BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 287/2005 Filed on 08.08.2005
Dated : 30.09.2011
Complainant :
Muhammed Hussain, S/o Abdul Khader, E.V. House, Pangode, Thiruvananthapuram.
(By adv. K. Satheesh Kumar)
Opposite parties :
The Chief Executive, Academy of Management Studies, Meads Lane, Near Jubilee Hospital, Palayam, Thiruvananthapuram-34.
Annie Srivastava, Chief Executive, Academy of Management Studies, Meads Lane, Near Jubilee Hospital, Palayam, Thiruvananthapuram-34.
(By adv. R. Balakrishnan Nair)
This O.P having been heard on 29.07.2011, the Forum on 30.09.2011 delivered the following:
ORDER
SMT. S.K.SREELA: MEMBER
The grievance of the complainant is as follows: The opposite parties have advertised and solicited application for the course of study/training leading to 'Diploma in IATA-Airlines Ticketing Course' and that the complainant has joined the said course duly admitted by the opposite parties for the same. The complainant has paid/remitted the fees and dues as prescribed by the opposite party in accordance to their prospectus and instructions thereof. This complainant has satisfactorily completed the duration of the course set for the award of the above Diploma and was in preparedness to submit and appear for the examination and that he was prevented from appearing for the examination for the Hall Ticket/Admission Card was not issued to him by the opposite parties. That this complainant has paid/remitted to the opposite parties by way of fees and course expenses an amount of Rs. 21,000/- and has incurred an expenditure amounting to Rs. 24,000/- to sustain him to undergo the course of study over a period of 8 months. That it could be the exclusive outlook and responsibility thereof of the opposite parties to obtain the Hall Ticket/Admission Card in favour of the complainant to facilitate him to appear for the examination in view of details on para supra. Hence it could be seen that there exists deficiency of service and unfair trade practice on the part of the opposite parties. That the complainant thus is a looser of 8 months period in his span, leave alone the mental agony, loss and hardship to which he was subjected to. This complainant is entitled therefore for a compensation of Rs. 50,000/- towards fees and course expenses paid to the opposite parties and towards loss, hardship and mental agony sustained by this complainant on this score. Hence this complaint.
Opposite parties have filed their joint version contending as follows: This complaint is not maintainable either under law or on facts. The complainant is not a consumer as he has not hired the services nor he has purchased anything from the opposite parties. The opposite party has offered coaching, tuition, and training to the candidates who wished to appear and sit for the examination of IATA, an International Diploma Course conducted and awarded by IATA Board, Canada. The opposite party is not directly conducting any examination of IATA, but imparting training and coaching to prepare the candidates to appear for the examination of IATA, an International Diploma Course conducted and awarded by IATA Board, Canada. The complainant admits that he had satisfactorily completed the duration of the coaching. The complainant failed to collect the course materials and the Examination Voucher sent by IATA Board, to him directly by couriers to his given house address and further he has failed to make alternative arrangement to collect the same from couriers, which forced the couriers to return the same to Chennai. On knowing the non-receipt of the course materials and the Examination Voucher the opposite party traced the same at the DHL office at Chennai and made arrangement to dispatch the same again to the complainant at his house. But on 07.02.2005 when the course material and the examination voucher were collected by the complainant, the last date fixed for the registration of the examination was already expired on 05.01.2005. There was no lapse or omission occurred from the side of the opposite party in the matter of delay occurred. There is no deficiency of service from the part of the opposite party in this case. There was no trade or sale or purchase between the complainant and the opposite party, as such there is no unfair trade practice in this case. The complainant is not entitled for any compensation from the opposite party. The complainant is not entitled to get back the tuition fees paid by him. The complainant has not sustained any loss, hardship or mental agony in this matter. The complainant alone is at fault in the matter of the non-receipt of the Examination Voucher well in advance, so as to apply for the Hall ticket and Examination before the last date fixed for the same.
Complainant's Power of Attorney holder has been examined as PW1 and Exts. P1 to P5 were marked on behalf of the complainant. DW1 has been examined on the part of the opposite parties and Ext. D1 has been marked.
The points for consideration are:-
Whether the complainant is a consumer as per the Consumer Protection Act?
Whether there is any deficiency in service on the part of the opposite parties?
Whether the complainant is entitled for any reliefs as claimed in the complaint?
Points (i) & (ii):- It is the case of the complainant that after remitting the fees and course expenses, the opposite parties failed to obtain the hall ticket/examination card to the complainant preventing him from appearing for the examination which according to the complainant is a deficiency in service and unfair trade practice on the part of the opposite parties. But the opposite parties besides their contention that the complainant is not a consumer have contended that, the opposite party is offering training in all aspects, that the opposite party helps and guide the students/candidates to get the course materials directly from Canada through courier to the candidates' individual names and address. The registration fees, examination fees etc. are to be sent by DD in US dollars directly to the IATA Board, Canada by the candidates individually. That on enquiry by the opposite parties it was known that the study materials sent to the complainant on the address mentioned was sent from Canada through DHL Couriers and since there was no one available to receive the courier, the same was sent back to Chennai office of DHL for non-receipt. The opposite parties have contended that there is no deficiency in service or unfair trade practice on their side. To the question put by the learned counsel for the opposite party, PW1 had deposed that “പരീക്ഷ നടത്തി certificate നല്കാമെന്ന് prospectus-ല് പറഞ്ഞിട്ടുണ്ടോ? (Q) Prospectus-ല് പറഞ്ഞിട്ടില്ല (A)”. We have gone through the prospectus which are marked as Ext. D1 and Ext. P5. As per the Prospectus, the very first page reads as follows: “............... We at AMS impart systematic job oriented training programmes for job aspirants and success conscious executives. Academy for Management Studies is the fore front in the field of training and development of youngsters for the past eight years. Now with strategic alliances with reputed National International Hotel groups, it offers training in Hotel Management, Airline Management, Professional Cookery etc. using modern curriculum and methodology”. Furthermore Ext. P1 series receipts issued by the opposite parties show that total amount of Rs. 20,300/- has been received from the complainant by the opposite parties. Complainant has pleaded that he had incurred an expenditure amounting to Rs. 24,000/- to undergo the course of study over a period of 8 months which is not supported by any documents. It has been deposed by PW1 that “പണം ഒടുക്കേണ്ട ചുമതല OP സ്ഥാപനത്തിനുണ്ടോ? (Q) Prospectus-ല് പറഞ്ഞിട്ടില്ലെങ്കിലും അതിന്റെ ഉത്തരവാദിത്വം OPസ്ഥാപനത്തിന് ഉണ്ട്(A)അങ്ങനെ പറയുന്നത് ഫീസ് ഒടുക്കിയ രേഖകളുടെ അടിസ്ഥാനത്തിലാണ്. സ്ഥാപനത്തിന്റെ പേരിലാണോ Dollar പോകുന്നത്? (Q) ഓരോ student ന്റേയും പേരിലാണ് പോകുന്നത്(A). The tuition fee and duration are mentioned in the Prospectus wherein it has been stated that “The IATA Exam Fee will be regulated according to the IATA norms and conditions”. Further in the prospectus it has been stated that “Through our coaching each student is groomed to take the challenge of facing the international examination”. DW1 has deposed that they have no authority over the examination and there is no relation between the institution and the examination. Anyhow, from the evidence it could be seen that the complainant was knowing the fact that the delay in receiving the hall ticket was due to courier delay. PW1 has deposed that besides courier delay, the delay has been caused since the opposite party has delayed in making the payment in Canada in time. But as per the prospectus there is no whisper regarding the payment of fees by the opposite party as alleged by the complainant. It is further submitted by the opposite parties that the opposite parties have no responsibility to obtain the Hall ticket/Admission Card in favour of the complainant to facilitate him to appear for the examinations. Every candidate has to file independent application form accompanied by independent and individual demand drafts by stating his/her name in the D.D and get the individual registration from the IATA Board, Canada. The Course materials and the individual examination voucher will be sent to the candidates independently to his/her individual address directly from the IATA Board, Canada. That the opposite party never agreed, assured or undertook to the complainant to make available the Hall Ticket/Admission Card as their responsibility. That the opposite party has got no power to do so.
The learned counsel for the opposite parties has taken out a contention that the complainant was a private student under the opposite parties, for getting coaching and tuition and practical training so as to appear for an examination of IATA, an International Diploma Course conducted and awarded by IATA Board, Canada. Tuition and imparting of special coaching and special training, as well as preparing the candidates for Examinations will not come under the purview of the Consumer Protection Act. The learned counsel for the opposite parties had argued that they were acting only as agents and produced decisions in support of his contention. As per the decision of the Hon'ble Apex court in Bihar School Examination Boards Vs. Suresh Prasad Sinha, reported in 2009 SAR (Civil) 1024 Supreme Court, it has been held that, “The Board is a statutory authority established under the Bihar School Examination Board Act 1952. The function of the Board is to conduct school examinations, .......…. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its “services” to any candidate.......... 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.…...... The fact that in the course of conduct of the examination, or evaluation of answer-scripts, or furnishing mark-sheets 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”. Further in 2010(2) KLT 1039, produced by the counsel for the opposite parties, the Hon'ble High Court has held that “the College does not have any role in matter of holding examination other than to participate as duly controlled agent of University to conduct examination. University could not have been sued before CDRF by treating it as a service provider. Student could not have been treated as a consumer”.
Taking into consideration the above decisions, we find that the decisions mentioned supra are squarely applicable in this case in hand. Hence for the foregoing discussions, we find that the complainant is not a consumer as envisaged in Consumer Protection Act and the complainant has failed to prove otherwise.
In the result, complaint is dismissed. No order as to costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of September 2011.
Sd/-
S.K. SREELA : MEMBER
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
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C.C. No. 287/2005
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Muhammed Hussain
II COMPLAINANT'S DOCUMENTS :
P1 - Receipt No. 5368 dated 25.06.2004.
P1(a) - Receipt No. 5095 dated 01.07.2004.
P1(b) - Receipt No. 8030 dated 10.09.2004.
P1(c) - Receipt No. 8100 dated 27.12.2004.
P1(d) - Receipt No. 9369 dated 27.12.2004.
P2 - Course certificate dated 05.04.2005
P3 - Advocate notice dated 19.04.2005
P4 - Postal receipt and acknowledgement card
P5 - Prospectus.
III OPPOSITE PARTY'S WITNESS :
DW1 - Annie Sreevasthava
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Prospectus
Sd/-
PRESIDENT
