State Consumer Disputes Redressal Commission
Institute Of Management Studies vs Anand Singh Mehra on 11 August, 2023
Appeal No. Institute of Management Studies 11.08.2023
59 of 2015 Vs.
Sh. Anand Singh Mehra
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Admission : 15.04.2015
Date of Final Hearing: 08.08.2023
Date of Pronouncement: 11.08.2023
First Appeal No. 59 / 2015
Institute of Management Studies
Makkawala Greens, P.O. Bhagwatpur, Mussorriee Diversion Road
Dehradun
Through its Registrar
(Through: Sh. Vaibhav Jain, Advocate)
.....Appellant
VERSUS
Sh. Anand Singh Mehra
Father of Sh. Manoj Mehra
R/o RZ-675A/314, Geetanjali Park, Gali No. 6F
West Sagarpur, New Delhi
.....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 26.03.2015 passed by the District Consumer Disputes Redressal Forum, Dehradun (hereinafter to be referred as the District Commission) in consumer complaint No. 242 of 2012 styled as Sh. Anand Singh Mehra Vs. Director, Institute of 1 Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra Management Studies, wherein and whereby the District Commission has allowed the consumer complaint.
2. The facts giving rise to the appeal in hand, in brief, are as such that the son of the complainant Sh. Manoj Mehra had appeared for the final examination of BCA course from 'Guru Gobind Singh Indraprastha University, New Delhi' in the year 2011; he was offered a provisional admission in the MCA course offered by the Institute of Management Studies, Dehradun (opposite party) on the basis of his merit ranking in the exam conducted by the Uttarakhand Technical University, Dehradun, i.e. UKSEE-2011 for the academic year 2011-12. The last date for deposit of the course fee for MCA Ist year course at the opposite party institute was 25.07.2011. At the same time, the classes for MCA Ist year were to commence from 23.08.2011. Son of the complainant had not received his result for BCA Final exams till the last date fixed by the opposite party for deposit of the admission fee. However, complying with the opposite party's instructions, the complainant deposited a sum of Rs. 71,100/- (Rupees Seventy One Thousand One Hundred only) vide demand draft No. 570129 dated 23.07.2011 drawn on Punjab & Sind Bank dated 23.07.2011. The admission granted by the opposite party to the complainant's son was provision since the complainant's son had not cleared his BCA exams till the date of deposit of his course fee, thus the confirmation of the admission was subject to his clearing the BCA exams; the result of the complainant's son for the BCA exams was declared on 04.08.2011, but unfortunately the complainant's son could not clear one of the papers, thereby he had been unable to fulfill the eligibility / necessary qualification for admission to the MCA course of the opposite party. On account of such inability to clear BCA course by the complainant's son, the complainant's son withdrew from the MCA course of the opposite party and information was 2 Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra communicated to the officials of the opposite party telephonically on dated 13.08.2011 as well as a formal request for withdrawal of the admission was also given in writing through email sent on dated 16.08.2011. Inspite of repeated correspondence, the opposite party refunded only Rs. 10,000/- to the complainant's son and called it 'Full and Final Payment' against withdrawal / cancellation of the admission. Such refund of Rs. 10,000/- against the payment of Rs. 71,100/- made by the complainant's son for his son's college fee was illegal, unlawful, malafide, thereby the opposite party has misappropriated the hard-earned money of the complainant against the law of the land and against the specific guidelines framed by the A.I.C.T.E. / U.G.C. Thus, the unlawful, malafide and illegal action of the opposite party has caused immense the mental tension, harassment and agony to the complainant and his son and by usurping the course fee by the opposite party has caused immense financial setback to the complainant and his family. The complainant has been hampered from imparting good education to his son for want of sufficient funds. Therefore, the opposite party has illegally usurped the amount of Rs. 61,100/- of the fees. Hence in such circumstances, the complainant has filed the complaint before the District Commission for the refund of such amount with compensation.
3. The opposite party has filed its written statement alleging that through email, the institute was informed that on account of not clearing some subject, the complainant's son could not clear his BCA course, therefore, he wanted to withdraw his admission from the MCA course. It is also admitted that the complainant's son has deposited Rs. 71,100/- for MCA course and the classes for the MCA course were proposed to be commenced on 02.08.2011, but the classes were actually commenced from 09.08.2011. It is also averred that 120 seats were allotted for the MCA course, out of which only 87 seats were filled up. The District Commission 3 Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra has no jurisdiction to entertain the complaint and the same is barred from the principle of estoppel and acquiescence and is liable to be dismissed.
4. After hearing both the parties and after taking into consideration the material available on record, learned District Commission passed the impugned judgment and order dated on 26.03.2015, which is as under:-
"ifjoknh }kjk ;ksftr ;g ifjokn foi{kh laLFkku ds fo:) /ku vadu 61]100@&:i;s ¼bdlB gtkj ,d lkS :0½] {kfriwfrZ 5]000@&:i;s ¼ik¡p gtkj :0½ o okn O;; 5]000@&:i;s ¼ik¡p gtkj :0½ dh çkfIr gsrq Lohdkj fd;k tkrk gSA foi{kh dks vknsf"kr fd;k tkrk gS fd og leLr /kujkf"k dk Hkqxrku ifjoknh dks 30 fnu ds vUnj fd;k tkuk lqfuf"pr djsaA ;fn fufnZ'V vof/k esa /kujkf"k dk Hkqxrku ugha fd;k tkrk gS rks ifjoknh] mijksDr leLr /kujkf"k ij fu.kZ; frfFk ls olwyh rd 8% okf'kZd C;kt Hkh ikus dk ik= gksxkA"
5. Aggrieved by the aforesaid judgment and order of the District Commission, the appellant - Registrar of Institute of Management Studies, (Educational Institution) has preferred the present appeal alleging that Sh. Manoj Mehra (son of the complainant) was a major and was capable to file the complaint, but the District Commission has failed to consider this fact, therefore, the filing of the complaint by the father of Sh. Manoj Mehra is bad in law as such no cause of action arose against him. It is also averred that the complainant's son had already received the amount of Rs. 10,000/-
4Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra as refunded by the appellant institute in accordance to the rules and regulations in full and final satisfaction. Therefore, after expiry of one year, the complainant with fraudulent intention filed the present complaint, concealing the true facts, hence the complaint is liable to be dismissed. It is further averred that the District Commission has failed to consider this fact that the complaint sought for cancellation of his admission after start of the session without giving any prior intimation to the appellant and due to the said act of the complainant's son, the seat remained vacant throughout and the appellant suffered in lieu thereof financial loss in regard to next semesters of the said course for alleged seat of the complainant's son.
6. It is here pertinent to mention that inspite of several calls, respondent has not appeared, hence an order was passed to proceed the case ex-parte against the respondent. We have heard learned counsel for the appellant and perused the material available before us.
7. It is an admitted fact that the complainant's son, when applied for the course of MCA first year in the institute of the appellant, had not cleared his BCA course in the year 2011. It is also an admitted fact that the complainant's son could not clear the paper of one subject in BCA course, therefore he was not declared passed in the said BCA course (Final Year). It is also an admitted fact that for the course of MCA first year, the condition precedent was as to that the student must have qualification of MCA, but on account of not clearing examination of BCA final year, the complainant's son was not eligible for continuing his MCA course first year in the institute of the appellant.
8. "As per programme (Admission) enclosed with the appeal, it is also admitted that the orientation programme for MCA course first year was 5 Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra commenced on dated 10.08.2011 and foundation programme for MCA Ist year was started from 10-16 August, 2011, as well as Art of Living Programme and classes for MCA Ist Year were started during 17 to 23 August, 2011. As per the programme (Admission) of the faculty, it is proved that the MCA course first year and its classes for MCA course were commenced from 10.08.2011, whereas the intimation through email by the complainant's son about not clearing BCA course final examination was given to the appellant institute on dated 16.08.2011"
9. It is also averred on behalf of the appellant that the District Commission has failed to consider this fact that the complainant's son sought for cancellation of his admission after start of session without giving any prior intimation to the appellant and due to such act of the complainant's son, the said seat remained vacant throughout and the appellant suffered in lieu thereof financial loss in regard to next semesters of the said course for alleged seat of the complainant.
10. On record, there is no such cogent and reliable evidence filed by the respondent that the seat allotted to the complainant's son was allotted to some other student after cancellation of the admission in the MCA Ist Year Course in institute of the appellant. It is also an admitted fact that the complainant's son voluntarily took admission on provisional basis in the appellant's institute. Learned counsel for the appellant has also contended that the complainant is not a consumer under the provision of Consumer Protection Act, 1986 and the complaint is not maintainable because the District Commission has no jurisdiction to hear, entertain and decide the complaint.6
Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra
11. It is an admitted fact that the complainant's son could not clear his BCA course final examination in the year 2011. It is also not disputed that before the declaration of the result of BCA final year, the complainant's son took provisional admission in the institute of appellant for the course of MCA first year in the year 2011. It is also admitted that the amount of Rs. 71,100/- was deposited by the complainant's son for the said course in the institute of appellant. It is also admitted that when the result of BCA final year was out / declared, the complainant's son could not pass the said examination, therefore, on submission of request letter from the complainant's son through email, the appellant institute had refunded Rs. 10,000/- as full and final satisfaction to the complainant's son.
12. Now the main question for consideration before us is whether there is any relationship of consumer and service provider between the appellant and the respondent.
13. Learned counsel for the appellant has attracted our attention in the following case law:
1. Revision Petition No. 3288 of 2016; Mody University of Sciences and Technology and another Vs. Megha Gupta
2. Bihar School Examination Board Vs. Suresh Prasad Sinha reported in IV (2009) CPJ 34 (SC)
3. Revision Petition No. 3144 of 2016;
Krishan Mohan Goyal Vs. St. Mary's Academy and another decided on 17.12.2017 7 Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra
4. Civil Appeal No. 17802 of 2017; Anupama College of Engineering Vs. Gulshan Kumar and others
5. Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others Vs. Sujay Ghose reported in III (2022) CPJ 6 (NC) and has relied on 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 8 Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra 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."9
Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra
14. 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 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."10
Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra
15. 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 cannot be a question of deficiency in service and such matter cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
16. 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.
17. In the case of Rajendra Kumar Gupta Vs. Dr. Virendra Swarup Public School and Anr., 2021 2 CPR (NC) 217 the Hon'ble National Commission has held that "it may be mentioned here that this issue has been considered and decided by a larger Bench of three Members of this Commission in the case of Manu Solanki and Ors. v Vinayaka Mission 11 Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra University and other connected cases, I (2020) CPJ 210, wherein the larger Bench had held that Educational matters do not come within the purview of the Consumer Protection Act, 1986 and therefore, the Complaint is not maintainable.
18. 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) and Rajendra Kumar Gupta (supra), it is crystal clear that the appellant - University is neither "service provider", nor the respondent - complainant being a private student is a "consumer". Accordingly, we are of the view that the matter in question cannot be brought before the Consumer Fora.
19. 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 are 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.
20. Accordingly, the appeal is allowed. Impugned judgment and order dated 26.03.2015 is set aside and the complaint is hereby dismissed. No order as to costs of the appeal.
21. Statutory amount deposited by the appellant, be released in favour of the appellant.
12Appeal No. Institute of Management Studies 11.08.2023 59 of 2015 Vs. Sh. Anand Singh Mehra
22. 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 copy of this order alongwith original record of the District Commission be sent to the concerned District Commission for record and necessary information.
23. 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: 11.08.2023 13