Judgment : Dt. 15.1.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed by Sk. Tawsif Hossain under section 12 of C.P.Act, 1986 against opposite parties (1) Combine-1 Service through Mrinal Kanti Saha, (2) Sri Mrinal Kanti Saha and (3) Maharshi Dayanand University.
Case of the Complainant in brief is that the Complainant intended to pursue B.Sc. in Interior Designing course through distance education programme to be imparted by the OP No.3 namely Maharshi Dayanand University and came to know that the OP No.1 namely Combine-1 being their study center at Kolkata Zone and, therefore, approached the OP No.1 for regisgtration as a student of the said course under the said university and accordingly paid Rs.18,954/- towards admission fee in the manner that Rs.16,854/- vide cheque being No.583019 dt.16.01.2013 and Rs.2,100/- in cash at the office of OP No.1 and accordingly, the OP No.1 sent a customer ID via mail on 16.01.2013 to the Complainant’s personal mail ID. Thereafter, as stated by the Complainant, he was informed through mail dt.16.3.2013 from the authority of Combine-1 that he got admitted on 16.01.2013 to the said course by paying entire amount of fees but no study material had been sent to him till date and waited till 18.7.2013 and thereafter on 18.3.2014 sent mails to the OP No.2 for refund of the admission fees of Rs.18,954/-. It is stated by the Complainant that over telephonic discussion the OP No.2 authority assured him of refund of the amount but, in reality they did not and, therefore, on 17.3.2016, the Complainant sent a mail describing that the authority misappropriated the money and also wasted the valuable time of him by not sending the study material to him. It is also stated by the Complainant that he sent a demand notice dt.16.8.2016 to the OP No.1 through his Ld. Advocate but the same had been returned with post remark ‘Left’ on it and thereafter sent another notice dt.27.8.2016 through ‘Professional Courier’ and again notice came with remark “Party refused”. Hence, the Complainant has prayed for direction upon the OPs to refund Rs.18,954/- along with interest @ 8% p.a., to Rs.5,00,000/- as compensation and Rs.25,000/- towards litigation cost.
Notices were served upon the OPs through paper publication but OP No.1 & 2 did not contest the case so the case was proceeded ex-parte against them vide order No.18 dt.9.8.2017.
OP No.3 contested the case by filing written version denying and disputing all the material allegations made out in the petition of complaint stating, inter alia, that the OP No.3 cannot be impleaded as opposite party to the instant case since the OP No.3 is in no way connected with the OP No.1 & 2 as the OP No.1 is not their authorized study centre and the OP No.2 viz. the Director of OP No.1 are not their authorized agents. It is further stated by the OP No.3 that they are a State recognized university and their mission is to impart education and therefore, they cannot be impleaded as opposite party in any Consumer dispute since it is held by the Hon’ble Supreme Court in “Maharshi Dayananda University vs Suresh Kumar” that education is neither a commodity nor service. Accordingly, the OP No.3 has prayed for dismissal of the case with special cost.
Parties adduced evidence on affidavit followed by cross examination and reply thereto.
In course of hearing Ld. Advocate for the Complainant submitted that his client had paid Rs.19,854/- to the Study Centre but the Study Centre did not supply study material to the Complainant and due to their negligence, the Complainant was deprived of writing examination. Ld. Advocte for OP No.3 stated that Combine 41 is not their authorized Study Centre and thus averment has not been challenged by the Complainant. Further, Ld. Advocate for OP No.3 submitted that Educational Institution should not come under the domain of C.P.Act. In support of this contention, OP No.3 relied upon the decisions of Hon’ble Supreme Court in Civil appeal No.6807 of 2008 [Maharshi Dayanand University vs Surjeet Kaur] and Civil Appeal No.3911 of 2003 [Bihar School Examination Board vs Suresh Prasad Sinha].
Points for determination
- Is the Complainant a consumer under the OPs?
- Is there deficiency in providing service on the part of the OPs?
- Is the Complainant entitled to get relief as prayed for?
Decision with reasons
Point No.1 - It is evident from the photocopy of the cheque being No.5 dt.16.1.2013 and the money receipt issued by the OP No.1 that the Complainant had paid Rs.18,954/- for admission to the B.Sc. Interior Designing Course under the Maharshi Dayananda University. It is, therefore, evident that the promised service which was to have been provided by the OP No.1 and its Director OP No.2 was to facilitate the admission of the Complainant to the B.Sc Course to the Maharshi Dayananda University against receiving consideration. The OP Nos.1 & 2 do not imparting education rather only provide service for getting admitted into the desired course under Maharshi Dayananda University against consideration. Thus, the Complainant has become consumer under OP Nos.1 & 2.
Relying upon the decision of Hon’ble Supreme Court we hold that the Complainant cannot be considered as a consumer under the OP No.3. In the paragraph No.7 of the affidavit-on-evidence filed by the OP No.3 it appears that the OP No.3 University authorized Global Study Centre (Code No.202128046 NARD GROUP) which has confirmed by a letter dt.15.6.2017 that the OP No.1 is not their Centre. Considering such evidence we also hold that the OP Nos.1 & 2 are not the agent of the OP No.3 and, therefore, the OP No.3 has no vicarious liability in respect of OP No.1 & 2.
Point No.1 is decided accordingly.
Point No.2 - It is evident from the evidence on affidavit filed by the Complainant dwhich is unrebutted by the OP Nos.1 & 2 and the documents annexed thereto i.e. copies of cheque and receipt that the OP No.1 received an amount of Rs.18.954/- from the Complainant towards admission fees to the Course of B.Sc, Interior Designing under Maharshi Dayananda University, but fact remains that, the OP No.1 did not arrange for admission as well as providing study materials to the Complainant. Such deviation from the promised service amounts to deficiency o n the part of OP No.1 and its Director, the OP No.2.
Point No.2 is decided accordingly.
Point No.3 - The Complainant has prayed for refund of Rs.18,954/- along with interest @ 18% p.a.,Rs.5,00,000/- for compensation and Rs.25,000/- towards cost of litigation.
Since the admission to the desired Course has not been taken place the OP Nos.1 & 2 are liable to refund the said amount of Rs.18,954/-.
Awarding interest is a form of compensation therefore awarding compensation and interest will be double jeopardy to the OP Nos.1 & 2 for some offence. Hence, we think it will be just and proper if the Complainant gets Rs.20,000/- in form of compensation. As regards litigation cost, we are inclined to allow Rs.10,000/- to the Complainant.
Point No.3 is decided accordingly.
In the result, the petition of complaint succeeds in part.
Hence,
ordered
That CC/15/2017 is allowed in part ex-parte against OP Nos.1 & 2 with cost and dismissed on contest against the OP No.3 without cost.
The OP Nos.1 & 2 are directed, jointly and severally, to refund Rs.18,954/- toward refund of fees, Rs.20,000/- towards compensation and Rs.10,000/- towards litigation cost to the Complainant within one month from the date of communication of this order to them failing which the entire sum will carry an interest @ 10% p.a. for the default period.
