BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMRITSAR.

Consumer Complaint No. 253 of 2020

Date of Institution: 16.7.2020

                                                          Date of Decision:28.9.2021   

Miss Ridhi D/o Mr. Bhuvneshwar Sharma r/o F9/2272, Gopal Nagar, Majitha Road, Amritsar, Punjab

Complainant

Versus

Registrar, Guru Nanak Dev University, SCF 54, UT Market Grand Trunk Road, Off, NH 1, Amritsar Punjab 143005

Opposite Party

Complaint u/s  34 & 35 of the Consumer Protection Act, 2019)

Result : Complaint Dismissed

Case referred

1. TMA Pai Foundation and others Vs. State of Karnataka and others (2002) 8 SCC 481:AIR 2003 SC 355 of the  Hon'ble Supreme Court of India
2. Hon'ble State Commission, Punjab Chandigarh in case titled as Punjab Technical University and Another Vs. Anu Bala 2009(4) CLT 589
3. “Manu Solanki and others Vs. Vinayaka Mission University” decided on 20.1.2020 of  the Hon’ble National Commission
4. Hon’ble Supreme Court of India  in Civil Appeal No. 12901/2020 titled as Manu Solanki & Ors. Vs. Vinayaka Mission University & Ors.
5. Aditya Ramasubramanian Vs. Oberoi International School  and another judgement  SVKM’s Narse Monjee Institute of Management Studies Vs. Vidyut Rajendra Rajkotia  of the Hon’ble State Commission, Maharashtra, Mumbai.
6. Bihar School Examination Board Vs. Suresh Prasad Sinha of the Hon’ble Supreme Court of India in Civil Appeal No. 3911 of 2003 decided on 4^th September 2009
7. B.R. Choudhary & Anr. Vs. Punjab Technical University II(2008) CPJ 2

Counsel for the parties  :

For the  Complainant               : Sh.Vaibhav Sharma, attorney holder      

For the Opposite Party             : Ms. Kashish Sharma,Advocate

CORAM

Mr. Jagdishwar Kumar Chopra, President

Mr.Jatinder Singh Pannu, Member

ORDER:-

Mr. Jagdishwar Kumar Chopra, President :-Order of this commission will dispose of the application dated 11.9.2020 filed by the opposite party for dismissal of the complaint being not maintainable.

Brief facts and pleadings

1.       Brief facts of the case are that the complainant  was a student of Guru Nanak Dev University and has completed her degree from Guru Nanak Dev University as a regular student of MA  English (2016-18). In the month of June 2019 result was denied  and the opposite parties demanded 25 times (Rs.25000/-) more of the promised amount (Rs.1000/-) for the improvement result. The complainant intended to improve marks in her degree so she consulted student facilitation department which informed the complainant that she needed to pay Rs. 1000/- for the improvement for the single subject of any semester which is within two years from the time of completion of degree and after that she need to pay Rs. 25000/- for the improvement exam. The complainant had given the improvement fee and after  that had given all the major and minor exams of the desired subject she wanted to improve. At the time of result that was in the month of June 2019, the examination 3^rd had denied to give her the improved marks by informing her that she had not paid the improvement fee of Rs. 25000/- and told her to pay the improvement fee to which complainant relied what the Student Facilitation Centre had informed. To which authority in Examination 3 replied that the rules have now changed and facilitation might have mistaken but the complainant need to pay Rs. 25000/- more to get the result. On the same day complainant visited VC office.  When VC was not available  the complainant met Dean office who told her to give her grievance in writing . On the same day complainant give her grievances in writing which was not registered  and then Dean asked the complainant to visit the Controller of Examination and inform Controller of Examination about   the matter. After some days the complainant had gone to the Controller  of examination and informed  the Controller  of examination that the result had been denied  for the improvement fee which they had earlier promised and that the complainant was told to pay Rs. 25000/- more . The controller told the complainant that the matter will be looked into until then asked the complainant to write the application of installment. So the complainant given the application of installment. After some days when the complainant visited the controller office, he told her that she had to pay Rs. 25000/- for the improvement result and she could pay in installment. The complainant tried several times to talk to VC about the matter  and most of the times he was not available and when he was available he refused to meet the complainant for the complaint related to improvement.  The complainant at last had given the application on 6^th August 2019 of this matter to VC office . The complainant’s brother then visited the University to know about the reply to the application dated 6^th August 2019. Examination 3^rd department told the complainant brother that complainant can do nothing now as they have the application of installment. The complainant had devised for UGC Net and the eligibility for the exam of the UGC net  the complainant needed minimum 55% marks in her postgraduate degree and she got 54.9%. The aforesaid act of the opposite party amounts to deficiency in service which has caused lot of mental agony, harassment to the complainant. Vide instant complaint, complainant has sought for the following reliefs:-

 (a)     Opposite party be directed to pay in the same way to the complainant as the complainant has been wrongfully asked to pay  and the VC may be directed to pay 25 times of Rs. 25000/-  i.e. Rs. 6,25,000/-  to the complainant.

(b)     Opposite party be also directed to pay compensation as well as  litigation expenses to  the complainant ;

(b)     Any other relief to which the complainant is entitled be also awarded to the complainant.

Hence, this complaint.

2.       Upon notice , opposite party appeared and filed written version  taking preliminary objections therein inter alia that this Forum has got no jurisdiction to entertain the present complaint and as per the Landmark judgement of National Commission  in case “Manu Solanki and others Vs. Vinayaka Mission University” decided on 20.1.2020 wherein it has been held that “Consumer Forum has no jurisdiction against Educational Institutions  as they are not providing any services.” ; that complainant is not consumer of the opposite party  and as per definition u/s 2(d) of CP Act she is not a consumer of replying opposite party  as neither she buys any goods nor she hires or avail any services from the replying opposite party ; that complainant has not come to this Forum with clean hands and has suppressed material facts. Since complainant has made written request to the replying opposite party on 1.7.2019 to accept improvement  fee in easy installments and  same application was accepted by the replying opposite party  and acting on writing in the application, other co applicant Parteek Kaur had deposited fee on 24.9.2019. This clearly shows that it is complainant who is backing of from the application given to replying opposite party, as such complainant is not entitled for any relief; that no cause of action has ever arisen in favour of the complainant and against the replying opposite party ; that since replying opposite party has allowed the complainant to sit in exam so that her future may not at stake and that decision was taken in the light of application given by complainant .  On merits it was submitted that Syndicate meeting dated 30.11.2017  approved to give special chance to improve the percentage of marks/grades to the complainant with a special fee of  Rs. 25000/- for each chance alongwith separate examination fee, examination of odd with odd semester and even with even semester. It has been decided by the replying opposite party that those students who were not able to avail these chances since 2011 will be given three years  to avail the said chances as per the ordinances with requisite fee prescribed from the date of implementation of this order . All other students will avail the chances of improvement as per the aforesaid ordinances and the fee prescribed above.   The complainant has paid only Rs. 1000/- as examination fee but she could not pay special chance improvement fee of  Rs. 25000/- as per Syndicate meeting  dated 30.11.2017 that is why result stands RL. Since  the spirit of the Syndicate decision is to help every candidate aspiring for having good academic record (minimum 50% marks at graduate level) and 55% marks at masters level (or an equivalent grade in an point scale), therefore, BSC  Social science and Bachelor of design cannot stand out as exception to the aforesaid Syndicate decision. In this way two students including the complainant requested to pay special chance improvement examination fee of Rs. 25000/- (each student) in three installments within three months, controller of examinations allowed these students to pay special chance improvement examination fee  of Rs. 25000/- and vide receipt No. 1075512 dated 24.9.2019 Parteek Kaur deposited the fee  and her result declared on dated 30.9.2019. But the complainant has not paid the special chance improvement examination fee of Rs. 25000/-  even in the form of installments, that is why complainant special chance improvement examination December 2018 result stands RL. It was denied that complainant several times tried to talk to VC about the matter  and he refused to meet the complainant. While submitting that there is no deficiency in service and while denying and controverting other allegations, dismissal of complaint was prayed.

3.       Opposite party besides submitting the written version to the complaint has also  moved an application and reiterated the fact that since the complainant has filed the complaint against Guru Nanak Dev University, Amritsar which is an educational Institute and as per law this Forum (now Commission) has no jurisdiction to entertain the present complaint and relied upon the law laid down in “Manu Solanki and others Vs.  Vinayaka Mission University” and prayed for dismissal of the complaint. The application of dismissal of complaint is also supported by affidavit of Karanjeet Singh Kahlon, , Registrar.

4.       In reply to this application complainant has stated that judgement of the Hon’ble National Commission is subjudice before the Hon’ble Supreme Court of India and placed reliance upon  last order passed by  the Hon’ble Supreme Court vide its order dated 15.10.2020 vide which the order of the Hon’ble National Commission was challenged.

Evidence of the complainant and Arguments

5.       Alongwith the complaint, complainant has filed her self attested affidavit  Ex.C-1, copy of receipt of payment of improvement fee Ex.C-2, copy of Admission card of UGC (NET) Ex.C-3, copy of VC message Ex.C4A, copy of Registrar’s message Ex.C4B, copy of judgement of the Hon’ble  Supreme Court of IndiaEx.C-5, copy of letter dated 9.10.2019 Ex.C-6 and  closed her evidence. 

6.       On the other hand opposite party alongwith written version has filed affidavit  of Sh. Karanjeet Singh Kahlon, Registrar , copy of Syndicate meeting Annexure A, copy of result of 4^th Semester Annexure B, copy of letter  dated 1.7.2019  regarding installments Annexure C, receipt of payment of Rs. 25000/- by other student Parteek Kaur Annexure D, Result of 4^th Semester of Parteek Kaur Annexure E, copy of letter dated 6.8.2019 Annexure F, cop of letter dated 9.10.2019 Annexure G, postal receipt Annexure H,  Judgement of the Hon’ble National Commission Annexure I and closed the evidence on behalf of the opposite party.

7.       We have heard the complainant as well as Ld.counsel for the opposite party. However, without going into  the merits of the case, this Commission is of the considered view that the main point of issue is on the maintainability of the present complaint keeping in view of the fact that whether the complainant comes within the definition of consumer and the opposite party is a service provider.

Findings

8.       From the appreciation of the facts and circumstances of the case the only point under consideration is whether this Forum has jurisdiction to entertain the present complaint as in the instant complaint, complainant intended to improve marks in her degree , as such the dispute is  against educational institution which is not maintainable under the Consumer Protection Act . Reliance in this connection has been placed upon TMA Pai Foundation and others Vs. State of Karnataka and others (2002) 8 SCC 481:AIR 2003 SC 355 of the  Hon'ble Supreme Court of India wherein it has been held that matter regarding admission, refund of fee etc would not be covered under the Consumer Protection Act. Besides in a recent judgement of our own Hon'ble State Commission, Punjab Chandigarh in case titled as Punjab Technical University and Another Vs. Anu Bala 2009(4) CLT 589 wherein also certain amount of fee being deposited and on withdrawal amount being not refunded and fee forfeited ,complaint was filed as candidate did not avail the seat, it was held that complaint was not maintainable. Further in “Manu Solanki and others Vs. Vinayaka Mission University” decided on 20.1.2020 of  the Hon’ble National Commission  wherein it has been held that “Consumer Forum has no jurisdiction against Educational Institutions  as they are not providing any services.”

9.       However, the complainant has placed reliance upon the interim order passed by the Hon’ble Supreme Court of India  in Civil Appeal No. 12901/2020 titled as Manu Solanki & Ors. Vs. Vinayaka Mission University & Ors.  vide which the order of the Hon’ble National Commission was challenged. No doubt the appeal is admitted by the Hon’ble Supreme Court of India . But perusal of the order of the Hon’ble Supreme court has not stayed the operation of the order of the Hon’ble National Commission and the matter is still at its premature stage. So complainant cannot take advantage of the pendency of this Appeal filed before the Hon’ble Supreme Court of India.  Besides this complainant has also relied upon the Aditya Ramasubramanian Vs. Oberoi International School  and another judgement  SVKM’s Narse Monjee Institute of Management Studies Vs. Vidyut Rajendra Rajkotia  of the Hon’ble State Commission, Maharashtra, Mumbai. However, these judgements are not applicable to the present complaint as the complainant does not falls within the definition  of consumer as held by the Hon’ble National Commission in case titled as Manu Solanki & Others Vs. Vinayaka Mission University (supra). Besides this , the Commission also placed reliance upon  the judgement cited as Bihar School Examination Board Vs. Suresh Prasad Sinha of the Hon’ble Supreme Court of India in Civil Appeal No. 3911 of 2003 decided on 4^th September 2009 in which it has been categorically held that the Act does not intended to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed  a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer scripts, or furnishing of 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 complaint under the Act will not be maintainable against the board.” Further reliance has been placed upon  B.R. Choudhary & Anr. Vs. Punjab Technical University II(2008) CPJ 2 in which it has been held that “services rendered on basis of statutory provisions cannot be construed  as rendering of service for consideration- Complainant not consumer-Complaint dismissed by Forum- Order upheld in Appeal.”

10.     This Commission has given thoughtful consideration to all the judgements and keeping in view the consistent view as discussed above, this Commission has no hesitation to hold  that complainant is not a consumer under the Consumer Protection Act. Similarly opposite party is not a service provider as categorically held by the Hon’ble Supreme  Court in case Bihar School Examination Board Vs. Suresh Prasad Sinha (Supra) .

11.     The ratio of the judgements as discussed above is fully applicable to the facts of the present complaint. Hence, the application moved by the opposite party for dismissal of the complaint is allowed. Certainly  the complaint is not maintainable  and since this Commission has accepted the application of the opposite party on the ground of maintainability, the present complaint is hereby dismissed as not covered under the Consumer Protection Act. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission.

Announced in Open Commission               (Jagdishwar Kumar Chopra)                                                                                                                                                                                                            President

Dated: 28.9.2021

                                                      (Jatinder Singh Pannu)      

                                                                                      Member