Punjab

StateCommission

FA/930/2013

Aklia Education & Research Society - Complainant(s)

Versus

Amanpreet Kaur Grewal - Opp.Party(s)

Saravpreet Gurna, D.S. Gurna & Jaspal Kaur Gurna

15 Jan 2016

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.930 of 2013

 

                                                Date of Institution: 29.08.2013

                                                Date of Decision:  15.01.2016

 

Aklia Education & Research Society, through its Chairman S. Gurtej Singh Brar, Goniana Jaitu Road, Bathinda

 

                                                                 …Appellant/Opposite party

                             Versus

 

Amanpreet Kaur Grewal d/o Sh. Kulwant Singh Grewal, r/o 1495, Phase III, Model Town, Bathinda

 

 

                                                                    ..Respondent /Complainant

                                                           

 

First Appeal against order dated 28.06.2013 passed by the District Consumer Disputes Redressal Forum,  Bathinda.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Shri.H.S.Guram, Member

Present:-

          For the appellant                    : Sh.Saravpreet Gurna, Advocate

          For the respondent                : Sh. P.K.S Phoolka, Advocate     

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

         J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the opposite party in the complaint) has directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated 28.06.2013 of District Consumer Disputes Redressal Forum Bathinda, accepting the complaint of the complainant by directing the OP to return the original 10th, +2 marksheets, character and domicile certificates to complainant, in case they were lost or misplaced by the OP; then they would arrange the same in duplicate from the board/department, besides Rs.5,000/- as cost of litigation and compensation. The instant appeal has been preferred against the same by the opposite party now appellant in this appeal.

2.      The complainant Amanpreet Kaur has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that complainant along with her father approached the OP for receipt of documents i.e. 10th detailed marks sheet, degree certificate and character certificate 10+2 detailed mark sheet, degree certificate and character certificate along with original documents of the complainant. The complainant asked the principal of the college of OP to do the needful in this regard. The complainant has been harassed by the OP by adopting unfair trade practice. The OP refused to return the documents of the complainant despite repeated requests in this regard. Request of the complainant was paid no heed by the OP to return the above-said documents. The complainant has prayed for return of the documents, besides Rs.4,50,000/- as compensation and Rs.30,000/- as compensation for malpractice and Rs.11,000/- as cost of litigation.

3.      Upon notice, OP appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant has no cause of action to file the complaint. The complainant has not approached the forum with clean hands and suppressed the material facts. Previously complaint no.48 of 24.01.2011 titled as "Amanapreet Kaur Grewal versus Aklia College of Education and others" filed by the complainant was accepted by the forum on 24.05.2011 but complainant suppressed the fact that the order dated 24.05.2011 was challenged in the State Commission Punjab and operation of the order was stayed by the State Commission Punjab on 09.08.2011. The jurisdiction of the District Forum was questioned by the OP.  The complaint was alleged to be false and frivolous and sought to be dismissed under Section 26 of the Consumer Protection Act. It was averred that the matter is not covered under the Consumer Protection Act. Any unfair trade practice or deficiency in service on the part of OP was denied. It was further pleaded that original signatures were never submitted by the complainant to the OP. Even during the process of admission, she submitted photocopies of required documents only and declined to submit the original documents. The complainant attended her classes only for few days after her admission and absented therefrom because complainant got admission in some other course. Notice was put up on the notice board and her name was struck off from the roll of the college w.e.f 10.01.2011 due to her long absence. The order of the District Forum in the previous complaint has been stayed by the State Commission Punjab. The complainant filed the complaint to build pressure upon OP. On merits, it was admitted that complaint no.48 of 24.01.2011 filed by the complainant against OP for refund of the fee was accepted by the District Forum. Appeal against the same was pending before State Commission Punjab, Chandigarh, where the order of the District Forum has been stayed. Any deficiency in service or unfair trade practice was vehemently denied by the OP. OP prayed for dismissal of the complaint.

4.      The complainant tendered in evidence, her affidavit Ex.C-1 along with copies of the documents Ex.C-1 to Ex.C-4. As against it; OP tendered in evidence affidavit of Gurtej Singh Brar Chairman Aklia Education Research Society Ex.OP-2/1. On conclusion of evidence and arguments, the District Forum Bathinda, accepted the complaint of the complainant by virtue of order dated 28.06.2013. Dissatisfied with the order of the District Forum Bathinda dated 28.06.2013, the OP now appellant has preferred this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case.

6.      Affidavit of the complainant is Ex.C-1, wherein she reiterated the facts, as pleaded in the complaint to be correct. Ex.C-2 is document need for E.T.T, which is duly signed by the complainant and documents submitted were, as detailed in it. Ex.C-3 is the letter addressed by one Kulwant Singh to Principal ETT being father of the complainant for return of documents. Ex.C-4 is order passed by State Commission, Punjab in First Appeal No.1124 of 2011 staying the operation of order of District Forum. To refute this evidence, OP relied upon affidavit of Gurtej Singh Brar Chairman Aklia Education and Research Society/OP Ex.OP-2/1 on the record stating that complainant suppressed the material facts. The order of the District Forum passed in favour of the complainant has been stayed by the State Commission, Punjab, Chandigarh on 09.08.2011. He further stated that  no direction was issued to OP to return the certificates.

7.      From evaluation of above-referred evidence on the record and hearing respective submissions of counsel for the parties, we find that submission raised by appellant that the complaint is barred under Order 2 Rule 2 of the Code of Civil Procedure is misconceived in this case. Summary procedure is prescribed under the Consumer Protection Act for decision of consumer cases. Order 2 Rule 2 of Code of Civil Procedure, which pertains to principle of constructive res judicata is attracted in regular civil suits and it would not be attracted in the summary procedure before us under the CP Act. On the other hand, submission of counsel for the appellant is that only photocopies were submitted to them by the complainant at the time of admission and original documents were not submitted to them. On the other hand, counsel for the complainant now respondent in this appeal argued that complainant swore her affidavit Ex.C-1 that original documents were submitted with them. The District Forum observed that printed slip was issued to applicant seeking admission in ETT including complainant. The documents needed for eligibility to ETT course were shown by mark tick on the said slip by the concerned official of the OP. On the other hand, submission of the OP is that the OP is Educational Institution and is not a service provider and is not covered under the Consumer Protection Act, 1986. Herein, the simple prayer is for the return of the documents, when complainant is no longer student of the OP and her name is struck off from the rolls. There is no question of retention of original certificate by the OP, as observed by the District Forum. This matter is not covered either pertaining to admission or educational matter but is simply forcible retention of the certificates of the complainant when no dues are due against her. Consequently, the OP is bound to return the original documents of the complainant, provided no dues are standing against her to the OP. Therefore, the order passed by District Forum is found to be without any legal infirmity in this case and same is affirmed in this appeal.

8.      As a result of our above discussion, we do not find any merit in the appeal and same is hereby dismissed.

9.      The appellant has deposited an amount of Rs.2500/- with this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount shall be paid by the appellant to the complainant after 45 days from the date of receipt of copy of this order.

10.    Arguments in this appeal were heard on 12.01.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.

11.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                                           (H.S GURAM)

                                                                              MEMBER

 

January 15,   2016                                                              

(ravi)