State Consumer Disputes Redressal Commission
Indian Institute Of Banking & Finance vs Mukul Srivastava on 23 July, 2012
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 23.7.2012 Appeal No.620/2010 (Arising out of the order dated 29.6.2010 passed by the District Forum-VI, M-Block, Vikas Bhawan, IP Estate, New Delhi in complaint case No 435/2008) Indian institute of Banking & Finance, Through its Director Vikrant Tower, Rajendra Place, New Delhi-110 008 .........Appellant VS Mukul Srivastava S/o Late Shri B.P. Srivastava R/o 233, (1st Floor), SBI Colony, Paschim Vihar, New Delhi-110 063 ..Respondent CORAM Salma Noor, Member
V.K. Gupta, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
V.K.GUPTA, MEMBER This appeal by the opposite party is directed against the order dated 29.6.2010 of the District Forum-6, M Block, Vikas Bhawan, IP Estate, New Delhi allowing the complaint of the OP.
2. In nutshell the brief facts are that the complainant of the complaint case No.435/08 has applied to the OP for taking their JAIIB Examination in accordance with the rules and regulation of the said institute. The said institute conducting an on line examination in November/December-2007. The appellant institute allowed the complainant to take on line examination on 2nd December, 2007 and has allotted him roll No.7569738 after scrutiny of the eligibility of the complainant.
The complainant on 2nd December, 2007 appeared for his paper-III of JAIIB Examination Paper legal Aspects of Banking under roll No.7569738 at their approved examination centre at Sify 1 Way Mintoo, 21/2 A, Near 20/2 Block Gurudwara, Tilak Nagar, New Delhi-18.
The complainant reported at the Examination centre 15 minutes before the scheduled timings, however, just before the start of examination at 11.15 a.m. on 2nd December, 2007, one Arjeet claiming to be an official of Sify from Okhla, New Delhi informed the complainant that since only 4 computers at the centre were in working condition at the given time, he should report to another examination centre at Mukherjee Park, Tilak Nagar, New Delhi by 11.30 a.m. otherwise he will not be in a position to log in the system.
On receiving this information, the complainant was completely shattered and lost his peace of mind. The complainant did not know where the said Mukherjee Park was and what was the distance from the venue of the earlier examination. The said representative namely Arjeet of the appellant was very much adamant in asking the complainant to go to another examination centre, therefore, the complainant had no other choice. In compliance of the same he reached the new examination centre at Mukherjee Park by running against time and took his examination in the utter confusion. The examination centre at Mukherjee Park was housed in a private flat and the owner of the flat did not allow any water or toilet facility to the candidates appearing in the said examination. The complainant being a diabetic had to go a far off place outside the examination venue thrice during the conduct of the examination to ease himself. The complainant became totally nervous and his blood pressure got disturbed and was of medication for quite some time. On the same day, after the said examination on 2nd Dec., 2007, the complainant informed the concerned authorities of the said institute to look into the matter and provide adequate relief to the complainant by way of 5 grace marks or reappearance in the said examination. This was given in writing. The complainant also personally met the concerned officers and apprise them of the facts and the problems, which the complainant had to face while taking the examination on 2nd December, 2007. The appellant informed the complainant on 18th Jan., 2008 expressing the regrets for the inconvenience caused to him due to change of the venue of the examination but refused to accede of his genuine request for grant of any grace marks or allowing him to reappear in the said examination. There is a serious deficiency in service on the part of the appellant in the conduct of the said examination which the complainant to appeared under the undesirable and not providing adequate conditions in as much as it was incumbent upon the institute to conduct the examination in the proper circumstances in order to avoid any confusion and disturbance to the candidates appearing in the examination.
The complainant sought the relief to more than 5 grace marks in paper-III Legal Aspacts of banking or for reappearance in the said examination along with adjustment of the fee of Rs.20,000/- as compensation.
3. The OP/Appellant has filed the written statement and denied the entire allegation.
It contended that complainant is not a consumer, therefore that dispute raised by the complainant is not within the ambit and scope of the consumer dispute. It was further contended that the demand for the grace marks could not be entertained since the prayer is outside the purview of the act. Further it is contended that the result of the examination conducted by the institute are used by the banks as the basis for granting increment in the salary and any undue favour to the complainant would result in unfair practice. The grace marks would also affect the opportunities/chances of the other deserving candidates for availing such increments. The contention of the complainant about grace marks in university/school examination does not carry any merit for unlike such examinations, any grace marks given in the JAIIB examination would have serious repercussion on the other candidates. The complainant having appeared in the said examination and having attempted all the questions utilizing the full 2 hours duration allotted for the examination has raised an unjustified demand of grace marks, which is against the interest of the institute. The complainant was given complete two hours i.e. from 11.40 a.m. to 13.40 p.m. to attempt the online examination. Non functioning of the complainant computer at the examination centre was purely for technical reasons, which was beyond the control of the OP/appellant. However, immediately the instituted accommodated and adjust the complainant to the nearest examination centre and informed him immediately. The institute i.e. appellant is neither covered by any Board nor regulated by any University and JAIIB Examination are also not similar to any other graduate examination where the students get the grace marks liberally. Therefore, the complainant is not entitled to any relief.
4. We have heard Ld. Counsel for both the parties and perused the matter on record.
5. The Counsel for the Appellant vehemently submitted that the complainant/respondent is not a consumer within the ambit and the scope of u/s 2(1)(d) of the Consumer protection Act 1986. On the other hand, the Counsel for the complainant/respondent has cited various decisions that the complainant is a consumer within the definition of Section 2(1)(d) of the Consumer Protection Act.
6. The Counsel for the appellant has placed the reliance on Bihar School Examination Board vs. Suresh Prasad Singla (2009)8 SCC page 483 and has invited our attention to this decision and specially the para No.9-13. Para No.11 to 13 of the aforesaid decision of the Honble Supreme Court pertains to the functioning of the administrative Act of a statutory body, which is a Board. The administrative act is to be distinguished from a commercial act. Admittedly, the appellant is a Limited Co. having commercial interest in the form of imparting education and is also clear from the fee structure. It was further admitted by the appellant that it is not only conducting certificate course for bankers but also running various diploma certificate courses for general public through their various branches. The functioning of the board are defined as a single statutory non commercial function by the Honble Supreme Court in the afore said decision.
In the case in hand, the appellant is not a single statutory non commercial body. It is a company registered under the Indian Companies Act and receives lacks of rupees from its ordinary members, therefore, the facts and circumstances of the case before the Supreme Court are quite different, which are before us.
7. Reliance has also been placed on a decision dated 7th july 2006 of Honble National Commission reported as Deputy Registrar vs. Ruchika Jain (2006) CJJ 343 (NC). We have gone through the judgment, which relates to allowing the candidates to appear in the examination and not to grant grace marks to compensate her for deficiency in service in the conduct of the examination as is the case before us.
Therefore, the facts are quite different.
8. The Counsel for the appellant has also placed reliance on A.P. Christian Medical Educational Society vs. Govt. of Andra Pradesh (1986) SCC page 667. In this case the consideration before the Honble Surpeme Court was with regard to evaluation of college to the University by invoking the provision of Article 30(1) and 136. In this case, the decision pertains to the rights to establish and administer medical college as minority institution, which is not in the case before us.
9. The Counsel for the appellant has also placed reliance on a decision dated 9th Dec., 2005 reported as Raj arajpat Manik Rao Sahera vs. Maharashtra University and Ors. (2006) MHLJ 230 of the Honble Bombay High Court which pertains to allow the 2nd year student of BDS course to be admitted to 3rd year turn of BDS against the regulations of the University. In this case, there is no controversy of deficiency in service on the part of the parties. Therefore, the law down in this case is not applicable to the facts and circumstances of the case before us.
10. On the other the Ld. Counsel for respondent has relied upon Bhupesh Khurana & Ors. Vs. Vishva Buddha Parisar 2001 (2) CPJ Page 72 wherein it was held that imparting of education by an educational institutions for consideration falls within the ambit of service has defined in the Consumer Protection Act and the similar observation was made by the Honble Supreme Court in Bangalore Water Supply and Sewage Board vs. K.Rajappa and ors. Mannu/SC/0257/1978 in case of University or an educational institution, the nature of activity is a service to the community.
11. It is clearly established that the complainant/respondent is a consumer of the service provided by the OP/appellant and the deficiency in service is in dispute.
12. Now the only question which remains for determination is whether the grace marks can be given to the complainant in the examination taken by him. The brochure etc. along with mark sheet is the material on record. In one subject Principle of Banking the marks obtained are shown as 60 but this mark sheet, according to the appellant, is a Zerox copy, but the complainant denied it. It contained 59 marks in the same subject. According to the contention raised by the respondent that he had not been given grace marks in subject Legal Aspects of Banking where he secured 48 marks and two grace marks given in that subject instead of other subjects, the complainant would have passed the examination.
13. It is an admitted fact of both the parties that when the complainant appeared at the appointed place of the examination centre, there was some technical problem and the examination centre was changed to Mukherjee Park just 15 minutes before the scheduled time. It is contended by the complainant that due to the utter confusion created by the defective service provided by the designated examination centre of the institute, the complainant failed to apply his mind in giving the reply to most of the questions. It is further on the material on record that the complainant/respondent has a diabetic patient and there were no toilet facility and even there were no drinking water facilities. It is a matter of common observation that the examination for a period of two hours should be conducted in a peaceful atmosphere and at least basic amenities like that of the toilet and drinking water must be provided to the candidates appearing in the examination. This facility is not provided by the appellant at the second examination centre which was changed 15 minutes before start of the examination and the information was given to the complainant when he appeared at the appointed place of examination centre. There is an ample evidence that the computer system, which was provided by the appellant in the conduct of the examination was not full proof and the documentary evidence clearly establish that there were malfunctioning in the said system on various occasions and due to which the genuine interest of the complainant/respondent has suffered immensely. It is further to add that malfunctioning of the computer system and not providing basic amenities at the second examination centre was immediately informed by the complainant to the concerned authorities of the appellant. This shows sheer negligence on the part of the institute and the complainant had to suffer irreparable loss in his performance aptitude in the said examination. It is on the material on record that the complainant had secured 64 marks in paper-I and 60% marks in paper-II of the said examination. It is only due to the confusion and nervousness created by the appellant at the designated centre, otherwise the complainant could not achieve an average score of + 60% marks in paper-III. Performance by any examinee also depends upon efficacy of the tools provided for taking the examination and any default in performance of such tools or surrounding atmosphere has made the examinee a great loss in his overall performance.
14. The Counsel for the appellant very vehemently submitted that there is no provision for any grace marks to be provided to the complainant. We do not agree with the contention of he counsel for the appellant. The Counsel for the appellant produced before us JAIIB Rules and Syllabus 2007. Clause 2.15 passing criteria of the Rules and Regulations 2007 of the JAIIB Associate Examination of the Appellant clearly goes to show that the candidates securing at least 45 marks in each subject with an aggregate of 50% marks in all subjects of JAIIB/CAIIB in a single attempt would also be declared as having completed the said examination. It is not denying the fact that the respondent has secured more than 45% marks in each subject and more than 50% marks in the aggregate and it is in one attempt keeping in view the hardship which the respondent had to face while appearing in the said examination.
15. The University Grants Commission, Govt. of India approved Rules of the Kurushethra University that 1% Grace marks of the aggregate marks of all papers in an examination are invariably awarded to a candidate to pass an examination or improve his division in the examination, in which the candidate has actually appeared. These rules are applicable to all the candidates taking the examination of the said university, whether professional or non-professional.
16. Honble Surpeme Court in Board of School Education v/s Arun Rathi and others (1994) II Supreme Court Cases 526 has held that The object underlying the grant of grace marks is to remove the real hardship to a candidate who has otherwise shown good performance in the academic field but is somehow losing one year of his scholastic career for the deficiency of a mark or so in his overall performance in other subjects, he deserves to be declared successful. The consideration being a laudable one, Regulation 26 is neither arbitrary nor unfair or unjust. In fact, it seeks to lay emphasis on the excellence in the field of education; hence, deserves to be upheld.
17. In another case Naresh Sashi vs. Punjab School Education Board Honble Punjab Haryana High Court has taken the same view.
18. The complainant was denied the grace marks by governing the principle of natural justice and universal practice being adopted by the accredited Universities at the centre as well as in the States. In all universities and board examinations there is always 1% reservation of the total marks in any examination, whether professional or non professional which are awarded to such candidates as grace marks who may be falling short of pass marks in any of the papers due to unforeseen circumstances during the conduct of such examination. There is a sheer deficiency and the negligence on the part of the appellant in the conduct of the examination and there are provisions for the award of the grace marks which are fully applicable to the facts and circumstances of the case.
19. The Counsel for the appellant has argued that the District Forum should not have awarded Rs.20,000/- as compensation and Rs.10,000/- as cost of litigation. We do not agree with the contention of the Counsel for the appellant for the reasons that the complainant had suffered irreparable loss on account of the negligence and sheer deficiency of the appellant, therefore, under the provisions of the Consumer Protection Act compensation and cost is to be awarded. Honble Supreme Court in Ghaziabad Development Authority vs Balbir Singh (2004) 7 CLD 861 (SC) has held that The word `Compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional sufferings, insult or injury or loss.
The provisions of the Consumer protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law
20. In view of the above, we do not find any irregularity in the impugned order and there is no justification to interfere therein.
21. The appeal is dismissed.
22. FDR, if any, deposited by the appellant be released after completing due formalities.
23. Copy of this order be provided to the parties free of cost and a copy of this order be also sent to concerned District Forum and thereafter, file be consigned to record room.
(Mrs. Salma Noor) Member (V.K.Gupta) Member (Judicial) Arya