The petitioner files this complaint u/.s 12 of the Consumer Protection Act, 1986 against the OP Institute vide complaint case no. CC/ 531/ 2017 (RBT/CC/145/2022). On visiting the available records and documents, it appears that the S/R could be duly completed in respect of the OP who preferred to abstain from appearence or contesting the case during the entire adjudication process. As the OP never appeared nor contested the case at the Ld. Barasat Commission where the case was originally admitted, the Ld.Commission, Barasat passed an order to run the case on ex parte basis against the OP as per order dated 11.01.2009. Subsequently the case was transferred to the Rajarhat Commission vide order dated 27.12.2021 from Hon’ble SCDRC, WB, where the OP never appeared nor filed BNA or participated in the arguments whatsoever.
The gist of the complaint as per the averments made by the complainant is that the complainant being a student decided to take admission in the 3-year course of Bachelor of Hospital Management at Subhas Bose Institute of Hotel Management after being given to understand from various advertisements in the newspapers and websites hosted by the OP that the said institution is enjoying affiliation of University Grants Commission (UGC) and West Bengal University of Technology(WBUT) and got convinced to take admission in the said course namely “Bachelors degree in Hospital Management” of 3 years. Accordingly the complainant took admission on 16.06.2015 to the said course by paying admission fees of Rs. 48,000/- on 16.06.2015 (which includes Rs. 38,000/- admission fee, library fees for Rs. 2,000/- Uniform charges for Rs. 5,000/- and canteen charges for Rs. 3,000/-) followed by payment of dated 27.06.2015 for 1st instalment @ Rs. 23,000/- out of 12 instalments, i.e. Rs, 71,000/- in total . After joining the classes which commenced on 06.08.2015, the complainant discovered that the offered course by the OP’s institute does not bear affiliation of Annamalai University as well. The student enquired from the Managing Director and other office bearers of the OP institution but no satisfactory replies were received. Having no other way out, the student through his Ld. Advocate served a notice on the institution on 04.09.2015 and also filed a First Information Report (FIR) with Bidhannagar East Police Station and a case was registered vide no. 128 dated 18.12.2015 u/s 419/420/406 of the IPC. The petitioner in the instant petition, prays for refund of admission and other fees that he that he deposited with the OP for Rs. 71,000/- along with compensation of Rs. 1,00,000/- . The Petitioner exhibited the following documents as exhibits in support of his claims :-
Annx A : Notice from Ld. Advocate of Complainant dated 04.09.2015 on OP.
Annx B : Copy of selection letter issued by OP Institute to Complainant stating “ you’re selected through admission test scoring 68% for pursing full time three years Bachelor Degree in Hospital Management under UGC, Ministry of HRD, Govt. of India vide ref. no. HM/2015/2042 dated 27.06.2015
Annx C1 : Copy of receipt no. 2257 dated 27/06/2015 for Rs. 23,000/- to Complainant by OP Institute stating “1st instalment (23000/-) Hospital (BHM/AU-PCP fees)
Annx C2 : Copy of receipt no. 2042 dated 16/06/2015 for Rs. 48,000/- to Complainant by OP Institute stating “ Admission (38000/-) Hospital (BHM/AU-PCP fees)
Annx D1 : Copy of downloaded excerpt from ‘www.siksha.com hosting that Subhas Bose Institute of Hotel Management, Salt Lke city, Kolkata – Bachelor of Hospital Management- is Affiliated to West Bengal University of Technology’
Annx D2 : Copy of downloaded excerpt from ‘illegible source’ hosting that Subhas Bose Institute of Hotel Management is approved by UGC
Annx D3 : Copy of downloaded excerpt from ‘illegible source that Subhas Bose Institute of Hotel Management, Salt Lake city, Kolkata – Bachelor of Hospital Management- : Affiliated to West Bengal University of Technology
Annx E : Copy of letter issued by OP Institute (SBIHM) to Branch Manager, Punjab National bank, Latheriasarai, Durbhanga, Bihar dated 20.07.2015 that The Complainant has taken admission in 3 years Bachelor in Hospital Management under UGC, Ministry of HRD, Govt. of India and recognised state Govt. University.
Annx F : Copy of First Information Report (FIR) with Bidhannagar East Police Station registered vide no. 128 dated 18.12.2015 u/s 419/420/406 of the IPC.
Annex 1,2,3,4,5,7,8,9,10,11and 12 : Exhibits by Complainant filed on 01.08.2022 alongwith BNA which are identical to Annx A,B,C1,C2,D1,D2,D3. E and F as stated above.
Annex 13 : List of colleges and its courses affiliated by MAKAUT (erstwhile WBUT), West Bengal for the Academic year 2017-18 (as on 22.08.2017) Serial no. 182; MAKAUT college code no. 341 under the college name as SBHIM School of Management, Barasat State University, Barasat-700126, Level of Course : Under Grad; Approved name of course : BBA (Hospital Management)
Annex (not numbered but filed during final argument) : List of colleges and its courses affiliated by MAKAUT (erstwhile WBUT), West Bengal for the Academic year 2015-16 (as on 22.09.2017) Serial no. 188; MAKAUT college code no. 341 under the college name as SBHIM School of Management, Barasat State University, Barasat-700126, Level of Course : Under Grad; Approved name of course : BBM (H) (HospitalITY Management).
It was alleged by the complainant from the websites that the affiliated colleges/ institutions under the WBUT did not include the said advertised course of 3 year Bachelors degree in Hospital Management during concerned period of 2015-16 in favour of the institution of OP as per the approved list of WBUT of their affiliated/recognised courses as per the exhibits filed on the day of Argument by the Complainant.
The Complainant has thus alleged and filed documents including various exhibits and the receipts issued by the OP about receiving the admission fee, registration fee and other fees paid by the complainant with recording therein that the courses are UGC & WBUT recognised.
The complainant student has claimed that he is entitled to compensation being a consumer under the CP Act, 2019. In support of his claim, the complainant has relied upon Judgement of Hon’ble NCDRC,New Delhi in Revision Petition no 767 of 2019 against Order dated 04.01.2019 in Appeal no. 941/2013 of the Hon’ble SCRDC, MP in the matter of Anand Institute of International Studies Vs Sani Jaggi & 3 Ors wherein the order of State commission was upheld by National Commission as the OP Institute was ‘a coaching centre’ under MP Shops and establishment act 1958 who advertised to impart education by coaching at Jabalpur followed by coaching at Australia and with job assurances thereafter. The Hon’ble NCDRC found in this case that it is a plain and simple case of an institute on one side and ordinary common students on the other side, unwarrantedly and unnecessarily indulged into deficiency in service and unfair trade practices causing loss and injury to the stuidents and then indulged into protracted litigation in various ways in various foras and imposed with direction of district commission onto ensure stern actions , heavy fines etc. on the OPs.
The above Judgement under reference was examined threadbare. The contents and background ofcited Judgement are absolutely on different footing and contexts being a ‘coaching centre’ with specific promises on coaching the students with job promise thereafter. This Judgement is succeeded by plethora of recent and current Judgements till 2022 alongwith conflicting decisions, but with contents and applicability that are identical to the case in hand. So it will be appropriate to adjudicate the points as to whether the OP is falling under the CP Act 1986 or not which are examined herewith one by one in proper context as follows :-
- In the matter of V J Modi School vs Bhumika P Patel vide Judgement dated 8 th October, 2021 by SCDRC, Gujarat, In Appeal No. 2018/224
The appellants/original opponents have filed present appeal under Section 15 of the Consumer Protection Act, 1986 being aggrieved by and dissatisfied with the judgment and order passed by the learned District Consumer Disputes Redressal Commission, Rajkot (Addl.) dated 7.3.2018 in complaint No. 224 of 2017, where the complainant no. 2 has sought admission for his son Ansh Himanshubhai Kumbhani in the opponent no. 1 school in CBSE board in the year 2015. After sometime he came to know that school is not possessing CBSE affiliation and thus is cheated by the opponent by acquiring fees of CBSE.and filed consumer complaint to get refund of fees with interest and costs The District Forum partly allowed the said complaint and ordered the opponents to refund fees with interest and costs.
One of the argument of the appellant is that the education is not commodity and student taking education cannot be said to be a consumer. He has relied upon the following judgments:-
The only question raised in this case is whether a college is a service provider for the purposes of the Consumer Protection Act, 1986. Learned Counsel for the appellant has placed the decision of this Court in Maharshi Dayanand University v. Surjeet Kaur. (2010) 11 SCC 159. The aforesaid decision was followed by this Court in SLP (C) No. 22532/2012 titled as P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors. The order reads as follows: "In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur, wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, 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". In view of the consistent opinion expressed by this Court, the orders passed by the National Consumer Disputes Redressal Commission in Revision Petition No. 3571/2013 and Revision Petition No. 807/2017 are not in accordance with the decision of this Court and are therefore set aside. The civil appeals are allowed."
In the case titled Manu Solanki and Ors.Vs Vinayaka Mission University I (2020) CPJ 210 (NC), while addressing the issue whether an Educational Institution is a 'Service Provider' for the purpose of Consumer Protection Act, 1986, Larger Bench of this Commission held: -
"Keeping in view Maharshi Dayanand University (supra) has addressed on merits and the question of law in detail and the same has been consistently followed by the Hon'ble Supreme Court in P.T. Koshy & Anr. (supra), Prof. K.K. Ramachandran (supra) and the latest decision of Anupama College of Engineering (supra), we are of the considered view that the ratio laid down by the Hon'ble Supreme Court in the last judgment that is Anupama College of Engineering (supra) has to be followed.
It is settled law, as stated in the aforementioned precedents set by the Hon'ble Supreme Court as well as this Commission, that Educational Institutions do not fall within the ambit of the Consumer Protection Act, 1986 and not a "service" within the meaning of the Consumer Protection Act, 1986.Therefore, the Complainant is not a consumer and the Complaint not being covered under the Consumer Protection Act, 1986."
Again in the matter of LBS Group of education institute vs. Arjun Singh 2021 (1) CPJ (NC) 151 dated 31.8.2020 wherein, it is held as under: “ We have heard learned Counsels for the Parties and perused the documents placed on record. In our considered view, a Preliminary Issue as to whether Educational Institutions providing Education and other Incidental Activities to the students come within the purview of the Consumer Protection Act, 1986 or not arises in this case and the said issue is squarely covered by the decision of a Larger Bench of three Members of this Commission in the case of Manu Solanki and Others Vs. Vinayak Mission University and other connected cases, 1(2020) CPJ, 2010, wherein the Larger Bench has held that Educational matters do not come within the purview of the Consumer Protection Act, 1986 and, therefore, the Complaint is not maintainable. Relevant portion of the Order is reproduced below for ready reference :-................
In view of the foregoing discussion, we are of the considered opinion that the Institutions rendering Education including Vocational courses and activities undertaken during the process of pre- admission as well as post-admission, except Coaching Institutions, will, therefore, not be covered under the provisions of the Consumer Protection Act, 1986."
- Civil Appeal No. 17802 of 2017 between Anupama College of Engineering vs. Gulshan Kumar and Ors. dated 30.10.2017 by Hon'ble Supreme Court wherein, it is held as under:
“Learned counsel for the appellant has placed the decision of this Court in Maharshi Dayanand University v. Surjeet Kaur [(2010) 11 SCC 159]. The aforesaid decision was followed by this Court in SLP (C) No. 22532/2012 titled as P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors. The order reads as follows:
In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur[(2010) 11 SCC 159] wherein this Court placing reliance on all earlier judgments has categorically held that education is not a verified commodity. Educational institutions are not providing any kind of service, 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 the matter of Maharshi Dayanand University vs. Surjeet Kaur dated 19.7.2010 wherein, it is held as under: “Considering the ratio laid down in the above referred judgments that the education is not commodity and service imparting education institution cannot be held to be service provider and student cannot be said to be a consumer. Therefore, consumer court has no jurisdiction to deal with the matter pertaining to the deficiency of service in education.”
(C ) In another Appeal case in the matter of Registrar, Manonmaniam Vs Sreosi Chatterjee & Ors. on 7 March, 2022 at NCDRC NEW DELHI in Revision Petition no 554 of 2019 against the Order dated 03/12/2018 in Appeal No. 905/2016 of SCDRC, West Bengal
“The Revision Petition was filed by Manonmaniam Sundaranar University u/s 21 (b) of the Consumer Protection Act, 1986 challenging the Order dated 03.12.2018, passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur whereby the Appeal preferred by the Petitioner was dismissed with a Cost and the order passed by the District Consumer Disputes Redressal Forum Kolkata Unit-II was upheld. The facts giving rise to the Revision Petition are that the Complainant pursuing MBA from the Petitioner University completed the course but not been conferred with certificates.The OP did not appear before the District Forum . Hence based on the material on record, the District Forum allowed the Complaint ex parte and directed the OP to issue the mark sheets, certificate and costs. The Petitioner University challenged the Order by filing Appeal before the State Commission but the State Commission dismissed the Appeal and imposed cost The Ld. Advocate of original complainant also disputed maintainability of the case on the ground that 'education' related matter does not fall within the ambit of the Consumer Protection Act. SCDRC refrained from interfering with the order whatsoever and the Appeal failed."Being dissatisfied, the Petitioner University approached NCDRC on the ground that the Petitioner University is imparting education and the institutions imparting education does not fall within the ambit of the consumer Protection Act and therefore the Complaint is not maintainable. The Hon’ble NCDRC observed that “I find that a Preliminary Issue arises in this Revision Petition is as to whether the Educational Institutions like the Petitioner University, which is imparting Education to the students will fall under the provisions of the Consumer Protection Act, 1986 or not. It may be mentioned here that this issue has been considered and decided by a Larger Bench of three Members of this Commission in the case of Manu Solanki and Others Vs. Vinayak Mission University and other connected cases, 1(2020) CPJ, 210 (NC), decided on 20.01.2020, wherein the larger Bench had held that Educational matters do not come within the purview of the Consumer Protection Act, 1986 and therefore the Complaint is not maintainable. Relevant portion of the Order is reproduced below for ready reference :-
‘ The following legal issues arise from the submissions made by the rival parties and the aforenoted decisions of the Hon'ble Supreme Court: Would any defects/ deficiency/ unfair trade practice indulged by the Educational Institutions post admission, which does not fall within the 'course of imparting knowledge' till the degree is conferred, falls within the ambit of the definition of Education? If we apply the definition of Education, imparting knowledge for full potential, will that criterion apply to the admission stage, when the foundation for admission itself is deficient? Would preferential activities for extracurricular activities, which do not have a direct nexus with admission fees, syllabus etc. be defined as Core Education? For Example if students go for a picnic and a mishap happens, does it fall within the definition of deficiency of service and is it part of Core Education? Do educational tours fall within the ambit of the definition of 'Education'. Another example, if a school has a swimming pool and students of that institution drown on account of some deficiency or negligence of the authorities, would swimming in the school campus fall within the ambit of Core Education? Does maintaining a swimming pool and teaching swimming be considered as a part of Core Education? Does defect/ deficiency in service of any boarding/ hostel facilities rendered fall within the umbrella of 'Education'?
Learned Counsel appearing for the Petitioners in Revision Petition Nos. 2955 to 2963 of 2018 submitted that once the University is declared as 'Deemed University' all functions and activities governed by the University Grants Commission Act (UGC Act), fall within the definition of 'Authority' within the meaning of Article 12 of the Constitution and would be amenable only to the jurisdiction of the High Court. It is contended that even if the Education Institutions do not have a proper affiliation, Consumer Fora do not have jurisdiction to entertain the same. In our view even if an Institution imparting education does not have a proper affiliation in imparting education, it is not rendering any service and, therefore, will be out of the purview of the Consumer Protection Act, 1986.
Learned Counsel appearing for the Petitioner in Revision Petition No. 222 of 2015 vehemently contended that the Complainant had taken admission in B. Ed. course of the Opposite Party on the assurance that the said college was recognized by National Council of Technical Education (NCTE) and affiliated with the Opposite Party No. 2, Uttrakhand Technical University, who subsequently came to know that the Institute was not recognized by NCTE and therefore sought for refund of the fees. Whether such an unfair trade practice post admission would fall within the ambit of the Act needs to be seen. As the Institution is imparting education though it has been not recognized by the National Council of Technical Education, it would not make any difference because it will be covered under the education. Thus, the said Institute would not be rendering any service as defined in the provisions of the Consumer Protection Act, 1986.
There may be instances where there may be defect/deficiency of service in pre-admission stages by an educational Institution but as the educational Institutions are not rendering any service by imparting education, these instances will also not give any right for a person to approach the Consumer Fora under the provisions of the Consumer Protection Act, 1986.
The main purpose and objective of NCVET is to recognize and regulate and assess the skill related service regulators. It is clarified that even if there is any defect/deficiency/unfair trade practice in the services offered by private bodies in offering these courses and are not regulated and do not confer any Degree or Diploma recognized by any Approved Authority do fall within the ambit of definition of 'Educational Institutions' and hence the Consumer Fora have no jurisdiction to entertain the same.
In view of the foregoing discussion, we are of the considered opinion that the Institutions rendering Education including Vocational courses and activities undertaken during the process of pre-admission as well as post-admission and also imparting excursion tours, picnics, extra co-curricular activities, swimming, sport, etc. except Coaching Institutions, will, therefore, not be covered under the provisions of the Consumer Protection Act, 1986. "
From the averments made in the Complaint filed by the Complainant/ Respondent No.1 and the Orders passed by both the Foras below, I find that Manonmaniam Sundaranar University (Petitioner herein) is imparting Education to the students and the Complainant/ Respondent No.1 took admission in MBA in Marketing of the Petitioner University. Therefore, the law laid down by the Larger Bench of this Commission in the case of Manu Solanki (Supra) , is fully applicable and the Petitioner University do not fall within the purview of the Act as it is not rendering any service.
This Commission has considered all the records and documents and exhibits and the grounds stated in complaint petition, ratio laid down by the Hon'ble Supreme Court and other higher Courts in above referred cases and facts and circumstances of the case. The contents and context of the case and Judgement thereof as cited by the Ld. Advocate of the complainant is absolutely different being the OP Institute a ‘coaching centre’ with specific promises on coaching the students at India & abroad, with a job promise thereafter. This Judgement is succeeded by plethora of recent and current Judgements till 2022 , where the contents and applicability are identical to that of the case in hand. So it will be appropriate to adjudicate the points in proper context. After threadbare perusal, this commission is of the view that the complaint is not properly conceived and can not be sustained in view of the latest judgments of the Hon'ble Supreme Court and other higher foras. In view of the foregoing discussions and observations, the Complaint filed by the Complainant herein stands dismissed as not maintainable. However, liberty is given to the Complainant to take recourse to such remedy as is available under law.
ORDER
Therefore, the complaint is not allowed. The consumer is at liberty to file appropriate proceeding before the Civil court. It goes without saying that time spent in the proceeding before the Barasat and Rajarhat District Commissions is excluded under Section 14 of the limitation Act for filing appropriate proceeding.
These will be no order as to costs.
Copy of this order to be provided free of costs to the parties.
Dictated and corrected by
[HON'BLE MR. Partha Kumar Basu]
MEMBER
