State Consumer Disputes Redressal Commission
University Of Petroleum & Energy ... vs Sh. Abhishek Mehta S/O Dr. Rajkumar on 3 September, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 175 / 2019
University of Petroleum & Energy Studies
P.O. Bidholi, Prem Nagar, Dehradun
through its Registrar Smt. Veena Dutta
...... Appellant / Opposite Party No. 1
Versus
Sh. Abhishek Mehta S/o Dr. Raj Kumar
R/o D-7, IMTECH Campus, Sector 39-A
Chandigarh
...... Respondent / Complainant
Sh. Vaibhav Jain, Learned Counsel for the Appellant
Dr. Raj Kumar, Father of Respondent in person
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 03/09/2022
ORDER
(Per: Justice D.S. Tripathi, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred against the impugned judgment and order dated 24.04.2019 passed by the District Consumer Disputes Redressal Commission, Dehradun (in short "The District Commission") in consumer complaint No. 56 of 2015; Sh. Abhishek Mehta Vs. The PVC, University of Petroleum & Energy Studies and another, by which the consumer complaint was allowed and the opposite parties to the consumer complaint were, jointly and severally, directed to refund the fees of Rs. 1,01,000/- to the respondent - complainant and also to pay Rs. 10,000/- towards mental agony and Rs. 3,000/- towards litigation expenses, within a period of 30 days', failing which the respondent was further held entitled to interest @9% p.a. on the above 2 amount from the date of institution of the consumer complaint till payment.
2. Facts giving rise to this appeal, in brief, are that according to the consumer complaint, the complainant had given a test for getting admission in B.E. in the appellant - University on 20.05.2013 in Chandigarh and secured a rank of 2105 on net and was called upon to attend the counselling on 25.06.2013 at 1:00 p.m. The seat was allotted to the complainant in CSE Specialization Business Analytics and Optimization. The complainant was in the waiting list of CSE Specialization in Cloud Computing and Virtualization (CSE CCVT). The complainant deposited Rs. 85,000/- towards admission fee through demand draft dated 22.06.2013. The refund was to be made latest by 10.07.2013, so as to wait for the waiting list to be cleared. As the complainant was interested in CSE CCVT, the waiting list was not cleared, hence the complainant requested for cancellation of seat allocated to him in B.E. CSE Specialization in Business Analytics and Optimization on 08.07.2013. On 11.07.2013, the complainant asked for the status of the waiting list of B.E. CSE CCVT admission from opposite party No. 2 (who has not been arrayed as party to the present appeal). The complainant was asked to write an e-mail, which he sent on 11.07.2013, but no response was given to him. As per the prospectus, the classes were to start from 20.07.2013. The complainant again had a talk with opposite party No. 2 on 27.07.2013 about his e-mail dated 11.07.2013, whereupon he was asked to send the details of marks secured and other details, which were supplied by him through e-mail dated 27.07.2013. The complainant was further asked to get admission by 30.07.2013 by being physically present in the appellant - University. The complainant had taken admission in the appellant - University in B.E. Computer Science (CCVT) on 30.07.2013 and joined classes on 31.07.2013. The complainant 3 deposited total sum of Rs. 2,60,650/-. In the manual round of counselling of Punjab University (Chandigarh) on 14.07.2013, the complainant got admission in Government College in B.E. Computer Science (CSE) in Chandigarh College of Engineering and Technology, Chandigarh. On the next working day, the complainant requested for withdrawal of admission and applied for refund of the fees on 16.08.2013. The complainant received a refund of Rs. 1,58,250/- on 03.10.2013 against the payment of Rs. 2,60,650/-. The complainant wrote an e-mail dated 26.10.2013 for not refunding the course fee (tuition fee) of Rs. 1,01,000/- and Rs. 7,500/- PDP fee and Rs. 400/- towards group medical insurance. The complainant, however, did not receive reply from the University. The said amount was wrongly withheld by the University, thereby resorting to deficiency in service. Thus, the complainant filed a consumer complaint before the District Commission.
3. The appellant and opposite party No. 2 (opposite parties to the consumer complaint) filed written statement before the District Commission, pleading therein that the complainant is not a consumer, as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. As per the guidelines of University Grants Commission, New Delhi, the complainant's claim was settled for Rs. 1,50,750/-, which was received by him in full and final settlement. As per law, the refund of fees payable to the complainant after his withdrawal from the University in mid-session was Rs. 1,50,750/-, which was sent to the complainant in full and final satisfaction and he has duly accepted the said amount. The seat vacated by the complainant remained vacant throughout the course, causing loss to the University. As a kind gesture and adopting a sympathetic attitude towards the complainant, the opposite parties are depositing sum of Rs. 7,500/-, so as to settle the dispute once for all. The deduction was legitimately 4 done as per UGC guidelines. There is no deficiency in service on their part. The consumer complaint has been filed after the prescribed period of limitation and the same is devoid of merits.
4. After giving opportunity of hearing to the parties, the consumer complaint has been decided by learned District Commission vide impugned judgment and order dated 24.04.2019, thereby allowing the consumer complaint in the above terms. Feeling aggrieved, the appellant has preferred the instant appeal.
5. We have heard arguments advanced by learned counsel for the appellant & father of respondent present in person and perused the record.
6. The first and foremost issue to be decided in the present appeal is whether the respondent - complainant falls under the definition of "consumer", as defined under the Act and whether the appellant - University can be termed to be a "service provider". In this regard, it is relevant to mention here that in the written statement filed by the appellant before the District Commission, it was specifically pleaded that the complainant does not come within the definition of "consumer". 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 5 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 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."
7. Hon'ble National Commission in its judgment dated 17.12.2017 rendered in Revision Petition No. 3144 of 2016; Krishan Mohan 6 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 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."
8. 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 etc., there can not be a question 7 of deficiency in service and such matter can not be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
9. 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.
10. 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
- University 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 can not be brought before the Consumer Fora.
11. For the foregoing reasons, we are of the considered opinion that impugned judgment and order passed by learned District Commission suffers from material illegality and the same is erroneous. The appeal 8 deserves to be allowed and impugned judgment and order passed by learned District Commission is liable to be set aside.
12. Consequently, the appeal is allowed. Impugned judgment and order dated 24.04.2019 passed by the District Commission is set aside and consumer complaint No. 56 of 2015 is dismissed. No order as to costs. The amount deposited by the appellant with this Commission, be released in its favour.
13. 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.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
K