ORDER
(Passed on 29/01/2020)
PER SHRI.ATUL D.ALSI, PRESIDENT.
The complainants in all the above five complaint cases have filed their respective complaint U/s 12 of the Consumer Protection Act,1986 against the same opposite party and agitating similar grievance and hence we are proceeding to dispose of all these complaints by passing a joint order as under..
2. The facts in short giving rise to all these petitions are that wards of all the complainants in the above complaints are studying in the Primary school named Indira Gandhi Garden School run by OP No.2. Said school, in agreement with the OP No.1 imparts E learning by charging separate fees for the same. All the complainants, with a view to facilitate their respective wards with computer based advanced E Learning education right from 1st standard to 4th standard, paid Rs.13,00/- per year and the OP No.2 agreed to impart said advanced E learning education in furtherance of internal contractual arrangement between OP No.1 and OP No.2. However, both the Ops failed to provide agreed facility within reasonable time. Therefore the complainant moved one application dated 18/7/2018 requesting Ops to provide the said facility to which the OP No.2, in its reply dated 12/7/2018 expressed its inability to provide the E learning facility due to non cooperation from OP No.1. It is the joint responsibility of OP Nos.1 & 2 to provide agreed facility, but inspite of several requests and service of legal notice, they failed to do so which amounts to negligence in service. Hence, the complainants have filed these complaints.
3. The complaints were admitted and notices were served on the OPs. The OP No.1 & 2 filed their respecty reply in each of the complaint
separately and thereby denied allegations against them.
4. O.P.No.1 in its reply raised prelimineray objection to the tenablity of the complaint as against it contending that there is no nxus at all in between the complainants and the OP No.1 as wards of all the complainants are the students of OP No.2 school and there is no contract, either express or implied, exists between these students and the OP No.1 and as such complainants are not “Consumers” of OP No.1 as envisaged under section 2(1)(d) of C.P.Act. It further contended that though there is agreement between OP No.1 & OP No.2 in respect of supply and installation of Digiclass system assessories in the OP No.2 school, the OP No.2 has sought that facility for commercial purpose i.e. for providing it to its students by charging extra fees and present complainants are not the party to the said contract and as such have no locus to agitate any grievance under the same. It contended that E learning equipments i.e.Digiclass system assessories and other components were supplied to OP No.2 by OP No.1, however the instructor was to be appointed by OP No.2 itself. Accordingly, one Mr.Ashish Sarkar was appointed by OP No.2 as Resource Coordinator, however, later on he resigned. It was the duty of OP No.2 to maintain and store hardware, but it failed to do so. OP No.2 also made defaults in payments to OP No.1 and as such, the OP No.1 was constrained to suspend the service to OP No.1. In this entire scenario, neither the complainants are its Consumers nor there is any deficiency in service on the part of OP No.1. Therefore the petition deserves to be dismissed with cost.
5. The OP No.2 in its reply denied that for availing E learning facility, its students and through them, their respective parents are Consumers of OP No.2. OP No.2 admitted rest of the contents in the complaint barring allegation that it is responsible for non providing of E-learning facility. However, OP No.2 contended that OP No.2 school could not provide the E learning facility to the wards of complainants due to non cooperation from the OP No.1 who was bound by contract to provide the same. Due to these reasons the OP No.2 has closed the E learning facility from 2018. Hence the OP No.2 tried to put entire onus on the OP No.1 alleging non cooperation by it and prayed for dismissal of the complaint as against OP No.2 with cost.
6. Counsel for the complainant argued that the OPs did not fulfill the promise of imparting E learning despite of payment of additional fees. Therefore the service rendered by OPs amounts to negligence of service and hence he prayed for allowing the petitions as prayed. Counsel for the OPs argued on the lines of respective stands taken by them in their respective replies. Both of them put thrust on the point of jurisdiction of the Forum to entertain and adjudicate the complaint and prayed for its dismissed with cost.
7. We have gone through the complaint, written versions filed by OP No.1 and 2, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.
Points Finding
1. Whether the Forum has jurisdiction to entertain the complaint ? No
2. What order ? As per final order..
REASONING
As to issue No.1
8. The O.P.No.1 & 2 have taken strong objection to the tenability of the complaint before the Forum. From plain reading of the complaint, the dispute in hand pertains to deficiency in imparting education by the OPs to the wards of the complainants. It is admitted position on record that the complainants have paid extra fees to OP No.2 for providing E learning facility and there is mutual agreement between OP No.2 school and OP No.1 Service and equipments (hardware) provider in respect of making available said facility to the students. However, the dispute squarely relates to imparting education. As per the settled legal position education is neither a commodity/goods as envisaged U/s 2(1)(i) of the Act nor imparting education amounts to rendering service as envisaged U/s 2(1)(i) of the Act. On this point, there are conflicting views expressed by Hon’ble Apex Court. However, Hon’ble National Commission bench comprising of Hon’ble Justice R.K.Agrawal, President, Justice V.K.Jain, Hon’ble Member & Shri.Shah, Hon’ble member in its recent judgment in R.P.No.261/2012 in the matter of Manu Solanki and Ors. Vs.Vinayak Mission University, Tamil Nadu, decided on 23/1/2020, has has broken the jinx and has unequivocally held that Consumer Foras established under C.P.Act have no jurisdiction to adjudicate disputes relating to imparting of education by the educational institutions as imparting education does not amount to rendering service. As held in 2010 a division bench of Supreme Court had in Maharshi Dyananad University v/s Surjeet Kaur 2010(11) SCC-159 examined in detail the jurisdiction of fora to entertain a complaint with respect to deficiency of servicce by educational institutions and held that they are not “service provider” and a student who takes an examination is not a Consumer under the Consumer Protection Act. 1986. Obvious of these judgement however another division bench of S.C. P.Shriniwasa Sulu v/s P.J.Alexender in civil appeal 7003-7004 in 2015 held that educational institution would come within purvied of Consumer Protection Act 1986 and education is a service.
Resolvivng this legal quandary the NCRDC decided the laid down in Maharshi Dayanand University case (Supra). The Bench held that the ruling therein wass given on merits and appeared to be more elaborate and accurate. To this end the court relied onn Amar singh yadav and others v/s shaila Devi and others AIR 1987 page 191 in which the S.C. clarrifing the position on this aspect, the commission held that institution rendering educational including vocational courses and activities under taken during the process of
pre-admission as well post admission and also imparting execution of tours, picnics, swimming, sports etc will not be covered under provision of Consumer Protection Act 1986.
In view of this recent legal development, we have no other go than to dismiss the complaint for want of jurisdiction. Hence the issue is decided accordingly.
As to issue No.2
9. In view of our observation as to issue No.1 as above, we pass the following order..
Final order
1. The Complaint cases bearing Nos. 136/18 to 140/18 are dismissed without cost.
2. The main order copy be kept with case No.136/18 and Xerox copies thereof be kept with cases Nos. 137/18, 138/18, 139/18 & 140/18.
3. The period of pending petition for Limitation Act shall not be counted to file fresh suit or case on same cause of action with appropriate forum or court.
4. Copy of the order be furnished to both the parties free of cost.
(Smt.Kalpana Jangade (Kute) (Smt.Kirti Vaidya (Gadgil) (Shri.Atul D.Alsi)
Member Member President
