KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NOS. 735/2012 & 897/2012
COMMON JUDGMENT DTD : 15.11.2013
(Appeal filed against the order in CC.No.58/2009 on the file of CDRF, Pathanamthitta order dated: 27.06.2012)
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SRI.V.V.JOSE : MEMBER
APPEAL No.735
The joint Director of Technical Education,
Padma Vilasam Road, APPELLANT
East Fort, Thiruvananthapuram
(By Adv.M.Hashim Babu)
Vs.
1. Lohita Alphy James,
Palakkatharappil,
Irumbakachola,
Kanhirapuzha, Mannarkkad,
Palakkad Pin – 678582
2. The Principal, RESPONDENTS
CML Caarmel Engineering College,
Kunamkara, Ranni,
Pathanamthitta, Pin – 689711
3. Caarmel Education Trust,
(Believer’s Church Trust)
Represented by its Managing Trustee,
Dr.K.P.Yohannan,
Caarmel Engineering College,
Perunadu,Pin - 689711
(R1 by Adv.K.Venugopalan Nair)
(R2 & R3 by Adv.Anilkumar.A.S)
APPEAL No.897/2012
1. The Principal,
CML Caarmel Engineering College,
Kunamkara, Ranni,
Pathanamthitta, Pin – 689711
APPELLANTS
2. Caarmel Education Trust,
(Believer’s Church Trust)
Represented by its Managing Trustee,
Dr.K.P.Yohannan
(By Adv.A.S.Anil Kumar)
Vs.
1. Lohita Alphy James,
Palakkatharappil,
Irumbakachola,
Kanhirapuzha, Mannarkkad, RESPONDENTS
Palakkad Pin – 678582
2. The joint Director of Technical Education,
Padma Vilasam Road,
East Fort, Thiruvananthapuram
(R1 by Adv.K.Venugopalan Nair)
COMMON JUDGMENT
SRI.K.CHANDRADAS NADAR: JUDICIAL MEMBER
Opposite party No.2 in CC.No.58/2009 in the CDRF, Pathanamthitta is the appellant in A.735/2012. Opposite parties 1 & 2 in the said case are the appellants in the other appeal. The common first respondent in these appeals was the complainant. She alleged in her complaint that after passing Diploma during 2008 from Payyannur Womens College, Kannur. She applied for the Engineering Course under the lateral entry scheme. The second opposite party is supervising the engineering courses. She got 567th rank in the Entrance Examination conducted by the second opposite party. The complainant was allotted seat for admission in the Engineering College in which the first opposite party was the Principal. The additional third opposite party is running the Engineering College in which the complainant was allotted seat for admission. But the first opposite party informed that they were not admitting lateral entry students during that academic year. Immediately the complainant approached the second opposite party and intimated the matter to them. The second opposite party told the complainant that the matter would be settled by taking up the matter with opposite parties 1 & 3. The second opposite party also informed the complainant that she can directly approach the first opposite party for her admission and they have no right to deny admission to the complainant as her name was included in the list published by the second opposite party. Accordingly, she approached the first opposite party along with her parents on 31.07.2008 for getting admission. But they denied her admission. They refused to put the denial of admission in writing despite demand. So on 02.08.2008 the complainant approached the second opposite party and complained to him. At that time also the second opposite party assured the complainant that the matter would be settled. The second opposite party has got ample power to give direction to the first opposite party in this regard. There after also the complainant contacted the second opposite party till 04.08.2008. At last the second opposite party informed the complainant that they had nothing to do in this matter and the complainant can approach any judicial forum for redressing her grievances. Since 04.08.2008 was the last date for admission the complainant was compelled to take admission in management quota by paying Rs.1 lakh. The complainant is entitled to get admission in general merit under lateral entry scheme which was denied by opposite parties 1 & 3 due to inaction of the second opposite party. As a result, the complainant sustained mental agony and financial loss. Thus opposite parties have committed deficiency in service. The opposite parties have not responded to the notice issued to them by the lawyer of the complainant. Hence she approached the Forum for a compensation of Rs.1, 50,000/-.
2. Opposite parties 1 & 2 filed separate version before the District Forum. The first opposite party contended that the complainant has to prove her rank for lateral entry admission and that a seat was confirmed for her in the college of the first opposite party during the year 2008. The complainant never contacted the first opposite party as alleged in the complaint. The management association decided not to admit the lateral entry candidates at first and later that decision was changed and it was decided to admit lateral entry students. The complainant never turned up for admission or complied with the formalities for getting admission. This complaint is filed after a long delay which itself shows the malafides of the complainant. The second opposite party is an authority having every right to issue necessary directions to the first opposite party. But no such direction was received from the second opposite party in respect of the complainant. It is the duty of the students who are selected for admission to approach the concerned institution. In this case the complainant never approached the first opposite party though she claims that by virtue of her rank she was entitled to get admission at the first opposite party college. The allegation that the complainant has made complaints before opposite party no.2 is also false. The first opposite party is not at all liable for the loss of the complainant by securing admission in a management seat. The first opposite party is not bound to provide any service to the complainant and the first opposite party never collected any amount from the complainant. The first opposite party is a self financing college. If at all any wrong was done by the opposite parties the complainant could have approached statutory authorities like Justice P.A.Muhammed Committee as agreements were executed between management association and the government. As there was no deficiency in service on the part of the first opposite party, the complaint was liable to be dismissed.
3. The second opposite party contended that on line allotment of seats would be made by the Directorate of Technical Education in accordance with the rank obtained by candidates in the Entrance Examination and availability of seats in various branches in Government Engineering Colleges and Self Financing Engineering Colleges who were willing to admit students under the lateral entry scheme. The first opposite party also furnished their willingness to admit 18 students under the lateral entry scheme from the list published by the Government as per letter dated 16.02.2008. On the basis of the willingness of the first opposite party 18 government seats in the first opposite party college were allotted to various candidates. But the first opposite party denied admission to the students who got allotment on line to the government seats without any reason. The allottees made complaints about this and the department considered the issue very seriously and discussed the matter with the college authorities. As a result the first opposite party changed their attitude and agreed to admit the candidates and many students have joined in that institution. The allotment was made as per the willingness given by the first opposite party. But the authority to admit the students is with the first opposite party. The second opposite party had done everything possible to admit the candidates in the college of the first opposite party. But it is unknown why the complainant did not join the college on time. There was no deficiency in service on the part of the second opposite party.
4. Subsequently additional third opposite party was impleaded and they adopted the version of the first opposite party. The Forum recorded the oral evidence of the complainant as PW1 and one witness from the side of the first opposite party as DW1. Exts.A1 to A13 were marked on the side of the complainant and Exts.B1 and B2 were marked on the side of the opposite parties. The complaint was allowed. Challenging the order, the opposite parties 1 & 3 filed A.446/2011 and the second opposite party filed A.442/2011. This commission allowed the appeals and remanded the matter to the Forum for fresh disposal after giving opportunity to parties to adduce further evidence. It is seen that after remand the second opposite party filed additional version challenging the maintainability of the complaint on the contention that she was not a consumer who had availed the service of the 2nd opposite party for consideration. But none of the parties adduced any further evidence. As per the impugned judgment, the Forum allowed the complaint again. The District Forum directed the second opposite party to pay Rs.75,000/- as compensation along with cost of Rs.5000/- to the complainant. The District Forum ordered payment of Rs.10,000/- each by opposite parties 1 & 2 to the complainant as additional cost for the harassment of the complainant .The second opposite party was directed to take appropriate action against first and third opposite parties for their illegal act of denial of admission to an eligible candidate. Aggrieved by the above order opposite parties 1 & 3 filed A.897/2012 & the second opposite party has filed A.735/2012.
5. Common questions arise for consideration in these appeals. Firstly, the question arises whether the appellant in appeal 735/2012 had provided any service for consideration and if so whether there was any deficiency in service on their part. The second question is whether appellants in A.897/2012 have denied admission to the complainant despite approaching them for admission and if so whether they have committed any deficiency in service.
6. Before answering these questions it is necessary to refer certain admitted facts and proved facts. The complainant after having passed diploma applied for admission for the engineering course under the lateral entry scheme. The second opposite party Joint Director of Technical Education conducted the entrance test for such students. Ext.A5 shows that he had collected Rs.500/- from the complainant as exam fee. He prepared a merit wise list of such students through LBS Centre for Science and Technology. Ext.A1 shows that the complainant obtained Rank No.567 in the Entrance Examination. Ext.A2 is the allotment memo issued by the Director of Technical Education to the complainant. It shows that she was allotted seat for admission in the Engineering College of the third opposite party. The case of the complainant is that when she approached the first opposite party Principal of the 3rd opposite party college, he refused admission for her. She approached the second opposite party and complained to them. On the last day of admission she was forced to seek admission elsewhere in the management quota and as a result she sustained financial loss and suffered mental agony. She was denied a rightful seat on merits in the Engineering College of the third opposite party. The definite contention of opposite parties 1 & 3 is that the complainant never turned up for admission or complied with the formalities for getting admission. This is the only serious contention raised by them. But it is contended by the second opposite party that on the basis of willingness expressed by first opposite party 18 government seats in the first opposite party's college were allotted to various candidates and the complainant was one among them. Ext.A2 also clearly reveals this. It is further admitted that there were complaints from students who were among the 18 candidates allotted to the first opposite party college that they were denied admission without any reason. As a result of this the second opposite party intervened and as a result many students have joined in that institution. The evasiveness in the contention of the second opposite party is evident. The second opposite party does not say that there was complaint from the present complainant and the contention taken is that the reason why the complainant did not join the college is unknown to the second opposite party. It appears that initially the association of self financing engineering colleges decided not to admit students under the lateral entry scheme. Later they changed their decision and decided to admit them also for engineering courses. So obviously, allotment for admission of 18 students in the third opposite party engineering college was made by the 2nd opposite party in the light of the said decision. The question is whether the complainant approached opposite party no.1 for admission on 31.07.2008 and she was denied admission.
7. It is quite evident from the deposition of DW1 the first opposite party that only 10 students from the allotted list of 18 students under the lateral entry scheme for the relevant year joined his college. He insisted that no complaint was filed in his college stating that admission was denied to the complainant. But admitted that based on a complaint by the complainant, the second opposite party contacted his college and sought certain details. He also insisted that only 10 seats were allotted in his college. This is quite contrary to the contention of the second opposite party that in fact allotment of 18 students for admission was made. Ext.A3 is the copy of complaint filed before the second opposite party on 31.07.2008 itself complaining of the refusal to admit her in the college of first opposite party. But while issuing Ext.B1 letter to the third opposite party on 30.05.2009 the second opposite party was equally evasive. He does not refer to the date of complaint of the complainant. Request was to furnish the details of students admitted in government quota seats. In response the first opposite party sent a list of 10 students without any other details. Based on that the second opposite party sent Ext.A9 to the first opposite party with copy to the complainant. Ext.A9 states that many complaints were received from candidates who got allotment that the authorities were not willing to admit them in the institution. As a result of proper intervention of his office the authorities changed their attitude and agreed to admit the candidates. Hence many students have joined in that institution and finally concluded that in those circumstances the complaint of the complainant deserved no action. This letter clearly reveals the intention of the second opposite party to help the management. It is significant that Ext.A9 itself implies that many students were denied admission in the college of the first opposite party.
8. Thus the possible inference is that the complainant approached the second opposite party with complaint of refusal of admission then and there. There is no reason to discard Ext.A3 complaint thus lending support to the allegation that the complainant had in fact approached the first opposite party for admission as per the allotment list. Ext.A4 list of calls from the telephone exchange is produced to show that the complainant had also contacted the first opposite party over phone. Even if Ext.A4 is relied on it may not be sufficient formality to get admission but it does show that the complainant was anxious to seek admission in the college of the first opposite party.Ext.A7 complaint to the Chairperson Womens Commission and Ext.A8 complaint to the Education Minister also indicate that the complainant was trying to assert her claim for the seat. All these circumstances together lead to the possible inference that the complainant had actually approached the first opposite party for admission. The contention to the contrary that she never approached the first opposite party can not be accepted. Thus the complainant was denied a rightful seat for engineering course in the college of the first opposite party.
9. The legal contention raised on behalf of opposite parties 1 & 3 is that they were not bound to provide any service to the complainant and they never collected any amount from the complainant. So they are not liable. But it is pertinent to notice that under the provisions of the Consumer Protection Act the consideration need be promised or partly paid and partly promised. When a candidate seeks admission there is implied promise to pay consideration in the form of tuition fees and other fees and this is sufficient to maintain the complainant. In the light of this implied promise denial of a rightful seat to the complainant would amount to deficiency in service on their part. In fact the third relief granted by the District Forum directing the second opposite party to take appropriate action against opposite parties 1 & 3 for their illegal act of denial admission to an eligible candidates, implied that there is finding of deficiency in service on the part of opposite parties 1 & 3. The evidence referred to justifies the conclusion that there is deficiency in service on the part of opposite parties 1 & 3.
10. The contention of the second opposite party is that no complaint against them is maintainable as no consideration is received for rendering any service. In this context, the learned counsel for the appellant in Appeal.No.735/2012 relied on the decision of the Hon'ble Supreme Court of India in Bihar School Examination Board Vs. Suresh Prasad Sinha AIR 2010 Supreme Court 93 in which it was held that the school examination board is not a service provider and a student who takes an examination is not a consumer. Consequently complaint under the Consumer Protection Act will not be maintainable against the Board. When an examination board conducts an examination in discharge of its statutory functions, it does not offer its services to any candidate. 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. So the second opposite party appellant argues that remittance of Rs.500/- as per Ext.A5 is not consideration for availing any service of the second opposite party and accordingly the complaint is not maintainable under the Act against the second opposite party.
11. Reliance is also placed on the decision of the National Consumer Disputes Redressal Commission in Surya Prakash Mahapatra Vs Controller of Examinations, Sambalpur University & othrs AIR 2008 (NOC) 1275 (NCC) where in it was held that conduct of examination and declaration of result by an University is statutory duty and the University can not be taken to render service within the meaning of the Act. The District Forum slapped liability on the second opposite party as they failed to act properly and failed to exercise their powers which according to the District Forum was grave deficiency in service. But this conclusion overlooks certain other aspects as well. The second opposite party collected fees for preparing merit list of candidates eligible for admission under lateral entry scheme. There is no complaint at all against the preparation of the list. It appears from the contention of opposite parties 1 & 3 itself that the second opposite party was entitled to allot candidates as per agreement between the managements of self financing engineering colleges and the government. In fact the managements initially decided not to admit candidates under the lateral entry scheme. But when they later changed their mind allotment was duly made by the second opposite party. There is no allegation that the allotment was erroneous. The alleged deficiency in service happened there after. Even while directing appropriate action against opposite parties 1 & 3 the District Forum was not sure of the extent of power on the part of the second opposite party in this regard. So it can not be said that the second opposite party failed in its statutory duties. True no attempt was made to take any effective action with reference to the complaint of the complainant and the second opposite party seems to side with the management but this alone is not sufficient to hold that there is deficiency in service on the part of the second opposite party in view of the limited role of selecting candidates and recommending them for admission. It follows that the District Forum erroneously passed order against the second opposite party but at the same time erroneously refused to order compensation against opposite parties 1 & 3.
12. Regarding the quantum of compensation payable it is relevant to notice that the college run by the third opposite party is a self financing college and fee was payable even if the complainant got admission there. There is no clear evidence regarding the actual excess amount the complainant had to spend because she got admission elsewhere. Hence the compensation fixed by the District Forum appears to be sufficient.
13. Before concluding the discussion one more aspect requires mention. On earlier occasion this commission had remanded the matter for fresh disposal by the District Forum after giving the parties opportunity for adducing additional evidence. But after remand none of the parties chose to adduce any evidence. So the District Forum felt that it was harassment to the complainant and that has caused much hardship to the complainant.. Hence the Forum directed opposite parties 1 & 2 to pay Rs.10,000/- each to the complainant as additional cost for the harassment made by them towards the complainant. This to say the least is in bad taste. At the most a party can request for remand. The decision to remand the case was made by this commission. So indirectly the District Forum is criticizing the decision of this commission which to say the least is improper. To fine the parties for that matter is more inappropriate. Such sort of comments is unexpected from a Lower Forum. The Forum criticizes this commission even when the District Forum itself appears to have acted unfairly and with partiality. Even while directing action against opposite parties 1 & 3 the Forum was magnanimous to exonerate opposite parties 1 & 3 from the liability to pay compensation and the reason is better left for guess work.
However in view of the conclusions arrived at earlier we hold that only opposite parties 1 & 3 are bound to compensate the complaint and the second opposite party is not liable. Accordingly Appeal No.735/2012 is liable to be allowed. Appeal No.897/2012 is liable to be dismissed but with the following modifications in the order of the District Forum dated 27.06.2012 in CC.58/2009.
Opposite parties 1 & 3 , appellants in A.897/2012 are directed to pay jointly and severally an amount of Rs.75,000/- as compensation and Rs.5000/- as cost to the complainant within one month from the date of receipt of copy of this order failing which the amount will carry interest at the rate of 9% per annum. The second opposite party is exonerated from liability.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
V.V.JOSE : MEMBER
be
