IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 29th day of November, 2018
Filed on 31.12. 2016
Present
1. Sri.E.M. Muhammed Ibrahim , BA,LLM (President)
2. Smt. Sheela Jacob, B.com,LLB (Member)
in
CC/No.417/2016
Between
Complainant:- Opposite party:-
Smt. Aswathi.R 1. BRITISH COUNSIL
Aswathy, British Deputy High Commission
South of Coir Board 737, Anna Salai
Kalavoor, Alappuzha Chennai - 600002,
2. BC Examinations & English Services
India Pvt. Ltd, Royal Office, 6th floor
One Horizone Centre, Globe Course
Road, Sector 43, ALF phse, V, Gurgam
122062
ORDER
SRI.E.M. MUHAMMED IBRAHIM.B.A.LLM (PRESIDENT)
This case is based on a consumer complainant filed under section 12 of the Consumer Protection Act, 1986.
2. The averments in the complaint in short are as follows:-
On 28-9-2015 complainant joined for IELTS training with a training institution with MIMAT. She applied for the IELTS examination conducted by the 1st opposite party to he held on 05-02-2015 for the purpose of getting admission to the post graduate Diploma in advanced professional studies. As per the requirements of the 1st opposite party, the complainant deposited an amount of Rs.10,600/- in the account of the opposite party maintained at ICICI Bank. The complainant got the acknowledgment letter from the British council on 07-10-2015 saying that the complainant’s payment will be processed within 3 working days and confirmation letter will be issued soon. Later on 23.10.2015 the complainant received the exam confirmation e-mail stating that complainant’s seat is confirmed for the IELTS test on 05.12.2015 at kochi centre and a reference number is also given to the complainant as IN001-91294-00140, and it was also mentioned in the above said mail that the venue details and timings will be informed within 4 days before the examination. The complainant tried to login the candidate area by using the registered e-mail ID and reference number. But was not able to login. So complainant sent a mail to the British council regarding the unsuccessful login and they replied that it was only some technical problem. And they confirmed the complainant’s exam venue and timing as Hotel Abad Plaza on 05.12.2015 and report time was 11.30 am. As per confirmation e-mail from the opposite party, the complainant appeared at the above said venue at 10.00 am and reported before the officials. But when checked, it was found that the IELTS reference number which the complainant received is of another candidate’s and the complainant’s passport number which is registered in the British council at the time of applying ie No.K.1064632 is not found in the opposite parties data base. The officials of opposite party who are present at the venue tried to contact the higher officials of the opposite party and after 3 hours, the complainant was informed that since they did not get any reply from the higher officials, the complainant will not be permitted to attend the exam. Hence the complainant was not able to attend the examination. The complainant had fulfilled all the requirements insisted by the opposite party for the test. But the irresponsible and unethical practice of the opposite party caused huge damage both mental and financial to the complainant. The complainant was not able to go to Newzealand and join the above said course because of the unethical practice of the opposite party. The complainant has to wait another year for applying for the above course. The damage caused to the complainant is immeasurable and it was caused only because of the irresponsible practice of the opposite party. There is clear deficiency in service on the part of the opposite party towards the complainant who is a consumer as envisaged under the Consumer Protection Act. The opposite parties are liable to indemnify the complainant for the damages, losses and mental agony caused to her. The complainant prays to direct the opposite party (1) to return an examination fee Rs.10,600/- deposited by the complainant and also prays to direct the opposite party to pay Rs.3,00,000/- as compensation for the loss, damage and mental agony caused to her along with cost Rs.2,000/-.
3. The 1st and 2nd opposite party resisted the complaint by filing separate written versions. Most of the contentions are more or less same which are as follows:-
The complaint is not maintainable. As the forum has no jurisdiction for the same as British council is a division of British High Commission in India which comes within the purview of a Foreign State and can be used only with the written sanction of the Central Government. Since the complaint has not obtained any such sanction of the Central Govt under section 86 CPC the complaint is not maintainable. It is further contented that no part of the cause of action arase in Alappuzha and hence the CDRF, Alappuzha is not having territorial jurisdiction to entertain the complaint. The complainant is not a consumer of the opposite party No.1 and No.2 as envisaged under the consumer Protection Act and/ or she is entitled to get any compensation from the opposite party No.1. There is no deficiency of service on the part of the opposite party No.1 and 2 towards the complainant and / or the opposite party No.1and 2 are not liable to indemnify the complainant for any alleged damages, losses and mental agony. It is further contented by the 2nd opposite party that the 1st opposite party has authorised the 2nd O.P. among other duties to organise, administer and conduct IELTS examinations for the candidates based in India at test centres in India by using the British Council intellectual property of the 1st opposite party.
It is further complainant that the complainant Aswathi. R sent the payment receipt towards availing the facility being provided by BCEESIPL in conducting the IELTS test. The said ICICI deposit slip shows the logo of British Council. The candidate registers for exams online; the confirmation reflects the local contact details which are of BCEESIPL. Immediately on receiving her email dated 28.09.2015 a customer services representative replied to her email vide their email dtd 3-10-2015. The complainant was informed that she could comply scanned copy of her ICICI challan slip to the email ID of the British council organisation for quicker and faster processing. The complainant was further at liberty to contact BCEESIPL for any further information. However the complainant on 20-10-15 sent an email stating that ICICI deposit slip was already emailed to the correct IELTS payments email id. In the same email she also stated that she have registered online on 26-09-15 but was not received the seat confirmation. According to the 2nd opposite party complainant had not registered online either on 25-9-15 or at the subsequent point of time, she never submitted a registration confirmation number to enable to track the complainant’s alleged registration. The name Aswathy is an extremely common name. The problem arose since the complainant had not mentioned her her and name or surname in the subsequent communications. As there was yet another Aswathi Bhaskaran registered from the same centre entire problem occurred. The complainant failed to write the expansion of the letter “R” as Ramachandran which is the main reason for the problem for which the complainant alone to be blamed. The opposite party inadvertently sent the aforesaid IELTS reference number of another candidate to the complainant. The complainant was informed that in order to enter her login details, she had to enter her email address and IELTS reference number. She was also required to check at the same candidate area and is unable to use the same has to condact minimum 3 days before examination. The complainant could have immediately checked the details at the link as required by the service executive of BCEESIPL and raise the complaint but after approximately one month of the receipt of the link BCEESIPL she informed the service executive that she was unable to login to the candidate area. The complainant made no efforts to contact the service executive or to seek clarity in the matter arising out of an inadvertent confusion due to the similarity of the name and would have immediately requested to take an examination or her amount would have been refunded to her. The complainant is not entitled to get any of the reliefs sought for in the complaint. The opposite parties further prayed to dismiss the complaint with cost.
4. In view of the above pleadings the following points arise for consideration are:-
(1) Whether there is any deficiency in service on the part of the
opposite party 1 and 2.
(2) Whether the complainant is entitled to get the reliefs as prayed
for in the complaint.
(3) Reliefs and costs.
5. Evidence on the side of the complainant consists of the oral evidence of PW1 and PW2 and Ext.A1 and A2 series documents.
6. However no oral evidence has been adduced by the opposite parties. But got marked as Ext.B1series documents.
7. The learned council appearing for the complainant has not filed any notes of argument but learned council appearing for opposite party No1 and Opposite party No.2 have filed separate notes of argument.
Both of them have not turned up and advanced any oral arguments.
8. Point No. 1&2
For avoiding repetition of discussion of materials these 2 points are considered together.
The specific allegation of the complainant is that she applied IELTS examination dated 5/12/2015 conducted by the opposite parties, that she paid the required fee and accordingly the reference number who allotted but she could not log into the candidate date. Though she contacted the officials concerned, they told that it is technical problems only. However as per confirmation she reported at the examination centre and reported before the officials. There upon it was brought to the notice that the reference number which received was that of another candidate and her passport No. K10646323 is not found the data bank. Though the officials present at the examination centre tried to contacted higher officials there was no reply. However she was not permitted to attended the examination and therefore there is deficiency in service on the part of Opposite party 1 &2 and hence she prays to get back the examination fee of Rs. 10,600/- and compensation to the tune of Rs. 3,00,000/- and Rs.2000 towards cost of the proceedings. Learned counsel of the 1st opposite party would condented that the complainant is not a consumer of the 1st opposite party and hence there is no deficiency in service Under Section 2(1) g of the Consumer Protection Act. It is further contented that the 1st opposite party has not rendered any services to the complainant. It is only authorised agency of the 2nd opposite party BCWESIPL to conduct examination by virtue of the agreement between parties.
The oral evidence of PW1 coupled with Ext.A1 deposit slip and Ext.B1 series documents would indicate that the complainant has paid examination fee Rs. 10,600/- at the 1st opposite party and they have issued IELTS examination details indicating the candidate number, reference number venue description document number, session centre and also their e-mail address. Ext.B1 series documents would make it clear that the complainant has informed the 1st opposite party that she is unable to log on the candidate area in the e-mail address and also requested to note the same and do the need full. The said communication was sent on 1/12/2015. It is clear from the available materials that she has appeared for test on 5/12/2015 at the Cochin centre but she did not receive the details of venue and timing at and she has also requested to sent the details in the earliest. Even if there is any difference in the surname confirmation has been received by the 1st opposite party in the e-mail address. They could very well trace out then ame and details of the candidate such as candidate number, reference number etc. In the circumstances the contention of the opposite party that it is due to the difference in the surname or the 2nd name the complainant failed to appear for the examination is devoid of any merit. After having received fee for the examination, the 1st opposite party is not expected to say the complainant is not a consumer and it has not rendered any service to the complainant will not stand at all.
The main contention of the 2nd opposite party is that there has been no fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance of service by the 2nd opposite party. However the 2nd opposite party would admit that they have conducted IELTS examination by virtue of the agreement between parties 1 and 2. The 2nd opposite party is also would admitted that the complainant was a candidate for the examination and she paid required fee and she has given a reference number also. But according to OP1 and OP2 the complainant failed to mention the 2nd name or the surname of the subsequent communications as there another name as Aswathy Bhaskaran registered at the same centre. It is also contented that the complainant failed to follow the instructions and requests made by the customer service of the 2nd opposite party that the complainant has failed to submit registration confirmation number to the 2nd opposite party to enable them to track her alleged registration. The unsuccessful login was due to her wilful non observance of requirements insisted by the 2nd opposite party. But the evidence available on record would not probablise the contention of OP1 to OP2. According to PW1 her name in the passport is Aswathy Ramanchandran and she has sent a message to the 1st OP in the name Aswathy Ramanchandran and in the reply to the above communication also it is stated as Aswathy Ramanchandran. It is also clear from the evidence of PW1 that on the confirmation received from the opposite party the name of the complainant has been written as Aswathy Ramanchandran. It is true that there is different in e-mail address. But the difference in the email address was brought to the notice of the 1st OP on 2/12/2012 which it is well before the examination. There for the opposite parties have got ample chance to rectify the mistake. It is the opposite parties to verify the correctness of the name and surname before conducting examination and allotting centre to write examination and to confirm that hall ticket was duly issued to the candidate who paid the examination fee. The failure of opposite parties in this regard would clearly attract deficiency in service. It is also brought out in evidence the complainant has reached at the examination centre allotted to her and also reported for examination. However it is clear from the admission of PW1 that even though she could not write the examination conducted by the opposite parties, she jointed for training MIMAT institution at cherthala on 1/10/2015 without wasting her time and she attend the classes from 1/10/2012 till 4/12/2015. It is also brought out in evidence that she has joined for PHD course on the same year on 14/12/2015. In view of the above admission of PW1 that there is no waste of time to the complainant. However it is clear that due to the mistake in particulars in stating the 2nd name as surname and she could not attend the examination. But the materials available on the record including Ext.A1 and Ext.A2 series. Ext.B1 series documents would indicated that she has paid the required fee of Rs. 10,600/- before of the 1st opposite party but she could not attend the examination. In the circumstances it is clear that after receiving fee 1st and 2nd opposite party have not rendered service to the complainant. Hence there is deficiency in service on the side of the opposite party 1 and 2.
Even though she has not appeared the IELT examination she has not wasted time and she joined for PHD course on the same year itself. Therefore she has not lost any year. However it is clear that she has sustained much mental agony in preparing for the course travelling to the examination centre at Kochi from Cherthala apart from the financial loss. Therefore she is entitled to get back the examination fee and a reasonable compensation. In view of the facts and circumstances of the case we are of the view that compensation to the tune of Rs. 10,000/- will be reasonable and sufficient. Points answered accordingly.
9.Point.No.3:-
In the result the complaint stands allowed in the following terms.
1. The 1st opposite party is directed to return Rs. 10,600/-(Rupees Ten thousand six hundred only) to the complainant being examination fee collected along with interest at the rate of 9% per annum from the date of complaint.
2. The respondent 1 and 2 are also directed to pay Rs. 25,000/-(Rupees Twenty five thousand only) as compensation to the complainant along with interest at the rate of 8% per annum from the date of complaint.
3. The opposite parties are also directed to pay costs of Rs. 5000/-(Rupees Five thousand only) to the complainant.
If the opposite parties failed to comply with the directions within 30 days from the date of receipt of a copy of this order. The complainant is entitled to realise Rs. 30,600/-(10,600 + 20,000) with interest at the rate of 12 % annum till realization along with costs of Rs. 5000/- (Rupees Five thousand only) from OP1 and OP2 jointly and severally and from their assets.
Dictated to the Confidential Assistant, transcribed by him correct by me and pronounced in open Forum on this the 29th day of November, 2018.
Appendix:-
Evidence of the complainant:-
PW1 - Aswathy.R(Witness)
Ext.A1 - Deposit Slip dtd.28-09-2015
Ext.A2 series- Copy of received mails & Sent mails.
Evidence of the opposite parties:-
Ext.B1 series - Copy of the e-mails dtd 3-10-2015 by BCEESIPL &
E-mail dtd.20-10-2015 sort by complainant.
Sd/-E.M.Muhammed Ibrahim(President)
Sd/-Smt. Sheela Jacob(Member)
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- br/-
Compared by:-
