State Consumer Disputes Redressal Commission
The Chairman, Ait Polytechnic. vs Sh. Ankesh Kumar. & Anr. on 27 September, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 240/2017
Date of Presentation: 12.12.2016
Order Reserved on : 23.04.2019
Date of Order : 27.09.2019
......
The Chairman AIT Polytechnic Ward No.9 Nalagarh District
Solan (H.P).
...... Appellant/Opposite Party No.1
Versus
1. Ankesh Kumar son of Shri Devi Ram R/o Village Kasol
Tehsil Sadar District Bilaspur (H.P).
......Respondent No.1/Complainant
2. Director Technical Education H.P. Sundernagar District
Mandi (H.P).
......Respondent No.2/opposite party No.2
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : None.
For RespondentNo.1 : Ms. Manisha vice Mr. R.K. Bansal
Advocate.
For Respondent No.2 : Mr. Bhairav Negi Ld. ADA.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 27.07.2016 passed by Learned District Consumer Forum/Commission in consumer complaint No.195/2011 titled Ankesh Kumar Versus Chairman AIT Polytechnic & Anr. 1 Whether reporters of the local papers may be allowed to see the order? Yes.
The Chairman AIT Polytechnic Versus Ankesh Kumar & Anr. F.A. No.240/2017 Brief facts of consumer complaint:
2. Shri Ankesh filed consumer complaint under Consumer Protection Act pleaded therein that complainant took admission in AIT Nalagarh in computer branch and immediately complainant vacated the seat when complainant got admission at Sunder Nagar. It is pleaded that complainant paid admission fee to the tune of Rs.21920/-
(Twenty one thousand nine hundred twenty) to opposite party No.1. It is further pleaded that after vacation of seat complainant requested opposite party No.1 to refund admission fee but opposite party did not refund admission fee. It is pleaded that opposite party No.1 filled up the seat vacated by complainant. It is further pleaded that opposite party No.1 committed deficiency in service. Complainant sought relief of refund of admission fee to the tune of Rs.21920/-(Twenty one thousand nine hundred twenty). In addition complainant sought relief of compensation to the tune of Rs.20000/-(Twenty thousand) on account of mental pain. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that complainant took admission and paid admission fee to the tune of Rs.21920/-(Twenty one thousand nine hundred twenty). It is pleaded that as per prospectus complainant is not entitled for refund of 2 The Chairman AIT Polytechnic Versus Ankesh Kumar & Anr. F.A. No.240/2017 admission fee. It is further pleaded that complainant did not request for refund of admission fee till last round of counselling. It is pleaded that complainant has no cause of action and Learned District Consumer Forum/Commission has no jurisdiction to entertain and dispose of consumer complaint. Prayer for dismissal of consumer complaint sought.
4. Per contra separate version filed on behalf of opposite party No.2 pleaded therein that complainant has no cause of action against opposite party No.2. It is pleaded that opposite party No.2 directed opposite party No.1 to do needful in accordance with rules and instructions mentioned in prospectus of relevant year. It is further pleaded that Learned District Consumer Forum/Commission has no jurisdiction to entertain and dispose of consumer complaint. Prayer for dismissal of consumer complaint sought.
5. Learned District Consumer Forum/Commission ordered opposite party No.1 to refund admission fee to the tune of Rs.21920/-(Twenty one thousand nine hundred twenty) to complainant within thirty days from receipt of copy of order failing which opposite party No.1 would pay interest @ 9% per annum from the date of filing of complaint till actual payment. In addition Learned District Consumer Forum/Commission ordered opposite party No.1 to pay 3 The Chairman AIT Polytechnic Versus Ankesh Kumar & Anr. F.A. No.240/2017 punitive compensation to complainant to the tune of Rs.4000/-(Four thousand). In addition Learned District Consumer Forum/Commission ordered opposite party No.1 to pay costs of complaint to the tune of Rs.3000/-(Three thousand). Feeling aggrieved against order passed by Learned District Consumer Forum/Commission opposite party No.1 filed present appeal before State Commission.
6. We have heard learned Advocate appearing on behalf of co-respondent No.1 and learned ADA appearing on behalf of co-respondent No.2. None appeared on behalf of appellant at the time of arguments. State Commission decided to dispose of present appeal on merits. We have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit Annexure-C6 in evidence. There is recital in affidavit that deponent took admission in AIT Nalagarh in computer branch of opposite party No.1. There is recital in affidavit that thereafter deponent got admission at Sunder Nagar (Distt) Mandi (H.P) 4 The Chairman AIT Polytechnic Versus Ankesh Kumar & Anr. F.A. No.240/2017
and deponent vacated seat soon prior to completion of final counselling at Nalagarh District Solan (H.P) after admission at Sunder Nagar. There is further recital in affidavit that deponent deposited admission fee to the tune of Rs.21920/- (Twenty one thousand nine hundred twenty) to opposite party No.1. There is recital in affidavit that deponent requested opposite party No.1 to refund his admission fee of seat vacated by deponent at the time of last round of counselling. There is recital in affidavit that opposite party No.1 had filled up seat which was vacated by deponent. There is recital in affidavit that opposite party No.1 did not refund admission fee of deponent. State Commission has carefully perused all annexures filed by complainant.
9. Opposite party No.1 filed affidavit Annexure-RI in evidence. There is recital in affidavit that Paras No.1 to 7 of version are correct.
10. Opposite party No.2 filed affidavit of Shri Rajeshwar Goel Director Technical Education Vocational & Industrial Training H.P. Sunder Nagar annexure-R2/A in evidence. There is recital in affidavit that complainant earlier took admission in AIT Nalagarh in Diploma in Computer Engineering and vacated seat and changed the institution. There is recital in affidavit that deponent directed opposite party No.1 to act in accordance with rules and instructions 5 The Chairman AIT Polytechnic Versus Ankesh Kumar & Anr. F.A. No.240/2017 mentioned in prospectus. There is recital in affidavit that Learned District Consumer Forum/Commission has no jurisdiction to entertain and dispose of consumer complaint.
11. Plea of appellant in appeal that Learned District Consumer Forum/Commission has illegally ordered appellant to refund admission fee to the tune of Rs.21920/-(Twenty one thousand nine hundred twenty) within thirty days is decided accordingly. It is proved on record that complainant deposited admission fee to the tune of Rs.21920/-(Twenty one thousand nine hundred twenty) on dated 07.07.2010 and complainant applied for refund of admission fee on 05.08.2010 before last round of counselling. There is positive recital in consumer complaint and affidavit filed by complainant that seat vacated by complainant was filled up by opposite party No.1. State Commission is of the opinion that in view of fact that complainant has vacated seat prior to last round of counselling he is legally entitled for refund of Rs.21920/-(Twenty one thousand nine hundred twenty) from opposite party No.1. See 2019(II) CPJ 140 SCDRC Union Territory Chandigarh titled Fiit Jee Ltd. Vesus Vikram Seth & Ors. See 2010(IV) CPJ 396 NC titled Brilliant Tutorials Pvt. Ltd. Versus Ashwani Verma. See 2003(6) Supreme Court Cases 697 titled Islamic Academy of Education & Anr. Versus State of Karnataka & Ors. See 2009(III) CPJ 33 NC titled 6 The Chairman AIT Polytechnic Versus Ankesh Kumar & Anr. F.A. No.240/2017 Sehgal School of Competition Versus Dalbir Singh. See 2012(I) CPJ 194 NC titled Fiit Jee Ltd. Versus Dr. Minathi Rath.
12. Plea of appellant in appeal that Learned District Consumer Forum/Commission has granted excessive punitive compensation to complainant to the tune of Rs.4000/-(Four thousand) and on this ground appeal filed by appellant be allowed is decided accordingly. State Commission is of the opinion that Learned District Consumer Forum/Commission has granted reasonable punitive compensation of Rs.4000/-(Four thousand) and it is not expedient in the ends of justice and on the principles of natural justice to interfere in punitive compensation order passed by Learned District Consumer Forum/Commission.
13. Plea of appellant in appeal that Learned District Consumer Forum/Commission has granted excessive litigation costs to complainant to the tune of Rs.3000/-(Three thousand) and on this ground appeal filed by appellant be allowed is decided accordingly. State Commission is of the opinion that complainant has to engage learned Advocate and has also paid litigation costs & other expenses and Learned District Consumer Forum/Commission has granted reasonable litigation costs to complainant. 7
The Chairman AIT Polytechnic Versus Ankesh Kumar & Anr. F.A. No.240/2017
14. Plea of appellant in appeal that Learned District Consumer Forum/Commission has no jurisdiction to decide consumer complaint in view of ruling reported in 2010(11) SCC 159 titled Maharishi Dayanand University Versus Surjeet Kaur is decided accordingly. State Commission is of the opinion that Consumer Protection Act 1986 stood repealed and Consumer Protection Act 2019 came into operation vide notification No.54 dated 09.08.2019 issued by Central Govt. of India in Central Gazette. As per Article 366(19) of Constitution of India public notification means notification issued in official gazette. Consumer Protection Act 2019 already notified in official gazette of Central Govt. of India on dated 09.08.2019. As per section 1 sub clause 4 of Consumer Protection Act 2019 save as otherwise expressly provided by the Central Government by notification Consumer Protection Act 2018 shall apply to all goods and services.
15. State Commission is of the opinion that Central Govt. has not excluded service of opposite party No.1 by way of notification from domain of Consumer Protection Act 2019. State Commission is of the opinion that section 1(4) of Consumer Protection Act 2019 was not involved in matter titled Maharishi Dayanand University Versus Surjeet Kaur before Hon'ble Apex Court of India. It is held that as per section 1(4) of Consumer Protection Act 2019 all goods and 8 The Chairman AIT Polytechnic Versus Ankesh Kumar & Anr. F.A. No.240/2017 services rendered falls within jurisdiction of Consumer Protection Act 2019 unless expressly barred by Central Govt. by way of notification in official gazette. Even ruling announced by Hon'ble Apex Court of India reported in 2010(11) SCC 159 titled Maharishi Dayanand University Versus Surjeet Kaur is operative upon statutory university only and opposite party No.1 is not statutory University but is only coaching centre.
16. Plea of appellant that District Consumer Commission Una (H.P) has no territorial jurisdiction to dispose of consumer complaint because no cause of action accrued within territorial jurisdiction of District Consumer Commission is decided accordingly. Residential address of complainant has been shown as Village Kasol District Una (H.P). As per section 34(2)(d) of Consumer Protection Act 2019 jurisdiction of District Consumer Commission lies wherein complainant resides or personally works for gain. Consumer Protection Act 2019 came into operation with effect from 09.08.2019 vide notification No.54 issued by Central Govt. of India in official gazette of India. It is well settled law that appeal is continuation of consumer dispute. 9
The Chairman AIT Polytechnic Versus Ankesh Kumar & Anr. F.A. No.240/2017
17. Submission of learned Advocate appearing on behalf of complainant that order of Learned District Consumer Forum/Commission is in accordance with laws and in accordance with proved fact and does not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that order of Learned District Consumer Forum/Commission was passed by Learned District Consumer Forum/Commission in the interest of student who is wealth of nation and it is not expedient in the ends of justice and on the principles of natural justice to pass adverse order against interest of student who is wealth of Nation. Point No.1 is decided accordingly.
Point No.2: Final Order
18. In view of findings upon point No.1 above appeal is dismissed. Order of Learned District Consumer Forum/ Commission is affirmed. Admission fee receipt annexure-C4 dated 07.07.2010 issued by appellant vide S.No.773 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Consumer Forum/Commission alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted 10 The Chairman AIT Polytechnic Versus Ankesh Kumar & Anr. F.A. No.240/2017 to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 27.09.2019 K.D 11