State Consumer Disputes Redressal Commission
V J Modi School vs Bhumika P Patel on 8 October, 2021
Details DD MM YY
Date of Judgment 08 10 2021
Date of filing 06 04 2018
Duration 02 06 03
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Appeal No. 2018/224
Court No. 1
1.V. J. Modi School, Through Principal 150ft Ring Road, Ganesh Tata Show Room, Opp. Raiya Telephone Exchange, Rajkot.
2. Vidya Sagar Certificate Trust Through Trustee Parijat-Shantiniketan, Ramkrushna Nagar (W), Nr. Railway Line, Rajkot. ......Appellants Vs.
1. Bhumika Pareshbhai Patel, In the capacity of vice president of Grahak Suraksha Samiti Aary Chambers, 2nd Floor, Bhutkhana Chowk, Dhebar Road, Rajkot.
2. Himanshubhai Kumbhani, As an guardian of Ansh Himanshubhai Kumbhani, "Shriji Krupa" Block No. C-3, Raj Laxmi Society, 150ft Ring Road, Rajkot. ....Respondents Appearance: Mr. A. B. Gogia, Ld Advocate for the appellants.
Coram : Hon'ble Mr. Justice V. P. Patel, President Order by Hon'ble Mr. Justice V. P. Patel, President
1. The appellants/original opponents have filed present appeal under Section 15 of the Consumer Protection Act, 1986 being aggrieved by and dissatisfied with the judgment and order passed by the learned District Consumer Disputes Redressal Commission, Rajkot (Addl.) dated 7.3.2018 in complaint No. 224 of 2017.
M. B. Desai A-18-224 Page 1 of 102. Heard ld. Advocate Mr. A. B. Gogia, for the appellants. Neither the respondent no. 1 representative of respondent no. 2 nor respondent no. 2 himself present before this Commission. It is decided to take into consideration the written argument filed by them.
2.1. The appellants are the original opponents and respondents are the original complainants. Hereinafter the appellants and respondents will be referred as per their original status.
3. Facts of the case of the complainant: The complainant no. 2 has sought admission for his son Ansh Himanshubhai Kumbhani in the opponent no. 1 school in CBSE board in the year 2015. After sometime he came to know that school is not possessing CBSE affiliation and thus is cheated by the opponent by acquiring fees of CBSE. Therefore, in second term complainant no. 2 has obtained transfer certificate of his child and admitted in some other school. As stated above, the opponent no. 1 school is not possessing CBSE affiliation, complainant no. 2 has filed consumer complaint to get fees of RS. 39,400/- with 14% interest, Rs. 10,000/- as cost, Rs. 1,00,000/- as loss caused to the education of his child and Rs. 1,00,000 mental harassment.
4. Order under challenge: The District Forum has partly allowed the said complaint on 7.3.2018 and ordered the opponents to pay Rs. 39,400/- with 9% interest from 29.4.2017, Rs.2,000/- towards mental harassment and Rs. 1,000/- as cost to the litigation.
Argument of the appellant:
5. Learned advocate for the appellant has argued that the Modi School is run and administered by opponent no.2 Trust. The recognition and affiliation was granted to the school for 1 st to M. B. Desai A-18-224 Page 2 of 10 12th Standard of the CBSE vide order dated 28.9.2011 issued by joint secretary (AFFL) Delhi. Thereafter the permission was extended time to time. That the allegations made by the complainant in his complaint is totally wrong and misconceived and with a view to malingine the trust and the school. That the child of the complainant no. 2 and other students were given teaching of CBSE syllabus therefore, there is not deficiency of service. It is further submitted that at present 1552 students have taken admission from 1st to 12th Standard for academic year 2016-17. All the admissions were given by the opponent no. 2 at Ishwariya. That some of the students were studying in the building situated nearby P. V. Modi School in the city area for the sake of convenience and at the request of their parents.
5.1 It is further argued that the present complainant while obtaining the school leaving certificate has been refunded back the fees of 2nd term as per his request. The complainant has paid only fees of first term with the respondent no. 2 during which child has studied in the school. Therefore, he is not entitled for refund of the amount of fees for first term. That the opponent trust established since last more than 18 years running different educational activities for betterment of middle class and lower middle class students. The trust provided friendly atmosphere and ultra infrastructure for education. The fees of second term is refunded back with the complainant therefore he is not liable for refund of any amount.
5.2 It is also submitted that the considering the meaning of consumer as defined under the Consumer Protection Act shall appear that there is no deficiency of any kind in service provided to the students as alleged by the complainant. Moreover, as per the settle law that imparting the education by the educational institution cannot make the educational institution as service provider and student appearing examination or taking education M. B. Desai A-18-224 Page 3 of 10 is not a consumer. He has relied upon the certain judgments which will be discussed hereafter.
Argument of the opponent:
6. Ld. advocate for the respondent has submitted written submission on 18.3.2021. It is stated in the submission that the decision taken by the ld. District Commission is well sustained by law. The District Commission has rightly found that the respondent is entitled to get refund of fees and compensation along with the charges of litigation. That the ld. District Commission has appreciated evidence on record in proper perspective. That the FIR was lodged in Gandhigram Police Station, Rajkot in 2016. That the gist of the complainant in criminal complaint and the consumer complaint is one and same is not correct.
6.1 It is further submitted that in case of FIIT JEE vs. Vikram Sheth, the State Commission has held that student or a trainee may leave midstream if he finds the service deficient, substandard and non-yielding, and tell that fees once paid are not refundable was an unfair trade practice as No service provider can take or charge the consideration of the service which it has either not given or has not been availed. He has relied upon decision of the Hon'ble Supreme Court in the case of P Sreenivasulu and anr. vs. P J Alexander and anr. Complainant has replied all the arguments and contention raised in appeal memo in his written submission which is not required to be dwelt with as it is the repeatation of his arguments.
6.2 It is further submitted that the learned District Commission has appreciated documentary evidence in proper perspective. The judgment and order passed by the ld. District Commission is legal, correct and valid in eye of law hence, no interference is required and present appeal is required to be dismissed.
M. B. Desai A-18-224 Page 4 of 10Merits of the case:
7. The complainant has pleaded in para 11 of the complaint which reads as under:
")૧૧( આ કાભના સાભાલાા નંય ધ્લાયા જે અરગ અરગ સ્કુર ચરાલલાભાં આલી યહી છે તે.
ૈકી ભાત્ર ઇશ્વયીમા બ્ાંચ ખાતેની સ્કુર ભાટે જ સીફીએસઇ એપીરીએળન ભે ર હોલા છતાં ટ્રસ્ટીઓના ોતાના અંગત હહત ભાટેના એ એપીરીએળનનાં નંફયના આધાયે અન્મ સ્કુરોભાં ણ સીફીએસઇ એપીરીએળન હોલાનું જણાલી લધુ ભોટી પી લસુરે છે પ્રામભયીભાં.પ્રી .
સીફીએસઇ ફોર્ડ કે એવું હોમ જ નહહ છતાં ણ સીફીએસઇના નાભે પી લધાયે રે છે અને આભ અને ય નાઓએબેગા ભીને અંગત આર્થિક હહત ભાટે થઇ લધુ નપો ૧ .આ કાભના સાભાલાાનં કભાલલા ર્ીપીસમન્સી ઇન સલીસની સાથે સાથે ભીસરીર્ીંગ એર્લટાડઇજભેન્ટનો ગુન્હો ણ કયે ર છે .
ય ને અભો પયીમાદી ાસેથી પી લસુરલા કોઇ હકક અર્ધકાય. આ કાભના સાભાલાા નં ય એ અભો પયીમાદી ાસેથી ગેયકામદે સય યીતે પી. નથી તેભ છતાં આ કાભના સાભાલાા નં .લસુરેર છે "
7.1 The complainant has claimed relief for 1). refund of fees of Rs. 39,400/- with 14% interest 2). Rs. 10,000/- as cost, 3). Rs. 1,00,000/- as loss caused to the education of his child and 4). Rs. 1,00,000/- as compensation for making expenses of education for his child in other school.
7.2 The opponent has raised defense that the fees of second term was refunded and fees of the first terms is not required to be refunded back because complainant's child had studied in the school.
8. One of the argument of the appellant is that the education is not commodity and student taking education cannot be said to be a consumer. He has relied upon the following judgments.
8.1 Rajendrakumar Gupta vs. Swarup Public School 2021 (1) CPJ (NC) 368 dated 2.2.2021, wherein, it is held as under:
M. B. Desai A-18-224 Page 5 of 10"9. In Anupama College of Engineering v. Gulshan Kumar and Anr. the Hon'ble Supreme Court has held:
"Leave granted. The only question raised in this case is whether a college is a service provider for the purposes of the Consumer Protection Act, 1986. Learned Counsel for the appellant has placed the decision of this Court in Maharshi Dayanand University v. Surjeet Kaur. (2010) 11 SCC 159. The aforesaid decision was followed by this Court in SLP (C) No. 22532/2012 titled as P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors. The order reads as follows: "In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur, 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". In view of the consistent opinion expressed by this Court, the orders passed by the National Consumer Disputes Redressal Commission in Revision Petition No. 3571/2013 and Revision Petition No. 807/2017 are not in accordance with the decision of this Court and are therefore set aside. The civil appeals are allowed."
10. In the case titled Manu Solanki and Ors. v Vinayaka Mission University I (2020) CPJ 210 (NC), while addressing the issue whether an Educational Institution is a 'Service Provider' for the purpose of Consumer Protection Act, 1986, Larger Bench of this Commission held: -
"33. Keeping in view Maharshi Dayanand University (supra) has addressed on merits and the question of law in detail and the same has been consistently followed by the Hon'ble Supreme Court in P.T. Koshy & Anr. (supra), Prof. K.K. Ramachandran (supra) and the latest decision of Anupama College of Engineering (supra), we are of the considered view that the ratio laid down by the Hon'ble Supreme Court in the last judgment that is Anupama College of Engineering (supra) has to be followed.
12. It is settled law, as stated in the aforementioned precedents set by the Hon'ble Supreme Court as well as this Commission, that Educational Institutions do not fall within the ambit of the Consumer Protection Act, 1986 and education which includes co-curricular activities such as swimming, is not a "service" within the meaning of the Consumer Protection Act, 1986. I, therefore, concur with the view of the State Commission that the Complainant is not a consumer and the Complaint not being covered under the Consumer Protection Act, 1986 is not maintainable."
M. B. Desai A-18-224 Page 6 of 108.2 LBS Group of education institute vs. Arjun Singh 2021 (1) CPJ (NC) 151 dated 31.8.2020 wherein, it is held as under:
"7. We have heard learned Counsels for the Parties and perused the documents placed on record. In our considered view, a Preliminary Issue as to whether Educational Institutions providing Education and other Incidental Activities to the students come within the purview of the Consumer Protection Act, 1986 or not arises in this case and the said issue is squarely covered by the decision of a Larger Bench of three Members of this Commission in the case of Manu Solanki and Others Vs. Vinayak Mission University and other connected cases, 1(2020) CPJ, 2010, 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. Relevant portion of the Order is reproduced below for ready reference :-................
45. We are of the considered view that conduction of Coaching Classes does not fall within the ambit of definition of 'Education' as defined by the Hon'ble Seven Judge Bench of the Supreme Court in P.A. Inamdar (Supra). Coaching Centres cannot be equated to regular schools or colleges which are regulated by a Regulatory Authority and also confer a Degree/Diploma on the student who has passed in the examinations conducted as per the Rules and norms specified in the statute and also by the concerned Universities. Therefore, strictly speaking Coaching Centres cannot fall within the definition of 'Educational Institutions'. We refrain from making any comments on the submissions of the learned Counsel for the Complainants with respect of Coaching Institutions indulging only in 'rote learning'.
51. In view of the foregoing discussion, we are of the considered opinion that the Institutions rendering Education including Vocational courses and activities undertaken during the process of pre- admission as well as post-admission and also imparting excursion tours, picnics, extra co-curricular activities, swimming, sport, etc. except Coaching Institutions, will, therefore, not be covered under the provisions of the Consumer Protection Act, 1986."
8.3 Civil Appeal No. 17802 of 2017 between Anupama College of Engineering vs. Gulshan Kumar and Ors. dated 30.10.2017 by Hon'ble Supreme Court wherein, it is held as under:
"Learned counsel for the appellant has placed the decision of this Court in Maharshi Dayanand University v. Surjeet Kaur [(2010) 11 SCC 159]. The aforesaid decision was followed by this Court in SLP (C) No. 22532/2012 titled as P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors. The order reads as follows:M. B. Desai A-18-224 Page 7 of 10
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 Signature Not Verified commodity. Educational institutions are not providing Digitally signed by MEENAKSHI KOHLI Date: 2017.11.02 any kind of service, therefore, in matter of admission, 16:56:02 IST Reason: 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."
8.4 Maharshi Dayanand University vs. Surjeet Kaur dated 19.7.2010 wherein, it is held as under:
"19. The third and the most important issue that deserves to be answered is the competence of the District Forum and the hierarchy of the Tribunals constituted under the Act 1986 to entertain such a complaint. In our opinion, this issue is no longer res integra and has been extensively discussed by a recent judgment of this Court in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha, (2009) 8 SCC 483, where it has been held as under :-
12.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 successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-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.
13. The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi-commercial activity). But the Act does not intend to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer- scripts, or furnishing of mark-
M. B. Desai A-18-224 Page 8 of 10sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service-provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a `service provider' and a student who takes an examination is not a `consumer' and consequently, complaint under the Act will not be maintainable against the Board."
9. Considering the ratio laid down in the above referred judgments that the education is not commodity and service imparting education institution cannot be held to be service provider and student cannot be said to be a consumer. Therefore, consumer court has no jurisdiction to dealt with the matter pertaining to the deficiency of service in education.
10. This Court has considered the grounds stated in memo of appeal, reasons stated in judgment and order passed by the Ld. District Commission, documentary evidence produced on record, ratio laid down by the Hon'ble Supreme Court in above referred cases and facts and circumstances of the case. I am of the view that the order passed by the ld. District Commission is erroneous and cannot be sustained in view of the latest judgment of the Hon'ble Supreme Court. Therefore, the judgment and order dated 7.3.2018 in Complaint No. 224/2017 passed by the ld. District Commission Rajkot (Addl.) is required to be quash and set aside. Therefore, following final order is passed.
ORDER I) The appeal No. 224 of 2018 is hereby allowed.
II) The order dated 7.3.2018 passed by the Ld. District Commission, Rajkot (Addl.) in Complaint No. 224/2017 is hereby quash and set aside.
III) The consumer is at liberty to file appropriate proceeding before the Civil court. It goes without saying that time spent in the M. B. Desai A-18-224 Page 9 of 10 proceeding before District and State Commission is excluded under Section 14 of the limitation Act for filing appropriate proceeding.
IV) The appellant is directed to apply to the Account section of the State Commission with all details of Appeal No.224/2018, Xerox copy of the receipt to withdraw the amount deposited in the State Commission. The office is hereby ordered to pay deposited amount with accrued interest on proper verification to the appellant by Account payee cheque and the cheque be handed over to the learned advocate for the appellant after obtaining receipt.
V) No order as to costs. VI) Copy of this order to be provided free of costs to the parties.
Registry is directed to send a copy this order to the District Commission Rajkot (Addl.) through E-mail in PDF format for taking necessary action.
Pronounced in the open Court today on 8th October, 2021 [Mr. V. P. Patel] President M. B. Desai A-18-224 Page 10 of 10