National Consumer Disputes Redressal
Rajeev Sahay vs Sanjay Kumar & Anr. on 3 May, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 17 OF 2017 (Against the Order dated 27/09/2016 in Appeal No. 130/2016 of the State Commission Jharkhand) 1. RAJEEV SAHAY EX DIRECTOR, OF FRANCHISE OF APTECH COMPETING EDUCTION M/S. SION COMPUTERS (I) PVT. LTD. MADHURI PALACE BARTAND DISTRICT-DHANBAD-826001 JHARKHAND ...........Petitioner(s) Versus 1. SANJAY KUMAR & ANR. S/O. SHRI SIYARAM PRASAD SINGH, R/O. SARVODAYA NAGAR, CHIRAGDA P.O. DHANBAD JHARKHAND 2. DIRECTOR APTECH HOUSE, A/65,M.I.D.C. ANDHERI (E) MUMBAI-400093 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER HON'BLE MR. JUSTICE SUDIP AHLUWALIA,MEMBER For the Petitioner : Mr. Arvind Mishra, Advocate For the Respondent : Mr. R.K. Singh, Advocate (For R-1) Dr. Anurag Bhardwaj, Advocate & Mr. Bhupender Sharma, Advocate (For R-2) Dated : 03 May 2023 ORDER JUSTICE SUDIP AHLUWALIA, MEMBER This Revision Petition has been filed by the Petitioner/ Opposite Party No.1 against the Respondent No.1/ Complainant and Respondent No.2/ Opposite Party No.2 challenging the impugned order dated 27.09.2016 passed by the Jharkhand State Consumer Disputes Redressal Commission, Ranchi in First Appeal bearing No. 130 of 2016. Vide such order, the State Commission had dismissed the Appeal in upholding the order dated 12.05.2016 passed by the District Consumer Disputes Redressal Forum, Dhanbad in Consumer Case No. 22/2011.
2. The brief facts of the case are that the Complainant was in search of a reputed institution imparting Computer Application Courses and being attracted by the advertisement of the Opposite Parties came to its Dhanbad centre run under the Franchise (Opposite Party No.1), of the Opposite Party No.2. The Complainant was briefed about the terms and conditions and the courses by the Opposite Party No.1. It was claimed by the Complainant that he was informed that the students seeking admission in A.C.C.P. courses of computer had to pay a total sum of Rs.1,20,000/- for two years theory and practical classes, and one year internship with reputed multinational company and in course of internship, the students were to be paid a handsome stipend and thereafter the Trainee was to be placed in a reputed company. It was further submitted that the Complainant being attracted by the future prospects took admission in A.C.C.P. course by paying an admission fees of Rs.4,314/- on 17.12.2007. The Complainant was further directed to deposit the balance sum after 15 days and on his request, the Opposite Party No.1 agreed and allowed payment of balance fees in instalments and consequently the Complainant deposited an amount of Rs.20,000/- . However, no receipt was given to the Complainant and he was told that the receipt would be given later. The Complainant was given a receipt of Rs.10,128/- only in six months upto 19.06.2008. It was further the case of the Complainant that he was pressed by the Opposite Party to deposit the rest amount and on inquiring of about the receipt and irregular classes, he was informed that the receipt could not be given due to some technical difficulty and irregular classes would be regularised soon. It was further submitted that the Complainant was also informed that on payment of balance amount, the Complainant would be imparted in upgraded course and thereafter on completion of the course, he would be sent to a reputed company for internship. The Complainant further averred that on believing the Opposite Party, he paid Rs.95,686/- totalling the sum paid to Rs.1,20,000/-. However, the Opposite Party has only given a receipt of only Rs.58,156/-. Further, it was averred that the Complainant was enrolled in the upgraded course. However, the Opposite Party did not improve the imparting process, irregular theoretical and practical classes. It was further alleged that after completion of course on 17.12.2009, the Complainant was entitled for internship. However, the Opposite Party kept mum in this regard. The Opposite Party failed to send the Complainant for internship and also failed to give receipts for the payments made by him. Hence, the Complainant alleged that he has been cheated by the Opposite Party further, causing irreparable loss, monetary toll, mental agony and harassment. Being aggrieved by such acts, the Complainant also sent a Legal Notice to the Opposite Party which was replied by the Opposite Party stating wrong facts. Therefore, being aggrieved by the acts of the Opposite Party, the complaint was filed before the District Forum seeking refund of Rs.1,20,000/- and Rs.1,00,000/- for mental agony and harassment.
3. The Opposite Party No.1 appeared before the District Forum and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended by the Opposite Party No.1 that the Complainant had enrolled in Aptech Computer Education on 17.12.2007 for getting assistance in ACCP Internship programme for which he undertook to abide by the direction as laid down by Aptech Computer Education and the Complainant entered into an agreement by executing a declaration in favour of Aptech Computer Education. It was also contended that the Complainant did not abide by his declaration and undertakings and he did not attend the test, hence, under clause 'j' of the declaration, the Aptech Computer Education found him not to be eligible for the allotment of an Internship Site. It was further submitted that the Opposite Party No.1 had several times informed the Complainant verbally, telephonically and through Email to attend the interviews which were conducted by reputed companies. However, the Complainant failed to participate and consequently, the internship site was not allotted to the Complainant. It was the case of the Opposite Party No.1 that the Complainant did not get internship due to his own fault, and has now filed a frivolous complaint with the sole purpose of harassing the Opposite Party No.1. It was further submitted that the Opposite Party No.1 also replied to the Legal Notice sent by Complainant's father clarifying all the perplexity and it was stated that receipt was issued for whatever amount had been received and no amount beyond the receipt was received. It was also contended that the Complainant had suppressed material facts and documents and hence, the complaint was liable to be dismissed. It was further contended that the Complainant was informed that he had to deposit a total sum of Rs.58,156/- only, and not Rs.1,20,000/-. It was further informed to the Complainant that the institution is only to provide assistance to the candidate to achieve internship site but it was for the candidates themselves to achieve their ambition by their own labour and endeavour. It was also submitted that the Complainant had paid only a sum of Rs.58,156/- and no other amount beyond that. It was further submitted that such false complaint has harmed the reputation of the Opposite Party No.1 and caused irreparable financial loss. Hence, the Opposite Party No.1 prayed for dismissal of the complaint with cost of Rs.10,000/.
4. The Opposite Party No.2 appeared before the District Forum and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended by the Opposite Party No.2 that Sion Computers (India) Private Limited (Franchise) had expressed its desire to establish a centre at Dhanbad for providing training under the brand name 'Aptech' and accordingly, the Opposite Party No.2 (Franchisor) entered into a Franchise Agreement with Sion Computers (India) Pvt. Ltd. on 01.01.2002. As per the terms and conditions, the Opposite Party No.2 granted authority to open a new centre at Dhanbad for providing education or training to enable persons to appear for examination of the courses conducted by the Opposite Party No.2. As per the agreement, it was the responsibility of the Franchise to market and train the learners, to conduct licensed business in conformity with the program by following the standard procedures laid down in the course conduct guidelines manual and to comply with such instructions contained in manual, and to conduct regular classes.
5. It was also the case of Opposite Party No.2 that it was agreed by the Franchise that it alone would be responsible in respect of any suit, application for interim or ad-interim order(s) or any legal proceedings or any legal notice or any complaint filed by the students or other persons or any authority in any Court, Tribunal, Consumer Redressal Forum/Commission or before any authority pertaining to conduct of courses, facilities to students, for any dispute between the students and the Franchise or in respect of any matter related to or concerning the Franchise Centre and the Franchisor or its directors or officials would not be responsible or made Parties to any such suit, complaint or proceedings. The Franchise also undertook to indemnify and keep indemnified the Franchisor. It was also stipulated in the contract that the franchisee would be an independent one and nothing contained in the agreement would constitute the Franchise as an agent of the Franchisor. The Franchisor however was to be responsible towards the Franchise and students relating to all subject matters and technical know-how in respect of only the course to be delivered. It was further submitted that the Opposite Party No.1 alone gave receipt for the moneys that received from the Complainant. It was further submitted that the Complainant was informed about the job details/ internship vide emails and the Complainant was required to contact the Company for attending interviews. However the Complainant did not either attend any interview, and was therefore not selected by any Company due to poor performance in the interviews. The role of Franchise was to assist the Complainant in getting the internship and not guaranteeing internship. Hence, the Opposite Party No.2 prayed for dismissal of the Complaint since the complaint is not maintainable against it. Alternatively, Opposite Party prayed for being removed from the complaint.
6. The Ld. District Forum vide its order dated 12.05.2016 allowed the Complaint and observed inter alia:-
"... Heard both the parties, examined the record. This fact is recognised that Shri Sanjay Kumar had got enrolment in the institution of the Defendant no.1 and payment of Rs.58,156/- (Rupees Fifty Eight Thousand One Hundred Fifty Six only) has been made against the receipt. The Complainant has also involved in Aptech Computer education programme through the defendant but he was not sent for internship in accordance with conditions. This averment of the defendant that he was not found eligible for internship and the complainant has not complied with declaration as submitted by him are seemed absolutely wrong since neither any agreement or declaration has been tendered by the defendant in the court and nor copy of any notice has been tendered which to be alleged ineligible to the complainant. Such types of institutions after making fool to simple boys collect money and in the event of litigation give excuses to produce document, which this company has done. On the grounds of entire facts and circumstances and credentials as available in the record it is directed to the defendant no.1 that do pay Rs.58,156/- (Rupees Fifty eight Thousand One Hundred Fifty Six Only) alongwith interest @8% per annum thereon to the Complainant within 60 days from the date of institution the case till its realization, additionally do also pay Rs.20,000/- (Rupees Twenty Thousand only) towards mental agony and Rs.5,000/- (Rupees Five Thousand Only) towards litigation charges. Hence, this case is decided in favour of the complainant alongwith costs..."
7. Aggrieved by the above order, First Appeal bearing No. 130 of 2016 was filed by Appellant/ Opposite Party No.1 against the Respondent No.1/ Complainant and Respondent No.2/ Opposite Party No.2 before the Jharkhand State Consumer Disputes Redressal Commission, Ranchi.
8. The Ld. State Commission vide impugned order dated 27.09.2016 dismissed the Appeal and upheld the order of Ld. Forum while observing inter alia:
"6. Thus, the learned District Forum has rightly held that the appellant did not produce any document/ evidence to show that there was latches on part of the Complainant in not attending the interviews, as alleged.
7. After carefully considering the entire matter, in our opinion, even if the delay of about 52 days in filing this appeal is ignored, no grounds are made out for interference with impugned judgement.
Accordingly, this appeal is dismissed."
9. Hence, the present Revision Petition has been filed by the Petitioner/ Opposite Party No.1 against the above mentioned impugned order of the Ld. State Commission on the following grounds:
The impugned order is passed ignoring the settled principle of law, suffers from legal lacuna and has been passed on surmises and conjectures and the order is against weight of evidence and probabilities of the case;
The Hon'ble State Commission and Ld. District Forum both have failed to appreciate that the Respondent/ complainant has completely failed to prove any defect in service;
The order of both Ld. State Commission and Ld. District Forum suffer from basic infirmity as the order have been passed against the petitioner in individual capacity whereas as per the material on record i.e., the fee receipts and written statement of Aptech Ltd. clearly reveal that M/s SION Computers (India) Pvt. Ltd. was the franchise of Aptech Ltd. and not the Petitioner in individual capacity. The Petitioner had filed the written statement in the capacity of ex-director/individual capacity and the petitioner has resigned from the capacity of director at the time of filing the written statement;
The Complainant failed to array M/s SION Computers (India) Pvt. Ltd. as a party in the complaint and the courts below have erred in passing order against the Petitioner in individual capacity whereas the liability if any ought to have been ascertained against the company;
The Forums below failed to evaluate the Franchise Agreement in its true perspective. The agreement states that the revenue was being shared by Aptech Ltd. and the share of revenue was determined by Aptech Ltd. only. The perusal of the Agreement reveals that M/s SION Computers (India) Pvt. Ltd. was the franchise of APtech. As per the Agreement, the placement was to be provided by the Franchiser, Aptech Ltd. and not the Franchisee. The Forums below have erred in fastening the liability solely on the Petitioner in individual capacity when the Petitioner had no obligation to provide for placement;
The Forums below have failed to appreciate the student declaration which has been given to Aptech Ltd. and not to the Petitioner or the franchisee. Even the said declaration talks of endeavour to provide internship assistance which was again subject to discretion of Aptech;
The Forums below have erred in holding that internship opportunity was not properly offered. The Complainant filed a bald plea of Rs.1,20,000/- whereas the Petitioner placed on record details of actual receipt to the tune of Rs.58,156/-. The Forum below miscured the endeavour to assist the students with a guarantee for job/internship;
10. It has been contended by the Respondent No.2 that the Ld. District Forum and the Ld. State Commission have not passed any order against the Respondent No.2 and the Petitioner has not claimed any relief against the Respondent No.2. It is further argued that the Ld. District Forum has rightly appreciated the Franchise Agreement.
11. Vide order dated 20.01.2017, execution of the impugned order was stayed subject to deposit of 50% of awarded amount by the Petitioner. Vide order dated 10.11.2017, the present revision petition was dismissed for non-prosecution. Consequently, an MA bearing no. MA/475/2017 was moved by the Petitioner which was allowed vide order dated 01.12.2017 and the Revision Petition was restored to its original number.
12. Heard the Ld. Counsel for Respondents and Petitioner. Perused the material available on record.
13. Ld. Counsel for the Petitioner has been unable to show from the Record as to how and in what manner the Respondent/Complainant was communicated that he did not fulfil the eligibility criteria on account of which certain more steps from his side were required to be complied with. Similarly, no documents could be cited on behalf of the Petitioner to show that any intimation asking the Respondent/Complainant to appear at any interview was actually conveyed to him.
14. On the contrary submission of Ld. Counsel for the Petitioner is that the Complaint was not maintainable since it has been filed against his client in his personal capacity, and the company of which he happens to be a Director i.e "Franchise Aptech Computer Education" has not been made a Party. Such contention is untenable first of all for the reason that it was never raised before the District Forum at any stage, as a complete reading of the Written Statement filed on behalf of the Petitioner which is on Record would go to show. Further, by his own case the Petitioner actually is a franchise of the main service provider "Aptech Limited" and therefore, stands in the position of being an Agent to such Service Provider, who was also actually impleaded as Opposite Party No.2 in the original Complaint. So the contention raised by the Petitioner at this stage holds no water.
15. For the aforesaid reasons, we find no grounds to interfere with the concurrent decisions of both the Ld. Fora below.
16. The Revision Petition is therefore dismissed.
17. Litigation costs assessed at Rs.10,000/- are further awarded in favour of the Respondent/Complainant.
18. Pending application(s), if any, also stand disposed off as having been rendered infructuous.
...................... SUBHASH CHANDRA PRESIDING MEMBER ......................J SUDIP AHLUWALIA MEMBER