State Consumer Disputes Redressal Commission
Sri Dev Suman Uttarakhadn University vs Mahendra Prasad on 7 March, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 35 / 2018
Sri Dev Suman Uttarakhand University
Badshahithaul, Tehri Garhwal (Uttarakhand)
through its Registrar Sh. Dinesh Chandra
...... Appellant / Opposite Party No. 1
Versus
Sh. Mahendra Prasad Dwivedi S/o Sh. Govind Prasad Dwivedi
R/o Village Manpur, P.O. Kotdwar
District Pauri Garhwal
...... Respondent / Complainant
Sh. Vaibhav Jain, Learned Counsel for the Appellant
Respondent - In person
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 07/03/2022
ORDER
(Per: Justice D.S. Tripathi, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred against the impugned judgment and order dated 27.02.2018 passed by the District Consumer Disputes Redressal Commission, Pauri Garhwal (in short "The District Commission") in consumer complaint No. 19 of 2017; Sh. Mahendra Prasad Dwivedi Vs. Registrar, Sri Dev Suman University and others, by which the consumer complaint was allowed and the appellant and the Answer Script Examiner / Evaluator - opposite party No. 2 to the consumer complaint (who has not been arrayed as party to the instant appeal), were directed to pay sum of Rs. 10,000/- to the respondent - complainant towards economic and mental agony, within a period of one month, failing which the respondent was also held entitled to interest @7% p.a. on the said amount from the date of institution of 2 the consumer complaint. The appellant and the said opposite party were further held liable to pay litigation expenses of Rs. 5,000/- to the respondent - complainant.
2. Facts giving rise to this appeal, in brief, are that according to the consumer complaint, in the year 2015, the complainant applied with the appellant - University for M.A. (English Literature) as a private student and deposited sum of Rs. 1,650/- towards application fee. The complainant was allotted roll No. 21096507 and enrollment No. 14096507. The complainant appeared in the examination and in the mark sheet bearing Serial No. 422406 issued by the University, he was shown as having secured 51 marks in Paper-I; 57 marks in Paper-II; 37 marks in Paper-III and 36 marks in Paper-IV out of 100 marks. Upon receipt of the mark sheet, the complainant had doubt about the marks allotted to him in Paper-IV, whereupon he applied for providing his answer script of Paper-IV under the provisions of The Right to Information Act, 2005. After perusing the answer script supplied by the University, it transpired that certain answers in Section-A were wrongly shown as incorrect, whereas the same were correct. No mark was allotted against answer given to question No. 5 of Section-B, although it was mentioned that the answer given is correct. Similarly, no marks were allotted against certain answers given to questions appearing in Section-A3. Likewise was the situation with certain other answers. The appellant and other opposite parties have acted carelessly and resorted to deficiency in service, causing mental and economic agony to the complainant. The complainant requested the Registrar of the University for re-evaluation of his answer script and sought information under the provisions of The Right to Information Act, 2005. The Public Information Officer as well as the Appellate Authority held that the information sought is confidential in nature and the same can not be 3 made public and incorrect information was supplied to the complainant. The complainant approached the Uttarakhand Information Commission, Dehradun by preferring appeal, which was decided per order dated 19.06.2017. After taking action on the re-evaluation application submitted by the complainant, the corrected mark sheet was issued to the complainant, according to which, the marks secured by him were shown as "53", while in the previous mark sheet, he was shown as having secured "36" marks. The complainant is still not satisfied with the re-evaluation of his answer script. Hence, consumer complaint was instituted and relief was sought for re-evaluation of his answer-sheet, besides claiming compensation for physical; mental and economic agony.
3. Written statement was filed on behalf of the appellant and it was averred that if any question is left in the evaluation of the answer script and the said fact is brought to notice by the student, the answer script is handed over for re-evaluation and if there is any correction in the marks secured by the examinee / student, the corrected mark sheet is issued to him / her. It is a prescribed procedure and there is no ill-will of the University in this regard. If the direction is issued by the Consumer Fora for re-evaluating the answer script of the complainant, the same is not possible on account of the reason that the answer scripts of the year 2015 are not available, as the same have been auctioned. The consumer complaint is not maintainable, hence the same is liable to be dismissed with special costs.
4. After giving opportunity of hearing to both the parties, the consumer complaint has been allowed by learned District Commission vide impugned judgment and order dated 27.02.2018, granting the relief in the above terms. Feeling aggrieved, the appellant has preferred the instant appeal.
45. We have heard rival arguments advanced by learned counsel for the appellant and respondent in person and perused the record.
6. Learned counsel for the appellant - University submitted that there was no territorial jurisdiction with learned District Commission, Pauri Garhwal to entertain and decide the consumer complaint. His submission is that the complainant was residing within the territorial jurisdiction of learned District Commission, Pauri Garhwal, but the office of the appellant - University (opposite party in the consumer complaint) was situated within the territorial jurisdiction of District Commission, Tehri Garhwal. He has further submitted that the issue of territorial jurisdiction of District Commission is not to be decided on the basis of residence of the complainant, rather the same needs to be decided on the basis of residence of the opposite party or the branch office of the opposite party or the place of work of the opposite party or on the basis of cause of action, wholly or in part. He has relied upon the provisions of Section 11(2) of the Consumer Protection Act, 1986, which are reproduced below:
"11(2). A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, -
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on 5 business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
7. It is not disputed that neither the cause of action arose within the territorial jurisdiction of District Commission, Pauri Garhwal, nor the office of the appellant was situated within the territorial jurisdiction of District Commission, Pauri Garhwal. We find substance in the aforesaid argument advanced by learned counsel for the appellant that the District Commission, Pauri Garhwal was not having territorial jurisdiction to entertain and decide the consumer complaint preferred by the complainant.
8. The next argument advanced by learned counsel for the appellant is that the appellant - University being an educational institution, is not "service provider" and there is no relationship of "service provider" and "consumer" between the appellant and respondent - complainant. Thus, the matter in question could not be brought before the Consumer Fora for adjudication. On the other hand, respondent appearing in person submitted that the appellant is "service provider" and he is a "consumer" as per the definition of the word provided under the Act.
9. Learned counsel for the appellant has relied upon the law laid down by Hon'ble Apex Court in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha reported in IV (2009) 6 CPJ 34 (SC), in which it has been laid down that Bihar School Examination Board does not offer "service" to any candidate, nor does any student hires or avails of any "service" from the Board for a consideration. Paragraph No. 10 of the said decision is reproduced below:
"10. The Board is a statutory authority established under the Bihar School Examination Board Act, 1952. The function of the Board is to conduct school examinations. This statutory function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its "services" to any candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having competence vis-vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and 7 fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination."
10. Respondent appearing in person has relied upon the judgment dated 17.02.2017 passed by Hon'ble National Commission in Revision Petition No. 3144 of 2016; Krishan Mohan Goyal Vs. St. Mary's Academy and another, wherein Hon'ble National Commission has discussed the law laid down by Hon'ble Apex Court in Maharshi Dayanand University Vs. Surjeet Kaur, Civil Appeal No. 6807 of 2008, decided on 19.07.2010, in which it has been laid down by Hon'ble Apex Court that a student is neither a consumer, nor the University is rendering any service, relying on the decision given in the case of Bihar School Examination Board (supra). Relevant portion of the said decision is reproduced below:
"The respondent as a student is neither a consumer nor is the appellant rendering any service. The claim of the respondent to award B.Ed. degree was almost in the nature of a relief praying for a direction to the appellant to act contrary to its own rules. The National Commission, in our opinion, with the utmost respect to the reasoning given therein did not take into consideration the aforesaid aspect of the matter and thus, arrived at a wrong conclusion. The case decided by this Court in Bihar School Examination Board (supra) clearly lays down the law in this regard with which we find ourselves in full agreement with. Accordingly, the entire exercise of entertaining the 8 complaint by the District Forum and the award of relief which has been approved by the National Commission do not conform to law and we, therefore, set aside the same."
11. Considering the aforesaid facts and circumstances of this case as well as the law laid down by Hon'ble Apex Court in the case of Bihar School Examination Board (supra) and Maharshi Dayanand University (supra), it is crystal clear that the appellant - University is neither "service provider", nor the respondent - complainant being a student is a "consumer". Accordingly, we find force in the aforesaid argument advanced by learned counsel for the appellant that the matter in question can not be brought before the Consumer Fora.
12. For the foregoing reasons, we are of the considered opinion that impugned judgment and order passed by learned District Commission suffers from material illegality. Impugned judgment and order passed by learned District Commission is erroneous. The appeal deserves to be allowed and impugned judgment and order passed by learned District Commission is liable to be set aside.
13. Consequently, the appeal is allowed. Impugned judgment and order dated 27.02.2018 passed by the District Commission is set aside and consumer complaint No. 19 of 2017 is dismissed. No order as to costs. The amount deposited by the appellant with this Commission, be released in its favour.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
K