State Consumer Disputes Redressal Commission
Idp Education India Pvt. Ltd. & Anr. vs Gurnoor Singh Bhullar on 3 January, 2023
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.698 of 2022
Date of institution : 18.08.2022
Reserved on : 20.12.2022
Date of decision : 03.01.2023
IDP EDUCATION INDIA PRIVATE LIMITED,
Having its office at: SCO 54, VK Tower, First Floor, Ranjit Avenue, B
Block, Amritsar
Also at: Tower B, 5th, 6th and 7th Floor, Global Gateways Towers,
Sikandarpur Ghosi, Mehrauli- Gurugram Road, Near Guru Dronacharya
Metro Station, Sector 26, Gurugram, Haryana-122 002
Registered Office: Suit No.610-616, 6th Floor, International Trade Tower,
Nehru Place, New Delhi- 110019
Appellant/Opposite party
Versus
Gurnoor Singh Bhullar, S/o Gurmeet Singh Bhullar, R/o House No.46-
47, Block A, Bhullar Niwas Sandhu Avenue, Chheharta, Amritsar,
contact No.8872200047
.....Respondent/Complainant
First Appeals Under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 05.07.2022 passed by District
Consumer Disputes Redressal Commission,
Amritsar.
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Present:-
For the appellant : Sh. Rohit Chandel, Advocate
For respondent : Sh. B.D.Sharma, Advocate
KIRAN SIBAL, MEMBER
The instant appeal has been filed by the appellant/opposite party against the impugned order dated 05.07.2022 passed by the District Consumer Disputes Redressal Commission, Amritsar ( in short, 2 FA No.698 of 2022 now " the District Commission"), whereby the complaint filed by the complainant against opposite party ( in short 'OP'), under Section 34 & 35 of the Consumer Protection Act, 2019, was accepted and the following relief has been granted:
"9. Hence, the complaint is allowed and the opposite parties are directed to release the result of the complainant within 15 days from the date of receipt of copy of this order; failing which opposite parties are liable to pay compensation of Rs.2 lacs to the complainant for destroying his precious period and loosing opportunity to get admission in LA TROBE University of Melbourne".
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Brief facts of the case for disposal of the appeal are that the complainant hired services of the OPs for consideration of IELTS Examination and paid an amount of Rs.14,700/- as requisite fee on 22.11.2021. The OPs conducted the exam for listening, reading and writing test on 04.12.2021, at Prithvi Planet, Near GTB Market, Guru Teg Bahadur Nagar, Jalandhar and for speaking test the same was held on 10.12.2021 at Best Western Summerlea, G.T.Road, Near BSF Chowk, Jalandhar. The complainant approached both the centre for examination on the scheduled date and time and waited for the result for about 4 months but the result of the complainant had not been issued/declared. Although, the result of other students, who had given the exam next to him, had been declared by the OPs. The complainant sent numerous emails to OPs to release his result but it paid no heed to the genuine requests of the complainant. The complainant received an offer letter from LA TROBE University Melbourne but the OPs only 3 FA No.698 of 2022 replied that investigation in the matter is going on and result would be released after investigation. Thereafter, the complainant received a message from the OP that his score was over all 7.0 in TRF test result held on 04.12.2021, which is final but he neither received any TRF nor any email regarding the same. On 28.12.2021, the OPs through email asked the complainant to provide details by filling up a form in his own handwriting, which was provided by him but despite the same, result was not released by the OPs. Alleging deficiency in service as well as unfair trade practice on the part of the OPs, the complainant filed the complaint before the District Commission and sought directions against the OPs to declare the result/TRF of the complainant or to refund Rs.14,700/- as exam/test fees and further to pay Rs.2,00,000/- as compensation and Rs.30,000/- as litigation expenses. 4 Upon notice, opposite parties appeared through counsel and contested the complaint. In its written reply the OP raised certain preliminary objections, inter alia, that the complainant did not fall under the definition of 'Consumer' as per Consumer Protection Act; the OPs did not cover under the provisions of the Act as educational matters do not come within the purview Consumer Protection Act. On merits, OPs stated that the complainant, having candidate No.518046, appeared for IELTS test on 04.12.2021 for listening, reading and writing and on 10.12.2021 for speaking test. Thereafter, vide email dated 21.12.2021, the complainant was informed by the OPs that his IELTS test had come under the scrutiny of IELTS Test Partners and was given an opportunity to offer any information in support of his test performance on 04.12.2021 4 FA No.698 of 2022 by sending a scanned handwritten statement in the provided format, which was provided by the complainant. Thereafter on 08.03.2022, the OP sent an email to the complainant stating that his test score was being investigated by Cambridge and IDP Australia and the same will be informed to him as and when the test result is released by IELTS Partners. The complainant was kept duly informed about the status of his results by the OP vide such emails as a part of its responsibility towards him. It was further stated by the OPs that IELTS examination is highly prestigious and the IELTS Test Partners have a responsibility to all candidates and recognizing organizations to ensure the highest confidence in test results. In the interest of fairness to all the candidates and the integrity of the exams, the IELTS Test Partners withhold the results wherein they do not have confidence. The IELTS test partners have the right to withhold IELTS test results permanently or temporarily if they consider it to be unreliable for any reason, which are covered under the declaration which was perused and consented by the complainant before the registration. The OP made all plausible efforts towards resolving the issue of the complainant within its control. Investigations of IELTS test results were beyond the control of the OPs as it was conducted by the IELTS Partners and the OPs as a test center had nothing to say in the investigation. There is no deficiency in service and unfair trade practice on the part of the OPs. After denying the other averments made in the complaint, OPs prayed for dismissal of the complaint.
5FA No.698 of 2022
5. Parties led their evidence in support of their respective contentions before the District Commission and after hearing the learned counsel for the parties the complaint was allowed, vide impugned order dated 05.07.2022, by the District Commission as mentioned above. Aggrieved by the said impugned order, this appeal has been filed by the appellant/OP for setting aside the same.
6. We have heard learned counsel for the parties and have also gone through written submission filed by them as well as record of the case.
7. The learned counsel for the appellant/OP has vehemently contended that the District Commission had failed to consider the crucial ground of non-maintainability of the complaint, raised by the appellant in its written statement as well as written arguments, that education is not a commodity, the respondent/complainant is not a consumer and appellant/OP is not a service provider within the meaning of the Consumer Protection Act, 2019. In support of his contention, the learned counsel relied upon the judgments of Hon'ble Supreme Court of India in the case of "Maharishi Dayanand University Vs. Surjeet Kaur" reported in 2010(11)SCC 159 and in the case of "P.T.Koshy & another Vs. Ellen Charitable Trust & others" in Special Leave to Appeal (Civil) No.22532/2012. The learned counsel argued that the District Commission further erred by not considering the precedent set that facilitation of exam is not a service within the meaning of the Consumer Protection Act, 2019. The learned counsel relied on the judgment of Hon'ble National Commission in the case of Vijay Kumar 6 FA No.698 of 2022 Vs. Director Regional Office (IGNOU) decided on August 2nd, 2019. It has also been contended that the District Commission has failed to consider that investigation of IELTS test result is conducted by the IELTS Test Partners as per their policies, and the appellant/OP as a test center has nothing to do in the investigation. The District Commission failed to consider the continuous and rigorous efforts of the appellant/OP in addressing the grievance of the respondent/complainant timely as is evident from the emails addressed to the complainant by it. It has also not considered the submissions made by the appellant/OP vide its written statement and written arguments, despite having made the said pleadings well substantiated, thereby causing injustice to the appellant. There is no deficiency in service on the part of the appellant/OP. The Learned counsel for appellant/OP prayed for acceptance of this appeal and dismissal of the complaint by setting aside the impugned order.
8. On the other hand, the learned counsel for the respondent/complainant has contended that the District Commission has rightly accepted the complaint of the complainant and there is no illegality or perversity in the same. The learned counsel argued that the appellant/OP is not an educational institution; rather it is a service provider to conduct the exam of IELTS. The company is covered under the category of "Commercial Training or Coaching Service". The appellant is engaged in the business of counseling the students, who are willing to pursue international education in English Speaking countries and further it also administers International Language Testing Systems (IELTS) in India. The company charges fees for such test, 7 FA No.698 of 2022 hence the plea of appellant that it is only an educational institution, is not acceptable. The appellant/OP is a company registered under the Company's Act and formed for gain purposes. The appellant/OP is legally bound to declare the result of the respondent/complainant but it failed to do so, which amounts to deficiency in service on its part. The learned counsel prayed for dismissal of the present appeal.
9. We have given thoughtful consideration to the contentions raised by the parties.
10. Admitted facts of the case are that the respondent/complainant availed services of the appellant/OP for consideration of IELTS Examination and paid an amount of Rs.14,700/-, Ex. C-3, as requisite fee on 22.11.2021. It is also an admitted fact that the respondent/complainant appeared in the examination conducted by the OP for listening, reading and writing test on 04.12.2021, at Prithvi Planet, Near GTB Market, Guru Teg Bahadur Nagar, Jalandhar and for speaking test on 10.12.2021 at Best Western Summerlea, G.T.Road, Near BSF Chowk, Jalandhar, but the result for the said examination has not been released by the appellant/OP. Alleging deficiency in service on the part of the appellant/OPs, the respondent/complainant filed consumer complaint before the District Commission, which was allowed vide impugned order dated 05.07.2022 as mentioned above. Aggrieved with the same, this appeal has been filed by the appellant/OP for setting aside the impugned order.
8FA No.698 of 2022
11. The foremost ground of appeal raised by the appellant/OP is that the District Commission has failed to consider the preliminary objection that the appellant/OP being an Educational Institution is not a 'Service Provider' under the provisions of Consumer Protection Act and the respondent/complainant does not fall within the definition of 'Consumer' under the Act. Now, question arises whether OPs are providing any service as per the provision of the Consumer Protection Act and further it is to be seen whether complainant is a consumer specifically with reference to the OPs? To determine this issue, it would be appropriate to reproduce the relevant provisions of the Consumer Protection Act, 2019, which are as under:-
Section (2)(7) "consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a 9 FA No.698 of 2022 person who avails of such service for any commercial purpose.
Explanation.--For the purposes of this clause,--
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-
employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi- level marketing;
(42) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
In the case in hand, the appellant/OP is engaged in the business of counseling the students, who are willing to pursue international education in English Speaking countries and also administers International English Language Testing System(IELTS) in India, that too after charging fee for such a test. Moreover, it has been submitted that the appellant/OP is a company registered under the Company's Act for monetary gains and is covered under the category of "Commercial Training or Coaching Service". Therefore the contention of the appellant that it is not an educational institution and not a service provider, cannot be accepted as 10 FA No.698 of 2022 it charged fees which is to be construed as consideration money for the service provided. Therefore, an inference can be drawn that the complainant hired services of the appellant/OP for a consideration which has been paid by the respondent/complainant. Accordingly, we are of the view that the respondent/complainant comes under the definition of 'Consumer' and the appellant/OP comes under the definition of 'Service Provider' under the provisions of the Consumer Protection Act, 2019.
12. The appellant/OP relied upon the judgements in the case of Maharishi Dayanand University (Supra) and in the case of P.T.Koshy & another(Supra) and further relied upon the judgments passed by Hon'ble National Commission in the case of Manu Salan Ki and Ors Vs. Vinyaka Mission University, 2020 CPJ 210 (NC) and in the case of LBS Group of Education Institute Vs. Arjun Singh 2021(1) CPJ(NC)
151. From the perusal of said judgments it shows that the parties in the said cases are educational institutions and running proper course/degrees and conducted exam as per law and declared the result, but in the present case the appellant is not a university or institute or any course run by it but only a company who conducted the exam. Accordingly, the facts of the said citations are also not applicable to the facts and circumstances of the present case.
13. With regard to the contention of the appellant/OP that the IELTS Test Partners have the right to withhold IELTS test results permanently or temporarily if they consider it to be unreliable for any reason, the appellant/OP has not placed on record any regulations/rules/terms and conditions to support the same. Hence, 11 FA No.698 of 2022 finding no force in this contention, the same is hereby rejected. The District Commission has rightly observed in its order dated 05.07.2022 that:-
"8. We have also gone through the correspondence between the complainant and the opposite parties. As per Ex.C-10 opposite parties asked the complainant to provide an urgent dead line such as expiry of VISA and conditional offer from any University and complainant provided them offer of LA TROBE University Melbourne. The University offer the complainant to get admission in three years degree in Bachelor of Nutrition Science and his classes were supposed to start on 28.02.2022. As per letter dated 31.05.2022 produced with the written arguments by the opposite parties vide which they flatly refused to release the result of the complainant. Counsel for the opposite parties argued that on June 2, 2022 complainant is informed through email that his result will not be released and test report form will not be issued because it is found in the investigation that there is reasonable evidence to show that the complainant's result is not a reliable indicator of the complainant's English language ability. But opposite parties had not produced a single document of investigation on the basis of which they have decided not to declare the result of the complainant. Neither they have produced the speaking investigation report. They have decided behind the wall that the English language ability of the complainant is doubtful and hence his result will not be declared which is totally a non speaking decision and baseless and rather without any evidence on record. The complainant is a young guy of 19 years having dreams of bright future who have paid the fee of Rs.14700/- with the opposite parties and appeared in the exam on 04.12.2021 and have one offer letter of a recognized University of Melbourne but is cheated with the arbitrary decision of the opposite parties that his result will not be released which is deficiency in service on the part of the opposite parties. They have received the fee and allowed the complainant to sit in the exam, hence they are bound to declare the result of the complainant."
14. In view of our above discussion, we find that the District Commission has rightly decided the case and there is no material infirmity and irregularity in the order of the District Commission. Finding 12 FA No.698 of 2022 no merit in this appeal filed by the appellant/OP, the same is hereby dismissed & the order of the District Commission is upheld.
15. The appellant had deposited a sum of Rs.1,00,000/- at the time of filing of the appeal. This amount alongwith interest, which has accrued thereon, if any, shall be remitted by the registry to the District Commission forthwith. Respondent/complainant may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
16. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases and non-sitting of this Commission due to pandemic of Covid-19.
(H.P.S. MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER January 3rd, 2023.
(Dv)