State Consumer Disputes Redressal Commission
President,Voc Industrial Training ... vs K. Ramesh,Andipatti Taluk, Theni ... on 23 July, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru S. Sambandam MEMBER II FA.617/2006 & F.A.NO.618/2006 (Against order in C.C.NO.45/2002 and CC.No.44/2002 on the file of the DCDRF, Theni) DATED THIS THE 23rd DAY OF JULY 2010 1. President VOC Industrial Training Centre VOC Nagar, Chinnamanur- 625 515 Uthamapalayam Taluk 2. Secretary V.O.C. Industrial Training Centre 3. Treasurer V.O.C. Industrial Training Centre M/s. Thilakavathi 4. Principal Counsels for V.O.C. Industrial Training Centre Appellants/ Opposite parties (in both the appeals) Vs. F.A.NO.617/2006 K. Ramesh S/o. Kanniah Gowder Kathirnarasingapuram, Rajathani Post Andipatti Taluk, Theni District F.A.NO.618/2006 S. Murugan S/o. Suruliraj Residing at 3-16-16, Velumani Illam M/s. Umashankar Thiruvalluvar Colony, Sakkampatti, Counsel for Andipatti Taluk, Theni District Respondents/ Complainants The Respondents / Complainants filed complaints before the District Forum against the opposite parties praying for the direction to the opposite parties to refund the donation paid, alongwith compensation. The District Forum allowed the complaints. Against the said impugned orders, the appeals are preferred by the opposite parties to set aside the order of the District Forum dt.12.10.2006 in CC Nos.45/2002 and 44/2002 respectively. These appeals are coming before us for hearing finally on 25.6.2010. Upon hearing the arguments of the counsels on either side, this commission made the following common order: COMMON ORDER
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties in OP.Nos.45/2002 and 44/2002, on the file of District Forum, Theni, are the appellants in F.A.Nos.617/2006 and F.A.No.618/2006, respectively.
2. The respondents in both the appeals, as complainant filed the case independently, on identical facts, and the cases were also opposed on identical facts, based on common law.
3. The parties are referred in these appeals, as per the ranking in the original complaints.
4. The brief facts leading to these two appeals:
The complainant(s), paying a donation of Rs.6000/- as well paying fees, as requested the opposite parties, were admitted in the 1st opposite party institution, in Electrician Trade, in the year 1996, based upon the advertisement in the news paper, which declared, that 40 candidates would be admitted in the electrician trade. The complainant, attending the classes, appeared for the examination, alongwith others, and the result was published on 20.10.98, wherein both the complainants, have been declared as successful candidates. After passing electrician trade, they have approached the opposite parties, requesting electrician trade pass certificate. Only at that time, the complainant came to know, that though the State Council for Vocational Training, Chennai, permitted the opposite party, to invite admission, only for 20 candidates, where as the opposite parties have admitted 40 students, for electrician trde, without affiliation and recognition and therefore, out of 40 candidates, certificates were issued only to 20 candidates.
5. Despite number of representations, there was no proper reply, whereas a communication was sent, as if 20 candidates alone are eligible to get their certificates, and the remaining would be given certificates, within 6 months, which was also not complied with. The 4th opposite party, sent a communication dt.14.9.01, requesting the complainant(s), to join once again in the trade to get certificate, either completing the course, though they have completed the course already. By not issuing certificates, the complainants lost their opportunity to secure job, thereby there is a loss to the tune of Rs.3,20,000/-, which should be compensated by the opposite parties. In addition, the donation, and tuition fees collected are also liable to be returned, in addition to a sum of Rs.1 lakh, as compensation, for mental agony and torture. Thus, for the negligence and deficiency committed by the opposite parties, the complainant in CC.No.44/2002 is entitled to a sum of Rs.4,44,025/- and the complainant in CC.No.45/2002 is entitled to a sum of Rs.4,48,525/-. Thus, two independent complaints, have been filed before the District Forum, accusing the opposite parties.
6. The opposite parties, opposed both the complaints, on the following grounds:
The complainant is not a consumer, and the opposite parties are not service provider, and therefore, as such, both the applications are not maintainable, liable to be dismissed, in limine.
7. The opposite parties 1 to 3 are running the trust, in which the 4th opposite party is the principal. The opposite parties, never colleted any donation from the students. They have collected only a sum of Rs.1000/-, through the Students Cooperative Society, for which receipts were also issued, in order to benefit the students, by providing text books, and other accessories.
They have never collected any service charges, from the students, and in this view also, the complaints are not maintainable.
8. As undertaken by the opposite parties, without any deficiency, they have imparted education to the students, and there was no deficiency at all. It is incorrect to say, that the State Council for Vocational Training, had given permission to admit only 20 students, whereas, they have permitted to admit, four units, especially two units in electrician trade, consisting 20 students per unit. Therefore, the allegations, that the opposite parties have admitted the students, without affiliation or recognition is false.
9. The National Council for Vocational Training alone used to issue certificate, after the end of each academic year, as per the result declared. For the year 1996-98 also, students were admitted, as guided by the State Council for Vocational Training, allowed/ permitted to write exams, and the results were also declared. Unfortunately, for the complainants, certificates were not issued, resulting filing a Writ Petition, not only by the students, but also by the institution. The National Council for Vocational Training at Delhi, as well as State Council for Vocational Training, Chennai, including Joint Director of Employment and Training, having given permission to admit 40 students in the Electrician Trade, finally refused to issue the certificate, for which the opposite parties cannot be held responsible. For the mistake committed by the National Council for Vocational Training (NCVT), in not issuing the certificate, the complainants are not entitled to claim either the amounts said to have been paid by them or compensation for the alleged loss of earning. The other averments are also denied, praying for the dismissal of the complaints.
10. The District Forum, by its independent orders in O.P.No.44/2002 and 45/2002, analyzing the facts and circumstances of the case, as well as the documents, produced before it, came to the conclusion, that the opposite parties have committed deficiency of service, and the complainant(s), is entitled to be compensated, further concluding, that the complainants are consumers, and the opposite parties have provided service, where they have committed deficiency. Thus, concluding, refusing to issue directions, to issue electrician trade certificate, since that may amount to violating the order of the High Court, granted not only compensation, but also directed the opposite parties, to pay a sum of Rs.2 lakhs, as loss of income, in addition to refund of the amount also, paid by the complainant, as per the order dt.12.10.2006, which are under challenge, in these appeals.
11. Heard the learned counsels on either side, perused the written argument filed on the side of the complainant, lower court records, and also the order of the District Forum.
12. In the VOC Industrial Training Centre, which is controlled and administered by the opposite parties, the complainants in both the cases, were admitted, in electrician trade, on payment of necessary fees, for two years course, during the academic year 1996-98. Pursuant to the admission, attending the classes also, they sat for the examination and finally results were published, on 20.10.98, in which it was declared that both the complainants were successful. Admittedly, for the successful candidate, certificate of electrician trade would be issued, only by the Director of Training and Secretary to National Council for Vocational Training, Government of India, Delhi. In this case, for the successful candidates, though results were declared on 20.10.98, 20 certificates alone were issued by NCTV, withholding the issuance of certificate for others, including the complainants. Because of the non-issuance of the certificate, though the complainants have successfully came out in the examination, they were unable to join in the service/ job anywhere. Since the opposite parties have admitted them, in their institution, accusing them as if they have admitted more than the permitted intake, thereby committed deficiency, as said above, two complaints have been filed, claiming loss of income, damage etc. Though the said complaints were strongly opposed, they ended in success, resulting these two appeals.
13. The learned counsel for appellant would submit, that the opposite parties have not committed any deficiency, at any point of time, and for the non-issuance of the trade certificate, by NCVT, they cannot be held responsible, which was not properly constried by the District Forum. It is the further submission of the learned counsel for appellant, that as per the affiliation, and recognition, for the academic year 1996-98, they have admitted 40 students, but it was later not accepted by the authorities, on false grounds, for which they cannot be blamed and held responsible. A feeble attempt was also made to say, that they have not provided any service, and therefore giving education, will not come within the meaning of service, and similarly, the students also will not come within the meaning of consumer, thus, to some extent, the jurisdiction of the consumer fora was also questioned.
14. The learned counsel for respondent/ complainant, while opposing the above submissions, would submit, that the opposite parties though got affiliation, to admit or recognition to admit, only 20 students in electrician trade, for the year 1996-98, they have admitted more than the intake permitted, thereby they have not only committed deficiency in service, but also they have spoiled the carrier of the young students, for so many years, for which they should be held responsible.
15. As far as the jurisdiction of the Consumer Fora is concerned, before us no argument was advanced effectively. As held by the Apex Court, in Buddhist Mission Dental College & Hospital Vs. Bhupesh Kurna & Others, reported in I (2009) CPJ 25 (SC), and Guru Jambheshwar University of Science & Technology vs. Kamal Kumar Guleria & Another reported in I (2010) CPJ 265 NC, if it is made out, in the absence of affiliation, and recognition by the concerned authority, the educational institute have started admission, and admitted students, then that will be attracted, as deficiency in service. In that case, since the students would have lost, valuable academic years, affected students are also entitled to compensation, which cannot be disputed. Therefore, in this case, the main point, which falls for determination is, whether the opposite parties have admitted the students, during the academic year 1996-98, exceeding the intake, or against affiliation and recognition. If so, and if the complainant in both the cases, come under the category of excess admission, i.e., exceeding the permitted intake, then we would find no difficulty in concluding that the opposite parties have acted negligently in admitting the students, and have also committed deficiency in service, since admittedly, even after the students have completed the course, passed in the examination, certificates were not issued to them, thereby affecting their future.
16. On the other hand if it is proved, that the opposite parties have admitted the students, including the complainants, as per the recognition, not exceeding the permitted strength then we should conclude, they have not committed any negligence or deficiency in service. Admittedly, the trade certificate should be issued only by NCVT. For the reasons, best known to NCVT, interpreting the Government Orders, and guidelines erroneously, if they have committed any mistake, in refusing to issue certificate, we cannot hold the opposite parties responsible, that too when the opposite parties have taken all possible steps, to obtain certificate from NCVT, by providing necessary particulars also.
In that case, the deficiency must be on the part of the NCVT, and for that deficiency it may not be fair and legal on our part to award compensation, or award loss of income, against opposite parties, including refund of amount also, since admittedly they have conducted classes, and sent the students for examination etc. In this context, we have to see the admission procedure, and the affiliation given by the concerned authorities.
17. Number of documents, have been filed including the communications, passed between the opposite parties and NCVT, as well as the Regional Director of Employment and Training, Madurai Region, for our perusal. In view of the decision rendered by the Honble Division Bench, in this case on 30.4.2009 in Writ Appeal, which was not available to the District Forum, at the time of passing the order, and the District For a appears to have committed some error, which cannot be faulted. The Writ Petition filed by the opposite parties was dismissed, and challenged in W.A.No.1320, 1321/2007. Honble High Court, considering the notifications, and the explanations etc., has taken a decision, and therefore it is not necessary for us to discuss the same case again, which we have to follow as binding. Hence it is not incumbent on our part to discuss those documents, in detail, in order to ascertain, what was the intake permitted by the NCVT, i.e., admission of students for the academic year 1996-98, etc.. and the decision should be followed as such.
18. The complainant in FA.617/2006, by name Murugan, has filed a Writ in WP.No.12347/2000, on the file of High Court of Judicature at Madras, seeking direction against the NCVT, and others, to issue the National Trade Certificate in electrician course to him.
Similarly, the 4th opposite party herein viz. the Principal, also has filed Writ Petition, and both were taken together for hearing. The Honble High court, as per the order dt.21.2.2003, came to the conclusion, that the institute had admitted students, beyond approved strength, and this being the position, no mandamus could be issued, to issue certificate for the student Murugan, who was admitted in excess of the approved strength.
19. Aggrieved by the said order, the principal and Correspondent of VOC Industrial Training Institute, filed Writ Appeal, which was disposed by the Honble Division Bench on 30.4.2009, which alone gives guidance to us, to decide the case, whether the opposite parties have admitted the students in excess of the approved strength or not. As seen from the order made available to us, the opposite parties have admitted 40 students, for electrician trade course, for the year 1994-96, 1995-97 and 1996-98.
The students admitted in the year 1996-98 (both the complainants come in this year), in the electrician trade, 16 students have been issued certificate, and 23 students have not been issued certificates, which was under challenge in the Writ as well as in the Writ appeal.
Though on behalf of the NCVT, a stand was taken that affiliation was granted for two units of electrician trade, the admission shall be made in alternate years, that was not accepted by the Division Bench, as seen from paragraph 15 of the order, which reads :
It is not in dispute that any institute, which makes admission of students beyond the strength affiliated, cannot certainly get an order for permitting the excess students either to write the examination or to have the certificates issued to them. But, on the facts of the case, it is clear that when the order of 1993-1995, there is no stipulation that two units of students should be admitted in the admitted in the alternate year, while it is true that the duration of the course is two years. In such view of the matter, it is not possible to accept the contention of the learned Assistant Solicitor General that the resolution, which has been passed by the National Council for Vocational Training, is binding upon the appellant.
That may be true, if such resolution was the basis for granting affiliation to the appellant institute.
The resolution, which is relied upon by the learned Assistant Solicitor General, is of the year 1999, whereas approval was granted to the appellant/ institute in the year 1992-1994, and 1993-1995 and also thereafter Further, it is also the conclusion of the Honble Division Bench, that approval has been granted to the institute, in unequivocal terms for two units, without mentioning that it was for alternate years.
On the above basis, a conclusion was reached, which reads:
But, on the factual matrix stated above, when the second respondent, which is the authority empowered to grant affiliation has granted such affiliation without explaining about alternate year permission has been granted to admit two units of students, each unit, admittedly, consisting of 20 students, we are of the view that the appellant has not admitted more than 40 students, in any year, as it is seen from the list furnished by the second respondent himself. In fact, in the lit furnished by the second respondent, it is stated that for the year 1992-1994, 28 students were admitted by the appellant; for the year 1993-1995, 24 students were admitted; for the year 1994-96, 40 students were admitted; for the year 1995-1997, 36 students were admitted; and for the year 1996-98, 40 students were admitted. Therefore, it is clear that the appellant has only acted as per the condition of affiliation and has not admitted more than 40 students and it cannot be said that the admission has been made by the appellant/institute beyond the sanctioned strength and therefore, the same has to be held invalid.
Thus concluding, a mandamus has been issued, directing NCVT the 2nd respondent in the Writ Appeal, to issue certificates, to the students of the opposite party institution, which were withheld by them, within the period of 8 weeks. Thus, the stand taken by the opposite parties, that they have not admitted the students, in excess of the sanctioned strength in electrician trade, was finally accepted by the Honble High Court, on which basis, as informed to us, certificates were also issued .
20. It is also not the conclusion of the Honble High Court, that they are ratifying the excess admission, considering the welfare of the students, through permission was not granted, students were admitted in excess of the permitted strength.
On the other hand, it is the categorical conclusion that permission was granted to admit, students in two units, for the same academic year, totally 20 students (1996-98). This being the position, now settled, though the case had commenced elsewhere in the year 2000 or so, it cannot be said that the opposite parties have admitted the students/ complainant(s), in excess of the sanctioned strength, thereby to brand them, as if acted negligently, admitting the students, thereby deprived their future.
Unfortunately, for the reasons best known to the NCVT, they have refused to issue certificate, being the competent authority, despite, explanation were given by the opposite parties. If at all for this act, NCVT can be blamed, which is not a party before us, and the opposite parties cannot be blamed, as if they have committed deficiency in service, though the career of the students, was affected to some extent. By the alleged deficient act of the opposite party, or by the negligent act of the opposite parties, in our considered opinion, the career of the complainant(s), has not been affected, and therefore it may not be just and proper, for us to direct the opposite parties, to refund the amount, or pay compensation, either for mental agony or for loss of income.
21. The District Forum, in our considered opinion, exceeded its jurisdiction, even on merit awarding Rs.2 lakhs, for the loss of income, which is not within the jurisdiction of the District Forum, as held by the Apex Court in Citi Bank N.A., Vs. Geekay Agropack (P) Ltd., and another reported in 2008 CTJ 561 (Supreme Court (CP), where it is ruled The consumer for a can award compensation, only for the deficiency in service of the trader or service provider, for the recovery of anyother loss, it is open to the consumer to file a civil suit. In view of this direction of Apex Court, loss of income cannot be ascertained and granted by consumer for a, whereas it can pass an order of compensation, only for deficiency in service. Here in view of our finding, that there was no deficiency on the part of the opposite parties, question of granting compensation for the deficiency or under anyother ground also, will not arise for consideration.
22. The learned counsel for complainant would contend, that the career of the student, were spoiled for no fault of their own, and taking into account the plight of the students, they should be awarded compensation. This could be accepted, if the opposite parties have committed any deficiency or failed in their duty, to agitate and take appropriate step diligently, then and there. As seen from the records, as and when NCVT, refused to issue trade certificate, they have agitated before it, and on their failure to concede their genuine request, they filed Writ, though failed, appealed and succeeded, thereby showing their genuine effort taken in this case, which ultimately ended in their favour, confirming their stand viz. they have not exceeded approved strength, while admitting the students for the year 1996-98. The hardships suffered by the students, was due to inherent defect in the justice delivering system, for which there could be no remedy, that too under the Consumer Protection Act. The District Forum, considering the dismissal of the Writ Petition alone, had taken the stand, as if the opposite parties have admitted the student in excess of the approved strength, which is not available at present because of the said order, had been set aside by the appeal. Except, the alleged excess admission, as if students were admitted against the permission, no other deficiency was alleged, against opposite parties, warranting to grant compensation, which was not available at any point of time. Thus under the change of circumstances also, which was the stand of opposite parties from inception and for the reasons recorded by the Honble High Court, we are constrained to hold, that there was no deficiency of any kind on the part of the opposite parties, and in this view, both the appeals deserves to be accepted.
23. In the result, both the appeals are allowed, setting aside the order of the District Forum in OP.No.44/2002 and 45/2002 dt.12.10.2006, and the complaints are dismissed. Under the facts and circumstances of the case, there will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipts, made by way of mandatory deposit, to the appellants, duly discharged.
S. SAMBANDAM M. THANIKACHALAM MEMBER II PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/Education