Shri Debasish Bandyopadhyay, Hon’ble President.
This complaint case has been cropped up on the basis of the written complaint filed by Mr. Bhim Sharma son of Late Awadh Lal Sharma of Jhapa P.O. Mogra P.S. Polba Dist. Hooghly against the opposite party Managing Director of Modern Institute of Engineering and Technology of Barole Malimpur, Rajhat, P.O. Rajhat, P.S. Polba, Dist. Hooghly on the allegation of not refunding Rs. 28,000/- and for granting compensation and litigation cost.
Brief fact of this case:- This case has been filed U/s. 12 of the Consumer Protection Act, 1986 against the opposite party describing that opposite party is running a technical educational college under the name and Style “Modern Institute of Engineering and Technology” situated at the address stated in the cause title of the complaint petition and this District Forum has jurisdiction to try this case. This specific case of the complainant in bird’s eye view is that the complainant went to the office of the opposite party for having technical education for his minor son Amman Sharma wherefrom the complainant was informed by the office staff of the opposite party that the complainant must have to deposit Rs. 28,000/- at first for provisional admission and the candidature as per merit list would get admission and if the candidate failed to take admission the amount of Rs. 28,000/- shall be returned. Accordingly opposite party deposited the said amount on 13.7.2019 against proper receipt which has been made annexure I for taking provisional admission of his son. It is alleged that complainant son belong to the SC category and obtained chance in Govt. Polytechnic college before taking admission on the opposite party institute under the name and Style “Modern Institute of Engineering and Technology” and thereafter considering the bright and better future of minor son Amman Sharma, the complainant decided to admit his son in the Govt. Technical Polytechnic college and requested the opposite party to refund the amount of Rs. 28,000/- and all such request the opposite party stated that they would return the said amount. It is also pointed out that thereafter the complainant on 6.8.2019 informed the opposite party in writing regarding the admission of his son Amman Sharma in the govt. Polytechnic college and thereafter on different occasions the complainant went to the office of the opposite party for getting refund of Rs. 28,000/- but opposite party on various pretext did not pay the same. It is further alleged that the complainant thereafter on 25.11.2019 had sent a written application by Indian Post to the opposite party for refunding the said amount and also over telephone requested the office of the opposite party for several times for refunding the said amount of Rs. 28,000/- but complainant had not received any fruitful reply.
It is also the case of the complainant that the opposite party on the pretext of refunding the said amount had taken account details of the complainant and assured through whatssapp message that the amount is to be refunded within a month but it has not been done. So, on 6.2.2020 at about 2:18 p.m. went to the office of the opposite party but the office staff of the opposite party threatened the complainant and ultimately the complainant has filed this case as per prayer of the complaint petition.
Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 28,000/- and to pay a sum of Rs. 5000/- for mental agony and paid and to pay a sum of Rs. 5000/- for litigation cost and to pass any other order/ orders as deem fit and proper.
Defense Case:- The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and states that the son of the complainant took admission for diploma in electrical engineering at opposite party’s college on 13.7.2019 and the student discontinued with opposite party’s college after taking admission there but thereafter he took admission in Govt. polytechnic college which was communicated to the opposite party through the letter dt. 25.11.2019 lately after closure of registration procedure for academic session 2019-20 and when the opposite party approached to register the name of the student in technical education division of WBSCTVESD (West Bengal State Council of Technical & Vocational Education and Skill Development). Then the opposite party found that the student has already registered with a Govt. college taking admission later on after taking admission in the opposite party’s college and this practice on the part of the complainant is totally illegal activity and it has also caused loss and damage to the opposite party as the complainant’s son had blocked one seat in the said stream. It is alleged that the opposite party thereafter asked the complainant for submitting clarification over this issue but the complainant started to demand of refunding admission money. It is the specific case of the opposite party that due to the illegal activity of the part of the complainant and his son the opposite party had to suffer huge loss and damage and so the complainant is not entitled to get refund of the admission fee. The complainant claims to be an Executive Member of Human Rights Protection Association and by virtue of position he consistently threatened the college officials over telephone and coming into college. In this situation the instant application should be rejected with exemplary cost and the opposite party is not liable to pay back the complainant’s claim.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
Argument highlighted by the ld. Lawyers of the parties
Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.
Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by him.
DECISIONS WITH REASONS
All the issues and/ or points of consideration adopted in this case are taken up jointly for the interest of convenience discussion and as all these points are interlinked and/ or interconnected with one another. In this connection this District Commission finds that for the interest of coming to the decision in respect of the above noted points of consideration there is necessity of detecting the admitted facts of this case. In this regard this District Commission after going through the evidence on record and on examination of documents filed by the parties of this case finds that the both parties have either admitted or have not raised any dispute in respect to the following matters:-
- It is admitted fact that the opposite party is running a technical education college under the name and style “Modern Institute of Engineering and Technology” situated at Barole, P.O. Rajhat, P.S. Polba, Dist. Hooghly.
- It is also admitted fact that the complainant went to the office of the opposite party for admitting his son Amman Sharma in the technical education.
- It is not disputed matter that the complainant had taken provisional admission by depositing 28,000/- on 13.7.2019.
- There is no controversy over the issue that the son of the complainant obtained chance in Govt. Polytechnic College as the complainant and his son belonged to SC category.
- It is admitted fact that thereafter for the interest of bright and better future Amman Sharma decided to admit himself in the Govt. Technical Polytechnic College.
- There is no dispute over the issue that Amman Sharma, son of the complainant got his name registered in the West Bengal State Council of Technical and Vocational Education and Skill Development.
- There is no controversy over the issue that thereafter the complainant claimed refund of Rs. 28,000/- from the opposite party.
On the background of the above noted facts and circumstances this District Commission must have to consider on the law point whether educational institution comes under the purview of defects/ deficiency/ unfair trade practice during the process of pre-admission as well as post-admission and whether education is a commodity and whether students are coming under the category of consumers or not? In this regard the decision of the Hon’ble National Commission which has been adopted in the case of Manu Solanki & others vs. Vinayaka Mission University along with other cases which has been reported in I (2020) CPJ 210 (NC) is very important where Hon’ble National Commission, New Delhi has been pleased to observe educational institutions are not providing any kind of service and therefore in the matter of admission, fees etc there cannot be a question of deficiency of service. Hon’ble National Commission has also been pleased to observe that post-admission and having attended college for some period of time if the student leaves college within his own volition and seat falls vacant, which may or may not be filled by other candidate, fee cannot be refundable as issue is of “post-admission” and student had left “during course of imparting education”. It has also been observed by the Hon’ble National Commission in the above noted reported case that students falling in this category are nor “consumers”. It has also been decided by the Hon’ble National Commission in the above referred case that institutions rendering education including vocational courses and activities under taken during process of pre-admission as well as post-admission and also imparting excursion tours, picnics etc, co-curricular activities, swimming sports etc except coaching institutions will therefore not be considered under the provisions of Consumer Protection Act, 1986 and therefore students or their guardians would not get any right to approach before Consumer Forum under the provisions of Consumer Protection Act, 1986.
The complainant side has filed a copy of Govt. order to establish that the amount deposited is refundable and so the complainant side argued that the complainant is entitled to get relief in this case. But facts remain that on close compare of the said document issued by Joint Secretary (Higher Education Department) vide no. Advt. No. AICTE/Legal/04(01)/2007 with the decision of Hon’ble National Commission which is reported in I (2020) CPJ 210 (NC). It is found that the decision of the Hon’ble National Commission which has been mentioned above has been passed in the year 2020. But the document which has been placed by the complainant is of the year 2007 and so the above noted decision of the Hon’ble National Commission is more reliable. Thus, the public notice which has been placed by the complainant cannot be accepted.
A cumulative consideration of the above noted discussion goes to show that this complaint case which is filed by complainant is not maintainable in the eye of law and so all the points of consideration which have been adopted in this case are decided against the complainant.
In the result it is accordingly
ordered
that the complaint case being no. 32 of 2020 be and the same is dismissed on contest.
No order is passed as to costs.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
