State Consumer Disputes Redressal Commission
The Director Of Distance ... vs Vinnakota Rama Mohana Raos/O.Late ... on 20 January, 2010
FA BEFORE THE ADDITIONAL BENCH OF A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. FA.No.716/2007 AGAINST C.C.No.57/2006 DISTRICT FORUM-I, KRISHNA AT MACHILIPATNAM . Between: 1. The Director of Distance Education, Institute of Advanced Studies in Education, Deemed University, Gandhi Vidya Mandir, Sardarshahe P.O., Churu District, Rajasthan-331 401. 2. The Director, Directorate of Distance Education, Pamkaj Plaza, Plot No.9, Sector 10, Dwaraka, New Delhi-110 075. ..Appellants/ Opp.parties 2 & 3. And 1. Vinnakota Rama Mohana Rao, S/o.late V.Venkateswara Rao, R/o.D.No.12/126, Rustumbada, Machilipatnam, Krishna District. Respondent/ Complainant 2. Shri Bharadwaj, Manager & Correspondent, MSR Academy (Study circle) Opp: Hanuman Temple, Beside Hindu College, Machilipatnam Respondent/ O.P.No.1 Counsel for the Appellants: M/s. S.Sriram Counsel for the Respondents. (Mr.P.Suresh Kumar-R1) (Mr.G.Chandrasekhar-R2) QUORUM: SMT.M.SHREESHA, MEMBER
& SRI K.SATYANAND, MEMBER .
WEDNESDAY, THE TWENTIETH DAY OF JANUARY, TWO THOUSAND TEN (Typed to the dictation of Sri K.Satyanand,Honble Member) *** This is an appeal filed by the opposite parties 2 and 3 against whom as also opposite party No.1, the District Forum imposed liability variously assailing that part of the judgment that went against them.
The facts that led to filing this appeal are briefly as follows:
The respondent No.1/complainant enrolled himself as a candidate desirous of taking B.Com examination in single sitting comprising all the three years as being lured by the offer made by the appellants through respondent No.2, the contact person at Machilipatnam. The complainant paid the requisite amount totalling to Rs.28,000/- and odd by way of two separate D.Ds. one payable to opposite party no.1 and the other payable to the appellants who in fact represent the same institution operating at two different levels.
According to the complainant, the opposite parties initially issued provisional admission card lending assurance to the project of obtaining a degree by private study attending all the three examinations in one sitting. Soon as the dates of examination approached, the complainant claimed to have approached the examination centre he was assigned to and informed about through oral information. To his utter dismay, the complainant discovered that no such arrangement was made at the said examination centre and in fact examination was not conducted and he came to know that the examination centre did not oblige the opposite parties as they did not pay the fees for organizing the examinations. It was also alleged that the opposite parties failed to give him the course material and other things promised. Aggrieved by these acts of the opposite parties, the complainant claimed to have issued a notice to the opposite parties demanding refund of the amount as also compensation. The notice did not evoke any response. Hence the complainant raised this consumer dispute alleging deficiency in service.
The claim came to be resisted by opposite party No.1 by filing a counter which came to be adopted by opposite parties 2 and 3 through a memo.
It is their main defense that the examinations were duly conducted and it was the complainant that absented himself and now he cannot turn round and allege that no examination was ever conducted.
In support of his case, the complainant filed his own affidavit and also relied upon documents marked as Exs.A1 to A4.
A1 is the set of Xerox copies of the two D.Ds. one in favour of opposite party no.1 and the other in favour of opposite party No.3 who naturally represented opposite party no.2 as well as also the quotation for degree education issued by opposite party No.1.
Ex.A2 is provisional hall ticket and provisional admission card. Ex.A3 and A4 are the notices issued by the complainant to the opposite parties. The opposite parties filed affidavits and filed Exs.B1 and B2, the final hall ticket and the final admission card. It is conspicuous to note that though the opposite parties produced Exs.B1 and B2, they appear to be unconnected with the opposite parties and on the other hand, they are captioned as being issued by Vinayak Missions Research Foundation Deemed University, Salem.
On a consideration of the evidence adduced on either side, the District Forum came to the conclusion that the opposite parties were guilty of deficiency in service and on that basis granted relief to the complainant.
Aggrieved by the said order, the opposite parties 2 and 3 preferred the present appeal contending interalia that the District Forum erred in granting the relief on the basis of surmises and conjectures and also questioned the view taken by the District Forum to the effect that the university was a service provider. The District Forum ought to have seen that there was no such offer for single sitting examination.
Heard.
The point for consideration is whether there are any good grounds to interfere with the order of the District Forum?
Perused the record as also the order of the District Forum. The main thrust of the argument advanced by the appellants is two pronged. They firstly tried to rely upon a recent judgment of the Supreme Court reported in 2009 (8) SCC 483 to say that the university enjoys the immunity in the matter of examinations. But their reliance is totally misplaced. Here is a case where the complainant clamored against an outright cheating comprised of breaking the promise of three year degree examination in one single sitting and the very failure of the university and its agent nearer home to the complainant to conduct an examination for which they advertised. Exs.A1 and A2 clearly establish the jural relationship between the complainant and the opposite parties and in fact the complainant paid money to opposite party No.1 on one hand as also to opposite parties 2 and 3 together on the other.
Therefore, they are under an obligation to keep up their promise to give him study material pave the way for examination and do all that is necessary for the complainant to acquire the degree that he fondly aspired to get. It is a well settled proposition that education is an industry even if one tests the proposition on the touchstone of industrial jurisprudence. An industry will have as its objects either manufacture and sale of goods or provision of service. The opposite parties in this case exactly embarked upon the enterprise of affording education for quid pro quo by doing all that is necessary including the conduct of examination calculated to help the aspirants like the complainants realize their dreams of getting a degree. Thus there can be absolutely no doubt that the activity undertaken by the opposite parties in this case answers the provision of service making them service provider vis--vis the complainant who thereupon acquires the status of a consumer. So there is absolutely no difficulty in coming to a conclusion that this is precisely a consumer dispute and the judgment of the Supreme Court is absolutely not applicable to the facts of this case.
It is pertinent to point out that basically even at the stage of conducting an examination, opposite parties 1 to 3 totally failed and it is the specific case of the complainant that when he proceeded to the examination centre, he found no such thing. When this is the allegation, it is incumbent upon the opposite parties to throw light upon several facts of which the opposite parties are apt to possess exclusive knowledge and dispel the doubt created by the complainant. Thus they could have filed vast record showing the hiring of the services of the examination centres rather a contract between the respective examination centres and the university and the other opposite parties as also the memorandum of marks showing the attendance or otherwise of the complainant, as, if really the complainant alone absented himself he would have been marked absent in the memorandum of marks. Apart from the few illustrative pieces of evidence they could have easily tendered, there are pieces of evidence that could have been readily available with the university and the opposite parties if they really conducted the exams. They simply kept quiet thinking that the burden of proof solely rests upon the complainant for ever and it never shifts on to them. The entire record calculated to prove the conduct of the examination would naturally be in the exclusive possession of the opposite parties.
Therefore, it is the opposite parties that should edify any judical forum in order to appreciate its defense. They did not bother to take any steps. We cannot therefore find fault with the District Forum to say, as the appellants would have it that the District Forum guided itself merely by surmises and conjectures. On the other hand very scientifically the District Forum relied upon the principles of adverse inference as also the effects of withholding the best evidence exclusively available with the opposite parties. Thus in this view of the matter we do not see any merits in the appeal.
The appeal is accordingly dismissed but without costs in the circumstances of the case. The opposite parties shall comply with the order of the District Forum within six weeks from the date of receipt of this order.
Sd-MEMBER.
Sd/-MEMBER.
JM Dt.20-1-2010