State Consumer Disputes Redressal Commission
Jogindra Devi vs H.P. University & Anr. on 15 December, 2009
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. ---- FIRST APPEAL NO.247/2008. DATE OF DECISION: 15.12.2009 Ms Jogindra Devi daughter of late Sh. Rasila Ram, resident of Village Balehar, P.O. Yol Cantt., Tehsil Dharamshala, District Kangra, H.P. Appellant. Versus 1. Himachal Pradesh University, Summer Hill, Shimla-5, through its Registrar. 2. Government Degree College, Dharamshala, District Kangra, through its Principal. Respondents. ------------------------------------------------------------------------------------------------------------ Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mrs. Saroj Sharma, Member. Honble Mr. Chander Shekhar Sharma, Member. Whether approved for reporting? Yes For the Appellant: Mr. Neeraj Maniktala, Advocate, For the Respondents: Mr. Rajesh Kumar, Advocate, For respondent No.1. Mr. Anup Sharma, ADA for respondent No.2, with Shri Arvinder Singh, Sr. Lab. Assistant, Government College, Dharamshala, who has been identified as such by Mr. Sharma. ------------------------------------------------------------------------------------------------------------ O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).
1. When hearing in this case commenced, a preliminary objection was raised by learned Counsel for respondent No.1 that in the light of the recent decision of the Honble Supreme court in the case of Bihar School Examination Board Versus Suresh Prasad Sinha, 2009 CTJ 1057 (Supreme Court) (CP), this appeal merits outright rejection.
Further according to him in the face of this decision, the complaint out of which this appeal has arisen was not maintainable. In this behalf, learned Counsel for respondent No.1 further submitted that University in discharge of its statutory functions enjoined upon it under Himachal Pradesh University Act, 1971, conducts the examination and declares the results.
As such, it neither provides any service nor the appellant can be said to be a consumer within the meaning of Section 2 (1) (o) and 2 (1) (d) respectively of the Consumer Protection Act, 1986. Thus, he prayed for dismissal of this appeal while upholding order of the District Forum below.
2. On the other hand, Mr. Maniktala, learned Counsel for the appellant submitted that his client was entitled to maintain the complaint in the face of the decision of the Honble Himachal Pradesh High Court dated 24.4.2004 passed in C.W.P. No.10/2000 filed by the present appellant. According to him , it was only after the said decision, that the present complaint was filed.
3. We say nothing so far decision of the Honble High Court is concerned. Reason being that the said order has attained finality intra parties, however fact remains that in the face of the recent decision referred to hereinabove which is dated 4.9.2009, we are of the view that the complaint out of which this appeal has arisen was not maintainable under the Consumer Protection Act, 1986. Therefore, impugned order of the District Forum below calls for no interference in this appeal.
4. Faced with this situation, learned Counsel for the appellant urged that so far his client is concerned, he was bonafide prosecuting the proceedings under the Consumer Protection Act, and if this appeal is dismissed, his client will be left high and dry as well as remediless.
At the same time he also sought leave to withdraw the complaint out of which this appeal has arisen, reserving liberty to the appellant to initiate such legal proceedings including a civil suit for claiming damages against the respondents. Again the prayer for the grant of permission was seriously contested on behalf of respondent No.1 though learned Counsel submitted that appeal may be allowed to be withdrawn, but without any liberty.
5. If the argument urged on behalf of respondent No.1 is taken to its logical end, result would disastrous, because the respondent will be left remediless and in our opinion for no fault of her. As such, objection regarding the grant of liberty to the appellant to file civil suit for damages is hereby rejected and the prayer made on behalf of the appellant is allowed.
In view of the aforesaid facts, prayer to withdraw the Consumer Complaint No.141/2005 decided by District Forum, Kangra at Dharamshala on 29.7.2008 is allowed, and the appellant is permitted to withdraw the same. Thus as a result of it, this appeal has become infructuous and is disposed of accordingly. At the same time, leave and liberty as prayed for is granted to the appellant to initiate such other legal action including a suit for damages against the respondents before a competent court having jurisdiction to adjudicate upon the matter. We are sure that in case appellant initiates any such action, he shall be entitled to claim benefit of Section 14 of the Limitation Act, 1963 and such a prayer would be favourably considered by the Court in accordance with law. Appeal is disposed of subject to these observations, leaving the parties to bear their own costs.
Learned Counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary in accordance with rules.
Shimla, December 15, 2009.
( Justice Arun Kumar Goel ) (Retd.) President ( Saroj Sharma ) Member ( Chander Shekhar Sharma ) /BS/ Member