..…Complainant
Versus
Neha Chawla wife of Sunil Chawla, R/o. H. No.121, Old, 243 New, Prem Nagar, Shiv Mandir Road, Ghumar Mandi, Ludhiana. PIN Code-141001 – 141003. …..Opposite party
Complaint Under Section 35 of the Consumer Protection Act.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Ms. Sheetal along with counsel Sh. Vinod Kumar, Advocate.
For OP : Sh. Patwinder Singh Grewal, Advocate.
ORDER
PER SANJEEV BATRA, PRESIDENT
1. Shorn of unnecessary details, the facts of the case are that the complainant being a Law Graduate intended to appear in P.C.S. Judicial Examination and in the month of January 2022, she contacted the OP at her residential address. The OP assured the complainant to give individual coaching for complete PCS Judicial Exams with good results upon which the complainant agreed to take coaching from the OP for 1½ hour daily. The OP demanded Rs.55,000/- in all for all subjects, out of which the complainant paid Rs.30,000/- on 21.01.2022 and started getting coaching from the OP. The complainant stated that the OP started reducing time of coaching and even missed coaching class many times on one pretext or the other. Even the OP demanded remaining Rs.25,000/- from the complainant with assurance of no complaint in future. Believing the assurance of the OP, the complainant paid Rs.25,000/- on 25.03.2022 but the behavior of the OP did not change. Even she did not teach all the subjects nor gave proper time as promised. The complainant many times approached and requested the OP to assure her presence on the given time but the OP did not pay any heed and intentionally did not provide proper coaching. Then the complainant asked the OP to refund her coaching fees as she failed to provide proper coaching. The OP told the complainant to refund the coaching fee on arrival of her husband and gave mobile number of her husband to the complainant to decide regarding time for refund of money. The complainant contracted the husband of the OP with request to refund the coaching money but he used filthy language with the complainant instead of refunding money. Then the complainant approached the OP at her residence and told her the facts but she also threatened the complainant not to refund her amount of Rs.55,000/-. The act of the OP amounts to deficiency in service due to which the complainant has suffered physical and mental torture besides financial loss. In the end, the complainant has prayed for issuing direction to the OP to refund Rs.55,000/- along with compensation of Rs.2,00,000/- etc.
2. Upon notice, the OP appeared and filed written statement assailed by complaint by taking preliminary objections on the grounds of maintainability; the complaint being not a Consumer under Consumer Protection Act; lack of cause of action etc.
On merits, the OP admitted the receipt of Rs.55,000/- as coaching fee from the complainant. However, the OP averred that she never contacted the complainant and never called her at her residential address. The complainant was friend of her cousin brother and as such, she was devoted full time for teaching her but the complainant was irregular and un-attentive towards the coaching as she was a bank employee working in Private Bank as a Cashier. Sometimes she used to come at about .9.00 PM or 10.00 PM on the pretext that she being a cashier was busy and also skipped the classes for several days. The OP further averred that she asked the OP to come in evening for her coaching as she has other obligations towards her family but it is the complainant who herself at a fault. The OP has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.
3. In evidence, the complainant tendered her affidavit as Ex. CA and reiterated the averments of the complaint as well as affidavit Ex. CB of Ms. Anmol daughter of Sh.Rajnish Kumar. The complainant also placed on record documents Ex. C1 is the copy of legal notice, Ex. C2 is the copy of Aadhar Card of the complainant, Ex. C3 is the copy of ID Card of the complainant issued by Bar Council of Punjab & Haryana, Ex. C4 is the copy of statement of account of the complainant, Ex. CW2/1 is the copy of Certificate of Enrolment of Ms. Anmol, Ex. CW2/2 is the copy of Aadhar Card of Ms. Anmol and closed the evidence.
4. On the other hand, the OP tendered her affidavit Ex. RA along with documents Ex. R1 is the copy of her Aadhar Card and closed the evidence.
5. We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement along with affidavits and documents produced on record by both the parties. We have also gone through written arguments submitted by the complainant.
6. The complainant, a law graduate and an aspirant to become a Judicial Officer, approached the OP, a law teacher, in the presence of her friend CW2 Ms. Anmol after invoking a reference of third party for taking individual coaching for Punjab Judicial Services Exams. The OP agreed to render desired services to the complainant for a consideration of Rs.55,000/- and the complainant paid initial sum of Rs.30,000/- on 21.01.2022. According to the complainant, the OP was to devote 1½ hours daily for coaching to the complainant while the OP denied having agreed upon particular slot. However, undeniably, personal coaching was to be provided at the residence of the OP. Further the complainant has averred in her complaint that the OP has reduced the agreed time duration of coaching and also missed the coaching classes. Further the OP succeeded in obtaining the remaining Rs.25,000/- on 25.03.2022 despite rendering poor and deficient coaching services to the complainant.
7. On the other hand, the OP asserted that she devoted full teaching hours to the complainant for all subjects and it is the complainant who at that time was working as a cashier in a private bank and she used to approach the OP as per her convenience even after 09.00 PM. Further it is the complainant who skipped the classes owing to her pre-occupation in the job. She further asserted that even at the time of taking coaching, the complainant was un-attentive.
8. The first and foremost point of consideration that arises for consideration that whether the complaint is Consumer within meaning of Section 2(7) of the Consumer Protection Act.
9. Section 2(7) of the Consumer Protection Act, 2019 provides:-
“Consumer” means any person who:-
(i) of the Consumer Protection Act, 2019 the consumer means a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii)hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.”
Explanation. -For the purposes of this clause, -
(a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;
In a case titled as Manu Solanki Vs Vinayaka Mission University in 2020(1) CPJ 210, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi after considering multiple judgments of the Hon’ble Supreme Court of India broadly laid down the following principles:-
(a) in strict terms, coaching centers do not fall within the definition of ‘Educational Institutions’
(b) any defect or deficiency or unfair trade practice pertaining to a service provider like ‘Coaching Centers’ will fall within the jurisdiction of the Consumer Fora, and
(c ) institutions rendering education including vocational courses and activities undertaken during the process of pre-admission as well as post-admission and also imp0arting excursion tours, picnics, extra co-curricular activities, swimming, sport, etc. Except coaching institutions, will not fall within 1986 Consumer Protection Act.
Further in LBS Group of Education Institute Vs Arjun Singh and others 2021(1) CPJ 151, it has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi that the institution rendering education including vocations course 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 not be covered under the provisions of Consumer Protection Act, 1986. Applying the ratio of law laid down in the judgments mentioned hereinbefore, the first point is answered in favour of the complainant.
10. The second point of consideration arises whether the OP has rendered deficient service to the complainant?
11. Section 2(42) of the Consumer Protection Act defines the word “service”, which reads as under:-
“2(42) “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”
Further Section 2(11) of the Consumer Protection defines the word “deficiency”, which reads as under:-
“2(11) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any aw for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes-
- any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
- deliberate withholding of relevant information by such person to the consumer……
A conjoint reading of both these sections make it crystal clear that a service provider is under an obligation to maintain quality to the services being rendered to his/her consumers and the contract to provide services can either be expressed or implied. Any kind of negligence of the service provider which causes loss or injury to the Consumer can also be construed as deficiency in service.
12. Adverting to the merits of the case, it can be borne from the record that at the time of availing services of the OP, the complainant was working as a cashier in a private bank and she was under contractual obligation to discharge the onerous duties of a cashier in the bank. At that time, the complainant was only a law graduate and later on got herself enrolled on 29.04.2022 as reflected from her ID Card Ex. C3 issued by Bar Council of Punjab and Haryana at Chandigarh. Although the factum of providing coaching/tuition to the complainant at the residence of the OP, remained undisputed but the complainant did not plead or proved the exact duration of time slot and period of coaching. It has also not been specifically pleaded and proved by the complainant that how many subjects were to be taught by the OP and whether the OP was required to supply any study material to the complainant or not. Although the complainant has tendered an affidavit of her friend namely Ms. Anmol as Ex. CW2 wherein the witness had tried to corroborate the version of the complainant, except the fact that the complainant approached the OP in the presence of her friend CW2, the remaining part of the evidence as contained in her affidavit Ex. CW2 is just a hearsay evidence. Copy of the undated legal notice has been marked as Ex. C1 but the complaint as well as affidavit of the complainant is silent whether this notice was ever served upon the OP. As such, the pleadings of the complainant seems to be sketchy, vague and ambiguous. In this regard, reference can be made to 2022(2) Apex Court Judgments 624 (S.C.) in M/s. The New India Assurance Co. Ltd. & another Vs Shashikala J. Ayachi whereby the Hon’ble Supreme Court of India has held as under:-
“(i) Consumer Protection Act, 1986, S.2 (1) (g) – Deficiency in service – Sketchy pleadings supported by doubtful evidence- Consumer Forum not to allow the complaint.
(ii) Consumer Protection Act, 1986, S.2 (1) (g) – Insurance claim – Repudiation – Deficiency in service – Consumer Forum which has a limited jurisdiction to find out if there was any deficiency in service, could not have allowed complaint on the basis of sketchy pleadings supported by doubtful evidence – Since there was no categorical evidence of any deficiency in service on the part of Insurance Company, order of National Commission directing Insurance company to make payment under insurance policy set aside.”
13. Seeing from another angle, the OP being a law teacher has been rendering individual, one to one tuitions. Unlike other unscrupulous ‘Coaching Institutions’ no publically campaign to lure the gullible students was ever launched by her. It is the complainant, who approached the OP through reference, after taking into consideration, the repute and competency of the OP as teacher. Hence, bonafides of the OP cannot be doubted. Further the complainant has failed to discharge initial onus to prove the deficiency in service on the part of the OPs by any cogent and convincing evidence. The Hon’ble Supreme Court of India in its judgment in SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India while relying upon on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. As well as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544), has held as under:-
“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.”
14. As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
15. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Sanjeev Batra) Member President
Announced in Open Commission.
Dated:22.08.2024.
Gobind Ram.
