THE KERALA STATE  CONSUMER DISPUTES REDRESSAL  COMMISSION

VAZHUTHACAUD,  THIRUVANANTHAPURAM.

                        APPEAL NUMBERS .475/2014, 476/14, 605/14 AND 606/14

COMMON ORDER  DATED:12.2.2019

PRESENT:-

HON’BLE JUSTICE SRI. S.S.SATHEESA CHANDRAN: PRESIDENT

SMT. BEENAKUMARI. A             : MEMBER

                                       APPEAL NO. 475/2014

(Appeal filed against the order in cc.no.142/2012, CDRF, Ernakulam )

APPELLANTS:

1. Sooraj M.S,

S/o Muraleedharan Pillai,

Sooraj Mandiram, Meyanoor P.O,

Kollam district.

2. Rachindra chandran,

D/o Chandra Babu, Kizhakketh house,

Pannialil, Omalloor P.O, Pathanamthitta district.

(By Adv. Vinay MenonV)

                   V/S

RESPONDENTS:

1. M/s Cochin international air port ltd,

Rep. by its Managing Director,

Kochi airportP.O, Nedumbassery,

Ernakulam, Pin. 683 111.

(By Adv. Menon & Pai)

2. M/s. Kairali Aviation Aeronautical

Engineering Pvt. Ltd, Rep. by its director,

Geetha Bhavan, Sanathanapuram P.O,

(By Adv. S.S. Kalkura)

3. M/s. Cochin international aviation

Services ltd, Rep by its Managing Director,

Kochi airportP.O, Nedumbassery, Ernakulam- 683 111.

(By Adv. Menon & Pai)

                             APPEAL NO. 476/2014

(Appeal filed against the order in cc.no. 617/2011,CDRF, Ernakulam )

APPELLANTS:

1. Greeshma M. R, D/o Rajan,

Mattappilly house, Edathala North P.O,

Ernakulam District.

       2.Jithu Thomas , S/o Thomas,

           Vevukatu house, Muttinakam,

 Varapuzha P.O, Pin. 683 517.

3. Ebin  Antony, S/o Antony,

Kulakayampilly, Muttinakam,

Kuzhoor P.O, Mala- 680 734.

4. Varghese Antony, S/o  Antony,

Kodipparambil house,South Chellanam P.O,

Ernakulam- 682 008.

5. Renjith V.R, S/o Remesan,

Veliyathukattil house, Okkal P.O,

Ernakulam- 683 550.

6. Vishnu K. Sreelan, S/o Sreelan,

Kollanteparambil house, Koduvazhanga,

Neericode P.O,Alangad- 683 511.

(By Adv. Vinay Menon V)

                                       V/S

RESPONDENTS:

1. M/s Cochin international air port ltd,

Rep. by its Managing Director,

Kochi airportP.O, Nedumbassery,

Ernakulam, Pin. 683 111.

(By Adv. Menon & Pai)

2.  M/s. Kairali Aviation Aeronautical

Engineering Pvt. Ltd, Rep. by its director,

Geetha Bhavan, Sanathanapuram P.O,

(By Adv. S.S. Kalkura)

3. M/s. Cochin international aviation

Services ltd, Rep by its Managing Director,

Kochi airportP.O, Nedumbassery, Ernakulam- 683 111.

(By Adv. Menon & Pai)        

APPEAL NO. 605/2014

(Appeal filed against the order in cc.no. 142/2012,CDRF, Ernakulam )

APPELLANT:

M/s. Kairali Aviation Aeronautical,

Rep. by its Director, Geetha Bhavan,

Sanathanapuram P.O, Kalargode, Alappuzha- 688033.

(By Adv. S .S.Kalkura )

                                       V/S

RESPONDENTS:

1. Sooraj M.S,

S/o Muraleedharan Pillai,

                    Sooraj Mandiram, Meeyannor P.O,

                   Kollam District.

2. Rachindra Chandran,

D/o Chandra Babu, Kizhakketh house,

                   Pannialil, Omalloor P.O, Pathanamthitta district.          

3. M/s Cochin international air port ltd,

Rep. by its Managing Director,

Kochi airportP.O, Nedumbassery,

Ernakulam, Pin. 683 111.

4. M/s. Cochin international aviation

Services ltd, Rep by its Managing Director,

Kochi airportP.O, Nedumbassery, Ernakulam- 683 111.

APPEAL NO. 606/2014

(Appeal filed against the order in cc.no. 617/2011,CDRF, Ernakulam )

APPELLANT:

M/s. Kairali Aviation Aeronautical,

Rep. by its Director, Geetha Bhavan,

Sanathanapuram P.O, Kalargode, Alappuzha- 688033.

(By Adv. S .S.Kalkura )

                                       V/S

RESPONDENTS:

1. Greeshma M. R, D/o Rajan,

Mattappilly house, Edathala North P.O,

Ernakulam District.

       2.Jithu Thomas , S/o Thomas,

           Vevukatu house, Muttinakam,

 Varapuzha P.O, Pin. 683 517.

3. Ebin  Antony, S/o Antony,

Kulakayampilly, Muttinakam,

Kuzhoor P.O, Mala- 680 734.

4.Varghese Antony, S/o  Antony,

Kodipparambil house,South Chellanam P.O,

Ernakulam- 682 008.

  5.Renjith V.R, S/o Remesan,

Veliyathukattil house, Okkal P.O,

Ernakulam- 683 550.

   6.Vishnu K. Sreelan, S/o Sreelan,

Kollanteparambil house, Koduvazhanga,

Neericode P.O,Alangad- 683 511.

(By Adv. Vinay Menon V)              

7.  M/s Cochin international air port ltd,

Rep. by its Managing Director,

Kochi airportP.O, Nedumbassery,

Ernakulam, Pin. 683 111.

8. M/s. Cochin international aviation

Services ltd, Rep by its Managing Director,

Kochi airportP.O, Nedumbassery, Ernakulam- 683 111.

                             COMMON ORDER

HON’BLE JUSTICE SRI. S.S.SATHEESA CHANDRAN: PRESIDENT   

      These four appeals arise from the Common Order dated   21-12-2013 passed in CC/617/2011 and 142/12 by the  Consumer  Disputes Redressal Forum, Ernakulam.  The above two complaint cases were filed by some students,  who had  joined in a course imparting education in  Civil Aviation,  alleging deficiency in service, to claim compensation from the opposite parties, three  in number.

          2.  Common case of the complainants' in short was that the 1^st opposite party  offered quality education in Air Craft Maintenance and MRO   Aviation Training .  Complainants, each of them, remitted    Rs. 1,77,334/- towards fee for joining the course,  period of which was fixed as  three years.  However, after one year the Director General of Civil Aviation declined to renew the  approval of the institution and it was closed. Alleging that the complainants were assured of continuous renewal of approval by the opposite parties but it was not honoured  and  by non-renewal  they could not complete  the course after paying  substantial  sum  as  fees  complaints were filed claiming refund of the fee paid by  them with compensation of Rs. 1,50,000/-  to  each of the complainants.

          3.  Separate versions were filed by the opposite parties.   The  1^st opposite party contended that there was  no privity of contract between the complainant and the 1^st opposite party and the liability if any,  to pay compensation rested with   the 2^nd opposite party only.

          4.   2^nd opposite party filed a version contending that the complaints were bad for non-joinder  of necessary parties stating that it was only a subsidiary of M/s. Kairali Aviation Pvt. Ltd., which had entered into an agreement with the 1^st opposite party Kairali Aviation Pvt. Ltd.   According to the 2^nd opposite party was not a necessary party in the proceedings.   It was further contended by the 2^nd opposite party that the 3^rd opposite party invited applications  from  eligible management persons for the proposed AME institute and it has so done on behalf of the 1^st opposite party.   An agreement was entered into by the 3^rd opposite party with M/s. Kairali Aviation Pvt. Ltd for  conducting  the institute and,  later,  the 2^nd opposite party,  subsidiary of the Kairali Aviation Ltd,  with the consent of the 1^st opposite party  was engaged to run CIAL AME institute.   The Directors of the Kairali Aviation (P) Ltd. formed  the Board of Directors of the 2^nd opposite party,  and  it  was  duly  endorsed by the 1^st  opposite party.  A tripartite agreement was entered by Kairali Aviation (P) Ltd and 2^nd and 3^rd opposite parties with respect to the running of the Institution and 2^nd opposite party had furnished  a sum  of one crore with the 3^rd opposite party as security deposit.  The course carried on in the institute of the 2nd opposite party had to be discontinued  on account of the  termination of tripartite agreement  entered into by the 3^rd opposite party and thereupon 1^st and 3^rd opposite parties made alternate arrangements for continuation of the course for  the students who joined the institution.  2^nd opposite party had collected fees for one year from the students and during that period  for    the fees collected   training and education were imparted  to  the students   was the  further case of the 2^nd opposite party.  The 2^nd opposite party contended that there was no deficiency of service on its  part and it  no liability to pay compensation.

          5.  3^rd opposite party filed a version contending that  under the agreements  entered  by  this opposite party  with Kairali Eviation Pvt. Ltd and subsequently  including  2^nd opposite party  .  The   obligations to run the institute  was   with the 2^nd opposite party and it has to obtain renewal of  approval from the DGCA from time to time  complying and fulfilling  the formalities required thereof .  There was default on the part of the 2^nd opposite party to comply with its   obligations under the agreement  and thereupon the  terms and there upon the tripartite agreement was terminated by the 3^rd opposite party.   Default on the part of the 2^nd opposite party led  to non-renewal of approval by the DGCA and thus non-recognition of the institute causing injuries to the students who  had  joined  the  course.  However, considering  the  interest of the students who had joined the course 1^st and 2^nd opposite parties   made alternative arrangements for their migration of other institute to complete their course.

          6.  No oral evidence was adduced by any of the parties to the proceedings.   On the side of the complainant  Exbt. A1 to A9 were exhibited. 1^st and 3^rd opposite parties   got exhibited B1 to B17 to substantiate  the defense canvased by them.

          7.   Appreciating the materials produced by both sides and examining Exbt. B15 and B16 agreement entered by the 3^rd opposite party,   the former with the Kairali Eviation Pvt. Ltd and the  latter with the 2^nd opposite party and Kairali Eviation Pvt. Ltd,  both of them  together,   the forum  below repeating  the contentions  of   2^nd opposite party  held  that the 2^nd opposite party had the sole responsibility of  running the institute, and its  case that the other two  opposite parties had joint and several responsibility  in the management was not correct.  Taking note that there was no serious dispute  of the factual aspects involved in this case for the non-renewal of the recognition for running the institute while the course  commenced  continued  and the  findings already made  that the 2^nd opposite party was   in sole management of the institute it was concluded  that there was deficiency in service  on  its  part to obtain renewal of the recognition for the course.    In that view of the matter the 2^nd opposite party was directed to refund the amount collected from the complainants  within a period of 30 days,  with  default  term that  the  above amounts shall carry interest @ 12% p.a. till realization.     Separate claims for  compensation canvased by the complainant students  were  not allowed by  the Forum,   other than allowing  refund of the fees paid by them for joining the course.

          8.  Complainants  have preferred two appeals,  namely,  appeal No. 475/2014 and 476/2014,  entertaining  an  apprehension that the order of the Forum restricted payment of interest on the  sum  of refund allowed for  one month  only from the date of receipt of a copy of the order passed by the Forum. The learned counsel for the appellants  in the above appeals,  at the time of hearing,  submitted   appeals  filed on such   apprehension have no merit or basis as the default  term   imposed by the Forum insulated the right of   appellants  ( students) to claim   refund amount with interest ordered till such sum  is  paid by  the 2^nd opposite party.   So the  above two appeals  do not involve  any  question to be pondered over   is the submission of the counsel.  Accepting the submission we dispose these  two appeals as closed.   

          9.   The other two appeals,  namely,  appeals 605/2014 and 606/2014 are preferred by the 2^nd opposite party challenging the order of the Forum directing the 2^nd opposite party    to refund the fees collected from the students.   The learned counsel appearing for the common appellant in the above appeals reiterating  the contentions advanced before the lower forum contended that all opposite parties have  joint and several liability for payment of the refund sum .  The  management of the  institution namely CIAL AMT  institute  providing  course in Civil Aviation  was at the  first  instance with  the   1^st opposite party,  a subsidiary  of  3^rd opposite party, and later it continued along with  Kairali  Aviation Pvt. Ltd.,  is   the submission of the counsel.  Banking over  Exbt. B15 agreement learned counsel for the appellants submitted that 3^rd opposite party entered into a contract with the Kairali Aviation Pvt. Ltd for running  the institute subject of certain  terms and conditions specified their under and,  later,  a tripartite agreement was entered  with the subsidiary of  Kairali Aviation Pvt. Ltd., 2^nd opposite party, to manage the institute.  The contractual obligations arising  under the  agreement  Exbts.A1  and B1 were  contravened  by the 1^st  and 3^rd opposite parties and that necessitated  reference to arbitration  of the disputes  between the parties,  is  the  further submission of the counsel. 3^rd opposite party unilaterally terminated Exbt.B15 and B16 agreement without justifiable cause and that eventually caused non-renewal  of the approval of the institution by the DGCA,  according to the complainant. The arbitrator after taking evidence has passed  an award   accepting  the case of the 2^nd opposite party, but,   the proceeding  thereof are still continuing  since the award  has been  challenged by the 1^st and 3^rd opposite parties,  is the submission of the counsel. In such circumstances joint  and several liability for refunding the fees  collected from the students has to be cast  upon all the opposite parties,  is the submission of the counsel.

          10.  So far as  the passing of an  Arbitration Award and challenges  there to filing appeals  are not disputed by the counsel appearing for the 1^st and 3^rd opposite parties.  However, it is submitted that the dispute covered by the arbitration have no nexus or connection with the  claim of refund canvassed by   the complainants  in the present two cases.  Whatever that be,  So far as  the claim of the complainants for refund of the fees paid  alleging deficiency of service on the management running the institute the  sole   question to be examined by the Forum who was in effective management of the institute and that alone.  The  lower forum appreciating the various terms and clauses under Exbt. B14 and B15  have rightly and correctly taken note that the  contractual obligations entered   by the parties specifically stipulated that it was the responsibility of the 2^nd opposite party to manage the institution and also to get renewal or recognition from time to time from the DGCA complying  with all formalities required thereto .  The forum below has quoted the relevant clauses and agreement in its order and reproducing  them is  not warranted.  The terms entered by the parties are crystal clear that  it is the sole responsibility of the 2^nd opposite party to collect the fees,  impart education to the students,   manage  institution and get   approval for continuing the recognition of  the institute fulfilling  all formalities  when  that be so,  we find that the order passed by the Forum fixing the liability on  the 2^nd opposite party to refund the sum collected  is un assailable.  There is   serious challenge  against the finding on  deficiency of service.     There is no merit in these  appeals.

           Appeal Nos. 605/14 and 606/14  are dismissed directing both sides to  suffer their costs.    Appeal numbers 475/2014 and 476 of 2014 are disposed as closed. 

          JUSTICE    S.S.SATHEESA CHANDRAN: PRESIDENT

BEENAKUMARI. A                                    : MEMBER

Ekm ca/sh