State Consumer Disputes Redressal Commission
Chairman, Sarv Hitkar Educational ... vs Tarun Kumar S/O Raj Singh, on 23 January, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 242 of 2013
Date of institution: 5.3.2013
Date of Decision: 23.1.2014
1. Chairman, Sarv Hitkar Educational Society, 94-C, Pocket-B,
Dilshad Garden, Delhi 110095 through its Chairman.
2. College of Engineering and Managmenet, Goindwal Road, VPO
Bhawanipur, Kapurthala through Chairman, Sarv Hitkari
Educational Society, 94-C, Pocket-B, Dilshad Garden, Delhi.
.....Appellants/Opposite Parties
Versus
Tarun Kumar S/o Raj Singh, R/o 27/3, New Cantt., Kapurthala, presently
student of 2nd year Anand College of Engineering and Management, Near
RCF, Sultanpur Road, Kapurthala.
.....Respondent/Complainant.
Argued By:-
For the appellants : Sh. Sandeep Chopra, Advocate
For the respondent : Sh. Sudesh Kumar, Advocate for
Sh. Vikram Anand, Advocate.
First Appeal against the order dated 31.1.2013
passed by the District Consumer Disputes
Redressal Forum, Kapurthala.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
ORDER
Gurcharan Singh Saran, Presiding Judicial Member The appellants/opposite parties (hereinafter called "the opposite parties") have filed the present appeal against the order dated 31.1.2013 passed by the District Consumer Disputes Redressal Forum, Kapurthala(hereinafter called "the District Forum") in consumer complaint No.71 dated 5.9.2012 vide which the complaint was accepted with the direction to the Ops to refund the fee of Rs. 39,360/- after deducting a sum of Rs. 1,000/- alongwith FIRST APPEAL NO. 242 OF 2013 2 interest @ 9% from 13.9.2010 till date alongwith compensation of Rs. 10,000/- and litigation expenses of Rs. 3,000/-.
2. The complaint was filed by the respondent/complainant (hereinafter called "the complainant") that he had got admission with OP No. 1 through Punjab Technical University (in short 'PTU') run by respondent No. 2-the Chairman. At that time he had deposited Rs. 39,360/- vide receipt No. 12268 dated 10.8.2010, however, he did not join the teaching classes as he had got admission in other college i.e. Anand College of Engineering and Management, Sultanpur Road, Kapurthala through PTU. The complainant applied to the respondents for refund of the advance fee but the respondents had been putting of the matter with one excuse or the other. Even the original certificates retained by the opposite parties were not returned. Immediately, when he approached the PTU, his original certificates were returned but fee was not refunded. The opposite parties got 42 students in that session against the sanctioned strength of 60 seats. Non-refund of fee is unfair trade practice and deficiency in the services, hence, the complaint with the direction to the opposite parties to refund the fee alongwith interest @ 12%, Rs. 30,000/- as compensation and Rs. 15,000/- as litigation expenses.
3. The complaint was contested by the opposite parties, who filed written statement taking preliminary objections that the complainant is not entitled to get any refund as per the policy of the University as well as guidelines of All India Council of Technical Education (in short 'AICTE'), the complainant joined and attended the classes for the Ist semester, which started from 3.8.2010 whereas he FIRST APPEAL NO. 242 OF 2013 3 applied for refund of fee on 13.9.2010 and the seat vacated by the complainant remained vacant during the whole session; the complainant has not approached the District Forum with clean hands; the complaint has been filed just to harass the opposite parties; no cause of action has arisen to the complainant to file the complaint and he is estopped by his own act and conduct to file the complaint. On merits also it has been stated that after taking of the admission on deposit of the fee, he had attended the classes and lateron he applied for the refund, which is not admissible to him as his seat remained vacant with their College as per the guidelines by the PTU as well as AICTE, therefore, the complaint is without merit and the same be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavits Ex. C-1&2, affidavit of Tejbir Singh Ex. C-3, letter of PTU Ex. C-4 and other documents Ex. C-5 to
16. On the other hand, the opposite parties had tendered into evidence affidavit of Rakesh Chand Bajaj, Chairman OP No. 2 Ex. RA and documents Ex. R-1 to Ex. R-15 and Ex. RB of Ashish Thakur, Lecturer, affidavit Ex. RC of Miss. Anupam Gumbar, Lecturer.
6. After going through the allegations in the complaint, written statement filed by the OPs, evidence and documents brought on the record, the learned District Forum observed that the date of admission was extended upto 30.10.2010 by the PTU. It was not admitted that the session started from 3.8.2010. It was further FIRST APPEAL NO. 242 OF 2013 4 observed that the fee of the complainant was wrongly withheld by the Ops, accordingly, the complaint was allowed as stated above.
7. Aggrieved with the order passed by the learned District Forum, the appellant/opposite parties have filed the present appeal.
8. In the grounds of appeal, it has been stated that the learned District Forum does not have the jurisdiction to entertain the fee matters specifically in view of the judgment of the Hon'ble Supreme Court in "Maharshi Dayanand University v. Surjeet Kaur"
wherein it was held that matter of admission, fees etc. cannot be a question of deficiency in service. He has also relied upon Hon'ble Supreme Court in "Bihar School Examination Board versus Suresh Prasad Sinha" as well as "P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors.".
9. The respondent had taken the admission in their College, and the classes started on 3.8.2010 whereas the respondent applied for the refund on 13.9.2010 and wanted to leave the College whereas the seat of the appellant's college remained vacant. In case they would have filled up the seat then he was entitled to refund after deduction of Rs. 1,000/-. The finding so recorded by the learned District Forum are without pleadings and none appreciation of the claim of the appellants, therefore, the same were liable to be set- aside.
10. We have heard the learned counsel for the appellants Sh. Sandeep Chopra, Advocate and learned counsel for the respondent Sh. Sudesh Kumar, Advocate for Sh. Vikram Anand, Advocate and FIRST APPEAL NO. 242 OF 2013 5 have gone through the written arguments filed by the counsel for the respondent.
11. Whereas the counsel for the respondent in his written arguments has stated that these judgments are not applicable but he has not been able to convince before this Commission how these judgments are not applicable. This is a case of refund of fee and it has been specifically mentioned by the Hon'ble Supreme Court in "Maharshi Dayanand University v. Surjeet Kaur", 2010(2) CPC 696 S.C., relying upon all earlier judgments 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. Further Hon'ble Supreme Court in "Bihar School Examination Board versus Suresh Prasad Sinha", 2010 (1) CLT 255 (SC) observed that "the Education Boards & Universities are not 'Service Provider' and the complaints against them are not maintainable. The Hon'ble Apex Court in its latest judgment "P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors.", 2012(3) C.P.C. 615 (S.C.) has followed the above views.
12. We do not agree with the proposition raised by the counsel for the respondent that the judgments referred by the counsel for the appellants are not applicable to the facts and circumstances of the case, therefore, once the Consumer Fora does not have the jurisdiction to adjudicate upon the fee matter then no order can be passed with regard to the refund of the fee. Accordingly, the order FIRST APPEAL NO. 242 OF 2013 6 passed by the learned District Forum is set-aside and the complaint of the complainant is hereby dismissed.
13. In view of the above discussion, the appeal filed by the appellants is accepted. No order as to costs. However, the respondent/complainant will have the right to adjudicate this matter before the appropriate Forum.
14. The arguments in this appeal were heard on 20.1.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
15. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to appellant No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
January 23, 2014. (Vinod Kumar Gupta)
as Member