National Consumer Disputes Redressal
Krishan Mohan Goyal vs St Mary'S Academy & Anr. on 17 February, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3144 OF 2016 (Against the Order dated 08/09/2016 in Appeal No. 181/2009 of the State Commission Uttar Pradesh) 1. KRISHAN MOHAN GOYAL S/O. LATE SHRI BHAGIRATH PRASAD GOYAL, R/O. C-53, DEFENCE COLONY, MEERUT UTTAR PRADESH ...........Petitioner(s) Versus 1. ST MARY'S ACADEMY & ANR. THROUGH ITS PRINCIPAL, 133, KARIAPPA STREET MEERUT CANTT. UTTAR PRADESH 2. PRINCIPAL, ST. MARY ACADEMY, 133, KARIAPPA STREET MEERUT CANTT. UTTAR PRADESH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Petitioner : For St. Mary's Academy
& Anr.
Mr. Mahabir Singh, Sr.Advocate
Mr. Nikhil Jain, Advocate For the Respondent : For Krishna Mohan Goel
Mr. Ritesh Khare, Advocate
Mr. Sarvesh Sharma, Advocate with
Complainant in person
Dated : 17 Feb 2017 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER
Late Rishab Goel, son of the complainant, took admission in class VI in the school namely St. Mary's Academy in the year 1998-99. The aforesaid school is allegedly attached to a hospital namely St. Luke's hospital, Saket Meerut. Late Rishab Goel was suffering from Asthma at the time he took admission in the school and the complainant, father of Rishab Goel allegedly requested the Principal of the school to take care of his health as a special case. On 21.3.2003, late Rishab Goel came to the school to appear in an examination and suffered an attack of asthma while in the school. He was allegedly taken to the residence of the Principal who expressed his inability to help him as no medical facility was available in the school. The other student informed the family of the Rishab Goel about the asthma attack suffered by him. The sister of Rishab Goel rushed to the school and took him to the clinic of a doctor where he was declared dead. Alleging deficiency on the part of the school management in rendering services, the complainant, father of Rishab Goel, approached the concerned District Forum by way of a consumer complaint, seeking a sum of Rs.18,00,000/- as compensation.
2. The complaint was resisted by the opposite party which alleged that in fact the students who were playing with Rishab Goel when he suffered asthma attack came to the office, and, with the permission of the office staff, they contacted his residence. His mother told the school authorities that she shall be reaching the school with their family doctor. Later, the sister of Rishab Goel came to the school along with a Homeopathic Doctor, who advised shifting him to an Allopathic Doctor. Reluctantly, she took Rishab Goel to Doctor Khan under whose treatment Rishab Goel had been, but the life of the child could not be saved. The school management denied any negligence on their part. They also took a preliminary objection that a student cannot be said to be a consumer as defined in the Consumer Protection Act and therefore a consumer complaint was not maintainable.
3. The District Forum vide its order dated 06.1.2009 directed the school management to pay a compensation of Rs.10,00,000/- to the complainant, along with an additional compensation of Rs.10,000/- to the complainant for mental agony and torture and cost of litigation quantified at Rs.5,000/-.
4. Being aggrieved from the order passed by the District Forum, the school as well as its Principal preferred separate appeals before the concerned State Commission. The State Commission reduced the quantum of compensation from Rs.10,00,000/- to Rs.5,00,000/-. Being still dissatisfied, the school and its Principal are before this Commission by way of Revision Petition No.2994 of 2016. Since the complainant is also aggrieved from the reduction of the compensation awarded to him by the District Forum, Revision Petition No.3144 of 2016 has been filed by him, challenging the said reduction.
5. The first question which arises for consideration in these petitions is as to whether late Rishab Goel will be said to be a consumer as defined in Section 2(1)(d) of the Consumer Protection Act.
6. It was contended by the learned senior counsel for the opposite parties that there can be no relationship of the consumer and service provider between a student and an educational institution such as a school. In his contention no service as defined in the Consumer Protection Act is offered by an educational institution to a student. In support of his contention he relied upon the decision of this Commission in Regional Institute of Cooperative Management Vs. Naveen Kumar Chaudhary, RP No.638 of 2014 decided on 02.5.2014. The learned counsel for the complainant on the other hand submitted that since the school was charging fee from the student, it was providing services to him for consideration.
7. In Bihar School Examination Board Vs. Suresh Prasad Sinha, IV (2009) CPJ 34 (SC), the minor son of the complainant appeared in the Bihar Secondary School Examination. Roll No. 496 was allotted to him as well as to another student namely Sunil Kumar Singh. Therefore, the Centre Superintendent allotted roll No. 496A to the son of the complainant. His result however, was not published as a consequence of which he had to reappear in the examination in the next year, thereby suffering loss of one year, allegedly due to mistake of the Board. The complainant therefore approached the District Forum by way of a consumer complaint, seeking compensation from the Board on account of the aforesaid mistake committed by it. The Board took an objection that the son of the complainant could not be said to be a consumer. Accepting the contention, The Hon'ble Supreme Court, inter-alia held 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, if 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 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 or mark sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service-provider for a consideration, nor 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".
8. In Maharshi Dayanand University Vs. Surjeet Kaur, Civil Appeal No. 6807 of 2008 decided on 19.7.2010, the complainant / respondent was refused degree of B.Ed. on the ground that he had appeared in the examination, without disclosing the fact that she was already pursuing the regular course of M.A. in Political Science. Being aggrieved, the respondent approached the concerned District Forum by way of a consumer complaint. This Commission having ruled in favour of the complainant, the University approached the Hon'ble Supreme Court by way of a Special Leave. Allowing the appeal and setting aside the decision of this Commission, the Hon'ble Supreme Court inter-alia held as under:
"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".
In P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors., SLP (Civil) No. 22532/2012 decided on 09.08.2012, the Special Leave Petition, filed by the complainant, was dismissed with the following order:
"In view of the judgment of this Court in Maharshi Dayanand University Vs. 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".
None of the above referred three cases, in my view, would apply to a case where the school is found to be deficient even in providing the basic aid and assistance which any educational institution will provide to a student studying with it. Deficiency in imparting education which is the core function of an educational institution, in my view is altogether different from rendering such basic help and assistance to the students. A student may not be the consumer of the school as far as the core function of imparting education or taking examinations is concerned, but, the position would be altogether different where the deficiency on the part of the educational institution is found in an activity altogether different from imparting education, where a consideration is being charged for such an activity on the part of the educational institution. When a school admits students for the purpose of imparting education to them, it also undertakes to render a reasonably possible help and assistance to them, wherever required by the students who is in distress . This is more so in an emergency situation such as a student meeting with an accident or suddenly falling sick while in the school. Even if the school does not have the facility of an in-house doctor, the least expected from the school management in such a situation is to take the student to the nearest doctor or hospital. The educational institution cannot be permitted to wash-away its responsibility to provide such minimal aid and assistance on the pretext that it was not rendering any services to the students.
9. It is not as if compensation under the provisions of the Consumer Protection Act has never been awarded by the Hon'ble Supreme Court against an educational institution. In Controller, Vinayak Mission Den. Col. & Anr. Vs. Geetika Khare, Civil Appeal No. 5213-5214 of 2010 decided on 09.7.2010, the complainant had to withdraw from the BDS College run by the appellant on account of lack of recognition of the said college and other deficiencies. Award of compensation to the complainant by the State Commission was upheld by this Commission though the quantum was reduced. Being aggrieved, the opposite party approached the Hon'ble Supreme Court. The Hon'ble Supreme Court upheld the award of compensation to the extent of payment of Rs.5,15,000/- with interest which she had already.
10. In Regional Institute of Cooperative Management (supra) relied upon by the learned counsel for the opposite party, the grievance of the complainant was that the diploma awarded to them had not been recognized by the Association of Indian Universities as equivalent to Masters of Business Administration Degree, and therefore, they were unable to enrol themselves for the Ph.D. Course. Relying upon, Maharshi Dayanand University (supra), P.T. Koshy & Anr. (supra) and Bihar School Examination Board (supra), this Commission dismissed the complaint, granting leave to the complainants, to seek their grievance before a proper Forum or a Civil Court. The aforesaid judgment is clearly distinguishable on facts since the alleged deficiency related to the activity imparting of education to the students.
11. In the present case, reply filed by the opposite parties, to the extent it is relevant, read as under:
"16. ........... In fact the answering opposite parties have got information from the student that Rishab was playing with Ball in the field and then the acute attack of Asthma started".
17. ...... On the contrary the students who were playing with him went to the office and with the permission of the office staff they themselves through phone contacted Rishab's home where the mother of Rishab supposed told the school authorities that they would be coming to school with their family doctor".
20. ..... It is further submitted that later on complainant's daughter came to school along with her family doctor who was a homeopath. The said doctor after examining Rishab said that he be taken to an allopathic doctor. The sister of Rishab was insisting that he be allowed to last examination. Rishab's sister was made to understand by the opposite party that the health of her brother Rishab was more important than his examination and she reluctantly agreed to take her brother Rishab to Dr. Khan under whom treatment had been taken from before. It is pertinent to mention here that as the complainant's sister came to the school and after searching the bag of Rishab it was found that the Ashtma inhalers which he was carrying were empty.
This shows the gross negligence on the part of the complainant who was fully aware of the seriousness of the deceased and did not care as to whether his son had the essential life-saving inhaler with him or not?"
It is evident from the above referred extracts from the reply filed by the opposite parties that despite having come to know from other students that Rishab, while playing in the filed had suffered acute attack of Asthma the school officials did not take him to any doctor or hospital. The school officials did not even bother to call his parents and it were the students playing with him who contacted the mother of the student. It is also evident that instead of taking the student to a nearby doctor or hospital for providing emergent care, the school officials chose to wait for the family members of the students to arrive with their family doctor. The carelessness and apathy shown by the school officials leaves no doubt about their negligence in taking care of the minor child and providing even the basic aid and assistance which every school is expected to provide to its students who are in distress. In fact, the school officials are expected to act and behave like the parents of the child in such an emergency. Valuable time was lost on account of school officials waiting for family members of the child to come to the school, along with their doctor. Instead of waiting for the family members of the child, they ought to have immediately taken him to the nearest doctor or the hospital. On reaching the hospital or the clinic of the doctor they could have intimated the family members and asked them to reach there. Even if the student was not carrying inhaler with him despite being asthmatic, that would not absolve the school officials from the gross negligence displayed by them in taking even the basic care expected from them.
12. The next question which arises for consideration is as to whether the opposite parties were charging any consideration for extending the basic aid and assistance which a student could reasonably expect from them. When this matter was heard, the opposite parties were directed to file an affidavit giving therein the break- up of the fee which the school had charged from the deceased student whether on annual basis or on monthly basis or on one-time basis. In compliance of the aforesaid directions, an affidavit has been filed by the opposite parties, stating therein that besides school fee they were charging Rs.850/- as annual charges from the students. The aforesaid annual charges, in my view, would constitute the consideration which the opposite parties were receiving from the students, in addition to the charges being recovered under the nomenclature 'school fee'. Consideration having actually passed to the opposite parties in the form of the annual charges, it would be difficult to say that they were not rendering services for consideration. In fact, even the school fee would be sufficient consideration for providing the basic aid and assistance which a student in distress can expect from his educational institution.
13. For the reasons stated hereinabove, I hold that the award of compensation was eminently justified in the facts and circumstances of the case.
The next question which arises for consideration is as to whether the compensation awarded by the State Commission which has reduced the compensation awarded by the District Forum, can be said to be inadequate so as to justify enhancement by this Commission in exercise of its revisional jurisdiction. In my view, considering all the facts and circumstances of the case, including that possibly the life of the child could have been saved had he been immediately taken to a hospital or a doctor, compensation to the extent of Rs.10,00,000/- cannot be said to be unjustified or excessive. The revision petition filed by the opposite parties being Revision Petition No.2994 of 2016 is therefore dismissed whereas, revision petition filed by the complainant being Revision Petition No. 3144 of 2016 is allowed and it is directed that the opposite parties shall pay a consolidated compensation of Rs.10,00,000/- (Rupees Ten Lacs) to the complainant within four weeks from today. In the event of failure of the opposite parties to comply with this order, they shall pay interest on that amount @ 6% per annum from the date on which the complaint was filed.
......................J V.K. JAIN PRESIDING MEMBER