State Consumer Disputes Redressal Commission
Principal Institute Of T Echnology & ... vs Umesh Kumar Sahu & Anr. on 27 March, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G)
Appeal No.FA/12/622
Instituted on : 30.10.2012
Umesh Kumar Sahu, Age 22 years,
S/o Shri Rajdulare Sahu,
R/o : Village - Jaabalpur,
Tehsil & Disrict - Janjgir (C.G.) ... Appellant
Vs.
01. Principal, Institute of Technology, Korba,
Tehsil & District Korba (C.G.)
2. Kul Sachiv,
Chhattisgarh Swami Vivekanand Technical University,
North Park, Avenue, Sector 1,
Bhilai, District Durg (C.G.) ... Respondents
Appeal No.FA/12/660
Instituted on : 12.11.2012
Principal,
Institute of Technology, Korba,
Tehsil & District - Korba (C.G.) .... Appellant
Vs.
01. Umesh Kumar Sahu, S/o Shri Rajdulare Sahu,
Aged 21 years, R/o : Village - Jaabalpur,
Tehsil & Disrict - Janjgir (C.G.)
2. Kul Sachiv,
Chhattisgarh Swami Vivekanand Technical University,
North Park, Avenue, Sector 1,
Bhilai, District Durg (C.G.) ... Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES IN BOTH THE APPEALS :-
Shri D. Dutta with Shri G.V. Krishna Rao, for complainant - Umesh
Kumar Sahu.
Shri V.K. Agrawal, for O.P.No.1 - Principal, Institute of Technology,
Korba (C.G.).
None for O.P.No.2, Kul Sachiv, Swami Vivekanand Technical
University, Bhilai, District Durg (C.G.).
// 2 //
ORDER
Dated : 27/03/2015 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No. FA/12/622 as well as Appeal No. FA/12/660, which have been preferred respectively by the complainant and O.P. No.1 of the Complaint Case No.45/2011 against the order dated 28.09.2012, passed by District Consumer Disputes Redressal Forum, Korba (C.G.) (henceforth "District Forum"), whereby the complaint filed by the complainant, has been allowed in part, and learned District Forum has directed the O.P. No.1 to pay within a period of two months from the date of order a sum of Rs.50,000/- along with interest @ 7% p.a. The District Forum has further directed that if the above amount is not paid by the O.P.No.1 to the complainant within stipulated period, then the O.P. No.1 will be liable to pay interest @ 9% p.a. on the above amount. The District Forum has also directed the O.P.No.1 to pay a sum of Rs.5,000/- as compensation for mental agony and Rs.1,000/- as cost of litigation to the complainant.
2. The complainant has filed Appeal No.FA/12/622 for enhancement of the amount of award, whereas the O.P. No.1 has filed Appeal No.FA/12/660 for setting aside the impugned order of the District Forum dated 28.09.2012. For the purpose of convenience, hereinafter in this order, the parties will be referred as per their original // 3 // nomenclature in the complaint case. The original of this order be retained in the file of Appeal No.FA/12/622 and its copy be placed in the file of Appeal No.FA/12/660.
3. Briefly stated the facts of the case are that the complainant after qualifying the Pre-Engineering Test, 2009 as a general candidate was admitted in the institution of O.P.No.1 for the academic session 2009-10 and he has been granted mechanical branch of Bachelor of Engineering Course on 03.08.2009 and thereafter the complainant has submitted all the relevant documents and admission fee of Rs.11,700/-, in which fee for enrolment with the University (O.P.No.2) was also included. It is the duty cast upon O.P.No.1 to sent the enrollment form of the complainant along with relevant documents to the O.P.No.2 for enrollment, but O.P.No.1 failed to perform its duty. Due to negligent act of the O.P.No.1 the complainant was not enrolled with O.P.No.2. The complainant was again admitted in O.P.No.1 institution for Academic Year 2010-11 and he attended the whole Academic Year but the complainant had been prevented to appear in the examination for want of enrollment. It was desirable from the O.P.No.1 to protect the interest of the complainant and to do/complete all necessary formality for enrolment of the complainant. The complainant was not allowed to appear in the main examination for academic year 2010-11 and the complainant has been informed that he will not be allowed to participate in the examination due to non-enrollment as O.P.No.1 has // 4 // failed to sent the enrollment form along with relevant documents to O.P.No.2 for his enrollment in the academic year 2009-10. Due to not sending enrollment form of the complainant along with necessary documents to the O.P.No.2, the complainant could not appear in the main examination. Due to negligent act of the O.P.No.1, the complainant was prevented to appear in the main examination and his future became dark. Hence, the complainant filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
4. The O.P.No.1 filed its written statement and averred that the complainant did not deposit the enrollment fees and the O.P.No.1 never assured the complainant in respect of enrollment. The complainant had taken admission on 03.08.2009 for the Academic Year 2009-10 and thereafter he remain absent in entire session. The complainant appeared in the Academic Year 2010-11 and submitted an application in writing in which he admitted that due to his illness, he could not appear in the entire academic year 2009-10. As per rules of the University, the procedure of enrollment of each Academic Year has to be completed and is required to be sent to University till 30th September. Due to not sending enrollment form of the complainant along with necessary documents, therefore, the complainant could not be enrolled with O.P.No.2. The complainant was absent during entire academic year 2009-10, therefore, on account of absence of the // 5 // complainant in the month of September, the enrollment form of the complainant could not be forwarded to the O.P.No.2, for which the O.P.No.1 is not responsible. The complainant himself is liable for his negligent act. The complainant appeared before O.P.No.1 on 03.08.2010 and 30.08.2010 and submitted an application along with medical service for giving re-admission in the College, in which he averred that in entire Academic Year 2009-10 he was absent. After considering his application, the complainant was again admitted for the Academic Year 2010-11. The O.P.No.1 has also averred that if the complainant was not enrolled with O.P.No.2, then the O.P.No.1 is not responsible for the same. Hence the complainant is not entitled to get any reliefs as sought by him, from the O.P.No.1.
5. The O.P.No.2 appeared before the District Forum, but has not filed written statement.
6. After having considered the material placed before it by both the parties, learned District Forum, has partly allowed the complaint and directed the O.P.No.1 to pay compensation to the complainant, as mentioned in para 1 of this judgment.
7. The complainant has filed documents. The documents are registered notice sent by Shri M.L. Saket, Advocate to the O.P.No.1 on behalf of the complainant, letter dated 13.06.2011 sent by Public Information Officer, Chhatisgarh Swami Vivekanand Technical // 6 // University, Bhlai to the complainant, letter dated 10.01.2011 sent by Chhattisgarh Swami Vivekanand Technical University, Bhilai to O.P.No.1, letter dated 27.10.2010 sent by the O.P.No.1 to Director, Technical Education, Raipur, Ordinance No.04 of Chhattisgarh Swami Vivekanand Technical University, letter dated 04.09.2010 sent by the O.P.No.1 to the Registrar, Chhattisgarh Swami Vivekanand Technical University, List of new admitted (Bachelor of Engineer) Student 2009- 10, Enrollment Form, receipt issued by Institute of Technology, Korba, mark sheets of the complainant, letter dated 30.08.2010 sent by the complainant to O.P.No.1, receipts issued by Institute of Technology, application dated 28.03.2011 sent by the complainant to O.P.No.1 under Right to Information Act, copy of challan, letter dated 29.04.2011 sent by the complainant, letter dated 07.05.2011 sent by the complainant to the Public Information Officer of Institute of Technology, Korba, letter dated 23.05.2011 sent by the complainant to Chief Information Officer, State Information Officer, Raipur, letter sent by Public Information Officer (Registrar), Institute of Technology, Korba to the complainant, letter dated 11.05.2011 sent by the Public Information Officer (Registrar), Institute of Technology, Korba to the complainant, college admission form, Campus rules and code of conduct for students of Institute of Technology, Korba (C.G.), hostel admission application Session 2008-09, Rules and regulations for girls hostel, medical fitness certificate, bus requisition form, mark sheet of // 7 // the complainant, allotment slip issued by Directorate of Technical Education, Raipur, certificate, issued by Sub Divisional Officer (Attestation), Janjgir, Caste Verification Certificate, Transfer Certificate, Certificate dated 23.07.2009 issued by Arts and Science College, Baloda (Janjgir - Champa), marksheet of the complainant, letter dated 13.08.2010 sent by the complainant to O.P.No.1, letter dated 30.04.2011 sent by the Public Information Officer (Registrar), Institute of Technology, Korba to the complainant, letter dated 30.08.2011 sent by the Public Information Officer (Registrar), Institute of Technology, Korba (C.G.) to the complainant, attendance sheet of Branch Mechanical / Sem 1 Session August 2010.
8. The O.P.No.1 has also filed documents. Documents are Notice dated 03.08.2009 issued by O.P.No.1, receipt issued by Institute of Technology, Korba, letter dated 13.08.2010 sent by the complainant to the O.P.No.1, Medical Certificate, Medical Certificate of Sickness.
9. Shri V.K. Agrawal, learned counsel appearing for the O.P.No.1 (appellant of Appeal No.FA/12/660) has argued that the complainant is not a "consumer" and the O.P.No.1 is not a "service provider", therefore, the dispute between the parties does not come within purview of "consumer dispute" He further argued that the complainant himself had not attended the classes in the entire Academic Year 2009-10. The O.P.No.1 had not given any assurance to // 8 // the complainant regarding his enrollment with O.P.No.2. As per rules of the University, the procedure of enrollment of each Academic Year has to be completed and is required to be sent to University till 30th September. Due to absence of the complainant, the complainant could not be enrolled with O.P. No.2. On account of illness of the complainant and the medical certificate submitted by him before the O.P.No.1, he was again admitted in the O.P.No.1 for the Academic Year 2010-11 but due to his absence in the entire Academic Year 2010- 11, the O.P.No.2 University did not enroll him. Therefore, the O.P.No.1 is not responsible for the act of the O.P.No.2. The finding recorded by the District Forum, is erroneous and is liable to be set aside. He placed reliance on judgment of Hon'ble National Commission in Regional Institute of Cooperative Management vs. Naveen Kumr Chaudhary, Shitanshu Ranjan, Anshul Saini, Anamika Singh, Nisha, Aarif Faridi, III (2014) CPJ 120 (NC), Datapro Information Technology vs. Rajinder Singh Saluja, 1994 (3) CPR 657 (NC).
10. Shri D. Dutta, learned counsel appearing for the complainant (appellant of Appeal No.FA/12/622) has argued that the learned District Forum has rightly allowed the complaint, but learned District Forum did not consider the case of the complainant in its right perspective. He further argued that the complainant suffered heavy // 9 // loss and due to negligent act of the O.P.No.1, the complainant was prevented to appear in the main examination and his future became dark. He also could not complete his engineering education and could not become an Engineer due to negligence committed on the part of the O.P.No.1.
11. Before us, none appeared on behalf of the O.P.No.2 on 27.02.2015, when the case was fixed for final arguments.
12. Firstly, we shall consider whether the complainant is a "consumer"
13. In Regional Institute of Cooperative Management vs. Naveen Kumr Chaudhary, Shitanshu Ranjan, Anshul Saini, Anamika Singh, Nisha, Aarif Faridi (Supra), Hon'ble National Commission has observed thus :-
"9. We have perused the Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483, wherein it was held that statutory Board does not provide any service in the sense, the term is used in the Act and examinee is not a consumer. It was held that Board is not a service provider. In para 11 of the said judgment, it was held as under :
"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 // 10 // 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".
10. The learned Counsel for petitioner has also referred to the judgment of Hon'ble Apex Court titled P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors., in Civil Appeal No.22532/2012, decided on 9.8.2012, wherein it was held as under :-
"In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur, 2010 (11) SCC 159, wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees, etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
In view of the above, we are not inclined to entertain the special leave petition. Thus, the Special Leave petition is dismissed."
13. In a recent judgment in Civil Appeal No.697 of 2014, titled Indian Institute of Bank & Finance (IIBF) v. Mukul Srivastava, dated 17.1.2014, passed by the Hon'ble Apex Court, the Hon'ble Apex Court has also referred to the judgments reported in Bihar School Examination Board v. Suresh Prasad Sinha (supra), Maharshi Dayanand University v. Surjeet Kaur (supra) and Jagmittar Sain Bhagat v. Director Health Services, Haryana & Ors., III (2013) CPJ 22 (SC) = 2013 (10) SCC 136 holding that the student, under such circumstances, is not a 'consumer'.
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14. In Parminder Singh (Dr.) vs. FIIT Jee Limited & Anr. I (2015) CPJ 104 (UT Chd.), Union Territory State Consumer Disputes Redressal Commission, Chandigarh, has observed thus :-
"9. The Counsel for the appellant/complainant, submitted that in P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors., Civil Appeal No.22532 of 2012, decided on 9.8.2012, it was only held by the Supreme Court of India that the Universities being Educational Institutions were not providing any kind of service and, therefore, they neither fell within the definition of service providers, not the students fell within the definition of consumers. He further submitted that, in the instant case, it was a private Educational Institution and not a University, wherein the son of the complainant took admission. He further submitted that, as such, the opposite parties fell within the definition of service providers and the son of the complainant fell within the definition of a consumer. He further submitted that the District Forum was wrong, in coming to the contrary conclusion. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
"10..................In P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors., Civil Appeal No.22532 of 2012 decided on 09.08.2012, the Hon'ble Supreme Court of India held as under :
"In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur, 2010 (11) SCC 159, wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees, etc., there cannot be a question of deficiency of service. Such matters cannot be // 12 // entertained by the Consumer Forum under the Consumer Protection Act, 1986.
In view of the above, we are not inclined to entertain the special leave petition. Thus, the Special Leave petition is dismissed."
15. In view of judgments referred above, it has been held by Hon'ble Supreme Court that the education is not a service and does not fall within the scope of Consumer Protection Act, 1986. Therefore, the complaint filed by the complainant is not maintainable since he is not a consumer under Consumer Protection Act, 1986. This aspect was not considered by the learned District Forum, therefore, the impugned order dated 28.09.2012, passed by the District Forum, is liable to be set aside.
16. In view of aforesaid discussion, the appeal No.FA/12/660 filed by the O.P.No.1, Principal, Institute of Technology, Korba, is allowed and the impugned order dated 28.09.2012, passed by the District Forum, is set aside. The appeal No.FA/12/622 filed by the complainant, Umesh Kumar Sahu, is liable to be and is hereby dismissed. Consequently, the complaint stands dismissed. No order as to the cost of these appeals.
(Justice R.S.Sharma) (Ms.Heena Thakkar) (D.K.Poddar)
President Member Member
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