State Consumer Disputes Redressal Commission
Ms.Nikita Vyankatesh Katkar vs Institute Of Chartered Accountants Of ... on 16 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR Complaint Case No. CC/14/46 1. MS.NIKITA VYANKATESH KATKAR R/O.231,SURENDRA NAGAR,NAGPUR NAGPUR ...........Complainant(s) Versus 1. INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA ICAI BHAWAN,INDRAPRASTHA MARG,NEW DELHI DELHI 2. THE VICE CHANCELLOR BHARTHIAR UNIVERCITY,STATE UNIVERCITY,COIMBATORE COIMBATORE TAMIL NADU 3. THE DIRECTOR,SCHOOL OF DISTANCE EDUCATION BHARTHIAR UNIVERCITY,COIMBATORE TAMIL NADU ............Opp.Party(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Complainant: For the Opp. Party: Dated : 16 Jan 2018 Final Order / Judgement (Delivered on 16/01/2018) PER SHRI B.A. SHAIKH, HON'BLE PRESIDING MEMBER.
1. This complaint is filed under section 12 of the Consumer Protection Act, 1986.
2. The case of the complainant as set out by her in this complaint in brief is as under:-
The opposite party (for short O.P.) No. 1 is the President of the Institute called as Chartered Accountants of India , New Delhi and O.P. No. 2 is the Vice Chancellor of Bharthiar University, State University, Coimbatore (Tamil Nadu). The O.P. No. 3 is the Director of School of Distance Education , Bharthiar University. The complainant applied to the O.P.No. 3 for her admission to B.Com. course, on 23/01/2009. She also submitted a Demand Draft of Rs. 100/- for admission fee. She was granted provisional admission by O.P.No. 3 vide letter dated 04/03/2009. She also paid course fee of Rs. 15,000/- as demanded by the O.P.No. 3. The O.P.No. 3 then assured to send the course material and the same was sent after a few month to the complainant. Thereafter she applied in the prescribed form for appearing final examination. She also paid the examination fee of Rs. 1500/- to the O.P. No. 3 vide demand draft dated 15/03/2010. Hall Ticket for examination to be held in May-2010 with Enrolment No. U9CBC was issued by the O.P.No. 3. The examination was held as scheduled and results were declared in August-2010. A provisional degree certificate was issued to the complainant by the O.P.No. 3 after a period of about two years after conduction of the examination and that too after great pursuation made by the complainant by way of phone calls. However, the O.P. No. 3 did not provide the consolidated mark sheet of B.Com course. Hence, provisional degree certificate is meaningless and does not serve any purpose. Therefore, complainant served notice to the O.P.Nos. 1 to 3. But they did not give response to the said notice. The complainant also wrote various letters to the O.P.Nos. 1 to 3 for rectifying the defects by supplying the consolidated Mark Sheet of B.Com. However, his requests were not considered by them. Hence, the complainant filed the present complaint against the O.P.Nos. 1 to 3 making following requests.
i. Direct the O.P.No. 3 to supply complainant the Degree Certificate together with the consolidated mark sheet .
ii. Direct the O.P. Nos. 2 to 3 to compensate the complainant by paying her compensation of Rs. 50,00,000/- or such other sum as this Commission deems just and expedient in the circumstances of the case as also in the interest of justice.
iii. Award costs of the complainant.
3. This Commission issued notices of this complaint to the O.P. Nos. 1 to 3. Those notices were sent to the O.P. Nos. 1 to 3 by Registered Post A.D. The notices issued to the O.P. Nos. 2&3 were duly served as seen from acknowledgement received duly signed by the O.P. Nos. 2&3. But they failed to appear this Commission. Hence, this Commission proceeded exparte against them as per order dated 30/06/2015.
4. The O.P.No. 1 appeared before this Commission through its advocate and filed reply/written version and thereby resisted the complaint.
The O.P. No. 1 raised preliminary objection in brief to effect that as no relief has been sought against the O.P. No. 1, the complaint is not maintainable against it. Moreover, whenever an examination is conducted in discharge of a statutory function, no services are offered to any candidate or student. Nor does any student who participate in any such examination, hire or avail of a service from a Board for a consideration. The examination fee paid is not consideration for availment of any service as contemplated under Consumer Protection Act. But it is privilege of allowing for participating in the process of examination.
The O.P.No. 1 relied on the decision of Hon'ble Supreme Court in support of above submission in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha, reported in (2009) 8 SCC 483. The other contentions of the O.P. No. 1 in brief are as under.
The consolidated mark sheet is required to be issued by Bharthiar University. The O.P. No. 1 has written letters to the said University from time to time to issue consolidated mark sheet. Thus entire responsibility of ensuring that the complainant has received the Degree Certificate together with the consolidated Mark Sheet was solely that of the University. Hence, the addition of the answering O.P in this complaint is in itself wrong, frivolous, vexatious and unnecessary. Thus the O.P. No. 1 prayed that the complaint against it may be dismissed.
5. The complainant in support of present complaint filed copies of following documents.
Doc. No. Particulars of Documents Date
1. Programme Structure & Curriculum of B.Com., B.B.A., M.Com., M.B.A. of the Institute of Chartered Accountants of India and Bharathiar University Joint Education Progreame
2. Complainant's letter to Opposite Party No. 3 23/01/2009
3. Complainant's application to Opposite Party No. 3 for Admission in B.Com.
04/02/2009
4. Letter from Opposite Party No. 3 to complainant.
04/03/2009
5.
Letter from complainant to Opposite Party No. 3 with receipts No.26658 No. 27470 No. 26658 28/08/2009 28/08/2009 07/09/2009 18/06/2009 6. Letter from Complainant to Opposite Party No. 3 with receipts No. 26660 No. 27389 28/08/2009 18/06/2009 17/07/2009 7. Letter from Opposite Party No.1 to complainant along with other . 09/06/2009 8.
Complainant's application for examination of BU-ICAI with Demand Draft of Rs. 1500/-
05/03/2010 04/03/2010
9. Hall Ticket issued by the Opposite Party No. 3 to Complainant , for B.Com., Degree Examination of May-2010 May-2010
10. Letter from Opposite Party No. 1 to the Complainant and others 17/03/2011
11. Statement of Mark of Bu-ICAI of the complainant, of three subjects of B.Com.
12. Letter from Opposite Party No. 3 to the complainant and others.
15/05/2012
13. Provisional Degree Certificate of Complainant 31/08/2012
14. Letter sent by Opposite Party No. 3 to the complainant & others 06/09/2012
15. Complainant's legal notice to opponents Nos. 1,2&3 The complainant also filed her affidavit by way of evidence on 20/07/2016.
6. The O.P. No. 1 filed copies of following documents in support of its reply filed on record.
Sr. No. Particulars Date of document
1. Communication pointing out details of problems of students registered under joint BU-ICAI program 7th May, 2015
2. Communication issued by ICAI to BU 23rd September 2015
3. Communication issued by ICAI to BU 18th August, 2015
4. Copy of communication addressed by ICAI as reminder No.3 28th October, 2013
5. Copy of communication addressed by ICAI 15th July, 2014
6. Copy of communication addressed by ICAI 14th August, 2014
7. Copy of communication addressed by ICAI 21 November,2014
8. Copy of communication addressed by ICAI as a reminder 26th August,2013
9. Copy of communication addressed by ICAI as reminder No.4 6th May, 2014.
10. Copy of Communication addressed by ICAI with regards to pending matters.
22nd July, 2013.
11. Copy of communication addressed by ICAI with regards to non compliance of terms of MoU 22nd April, 2015
12. Copy of the MoU between ICAI and BU 2nd December,2011 The O.P. No. 1 had also filed its affidavit by way of evidence in support of its aforesaid defence. Advocate of the O.P. No. 1 also filed written notes of argument.
7. None appeared for the complainant with effect from 20/04/2017 till this date though the complaint has been adjourned six times from 20/04/2017 till this date. The complainant also has not filed written notes of arguments though several chances have been given to her till this date for filing the same. We thus find that the complainant is not interested in filing of the written notes of argument as she has not appeared before this Commission from 20/04/2017 till this date.
8. We have today heard Advocate Mr. Deoul Pathak appearing for the O.P. No. 1. We have also perused the entire record of the complaint. The learned Advocate of the O.P. No. 1 reiterated in his argument the case of the O.P No. 1 as set out in the reply filed to the complaint. He relied on the decision in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha , of the Hon'ble Supreme Court in Civil Appeal No. 3911/2003 decided on 04/09/2009 and submitted that the complaint is not maintainable as there is no relationship of consumer and service provider in between the complainant and O.P. No. 1. He also submitted that the O.P. No. 1 tried its level best to see that the complainant has received the degree certificate along with consolidated mark sheet and made various communication for that purpose to the O.P. Nos. 2&3. Therefore, the complainant has no right to claim any amount from the O.P No. 1.
9. We find that facts and circumstances of the present case are identical to those of facts and circumstances of the aforesaid case of Bihar School Examination Board Vs. Suresh Prasad Sinha in which the Hon'ble Supreme Court has made a following observation which are relevant for deciding the present complaint.
"The Board is a statutory authority established under the Bihar School Examination Board Act, 1952. The furnction of the Board is to conduct school examination. This statutory function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non commercial function. It is not possible to divide this function as partly statutory and partly administrative. When the examination Board conducts an examination in discharge of its statutory function, it does not offer its "services" to any candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for consideration. On the other hand , a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis a vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. The Hon'ble Supreme Court concluded in para No. 19 of the said judgment that for the reasons mentioned above , we are of the view that the Bihar School Examination Board is not rendering any service as defined under the Consumer Protection Act, 1986. The appeal is therefore allowed. The impugned orders of the Consumer Fora were set aside."
10. In the instant case also the O.P. No. 2 is the Vice Chancellor of Bharthiar University , State University, Coimbatore and O.P. No. 3 is the Director of School of Distance Education, Bharthiar University, Coimbatore. As per submission made by the O.P. No.1 in para No. 17 of its reply, section 4 of the Bharathiar University Act, 1981 (Act 1 of 1982) provides for Objects and powers of the University. Thus as per section 4, powers have been given to the Bharathiar University to institute degrees, titles, diplomas and other academic distinctions and to hold examinations and to confer degree etc. Thus the O.P. Nos. 2&3 are established as per the provision of Bharathiar University Act, 1981 and they are conducting examinations and confer degree and certificate as per provisions of the said Act. Thus they are performing their statutory duties as per said Act. We therefore, hold that when the O. P. Nos. 2&3 are conducting examination in discharge of their statutory function , they have not offered service to any of the candidate who are taking admission in their any course and appearing for the examination. Therefore, applying the aforesaid decision of the Hon'ble Supreme Court to the present case, we hold that as the O.P. Nos. 2&3 have not rendered any service to the complainant as contemplated under the Consumer Protection Act, the present complaint filed for the aforesaid relief against them is not maintainable. Moreover, no specific relief is sought as above against the O.P. No. 1. It has no power to provide degree certificate. Therefore, we hold that the complaint is also not maintainable against the O.P. No. 1, under the Consumer Protection Act.
11. We therefore, hold that as the complaint is not maintainable against the O.P. Nos.1, 2 & 3 it deserves to be dismissed without entering into other aspects of the complaint.
ORDER i. The complaint is dismissed. ii. The complainant is at liberty to approach the appropriate authority or Court for seeking redressal of her grievance, in accordance with law. iii. No order as to cost. iv. Copy of order be furnished to both the parties, free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER