Dated 06.05.2016
JAGANNATH BAG, MEMBER
The present appeal is directed against the Order, dated 16.06.2013 passed by the Ld. District Consumer Disputes Redressal Forum, North 24-Parganas, in CC No.446/2012, whereby the complaint was allowed on contest but without any cost.
The complaint case, in brief, was as follows :
The Complainant took admission in June, 2003 in IGNOU Study Centre, ABN Seal College, Cooch Behar (West Bengal) . She appeared for her first year examination in June, 2004 for (subjects) FHSI, TSI, TS2, FHD and FEGI. Her result was declared as not complete in FHSI and TS2. She appeared for her second year examination in June, 2005 for the subjects TS4,TS5 and FST and re-appeared for clearing subjects TS2 and FHSI, but “result came with just getting incremented by one mark”. She appeared for her third year examination in June, 2006 for subjects TS3, TS6, FEG3, AOMI, but she cleared only TMS6. After re-examination in June,,2007, in TS3,FEG3,AOMI she was given same marks. She sent application form for rechecking. Reminders were also sent, but no reply was received. She met the Regional Director at Siliguri and also went to IGNOU Regional Head Office in Bikash Bhawan, Kolkata, but to no effect. It was seen that marks in certain subjects as noted in the marksheet did not match with the marks seen on net. The issue of certificate was necessary for her job and higher studies. As advised by the Delhi Office of IGNOU she took re-admission and appeared in December, 2009 for examination for subjects TS2, TS3,AOMI and EEG3 in Cooch Behar Study Centre. But the complainant not having received any result filed the complaint case with prayer for direction upon the OPs to provide clear result, mark sheet, certificate and examination sheets along with compensation of Rs. 4,00,000/- for harassment and mental agony.
While other OPs did not appear or file written version, OP No.3 contested the complaint by filing W.V. In their written version, the OP No.3 being Regional Director, IGNOU, submitted that the complaint was not maintainable and it was barred by limitation. The material allegations as brought up by the Complainant were denied. The Complainant failed to obtain pass marks in TEE, but she appeared for her 2nd year examination in June, 2005 for the subjects - TS4,TS5 and FST and as per Grade Card, she successfully completed TS4,TS5,FST examination. It was also denied that the Complainant made several representations for supply of the core sheet of result. It was also stated that the Complainant did not clear the examination in subjects TS2,TS3 and EEG3 for pass marks. The dispute in question was related to Students Evaluation Division at New Delhi without whom dispute cannot be adjudicated. The Complainant did not apply for photocopies of answer sheets as per rules of the University and the Complainant could not succeed the BTS programme as she has not completed the subjects TS2, TS3 and EEG3. The Complaint was liable to be dismissed as there was no deficiency in service.
Ld Forum below observed that the Complainant completed the three years BTS programme and cleared all the papers except TS2,TS3 and EEG3. It was also observed that the quality of the staff of the IGNOU Authority is decreasing and there might have been a communication gap between the students and the IGNOU Authority. As a result , the IGNOU Authority should send the result to the candidate. Accordingly, Ld. Forum below directed to hand over the result sheets of the 3 years (BTS) in respect of all subjects giving the Complainant a chance to complete the incomplete subjects. It was also directed that OPs should send materials for preparation of the Complainant in the subjects in which she did not succeed.
The Complainant not being satisfied with the impugned order filed the present appeal praying for direction upon the Respondents/OPs in the complaint case for payment of compensation of Rs.4,00,000/-.
Ld Advocate appearing for the Appellant/Complainant submitted that Ld Forum below did not appreciate the fact of harassment and mental agony of the Complainant and refrained from allowing compensation of Rs.4 Lakh in favour of appellant which should have been considered. Unless the impugned order is modified , the Appellant/Complainant would suffer irreparable loss .
Ld Advocate appearing for Respondent Nos.1, 2, 3, and 4 submitted that the complaint was not at all maintainable before the Ld Forum below as none of the Respondents was service provider . There was no jurisdiction of the Consumer Forum to adjudicate the complaint and again there was no cause of action against the OPs/Respondents . In support of his contention Ld Advocate for Respondents cited the order of Hon’ble National Consumer Disputes Redressal Commission as reported in 2003(1)CPJ(NC)(251) and also the judgement of Hon’ble Supreme Court in Civil Appeal No.6807, 2008 dated 19.07.2010 (Maharshi Dayananda University –Vs- Surjit Kaur emphasising that the educational institutions holding examinations are not rendering any service within the meaning of Consumer Protection Act,1986. Any concomitant omission or commission cannot be termed as deficiency. Again Consumer Forum has no jurisdiction to direct the University to issue decree. The Appellant as a student is neither a consumer, nor is the Respondent rendering any service. The complaint case should have been dismissed by the Ld Forum below as the complaint was not at all maintainable before them.
Decision with reasons
We have gone through the memorandum of appeal together with copies of the impugned order, the petition of complaint, the written version filed by OP No.3 before the Ld Forum below and other documents including correspondences between the Complainant/Appellant and the OPs/Respondents. The LCR has been consulted.
There is no dispute that the complainant had been a student under the OPs and she appeared in yearly examination conducted by the OPs for 2004, 2005 and 2006 . While she cleared some subjects of the BTS (Bachelor of Tourism Studies) she did not clear some other subjects. Her main grievance is that in spite of doing well in her examinations she was not awarded good marks and she did not get result or core sheets.
Ld Forum below admitted the complaint and considered the material facts leading to the impugned order by which the OPs were directed to send the result sheet of examinations of the Appellant/Complainant held in three years. But Ld Forum below did not allow the compensation for which the complainant turned appellant and has come up for necessary direction.
The fact goes that the Ld. Forum below did not consider the preliminary point of maintainability of the complaint. Whether the Complainant was a consumer and the OPs were service providers has not been considered before going into the merit of the complaint.
The Complainant being a student under the OPs appeared in the examinations conducted by the OPs. It has been held by the Hon’ble Supreme Court in the above referred judgement that a student is not a consumer and again a University is not rendering any service. In view of the settled principle of law, we are inclined to hold that the complaint was not a consumer complaint within the purview of the Consumer Protection Act and as such, the same was liable to be dismissed in stead of going into the merit of case for adjudication . The appeal does not succeed. Hence ,
Ordered
that the appeal be and the same is dismissed on contest. The impugned order is set aside. The complaint stands dismissed. There shall be no order as to cost.
