Order-17.
Date-31/07/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case, in short compass, is that he is a senior citizen aged about 76 years. OP is running a business of Computer School/ College under the name and style Uluberia Unique Education Society at Uluberia Lock Gate Bazar, Fish Market, First Floor, PO and PS Uluberia, Dist. Howrah. The said School and / or College is nearest to the residential address of the Complainant and as such the Complainant got himself admitted into C.B.C.A Course (Basic Course) under the care of the OP. It was decided that the course is for six months and the classes for the Complainant will be held thrice in a week i.e. on Wednesday, Saturday and Monday between 08.00 Pm to 9.30 Pm. The Complainant has alleged that on or about 29.03.2014, he sought the help of Assistant Director, Consumer Affairs and Fair Business Practices, Howrah having its Regional Office at 20 Round Tank Lane, Howrah – 1 for deficiency of service of Computer Teaching and for peaceful settlement of dispute and the Complainant also made a complaint on 19.06.2014 to that effect on the said score. It is stated that the said office dropped the case on extraneous ground and also avoided tripartite meeting and dropped the case after bipartite meeting between the said office and the OPs in absence of the Complainant. It is alleged that the said Consumer Affairs Department did not enter into the merit of the case of the Complainant even after application for information was made by the Complainant on or about 7th April, 2015. The Complainant submits that he has been forced to file this complaint before the Ld. Forum to get remedies. He has prayed for compensation for loss of time in learning of Computer Sciences and for harassment in terms of prayers in the petition of complaint.
The OP has contested the case in filing w.v. contending inter alia that the instant case is bad in law and in fact and the Complainant has no locus standi to file the case against the answering OP. It is stated emphatically that the Complainant has filed the case for harassment of the OP and to put OP into financial loss and mental agony. It is stated that the Complainant has practically blamed the Assistant Director of Consumer Affairs of Howrah Regional Office by suppressing the real fact of alleged complaint in which OPs filed one Written Objection. The Grievance Cell of Consumer Affairs of Howrah, dropped the case considering all aspects. It is stated that the Complainant has given false blame to the Authority of the Consumer Affais Deptt. and has filed case falsely concealing material fact.
It is stated that the Complainant, aged 76 years, got himself admitted in OPs Computer Education Center, Uluberia, Lock Gate, Howrah 711 315. The Complainant has 3 day class in a week in which one class was for theory class and the other two days for practical classes and the attendance of the students is maintained in an Attendance Register of the Coaching Centre. During teaching, it came up that the Complainant is hard of hearing and, as such, he was advised for Ear machine . But the Complainant is very much obstinate and arrogant and claimed to have knowledge about everything and OP is nothing in education comparing to the Complainant. The OP however, in his cool mind took classes in high voice for the Complainant, but other students were getting disturbed. Moreover, the Complainant used to insult each of the students by saying that they are not competent like him. Being insulted no student agreed to join with the Complainant in any classes. OP as such took care of taking theory class in alone isolately of the Complainant, so that the Complainant may learn and other students may not be disturbed but practical class was to be done with all students. In practical classes the Complainant used to disturb one Lab Assistant by snatching Mouse and used to remark that he has knowledge more than the OP and did not allow the Lab Assistant to show the method. The Complainant also used to insult the OP as a teacher. The Complainant also used to pen through the writing of the OP teacher and used to write as he liked. On one day, in March 14, the Complainant blamed OP in presence of other studentsand staff saying that OP gives wrong teaching in Computer. The Complainant also used to say that he had taken class of 60 to 70 persons for various purposes and the OP took classes of 4/6 persons. Complainant used to taunt OP and insult the OP also. OP tried to make understand the Complainant that he is an aged person and lacks in patience and he showed refrain from such practice. The Complainant did not come in Computer Class since April, 2014 and did not also pay fees since April, 2014. It is stated that the Computer class was for six months for which Complainant attended four months and paid 4 months coaching fees of Rs. 200/- per month. The Complainant did not attend the class since April, 2014 and did not pay fees for two months and left the Computer class on his own volition. The Course period was from December, 2013 to May, 2014 and the same has been ended. It is stated that all allegations against the OP are false, baseless. It is stated that the Complainant is a greedy person even in his ripe old age and has filed this case falsely to extract money from the OP. This OP has prayed for dismissal of the case.
Point for Decision
- Whether the OP is deficient in rendering service to the Complainant?
- Whether the case is maintainable in law?
- Whether the Complainant is entitled to get relief as prayed for?
Decision with Reasons
All the points are taken up together for the sake of convenience and brevity of discussion and as the points are inter linked.
It is worthy to point out at the very outset that the Complainant has not filed any document in supportof his case. No document is also forthcoming from the said OP. On perusal of the case record, we find that the Complainant filed Affidavit-in-chief. The OP thereafter put questionnaires to theComplainant by way of cross examination. The Complainant thereafter did not file any reply to such questionnaires. The OP thereafter filed Affidavit-in-chief. No questionnaire has come up from the side of the Complainant, as against such Evidence.
It appears that the Complainant did not face cross examination from the side of the OP as against his evidence of record. The Complainant,however, sent reply to the questionnaire by speed post on subsequent date and as the reply was received by the Forum post dated, such reply was not accepted vide order No. 13 dated 04.07.2017 passed by this Forum. The Complainantdid not also prefer revision as against the impugned order. The Complainant thereafter did not turn up before the Forum.OP filedevidence and Complainant did not turn up to put any questionnaire as against such evidence. The evidence of the OP accordingly stands firm in absence of any cross examination from the side of the Complainant. Moreover, the evidence of the Complainant must be treated as expunged as the Complainant failed, neglected to reply to the questionnaires put to him from the side of the OP and as the complainant avoided cross-examination.
Be that as it may, it becomes increasingly difficult on our part to gather any clear cut idea about the actual allegation of the Complainant. The Complainant has not stated what was the deficiency in service on the part of the OP. Moreover, we find that the Complainant moved before theAssistant Director of Consumer Affairs, Howrah on 19.06.2014 and he was absent beforethe Grievance Cell of Assistant Director of ConsumerAffairs on 18.09.2016 and we were given to understandthat the said office dropped the case being extraneous matter. We fail to understand whether Complainant has alleged deficiency of service against the OP or against the Assistant Director, Consumer AffairsandFair Business Practice Cell, Regional Office at Howrah. We also fail to understand why the Complainant filed this case and what was his actual grievances. We do not find any whisper or recital about any sort of deficiency in service against the OP within the four corner of the petition of complaint. It is not stated what was the deficiency in service on the part ofthe OP. On the other hand, from the evidence of the OP, it appears that the Complainant did not complete the course as the course was for six months and he attended only for 4 months and the complainant has not completed the said Computer course. Itis also stated that the complainant by attended the class lastly on 26.03.2014 and left out and/or dropped out on his own volition without paying the fees for April and May, 2014. It appears that Complainant voluntarilyhas not completed his Computer course. It is also transpiring from the evidences that the Complainant used to insult the OP and other students openly and also used to show disregard to the teacher i.e. OP in this case. It is also stated in the evidence by the OP that the Complainant is an old person, hard of hearing and having no patience of learning new thing in his old age and also used to boastof that he knows more than the OP.The Evidence on Affidavit of OP remains unchallenged and uncontroverted.
Moreover, Education is not service. It appears that OP is an Educational Institution imparting Computer Education.Educational Institutions do not provide any kind of service. Therefore, in the matter of admission, fees, there cannot be a question of deficiency of service (Moharshi Dayanand University Vs Surjeet.T Kaur – 2010 (II) SCC 159 relied upon), wherein it has been held that education is not a commodity. So, we think that Complainant does not fall within the definition of a consumer. Student is not a consumer. Education, fees, refund of fee with interest, compensation for loss of academic year and mental harassment do not come within the domain of CP Act. and/or deficiency of service. Statutory function of an Educational Institution involves holding periodical examinations, evaluating answer scripts, declaring results and issue of certificates. all are non-commercial functions.
[P.T.Koshy & Anr. Vs Ellen Chanmali Trust & Others, petition for SLP to appeal (Civil) No.22532 of 2012 decided on 09.08.2012, Bihar School Examination Board Vs Suresh Prasad Sinha 2013 (4) CPR 394 SC relied upon.]
It is also appears that the case was originally filed in the Howrah District Consumer Forum andlater the same is transferred to this Kolkata Forum, Unit-II at the instance of the Complainant. We find that the Complainant made an application for transfer of the said application before Hon’ble President, Howrah District Forum, stating that Mr. A.K.Pathak, male member of the Bench is a Retired Railway Officer and for releasing the above complaint on the ground of the male member. We also find that the Complainant also made an application before the Hon’ble S.C.D.R.C alleging that one Ld. Member of the Bench of Ld. D.C.R.F. Howrah was an ex officer of the Railways against which the complaint case has been filed and so the impartial trial of the complaint case by the said Ld. Member appears to impossible and hence, prayed for transfer of the complaint case bearing No. HDF/316/2016 from the Ld. DCDRF Howrahto Ld. DCDRF, Kolkata, either to Unit-I or Unit-II. We are afraid, we find that OP is not Indian Railways. OP, as we find is the Computer teacher of Uluberia Unique Educatiion Society, Uluberia. So, we find that Complainant also made false representation before Hon’ble SCDRC for getting the case transferred from DCDRF, Howrah Forum. From the cause title of the petition of complaint, it appears that OP is not Indian Railways or any Railways.
We find Complainant voluntarily did not complete the course and did not pay the fees of two months to the OP Institution. We also observe that the complainant suffers from vain-glory and is very much egoistic.Even in thye petition of complaint, he has stated that he is a vast learned Academician and was not spared by the West Bengal Health Department for going to abroad on the ground of brain drain and that he has/had a good standing record both in the student and teaching career. But, we are afraid he has not filed any document to establish such contention.Be that as it may, we are not also concerned with the C.V. (Curriculum Vitae) of the complainant.
As a logical corollary of the discussion as made above and having regard to the evidences on record, we find that Complainant has filed this case on frivolous ground to harass the OP and for monetary gain. The complain appears to be a frivolous one and is filed for wrongful gain. We strongly disapprove the gesture on the part of the Complainant being a senior citizen.
The Consumer Protection Act, 1986 is a special Act and it gives remedy to the consumer in certain circumstances, as enunciated in the Act.Before the consumer can get any remedy against the OP from the set-up under the Act, it must establish that there is some deficiency in serviceby OP. Both the concepts “deficiency” and “service” have been defined under section 2(g), 2(o) of the Act. We find that Complainant voluntarilyjoined the OP’s classes and left it on his own volition without completing the course and without making payment of tution fees for two months.
He has not alleged any deficiency of service within the four corners of the petition of the Complaimnant. He has also got the case transferred to this Forum by making false representation before Hon’ble SCDRC as discussed herein before. So, it appears that the Complainant has not come before this Forum in clean hands. It is maxim of law that one who claims equity must do equity also.On going through the evidences on record, we find that the complaint is not covered under section 2(g) and 2(o) of the Act.We are constrained to hold that the present complaint is to devoidof any merit. The Complainant has not suffered due to act of any omission or commission on part of the OP. The Complainant as we find has filed a frivolous complaiant aginst the OP. The Complaint is, therefore, liable to be dismissed with exemplary cost.
Consequently, the case merit no success.
Hence,
Ordered
That the instant case be and the same is dismissed on contest aginst the OP with cost of Rs.10,000/- – 50 percent of which to be paid to the OP and 50 percent to be paid to the Welfare Fund of this Forum.
Complainant is directed to comply with the order within one month from the date of this order, failing which execution will follow as per C.P. Act.
Let a copy of this order be supplied to the parties as per C.P. Regulation.
Later-
Date-31/07/2017.
Received a letter from the complainant.
It appears that the Judgment is already delivered. This Forum has become functus-officio to pass any order on such petition. The petition as such, calls for no order.
Let it be kept with the record.
