Delhi

StateCommission

FA/12/602

SUSANTA KR. PAL - Complainant(s)

Versus

IGNOU & ORS - Opp.Party(s)

29 Nov 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of hearing : 29.11.2018

Date of Decision:11.12.2018

First Appeal No.602/2012

In the matter of:

Sh. Susanta Kumar Pal Chamber No. 464-466, Civil Side, Tis Hazari Court, Delhi-110054

:

Counsel for the Appellant Sh. S. V. Kulkarni, Advocate alongwith Appellant

 

Versus

	The Coordinator IGNOU Study Centre, Kirori Mal College, Delhi University, Delhi-110007	:	Proxy Counsel for the respondent Sh. Yasheshwar Chander, Advocate
	Indira Gandhi National Open University Maidan Garhi, New Delhi-110068 (Through Vice Chancellor)
	The Director (Evaluation), Indira Gandhi National Open University Maidan Garhi, New Delhi-110068
	Shri I. C. Sharma, Assistant Registrar (Evaluation), Indira Gandhi National Open University Maidan Garhi, New Delhi-110068

                                   

CORAM        :           ANIL SRIVASTAVA, MEMBER

 

1.         Whether reporters of local newspaper be allowed to see the judgment?                   Yes

2.         To be referred to the reporter or not?                                                                  Yes

 

 

 

ANIL SRIVASTAVA– MEMBER

 

JUDGEMENT

1.                Aggrieved by an order dated 29.05.2012 passed by the District Forum (North), Tis Hazari, Delhi in complaint no. 1102/2006 in the matter of Susanta Kumar Pal vs. IGNOU & Others dismissing the complaint on the ground that the complainant is not covered within the definition of ‘Consumer’ under Section 2 (1)(d) of the Consumer Protection Act (the Act), Sh. Susanta Kumar Pal has filed an appeal before this Commission for short Appellant/ OP1, under Section 15 of the Consumer Protection Act-1986, the Act, against IGNOUR, hereinafter referred to as Respondent, praying for setting aside the orders impugned and for the relief prayed for in the complaint. 

 

2.                Facts of the case, necessary for the adjudication of the appeal, are these.

 

3.                The complainant had filed a complaint having not been conferred with B.A. degree he was entitled to and eligible for, he having qualified the examination conducted by the IGNOU had filed a Civil Suit for mandatory injunction in the Court of Senior Civil Judge on 29.05.1995.  Later, on the Degree having been conferred, the complainant had withdrawn the suit unconditionally but later he had filed a complaint before the District Forum claiming compensation for the mental agony and the harassment caused to him due to the misconduct of the Respondent in not reflecting his results properly and as a consequence thereof he was not able to apply for LL.B. Course he wanted to pursue.  On 04.06.1999 the District Forum while disposing the complaint observed that the complaint so filed is not maintainable as the complainant is not a ‘Consumer’ within the definition of Section 2 (1)(d) of the Act and thus not entitled to raise a consumer dispute.  An appeal preferred assailing the said order stood disposed of by this Commission on 14.10.2005, remanding the case to the District Forum to adjudicate the complaint treating the complainant as a ‘Consumer’.   The District Forum on the matter having been remanded passed the order awarding the compensation to the complainant to the extent of Rs.50,000/- and Rs.3,000/- was ordered as litigation cost.  This order was assailed before this Commission on this occasion by the OP by way of an appeal which appeal was disposed of on 13.10.2006, setting aside the impugned order directing and remanding the matter again to hear the case de novo in terms of their observations.  The District Forum finally heard and disposed of the matter on 29.05.2012 dismissing the complaint, observing that the complainant is not a ‘consumer’.  In these circumstances this appeal has been preferred before this Commission praying for setting aside the order so passed and for relief as prayed for by him in the complaint. 

 

4.                Short question for adjudication in this appeal is whether  the complainant/ Appellant  is a consumer and if so, whether he is entitled for the relief as prayed for.

 

5.                Ld. Counsel for the Appellant vehemently argued that the issue in the case is not confined to education alone based on which the relief has been pressed for.  The issue here is that the respondent did not award the complainant the degree for which he was fully entitled to which act had caused him avoidable loss and harassment inasmuch as he was not able to secure admission in LL. B> Course in the same academic year.   This has resulted in the loss of one year and for this loss the complainant having suffered the mental agony, has sought for the compensation. 

 

6.                Ld. Counsel for the Respondent on the other hand, had advanced two folded arguments, namely:

 

1. The case is hit by the principles of constructive res judicata, and secondly,  
2. The complainant/ Appellant in the subject matter, issue being related to and connected with the education, cannot be treated as consumer, in which case is he is not entitled to raise a consumer dispute under the provisions of Consumer Protection Act-1986.

 

7.                It is a statement of fact that the complainant had initially filed a Civil Suit praying for a direction to the opposite parties for conferring on him the degree of B. A., he, as stated above, having qualified the examination successfully which suit was withdrawn by the complainant unconditionally since the degree was conferred on him during the pendency of the suit.  If that is the case the complainant is prohibited from filing a complaint before a Consumer For a for the redressal of his grievance as he cannot be permitted to approach two fora for the same relief in substance or for the relief connected with.  Nothing prevented the complainant to ask for the consequential relief in the suit filed for the conferment of the degree.

 

8.                It is a trite law   relying on order 2 Rule (ii) of the CPC 1908, that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwords sue for any relief so omitted. 

 

9.                Secondly, the suit filed by the complainant before the Civil Court having been withdrawn unconditionally, he is estopped from filing another case in a different fora for the same cause of action or for any consequential relief.  Filing of another case by the complainant is hit by the principles of constructive res judicata, in terms of Section 11 of the CPC.  I am fortified in my view by a judgement of the Hon’ble National Commission in the matter of Damayanti vs. Rashmi Grih Nirman as reparted in I (2016) CPJ 235 (NC).  Similar view was taken by the State Commission, Chandigarh in the matter  of Kotak Mahindra Prime Ltd. vs. Mohan Lal as reported in III (2010) CPJ 19 (Chd.).

 

10.                Having regard to the legal position discussed above and keeping in view the facts and circumstances of the case, I am of the considered view that the complaint is not maintainable as of now, the suit filed before the Civil Court having been unconditionally withdrawn. 

 

11.                Ordered accordingly.

 

12.                A copy of this order be forwarded to the parties to the case free of cost as statutorily required.  A copy of this order be sent to the concerned District Forum for information and records.  File be consigned to record.

 

 

 

(ANIL SRIVASTAVA)

144616126. MEMBER