Ld. Advocate(s)

                             For Complainant: Safikul Alam

                             For OP/OPs :  Swapan Kr. Ghosh

          Date of filing of the case               :13.02.2023

          Date of Disposal  of the case        :26.06.2024

Final Order / Judgment dtd.26.06.2024

The pith and substance of the case of the complainant is that the complainant Sunanda Ghosh was a student under OP no. 1 Nadia Primary Teachers Training Institute in Diploma Elementary Education. She was admitted at OP no.1 on 10.08.2017 and paid Rs. 80,000/- to OP no. 1 for fees and other charges. At that time the OP no. 1 did not give any receipt. The complainant was admitted to the OP no. 1 Institute. The course of admission was diploma in elementary education. The OP no. 1 issued a registration certificate in favour  of the complainant being index no. 1302332 Session 2017 -2019, Registration no. 1713211032. The OP had given admit card to the complainant for session 2017-2019, Roll no. 18131211, NO. 2615 and NO. 0368. The complainant appeared in the examination at different centres. The complainant went to the OP no. 1   several times to take her result and money receipt but OP no. 1 did not give it to the complainant. Complainant filed relevant documents like registration no. Admit card. The complainant appeared in the examination for Teachers Eligibility Test for 2017 for class I to V on 31.01.2021 at Pannalal Institution at Kalyani, Nadia  under West Bengal Board of Primary Education. After seeing the admit card of the petition the said board  allowed the complainant to sit in the examination. OP promised to the complainant that OP no 1 would give the result after the said examination but subsequently OP no. 1 denied to give the result. The complainant appeared in all the examination of the said training under OP no. 1. The complainant paid total charges to the OP no. 1 but OP no. 1 did not give certificate to the complainant after completion of the said course and also did not give result so the complainant sent legal notice through her Ld. Adv.  on 17.02.2022. Finally she filed the present case against the OP. The cause of action arose on 17.10.2022 and subsequently which is still continuing. The complainant prayed for an award with a direction to the Ops to give mark sheet/result and money receipt to the complainant, Rs.2,00,000/- compensation  towards mental pain and agony  and litigation cost.

OPs contested the case denying the major allegation against them. OP no. 1 challenged the case as not maintainable on the ground that the case is not covered under the C.P.Act and it is barred by limitation.  The positive defence case of the OP no. 1 in brief is that the present case is filed in order to create pressure upon the OP no. 1 for illegal gain. The total course fees of D.EL.ED is Rs.96,000/- + other charges for the un aided self finance non Govt. Institution as per Government  notification. The complainant paid Rs. 10,000/- only at the time of admission and she did not pay any other amount. So she did not take any money receipt. The complaint failed to pay the balance amount of Rs. 86,000/- + other charges. She also did not pay the full amount of Rs. 12,000/- for first instalment despite several request by the OP but she violated the law. At the time of taking the certificate she promised to pay it. Actually the complainant along with her father made a pre plan for not paying   the course fees. As soon as she paid the course fees, it is supposed to obtain money receipt. Since she did not pay the course fees so she failed to produce full particulars and documents of payment of course fees. The complainant never paid Rs. 80,000/-. The father of the complainant showed red eyes and muscle power only to create pressure upon Bimal Ghosh. The OP claimed that the case is liable to be dismissed with cost. The case is decided to be heard  ex-parte against  OP no. 2.

  On the basic of the pleading of the parties the commission considers it necessary to ascertain the following points for adjudication of the case.     

Points for Determination

Point No.1.

Whether the case is maintainable in its present form and prayer.

Point No.2.

Whether the complainant is entitled to get the relief prayed for.

Point N. 3 

To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1

 Complainant claimed that despite payment of the course fees the OP has withheld the result, did not issue mark sheet and money receipt.

 OP no. 1 challenged the case as not maintainable on the ground that it is barred by limitation and there is no cause of action. It is admitted fact that the complainant was admitted to the OP no. 1 Institute for Teachers Training of Diploma Elementary Education. Although the OP denied that the complainant did not pay the entire course fees and Rs. 80,000/- is still outstanding, if for the   sake of argument it is presumed that complainant paid Rs. 10,000/- so there is a relation  of consumer  and service provider between the complainant and the OP.  In the given facts and circumstance the complainant is a consumer under the C.P.Act and the OP is service provider. Accordingly, the present case is well within the preview of the C.P.Act .

 The cause of action is claimed to have arisen on and from 17.10.2022 which could not be discarded properly. Present case is filed on 03.02.2023 which is well within the limitation period. Accordingly, the present case is not barred by limitation. The other aspect of the case clearly suggests that the case is not barred by any provision law. Accordingly point no. 1 is answered in positive in favour of the complainant.

Points no.  2 and 3:

Both points are closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion. It is the admitted fact that the complainant was admitted to the OP no. 1 institution for PTTI. The OP   defended the case that complaint did not pay the entire course fees of Rs. 80,000/- which is still outstanding.

 The complainant in order to substantiate the case proved certain documents.

Document:1 is a registration certificate  in the name of Sunanda Ghosh complainant.

 Document:2 is the  admit card for WBBPE in the name of complainant Sunanda Ghosh  for the year 2017-2019. Two such admit cards are filed.

Document -3 is the online application for Teacher Eligibility Test (2017) .

 The complainant further  filed one hand writing diary. As per the said diary the sum of Rs. 80,000/- has been duly paid as under:-

 20,000/- 20.08.2017, 10,000/- on 10.08.2017 , RS. 10,000/- on 20.12.2017 , RS. 10,000/- on 26.03.2018 and RS. 30,000/- on 19.11.2019.

 Complainant claimed that it was written by the mother of the complainant  and used  to keep house hold account in an old  diary.  In this respect Ld. Adv for the complainant drew the attention of this Commission about section 12 of the Evidence Act and section 34 and 39 Evidence Act.

 Ld Adv for defence counsel raised strong objection against the said noting in the diary. Ld. Advocate for the OP argued that it is diary of 2014 but the entry relates to 2017, 2018 and 2019. However from normal experience it is found that some of the rustic women or ordinary person use to maintain account regarding their daily expenses in old note book or old diary. It is not uncommon that the said notes of account are maintained always in current   diary.

 Ld. Adv. for the complainant argued that the op could not discard the evidence of the complainant.

PW2 Sarbani Ghosh is the mother of the complainant Sunanda Ghosh. She stated in her evidence that she had a small diary and she had written all the  account note in the said diary. Her husband and her daughter took amount in various dates. She had maintained the said statement in the said diary. She had maintained many other statement in the said diary and the amount which was in the current year amount which was paid to the OP no. 1 was written in that page.

 During cross examination PW 2 was asked as to whether she is ready to pay the due amount of Rs. 86,000/- to the OP. PW 2 answered that her family also paid the said amount.

 After perusing the evidence of PW 1 and 2 it transpires that

 That the OP could not discard the evidence of the complainant to draw   any adverse inference.

 PW1 also answered in cross examination  that her father already paid the said money and her mother knew it.

 As per section 12 of the Indian Evidence Act in suit for  damages, facts tending to tenable court to determine amount are relevant.

 By following the said section 12 it is found that the complainant had proved the diary where from it is found that there is payment of Rs. 80,000/-. As per the provision of Evidence Act the best documents has to be proved by the parties.

 In the instance case the OP has admitted that a sum Rs. 12,000/- has been paid. The OP could have produced their books of account regarding the payment of monthly fees by the students. Had the OP produced the said account books it would have been proved from the said documents as to whether OP had actually received the said money or not. So the OP has suppressed their documents. On the contrary the complainant produced available documents in her custody where from it is revealed that complainant paid Rs. 80,000/- on different date on 10.08.2017to19.1.2019.

 Ld. Adv. for the complainant also relied on section 34 of Evidence Act. As per the said section 34 Evidence Act entry in books of account regularly kept in the course of business are relevant whenever they referred to the matter entitled which court has  to  enquire.

 After perusing the said diary kept by the mother of the complainant it transpires that different accounts are mentioned regarding the money spent/ paid by the person /member of family of complainant. Since the mother of the complainant produced the diary from her own custody by adducing   evidence in affidavit so it’s credibility cannot be ruled out. The OP during cross examination has not put any suggestion to the OP no. 2 that the said diary is manufactured or that the said entry in the said diary are concocted or manufactured or baseless. So by relying upon  section 12 and section 34 Evidence Act the credibility of the documentary evidence in the form of diary is considered as corroborating to the case of the complainant.  Ld. Adv. for the complainant also referred to section 39 of the Evidence Act.

As per section 39 Evidence Act her evidence what evidence to be given when statement forms part of a conversation, document electronic record book of series letters or papers.

Complainant in order to substantiate her oral evidence produced documentary evidence in the form of the diary where in entries of money paid were duly recorded.

Previously we found that the OP could not discard the said documents or the books of account in the form of a diary. So the complainant in order to strengthen that oral evidence duly proved the books of account in the form of the diary which are u/s 12 of 34 and Section 39 of the Evidence Act.

Ld. Senior defence counsel argued that there is not continuation of the diary.

 It is fact that the said diary is maintained in haphazard way but OP or Ld. Adv for the complainant did not cross examination PW2 as to how the said entries were made or any explanation from OP no. 2 regarding the maintaining of the said diary. Be that as it may, the said diary discloses noting of different amount of money paid to different person at different dates. The village rustic lady usually keeps books of account in this form of paper which may be a form of diary or old diary. Actually OP could not discard the specific evidence of the complainant.  Even if for the sake of argument if it is presumed that the complainant has not paid the entire course fees, yet the OP could not prove any documents to show that in the event of violation  to pay to the  fees the result can be withhold or certificate should not be give. In fact OP could not prove the rules of payment of course fee or rule for supplying certificate or result to the successful   candidate examinee.

Ld Adv for the complaint rightly argued that if the complainant   not paid the course fees then why do the OP allowed him to appear in the examination.

 The argument has reasonable force in as much as the OPs failed to prove any documents to show that the OP demanded the outstanding course fees from the complainant in writing. OP also could not prove any documents to show that the OPs institution demanded the alleged outstanding course fees from the complainant at any point of time.

 The discussion made herein above leads hold to that the OPs have acted with the complainant in a manner which tantamount to deficiency in service for which the career of the complainant has been affected. The said harassment on the part of the OP has caused harm to the career of the complainant which should be compensated in terms of money. However if there is any amount due from the complainant by the OP, they have further right to recover it under the due process of law.

In the given facts and circumstance of the case and the discussion made here in above vis-a-vis the position of law, the   commission is of the view that the complainant proved the case against the OP no.1 up to the hilt

Points no. 2 and 3 are thus answered in affirmative and decided in favour of the complainant. In the result the complaint case succeeds on contest against OP no. 1 and dismissed against OP no. 2 ex-parte without cost

Hence,

                              It is

Ordered

that the complaint case no.CC/09/2023  is allowed on contest against the OP no. 1 and dismissed against OP no. 2 with cost of Rs 5,0000/-.Complainant Sunanda Ghosh do get an award against OP no. 1 Nadia Primary Training Institution  with a direction to the OP no. 1 to hand over the mark sheet /result to the complainant within 30 days from passing the finals  award, to pay to the complainant Rs. 30,000/- towards deficiency in service, harassment and mental pain and agony  and  Rs. 5,000/- towards litigation cost . OP no. 1 is directed to  pay Rs. 35,000/-  and to comply the award within  the 30 days from the date of  final award failing which  complainant shall be entitled to put  the award into execution  and entire  award money shall  carry interest at the @12 % per annum from the date of passing  the final order  till  the  date of its realisation.

All Interim Applications (I.A) stand disposed of accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.               

Dictated & corrected by me

      ............................................

                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)         ...........................................................

                                                                                                         PRESIDENT

                                                                      (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

                  ............................................................                                                           

                           MEMBER                                                                                

(NIROD  BARAN   ROY  CHOWDHURY)