Date of filing:- 31/05/2019.
Date of Order:-16/01/2020.
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM(COURT)
B A R G A R H
Consumer Complaint No. 40 of 2019
Akash Panda, Son of Rabindra Panda, aged about 17(Seventeen) years, resident of -College Chowk, Barpali, Po/Ps- Barpali, Dist. Bargarh, Occupation-Student being minor represented through father guardian Rabindra Pnada, aged about 51(fifty one) years, son of Baibaswata Panda, resident of – College Chowk, Barpali, Po/Ps. Barpali, Dist. Bargarh, Occupation- Law Practice. ..... ..... ..... .... Complainant.
-: V e r s u s :-
Secretary, School and Mass Education, At-Secreteriate Building, Bhubaneswar, Po/Ps. Bhubaneswar, Dist. Khordha.
President, Board of Secondary Education, Odisha, At-Bajrakabati Road, Cuttack, Po/Ps/Dist. Cuttack.
Secretary, Board of Secondary Education, Odisha, At-Bajrakabati Road, Cuttack, Po/Ps/Dist. Cuttack.
Controller of Examinations, Board of Secondary Education, Odisha, At. Bajrakabati Road, Cuttack, Po/Ps/Dist. Cuttack.
Deputy Secretary, Board of Secondary Education, Odisha, Sambalpur Zone, At-jail Chowk, Sambalpur, Po/Ps/Dist. Sambalpur ..... ..... ..... Opposite Parties.
Counsel for the Parties:-
For the Complainant :- :- Sri T. Tripathy, Advocate with associate Advocates.
For the Opposite Party No.1(one)
and Opposite Party No.2(two) :-Ex-parte.
For the Opposite Party No.3(three) :- Sri C.D.Jal, Adovcate with associate Advocates.
For the Opposite Party No.4(four)
and Opposite Party No.5(five) :-Ex-parte.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.16/01/2020. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief Facts of the Case;-
The Complainant has filed the case with the allegation of deficiencies of service against the Opposite Parties on the following grounds.
The case of the Complainant is that he being student of Saraswati Vidya Mandir, Barpali which is affiliated to the Board of Secondary Education Odisha appeared the H.S.C/Class-X, in the Session 2017-18 vide his Roll No. 306EC0004 which was being conducted by the B.S.E.O. It is very much pertinent to mention here that he was a very Meritorious Student securing more than 90%(ninety percent)i.e. A-1 marks in his all preceding Examination.
The said examination was held in the month of February-2018 and the result was published on Dt.07.05.2018 wherein to his ill-luck secured 88%(eighty percent). So being surprised and shocked with the same, downloaded the copies of all the question and answer sheets with it’s scoring key and applied for re-addition of marks with it’s photo copies of his subjective paper of English and General Science by paying the requisite amount of fee Rs.600/-(Rupees six hundred)only to B.S.E.O., Cuttack through S.B.I. Barpali Branch on Dt.24.05.2018 as was notified by the said authorities for it, but subsequently he found that after completion of the process the same defect is still remain as it was for which his father tried to draw the attention of the Opposite Parties but to no effect as such the same was brought to the Notice of the press media and the same was published in the daily Odia news paper Sambad on Dt.18.08.2018 consequent upon which the authorities released another amended marks sheet by adding two marks in his said paper but still some defect persisting with other numbers as in his General Science paper in Question Number -6(six), two sub question was there i.e 'I’ and ii. And he was allotted 2(two) marks for each answer but while totaling the same it was not corrected, but subsequently with the intervention of his father it was inserted, likewise in the second language paper of the Complainant he had answered in Question No. 4(four) at page 10(ten), 11(eleven), and 14(fourteen) in additional page wherein steps mark have been awarded but while totaling the same one mark in Page No.14(fourteen) has not been added also in the iii. Bit of question Answer No.1(one) of English subject was not awarded any mark though the answer was right and entitled to get 2(two) marks, the same matter was also produced before the authorities but to no effect.
Besides the aforesaid deviation there are some other anomalies in evaluating his aforesaid two subjective papers, further in his objective test paper of first language Odia in Question No.42(forty two) in his Madhyamik Byakarana-1st line Page 7-1,3(Annexture-3)the answer should have been ‘’D’’ of the answer sheet(Annexture -2)and accordingly he has put right answer but he has not been awarded with ‘1’ mark because of the Computer valuation consequent upon which he has secured 92(ninety two) mark instead of 93(ninety three) thereby being deprived of the scholarship declared by the Government of Odisha particularly on the same paper, to which the Complainant got depressed and put forth the same before the authorities concerned through the B.S.E.O on Dt.23.08.2018 in response to which he got a letter from the B.S.E.O on Dt.11.09.2018 intimating him to have enhanced the 3(three) marks in his Second Language English paper keeping aside the other said problem as it is, which acts of the Opposite Party No.1(one) to No.5(five) are an act of deficiencies of service and severe negligence of their duty playing foul with the life of a meritorious student, thereby causing serious mental agony, physical harassment, and financial loss to him and to his father too. For which being disappointed with such act of the Opposite Party No.1(one) to No.5(five), he took the shelter of the Honorable Forum, with a prayer to issue direction to the Opposite Parties to add the marks for which he is entitled as per the detailed enumerated in his complaint petition, also to direct the Opposite Parties to make necessary arrangement to award him with glorious award as declared by the Government of Odisha in the merit list of Odia Language for which he is entitled and also to issue a direction to the Opposite Parties to compensate him with Rs.5,00,000/-(Rupees five lakhs)only in lieu of his mental, physical and financial harassment caused by those Opposite Parties.
And in substantiating his such claim has relied on the following documents:-
Copy of H.S.C. Certificate with marks of Akash Panda.
Copy of letter Dt.16/05/2018 with testimonials to President, B.S.E.
Download copy of General Science Paper.
Download copy of English Paper.
Acknowledgment of S.B.I., Barpali regarding remittance of fees to B.S.E.O.
Copy of representation of C.E., B.S.E.O.
Copy of letter of Dep. Sec. B.S.E.O.
Copy of letter B.S.E.O. No.1181.
Page of Sambad.
Having gone through the Complaint petition and the documents and on hearing his counsel the case was admitted and notice were served on all the Opposite Parties individually but even if the service of summon was proved to be sufficient none of them except Opposite Parties No.3(three), i.e the Secretary, Board of Secondary Education, Odisha appeared before the Forum and filed his version for which all other Opposite Party No.1(one), 2(two), 4(four) & 5(five) were set ex-parte on Dt.08.11.2019.
The Opposite Party No.3(three) appeared through his Advocate and filed his version denying the total case of the Complainant with an additional plea that the case against the statutory body is not maintainable since it is coming under the statutory function of the Opposite Party under which they have acted upon and since they are guided by the statutory function are not liable under the provision to provide service, as such the Complainant is not coming under the definition of consumer in accordance with the provision of the Consumer Protection Act-1986 and the case is liable to be dismissed.
While the hearing of the case was under process the respective counsels of the parties put forth their argument very vehemently with their respective stand, in course of such arguments the counsel for the Complainant with much emphasis on the citation of the Honorable High Court of Kerala reported in the year 1994 A.I.R. Page -153 & C.P.R.1992 Page 215 and the National Commission placed his arguments that since the specific amount of fees was prescribed for the purpose of the re-addition of marks allotted per paper was notified by the Opposite Parties and being pursuant to the same the Complainant has paid the requisite amount for the particular purpose, now it has become the duty of the Opposite Parties to give service in accordance with the provision of Law of Consumer Protection Act- 1986 since if any consideration amount against any service is paid or promised to pay or part payment has been made then it is the bounden duty of such authorities to render service, more so with reference to the above quoted citation he has put forth his grievance that since there is distinction of the duty entrusted with that of the statutory function and since the re-addition of marks of a student appeared in an examination in paper is a different duty other than their statutory duty for which specific amount of fees is being paid is the administrative duty, beside the statutory function in holding examination or preparing question paper and declaration of result and others, hence in such circumstances the authorities holding such duty against the paid fees is coming under the provision of the Act to provide service as administrative duty on their part and any deviation to that effect would be attracted under the provision of the Consumer Protection Act-1986 and the as such the Complainant is a consumer and on the contrary the learned counsel for the Opposite Party No.3(three) relying on the decision of our own state Forum placed his arguments that since such duty of the Opposite Party is coming under the statutory function cannot be enforced by the Consumer Protection Act and beside that claimed that the Opposite Parties have acted upon their prescribed duty within the ambit of their statutory function as such are not liable for any act beyond that.
On perusal of the materials available in the record and keeping very vigilant view on the arguments with references to the decision of the quoted higher authorities of Law, we are of the view that the fees paid by the Complainant is purely for a specific purpose for which he has got a legal right and such claims does not vitiate the statutory function of the Opposite Parties in any manner in as much as the fees for the purpose has been notified by the Opposite Parties authorities and have been asked for, so such an entrustment cannot be taken to be the violation of any statutory function rather as the fees has been paid for and the same has been accepted by their authorities, it is their bounden duty to provide the service thereto as an additional duty with their statutory function, to which they have not acted upon which amounts to deficiencies of service and in such process to our observation the citation of the decision of our own State Commission vide Appeal No.133/1994, and Appeal No.399/2000 is in a different footing as such is not applicable in this particular case. Further more the very absence of the Opposite Party No.1(one), 2(two), 4(four) & 5(five) before the Honorable Forum even if being duly served with Notice, is also a serious matter of concern for want of their view, in case they would have appeared and filed their version if any. As such in view of the above question of law and facts as enumerated above our view is expressed in favor of the Complainant for which all the Opposite Parties are jointly and severally liable.
And to our further observation the Complainant has paid the consideration amount but has not been put to serious consideration by the Opposite Parties for which he has undergone heavy mental, physical and financial agony is entitled for the compensation more pertinently because for a student single mark also counts a lot for his carrier in the present competitive age of education, hence our view is expressed in favor of the Complainant, Accordingly our order follows.
O R D E R.
Hence the Opposite Parties jointly and severally are directed to comply with the following direction.
To rectify the mark sheets of the particular Examination of the Complainant for the year as has been mentioned year i.e.2018 and issue him with the same afresh.
To enable him to be facilitated with the award as per the Notification of the Government of Odisha for the year-2018 by making the required arrangement in the particular Odia paper and in the alternative an equitable amount of the award be given to him.
And further directed to pay the Complainant an amount of Rs.50,000/-(Rupees fifty thousand)only in lieu of his mental, physical and financial agony undergone by him with an interest @ 6 % (six percent) per annum from the date of filing of the case till the date of Order.
The Order will be carried out within thirty days of receipt of the same, in default of which interest @ 12%(twelve percent) per annum would accrue on the total amount till the actual realization of the total amount and suitable action as envisaged with the Consumer Protection Act would be followed with.
Accordingly the Complaint is allowed against the Opposite Parties, the same being pronounced in the open Forum in presence of the respective counsel of the parties and the same is disposed off to-day i.e. on Dt. 16.01.2020.
Typed to my dictation
and corrected by me.
( Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree,
( Ajanta Subhadarsinee)
M e m b e r (W).
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Sri Dusmanta Padhan
Office Assistant, Bargarh.
