State Consumer Disputes Redressal Commission
The Proprietor, Gandhi Institute Of ... vs Sharad Kumar on 29 September, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/637/2014 (Arisen out of Order Dated 31/03/2014 in Case No. cc/44/2013 of District North 24 Parganas DF, Barasat) 1. The Proprietor, Gandhi Institute of Management & Technology Prop., Mrs. Sarbani Das, D/o Santi Pada Das, AG-7, Salt Lake, Sector-II, P.S. East Bidhan Nagar, Kolkata-700 091, Dist. North 24 Pgs., West Bengal. ...........Appellant(s) Versus 1. Sharad Kumar Upasana Medical Centre, Vill. & P.O. - Atka, P.S. -Bagoder, Giridih, Jharkhand, Pin-825 322. 2. Periyar University Periyar Palkalainagar, Salem -636 011, Tamil Nadu, India. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. Rajesh Biswas Mr. Sibajisankar Dhar , Advocate For the Respondent: Madhumita Saha., Advocate ORDER Dt. 29.09.2015 JAGANNATH BAG, MEMBER
The present appeal is directed against the Order dated 31.03.14, passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas, in CC Case No.44/2013, whereby the complaint was allowed on contest against OP No.1 and ex parte against OP No. 2.
The Complainant's case, in brief, was as follows:
The Complainant in response to an advertisement in a newspaper visited the institute of the OP and purchased the prospectus of the institute. He took admission in the BBA course by paying Rs. 5,000/- as registration charge on 16.06.2009 and subsequently paid a total sum of Rs. 1,27,329/- between 24.06.2009 and 03.04.2012 on various dates. Though he initially filled up the form of Bharthiar University , he was asked to make his registration under Periyar University. He lost one academic year. But, as advised by the institute, he filled the examination forms for both 1st year and 2nd year. He attended both 1st year and 2nd year examinations in 2011 at a time, though neither the University Registration Certificate , nor the University Admit Card / Hall ticket was issued . The result was published on the University website, but the result of the Complainant was found to be incomplete. One mark sheet for first year examination was given to the Complainant showing the result of only one subject, i.e., Hindi . The result of 2nd year was not available. As per advice of the institute he filled up the University form for the 3rd year Annual Examination in April 2012. As results of previous year examinations were not available, the Complainant stopped going to the institute after attending the 3rd year examination. But, he received a letter in his home address saying that he has to pay the rest of the fees within a few days , otherwise legal action would be taken against him. He filed a complaint before the Assistant Director , Consumer Affairs and Fair Business Practice , Salt Lake Regional Office . Though the OP was called for resolving the dispute through the process of mediation on 10.01.2013 , the OP did not turn up. The Complainant therefore lodged the consumer complaint with prayer for direction upon the OP to pay a total sum of Rs.9,87,507.18 on several charges including compensation for mental agony and spoiling of education career.
The compliant has been contested by the OP who in their W.V. submitted, inter alia, that the OP Institute was merely a Study Centre of the Periyar University and they are only to bring the facilities of studies offered by a distantly placed University to the intending students. It was contended that due to non-submission of necessary papers and documents, particularly the Migration Certificate within time the Complainant could not get himself registered with the University which might have caused loss of one academic year. The issue of admit cards and hall tickets is the responsibility of the Periyar University with whom the student got himself registered. The redressal sought for by the Complainant was the responsibility of the Periyar University. Further, the Complainant was not a regular student but a habitual absentee and did not even attend the compulsory course. The Complainant failed to maintain minimum percentage of attendance required, but requested the OP to assure him good percentage and deliver him degree irrespective of job placement. There was no responsibility of the OP Institute in respect of the grievances of the Complainant.
Ld. Forum below having considered the arguments advanced by the Complainant himself and the Ld. Advocate of the OP and after critical appreciation of the material evidence on record observed that the Complainant deposited an amount of Rs.1,01,000/- which was not disputed by the OP institute. Ld. Forum also observed that the OP failed to prove that the Complainant was a habitual absentee . Upon consideration of all relevant facts and evidence, the Complainant was found to be entitled to get the result of 3 years from the OP No.1 through the OP No. 2. Accordingly, it was ordered that OP No.1 should deliver the certificate / result of the BBA course to the Complainant within one month from the date of order , in default , OP No.1 and OP No.2 shall be liable to pay jointly and severally a sum of Rs. 1,00,000/- to the Complainant within 15 days from 15.05.2014. OP No.1 was also directed to pay compensation of Rs.12,000/- and cost of Rs. 5,000/- to the Complainant. OP No. 2 was also directed to pay cost of Rs. 2,000/- to the Complainant .
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the OP No-1-turned -Appellant has come up before this Commission with prayer for direction to set aside the impugned order.
The memorandum of appeal has been filed together with copies of the impugned order , the petition of complaint (Amended) the W.V. filed by the OP before the Ld. Forum below, the examination in chief by the OP No.1 and other documents including several correspondences .
Ld. Advocate appearing for the Appellant submitted that the OP is an educational institution which offers different courses of distant education. Universities appoint or select some organizers as their coordinator who enroll the students , remitting necessary fees and sending documents and necessary certificates. The OP institute arranges the classes , recruits faculties and arranges examinations. The Respondent/Complainant was a habitual absentee and failed to maintain the minimum percentage of attendance required for appearing at the examinations. Again the fees were paid in favour of the University and the University was responsible for issuing mark sheet to the Respondent. Ld. Forum wrongly held that the Respondent is entitled to get the refund of the major part of the fees after deduction of some amount of administrative costs. Inspite of the arbitrary order, the Appellant, complied with the order of the Ld. Forum below and sent the certificate / result to the Respondent / Complainant. There being no deficiency in service , the impugned order be set aside.
Ld. Advocate appearing for the Respondent submitted that being attracted by the advertisement published by the Appellant the Respondent visited the institute of the OP and admitted himself in 3 year BBA course of Bharthiar University, but he had to shift to the course of Periyar University under the advice of the Appellant. The Respondent attended the classes regularly , otherwise he would not have been allowed to appear at the first year as well as the second year examination. It was also under the assurance of the Appellant that the Respondent appeared at the 3rd year examination. By withholding the certificate / results of the Respondent , the Appellant utterly failed in carrying out their responsibility which was clear deficiency in service and unfair trade practice. No dues were pending against the respondent and there was no specific demand in their letter asking for payment of dues. The result claimed to have been sent by the Appellant is nothing but an incomplete result showing the mark sheet in respect of English only . No complete result was sent which was a deficiency in service.
Decision with Reasons :
The appeal has been contested by the Respondent/Complainant while Respondent No. 2 stayed away from the proceedings in spite of insertion of notice in the newspaper.
The point for consideration is whether the impugned order suffers from material irregularity, legal infirmity and / or jurisdictional error.
There is no dispute that the Respondent / Complainant got himself admitted in the 3 year BBA course of Periyar University and the OP No.1, more as a facilitating service provider rather than as an educational institution ,in strict sense of the term, had a significant role in issuing newspaper advertisement, making arrangement of admission, holding classes and arranging examinations. The Appellant received the fees as per schedule without divulging how much of such fees was remitted to the University giving affiliation to the said Appellant. In fact, the Appellant / OP No.1, had in their W.V. (Paragraph -1 ) has admitted that they collect fees in order to meet charges for giving training both theoretical and practical as available with Periyar University. There was thus a direct give-and-take relationship between the Appellant and the Respondent.
As on record , the Appellant in their letter dated 29.09.12 admitted that the course of the Respondent was completed successfully, but there were some dues to be cleared. If the course of the Respondent was completed successfully, it could be presumed that the Respondent appeared at the 3rd year examination and expected his results in normal course . That did not happen. Ld. Forum below observed that 'the Complainant appeared all three examinations, which were never denied or challenged by the OP Institute. The OP also failed to prove that the Complainant was a habitual absentee by producing the Attendance Register. Moreover, it is also the case of the Complainant that he appeared the examination but not yet get the result of the said course, although he knew from the OP Institute that he was passed in the all previous two examinations before he appeared in the 3rd year examination, and such allegations also never disputed by the OP Institute'.
While the Ld. Advocate for the Appellant, during hearing of the appeal, mentioned that the OP No.1 as an educational institute was not a service provider as per settled principle of law , Ld. Advocate of the Respondent referred to a number of decisions of the Apex Consumer Forum holding in Ram Kumar Aswani -vs- Ms. A.K. Structural Foam Ltd. 1993 CPC 383, Registrar HP University -vs- Suresh Kumar 2007 (2) CPC and Guru Nanak Dev University-vs- Jajgit Singh 2005 (1) CPC 490 PB, that providing education is a service. In fact, in the present case the Appellant has admitted vide Paragraph-X of the appeal that the Respondent has 'duly availed the services of the opposite party / appellant but in spite of availing such service demanded refund of the course fees , for which the petitioner had attended classes'.
The Appellant was admittedly in charge of arranging examination of BBA course of Periyar University and there is no denial on their part that the Respondent appeared at all the three examinations . There is no whisper about non-appearance of the Respondent at any of the said examinations. On the contrary, there is clear statement in their letter dated 29.09.2012 that the Respondent successfully completed the course . Strangely enough, the Appellant did not mention in their letter if any specific amount of dues had to be paid by the Respondent. The Appellant having stated that the Respondent duly received the services, it would imply that the Respondent purchased the services for consideration. Negligence on the part of the Appellant in not arranging the delivery of the result of the examinations implies that the Appellant had deficiency in service. In that view of the matter, we are inclined to hold that the appeal does not succeed. The impugned order does not suffer from any material irregularity or jurisdictional error . We find no reason to interfere with the impugned order. Hence, Ordered That the appeal be and the same is dismissed . The impugned order is confirmed. The Appellant and the Respondent No.2 shall pay the entire award as ordered by the Ld. Forum below within a period of 40 days from the date of this order, failing which the defaulting party/parties shall have to pay Rs. 200/- per day till full realization and such amount shall be deposited to the State Consumer Welfare Fund. There shall be no separate order as to costs. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER