State Consumer Disputes Redressal Commission
Bfit Group Of Institution & Others vs Ms. Niharika Paliwal on 17 August, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 174 / 2018
1. BFIT Group of Institution
Sudhowala, Dehradun
through Authorised Representative
2. Principal, BFIT Group of Institution
Sudhowala, Dehradun
3. Manager, BFIT Group of Institution
Sudhowala, Dehradun
...... Appellants / Opposite Parties
Versus
Ms. Niharika Paliwal D/o late Sh. Chandrashekhar
R/o Plot No. 4, PWD Colony
Jodhpur, Rajasthan
...... Respondent / Complainant
Sh. S.M. Joshi, Learned Counsel for the Appellants
Sh. Himanshu Ranjan, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 17/08/2022
ORDER
(Per: Justice D.S. Tripathi, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred against the impugned judgment and order dated 20.10.2018 passed by the District Consumer Disputes Redressal Commission, Dehradun (in short "The District Commission") in consumer complaint No. 234 of 2015; Ms. Niharika Paliwal Vs. BFIT Group of Institution and others, by which the consumer complaint was allowed and the appellants - opposite parties were, jointly or severally, directed to pay sum of Rs. 76,040/- to the respondent - complainant towards refund of fee, besides to pay Rs. 15,000/-2
towards mental agony and Rs. 3,000/- as costs, within a period of 30 days' from the date of impugned judgment and order, failing which the complainant was further held entitled to interest @9% p.a. on the above amount from the date of filing of the consumer complaint till actual payment.
2. Facts giving rise to this appeal, in brief, are that according to the consumer complaint, being influenced by the standard of education imparted by BFIT Group of Institution, as displayed by the institution over internet, the respondent - complainant took admission in the institution on 23.07.2015 in B. Com. (Hons.) course for the academic session 2015-2018 and deposited sum of Rs. 77,040/- towards fee including hostel charges. After taking admission in the institution, the complainant gathered that the education being imparted at the institution is far away from what was displayed over internet. As such, the complainant decided not to continue with the course and submitted an application dated 25.07.2015 with the appellant No. 2 (opposite party No. 2 before the District Commission), i.e., Principal of the institution, seeking refund of fee. The complainant visited the institution in the month of August, 2015 for taking refund of fee, whereupon she was told to come in the month of September, 2015. However, inspite of several requests, the fee amount was not refunded. The complainant sent a legal notice dated 16.09.2015 to the appellants through her counsel, but the same also went in vain. Therefore, the complainant filed a consumer complaint before the District Commission.
3. The appellants filed written statement before the District Commission, pleading therein that the complainant took admission in the year 2015 in B. Com. (Hons.) course and deposited Rs. 77,040/-. The complainant had withdrawn herself after the start of the session 3 and the seat remained vacant for the entire session, hence the complainant was not entitled to the refund of the fee. The complainant was duly informed that since she has withdrawn after the start of the session, the fee would not be refunded. At the time of taking admission, the complainant visited the institute and after satisfying herself about the facilities provided, had taken admission. There is no deficiency in service on the part of the institute. The complainant does not fall within the definition of "consumer".
4. After giving opportunity of hearing to the parties, the consumer complaint has been decided by learned District Commission vide impugned judgment and order dated 20.10.2018, thereby allowing the consumer complaint in the above terms. Feeling aggrieved, the appellants have preferred the instant appeal.
5. We have heard rival arguments advanced by learned counsel for the parties and perused the record.
6. The first and foremost issue to be decided in the present appeal is whether the respondent - complainant falls under the definition of "consumer", as defined under the Act and whether the appellant No. 1
- Institute can be termed to be a "service provider". In this regard, it is relevant to state here that in the written statement filed by the appellants before the District Commission, it was specifically pleaded that the complainant does not come within the definition of "consumer". The perusal of the impugned judgment and order passed by learned District Commission shows that on the said issue, case law of Hon'ble National Commission was cited on behalf of the appellants, but the same was not relied upon by learned District Commission. Reliance was placed by learned District Commission upon the judgment and order dated 08.12.2016 passed by Hon'ble 4 National Commission in Revision Petition No. 3288 of 2016; Mody University of Sciences and Technology and another Vs. Megha Gupta. In the said case, the complainant had decided to withdraw from the University after she had been admitted to the course and had, in fact, been called for counselling, hence it was submitted on behalf of the University that she was not entitled to refund of the amount deposited by her. It was held by Hon'ble National Commission that the instant case has to be decided in the light of guidelines issued by University Grants Commission and the order passed by the Fora below so far as question of refund of fee was concerned, was upheld. But, it is noteworthy that Hon'ble Apex Court in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha reported in IV (2009) CPJ 34 (SC), 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 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 5 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."
7. 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 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 6 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."
8. Hon'ble Apex Court in Civil Appeal No. 17802 of 2017; Anupama College of Engineering Vs. Gulshan Kumar and others, decided on 30.10.2017, 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 can not be a question of deficiency in service and such matter can not be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
9. 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 Vs. Sujay Ghose reported in III (2022) CPJ 6 (NC), 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. 7 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.
10. 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) and Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others (supra), it is crystal clear that the appellant No. 1 - Educational Institute is neither "service provider", nor the respondent - complainant being a student is a "consumer". Accordingly, we are of the view that the matter in question can not be brought before the Consumer Fora.
11. For the foregoing reasons, 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. The appeal deserves to be allowed and impugned judgment and order passed by learned District Commission is liable to be set aside.
12. Consequently, the appeal is allowed. Impugned judgment and order dated 20.10.2018 passed by the District Commission is set aside and consumer complaint No. 234 of 2015 is dismissed. No order as to costs. The amount deposited by the appellants with this Commission, be released in their favour.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
K