State Consumer Disputes Redressal Commission
Anil Parihar, Director, C.B. Raman ... vs Mayank Kumar Mishra on 14 October, 2022
Appeal No. Sh. Anil Parihar and Ors. 14.10.2022
85 of 2015 Vs.
Sh. Mayank Kumar Mishra
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 19.05.2015
Date of final hearing: 13.10.2022
Date of Pronouncement: 14.10.2022
First Appeal No. 85 / 2015
1. Sh. Anil Parihar
Director
C.B. Raman Institute of Engineering and Technology
Padampur Sukhro Kotdwar, District Pauri Garhwal, Uttarakhand
2. Smt. Mukti Parihar
Assistant Director
C.B. Raman Institute of Engineering and Technology
Padampur Sukhro Kotdwar, District Pauri Garhwal, Uttarakhand
3. Maa Saraswati Welfare Education Society
Through Director of C.B. Raman Institute of Engineering and
Technology, Padampur Sukhro Kotdwar,
District Pauri Garhwal, Uttarakhand
4. Smt. Pratibha Tomar
D/o Sh. Lakhan Singh Badori, Bhopal M.P.
Through Authorised Person Sh. Anil Parihar, Secretary
Maa Saraswati Welfare Education Society
Padampur Sukhro Kotdwar, District Pauri Garhwal, Uttarakhand
5. Smt. Shobha Tomar
D/o Sh. Balwant Singh Chauman
Through Authorised Person Sh. Anil Parihar, Secretary
Maa Saraswati Welfare Education Society
Padampur Sukhro Kotdwar, District Pauri Garhwal, Uttarakhand
6. Sh. Vineet Badoria
S/o Sh. S.P.S. Badoria
Through Authorised Person Sh. Anil Parihar, Secretary
Maa Saraswati Welfare Education Society
Padampur Sukhro Kotdwar,
District Pauri Garhwal, Uttarakhand
1
Appeal No. Sh. Anil Parihar and Ors. 14.10.2022
85 of 2015 Vs.
Sh. Mayank Kumar Mishra
7. Ms.Asha Tomar
D/o Sh. Tejpratap Singh
Through Authorised Person Sh. Anil Parihar, Secretary
Maa Saraswati Welfare Education Society
Padampur Sukhro Kotdwar,
District Pauri Garhwal, Uttarakhand
8. Sh. Dinesh Nayar
S/o Sh. Sobhan Nayar
Through Authorised Person Sh. Anil Parihar, Secretary
Maa Saraswati Welfare Education Society
Padampur Sukhro Kotdwar,
District Pauri Garhwal, Uttarakhand
(Through: Sh. Prateek Handa, Advocate)
.....Appellants
VERSUS
Sh. Mayank Kumar Mishra S/o Sh. Ganga Dayal Mishra
R/o Village Mansoor Nagar
P.S. Pihani, District Hardoi, Uttar Pradesh
None for Respondent
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of Consumer Protection Act, 1986 has been directed against the judgment and order dated 17.04.2015 passed by the District Consumer Disputes Redressal Forum, Pauri Garhwal (hereinafter to be referred as the District Commission) in consumer complaint No. 20 of 2013 styled as Sh. Mayank Kumar Mishra Vs. Sh. Anil Parihar and Ors., wherein and whereby the consumer complaint was allowed by the District Commission.2
Appeal No. Sh. Anil Parihar and Ors. 14.10.2022 85 of 2015 Vs. Sh. Mayank Kumar Mishra
2. The facts giving rise to the appeal in hand, in brief, are as such that in the complaint, the complainant sought refund of Rs. 63,500/- paid by the complainant for perusing the course of Diploma in Civil Engineering. As per the complaint, the complainant had joined the two year Civil Engineering Diploma Course with the Institute of Civil Engineering (India) on 03.08.2011. The information given at the time of admission was found incorrect / false, therefore, the complainant left the course in the year 2013 (second year). The complainant also came to know that the Diploma provided by the Institute of Civil Engineering (India) is not valid for competitive exams and, therefore, he left the course in the middle of the course and filed the complaint before the District Commission, Pauri Garhwal for the refund of entire fees.
3. In the written statement, the opposite party Nos. 1 & 2 has contended that the flanged allegations of fraud and mis-representation upon the answering opposite parties, which are of criminal in nature and does not come within the scope of Consumer Protection Act, 1986. It is also averred that there is no privity of contract between the C.V. Raman Institute and the complainant as he entered into the courses offered by the ICE (I) and filed up form of the ICE (I) only. The C.V. Raman Institute is only a link between the students and the ICE (I) whose role is only limited to provide information about the courses offered by the ICE (I) and thereafter, enrolled the students in different course of the ICE (I), deposit the courses fees of the students to the ICE (I) immediately. After receiving it and also the mark-sheet / Diploma certificate is also issued by the ICE (I). It is also averred that when the complainant observed that he was about to fail in the examinations and could not complete his course, he started pressurizing the officials and opposite parties to give him some undue favour to him in passing the exams. When the opposite parties refused to do so, the 3 Appeal No. Sh. Anil Parihar and Ors. 14.10.2022 85 of 2015 Vs. Sh. Mayank Kumar Mishra complainant with some other students malafidely and with ulterior motives started pressurizing false and frivolous allegations upon the institute and its officials. The present complaint has been filed only to harass and defame the opposite parties / institute and nothing else. Hence, the complaint is liable to be dismissed.
4. In the written statement of the opposite party Nos. 3 to 8, the same averment has been made, as averred in the written statement of the opposite party Nos. 1 & 2. It is further alleged in written statement of opposite party Nos. 3 to 8 that it is incorrect to say that the institute has taken the course fees from the complainant by falsely giving wrong information about the institute and its recognition / membership from Institution of Civil Engineers (India) or that the complainant is entitled to get its course fees refunded back from this Hon'ble Forum. It is averred in the written statement that the complainant has completed his one year out of two year course from the institute and failed in third semester of the course and during that period did not raise any objections regarding the recognition / membership or else. When the complainant observed that he was about to fail in the examinations and could not complete his course, he started pressurizing the officials and opposite parties to give him some undue favour to him in passing the exams. It is denied that the opposite parties have received the course fees of Rs. 62,500/- while playing fraud upon the complainant. Hence, the complaint of the complainant was filed with wrong and baseless allegations and the same is liable to be rejected.
5. After hearing both the parties and after taking into consideration the material available on record, learned District Forum / Commission passed the impugned judgment and order dated 17.04.2015, hence it is held as under:-
4Appeal No. Sh. Anil Parihar and Ors. 14.10.2022 85 of 2015 Vs. Sh. Mayank Kumar Mishra "f"kdk;rdrkZ dk f"kdk;r i= vkaf"kd :i ls Lohdkj fd;k tkrk gSA foi{khx.kksa dks vknsf"kr fd;k tkrk gS fd og f"kdk;rdrkZ ls yh xbZ nks o'khZ; flfoy bUthfu;fjax fMIyksek dk "kqYd 63]500@&:0 ¼frjlB gtkj ikap lkS :i;k½ fu.kZ; dh frfFk ls nks ekg ds vUnj vnk djsA mijksDr vkns"k dk ikyu u djus ij f"kdk;rdrkZ mDr /kujkf"k ij 6% okf'kZd dh nj ls lk/kkj.k C;kt Hkh fu.kZ; dh frfFk ls okLrfod Hkqxrku dh frfFk rd çkIr djus dh vf/kdkjh gksxkA foi{khx.kksa dks ;g Hkh vknsf"kr fd;k tkrk gS fd os f"kdk;rdrkZ dks 2]000@&:0 ¼nks gtkj :i;k½ ekufld {kfr o okn O;; ds :i esa Hkh vnk djsA"
6. Aggrieved by the aforesaid order of the District Commission, the appellants - opposite parties have preferred the present appeal before this Commission.
7. As per the appeal, it is contended that the learned counsel for the appellant has averred that the impugned judgment is against the facts, law and merits of the case and the learned District Commission has not exercised the jurisdiction vested in it by law. It is also averred that the learned lower court has failed to appreciate that the complainant does not disclose any deficiency in service, which is an essential ingredient for filing the complaint. It is also contended that the lower Court has failed to appreciate the fact that the course offered by the ICE (I) had also been recognized by the Central Public Works Department, Directorate of General of Works, Government of India vide its letter No. A-1202/1/2006- EC-VI/75-75 dated 19.01.2009 to the effect that the Technician 5 Appeal No. Sh. Anil Parihar and Ors. 14.10.2022 85 of 2015 Vs. Sh. Mayank Kumar Mishra Membership examination (Diploma) in Civil Engineering awarded by ICE (I) can be treated as equivalent to essential qualification for the recruitment of Junior Engineer (Civil) in CPWD. It is also averred in the appeal that the learned lower Court has failed to appreciate the fact that the complainant has completed his first year out of two year course in the institute and failed to pass third semester of the course and during that period did not raise any objections regarding the recognition / membership or else. But when the complainant observed that he was about to fail in the examinations and could not complete his course, he started pressurizing the officials and opposite parties to give him some undue favour to him in passing the exams. Hence, the complaint was filed with ulterior motives against the appellants to give him undue favour in passing the exams, about which the appellants refused to do so, the complainant with some other students malafidely and with ulterior motives started pressurizing false and frivolous allegations upon the institute and its officials. It is also averred that against the technical institute, the District Commission has no jurisdiction to entertain such type of claim.
8. We have heard learned counsel for the appellants and perused the material available on record. Vide order dated 03.03.2022, an ex-parte order has been passed against the respondent.
9. The first and foremost issue to be decided in the present appeal is whether the complainant falls under the definition of "consumer", as defined under the Act and whether the appellant- Institute can be termed to be a "service provider". In this regard, it is relevant to state here that in the written statement filed by the appellants before the District Commission, it was specifically pleaded that the complainant does not come within the definition of "consumer". The perusal of the impugned judgment and order 6 Appeal No. Sh. Anil Parihar and Ors. 14.10.2022 85 of 2015 Vs. Sh. Mayank Kumar Mishra passed by learned District Commission shows that on the said issue, case law of Hon'ble National Commission was cited on behalf of the appellants, but the same was not relied upon by learned District Commission. Reliance was placed by learned District Commission upon the judgment and order dated 08.12.2016 passed by Hon'ble National Commission in Revision Petition No. 3288 of 2016; Mody University of Sciences and Technology and another Vs. Megha Gupta. In the said case, the complainant had decided to withdraw from the University after she had been admitted to the course and had, in fact, been called for counselling, hence it was submitted on behalf of the University that she was not entitled to refund of the amount deposited by her. It was held by Hon'ble National Commission that the instant case has to be decided in the light of guidelines issued by University Grants Commission and the order passed by the Fora below so far as question of refund of fee was concerned, was upheld. But, it is noteworthy that Hon'ble Apex Court in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha reported in IV (2009) CPJ 34 (SC), has laid down that Bihar School Examination Board does not offer "service" to any candidate, nor does any student hires or avails of any "service" from the Board for a consideration. Paragraph No. 10 of the said decision is reproduced below:
"10. The Board is a statutory authority established under the Bihar School Examination Board Act, 1952. The function of the Board is to conduct school examinations. 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 7 Appeal No. Sh. Anil Parihar and Ors. 14.10.2022 85 of 2015 Vs. Sh. Mayank Kumar Mishra 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 a 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 competence vis-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."
10. Hon'ble National Commission in its judgment dated 17.12.2017 rendered in Revision Petition No. 3144 of 2016; Krishan Mohan Goyal Vs. St. Mary's Academy and another, has discussed the law laid down by Hon'ble Apex Court in Maharshi Dayanand University Vs. Surjeet Kaur reported in (2010) 11 SCC 159, in which it has been laid down by 8 Appeal No. Sh. Anil Parihar and Ors. 14.10.2022 85 of 2015 Vs. Sh. Mayank Kumar Mishra Hon'ble Apex Court that a student is neither a consumer, nor the University is rendering any service, relying on the decision given in the case of Bihar School Examination Board (supra). Relevant portion of the said decision is reproduced below:
"The respondent as a student is neither a consumer nor is the appellant rendering any service. The claim of the respondent to award B.Ed. degree was almost in the nature of a relief praying for a direction to the appellant to act contrary to its own rules. The National Commission, in our opinion, with the utmost respect to the reasoning given therein did not take into consideration the aforesaid aspect of the matter and thus, arrived at a wrong conclusion. The case decided by this Court in Bihar School Examination Board (supra) clearly lays down the law in this regard with which we find ourselves in full agreement with. Accordingly, the entire exercise of entertaining the complaint by the District Forum and the award of relief which has been approved by the National Commission do not conform to law and we, therefore, set aside the same."
11. Hon'ble Apex Court in Civil Appeal No. 17802 of 2017; Anupama College of Engineering Vs. Gulshan Kumar and others, decided on 30.10.2017, has held that in view of the judgment of this Court in Maharshi Dayanand University (supra), wherein this Court placing reliance on all earlier judgments, has categorically held that educational institutions are not providing any kind of service, therefore, in matter of admission, fees 9 Appeal No. Sh. Anil Parihar and Ors. 14.10.2022 85 of 2015 Vs. Sh. Mayank Kumar Mishra etc., there cannot be a question of deficiency in service and such matter cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
12. Hon'ble National Commission in its latest judgment rendered in the case of Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others Vs. Sujay Ghose reported in III (2022) CPJ 6 (NC), has specifically held that the Educational Institute does not fall within purview of Consumer Protection Act, 1986, as it is not rendering any services. While coming to the above conclusion, Hon'ble National Commission has relied upon a decision of Larger Bench of three Members of Hon'ble National Commission in the case of Manu Solanki and others Vs. Vinayak Mission University and other connected cases reported in I (2020) CPJ 210 (NC), wherein the Larger Bench has held that educational matters do not come within the purview of the Consumer Protection Act, 1986 and, therefore, the complaint is not maintainable.
13. Considering the aforesaid facts and circumstances of this case as well as the law laid down in the case of Bihar School Examination Board (supra); Maharshi Dayanand University (supra); Anupama College of Engineering (supra) and Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others (supra), it is crystal clear that the appellant No. 1 - Educational Institute is neither "service provider", nor the respondent - complainant being a student is a "consumer". Accordingly, we are of the view that the matter in question cannot be brought before the Consumer Fora.
10Appeal No. Sh. Anil Parihar and Ors. 14.10.2022 85 of 2015 Vs. Sh. Mayank Kumar Mishra
14. In the light of the above cited case laws, we are of the considered opinion that the impugned judgment and order passed by the District Commission suffers from material illegality, infirmity and the same is erroneous. Therefore, we inclined to interfere with the impugned judgment, hence the appeal deserves to be allowed; impugned judgment and order passed by learned District Commission is liable to be set aside.
15. Accordingly, appeal is allowed. Impugned judgment and order passed by the District Commission is set aside and the consumer complaint is dismissed. No order as to costs.
16. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The record of the District Commission be returned to the concerned District Commission alongwith copy of this judgment for record and necessary information.
17. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 14.10.2022 11