Nainital
4. The Principal, Parwati Prema Jagati Saraswati Vihar
Durgapur, Birbhatti, Nainital
5. The Warden, Parwati Prema Jagati Saraswati Vihar
Durgapur, Birbhatti, Nainital
None for Respondent Nos. 3 to 5
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
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Appeal No. 114 of Parwati Prema Jagati Saraswati Vihar 05.09.2022
2017 Vs.
Master Abhishek Kweera and Ors.
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal has been filed against the judgment and order dated 13.06.2017 passed by the District Consumer Disputes Redressal Forum, Nainital (hereinafter to be referred as the District Commission) in consumer complaint No. 35 of 2016 tiled as Master Abhishek and another vs. Parwati Prema Jagati Saraswati Vihar and others, directing the appellant - opposite party No. 1 to pay the complainants - respondent Nos. 1 & 2, a sum of Rs. 55,000/- towards refund of fees and Rs. 5,000/- as costs of litigation.
2. The facts giving rise to the present appeal in hand, in brief, are as such that the complainant No. 2 deposited Rs. 1,20,000/- including fund lodging the school of opposite party No. 1 for imparting education to his child, i.e. complainant No. 1 in class 9th for the academic session 2013-14 as well as for availing services of his boarding and meal services, the complainant No. 1 got admission in school vide Roll No. 3349. At the time of admission, the complainant Nos. 1 & 2 were promised to avail a quality education, service for lodging / hostel and meal and further promised to reap healthy and secure atmosphere, but within a week of admission of complainant No. 1, all the discrepancies and deficiencies of opposite parties itself exposed before him, neither was there any hygienic or studying atmosphere in hostel nor in dining hall and the food was also not upto the mark, even there was no one to pay heed to new comer's genuine requests and on the top of that the senior boarders, with the implied consent of warden, used to treat the complainant No. 1 like their slave forcing him to work for them and even maltreated when complained; the Principal of the school instead of taking strict action on receiving complaint, also supported the senior residents and warden of the institution advising complainant Nos. 1 & 2 to adjust with them and change his nature else, he would have to 2 Appeal No. 114 of Parwati Prema Jagati Saraswati Vihar 05.09.2022 2017 Vs. Master Abhishek Kweera and Ors.
suffer more. In such compelling, circumstances the, complainant No. 1 was forced to leave the school within 10 days from admission in academic session 2013-2014 because there was no one to shelter the complainant No. 1; seeking no hope of restoration of a disciplined atmosphere, on or about 13th March, 2014, the complainant No. 2 had to demand all his hard earned money back from the opposite party's and at that time he was promised the amount to be returned, within a month after completing formalities, but lastly the opposite parties refused to refund. Then a legal notice dated 22.01.2015 through his counsel was sent which was served, but no reply was given by the opposite parties, hence, the complainants filed a complaint before the District Commission.
3. The appellants - opposite party Nos. 1 to 4 filed their joint written statement averring that the appellants are running an institution of High Academic atmosphere in the peaceful valley of Nainital known as "Parwati Prema Jagati Saraswati Vihar' Durgapur, Birbhatti, Nainital under the guidance Bhartiya Shiksha Samities since 1983. The appellants - opposite parties denied the allegations / charges made in the complaint stating that in the school, there is very familiar atmosphere and the allegations made by the complainant / student is totally false, concocted and not tenable because the Principal and warden of the school took quick action on the complaint of the student and the Principal of school gave proper response to the complainant No. 2. It is further pleaded that it is very clear in the school prospectus that the installment deposited by the student(s) will not be refunded, if the student(s) attends school even a single day and after completing all the formalities, the caution money has been refunded after deducting all dues, but the student / complainant refused to take the amount of the caution money amounting to Rs. 10,181/- through cheque No. 002115. In the school, more than 600 students are residing in the campus / boarding, not a single such complaint even from them, hence the averments 3 Appeal No. 114 of Parwati Prema Jagati Saraswati Vihar 05.09.2022 2017 Vs. Master Abhishek Kweera and Ors.
of the complaint are baseless, incorrect, hence, the complaint is liable to be dismissed.
4. After giving full opportunity of hearing to the parties, the consumer complaint was decided by the District Commission vide impugned judgment dated 13.06.2017 thereby allowed the consumer complaint to pay the awarded amount in the above terms.
5. On having been aggrieved by the impugned judgment, the present appeal has been preferred by the appellant - opposite party No. 1 of the complaint case.
6. It is also to mention that inspite of service, the respondents did not participate in the hearing, hence, an order was passed by this Commission to proceed the appeal ex-parte against the respondents.
7. The question for consideration before us is whether the respondent - complainant falls under the definition of 'Consumer' as defined under the Act and whether the appellant can be termed to a "service provider", or whether there was any deficiency in service on the part of the appellant.
8. In this regard, the appellant has referred to the following case law before use stating that the complainant was neither a consumer, nor the appellant was a service provider, nor there was any matter of unfair trade practice, nor there was any deficiency in service on the part of law and on the basis of the above several cited case law, the matter is not entertainable in District Consumer Commission, hence, liable to be dismissed.
9. Case laws relied upon by the appellant:-
1) Bihar School Examination Board Vs.
Suresh Prasad Sinha, IV (2009) CPJ 34
(SC)
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Appeal No. 114 of Parwati Prema Jagati Saraswati Vihar 05.09.2022
2017 Vs.
Master Abhishek Kweera and Ors.
2) Maharshi Dayanand University Vs.
Surjeet Kaur, (2010) 11 SCC 159
3) Civil Appeal No. 17802 of 2017; Anupama
College of Engineering Vs. Gulshan
Kumar and others
4) Director of Xavier Institute of
Management & Entrepreneurship Kinfra
Hi-Tech Park and others Vs. Sujay Ghose,
III (2022) CPJ 6 (NC)
5) Regional Institute of Co-operative
management vs. Navin Kumar
Chaudhary, (2014) 3 CPR (NC) 152
10. In the case of Bihar School Examination Board (supra) the Hon'ble Apex Court has laid down that Bihar School Examination Board does not offer "service" to any candidate, nor does any student hires or avails of any "service" from the Board for a consideration. Paragraph No. 10 of the said decision is reproduced below:
"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 5 Appeal No. 114 of Parwati Prema Jagati Saraswati Vihar 05.09.2022 2017 Vs. Master Abhishek Kweera and Ors.
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 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."
11. Hon'ble National Commission in its judgment dated 17.12.2017 rendered in Revision Petition No. 3144 of 2016; Krishan Mohan Goyal Vs. St. Mary's Academy and another, has discussed the law laid down by Hon'ble Apex Court in Maharshi Dayanand University Vs. Surjeet Kaur reported in (2010) 11 SCC 159, in which it has been laid down by Hon'ble Apex Court that a student is neither a consumer, nor the University is rendering any service, relying on the decision given in the case of Bihar 6 Appeal No. 114 of Parwati Prema Jagati Saraswati Vihar 05.09.2022 2017 Vs. Master Abhishek Kweera and Ors.
School Examination Board (supra). Relevant portion of the said decision is reproduced below:
"The respondent as a student is neither a consumer nor is the appellant rendering any service. The claim of the respondent to award B.Ed. degree was almost in the nature of a relief praying for a direction to the appellant to act contrary to its own rules. The National Commission, in our opinion, with the utmost respect to the reasoning given therein did not take into consideration the aforesaid aspect of the matter and thus, arrived at a wrong conclusion. The case decided by this Court in Bihar School Examination Board (supra) clearly lays down the law in this regard with which we find ourselves in full agreement with. Accordingly, the entire exercise of entertaining the complaint by the District Forum and the award of relief which has been approved by the National Commission do not conform to law and we, therefore, set aside the same."
12. Hon'ble Apex Court in Anupama College of Engineering (supra) has held that in view of the judgment of this Court in Maharshi Dayanand University (supra), wherein this Court placing reliance on all earlier judgments, has categorically held that educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency in service and such matter cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
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Appeal No. 114 of Parwati Prema Jagati Saraswati Vihar 05.09.2022
2017 Vs.
Master Abhishek Kweera and Ors.
13. Hon'ble National Commission in its latest judgment rendered in the case of Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others (supra) has specifically held that the Educational Institute does not fall within purview of Consumer Protection Act, 1986, as it is not rendering any services. While coming to the above conclusion, Hon'ble National Commission has relied upon a decision of Larger Bench of three Members of Hon'ble National Commission in the case of Manu Solanki and others Vs. Vinayak Mission University and other connected cases reported in I (2020) CPJ 210 (NC), wherein the Larger Bench has held that educational matters do not come within the purview of the Consumer Protection Act, 1986 and, therefore, the complaint is not maintainable.
14. In the case of Regional Institute of Co-operative management (supra), the Hon'ble National Commission has held that where there is a claim for refund of fees by a student of post-graduate diploma in management (agriculture business), then in such case the student is not a consumer. However, the complainants shall have liberty to seek their grievances before proper forum or civil court as per case law.
15. Considering the aforesaid facts and circumstances of this case as well as the law laid down in the case of Bihar School Examination Board (supra); Maharshi Dayanand University (supra); Anupama College of Engineering (supra), Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others (supra) and Regional Institute of Co-operative management (supra), it is crystal clear that the appellant is neither "service provider", nor the respondent Nos. 1 & 2 - complainants being a student is a "consumer". Accordingly, we are of the view that the matter in question cannot be brought before the Consumer Fora.
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Appeal No. 114 of Parwati Prema Jagati Saraswati Vihar 05.09.2022
2017 Vs.
Master Abhishek Kweera and Ors.
16. Thus, we are of the considered opinion that impugned judgment and order passed by learned District Commission suffers from material illegality and the same is erroneous, hence, we are inclined to interfere with the impugned judgment. The appeal deserves to be allowed and impugned judgment and order passed by learned District Commission is liable to be set aside.
17. Consequently, the appeal is hereby allowed. Impugned judgment and order dated 13.06.2017 passed by the District Commission, Nainital is set aside and consumer complaint No. 35 of 2016 shall stand as dismissed. No order as to costs.
18. The statutory amount deposited by the appellant with this Commission, be released in its favour.
19. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.
20. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 05.09.2022 9