State Consumer Disputes Redressal Commission
Nimtt vs Abhijit Biswas on 1 December, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/534/2017 (Arisen out of Order Dated 26/09/2016 in Case No. Complaint Case No. CC/262/2016 of District Kolkata-II(Central)) 1. NIMTT 47, Raja Subhas Chandra Mallick Road, Jadavpur, near Sulekha More, opp. Sulekha Petrol Pump, P.S. Jadavpur, Kolkata-700 032. 2. Samir Nath, Director NIMTT NIMTT Building, 47, Raja Subhas Chandra Mallick Road, Jadavpur, near Sulekha More, opp. Sulekha Petrol Pump, P.S.- Jadavpur, Kolkata -700 032. ...........Appellant(s) Versus 1. Abhijit Biswas S/o Lt. Arabinda Biswas, National Park Naihati, North 24 Pgs., Pin - 743 165. 2. NIMS University Jaipur-Delhi Highway, Shobha Bazar, National Highway, 11-C, Jaipur, Rajasthan - 303 121. 3. CMJ University Madrina Mansion, Nongkynrih Laitumkharah, Shillong- Meghalaya - 793 003. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Ms Satabdi Goswami,Mr. Tirthapratim Goswami, Advocate For the Respondent: Debajyoti Das, Advocate Dated : 01 Dec 2017 Final Order / Judgement
Date of Filing - 11.05.2017 Date of Hearing - 16.11.2017 Challenge in this Appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the Order No.10 dated 26.09.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint No. 262/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent No.1 under Section 12 of the Act with certain directions upon the Appellant No.1 - to refund Rs.57,000/-, to pay compensation of Rs.50,000/- and litigation cost of Rs.10,000/- within 30 days from the order otherwise the OP No.1/Appellant No.1 shall be liable to pay penal damages of Rs.5,000/- per month till compliance of the order.
The Respondent No.1 herein being complainant lodged the complaint asserting that being allured by an advertisement, he contacted with NIMTT and took admission in NIMTT for Ph.D (in Management) under NIMS University, Rajasthan on 22.11.2010 and deposited Rs.57,000/- as course fee. On 27.01.2011 OP No.1 supplied ID Card and Registration Card to him with an assurance that within 3-4 months, complainant will obtain university ID card and registration card. Two months later on 21.03.2011, complainant was duly informed that his application has successfully been processed with the NIMS University for Ph.D registration as Ph.D Scholar through the OP No.1 in session 2010-2011. After a reasonable time without getting any positive response, complainant personally contacted and enquired in NIMS University wherefrom he came to know that OP No.1 had paid only Rs.11,000/- to NIMS University and for that they have cancelled the admission of the complainant. Thereafter, the OP No.1 communicated to the complainant about their problem with NIMS University and proposed the complainant to change the University from NIMS to CMJ University, Shillong (Meghalaya) or to take back the admission fee after deduction of Rs.13,000/-. On receiving such information, the complainant became puzzled and finding no other way compelled to give consent to OP No.1 and opt for CMJ University. Subsequently, the same thing has happened and the complainant could not pursue his study. Hence, the respondent No.1 approached the Ld. District Forum on the allegation of deficiency in services on the part of opposite parties with prayer for several reliefs, viz- (a) refund of Rs.57,000/- with statutory interest thereon; (b) compensation of Rs.3,50,000/- and (c) litigation cost of Rs.50,000/- etc. As per observation of the Ld. District Forum, the appellants/OP Nos. 1 & 2 did not come to contest the case and as such proceeded exparte against them.
After assessing the evidence led by the complainant and other materials on record, the Ld. District Forum by the impugned order allowed the petition of complaint with certain directions upon the opposite parties. Being aggrieved and dissatisfied with the said order, OP Nos. 1 & 2 have come up in this Commission with the present appeal.
I have considered the submission advanced by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Having heard the Ld. Advocates appearing for the parties and on perusal of materials on record, it reveals that in the petition of complaint, the address of appellant nos.1 & 2/OP Nos. 1 & 2 was shown as Tantia Villa, 10B of East Topsia Road, Plot No.45, near Mirania Boating Club adjacent to Roshan Garden Marriage House, P.S.- Topsia, Kolkata - 700046. However, in the Memorandum of Appeal, the appellants have mentioned their address as Premises No.47, Raja Subhas Chandra Mallick Road, Jadavpur, near Sulekha More opposite to Sulekha Petrol Pump, P.S.- Jadavpur, Kolkata - 700032.
In fact, in the execution proceeding, the complainant/respondent no.1 has mentioned the said address in which notice of execution case was properly served. On query, Ld. Advocate for the respondent no.1/complainant has candidly submitted that they did not amend the address of the appellants/OP Nos. 1 & 2 in the petition of complaint and subsequently after the final order, they came to know about the present address of the appellants. Therefore, it is quite clear that no notice was at all served upon the appellants/OP Nos. 1 & 2 and as such an exparte order was passed.
It is well settled that fair procedure is the hall mark of natural justice and in the instant case, the same has been grossly violated. Therefore, the natural justice demands for rehearing of the matter after an order of remand.
However, it should be recorded here that the imposition of penal damages @ Rs.5,000/- per month cannot be supported. On perusal of petition of complaint or the prayer clause of the said complaint, I do not find any averment or any prayer to that effect and in this regard the Ld. District Forum could have invoked the provisions of Section 3(1) of the Interest Act, 1978 which provides - "In any proceeding for the recovery of any debt or damages or in any proceeding in which a claim for interest in respect of any debt or damages already paid is made, the Court may, if it thinks fit, allow interest to the person entitled to the debt or damage or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part".
In a case reported in 2013 (1) CCC 129 (Smt. Sheela Wanti & Anr. - Vs. - State Bank of India & Anr.) it has been held - "imposition of interest is not a penalty or punishment at all but is the normal accretion on capital; that in equity a person keeping the money is required to pay the interest being normal accretion on the principal amount".
Therefore, relying upon the relevant provisions contained in the Act and the decision referred above, I have no hesitation to hold that the imposition of penal damages of Rs.5,000/- per month is beyond the scope of law and the Ld. District Forum proceeded in a wrong direction without imposing interest as per prevalent rate maintained in the nationalised bank.
In view of the above, the appeal is allowed on contest. However, there will be no order as to costs.
The impugned order is hereby set aside.
The case is remitted back on remand with a direction upon the parties to appear before the Ld. District Forum on 27.12.2017 positively and on that date the opposite party nos. 1 & 2 must file written version and if written version is filed on the date, fix the Ld. District Forum will proceed to dispose of the case in accordance with law after reception of evidence.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER