State Consumer Disputes Redressal Commission
Vice Chancellor, Guru Jambheshwar ... vs Sh. Kamal Kumar Guleria on 27 October, 2009
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA ------ FIRST APPEAL No. 222/2008. DECIDED ON 27.10.2009 In the matter of: Vice Chancellor, Guru Jambheshwar University of Science Technology, through its Director Distance Education Hisar, Haryana Pin 125 001. ... ... Appellant. Versus Sh. Kamal Kumar Guleria son of Sh. Piar Singh, RCH Section, State Institute of Health & Family Welfare, Parimahal Kasumpti, Shimla Pradesh; ... ... Complainant/Respondent. The Managing Director, Guru Harkrishan Institute of Management (Nodal Centre of Guru Jambheshwar University) 13, Extn. Urban Estate, Karnal, Haryana. ... ... Proforma Respondent. Hon'ble Mr. Justice Arun Kumar Goel (Retd.), President Hon'ble Mrs. Saroj Sharma, Member. Honble Mr. Chander Shekhar Sharma, Member. Whether approved for reporting? Yes. For the Appellant: Mr. Vivek Thakur, Advocate. For the Respondents 1 Mrs. Anu Tuli, Advocate. For the respondent No.2 Ex-parte. O R D E R
Per Mr. Chander Shekher Sharma, Member.
This appeal is directed against the order of District Forum, Shimla in Consumer Complaint No. 131/2003, dated 24.6.2008 whereby the complaint of the respondent No.1 was partly allowed and appellant and proforma respondent were jointly and severally held liable to pay a sum of Rs 1 lac as compensation to the respondent No.1 for mental agony and harassment for spoiling three valuable years of respondent. This compensation was imposed upon the appellant keeping in view the welfare of the respondent No.1 who was a student and to whom appellant assured to supply Degree of Master of Computer Science (MCS) even without seeking approval of the UGC. Appellant has been further directed to pay cost to the tune of Rs 2,000/-and interest @ 9% per annum on the awarded amount to the respondent with effect from the date of filing of the complaint till its realization.
2. Facts of the case as they emerge from the record are, that the respondent No.1 was enrolled in the Distance Education Course of appellant university, ( Guru Jambheshwar University) in the course of Master of Computer Science and it was pleaded by him, that without his consent the appellant converted the course of MCS into M.Sc Computer Science. Further averments in the complaint were, that M.Sc Computer Science is inferior course in comparison to Master of Computer Science. His further grievance was that respondent appeared in the 1st Semester Examination in the month of March 2001 and got re-appear in 3 papers and had sent bank draft No. 579842 issued by State Bank of Patiala, Kasumpti dated 4th October, 2001 for an amount of Rs 250/- for re-examination, but he did not receive his roll number till the date of his examination, as such he had appeared in the examination against the old roll number 5246 and he had received the roll number for the said examination, when it was over and in the result he was shown absent under roll number 405682.
3. In this background complaint under Section 12 of the Consumer Protection Act, 1986 was filed for deficiency of service and unfair trade practice on the part of appellant, wherein the respondent had claimed an amount of Rs 2 lacs as compensation and cost of Rs. 20,000/-, refund of the entire fee amounting to Rs. 20,000/- paid by him for the said course.
4. Appellant contested and resisted the complaint and submitted its version, wherein plea that District Forum below had no jurisdiction was raised, it was also pleaded that there was no deficiency of service/unfair trade practice on the part of appellant and it was also stated in the reply that MCS Degree was not recognized by the UGC, and it was thus under the compelling circumstances that the nomenclature was changed to M.Sc Computer Science as per decision of the Council of the University vide Resolution No.3, dated 17.6.2009 and prayed for the dismissal of the complaint.
5. Appellant also filed rejoinder to the complaint wherein the averments made in the complaint were reiterated.
6. Brief resume of the evidence led by the appellant and respondent No.1 in nutshell is, that appellant in support of its version filed affidavit of its Registrar and various documents Annexure C-1 student identify card, Annexure C-2-result cum detail marks card, Annexure C-3 copy of draft sent by the respondent to the appellant, Annexure C-4 roll number, Annexure C-5 result-cum-detail marks card for master of science qua Third Semester Examination, March 2002 and copies of various letters sent by the respondent to the appellant, Annexures C-6 to C-8. Respondent No.1 in support of his case has filed his own affidavit and also filed various documents, namely Annexure R-1 letter sent by the superintendent of the appellant to the respondent Annexure R-2, application form for admission to Distance Learning Programme for the year 2000-01, and letters Annexure R-3 and R-4 addressed to the Director (DE) of the appellant.
7. We have heard Mr. Vivek Singh Thakur and Mrs. Kamlesh Shandil, learned counsel for the appellant and Mrs. Anu Tuli learned counsel for the respondent and have gone through the record of the case minutely.
8. Learned counsel for the appellant argued that since University is not rendering any service, as such the respondent does not fall within the definition of consumer, under Section 2 1(d) of the Consumer Protection Act, 1986 and he could not pass the MCS examination, as no steps were taken by him to complete the said course. Therefore he is estopped by his act and conduct to file the present complaint. Learned counsel for the appellant has placed reliance on the following decisions of National Commission and various State Commissions which are as under:
1.
Deputy Registrar (Colleges) & Anr. Vs. Ruchika Jain & Ors, III (2006) CPJ 343 (NC);
2. Board of Secondary Education & Anr. Vs. Sasmita Moharana, II (2007) CPJ 154 (NC);
3. Yogesh Kumar Sharma Vs. Kota Open University & Anr., 1 (2007) CPJ 285;
4. Ms. Rama Sinha & Ors. Vs. Ms. Jyotika Gupta, IV (2003) CPJ 500;
5. Manish Chaudhary Vs. Orbit Educational & Research Foundation & Anr., Consumer Law Cases (2005-2008) 58;
6. Goswami Ganesh Dutt Sanatan Dharma (GGDSD) College Society & Anr., Vs. Aseem, III (2004) CPJ 433;
7. Ramesh Bhardwaj Vs. Board of Secondary Education, I (2005) CPJ 318.
9. Mrs. Tuli learned counsel for the respondent has supported the order of the District Forum below and argued that this is a clear cut case of deficiency of service/unfair trade practice, on the part of appellant since admission for the MCS was given without seeking approval of the UGC. She placed reliance on the judgment of National Commission given in case titled as Bhupesh Khurana & Ors. Vs. Vishwa Buddha Parishad & Ors., 2000 (3) CPR 49 (NC).
10. After hearing learned counsel for the parties, we are convinced that the order of the District Forum below does not suffer from any infirmity, and thus calls for no interference in this appeal. Reason being that this is a clear cut case of deficiency of service/unfair trade practice on the part of the appellant. One fact is clear from the evidence on record, that the appellant had given admission to the respondent in the MCS course without obtaining prior permission to offer this course form the UGC, and even fee was also received from the students like respondent No.1 for this course. Identify card Annexure C-1 which was issued by the appellant there is a recital that respondent was admitted in the course of MCS, as such appellant was under obligation to obtain prior permission from the UGC before admitting students to this course. Even appellant has also admitted in its version, as well as in the affidavit that UGC scheme did not permit the appellant to admit students to MCS course, and no consent of the respondent No. 1 was obtained for converting the course from MCS to M.Sc Computer Science.
11. There is no substance in the plea of the appellant relating to jurisdiction of the District Forum below to try and entertain the complaint, since this Commission in Appeal No. 343 of 2006, titled as Sh. Kamal Kumar Guleria Vs. Vice Chancellor Guru Jambheshwar University, Hissar ( Haryana) & Anr, dated 8.10.2007 has already held that the District Forum below had the territorial jurisdiction. Facts of the present case are similar, as part of cause of action had arisen within the territorial jurisdiction of District Forum Shimla as an amount of Rs. 250/- were sent by the respondent No.1 to the Registrar of the appellant University and the Registrar of the appellant University had sent the result card to the respondent No.1 at Shimla. Earlier order of the Commission had become final, since no appeal was filed by the appellant against the said order per learned counsel for the respondent No.1.
12. The judgment of National Commission in the case Deputy Registrar (Colleges) & Anr. Versus Ruchika Jain & Ors., III (2006) CPJ 343 (NC) relied upon by the appellant is not applicable in the present case since it relates to the holding of examination by the university wherein it was held that performance of statutory duties by a university or college in laying down criteria/rules/regulations for conducting examinations, eligibility criteria for permitting the students to appear in the examination or declaration of the results of a student who appeared in the examination and such other activities, cannot be considered to be hiring of service for fees.
13. The other judgments relied upon as referred hereinabove on behalf of the appellant are not applicable to the present case, as they mostly relate to the delay in supply of marks sheet/non receipt thereof and pertain to violation of terms and conditions of the prospectus and declaration of result.
14. In the present case the admission was given to the respondent No.1 in the MCS course by the appellant was without obtaining permission of the UGC which fact is admitted by it even in its reply. We are of the view that since MCS course could not have been started by the appellant without obtaining the said permission. Thus this is a clear cut case of deficiency in service/unfair trade practice on the part of appellant.
15. There is no substance in the plea of estoppel raised by the learned counsel for the appellant since the action of the appellant in starting MCS course without obtaining approval of UGC was an illegal act, as such there is no question of estoppel. Respondent had never either asked on consented for the change of course he was admitted to M.Sc. Computer Science
16. Appellant has also taken alternative plea in the appeal, to the effect that in case the contention raised by the university in the reply does not find favour with this Commission, then as per the appellant the amount of compensation awarded by the District Forum below is excessive and exaggerated one. There appears to be no substance in this plea of the appellant . Reason being that three valuable years of the respondent/student were spoiled due to the act of deficiency and unfair trade practice on the part of the appellant, hence the District Forum below had rightly awarded compensation to the tune of Rs. 1 lac in favour of the respondent which was just and reasonable in view of the facts and circumstances of the case.
17. This view is also supported by the decision of Apex Court given in case of Buddhist Mission Dental College & Hospital Vs. Bhupesh Khurana & Ors, 2009 (1) CPC 604, which was relied upon by Mrs. Tuli was confirmed in the appeal in the aforesaid decision.
18. No other point was urged.
In view of the aforesaid discussion, we find no reason to interfere with the order passed by the District Forum Shimla, in Consumer Complaint No. 131/203, dated 24.6.2008 and the same is upheld, and this appeal is dismissed, leaving the parties to bear their own costs.
All interim orders passed from time to time in this appeal shall stand vacate forthwith.
Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.
Shimla October 27, 2009.
( Justice Arun Kumar Goel ) (Retd.) President ( Saroj Sharma ) /Krn/ Member.
(Chander Shekhar Sharma) Member.