State Consumer Disputes Redressal Commission
Kurukshetra University vs Divya D/O Sh.D.S.Kundu on 5 April, 2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U
STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
UNION TERRITORY,
CHANDIGARH.
Appeal case No.530/2009
Date of institution: 29.9.2009
Date of
decision :5.4.2010
Kurukshetra
University, Kurukshetra through its Registrar.
Assistant
Registrar (R-II) Kurukshetra University, Kurukshetra.
Dr.
Jaiveer, Asstt. Registrar , Kurukshetra University, Kurukshetra
Appellants
Versus
1.
Divya D/o Sh.D.S.kundu, R/o H.No.1126, Sector-33-C, Chandigarh.
2.
Swami
Devi Dayal Institute of Engg. & Technology, Barwala (Panchkula) through Sh. Roshan Lal Jindal
(Chairman) R/o Shivalik Enclave, Mani Majra, Chandigarh.
3.
Govt.
of Haryana through Chief Secretary, Haryana Secretariat, Sector
1, Chandigarh.
4.
Technical
Education Department., through Secretary, Govt. of Hayana, Secretariat, Sector
1, Chandigarh.
...Respondents
Appeal U/s 15 of Consumer Protection Act,1986 against
order dated 23.5.2008 passed by Consumer Disputes
Redressal Forum- II, U.T.Chandigarh.
Argued by:
Sh.M.B.Jain, advocate for the appellants.
Sh.Ashish Pannu, advocate proxy
for
Sh.D.B.Singh, advocate for respondent No.1
Sh.Gaurav Bhardwaj, advocate for respondent No.2
None for respondent No.3 & 4
BEFORE : Honble
Mr.Justice Pritam Pal, President
Maj.Gen.S.P.Kapoor (Retd.),Member
Mrs. Neena Sandhu,Member
JUDGMENT
5.4.2010 Justice Pritam Pal, President
1. This appeal by opposite parties No.1,2 & 3 is directed against the order dated 23.5.2008 passed by District Consumer Forum-II, U.T. Chandigarh whereby complaint of Ms. Divya- respondent No.1(complainant) bearing No.575/2008 was allowed with costs of Rs.5000/- and appellants (OPs No.1 to
3) were directed to pay to the complainant Rs.20,000/- as compensation for causing her physical harassment, mental agony and pain on account of inordinate and undue delay in declaring/conveying re-evaluation result , issuing the detailed marks card and final degree after re-evaluation.
2. The parties hereinafter shall be referred to as per their ranking before the District Consumer Forum.
3. In nutshell, the facts as set out in the complaint are that the complainant was a regular student of the Swami Devi Dayal institute of Engineering and Technology Barwala- OP-4 and appeared in Bachelor of Technology (Computer Engineering) examination for 8th semester i.e. Final Semester of the above degree course in June, 2006 under Roll No.2211502 and was declared successful with re-appear in Compiler design (Theory Paper) by thin margin. The student being academically brilliant having secured a first class throughout in all semesters, applied for re-evaluation by depositing the requisite fee. After waiting for a long time, complainant ultimately visited the office of the Ops to find out her result. She was informed orally by the office of Ops 1 to 3 about her result of re evaluation that she had passed her paper and her DMC and degree would be sent to her soon. But the DMC and degree were not issued by the Ops even after lapse of two years of her final semester for the course. The complainant repeatedly visited the office of OPs many times for the purpose but nothing materialized despite expressing her urgent need for DMC and degree for seeking admission to MBA course and also needed as a precondition to joining service any where. The complainant then got served legal notice upon OPs and in reply to that notice OPs informed that the result of complainant had been declared as pass provisionally and the same had been sent to OP NO.4 and desired the complainant to supply the attested photocopy of certificates from 1st Semester to 7th semester so that scale marks could be taken. The complainant through her counsel controverted the plea of OP No.2 and requested to supply a copy of any such statutory rules/regulations whereby the student/candidate of any course was under any statutory obligation to meet such demand, so that necessary compliance could be done in that regard but OPs did not supply any copy of rules. Hence, alleging deficiency in service on the part of OPs, complainant filed complaint before the District consumer forum seeking the following directions to Ops ;
i) To declare and release the post revaluation result of the Complainant formally and officially for examination of 8th semester i.e. final semester of Bachelor of technology (Computer Engineering) degree course held in June, 2006 issue DMC and degree instantly without putting Ops on notice.
ii) To tender Rs.90000/- to the complainant as reimbursement of up to date expenses and cost of the complaint.
iii) To tender Rs.400000/- on account of damages / injury, loss of opportunity.
iv) To discontinue instantly the self designed cooersive unfair trade practice of obtaining attested copies of certificates of previous semesters.
v).
To fix accountability / responsibility for misusing the authority position as per personal whims to justify self designed, illegal, coercive unfair /restrictive trade practices for extraneous reasons.
4. On the other hand, the case of OPs 1 to 3 before the District Forum was that the Complainant appeared for the examination of her first semester in December, 2002 but she could not succeed in her first attempt and there was a reappear in her first semester and after that she also appeared in her second semester in June 2003 but again she could not succeed and again reappear was there. After that, there was another reappear in her fourth semester, sixth semester, seventh semester and in her eighth semester. The Complainant applied for the re-evaluation in the eighth semester examination which was held in June, 2006 and she passed her eighth semester due to reevaluation but the result was not declared for want of scale marks of lower exams i.e. 1st to 7th Semester examinations. The Complainant without submitting the attested photocopies of her marks sheets from first semester to seventh semester and without approaching her institute, from where she appeared in her B-Tech. Examination, straight away gave a legal notice to the OP-1 and the said notice was replied to by the OP stating that the result of the Complainant has already been declared as Pass provisionally and the same has been sent to the college under registered cover (No.143). The maintainability of the complaint was also questioned and a prayer was made for dismissal of the complaint.
5. OP-4 in its reply before the District Forum also took some preliminary objections regarding the maintainability of the complaint. It was further pleaded that the Complainant never submitted the photocopies of the DMCs of 1st to 7th Semester with the University to enable them to take into account the scale marks. Rather she sent a legal notice for the issuance of the degree. The degree was to be issued by the university and not the answering OP, so, a prayer was made for dismissal of the complaint.
6. OPs 5 & 6, however, pleaded before the District Forum that a copy of the legal notice was forwarded to the Registrar, Kurukshetra University Kuruksehtra and were requested to personally look in to the matter and to do the needful at the earliest as action in the matter of declaration of reevaluation result of one paper, issuing of DMS & Degree was to be taken by the OP No.1 i.e. Kurukshetra University Kuruksehtra.
7. The District Consumer Forum after going through the evidence and hearing the learned counsel for parties allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved, Opposite parties No.1 to 3 have come up in this appeal.
8. We have heard the learned counsel for appellants/OPs No.1 to 3 as well as counsel on behalf of complainant and OP No.4 and carefully gone through the file. The only legal point raised by Sh.M.B.Jain,advocate on behalf of appellants is that in view of the latest law laid down by the Honble Supreme court in Bihar School Examination Board Vs Suresh Prasad Sinha 2009(3) CPC 217 (SC) decided on 4.9.2009 the complaint filed by Ms.Divya complainant is not maintainable, inasmuch-as she being an examinee is not a consumer under the provisions of Consumer Protectoin Act and at the same time board or university conducting examinations are not service providers for any consideration. As this point of arguments raised on behalf of the appellants goes unrebutted, before giving our final opinion, we deem it fit to reproduce the observations of the Honble Supreme court contained in para-11 of the aforesaid judgment as under ;
The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for consideration is presumed to be a commercial activity in its broadest sense(including professional activity or quasi-commercial activity). But the Act does not intend to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer-scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the board into a service-provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a service provider and a student who takes an examination is not a consumer and consequently, complaint under the Act will not be maintainable against the Board.
9. In view of the above discussion and without going into any further details, suffice it to observe that complainant infact is not a consumer under the Consumer Protection Act. Accordingly this appeal is accepted and the impugned order of the District Forum dated 20.8.2009 is set aside and complaint being not maintainable under the Consumer Protection Act, is dismissed, without prejudice to the right of complainant to seek remedy, if any, before the appropriate forum/court as admissible under law. Parties are left to bear their own costs.
Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.
Sd/-
Announced ( Justice Pritam Pal)(Retd.) 5th April,2010 President Sd/-
(Maj Gen.S.P.Kapoor )(Retd.) Member Sd/-
(Mrs.Neena Sandhu) Member *Js