Delhi

StateCommission

FA/12/787

ANCHAL - Complainant(s)

Versus

JD I OF FASHION TECHNOLOGY - Opp.Party(s)

06 Dec 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

Date of hearing : 06.12.2018

Date of Decision:11.12.2018

First Appeal No. 787/2012

In the matter of:

Ms. Anchal d/o.  Sh. Suresh Kumar r/o.11-A, Bharat Garden, Uttam Nagar, New Delhi-110059

:

Counsel for the Appellant Sh. G. S. Suhag, Advocate

                       

Versus

 

J D Institute of Fashion Technology (through Director) A-1/171, Main Najafgarh Road, Janakpuri, New Delhi-110058

:

None for the respondent

                                   

CORAM         :           HON’BLE SHRI 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

 

Cases relied upon:

 

1.         Bihar School Examination Board vs. Suresh Prasad Sinha, (2009) 8 SCC 483;

 

2.         P. T. Koshy vs.  Ellen Charitable Trust & Ors., in Special Leave Petition No. 22532/2012 decided on 09.08.2012 by the Hon’ble  Supreme Court of India;

 

3.         Fiitjee Ltd. vs. Nitesh Dewan, in FA No. 577/2015 order dated 07.09.2018 passed by Delhi State Consumer Redressal Commission.

 

 

ANIL SRIVASTAVA– MEMBER

 

JUDGEMENT

 

1.       Aggrieved by the decision of the Ld. District Forum, Janakpuri, New Delhi in the matter of Ms. Anchal vs. J D Institute of Fashion Technology rendered in C-488/2009 on 08.06.2012, dismissing the complaint, observing that there was no deficiency of service, Ms. Anchal has preferred an appeal before this Commission, under Section 15 of the Consumer Prtoection Act-1986 (the Act) for short Appellant against the Institute, hereinafter referred to as Respondent, on the ground that the order impugned has been passed without appreciating the facts, without considering the core issues inasmuch as respondents having confirmed the admission had shifted the insitutte to a far off place without seeking consent of the students whether they would be willing to attend the classes at the changed place and finally without considering the evidence furnished by her before the  Fora.

 

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

 

3.       The Appellant depositing the requisite fee had sought for and was admitted on 03.08.2007 in three year B. Sc. Degree Course  in Fashion and Apparel Design Course conducted by the Respondent.  The Respondent Institute was based at Janak Puri, New Delhi and affiliated with and recognised by Kuvempu University of Karnatka.

 

4.       Primary consideration for seeking admission was that the Respondent institute was based at Janak Puri, New Delhi a place close to her residence.  Shorn of superfluities, the fact is that the Respondent closed their establishment at Janak Puri and shifted to Hauz Khas, New Delhi, a place far from Janak Puri and that too without seeking consent of the students whether they would be comfortable with the change of the establishment for the purpose of conducting the classes. The Appellant/ OP1 on the other hand continued getting the message that the classes for the course would soon commence at nearby place at Rajouri Garden which however could never see the light of the day.

 

5.       In these circumstances the complaint was filed before the Ld. District Forum which complaint, as stated above, stood dismissed leading to filing of this appeal.  The Respondent was noticed and in response thereto the reply has been filed resisting the appeal more or less on the ground taken by them before the District Fora.

 

6.       This appeal was listed before this Commission for final hearing on 06.12.2018 when the Counsel on behalf of the Appellant/ OP1 appeared and advanced his arguments and made submission based on the pleadings. No one appeared on behalf of the Respondent.  In fact no appearance was made on the behalf of the respondent even on the last occasion. 
7.       Short question for adjudication in this appeal/ complaint is whether the Appellant/ complainant is entitled to the relief claimed, and, secondly, more significantly whether this Commission can entertain the subject when the subject matter is related to and connected with education which under the scheme of things, education being not a commodity, is not covered under the provisions of the Consumer Protection Act, 1986.

 

8.       In the first instance we may advert to the course undertaken by the Respondent.  It is three years regular course, on the successful completion of which, the candidate is eligible for being conferred with the degree which would enable one to go ahead professionally.  It is nobody’s case that the Course undertaken was not recognized or otherwise, which means, from that angle there exists no cloud.

 

9.       I may now examine whether the subject matter is education and if so whether the subject can be adjudicated by the Consumer Fora. 

 

10.       The Appellant/ complainant having been admitted to the course envisage a pre-existing relationship between the candidate and the University/Board inasmuch as the candidate is a prospective degree holder recognized for all practical purposes and accepted in all walks of life, subject to his/her qualifying the examination and subject to such other factors as may be essentially required to be examined and considered.  The issue has been extensively discussed by a judgement of the Hon’ble Apex Court in the case of Bihar School Examination Board vs. Suresh Prasad Sinha, (2009) 8 SCC 483 holding as under:-

 

“The Board is a statutory authority established under the Bihar School Examination Board Act, 1952.  The function of the Board is to conduct school examinations. The statutory function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates.  The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function.  It is not possible to divide this function as partly statutory and party administrative.

When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services” to any candidate nor does a student who participates in the examination conducted by the Board,  hires  of avails of any service from the Board for a consideration.  On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-à-vis other examinees.  The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course.  The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination.

The object of the Act is to cover in its net, services offered or rendered for a consideration.  Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense(including professional activity or quasi-commercial activity). But the Act does not intend 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 consequently, complaint under the Act will not be maintainable against the Board.” (Emphasis added)

     

11.       In the aforesaid case a student was admitted in the institute and institute after holding an examination assessed whether the student has acquired the knowledge and skill imparted to him and if satisfied on making such assessment, confer upon him degree or certificate as the case may be.

 

12.       The Hon’ble Supreme Court of India in the matter of P. T. Koshy vs.  Ellen Charitable Trust & Ors., in Special Leave Petition No. 22532/2012 decided on 09.08.2012, is pleased to hold as under:

 

                  “In view of the judgement of this Court in Maharshi Dayanand University vs. Surjeet Kaur, 2010 (11) SCC 159 wherein this Court placing reliance on all earlier judgements has categorically held that education is not a commodity.  Educational institutions are not providing any kind of servce, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service.  Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.

 

                  In view of the  above, we are not inclined to entertain the special leave petition.  Thus, the Special Leave Petition is dismissed.”

 

13.       This Commission in their order dated 07.09.2018 passed in FA-577/2015 in the matter of Fiitjee Ltd. vs. Nitesh Dewan has drawn a distinction between Educational Institutes which award, degree and diploma, in which event the dispute, if any, would not be covered within the framework of the Consumer Protection Act, 1986, since that the education and not commodities, vis-a-vis coaching institutions who simply prepare a student for entrance examination.  Coaching institutions do not award degree or diploma and there are not educational institutions in which case dispute, if any would be adjudicable by the Consumer Fora since the subject would not be education. 

 

14.       In the given case the subject is squarely covered within the definition of the education and if that is the case, this Commission may not be competent to adjudicate the issue since outsides the scope and content of the provisions of Consumer Protection Act-1986.

 

15.       Having regard to the facts and circumstances of the case and legal position as set out above this Commission cannot adjudicate on the subject since pertains to education.  Accordingly the appeal stands dismissed, leaving the parties to bear the cost.

 

16.       Ordered accordingly.  A copy of the order be forwarded to the parties to the case free of cost as statutorily required.       File be consigned to record.

 

 

 

 

(ANIL SRIVASTAVA)

144616126. MEMBER