State Consumer Disputes Redressal Commission
The Principal, Goa Correspondence ... vs Nandan Sadguru Perkar on 27 January, 2017
1
BEFORE THE HON'BLE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, AT PANAJI
First Appeal No. 35/2016
Quorum : Hon'ble Shri Jagdish Prabhudesai and
Hon'ble Smt. Vidhya Gurav, Members
1.The Principal, Goa Correspondence College, 4th Flr., Vrindavan Chambers, Above Ruchi Restaurant, Near Patto Bridge, Panaji, Goa.
2. The Head Office, Goa Correspondence College, 3rd Flr., Aashirwad Bldg., Opp. Meenakshi Hotel, Margao, Goa. Appellants V/s Mr. Nandan Sadguru Petkar, H. No. 388/1, Vaidongar, Parcem, Pernem, Goa. Respondent Ld. Adv. Shri Thalmann Pereira present for the Appellants Ld. Adv. Shri S. Desai present for the Respondent ORDER Date : 27.1.2017 (Per Shri Jagdish Prabhudesai, member)
1. By this Order, we shall dispose off the present Appeal dated 18.7.2016 filed by the Appellants herein against the Respondent herein inter alia challenging the Order and 2 Judgement dated 17.6.2016 (hereinafter referred to as the 'impugned Order') passed by the Ld. Consumer Disputes Redressal Forum, North Goa, Porvorim in Complaint No. 8/2013.
2. The brief facts of the case can be stated as under :
I It is alleged in the original complaint that the Complainant i.e. the Respondent herein, is a graduate in Science faculty and desired to do post-graduation viz. M.Sc. He had gone through the advertisement published by the original Opposite Party No. 2 and therefore approached original Opposite Party No. 2 in their Branch Office through the Opposite Parties. The original Complainant desired to take admission in Periyar Institute of Distance Education (Periyar University), Salem Tamil Nadu for pursuing post- graduation viz. M.Sc.
II. It is further alleged that when the original Complainant approached original Opposite Party No. 1 for admission for the first year M.Sc. (Microbiology), they informed him that he had to pay a sum of Rs. 18,000/- by D.D. to original Opposite Party No. 2. In good faith the original Complainant paid the said amount on 3.6.2011 and handed over to original Opposite Party No. 2 at Margao. He also filled up and handed over to original Opposite Party No. 2 the examination form which was supplied to the original Complainant by original Opposite Party No. 1.3
III It was further alleged that through the Periyar University website the original Complainant learnt that the examination of the first year M.Sc. was scheduled to be conducted from 16th June, 2012 to 20th June, 2012. The original Complainant therefore approached the original Opposite Party No. 2 in their Head Office located at Margao, Goa to obtain examination details and necessary hall ticket for appearing for the examination. This happened at the beginning of the month of June, 2012. The assistant in the Head Office the Opposite Party No. 2 informed the Complainant that the hall ticket for appearing for the examination would be available on the previous day of examination i.e. 15th June, 2012.
IV It was further alleged that accordingly the original Complainant went to collect hall ticket at the Office of the original Opposite Party No. 2 on 15.6.2012. However, the original Complainant was disappointed as the hall ticket was not given to him. On checking the website of the Periyar University the Complainant found that his name or the details of the hall ticket was not displayed on the website. Inspite of repeated requests to both the Opposite Parties hereinabove they did not supply the original Complainant the hall ticket.
V It was further alleged that in the circumstances it was difficult to appear for the examination without the hall ticket. The original Complainant therefore personally called on the original Opposite Party No. 1 in connection with the hall ticket. However, the original Opposite Party No. 1 gave the 4 original Complainant evasive replies and avoided to hand over the required hall ticket. As a result the original Complainant could not appear for the examination.
VI It was further alleged that the original Complainant approached both the original Opposite Parties and requested to refund the amount of Rs. 18,000/- paid by the original Complainant to the original Opposite Parties. The original Complainant therefore wrote a letter dated 16.6.2012 to both the original Opposite Parties asking for the refund. The original Opposite Parties No. 1 refused to receive the letter through the original Complainant. Therefore the Complainant was forced to send it by the Speed post.
VII Based on the said cause of action the Complainant filed the aforesaid Complaint before the Ld. Forum. However he had referred the matter earlier before the Conciliation Committee of Department of Civil Supplies and Consumer Affairs where the said Committee drew their failure report on 7.12.2012 with liberty to approach the Consumer Forum with appropriate reliefs.
3. After the notice was issued to the Opposite Parties, they filed their written version and denied the allegations made by the Complainant. They stated that the Consumer Forum has no jurisdiction to try and entertain the said complaint. They further stated that the admission of the Complainant was confirmed by Periyar University, Salem and the Complainant was issued Student Identity card and admission card by the said University. The Complainant also 5 received the study material as required. They stated that they had requested the Complainant to appear for the examination in July, 2012 despite the hall ticket and further assured that they will be in correspondence with the administration of Periyar University regarding the said hall ticket but the Complainant refused to answer the examinations. The Opposite Parties denied that the Complainant personally called the Opposite Party No. 1 in connection with the hall ticket. They also denied that as a result of not giving the hall ticket, the Complainant could not appear for the exams. They in fact procured the hall ticket of the Complainant as assured by them from Periyar University.
4. The Opposite Parties specifically denied that they have intentionally cheated the Complainant to the tune of Rs. 18,000/-. They stated that they had explained to the Complainant that he was enrolled for two years course and even if he does not answer/fail in December, 2012, he can still answer the first year and second year together in May, 2013 exams. The Complainant was requested to appear for the exams in December, 2012 even after July, 2012 exams were over but he refused to do so and hence the present complaint is devoid of any substance and is liable to be dismissed.
5. The Ld. Forum, North Goa, after hearing the parties and perusal of the pleadings and Affidavitory evidence as well as the arguments, passed the impugned Order on 17.6.2016 and granted the following reliefs by partly allowing the complaint :
6"The complaint is partly allowed with following reliefs :
a) The Opposite Parties are jointly and severally directed to refund the amount of Rs. 18,000/- along with 18% interest from the date of receipt of the fees till the final payment to the Complainant.
b) The Opposite Parties are also jointly and severally directed to pay as compensation of Rs. 50,000/- to the Complainant towards the mental agony and other sufferings and costs of Rs. 20,000/-. In case the above amounts are not paid after the Appeal period the same will carry interest @ 12% p.a. till the final payment.
Pronounced in open Court. Proceedings closed."
6. It is this impugned Order passed by the lower Forum which is sought to be challenged in the present Appeal. We have called for the R & P from the lower Court and perused the same. We have also gone through their respective oral arguments as well as written submissions. On perusal of the pleadings, Affidavitory evidence and the documentary evidence produced by both the parties, we now proceed to record our observations and findings as would contain hereinafter.
7. The Appellants have argued before us that the Consumer Forum had no territorial jurisdiction in the matter. They also submitted that the Ld. Forum has failed to note that it is not at all the case of the Complainant that he was stopped or prohibited by the Opposite Parties from answering 7 the examinations despite not having the hall ticket. The Appellants also argued that it is the admitted case of the Complainant himself that it was the Periyar University, Salem, Tamil Nadu which had not uploaded the Complainant's hall ticket on its website. The Appellants also submitted that the said Periyar University, being a separate entity under the law has to be sued in its own name.
8. The Appellants have further strongly contended that the Opposite Parties cannot be held responsible for the said acts of Periyar University and especially in respect of the said hall ticket especially when the latter is to impleaded as necessary party to the present consumer dispute.
9. The Appellants have also relied on various decision on higher Courts under the law and submitted that the impugned Order passed by the lower Forum be set aside. While arguing on the point of their legal relationship with the said University in the nature of Agent and Principal, the Appellants have relied on the decision of Hon'ble Supreme Court reported in 1998 3 SCC 247 (Marine Container Services South Pvt. Ltd. V/s Go Go Garments) wherein at para 4 it has been held that :
"The Contract Act applies to all the litigants before the Commission under the Consumer Protection Act included. Whether in proceedings before the Commissioner or otherwise, an agent is entitled to invoke the provisions of Section 230 of the Contract Act and if the facts found support him, his defense based thereon cannot be brushed away."8
Thus it is amply clear that the Appellants stood in a definite contractual relationship with the said University. The facts relevant in themselves are that the study courses and examinations are conducted by the said University through the Appellant No. 1 and the said University discharges its obligation to all the students at various Centres in the matter of the study material, conducting the examinations as well as issuing the hall tickets. Hence, undoubtedly it can be concluded that the said University is a separate legal entity in the eyes of the law but the same has not been impleaded as party before the Ld. Lower Forum.
10. On the other hand the Respondent has argued before us stating that the Consumer Forum has the jurisdiction to try and entertain the present complaint. He also argued that the said sum of Rs. 18,000/- was unduly collected by the Appellants under the false promise pertaining to the post graduate course of M.Sc. It was also argued that the Respondent has lost one year's studies due to the cheating by the Appellants. The Respondent has also contended before us that the Student Identity card of the Respondent is issued C/o Goa Study Centre in May, 2012 and that when he checked the website of Periyar University no hall ticket/admission card was generated in his name. The Respondent further argued that the District Forum has rightly held that it cannot be believed that the student would want to lose an academic year by not answering an examination and that too when fees are paid. The Respondent has therefore contended before this Commission that he is entitled to the relief as granted by the District 9 Forum vide the impugned Order as he has suffered grave injustice due to the careless and unprofessional attitude of the Appellants.
11. At the outset it is observed that the Ld. Lower Forum vide para 16 of the impugned Order has recorded its finding to the following effect :
"16. It is pertinent to note that such Opposite Parties attract the students by their advertisements and cheat students with false promises and assurances pertaining to the different courses. But after paying fees, Opposite Party's for some or other reasons does not conduct the exams or does not supply the study materials or hall tickets. This is ridiculous way of such fake institutions to grab the money from the innocent students who has bonafide intention to complete their studies."
We are, however, are constrained to note that such an unproved and one sided finding is unwarranted having regard to the facts and circumstances of this case. It is also to be noted that it is far from truth that the Opposite Parties in the present case have attracted the students by their advertisements with a view to cheat them. On the contrary the evidence on record indicates that the Opposite Parties have conducted the exams on the due date and have categorically stated that they have supplied the study materials to the Complainant after he was admitted to the course. Hence the inference drawn by the Ld. Forum that "This is ridiculous way of such fake institutions to grab the money from the innocent students who has bonafide intention 10 to complete their studies." is uncorroborated inference in as much as there is nothing on record to show that the Appellants or the said University are fake Institutions.
12. It is also pertinent to note that the Ld. Forum has committed a gross error of Judgement in not applying its mind judiciously to the question of the territorial jurisdiction of the Forum as well as the issue of non-joinder of necessary parties. On plain reading of the impugned Order it is absolutely clear that the lower Forum has completely failed to record any finding on the above two issues as well as the contention of the Appellants herein that they are not the service providers and the Complainant is not the consumer within the meaning of Consumer Protection Act, 1986.
14. In this regard it may be noted that the Ld. District Forum has not applied its mind judiciously to the main issue as to whether the Complainant is a 'consumer' and the Opposite Parties are the 'service providers' within the meaning of the Consumer Protection Act, 1986. To our minds, had the Ld. Forum done so, it would have arrived at altogether different conclusions resulting into the dismissal of the present complaint.
15. It is pertinent to note that Section 2(1)(d)(ii) defines the expression 'consumer' as follows :
"The consumer means any person who :
(i) ...........
(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and 11 partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose);"
16. So also the expression 'service' is defined in the Act vide Sec 2(1)(o) as follows :
"'service' means service of any description which is made available to potential (users and includes, but not limited to, the provision of) facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction,) entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
17. To our minds the original complaint ought to have been decided by pronouncing the Judgement on the above two issues in the light of the pleadings of both the parties and available evidence on record. We therefore take up these two issues for our consideration in the foregoing paragraphs.
1218. The perusal of the documents produced by both the parties clearly supports the view that the Opposite Parties have not charged any fees whenever they follow the practice of making available the hall tickets on behalf of the said University to all the students. It is not the case of the Complainant that he has made any extra payment nor has the Office of Opposite Party No. 2 collected any payment in this regard in the matter of the issuance of hall tickets. This only means that though the prescribed fees were paid to the Appellants, it was for the purpose of admission/registration of the Complainant to be admitted as the student to pursue the said two years course. The Complainant has not proved with documentary evidence that the issuance of the hall ticket is 'service' as defined under the Consumer Protection Act, 1986. We are inclined to hold that issuing the hall ticket is merely a facility in connection with the examination. The student is duty bound to collect the hall ticket in his own interest and the documents on record do not prove that the Complainant has paid any separate fees or charges by way of consideration towards or in the name of the said facility i.e. the hall ticket. Hence it is clear that since the said facility is provided to the student without any consideration or free of charge by the Appellants and/or the concerned University, the same cannot be treated as 'service' as defined under Sec 2(1)(o) of the Consumer Protection Act, 1986. It therefore follows that the Complainant in the present case has failed to prove that he is the 'consumer' and the Opposite Parties are his 'service providers' as defined under Sec 2(1)(d)(ii) of the Act. It is therefore abundantly clear that since the Complainant is not the 'consumer' of the Opposite Parties in 13 the present case, the present consumer dispute falls outside the purview of the Consumer Protection Act, 1986 and on this ground alone the present complaint deserves to be dismissed and the impugned order deserves to be set aside as being passed without jurisdiction.
19. We have no hesitation to rely on the decision of the National Commission cited by the Appellants herein as reported in 2016 (3) CPJ 230 (NC) (Anirudh Tamrakar V/s Global Engineering College, Jabalpur, wherein in para 3 of the reported judgment, while acting on various earlier decisions on the point by the Hon'ble Supreme Court as well as by the Hon'ble National Commission itself in similar cases, it has been held that :
"it is settled law that the student is not a consumer. The Consumer Court has got no jurisdiction to entertain this case."
The Respondent herein on this aspect has not cited any decision before us to take any contrary view.
20. On the issue of non-joinder of necessary parties, we are completely in agreement with the contentions of the Appellants that though they have collected the prescribed fees of Rs. 18,000/- from the Complainant, the courses are conducted by the Periyar University, Salem, Tamil Nadu and the hall tickets are issued by the said University and that the hall tickets once displayed on the website or are collected by the Appellants, necessary arrangements are made by the Appellant so as to enable all concerned students to collect the same on their own behalf. Even if any hall ticket is 14 misplaced by any student, the concerned authority can allow such student to appear for the exam on proof of other documents. Hence the Appellants and the said University are two separate legal entities. It was therefore necessary for the Complainant to implead the said Periyar University as necessary party to the present consumer dispute. Failure to do so clearly amounts to the abuse of the process of law and goes to destroy the foundation of this case. Non impleadment of the said University as a necessary party leaves many doubts and issues remaining undecided. The presence of the University as necessary party would have enabled the Ld. Forum to settle the consumer dispute and decide the various issues in the right perspective. We are inclined to go by the statement of the Appellants that the admission to the course was duly secured by the Opposite Parties and confirmed by the said Periyar University, Salem, Tamil Nadu by issuing a student identity card and admission card to the Complainant as also for supplying various study materials to the Complainant as duly received by him. Hence we record our finding to the effect that the present complaint is devoid of any substance in the absence of the addition of the necessary party i.e. the said University. The impugned Order therefore is devoid of any substance and untenable at law.
21. On overall merits of the case, we are inclined to take the view that except the contention of the Complainant as regards the payment of the registration fees of Rs. 18,000/- and the submission of the examination form, all other allegations made in the complaint cannot take place of proof especially when they remain only uncorroborated oral 15 evidence. There is no documentary evidence to show that Appellant No. 1 gave evasive replies to the Respondent and avoided to hand over the required hall ticket. Except the letter dated 16.6.2012 addressed to the Appellants by the Complainant, the Complainant has not produced any substantial documentary evidence to prove his main allegations in the complaint. It is difficult to believe that the Appellants can be held liable or responsible in any manner if Respondent has lost any academic year for which only he has to blame himself for his casual attitude. The Complainant has not been able to put on record any convincing evidence to hold the Opposite Parties liable for any deficiency in service as defined under the Consumer Protection Act, 1986. It is pertinent to note that the Complainant has not succeeded in proving malafide conduct on the part of the Opposite Parties. It is not the case of the Complainant that the Opposite Parties had any personal animosity or prejudice against the Complainant. No malafide intention is attributed to the conduct of the Appellants. On the contrary the Opposite Parties appeared to have taken all precautionary measures to help the case and the cause of the Complainant in the right earnest so that the Complainant does not suffer any future hardship or injustice.
22. In view of our aforesaid findings we take the view that the impugned Order passed by the lower Forum has to be set aside in as much as the same is passed without jurisdiction and completely ignores the available evidence on record. Hence it has to be held that the impugned Order warrants 16 our interference in order to prevent material irregularity with a view to meet ends of justice.
We therefore pass the following :
ORDER It is hereby ordered that the present Appeal dated 18.7.2016 filed by the Appellants herein is hereby allowed.
Accordingly the impugned Order dated 17.6.2016 passed by the Ld. Consumer District Forum, North Goa, at Porvorim, Goa in Consumer Complaint No. 8/2013 is hereby set aside. Consequently the original Complaint No. 8/2013 is hereby also ordered to be dismissed from the record of lower Forum. There shall be no Order as to costs.
Shri Jagdish Prabhudesai Smt. Vidhya Gurav
Hon'ble Member Hon'ble Member