State Consumer Disputes Redressal Commission
1. The Swami Vivekanand Institute Of ... vs 1. Rohit Goyal on 22 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 332 of 2013 Date of Institution : 02.08.2013 Date of Decision : 22/10/2013 1. The Swami Vivekanand Institute of Engineering and Technology, Chandigarh-Patiala Highway, Ram Nagar (Near Banur) (Punjab) through its Chairman and Corporate Office at S.C.O 51-52, Sector 20-C, Chandigarh. 2. Ashok Garg, Director Swami Vivekanand Institute of Engineering and Technology, Chandigarh-Patiala Highway, Ram Nagar (Near Banur) (Punjab) Appellants/Opposite Parties No.1 and 2 V e r s u s 1. Rohit Goyal son of Vinod Kumar Goyal, R/o B-1, 331/1 Jawahar Nagar, Gali No.6, Goniana Mandi, Distt. Bathinda (Punjab). ....Respondent/complainant 2. All India Council for Technical Education (A statutory body of Government of India) 7th Floor, Chanderlok Building, Janpath, New Delhi 110001, through its Secretary. ....Proforma Respondent/Opposite Party No.3 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Vikas Goyal, Advocate for the appellants.
Sh.Deepak Aggarwal, Advocate for respondent no.1.
Service of respondent no.2 dispensed with vide order dated 07.08.2013.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 27.02.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant [(now respondent) (hereinafter to be referred as respondent no.1/complainant)] and directed Opposite Parties No.1 and 2 (now the appellants), as under:-
In view of the above discussion, the present complaint is allowed and opposite parties No.1 & 2 are directed as under :-
i) to refund the amount of Rs.46,980/- (47980 1000) to the complainant
ii) to pay Rs.15,000/- as compensation
iii) to pay Rs.10,000/- as litigation expenses.
This order be complied with by the opposite parties No.1 & 2, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) & (ii) above shall carry interest @18% per annum from the date of filing of this complaint till actual payment besides payment of litigation costs.
2. The complaint qua Proforma Opposite Party (now Proforma respondent in the appeal) was dismissed with no order as to costs, by the District Forum.
3. The facts, in brief, are that the complainant, after passing his three years Diploma Course, from the Govt. Polytechnic College, Bathinda, took admission in the Swami Vivekanand Institute of Engineering and Technology, Opposite Party No.1, and deposited a sum of Rs.2,000/-, on account of uniform fee, vide receipt no.897 dated 06.09.2011. The complainant took admission, in the 3rd semester, in the Branch of Mechanical Engineering (LEET entry programme), long before the actual start date of academic Session 2011-2012. It was stated that the complainant further deposited a sum of Rs.47,980/-, for the said Course, for which only an informal receipt Annexure C-3 was issued, by Opposite Parties No.1 and 2. It was further stated that the complainant also deposited a sum of Rs.50,000/-, on 12.09.2011, on account of Hostel fees, vide receipt Annexure C-4. It was further stated that the classes, in Opposite Party No.1 Institute, commenced on 13.09.2011, and the complainant attended the same upto 27.09.2011 only. Subsequently, the complainant got admission, in the Giani Zail Singh College of Engineering and Technology, Bathinda, where he was required to deposit a sum of Rs.47,825/-. Accordingly, the complainant, alongwith his father, approached Opposite Parties No.1 and 2, for the refund of entire fees. Opposite Parties No.1 and 2, initially, refused to refund the fees, but, later on, refunded a sum of Rs.50,000/- only. It was further stated that the act of Opposite Parties No.1 and 2, in not refunding the amount of Rs.49,980/-, was contrary to the Guidelines of All India Council for Technical Education (AICTE), which amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing Opposite Parties No.1 and 2, to refund the amount of Rs.49,980/- alongwith interest @ 18% per annum, from the dates of deposits, till realization; pay compensation, to the tune of Rs.1 lac, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.21,000/-.
4. Notice sent for the service of Opposite party No.1 was received back, with the report of refusal. Accordingly, Opposite Party No.1 was proceeded against exparte vide order dated 11.09.2012.
5. Opposite Party No.2, in his written version, pleaded that the District Forum had no territorial Jurisdiction, to entertain and decide the complaint, as the Counseling of the complainant, in respect of the Course, in question, was conducted, in the premises of Opposite Party No.1 Institute, at Banur, Punjab, and fees was deposited, in the office of the said Institute, at Patiala, as also receipts Annexure C-2 and C4, also bear the address of Swami Vivekanand Institute of Engineering and Technology, Zirakpur-Patiala Highway, Ram Nagar (Near Banur). It was further pleaded that the District Forum had no Jurisdiction, to deal with the subject matter, as it did not constitute Consumer Dispute, as held by the Apex Court. It was admitted that the complainant took admission, in Opposite Party No.1 Institute, and deposited a sum of Rs.2,000/-, 47,980/- and 50,000/-. It was also admitted that the complainant attended classes upto 27.09.2011. It was stated that Opposite Parties No.1 and 2 were not bound to refund the full fees, alongwith interest. It was further stated that the complainant was entitled to the refund of fees, as per the Rules and Regulations, in respect of the same. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor he indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. Proforma Opposite Party (hereinafter to be referred as Proforma Opposite Party/Opposite Party No.3/respondent no.2), in its short written version, stated that the complainant never applied to it, for the refund of fees, in question. It was further stated that Proforma Opposite Party/Opposite Party No.3/ respondent no.2, had issued a Public Notification, regarding refund of fees. It was further stated that since the matter pertained to the refund of fees, between the complainant and Opposite Parties No.1 and 2, Proforma Opposite Party/Opposite Party No.3/respondent no.2 had no role to play therein. It was further stated that neither there was any deficiency, in rendering service, on the part of Proforma Opposite Party/Opposite Party No.3/respondent no.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. Subsequently, none appeared, on behalf of Proforma Opposite Party/Opposite Party No.3/ respondent no.2, as a result whereof, it was also proceeded against exparte, on 31.10.2012.
8. Though separate written replies were filed on behalf of Opposite Party No.2 and Proforma Opposite Party/Opposite Party No.3, yet, evidence was not filed on their behalf, in support of the same (written replies).
9. The complainant, led evidence, in support of his case.
10. After hearing the Counsel for the complainant, Opposite Party No.2 and, on going through the evidence of the complainant, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
11. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No.1 and 2.
12. Service of Proforma respondent/ respondent no.2/Opposite Party No.3/, was dispensed with, as the complaint against it was dismissed, with no order as to costs, by the District Forum.
13. We have heard the Counsel for the appellants/Opposite Parties No.1 and 2, respondent no.1 /complainant, and, have gone through the evidence, and record of the case, carefully.
14. The Counsel for the appellants/Opposite Parties No.1 and 2, submitted that, since no cause of action accrued to the complainant, within the territorial Jurisdiction of the District Forum, at Chandigarh, it had no Jurisdiction, to entertain and decide the complaint. He further submitted that specific objection, with regard to the territorial Jurisdiction was taken, in the written version, filed by Opposite Party No.2, but the same was neither touched, nor discussed by the District Forum, in the impugned Judgment. He further submitted that since the District Forum had no territorial Jurisdiction, to entertain and decide the complaint, it was liable to be dismissed, on that ground alone. He further submitted that the District Forum, illegally, usurped the territorial Jurisdiction, which was not vested in it. He further submitted that the order of the District Forum, being illegal, and invalid, is liable to be set aside.
15. On the other hand, the Counsel for respondent no.1/complainant, submitted that Opposite Party No.2, only filed written statement, but no evidence was furnished by him. He further submitted that the Branch Office of Opposite Party No.1, was located at Chandigarh, and the payment of fees, was also made by the complainant, at Chandigarh. He further submitted that, as such, the District Forum had territorial Jurisdiction, to entertain and decide the complaint.
16. The core question, that falls for consideration, is, as to whether, the District Forum, at Chandigarh, had territorial Jurisdiction, to entertain and decide the complaint or not. For attracting the territorial Jurisdiction of a particular District Forum, the complainant was required to prove that a part of cause of action, arose to him, there. Annexure C-2 is a copy of the receipt dated 06.09.2011, vide which the complainant deposited a sum of Rs.2,000/-, with Opposite Parties No.1 and 2. The address written on this receipt is Swami Vivekanand Institute of Engineering and Technology, Zirakpur-Patiala Highway, Ram Nagar (Near Banur). There is another receipt, copy whereof is Annexure C-3, vide which a sum of Rs.47,980/-, was received by Opposite Parties No.1 and 2, from the complainant. There is nothing, in copy of this receipt, that the same was issued at Chandigarh. Annexure C-4 is a copy of another receipt, evidencing the receipt of Rs.50,000/-, from the complainant, as fee, by Opposite Party No.1. The address written on this receipt is the same, as is written on receipt Annexure C-2. The complainant, however, placed reliance on photocopy of the brochure Annexure C-5, of Opposite Party No.1, wherein, its Corporate Office is shown to be located at SCO No.51-52, Sector 20-C, Chandigarh. It is not known, as to which year, this brochure related to. The Institute, in which the complainant took admission, is situated on Zirakpur-Patiala Highway, Ram Nagar, Near Banur, in the State of Punjab. The fees, aforesaid, was deposited, in the Institute of Opposite Party No.1 either at Banur, or in its Office at Patiala, in the State of Punjab. The classes were attended by the complainant, in the said Institute at Banur, District Patiala, State of Punjab. No cause of action, whatsoever, thus, arose to the complainant, within the territorial Jurisdiction of the District Forum, at Chandigarh. As such, the District Forum, at Chandigarh, could not entertain and decide the complaint. While interpreting the provisions of Section 17(2)(b) of the Act, which are para-materia to the provisions of Section11(2)(b) of the Act, in Sonic Surgical Vs National Insurance Company Ltd. IV(2009) CPJ 40(SC), the Apex Court held as under ;
4. In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression cause of action means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus no part of the cause of action arose in Chandigarh.
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8. Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned Counsel for the appellant submitted that the respondent-Insurance Company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned Counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the Insurance Company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench-hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity [vide G.P Singhs Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79].
17. The perusal of the facts of Sonic Surgicals case (supra), clearly goes to reveal that the Policy was taken by the complainant at Ambala; the godown, in respect of which, the Policy was taken, was situated at Ambala, whereas the complaint was filed before this Commission, at Chandigarh. Under these circumstances, it was held that since no cause of action arose, within the territorial Jurisdiction of this Commission, at Chandigarh, except that the Opposite Party had the Branch Office there, it had no territorial Jurisdiction to entertain and decide the complaint. In Sonic Surgicals case (supra), before the Honble Supreme Court, an argument was advanced by the Counsel for the appellant/complainant, that since the Branch Office of the Insurance Company was situated at Chandigarh, even if, no other cause of action, arose to the complainant, within the territorial Jurisdiction of Chandigarh, the State Consumer Disputes Redressal Commission, at Chandigarh, had Jurisdiction to entertain and decide the complaint. That argument of the Counsel for the appellant/complainant therein, was rejected by the Honble Supreme Court, in the manner, referred to above. The District Forum, was, thus, wrong in usurping the territorial Jurisdiction, which did not vest in it, and deciding the complaint, on merits. The order of the District Forum, thus, being illegal, is liable to be set aside.
18. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside.
19. The complaint, in original, is ordered to be returned to respondent no.1/complainant, alongwith the documents attached therewith, by the District Forum, after retaining the attested to be true photocopies of the same, with a liberty, to file the same, before the appropriate District Consumer Disputes Redressal Forum, having territorial Jurisdiction, to entertain and decide it (complaint).
20. Certified copies of this order, be sent to the parties, free of charge.
21. The appeal file, be consigned to Record Room, after completion.
Pronounced.
October 22, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg STATE COMMISSION (First Appeal No. 332 of 2013) Argued by: Sh. Vikas Goyal, Advocate for the applicants/ appellants.
Sh.Deepak Aggarwal, Advocate for respondent no.1.
Service of respondent no.2 dispensed with vide order dated 07.08.2013.
Dated the 22nd day of October 2013 ORDER Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 115 days (as per the office report 95 days), has been filed by the applicants/appellants, stating therein that copy of the impugned order dated 27.02.2013, free-of-charge, was never received from the office of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be referred as District Forum only). It was further stated that the applicants/appellants/Opposite Parties No.1 and 2, came to know, when the notice, in the Execution Application, was received by them, on 25.07.2013, for complying with the order dated 27.02.2013. It was further stated that, on getting this information, on the same day, the applicants/appellants/Opposite Parties No.1 and 2, applied for certified copy of the order dated 27.02.2013, which was prepared on 26.07.2013 and received on the same day. It was further stated that the applicants/appellants/Opposite Parties No.1 and 2, contacted the concerned Official of the District Forum, who sent copy of the order impugned, to the parties, and then they came to know that copy of the order impugned sent at the address of the applicants/ appellants, through Process Server was received back, with the report that no Institute existed at the address given. It was further stated that, thereafter, the District Forum, sent copy of the order impugned, to the applicants/appellants, through ordinary post, which was not received back, with any report. It was further stated that the applicants/ appellants/Opposite Parties No.1 and 2, had maintained a register, at the gate of their premises, and the gatekeeper recorded the details therein, in respect of each and every letter received but there was no entry of the said order dated 27.02.2013, having been received by them (applicants/appellants/ Opposite Parties No.1 and 2). It was further stated that, as such, the delay was neither intentional nor deliberate, but on account of the reasons aforesaid. Accordingly, the prayer, referred to above, was made.
2. Reply to the said application was filed, wherein, it was stated by respondent no.1, that the applicants/appellants/Opposite Parties No.1 and 2, were having full knowledge, with regard to the order passed by the District Forum, on 27.02.2013, yet, they did not file the appeal, in time. It was further stated that Opposite Party No.1, was duly served, on 01.08.2012, through Process Server, in the complaint. It was further stated that Opposite Party No.2 was also duly served, who put in appearance, and filed written statement. It was further stated that, as such, Opposite Parties No.1 and 2, had full knowledge, with regard to the passing of order dated 27.02.2013, but intentionally and deliberately filed the appeal, after a long delay of 115 days. It was further stated that, no sufficient cause, was constituted, for condonation of delay.
3. The Counsel for the applicants/appellants/ Opposite Parties No.1 and 2 and respondent no.1/complainant were heard, and the record of the case was also gone through.
4. It is evident, from the record, that summons sent for service of Opposite Party No.1, in the complaint, were received with the report of refusal, and it was proceeded exparte on 11.09.2012, whereas, Mr. Vikas Goyal, Advocate, put in appearance, on behalf of Opposite Party No.2/applicant No.2/appellant No.2, and filed reply, but no evidence was furnished. Ultimately, on 27.02.2013, the complaint was decided. On that date, as per the order sheet, none on behalf of the parties, was present. As per the provisions of Regulation 21 of the Consumer Protection Regulations, 2005, a certified copy of the order impugned was required to be sent to each of the parties, free-of-charge. Similar provision exists in Rule 4(10) of the Chandigarh Consumer Protection Rules, 1987. As per the report of District Forum-II, certified copy of the order dated 27.02.2013, free-of-charge, was sent to Opposite Parties No.1 and 2, through Process Server, but the same was received back with the report no such Institute was in existence, at the address given. It was further reported by District Forum-II, that certified copy of the order dated 27.02.2013, free-of-charge, was also sent to Opposite Party No.1, on 28.03.2013, through ordinary post, but the same was not received back, with any report. It was further reported by District Forum-II, that free-of-charge copy of the order dated 27.02.2013, was sent to Opposite Party No.2/applicant no.2, through ordinary post, but the same was not received back, with any report. Under these circumstances, it could be definitely said that free-of-charge copy of the order impugned, was not supplied to the applicants/ appellants/Opposite Parties No.1 and 2, at any point of time earlier to 26.07.2013. The period of limitation was to start running, from the date of communication of the free-of-charge certified copy of the order dated 27.02.2013, to Opposite Parties No.1 and 2/ applicants/appellants. The version set up by the applicants/appellants, in the application, aforesaid, that it was on 25.07.2013 that they came to know of the passing of the order dated 27.02.2013, when they were served, in the Execution Application, filed by respondent no.1/complainant, and, immediately, thereafter, they applied for certified copy of the order, which was supplied to them free-of-charge on 26.07.2013, is correct. This version of the applicants/appellants is duly supported by the affidavit of Shri. Ashok Kumar, their President. The appeal was, ultimately, filed on 02.08.2013. If the period of limitation is counted from the date of receipt of free-of-charge certified copy of the order impugned, on 26.07.2013, by Opposite Parties No.1 and 2/applicants/appellants, then the same could be said to be well within time. It appears that only by way of precaution, the instant application, was filed by the applicants/appellants, for condonation of delay of 115 days, as the office made a report that there was delay of 95 days, in filing the appeal. There was no delay, in filing the appeal, in view of the facts and circumstances of the case, discussed above. The application for condonation of delay of 115 days, need not have been filed by the applicants/appellants, yet, by way of a precautionary measure, they filed the same. The appeal having been filed on 02.08.2013, being well within the period of limitation, from the date of receipt of free-of-charge certified copy of the order on 26.07.2013, the application is disposed of, as having been rendered infructuous.
5. Admitted.
6. Be registered.
7. Arguments, in the main appeal have already been heard.
8. Vide our detailed order of the even date, recorded separately, the appeal has been accepted, with no order as to costs. The order of the District Forum is set aside.
9. The complaint, in original, has been ordered to be returned to respondent no.1/complainant, alongwith the documents attached therewith, after retaining the attested to be true photocopies of the same, with a liberty, to file the same, before the appropriate District Consumer Disputes Redressal Forum, having territorial Jurisdiction, to entertain and decide the same.
10. Certified copies of the order be sent to to the parties, free-of-cost.
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(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Rg