State Consumer Disputes Redressal Commission
Master Parteek Kumar Goyal vs The Rayat Educational & Research Trust on 14 August, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.577 of 2010.
Date of Institution: 09.04.2010.
Date of Decision: 14.08.2013.
Master Parteek Kumar Goyal S/o Sh. Parveen Kumar, R/o SCF 40,
opposite Rose Garden, Goniana Road, Bathinda.
.....Appellant.
Versus
1. The Rayat Educational & Research Trust, through its
Chairman/Secretary, Railmajra, District Nawanshahr (near
Ropar).
2. The Rayat Institute of Engineering & Information Technology,
VPO Railmajra, District Nawanshar, through its Principal/Director
Sh. R.P. Singh Sukerchakkia.
3. The Punjab Technical University, Jalandhar through its Vice
Chancellor.
4. State of Punjab, through its Secretary, Ministry of Education,
Punjab, Chandigarh.
(Opposite parties no.3 & 4 deleted vide order dated 17.12.2009).
...Respondents.
First Appeal against the order dated
08.02.2010 of the District Consumer
Disputes Redressal Forum, Bathinda.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. Sukhwinder S. Sudan, Advocate, counsel for the appellant.
None for the respondents.
---------------------------------------- First Appeal No.577 of 2010 2 INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Master Parteek Kumar Goyal, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 08.02.2010 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents/opposite parties (hereinafter called as "the respondents"), on the grounds that he took admission in the college of respondent no.1, run under the name and style of respondent no.2, approved by AICTE, New Delhi, Ministry of HRD, Govt. of India and affiliated to respondent no.3 under the recommendation of Punjab Technical University, Jalandhar, for the session of CET-2008 for appearing in counseling on 19.08.2008, held by respondent no.3 in Jalandhar. On selection of the appellant in the course of Electrical Engineering, the appellant deposited Rs.41,795/- vide receipt dated 26.08.2008 issued by respondents no.1 & 2.
3. The appellant also applied simultaneously with B.K. Birla Institute of Engineering and Technology, Pilani (Rajasthan) and got admission in the said college and requested respondents no.1 & 2 to refund the amount of Rs.41,795/- vide request dated 05.09.2008, after just nine days of depositing the fee and completed all the formalities as required by respondents no.1 & 2. No facility was availed by the appellant, but the respondents harassed the appellant in getting the No Due Certificate from the concerned department for refund of Rs.41,795/-, but till date no payment has been made. First Appeal No.577 of 2010 3
4. As per the rules framed under the prospectus i.e. the Information Brochure-cum-Application Form, for the admission of first year of Bachelor of Technology, the respondents are bound to refund the entire fee got deposited, after deducting Rs.1,000/- only and the respondents are liable to refund Rs.41,795/- along with interest @ 18% p.a. and to pay compensation of Rs.50,000/-.
5. Notice was sent on 11.09.2008 to the respondents and the same was replied, denying their liability to pay the amount of Rs.41,795/- on the ground that the seat was not filled by any other student in place of the appellant and the appellant is not entitled to any refund of the admission fee etc.
6. It was prayed that the respondents may be directed to make payment of Rs.41,795/- along with interest and to pay Rs.50,000/- as compensation and Rs.11,000/- as litigation expenses.
7. Instead of filing the written version, respondents no.1 & 2 moved an application for dismissal of the complaint, on the grounds that the earlier complaint filed by the appellant against the same parties on the same cause of action, was dismissed in default for non-appearance at the stage of final arguments. The appellant moved an application for restoration which was withdrawn without getting permission to file a fresh complaint and the District Forum has no jurisdiction to entertain the second complaint and the complaint is liable to be dismissed.
8. Reply to the application was filed by the appellant, stating that the second complaint is maintainable and the complaint is legally entertainable and the application deserves to be dismissed.
9. After hearing the learned counsel for the parties, the learned District Forum accepted the application and dismissed the complaint, being not maintainable.
First Appeal No.577 of 2010 4
10. Aggrieved by the impugned order dated 08.02.2010, the appellant has come up in appeal.
11. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant.
12. Neither the counsel for the respondents nor anybody else on their behalf appeared at the time of arguments.
13. It was contended on behalf of the appellant that the earlier complaint was dismissed in default on 15.05.2009 on the ground of non-appearance of the counsel and the application for restoration was filed, but the same was withdrawn on 26.05.2009. Fresh complaint was filed on16.11.2009. The order passed by the District Forum is against the law and facts. Provisions of CPC are not applicable and there is no bar in filing the second complaint on the same cause of action. The earlier complaint was not decided on merits and that order does not apply as resjudicata. The authorities relied upon by the District Forum are not applicable. The complaint can be lodged within the local limits of the District Forum, where the part of cause of action arises. In the present case, the appellant obtained the admission prospectus on making payment from Giani Zail Singh Engineering College, Bathinda, which is authorized agent of the respondent college and part of cause of action arose at Bathinda and the District Forum has the jurisdiction. The order passed by the District Forum is not sustainable and is liable to be set aside. Learned counsel for the appellant has relied upon "New India Assurance Co. Ltd. Vs R. Srinivasan", (2000) 3 Supreme Court Case-242.
First Appeal No.577 of 2010 5
14. We have considered the submissions advanced on behalf of the appellant and have minutely scrutinized the entire record as well as the case law.
15. Admittedly, the appellant earlier filed the complaint which was dismissed in default on15.05.2009 and thereafter, the application for restoration of the same was filed, but the same was got dismissed as withdrawn. The District Forum has dismissed the complaint on the sole ground that the second complaint is not maintainable. This observation of the District Forum is not tenable in the eyes of law, because the provisions of Order 9 Rule 8 of CPC are not applicable to the Consumer Foras and way back the Hon'ble Supreme Court in case "New India Assurance Co. Ltd. Vs R. Srinivasan" (supra), held that the second complaint on the same facts and cause of action is not barred, when the complaint was dismissed in default.
16. In another case "Ranvir Singh Vs State of Haryana & Anr.", 2009 AIR Supreme Court Weekly-6169, the Hon'ble Supreme Court held that the second complaint on the same cause of action is maintainable if the earlier complaint has not been decided on merits.
17. The above authorities of the Hon'ble Supreme Court squarely cover the matter under consideration. In the present case also, the complaint was dismissed in default on 15.05.2009 and it was not decided on merits and the second complaint was also filed on 16.11.2009.
18. In view of above proposition of law, the order passed by the District Forum is not tenable. The District Forum ought to have decided the complaint on merits.
19. Accordingly, the appeal is accepted and the impugned order under appeal dated 08.02.2010 passed by the District Forum is First Appeal No.577 of 2010 6 set aside. The case is remanded back to the District Forum, with a direction that after affording due opportunity to both the parties, the District Forum shall decide the complaint on merits.
20. Record of the District Forum along with copy of the order be sent to the District Forum, Bathinda, immediately.
21. The District Forum shall procure the presence of the parties before proceeding with the complaint.
22. The arguments in this appeal were heard on 05.08.2013 and the order was reserved. Now the order be communicated to the parties.
23. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member August 14, 2013.
(Gurmeet S)