State Consumer Disputes Redressal Commission
1. Sri Sukhmani Institute Of ... vs Sh. Rishabh Garg on 30 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 88 of 2014 Date of Institution : 06.03.2014 Date of Decision : 30/04/2014 1. Sri Sukhmani Institute of Engineering & Technology, through its Chairman, SCO 447-448, Sector 35C, Chandigarh. 2. The Director, Sri Sukhmani Institute of Engineering & Technology, SCO 447-448, Sector 35C, Chandigarh. 3. Principal, Sri Sukhmani Institute of Engineering & Technology, Sarawati Vihar, Dera Bassi. Appellants/Opposite Parties V e r s u s Sh. Rishabh Garg s/o Sh. Rakesh Garg, R/o House No.1117/B, Near Kesho Ram Vaid, Ward No.7, Dera Bassi. ....Respondent/complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Arun Kumar Malhotra, Advocate for the appellants.
Sh. Sharad Aggarwal, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 30.01.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-
In view of the above discussion, the present complaint is allowed and the opposite parties are directed :-
i) To refund the remaining fee deposited i.e. Rs.75,525/- to the complainant alongwith interest @ 9% per annum from the date of deposit till payment;
ii) To pay Rs.1,00,000/- to the complainant as compensation for mental and physical harassment caused to him and for the deficiency in service and unfair trade practice indulged into by them.
iii) To pay Rs.10,000/- as costs of litigation.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i)&(ii) above shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.
2. The facts, in brief, are that the complainant, after completing his 10+2, took admission, in the Institute of the Opposite Parties, in B.Tech. (Computer Science Engineering) Course. He paid fees of Rs.40,000/- and Rs.3,250/-, for the 1st semester, vide receipts, Annexures C-1 and C-2. After undertaking examination, for the 1st semester, the complainant paid fees of Rs.32,275/-, for the 2nd semester, vide receipt Annexure C-3. He was not allowed to sit, in the examination, for the 2nd semester, by the Opposite Parties, without furnishing any reason for the same. Later on, the complainant was asked to deposit fees of Rs.34,253/-, for the 3rd semester, which he paid vide receipt Annexure C-4. Ultimately, the complainant approached the Punjab Technical University, Jalandhar (hereinafter to be referred as the PTU only), to which the Institute of the Opposite Parties was affiliated, and came to know that it did not recognize the Board, from which he had done his 10+2. It was further stated that the said fact was within the knowledge of the Opposite Parties, which was evident from the letter dated 06.08.2012 Annexure C-5. Ultimately, the Opposite Parties, refunded the amount of Rs.34,253/- i.e. the fees of 3rd semester, but did not refund the remaining fees, despite sending legal notice dated 05.10.2012, Annexure C-6. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.75,525/-, paid as fees, alongwith interest @18% P.A.; compensation, to the tune of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation.
3. The Opposite Parties, in their joint written version, pleaded that the complaint was bad, for non-joinder of the PTU, and, as such, was liable to be dismissed, on this score alone. It was stated that the complainant was admitted in the aforesaid course, and was issued the admit card provisionally. It was further stated that he deposited the fees. It was further stated that the complainant was not issued the admit card, for 2nd semester, as he was found not eligible for May 2011 examination, by the PTU, due to non-recognition of the State Board, wherefrom he did his 10+2. It was further stated that, after receipt of the letter dated 06.08.2012, from the PTU, the Opposite Parties, refunded the fees of 3rd semester to the complainant, as also offered the refund of fees, of 1st and 2nd semester, after making deduction of Rs.15,000/-, but he did not agree to the same. It was further stated that the complainant had got admission, in their Institute, by concealing the fact, that he had done his 10+2, from an unauthorized Board. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
7. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellants, submitted that neither the complainant fell within the definition of a consumer, nor the Opposite Parties, were the service providers. He further submitted that the complaint was bad for non-joinder of the PTU, as a party. He further submitted that the complainant had passed 10+2, from the Board of Higher Secondary Education, New Delhi, which was not recognized by the PTU. He further submitted that, as such, the complainant was not eligible for being admitted to the Course, in question. He further submitted that the complainant very well knew, about the factum that he was not eligible, for being admitted, in the Course, in question, yet, he concealed this fact, at the time of taking admission. He further submitted that the fees of third semester, paid by the complainant, was refunded to him, and offer of refund of fees of the first and second semesters was also made, after deducting a sum of Rs.15,000/-, therefrom, but he refused to accept the same. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
9. On the other hand, the Counsel for the respondent/complainant, submitted that the complainant fell within the definition of a consumer, and the Opposite Parties were the service providers. He further submitted that, it was for the Opposite Parties, or the PTU, to determine the eligibility of the complainant, for giving him admission, in the Course, in question. He further submitted that the complainant did not know anything, as to whether, the Board, from where he had done his 10+2, was not recognized by the PTU. He further submitted that, by not refunding the entire fees, deposited by the complainant, the Opposite Parties, were not only deficient, in rendering service, but also adopted unfair trade practice. He further submitted that, on account of the acts of omission and commission, on the part of the Opposite Parties, the complainant suffered a lot of mental agony and physical harassment. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
10. The first question, that falls for consideration, is, as to whether, the complaint was bad for non-joinder of the PTU, as a party, and, as such, was liable to be dismissed, on this score alone. It may be stated here that no relief had been sought by the complainant, against the PTU. The fees was deposited by him, with the Opposite Parties. The complainant claimed the refund of fees, alongwith compensation, for mental agony and physical harassment, from the Opposite Parties. Under these circumstances, in our considered opinion, the PTU, could not be said to be a necessary party, for adjudication of the controversy. The submission of the Counsel for the appellants, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
11. The next question, that falls for consideration, is, as to whether, the respondent/complainant fell within the definition of a consumer, and the Opposite Parties fell within the ambit of service providers, and, as such, the dispute involved in the instant case was a consumer dispute. In the instant case, the complainant took admission, in the Institute of the Opposite Parties, in B.Tech. (Computer Science Engineering) Course, on payment of fees. He, thus, hired the services of the Opposite Parties, for consideration, and thus, fell within the definition of a consumer. In Aashirwad Health and Education Trust and Another Vs. S.L.M. Ahmed and Ors., 2013 (2) CPC, 323, fees was paid by the students, for admission in the Medical College, which was not found to be recognized, as also the Opposite Party, had not obtained permission, from the Medical Council of India, which was the statutory body, and competent to grant recognition. No arrangement for clinical part of the curriculum, in the Country or abroad was made, and the students were left in lurch, after two years study, as they were not awarded the promised degrees. The complainants filed Consumer Complaints, for refund of the amount of fees and compensation, before the State Consumer Disputes Redressal Commission, which accepted the same. Appeals were filed in the National Consumer Disputes Redressal Commission, New Delhi. The National Consumer Disputes Redressal Commission, New Delhi, dismissed the appeals, holding that the students fell within the definition of consumers, as they hired the services of the Opposite Party, for consideration. It was also held that the Opposite Party indulged into unfair trade practice, by giving misleading information that the College was recognized, though it was not so. It is, therefore, held that the respondent/complainant fell within the definition of a consumer and the Opposite Parties were the service providers.
12. No doubt, the Counsel for the appellants, placed reliance on P.T. Koshy and another Vs. Ellen Charitable Trust and Ors., 2012 (3) CPC 615, in support of his contention that the Opposite Parties, neither fell within the definition of service providers, as they were only discharging their statutory functions, nor the complainant fell within the definition of a consumer. However, it is evident, from the facts of P.T. Koshy and another`s case (supra), that the Hon`ble Supreme Court of India, solely relied upon Maharshi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159=2010 (2) CPC 696 S.C., for holding that education being not commodity, the Opposite Parties were not providing any service, and, therefore, the matter of admission, fees etc., did not involve the question of deficiency, in rendering service, and, thus, could not be entertained by the Consumer Foras. It may be stated here, that perusal of the facts of Maharshi Dayanand University`s case (supra), clearly revealed that, in that case, the complainant/respondent took admission, in the academic session of 1994-95, as a regular student, to pursue the course of M.A., in Political Science, from Government College, Gurgaon. She appeared in Part-II Examination in May, 1995, as a regular candidate, and in the same academic session of 1994-95, she also applied for admission, in B.Ed. (correspondence course), without disclosing the fact that she was already pursuing the regular course of M.A., in Political Science. The University at the time of preparation of result of M.A. in Political Science, discovered that the respondent had been pursuing her B.Ed. Course, in violation of Clause 17(b) of the General Rules of Examination. Accordingly, the respondent was informed that, in view of the aforesaid Rules, she should exercise her option to choose anyone of the Courses. She voluntarily and consciously opted for pursuing her Course of M.A. in Political Science and forewent her B.Ed. Degree Course. Subsequently, the University, as a general measure of benefit, granted an indulgence, through Notification dated 16.03.1998, giving a further chance to such Ex. Students, who had not been able to complete their Post-Graduation/B.Ed. Courses, within the span of prescribed period, as provided under the Rules. The supplementary examinations, in this regard, were announced by the University, in the month of December, 1998. The complainant/respondent applied under the said Notification, for appearing in the B.Ed. examination; succeeded in appearing, in the same; and also passed the same. The Appellant- University refused to confer the Degree of B.Ed., on the respondent, upon which, she filed a complaint, in the District Forum, which was accepted. The appeal, filed by the appellant/Opposite Party/University, against the order of the District Forum, was accepted. Revision Petition filed by the Revisionist/complainant, in the National Consumer Disputes Redressal Commission, New Delhi, was accepted. Ultimately, Civil Appeal was filed by the Opposite Party/University, before the Hon`ble Supreme Court of India. The said Civil Appeal was allowed, holding that Board was not the service provider, and a student, who undertakes an examination, is not a consumer, and consequently, complaint under the Act, was not maintainable. In Maharshi Dayanand University`s case (supra), the question was not with regard to the refund of admission fees. Under these circumstances, no help can be drawn by the Counsel for the appellants, from P.T. Koshy and another`s case (supra)
13. No doubt, reliance was also placed by the Counsel for the appellants/Opposite Parties, on Bihar School Examination Board vs. Suresh Prasad Sinha, 2013 (4) CPR 394 (SC), to contend that the complainant did not fall within the definition of a consumer. However, the facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case. In that case, Rajesh Kumar, minor son of the complainant therein, appeared in the Bihar Secondary School Examination, in 1998. Rajesh Kumar, minor son of the complainant therein and another student Sunil Kumar Singh were allotted the same Roll no. i.e.496. The Centre Superintendent allotted to Rajesh Kumar Roll No.496A, and communicated the same, to the Board Office at Patna. The result of Rajesh Kumar, aforesaid, was not published, inspite of several letters written by him, and, hence, he had to reappear, in the Board Examination, and thus, had to suffer a loss of one year, due to the fault of the said Board. Thus, the complainant claimed compensation, by filing the Consumer Complaint. In the facts and circumstances of the case, the Hon`ble Supreme Court 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, 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 successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-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 of 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.
14. In Bihar School Examination Board`s case (supra), it was laid down that the discharge of a statutory function by the Board, such as holding of examination; evaluation of answer sheets of the examinees, to find out whether they were fit to be declared as successful; and furnishing of marks sheets or certificates may involve some negligence, omission or deficiency, but that did not convert it (Board) as a service provider, nor the student who takes examination as a consumer. In the said case, the dispute was not with regard to the admission of a student, and non-refund of fees. The ratio of law, laid down, in the Bihar School Examination Board`s case (supra), therefore, is not applicable to the facts and circumstances of the instant case. No help, therefore, can be drawn, by the Counsel for the appellants/Opposite Parties, therefrom.
15. There is, no dispute, with regard to the factum that the complainant took admission, in the Institute of the Opposite Parties, in B.Tech. (Computer Science Engineering) Course, and deposited fees, as per the receipts Annexures C-1 to C-4. The complainant was not issued the admit card, and was not allowed to sit, in the examination of 2nd semester, due to the fact that he had done his 10+2, from Board, which was not recognized by the PTU. Despite that fact, the Opposite Parties took fees of Rs.34,253/,- from the complainant, for the 3rd semester. Thereafter, the complainant followed the matter, with the PTU, with which the said Institute of the Opposite Parties was affiliated. Letter dated 06.08.2012 (Annexure C-5) was issued to the Opposite Parties, by the PTU, asking them, as to how, the student (complainant), was admitted, when they had declared him ineligible. Through this letter, the PTU further directed the Opposite Parties, to refund the entire fees, to the complainant, and inform it accordingly. There is no denial, on the part of the Opposite Parties, with regard to the receipt of this letter. It was after the receipt of this letter, that fees for the 3rd semester was refunded to the complainant. The Opposite Parties also offered to the complainant, the refund of balance fees, for the 1st and 2nd semester, after deducting University fees, to the tune of Rs.15,000/. However, the letter Annexure C-5 did not authorize the Opposite Parties, to make any deductions, from the fees, deposited by the complainant. In fact, the Opposite Parties, themselves, sent a letter dated 17.10.2012 (Annexure C-7) to the Counsel for the complainant, which reads as under :-
Reference to your letter dated 5.10.2012, please direct your client to take the remaining dues of fees deposited by Mr. Rishab Garg S/o Sh. Rakesh Garg.
16. In this letter, the Opposite Parties did not state that they would be refunding the remaining fees, after deducting the amount of Rs.15,000/- therefrom. The Opposite Parties, therefore, could not deduct the amount of Rs.15,000/-, and were required to refund the entire fees, deposited by the complainant, for the 1st and 2nd semesters, as fees for third semester had already been refunded. The act of the Opposite Parties, in offering the refund of fees, after deducting the amount of Rs.15,000/-, was rightly held by the District Forum, as deficiency, in rendering service, and adoption of unfair trade practice. The complainant was entitled to the refund of entire fees, deposited by him, for the 1st and 2nd semesters, of the Course aforesaid.
17. The next question, that falls for consideration, is, as to whether, the complainant knew that the Board, from which, he had passed his 10+2 examination, was not recognized, by the PTU. There is nothing, on the record that at the time of taking admission, he was in the knowledge of it, and intentionally concealed this fact, from the Opposite Parties. On the other hand, it was for the Opposite Parties, to determine the eligibility of the complainant, after verifying the certificates, submitted by him, as to whether, the Board, from where, he had passed 10+2 was recognized by the PTU or not. This fact is further fortified from Annexure C-5 letter dated 06.08.2012, sent by the PTU, to the Opposite Parties, referred to above. There is nothing, on the record, that the Opposite Parties, sent reply to Annexure C-5, received by them, from the PTU. The District Forum was right in holding that the complainant did not conceal any fact, from the Opposite Parties, at the time of taking admission, in the Course, aforesaid, but, on the other hand, the latter were remiss, in the performance of their duty, by not checking the certificates, submitted by him (complainant). It is not the case, in which the complainant took admission, on the basis of some forged/fake certificates. Under these circumstances, the submission of the Counsel for the appellants, that the complainant concealed the material facts, at the time of obtaining admission, being devoid of merit, must fail, and the same stands rejected.
18. The next question, that falls for consideration, is, as to whether, the compensation awarded by the District Forum, is fair or excessive. The District Forum awarded compensation to the complainant, to the tune of Rs.1 lac, for mental agony, physical harassment and deficiency, in rendering service. It is settled principle of law, that compensation should neither be excessive nor too meagre. It must commensurate with the facts and circumstances of the case. In the instant case, the complainant took admission. He attended classes, for the first and second semesters. No doubt, it was the fault of the Opposite Parties, as they did not verify, as to whether, the Board, from which, the complainant had passed his 10+2, was recognized by the PTU or not, and gave admission to him, in their Institute, and, ultimately, he was found to be ineligible, for taking admission. In Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital and Another, IV (2010) CPJ 199 (N.C.), it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the compensation should be commensurate with loss and injury, suffered by the complainant. The Consumer Foras are not meant to enrich the consumers, at the hands of the service providers, by awarding unfair, unjust and excessive compensation. The compensation seems to be on the higher side. Thus, if compensation is reduced to Rs.40,000/-, that would be fair, reasonable, and adequate.
19. The interest, awarded by the District Forum, @ 18% per annum, on the amounts referred to in paras 7 and 8 of the impugned order, in case of non-compliance of the same by the Opposite Parties, within the stipulated period of 45 days, from the date of receipt of a certified copy of the same, also seems to be on the higher side. In our considered opinion, interest @10% per annum, would be adequate, to meet the ends of justice.
20. No other point, was urged, by the Counsel for the parties.
21. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:
i. The appellants/Opposite Parties, shall refund the remaining fees, i.e. Rs.75,525/-, deposited by the complainant, alongwith interest @ 9% per annum, from the date of deposit, till realization, as awarded by the District Forum.
ii. The appellants/Opposite Parties shall pay compensation, to the tune of Rs.40,000/-, for deficiency, in rendering service, adoption of unfair trade practice, mental agony and physical harassment, instead of Rs.1,00,000/-, as awarded by the District Forum.
iii. The appellants/Opposite Parties shall pay Rs.10,000/-, as costs of litigation, as awarded by the District Forum iv. The amounts mentioned in Clauses (i) and (ii) above, shall be paid by the appellants/Opposite Parties, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which the amount mentioned in Clauses (i) and (ii) shall carry interest @10% P.A., from the date of default, till realization, besides payment of cost of Rs.10,000/-.
v. Any other relief granted, and direction given by the District Forum, which is contrary to, and in variance of this order, subject to the modification, aforesaid, shall stand set aside.
22. Certified copies of this order, be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion.
Pronounced.
30/04/2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg