BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    31^st DAY OF JANUARY 2019

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct OPs to pay total sum of Rs.1,65,800/- to the complainant as compensation for the deficiency of the service and future interest on the claim amount from the date of the claim and to grant cost of the litigation Rs.5,000/- and such other reliefs.

2. The brief allegations made in the complaint are as under:

That the complainant is the trainee and joined the OPs institution.  That the OPs have promised the complainant that they will provide good service to hold PG Diploma in audio and video productions and provide good quality of training to succeed in the said PG Diploma course.  OPs.1 & 2 have also advertised and also issued pamphlets in this regard.  By believing the OPs.1 & 2 promises as made in the prospectus.  The complainant attracted to hold Diploma degree in audio and video productions through institutions of the OPs.  The complainant has attracted only because of attractive promises made by the OPs.  The complainant approached OPs.1 & 2 institution and got prospectus of the said institution.  OPs.1 & 2 have promised the complainant that, the respondents institution is affiliate and associated with the Karnataka State Open University and providing good training as well as, conduct the courses only by qualified and well experienced staff of the OPs.1 & 2 institution.  The complainant is forced to believe all the promises of the OPs and services offered in the prospect of the OP and joined one year academic course of PG Diploma in audio and video production commencing from 2008-2009.  The OPs have collected a sum of Rs.15,800/- from the complainant through DD and cash.  The OPs have received the money but totally failed to keep their promises by providing better service to the complainant.  That OPs.1 and 2 have admitted the complainant as a student after collecting huge amount from the complainant and also issued identity card to the complainant.  After issuance of the identity card, the OPs.1 & 2 as well as officers of the said institution informed that, the OP will intimate the complainant to receive the prescribed course book, commencement date of the courses etc., for the said one year academic course consisting two semester and maximum duration of two years.  Unfortunately there is no further communication for the commencement of the classes from the institution side.  However, the complainant visited and sent several letters to the institution of the OPs.1 & 2 on several occasion but the respondent have continuously post-phoned about the conduct of the classes and books were also not provided.

That the complainant has made several visits to the OPs institution to confirm the date of commencement of classes literally, the OPs have not at all conducted training/classes and it is also found that there is no experienced qualified staff to conduct the courses.  The OPs totally failed to conduct the classes as well as, no required infrastructures in the OPs institution.  It is also found that the OP-1 institution is also not affiliated to the Karnataka Open University.  The OPs also failed to intimate the date of exam and no library facilities.  In other words, the OPs.1 & 2 have totally failed to provide service even after receipt of huge amount and spoiled one academic year of the complainant.  That the OPs.1 & 2 are held liable to repay the entire amount of Rs.15,800/- with compensation for harassment, false promises failure in conducting the course, failure to allow the complainant to attend the examination, spoil of one academic year of the complainant, harassment and tension and the complainant has computed his damages for a tune of Rs.1,50,000/- as compensation.  That the complainant has issued the notice demanding OPs to pay sum of Rs.15,800/- and Rs.1,50,000/- within 15 days but OPs have not paid the said amount or not given any reply to the complainant.  The OPs have provided defective service and caused severe damages and spoiled the precious life time of the complainant.  Prior to issue of the legal notice the complainant also sent e-mails as well as also personally visited on several occasions but there is no fruitful result so for except assurance by the OPs.  That the OPs have committed the deficiency of service without providing necessary service as assured by them, hence the OPs are jointly and severally held liable to pay the compensation as prayed by the complainant.  Hence this complaint. 

3. In response to the notice issued, OPs.1 & 2 appeared through their advocate and filed their version contending in brief as under:

That the complainant has sought for compensation of Rs.1,65,800/- together with litigation expenses of Rs.5,000/- alleging deficiency of service against the OP.  The complaint is not maintainable either in law or on facts.  There is no consumer dispute between the parties.  The complainant has made an attempt to make unlawful gain.  He has totally suppressed the facts.  Perhaps to cover up his folly, he has filed the above complaint.  The complaint is false, frivolous and vexatious.  There is no post of Principal or Head of the department in Dayananda Sagar Global Education.  The complainant, who is supposed to be a student of the OP institution does not even know about the organization, OPs.1 & 2 are not aware where he met Principal or HOD which is not existent.  This shows the utter lack of sincerity in complaint and carelessness on his part.  That on 15^th April 2008 complainant met Assistant Manager, Study Centre and Student Affairs with an application for admission in P.G Diploma in Audio and Video production.  Assistant Manager told that he is the only student who has came for admission in the said course and showed reluctance to admit him because it is difficult to run a course with only one student.  However, the complainant requested that he is computer savvy and is working in IBM so he does not need much support.  He wants to appear in the examination as he himself knows most of the things (which was of course not true).  After much pestering Assistant Manager accepted his application.  He submitted bank draft for Rs.5,300/- in the name of Karnataka State Open University (OP-3) and Rs.10,500/- in the name of Dayananda Sagar Global Education (DSGE).  His application was forwarded to Karnataka State Open University and he was admitted in the course and was issued ID card as well as roll number.  The prospectus was also issued to him at the time of admission and all information was lying there.  No verbal promises of any sort were made by the OPs.1 & 2 as they are non-existent.  The OPs failed to understand how he could meet them.

That the OP received a lawyer notice dated 31.03.2009 on behalf of the complainant.  After that the OP tried to contact him but could not contact on his phone.  However, the OP contacted IBM office at Bangalore and enquired from him about the whereabouts of complainant.  They said that he is not their employee and that he has not taken any permission for pursuing P.G Diploma course of KSOU.  If he would have come to visit them he will have to take leave from IBM.  There was no record of any leave in IBM.  This means that his statement that he visited DSGE a number of times is totally false and malicious.  Complainant was given book computer fundamentals and CD’s and e-mail of course materials of following subjects.

a) Fundamental of computer-hardcopy was given.

b) Image magic (photoshop and coral draw) – soft copy.

c) Story Boarding – Soft copy.

d) Concept of 2D animation (flash) – soft copy.

e) Concept of Audio – soft copy

f) Working with Audio.

The Institution has two very well qualified staff, a studio, a sectional library consisting of 45000 books and 150 computers for reading.  Hence his contention that there is no qualified staff, equipment, and library is totally false.  The complainant could have visited any of the staff of the OP for any help after going through the books.  It is a system of distance education and the student is supposed to get counseling after he goes through the study material from the teacher concerned or even get practical lessons.  In fact, the complainant though that it is a cakewalk to get a degree under distance education but when he got the study materials, he found that he cannot pass so easily unless he reads hard.  Hence he never came for any counseling from teacher and lost interest.  Complainant has stated that Dayananda Sagar Global Education is not affiliated to Karnataka State Open University.  Dayananda Sagar Global Education is study centre of Karnataka State Open University.  There is no affiliation in Distance Education.  It is the system of study centre.  In fact the OP institution is one such study centre.  In fact, if Dayananda Sagar Global Education would not have been a study centre, how he could give a bank draft of Rs.530/- in the name of Karnataka State Open University.  So this is totally false accusation.  The OP-3 has collected the registration fee and the OP-1 and 2 institution have collected the fee for providing study material.  The complainant for the reason best known to him did not turn up to pursue his studies, forthwith, the OP is not responsible or liable.  That as for as examination is concerned, this is the duty of Karnataka State Open University.  University has to complete a number of formalities before the examination of a new course is arranged and it takes time.  If the examination is not arranged, the complainant has to take up the matter with the OP-3 either for refund of Rs.5,300/- or for conducting the examination.  Complainant has taken the plea of deficiency of service which is totally false.  After all university or institution is not a service organization.  University can only guide the student but the student has to read himself.  When he found that it is not his cup of tea to pass the course, he took decision to approach this Forum on a flimsy ground of deficiency in service.  As far as Dayananda Sagar Global Education is concerned, it has given all academic materials and help whatever is needed and whatever he asked for.

For the reasons mentioned above, OPs.1 & 2 prays for dismissal of the complaint with exemplary costs.

4. OP-3 filed version contending that, the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine.  The Karnataka State Open University has been constituted under “The Karnataka State Open University Act 1992” (The Act No.46/1994), having its objectives to impart education through distance education system for the benefit of common people at large.  This is to encourage and improve the standard of education through distance education system.  That the complainant has neither ‘hired’ services of the OP nor this OP has rendered any services to the complainant for ‘consideration’.  The complaint is not maintainable since the complainant is not a ‘consumer’ within the meaning of section 2(1)(d) of the Act, so also the functions of the OP University are not covered under the term ‘service’, as defined under the section 2(1)(o) of the C.P Act.  That the complaint is denied as false and concocted, except to the fact of payment of the fee by the complainant.  It is true that this OP University is imparting PG Diploma in Audio and Video productions through distance education system under partnership with the M/s.Dayananda Sagar Global Education, Bangalore (hereinafter referred to as ‘DGSE’).  That it is reliably learnt and ascertained from DGSE that, the complainant came to the office of DGSE in the month of April 2008 enquiring about admission to PG Diploma in Audio and Video production.  The authorities of DGSE have explained him that there was no student  turn out for the said course and he was the only student who was seeking admission for the said course and explained their reluctance to admit him to the said course as it was difficult to run the course with only one student.  Inspite of the same, the complainant persisted upon for admission for the said course explaining that he was a computer expert and working in IBM as such he does not require much support and requested for admission.  When such being the fact the allegations at paragraphs 3 & 4 of the complainant regarding advertisement and promises etc., holds no water.

Admittedly on receipt of the application and prescribed fee from the complainant the OP authorities have scrutinized his application and admitted to the course sought by him.  That the methodology of instruction in the distance education system is different from that of conventional mode.  The Open University is Learner-oriented as such the candidate is invariably an active participant in the teaching-learning process.  Most of the information/instructions are imparted through distance communication by anyone or combining the following modes i.e., self-instructional printed material, Audio & Video, website information, face-to-face counseling at study centers by academic counselors, assignments and field based projects etc.  The complainant has been issued with his first semester course materials along with the soft copies of the same.  The receipt of the same has been duly acknowledged by the complainant.  The complainant has made baseless concealing materials fact so as to make ground for this frivolous litigation.

That the complaint as filed is premature and misconceived for the reason that the maximum course duration prescribed for PG Diploma in Audio and Video production comprising of 2 semesters, is two years.  This aspect has been made clear to all the candidates seeking admission of PG Diploma in Audio and Video production in the prospectus at page number 20 under the head “course duration”.  That the complainant has availed the admission for the said course in the year 2008-2009.  Admittedly his course duration will end in the year 2009-2010.  That the complainant is the only student who has availed the admission for PG Diploma in Audio and Video production in the year 2008-2009 under the said circumstances, it was not proper and practical for this OP to conduct examination to the only student.  The fee paid by the complainant cannot be refunded before the expiry of the course duration to which he has been admitted.  The allegations to the effect that the OPs have not at all confirmed the date of commencement of classes and there are no experienced and qualified staff etc., are not correct.  DSGE is having qualified and experienced staff coupled with sectional library besides central library consisting of 45000 books and a well equipped laboratory consisting of 150 computers and other essential tools.  In the distance education mode the student is supposed to get counseling after he goes through the study material.  In this case as the complainant is the only student admitted for the PG Diploma in Audio and Video production, at the time of his admission itself he has informed to make use of the Library, Laboratory facility available in the DSGE and avail the counseling if required from the qualified and experienced staff appointed by the DSGE.  That the complainant being aware of all these aspects without adopting proper course of action has rushed to this Forum with a view to tarnish the image of OP University.  That when the complainant found that it is not a cakewalk to get the degree unless he put efforts and work hard, he has come up with the complaint concealing material facts.  The complainant has failed to make use of the opportunity available with him and adopt proper course of action to prosecute his education.  The complaint is bad for non-joinder of necessary parties.

For the reasons mentioned above, OP-3 prays for dismissal of the complaint with cost.

5. The complainant in support of his case tendered his affidavit evidence reiterating the allegations made in the complaint.  One Sri.Galiswamy S/o Galappa, tendered his evidence by way of affidavit on behalf of OPs.1 & 2.  Complainant and OP-3 produced certain documents.  Written arguments have been filed.  We have also heard oral arguments.

6. The points that arise for our consideration are:

        7. Our answer to the above points are as under:

REASONS

8. Point No.1:- We have briefly stated the contents of the complaint as well as the version filed by OPs1, 2 & 3.  The undisputed facts which reveals from the pleadings of the parties goes to show that the complainant has approached the OPs.1 & 2 on 15^th April 2008 for admission in PG Diploma in Audio and Video production.  On considering the request that, he is computer savvy and is working in IBM so he does not need much support as for his say given admission.  Accordingly the complainant submitted the Bank draft of Rs.5,300/- in the name of OP-3 University and Rs.10,500/- in the name of OPs.1 & 2.  The application submitted by the complainant has been forwarded to the Karnataka State Open University and he was admitted to the course and was issued ID as well as roll number.  Thereafter OPs received a lawyer notice dated 31.03.2009 on behalf of the complainant.  Thereafter they tried to contact the complainant but he was not found.  However, OPs.1 & 2 contacted IBM office of Bangalore and enquired whereabouts of the complainant.  They said that he was not their employee and he has not taken any permission for pursuing PG Diploma course of Karnataka State Open University.  If he would have come to visit them he ought to have to take leave from IBM.  In this context, there was no record on any leave with IBM.  OP No.1 & 2 also stated that basic amenities have been provided to the complainant to pursue the said Diploma course as stated in para-5 of the version.  It is a system of distance education and student is supposed to get counseling after he goes through the study material from the teacher concerned or he even get practical lessons but the complainant has not availed the said facility but he found that he cannot pass so easily unless he reads hard, hence he never came for any counseling from teacher and lost interest.  Further contended that, there is no affiliation in distance education.  OPs.1 & 2 are the study centre.  In fact if the said Dayananda Sagar Global Education would not have been a study centre, how the complainant could give a bank draft of Rs.5,300/- in the name of Karnataka State Open University?  Further stated that, OP-3 has collected the registration fee and OPs.1 & 2 Institution have collected the fee for providing study material.  This fact is not specifically denied by the complainant in his affidavit evidence.  If these factors are taken into consideration, goes to show that, after getting the admission complainant did not turn up for counseling and also to take the necessary guidelines.  In this context, we are of the opinion that, there is no any deficiency on the part of OPs.1 and 2.

9. Turning to the contention taken by OP-3 which is Karnataka State Open University contended that, the claim of the complainant is come within the purview of this Forum, in the light of the following decisions.

The Hon’ble National Commission in, Registrar (Evaluation) Karnataka University V/s Poornima G Bhandari, reported in 1994(2) 1994(2) CPC 101 (N.C) has held that “in conducting Examination, Valuing Answer papers and publishing results the University was not performing any service for consideration and candidate cannot be regarded as a person who had hired or avail of the services of the University for a consideration.  The complainant was not therefore a consumer, entitled to seek any relief under the Consumer Protection Act”.

Ramdeobaba Engineering College V/s Sushant Yuvaraj Rode and another reported 1994 (3) CPJ 160 & 1995 (2) CLT 439, has held that, Education college fee-Refund of-complainant-paid admission fee after obtaining admission.  He also got admission in another college.  He requested the first college to refund the admission fee, held that there is no deficiency in service.  Complainant withdrew from the college voluntarily non-refund of admission fee is not a deficiency in service.

In Alex.J.Rebellow V/s Vice-chancellor, Bangalore University and others reported in, 2003 (2 CLT (NC) 549, The National Commission has held that, Consumer-Services-Education-Examination-Revaluation-result not declared within a reasonable time-complainant paying examination fee and subsequently applying for revaluation-whether the complainant is a consumer within the meaning of its definition in the C.P Act-Held No.

In Registrar (Evaluation), Karnataka University V/s Poornima G.Bhandari, it has been held that “while conducting Examination, evaluating Answer papers and publishing results the University was not performing any service for consideration and candidate cannot be regarded as a person who had hired or availed the services of the University for a consideration.

10. Further contended that the Open University is Learner-oriented as such the candidate is invariably an active participant in the teaching-learning process.  Most of the information/instructions are imparted through distance communication by any one or combining the following modes i.e., Self-instructional printed material, Audio & Video, website information, face-to-face counseling at study centers by academic counselors, assignments and filed based projects etc.  In the instant case, the complainant has not completed the said process being adopted by the Open University as well as the study centre who are OP-3, OP-1 and OP-2 respectively.  Viewed from any angle the complaint filed by the complainant is lacking merits and liable to be dismissed as there is no any laxity on the part of OPs.1, 2 & 3 much less deficiency of service.  Accordingly we answered point No.1.

          11. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is dismissed.  Looking to the circumstances of the case, we direct both the parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 31^st day of January 2019)

MEMBER                                                              PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 31.08.2009.

Sri.Qaiser Amin.

Documents produced by the complainant:

Witnesses examined on behalf of the OPs.1 & 2 dated 12.10.2009.

               Sri.Galiswamy.

Document produced by the Opposite party/s.1 & 2 - Nil.

Document produced by the Opposite party-3.

MEMBER                                                               PRESIDENT

Vln*