Orissa

Rayagada

CC/179/2021

Sri Akhaya Kumar Pradhan - Complainant(s)

Versus

CA Uttam Prakash Agrawal Uttam Prakash Agrawal College - Opp.Party(s)

Self

10 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION RAYAGADA, ODISHA.

Date of Institution: 29.10.2021

   Date of Final Hearing: 6.04.2023

        Date of  Pronouncement: 10.05.2023

CONSUMER COMPLAINT NO. –179 / 2021

 

Sri  Akhaya   Kumar   Pradhan. S/O: BanamaliPradhan,  Resident of Cotton Factory  Lane,  Opposite Reliance Smart, Khaliguda, Po/Dist: Rayagada -765 001, State:Odisha.          Cell  No.88951-42668

(Sri Rabi  Mohapatra, Advocate for the complainant)                                    …Complainant

                                Versus

C.A. Uttam Prakash Agrawal,  Uttam Prakash Agrawal College  of Commerce & Economics,    RIICO  Growth Centre  Phase-2,  Gurukul, Abu Road, Sherohi, Rajasthan- 307026  

(None for the O.Ps      )                                                                                …Opposite Parties

 

            Present:          1. Sri Rajendra Kumar Panda, President.

ORDER          U/S- 39  R/W 64 OF THE C.P.ACT,2019

Sri Rajendra Kumar Panda, President

Brief facts of the case:-

Case in hand is the allegation of  deficiency in service and unfair trade practice by the Opposite party (herein after called as O.P.)  for   non refund of deposited  fees an amount of Rs.3,21,520/- which  the complainant sought  redressal.

            The Back ground  facts in a nutshell  are that  the complainant  complainant had joined his son  Sri Ashirwad Pradhan in the  institute of  O.P.  in  B.Com Financial Year 2020—2021   &  CA foundation November, 2020  bearing  Roll No.  11. The complainant had deposited  fees of Rs.25,000.00 bearing M.R. No.1037  on Dated.3.4.2020  and      Rs.51,000/- bearing M.R. No. 2637 on Dtd.19.6.2020 and  Rs.2,45,520/- bearing M.R. No.2677 on Dtd.21.08.2020  total amounting to  Rs.3,21,520/-. (Copies of the Money receipts marked as  Annexure-I toIII).  The son of the complainant  Sri Ashirwad Pradhan had not continued study   due to health  issue.  As per college admission policy, the complainant  is entitled  to  get  deposited amount  from   O.Ps institution. But   till date the O.P  had not refund  the above amount  to the complainant.  The complainant made  many correspondence   through post, E-mail, over telephone, legal notice  Dtd.9.8.2021 but there was no response from O.P.. Hence this complaintcase  filed by the complainant  before this commissionwith a prayer to direct the O.P to  refund the deposited  fees amount to the complainant besides such other  relief  or reliefs.

The O.P has  not appeared though notice has been  duly served resultant made exparte.

Heard from the  complainant.  Perused the record  and documents filed by the  complainant.

Basing on the pleadings of the complainant, this commission framed the following issues for determination.

ISSUES:-

1. Whether the complainant is a consumer under the O.P.?
2. Is the  son of the complainant  faced any  health  disorder which constrained  him to dis-continue his study  or left the institution ?
3. Whether the  services of the O.P are  deficient towards the complainant?
4. Whether the complainant is entitled  to any reliefs from the O.Ps?

Issue  No.1.

As  per  Section 2(7)(i) &(ii) of C.P. Act, 2019 a person can be deemed to be a consumer  when he hires or avails   of any  services for consideration which has been  paid or  promised  to be  paid. In the instant case the  complainant  had  paid consideration  a sum of Rs.3,21,520/- to the O.P  for availing  service  of the O.Ps institute and  Money Receipts were issued  in favour of the  complainant. Therefore the complainant falls within the  definition of consumer.

Imparting  of educational by an educational institution for consideration falls with the ambit of ‘Service’ as defined in C.P. Act.  Fees are paid  for services to be rendered by way of imparting education by the educational  institutions.  If there is no  rendering of  service, question of payment  of fee wouold not  arise.   The complainant had  hired the services of the O.P. for consideration had hired the services of the O.P.  for consideration. So he is a consumer as defifned under Section 2(42) of the C.P. Act , 2019

As per Section 2(1)(O) 1986 (Corresponding  Section- 2(42) of the C.P. act, 2019) clearly  defines “Service” means service of any description which is made available to potential ‘(users and includes, but not limited to, the  provision  of )  facilities  in connection with banking, financing, insurance , transport, processing supply of electrical or other energy,   board or lodging  or both,  ‘(housing construction ,) entertainment, amusement or the purveying of news or other information, but does not  include the rendering  of any service free of charge or under a  contract of personal service.

 

We relied Judgement delivered by the  Hon’ble National Commission in  the case  of  Bhupesh  Khurana &  others  Vrs. Vishwa Buddha Parishad & Others reported in  CTJ – 2000  page No.801(CP)  in which  it is held that “A deficiency by an Educational Institute would come the  scope of the C.P. Act.”

In another judgement of the Hon’ble Supreme Court in P.Sreenivasulu& Another  Vrs.  P.J.Alexander& Another DTd. 9.9.2015 in Civil Appeal Nos. 7003-7004/2015, where in the Hon’ble Supreme Court has  clearly laid down  that Educational  Institutions  would  come within  the purview of C.P. Act ;and the Education is a service.  In this case also the  Hon’ble  Apex Court relied on Buddhist Mission Dental College &  Hospital case  and held that  “Student is a ‘Consumer’ and service rendered by  Educational  Institutions fall within the definition of ‘Service’.

Again this commission also relied  on the Judgement of the Hon’ble Supreme Court in  Punjab Urban Planning and Development Authority (Now GLADA)  Vrs. Vidya Chetal, (2019) 9 SCC 83, dated 16.09.2019, rendered  by a three judge Bench, in which the  Hon’ble  Apex Court  placed reliance on Lucknow Development Authority  Vrs.  M.K.Gupta (1994) 1 SCC 243, Ghaziabad  Development Authority  Vrs.  Balbir Singh,  (2004) 5 SCC 65,  Om Prakash  Vrs. Reliance  General  Insurance Company and Anr. ,(2017) 9  SCC  724  and  Commissioner of Customs (import), Mumbai  Vrs.  Dilip  Kumar  Others (2018)  9 SCC 40 and held in  para 16 and 21 as follows:-

            “16. On a different note, if the statutory authority, other than the core soverign  duties, is providing service, which is encompassed under the Act, then, unless any  statute exempts, or provides for immunity, for deficiency  in service, or specifically provides  for an  alternative forum, the Consumer  Forums  would  continue to have the  jurisdiction to deal with the same.  We need to caution against over inclusively and the tribunals need to satisfy the  ingredients  under Consumer Protection  Laws, before exercising the  jurisdiction.

            21. We  may also refer to the case of Ghaziabad Development Aauthority (supra) where in this court, relying  upon   Lucknow Development Authority case(supra), held that the power of the Consumer forum extends to redressing any  injustice rendered upon a consumer as well as over any malafide,  capricious or any oppressive act done by a  statutory body. The relevant para of the judgement reads as under:-

            “6…Thus, the law is that  the  Consumer Protection Act has a wide reach and the commission has  jurisdiction even in cases of service rendered  by   statutory and public authorities.  Such  authorities become liable  to compensate for misfeasance in public office i.e. an act which  is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen.

            Where there has been capricious or arbitrary or negligent  exercise or non-exercise of power  by an officer  of the authority,  the Commission/Forum has a statutory  obligation to award compensation.  If the  Commission/Forum is satisfied that a complainant is entitled to compensation  for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation and then  also direct recovery from those found responsible for such  unpardonable  behavior.

In this case we are not going to  discuss all these judgements. Only the question is

(1)Whether this complainant  deposited fees before the O.Ps or not ?  Yes  deposited.

(2) Whether  the son of the complainant left the study on the health ground?  Yes.

(3)If  one  student left the  institution just after  30 days  from his admission,  whether  he is entitled to get  his money  back from the institution? Yes entitled to get  back.

(4)Whether the educational institute (O.P) if not refunded, it comes under  unfair trade practice? Yes it is  unfair trade practice.

Accordingly   issue No. 1  is answered.

Issue    No.2&  3 .

These  two issues invite common discussion and hence  they are being taken up together.

In the present case, the complainant  had deposited the fees for admission to the course B.Com & C.A. foundation.  But due to health ground he does not want to continue his study under the O.Ps institution and hence  requested to refund the money which  he was  deposited. The commission observed that when for which purpose the O.P. received the money from the  complainant and when the complainant do not want to receive any service from the O.P. by  continuing his study that to for health ground as the environment of the  institute   did  not support to the body of this  student.  It is the obligatory duty of the O.P  institute to refund  the  money and if not refunded it amounts   to  ‘unfair trade practice’ as per  Section 2(47) (viii) of C.P. Act, 2019

This commission  perused the documents filed by the  complainant and it proves that the complainant had deposited the  amounts  as per  the averments  in the  complaint  in the O.Ps institution.

It is well settled that imparting  of education by educational institutions for consideration falls with in the  ambit of service  as defined under  the Consumer Protection Act . The  complainant  hired the service of the O.Ps for consideration and as such, it is open  to the complainant  to aver and  prove that there is deficiency  in service  on the part of the  O.P in not refunding the fees.

During the course of expartehearing  the complainant  annexed  certain documents such as the deposit feesof Rs.25,000.00 bearing M.R. No. . 1037 on Dated.3.4.2020  and      Rs.51,000/- bearing M.R. No. 2637 on Dtd.19.6.2020 and  Rs.2,45,520/- bearing M.R. No.2677 on Dtd.21.08.2020  total amounting to  Rs.3,21,520/-  (Copies of the Money receipts marked as  Annexure-I to IIIwhich proves the receipt of amount  by the O.P.from the complainant  towards   B.Com Financial Year 2020—2021   &  CA foundation November, 2020  bearing  Roll No.  11).

On perusal of the complaint  thiscommission found that the O.Ps made mischief’s and  play with career   of the complainant which is unfair trade practice on the part of the O.Ps.

After carefully examining the evidence on record, we find no cogent reason  to disbelieve or discard the evidence already adduced by the complainant. The documentary evidence  tendered by the complainant clearly tends support and absolute corroboration   to  the evidence.  

In absence of any rebuttal evidence materials from the side  of   O.Ps  there is no reason to disbelieve the evidence put forth  by the  complainant  before the commission  whose evidence  suffers from no infirmity. The evidence adduced by the complainant  clearly leads us to arrive at a just conclusion that there is not only deficiency  in service  but also negligence  on the part of the O.Ps in non refunding the fees.

On careful analysis   of the evidence on record both oral and documentary, we are clearly of the opinion  thatinspite of doing the needful, the O.Ps are failed to redress the grievances of the complaint which amounts to  deficiency in service  as a result the complainant was constrained  to file this complaint before the commission  claiming the relief as sought for.  In that view  of the matter the O.P  is  liable.

This commission  observed   after receipt of the grievance, no action has been taken by the said O.Ps in ensuring refund of deposited fees  as alleged since Son of the  complainant  has left the institute due to   his sickness.  To establish his health disorder  the complainant also filed  the medical  treatment papers marked  Annexure- 3.

. Not responding to the grievance of a genuine consumer amounts to deficiency in service.

For better appreciation   this commission relied citations which are mentioned here under:-

            It is held and  reported  in C.P.R-2009(1) page No.269 the Hon’ble  State Commission, Andhra Pradesh where in observed “Where  complainant having chosen to take admission in another college demanded his money deposited  by way of refund, it was deficiency in service on part of the O.P. in not refunding  the  amount”.

            Further it is held  and reported in C.P.R-2009(1) page No. 340 the Hon’ble State Commission, Chennai where in observed “Denial of refund of tution fees to a student who withdraw from admission without joining the  class  amounts to  unfair trade practice and deficiency in service”.

            Again  it is held and  reported in C.P.R. 2006(2) page No.97 the Hon’ble State Commission, New Delhi where in observed  “ No educational institution, centre, or university can forfeit the amount received  by it  at  the time of admission in case it has not provided the  service  for which consideration was meant”.

            Further  it is held and reported  in C.P.R.2006(2) page No. 357 the Hon’ble State Commission,Pondichecy where in observed “Where a student withdraws  admission  from institution full amount of fees has to be refunded”.

            The climate has not  conducive to  the health of the student as such his health detoriate day by day  and the claimate forced him to left the town. Hence leaved the institution.

            After referring to various  judgements of the Apex Court and   Hon’ble Commissions  this  commission allowed this case in part  and concluded that  “non refund of fee in the grab of unilateral, unfair and one sided conditions pertaining  to refund is altogether  an act of unfair trade practice and the O.P.  institute is liable to make the refund of the same”.

Hence to meet  the  ends  of  justice,  the following   order is  passed.

                                                            ORDER.

            In  resultant  the complaint petition stands allowed in part  on exparte against  the O.Ps.

            The O.P. is  ordered to refund fees  amount a sum of  Rs.3,21,520/-  to the complainant  within one month from the date of  receipt of this order failing which  shall pay  interest  @ Rs.9% interest per  annum from the date of filing i.e. dated.29.10.2021  till realization.

            We therefore issued a “Cease and Desist” order against the O.P. directing  him to stop such a practice  forthwith and not to repeat in future. 

Pronounced in the open court of this Commission today on this 10^th. Day of  May, 2023 under the  seal  & signature of  this Commission.

Dictated and corrected  by me.

PRESIDENT

A copy of this order be provided to all the parties at  free of cost as mandated by the Consumer Protection Act, 2019 or they may download same from the confonet.nic.in to treat the same as if copy of order received from this Commission.

The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

File be consigned to the record room along with a copy of this Judgment.                   PRESIDENT

 

                                                              PRONOUNCED ON   Dtd. 10.05.2023