State Consumer Disputes Redressal Commission
M/S A.K. Vidyamandir Pvt Ltd vs Ashu Gautam And Anr on 6 July, 2011
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. FIRST APPEAL NO.94/2010. JUDGMENT
RESERVED ON 29.6.2011.
DATE OF DECISION: 6.7.2011.
In the matter of:
M/S A.K. Vidyamandir Private Limited, Forum for IT/JEE/CET, Medical Entrance Test, Registered Office S.C.O. 214, Sector 36-D, Chandigarh-160 036, through its Manager.
Appellant.
Versus
1.
Ashu Gautam son of Shri Rajesh Sharma House No.1, Type III, H.B. Colony, Hamirpur, H.P.
2. Rajesh Sharma, House No.1, Type III, H.B. Colony, Hamirpur, H.P. Respondents.
Honble Mr. Chander Shekhar Sharma, Presiding Member.
Honble Mrs. Prem Chauhan, Member.
Whether approved for reporting? yes For the Appellant: Mr. Deepak Arora, Advocate.
For the Respondents: None.
O R D E R Chander Shekhar Sharma, Presiding Member.
1. This appeal is directed against the order of the District Forum, Hamirpur, passed in C.C. No.6/2008 on 10.2.2010, whereby opposite party No.1, hereinafter referred to as the appellant was ordered and directed to refund an amount of Rs.15,200/- and opposite party No.2, hereinafter referred to as such O.P. No.2, was ordered and directed to refund Rs.1,000/- to the complainants besides cost of Rs.500/- each.
2. Facts of the case as they emerge from the record are that the respondents, Mr. Ashu Gautam and his father Shri Rajesh Sharma (hereinafter referred to as the complainants No.1 & 2 respectively) who were residents of Housing Board Colony, Hamirpur, had filed complaint under Section 12 of the Consumer Protection Act, 1986, against the appellant and O.P. No.2 that after reading the advertisement in the newspapers given by respondent No.1, Director, A.K. Vidyamandir regarding providing of coaching for IT/JEE/CET Medical Entrance Test, Ashu Gautam, complaint No.1 who had qualified his +2 examination with science subjects during the year 2004 and his father, complainant No.2 had enquired on phone from the said Coaching Institute and then appellant had advised the complainant to come and join the coaching for PMT Test and also assured that quality of the coaching was excellent and 80% of the students had got admission in different medical and para-medical institutions.
3. Thereafter, complainant had deposited Rs.16,200/- on 10.9.2004 with the appellant vide Receipt, Annexure C.1. and then again deposited Rs.3,200/- with the Manager, Shiva Foods, O.P. No.2, on account of hostel fee for which also receipt of Rs.2,700/- was issued and Rs.500/- was retained as the security charges. Further allegations in the complaint are that the complainant No.2 who is the father of Ashu Gautam had paid aforesaid sum from his hard earned salary and case made out in the complaint further depicts that the complainant No.1 joined the Institute and Hostel of the appellant but he fell ill due to food provided by the opposite party No.2 and he had to discontinue his coaching and left the hostel and he had to take treatment for his illness.
4. Thereafter, the complainant requested the appellant to return the fee, hostel charges after deducting his 15 days expenditure on account of stay and coaching. The appellants assured the complainants to send the balance amount through draft after processing the matter and completing the formalities, but despite various letters, nothing has been done and no reply was received. Thereafter, representative of complainant No.2 also visited the registered office of the appellants in the second week of December, 2007, but they flatly refused to return the money on the ground that there was no procedure to return the money even if the student has not joined the Institute or left within a month. As such, as per complainants, such an act on the part of the appellants amounts to deficiency of service and unfair trade practice and appellants are liable to return Rs.19400/- to the complainants with interest @ 12% per annum from 10.10.2004 and damages of Rs.10,000/- for mental agony and suffering and litigation cost of Rs.5,000/- were also claimed in the complaint.
5. Notice of the complaint was issued to the appellant as well as O.P. No.2. wherein opposite party No.2, Manager Shiva Foods, has failed to put in appearance despite notice, as such he was proceeded ex-parte vide order dated 10.2.2009 of the Forum below. However, the appellant who was opposite party No.1 had resisted and contested the complaint, raised preliminary objections to the effect that the present complaint is not maintainable and it deserves to be dismissed. Other point raised was relating to the territorial jurisdiction of the Forum below to try the complaint as no cause of action had arisen . Since the appellants are not carrying on business or having any branch office within the jurisdiction of the District Forum, Hamirpur and the complainant No.1 applied for admission for coaching classes with the Institute of the appellant which is being run at Chandigarh and also took Information brochure for academic session 2004-2005 from Chandigarh, wherein under head, RULES AND REGULATIONS, at S.No.8 it is provided as under:-
All disputes, if any, are subject to Chandigarh Jurisdiction only According to the appellant, complainants have not approached the Forum below with clean hands and they have suppressed the material facts relating to Information Brochure (Pages 9 & 10) referred to above.
6. Other plea taken by the appellant was to the effect that in case any student takes admission and leaves the Institute in between the course, it disturbs/affects the whole financial distribution/matters of the Institute and it was also pleaded that the appellants never refused to impart education to the complainant No.1 and the complainants are not consumers as defined under the Consumer Protection Act and the dispute raised by the complainants is not a consumer dispute. Last plea taken in the reply was to the effect that the complaint is hopelessly barred by time as the admission to complainant No.1 was given on 10.9.2004 and the coaching was to start on 30.9.2004. Thereafter, the complainant No.1 left the institute of the appellants immediately after 15 days and as such cause of action has occurred in favour of the complainant No.1 after his leaving the Institute in the middle of October, 2004, whereas the complaint has been filed on 18.12.2007 i.e. after a period of more than 3 years and as per provisions contained in the prospectus, complainants are not entitled for refund of any amount from the appellants.
7. Brief resume of evidence led by the complainants as well as the appellant in the present case in nutshell is, that the complainant in support of their claim had placed reliance on various documents, C.1 to C.6 which are receipts of tuition fee, hostel feel, letter written by complainant No.2, Rajesh Sharma to the appellant, copy of public notice issued vide Advertisement No.AICTE/Legal/04(01)/2007, application under Section 5 of the Limitation Act duly supported by the affidavit of complainant No.1 and respondents in support of their case had relied upon various documents, Annexures R.1 to R.4, i.e. Information brochure (2004-2005) of A.K. Vidyamandir, Chandigarh, Admission Forum, Marks Sheet of 10+1 examination of Ashu Gautam etc. and various judgments.
8. In the present case final arguments were heard on 29.6.2011 and on that date, Mr. Deepak Arora, learned Counsel for the appellant had appeared but no one had appeared on behalf of the complainants. It appears from the record that on 1.11.2010, Memo. of appearance was filed by Mr. Prince Chauhan on behalf of the complainants and Vakalatnama was to be filed by him by the next date on 15.3.2011. But on that date, no one appeared and no Vakalatnama was filed.
As such, in these circumstances, we have heard learned counsel for the appellant only and have perused the record of the case minutely.
9. Mr. Deepak Arora, learned Counsel for the appellant in the present case had laid stress on two points, firstly per him, the Forum below had wrongly concluded that it had jurisdiction to take cognizance of the present complaint. Further per him, no cause of action had arisen to the complainants within the jurisdiction of the Forum below since the main office of the appellant is at Chandigarh and fee was also paid in cash at Chandigarh and there is also no branch office of the appellant in Hamirpur district. He had drawn our attention to the specific clause No.8 of the brochure, Annexure R,.1 of the Institute of the appellant, A.K. Vidyamandir, wherein as per S.No.8, reproduced above, all disputes relating to admission of the complainants was subject to Chandigarh jurisdiction only and he had also placed reliance on Annexure R.2 which is Admission Form, wherein also under head, RULES AND REGULASTIONS, at the back of this Annexure, same term as reproduced above has been added so far jurisdiction for adjudication of disputes relating to the appellant-Institute is concerned. He also laid stress on the point that the present complaint is barred by limitation as the complainant No.1 was given admission in the Institute of the appellant on 10.9.2004 and the classes were to start with effect from 30.9.2004 and he left the Institute of the appellant immediately after 15 days of the admission. As such, cause of action had arisen to the complainants in the middle of October, 2004, whereas the present complaint was filed by him on 18.12.2007 after a lapse of more than 3 years and as per him, order of the Forum below thus is not legally sustainable and it deserves to be set aside.
10. After hearing the learned Counsel for the appellant Mr. Arora and after going through the record of the case minutely, we are of the considered view that there appears to be substance in the submissions of the learned Counsel for the appellant as regards the jurisdiction point and the appeal deserves to be allowed on this account and findings of the Fora below that it has jurisdiction to try the present complaint is not legally sustainable. Reason being that in terms of Clause 8 of the information brochure, Annexure R.1 which was purchased by the complainants relating to the academic year 2004-2005 , it is clear that all disputes are subject to Chandigarh jurisdiction only and even in the admission form, Annexure R.2, at its back page wherein Rules and Regulation have been incorporated, also provides that all disputes are subject to Chandigarh jurisdiction only. However, the Forum below in the present case while deciding the point of jurisdiction had concluded that part of cause of action had arisen at Hamirpur, as the admission letter was received by the complainant No.1 at Hamirpur and as such the District Forum, Hamirpur has got jurisdiction to entertain and try the complaint as part of cause of action has arisen within the jurisdiction of the Fora below.
11. In the present case, it is clear from the evidence on record that the appellant is running the Coaching Institute at Chandigarh and coaching was also to be provided to the complainant at Chandigarh and there is no branch office of the appellant within the jurisdiction of District Forum, Hamirpur. Even the fee, hostel fee etc. appears to have been made in cash at Chandigarh as is evident from Annexures C.1 and C.2. There is a specific clause in Information brochure, Clause-8 of Annexure R.1, which is for the academic year, 2004-2005 that all disputes, if any, are subject to Chandigarh jurisdiction only and even in the admission form, Annexure R.2, same condition has been incorporated under Rules and Regulations, which is duly signed by both the complainants. Even as per Annexure R.1 at page-50, mode of payment was to the effect that the students have to pay fee in cash/demand draft/money order or local cheques in favour of A.K. Vidyamandir at Chandigarh.
As already stated above, the payment on account of fee, hostel fee etc. has been made by the complainants in cash at Chandigarh and not even by way of demand draft etc. from Hamirpur. As such since parties are governed by the terms and conditions given in the Information brochure wherein it is specifically provided that all disputes, if any, they are subject to Chandigarh jurisdiction only and that there is no branch office of the A.K. Vidyamandir within the jurisdiction of Hamirpur District and the payment in cash or by way of drafts/cheques etc. was also payable at Chandigarh only, Forum below has wrongly come to the conclusion by holding that the District Forum, Hamipur has got jurisdiction to try the present complaint and that part of the cause of action had arisen at Hamirpur.
12. Even Section 11 of the Consumer Protection Act, 1986, which deals with the jurisdiction of the District Forum, provides as under:-
(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 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 institution of the complaint, actually and voluntarily resides, or carries on 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.
It also appears from the perusal of the complaint that the appellant in the present case are carrying on coaching Institute at Chandigarh and they are also residing there and there is no branch office within the jurisdiction of the District Forum, Hamirpur. Even no cause of action wholly or in part has arisen within the jurisdiction of the Forum below. Simply alleging that admission letter was received at Hamirpur but that letter had not been placed on record and they had seen the advertisement in newspaper in Hamirpur will not confer jurisdiction to the Forum below and as such finding of the Forum below to the effect that cause of action had arisen within the jurisdiction of Forum below is not legally warranted. However, the decisions relied upon by the learned Counsel for the complainants and discussed in the impugned order of the Forum below are not applicable in the present case as they are on different aspects and are not applicable keeping in view the facts of the case as already discussed in detail in earlier paras. Honble Karnataka High Court in the case of D.L. Suresh Babu and etc. Petitioners V. Institute of Chartered Accountants of India and others, Respondents, AIR 1983 Karnataka 43, also relied upon by the District Forum below, in para-17 of the judgment have elaborately dealt with and interpreted the expression, cause of action which is reproduced below:-
17. The expression cause of action has not been defined in the Constitution. The same expression occurs in Cl.(c) of Section 20 of the Civil P.C. Though the said expression has not been defined in the Civil P.C., the meaning to be given to the said expression is well settled by judicial pronouncements in the country. Cause of action means a bundle of essential facts, which it is necessary for the party seeking relief to prove if transversed by the opposite party, in order to secure the relief prayed for. Therefore, if the petitioner is able to show that at least one of such essential facts required to be proved to secure an order in his favour has arisen within the territory of this Court, this Court will have jurisdiction to entertain the writ petition.
Alleged sole fact of receipt of admission letter at Hamipur by the complainants does not constitute an essential fact for securing an order in their favour in view of the verdict of the Honble Karnataka High Court referred to above, as the essential facts to be proved at the instance of the complainants in their favour are, like the payment of consideration in lieu of coaching at the Institute of the appellant at Chandigarh personally in cash, and the Information Brochure, Annexure R.1 having been received by the complainants at Chandigarh from the appellant which unequivocally describes that all disputes, if any, are subject to Chandigarh jurisdiction only and above all there is no branch office of the appellant at Hamirpur for carrying on its business there, mandated to be, amongst others, an essential ingredient to prove jurisdiction of the District Forum under the provisions of Consumer Protection Act, 1986, which infact have not been proved on record by the complainants as discussed in detail in this order. Hence, even filing of the complaint in District Forum, Hamirpur is against the mandate of Section 11 of the Consumer Protection Act, 1986. Further, as already discussed above, cause of action having been arisen in the middle of October, 2004 and the complaint having been filed on 18.12.2007, the complaint is obviously time barred.
13. There is also force in the arguments of the learned Counsel for the appellant that the present complaint is barred by limitation. It is evident from the evidence on record viz. the affidavit of Director of the appellant-Institute Shri Kailash Sharma that the admission was taken by the complainant No.1 on 10.9.2004 and classes were to start on 30.9.2004 and complainant No.1 had left the Institute of the appellant after 15 days i.e. in the middle of October, 2004 and he has filed the present complaint on 18.12.2007 which has been admittedly filed after a period of two years from the date when cause of action has arisen to the complainants in the middle of August, 2004 after leaving the Institute.
As such, present complaint is also barred by limitation. No doubt the application for condoning the delay in filing the complaint has also been filed with the complaint, but the grounds taken in the application are not convincing since it is only written that the appellant has finally and flatly refused in the second week of November, 2007 to refund the fee.
There is no documentary evidence to this effect appended with the complaint. As such there are no justifiable grounds to condone the delay in filing the complaint. Hence, findings of the District Forum below that the complaint is within limitation is also not legally warranted. Our view is also supported by the decision of this Commission in the case of Rajat Kumar Versus L&T (Kamatsu) Ltd. And others, Consumer Complaint No.2/2008, dated 16.9.2009.
14. No other point was urged.
In view of the aforesaid discussion, there appears to be substance in the present appeal and as such deserves to be allowed and as a result thereof, order dated 10.2.2010 passed by the District Forum below in Consumer Complaint No.6/2008 is set aside and consequently complaint is dismissed with no orders as to costs and as such appeal is accepted. It will not be out of place to mention here that since we have concluded that District Forum below has got no jurisdiction to entertain and try the present complaint and that the complaint is barred by limitation, as such we are not expressing any opinion on the merits of the case.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Copies of this order be sent to the parties free of cost by post as per rules.
Announced at ( Chander Shekhar Sharma ) Shimla on July 6, 2011. Presiding Member.
( Prem Chauhan) Member.