National Consumer Disputes Redressal
Ajay Kumar vs L.N. Mithila University, Darbhanga & ... on 29 March, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4072 OF 2014 (Against the Order dated 07/08/2014 in Appeal No. 34/2012 of the State Commission Bihar) 1. AJAY KUMAR S/O SRI KASHI PRASAD,ADV, 5/235 MANGAL BAZAR, MUNGER BIHAR ...........Petitioner(s) Versus 1. L.N. MITHILA UNIVERSITY, DARBHANGA & ANR. THROUGH ITS VICE CHANCELLOR, L.N MITHILA UNIVERSITY, DARBHANGA BIHAR 2. SHRI SUNIL CHANDRA MISHRA, DIRECTOR, DIRECTORATE OF DISTANCE EDUCATION, L.N MITHILA UNIVERSITY, DARBHANGA BIHAR ...........Respondent(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER HON'BLE MR. PREM NARAIN,MEMBER For the Petitioner : Mr. Sunil Kumar Verma, Advocate For the Respondent : Mr. Vijay Kumar Pandey, Advocate Dated : 29 Mar 2017 ORDER
1. This revision petition has been filed by the petitioner, Ajay Kumar, against the order dated 07.08.2014 of the State Consumer Disputes Redressal Commission, Bihar, (in short 'the State Commission') passed in First Appeal No.34 of 2012.
2. Brief facts of the case are that petitioner/complainant applied for admission in MBA course through Distance Education, which was advertised by the respondents in the month of August 1998. The petitioner kept on pursuing with the opposite parties to know the exact date for commencement of the course, but no clear answer was given by the respondents. Petitioner finallycame to know on 11.05.2000 through news item that the respondents had cancelled the said course. Then, he pursued for refund of his fees and for compensation by the respondents for wasting petitioner's time and for compensating him for his unemployment during this period. As per the petitioner's case, he did not receive any information or any response from the respondents. He then approached the office of the Governor and then he received a letter in 2006 from the respondents that the petitioner may get his refund of fees after submitting the original receipt. The petitioner did not submit the original receipt as this was the only proof of having deposited the fees and having applied for admission. Consequently, petitioner/complainant filed a consumer complaint before the District Consumer Forum, Munger, (in short 'the District Forum').It was claimed in the complaint that the petitioner has suffered a monetary loss to the tune of Rs.4,50,000/- by keeping the petitioner in suspense and halting the teaching, thereby ruining his career, as he could not pursue the MBA course elsewhere during this period. The complaint was resisted on the ground that the petitioner never approached the respondents for refund of his fees. The said course was cancelled because the respondents did not get the required permission from the State Government to start the said course. Claiming no deficiency on the part of the opposite parties, it was requested to dismiss the complaint. The District Forum after considering averments of both the parties however, decided the complaint vide its order dated 23.12.2011 as under:-
"16. This Forum directs the opposite party L.N.Mithila University, Darbhanga to pay to the complainant Rs.4,00,000/- (four lakhs rupees) as compensation for loss of educational career, Rs.50,000/- (rupees fifty thousand) for mental harassment, the fees realized and Rs.10,000/- (rupees then thousand) for legal expenses within two months from the date of the order otherwise the complainant shall be entitled to penalty of simple interest at the rate of 12% per annum.
17. This complaint is allowed against the opposite parties."
3. Aggrieved by the order of the District Forum, the opposite parties preferred First Appeal bearing No.34/2012 before the State Commission, which was allowed vide its order dated 07-08-2014 as under:-
"7.Considering the submissions of the rival parties and the materials brought on record as also the order under appeal, it appears that admittedly, the complainant had took admission in MBA course against advertisement issued by the University. However, on account of non-receiving the approval from the State Govt., the said MBA Programme of distant education had to be withdrawn, as such, the University did not get approval from the State Govt., the University cannot be held responsible. In such circumstances, the complainant was certainly entitled to get back the deposited admission fee. It further appears that the complainant did not deposit the original receipt, with the result, the University could not refund back the money. The District Forum has awarded a sum of Rs.Four lacs on account of career of the complainant jeopardized, however, we do not find any material on the record to substantiate the claim of Rs.Four lacs as also for the claim of Rs.Fifty thousand on account of mental agony.
8. In such circumstance, we are unable to affirm the order under appeal. It is accordingly set-aside. However, it will be open for the respondent to produce the original deposit receipt to get back the admission fee. Notwithstanding the above, we do not find cause of action accrued within the territorial jurisdiction of District Forum, Munger. The territorial jurisdiction is decided taking into the consideration of the place of the appellant-O.P. for the cause of action nor the place of the resident of the respondent-complainant at Munger.
9. In the result, the appeal stands allowed with the above observation."
4. Hence, the revision petition by the petitioner/complainant.
5. Heard the learned counsel for both the parties and perused the record.
6. The learned counsel for the petitioner stated that the petitioner had applied, after seeing the advertisement of MBA course, with the respondent University in August, 1998, but the study of the said course did not start. Even after making severalinquiries from the respondents, no satisfactory reply was ever given to the petitioner. Ultimately the petitioner came to know through news items on 11.05.2000 that the respondents had cancelled the said course. A fee of Rs.1750/- was deposited in the year 1998 and the same has not yet been returned to petitioner/complainant. When the petitioner made a complaint to the Governor, the respondents sent a letter to the petitioner/complainant asking for the submission of original receipt so that the fee may be refunded. The learned counsel emphasised that it was not only the question of fee but alsothe question of wasting two years of a student, who could not get himself employed for such period as well as he could not obtain the degree of MBA in some other institution. As the original receipt was the only proof of payment of fee as well as for admission in the said course, petitioner thought it was not prudent to deposit the original receipt.
7. The learned counsel for the petitioner further argued that the State Commission has based its judgment mainly on two counts. The first relating to jurisdiction of the District Forum, Munger and the second relating to quantum of compensation awarded by the District Forum. In respect of the jurisdiction of the District Forum, the learned counsel stated that the prospectus issued by the opposite parties clearly mentions that the material and any other information would be sent to the address of the student. According to this provision the cause of action starts at Munger itself because address of the complainant was of Munger as per Section 11(2)(c) of the Consumer Protection Act 1986 as the cause of action partly arose at Munger. Thus, the complainant was wholly justified in filing the complaint before the District Forum, Munger which was within its jurisdiction to decide the complaint.
8. With respect to the quantum of the compensation, the leaned counsel for the petitioner submitted that the petitioner had to waste roughly two years when he just waitedfor course to start and could not take up any job in this period. Moreover, petitioner did not also try to get admission in any other institute as he was hopeful that the course would start. Therefore, the compensation awarded by the District Forum was in order and the State Commission should not have questioned the same.
9. The learned counsel for the respondents argued that the University is at Darbhanga and it has no connection with Munger. The University has no branch office at Munger. Hence, the District Forum, Munger has no jurisdiction to pass any order against the opposite parties. Argument given by the petitioner that because the material was to be sent to the address of the student, who was residing at Munger, therefore, cause of action in part has arisen at Munger and therefore District Forum, Munger had the jurisdiction to entertain the complaint, is not tenable because whatever cause of action arose that would have arisen only at the headquarters of the University i.e. Darbhanga. Apart from the issue of jurisdiction, the issue of limitation was also raisedby the opposite parties in the written statement and the appeal, but both the fora below have not given any decisive finding on the issue of limitation. The learned counsel argued that the complainant came to know of the cancellation of course in the year 2000, but the complaint has been filed in the year 2007. Thus the complaint is highly time barred and should have been rejected only on this count. It was further argued by learned counsel for the respondents that all other students have taken their refund of the fee after depositing the original receipt with the University. However, petitioner/complainant did not deposit the original receipt with the University and therefore, University was unable to refund the fee.
10. The learned counsel also stated that the Hon'ble Supreme Court in its many judgments has held that University is not a service provider and student is not a consumer. Moreover, education is not covered under Consumer Protection Act, 1986. To support his arguments, learned counsel cited the following judgments:-
"(i) University of Rajasthan and Ors. Vs. Nitin Jain and Ors. RP No.2671,3126 of 2011 and I.A. Nos.4308,5189/2014, decided on 18.05.2015 (NC).
(ii) MaharshiDayanand University Vs. Surjeet Kaur, Civil Appeal No.6807 of 2008, decided on 19.07.2010 (SC).
(iii) KandimallaRaghavaiah& Co. Vs. National Insurance Co. &Anr., Civil appeal No.4962 of 2002, decided on 10th July, 2009 (SC).
(iv) Bihar School Examination Board Vs. Suresh Prasad Sinha, (2009) 8 Supreme Court Cases 483."
11. On the basis of the above judgments, learned counsel argued that the complainant was not a consumer and the complaint was not maintainable in the consumer forum. Thus, it was requested to dismiss the revision petition filed by the complainant.
12. We have carefully considered the arguments advanced by both the parties and have examined the record. First of all, it seems that the course was cancelled due to the fact that State Government did not give the permission to start this course. It simply means that the course was unauthorisedly initiated and advertised by the opposite parties. Therefore, the opposite parties would not be deemed to be an educational institution so far as this particular course was concerned and therefore, all the judgments cited by the learned counsel for the respondents/opposite parties will not be applicable, so far as they relate to the University not being a service provider as well as student not being a 'consumer'. This was only administrative decision of the opposite parties to start this course for the purpose best known to them for which no rules were followed. Thus, the complainant/petitioner would be considered 'consumer' within the meaning of the Consumer Protection Act, 1986.
13. So far as the question of limitation is concerned both the fora below have not given any specific finding on the issue of limitation, rather, they have decided the complaint and appeal on merits. Impliedly both the fora below have not found the complaint or appeal as time barred. Otherwise also, the cause of action continued as the fee was not returned and actual cause of action culminated when the complainant received a letter in the year 2006 from the respondent to send the original receipt. Hence we would not like to interfere with the concurrent finding of both the fora below that the complaint was not barred by limitation.
14. So far as the jurisdiction of District Forum, Munger is concerned, it is true that the University does not have any branch office at Munger, but the University would have opened some centre in Munger District for purposes of imparting the actual contact programme as is clear from the following mention in the prospectus:-
"15. The teaching will be imparted through correspondence and contract programme wherever necessary.
The Centre may arrange for Contact Programme as and when necessary."
15. Apart from the above possible interpretation, we agree with the assertion of the learned counsel for the complainant/petitioner that cause of action arose partly at Munger when the complainant did not receive any information or course material at his address of Munger. As per Section 11 (2)(c) of the Consumer Protection Act, 1986, 'complaint can be filed in a District Forum within the local limits of whose jurisdiction the cause of action, wholly or in part arises. As the petitioner did not receive any information or course material from the respondents at his Munger address, the cause of action can be considered to have started in part at Munger. Thus, District Forum was right in exercising its jurisdiction to decide the present complaint.
16. We agree that the compensation of Rs.4,00,000/- awarded by the District Forum vide its order dated 23.12.2011 is quite excessive and the District Forum has not given any reasoning to allow this compensation. In fact, the complainant has asked a compensation of Rs.4,50,000/- and the District Forum has allowed Rs.400,000/- compensation for career opportunity loss and Rs.50,000/- for mental agony and harassment. Thus, District Forum, without any reasoning awarded a huge compensation of Rs.4,50,000/-. It was a correspondence course and therefore, loss of employment is not expected. There is no averments that the complainant was employed somewhere and left the job for pursuing his MBA through distance education. However, it is also true that the complainant had suffered due to unauthorized advertisement by the respondents and later on the cancellation of the said course. In the circumstances, we are of the view that a compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) would be reasonable and sufficient.
17. Based on the above discussion, the revision petition is allowed and the order dated 07.08.2014 of the State Commission is set aside and order dated 2312.2011 of the District Forum is modified to the extent that the respondents/opposite parties shall be liable only to pay Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation to the complainant instead of Rs.4,50,000/- awarded by the District Forum. It is also directed that apart from paying the compensation of Rs.25,000/-(Rupees Twenty Five Thousand only) to the complainant, respondent/opposite parties shall also refund fee of Rs.1750/- along with interest at the rate of 8% p.a. from the date of deposit of fees till 09.03.2006 when the complainant was asked to submit the original receipt. The respondents/opposite parties are directed to comply with this order within a period of 45 days. No order as to costs.
...................... REKHA GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER