For the Complainant                        In person

For the OP-1                                      Mr. Suman Ganguly, Advocate

For the OP-3                                     Mr. Roshan  Sengupta, Advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

This is an application u/s.12 of the C.P. Act, 1986.

The case of the complainant is that she took admission in an integrated course of Aviation which includes a diploma course of professional in Airport Management and Customer Care (PAMCC) and 03 years graduation course of B.A. (Airline, Tourism & Hospitality Management ) during  session July, 2014 with OP-1 and paid Rs. 3,11,753/- as course fees against money receipts. The aforesaid course was collaborated with the Mahatma Gandhi University. On completion of 1^st year, the OP-1 informed that the course of B.A. (Airline, Tourism & Hospitality Management) changed to B.A. (Aviation) and affiliation of Mahatma Gandhi University has also been changed to Karnataka State Open University. OP-1 assured her not to be worried as both the course will be continued together and change of course is a routine matter. Complainant  agreed to continue  the course as she did not want to loss any  academic  also trusting the brand name of the academy. OP Aptech Aviation & Hospitality Academy prepared question  papers in the name of Karnataka State Open University and also issued Marksheet. Karnataka State Open University never issued any Marksheet. OPs 1 & 2  also conducted 2nd year examination in the month of March, 2016 but result was not published. On completion of 03 year, OP-1 informed that open university should cater facility within their state, Karnataka State Open University  is in Mysore and the OP institute  is at Kolkata for which the complainant is debarred  from any decree, certificate and Marksheet.

Further case of the complainant is that the OP-3 discontinued degree course of B.A. (Aviation) since January, 2014 prior  to her admission in the course. Karnataka State Open University vide Public Notification dated 11.12.2015 declared that all professional, technical, paramedical and bridge programs were discontinued from 08.08.2014. Complainant vide letter dated 30.05.2017  requested the OP-1 to refund the course fees but such request was unattended. There is gross negligence  and unfair trade practice on the part of the OPs1 & 2 in rendering service for which the complainant  suffered mental and physical agony.

Hence, complaint is filed by the complainant  claiming refund of Rs. 3,11,753/-  along with compensation of Rs. 1,00,000/- for mental agony and harassment including litigation cost.

OP-1 has resisted the complaint by filing Written Version contending, inter alia, that education is not a commodity, educational Institutions are not providing any kind of service, therefore, in the matter of refund admission fees, there cannot be a question of deficiency of service and such matter cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986. Thus, the complainant has no locus-standi to file the instant consumer case. The specific case of the answering OP is that complainant took admission in B.A. Aviation under Mahatma Gandhi University of Meghalaya conducted by OP-3 in March/April, 2014. The OP-3 informed the answering OP that Mahatma Gandhi University will not conduct the course. The answering OP has always put the interest of the students and came up with other plans solely for the reason that the students  were not to loss their academic year. The answering OP contacted Lotus Leaf Trust of Management & Technology for completing the course. Subsequently, Lotus Leaf informed that Mahatma Gandhi University unable to conduct  the course but Karnataka State Open University  will be able to conduct  the course as they are authorized  study centre of KSOU. Entire situation was explained to the students including the complainant. 1^st year and 2^nd year examination were also completed. As per verdict of the Hon’ble Apex Court, KSOU discontinued all professional, paramedical and decree courses since December, 2015. This fact was suppressed by the KSOU to all its study centers. Complainant was selected in various jobs but she did not join such jobs on account of her personal reason. There is no deficiency in service and unfair trade practice on the part of the answering OP. Accordingly, the answering OP-1 has prayed for dismissal of the complainant with exemplary costs.

OP-3 has also contested the case by filing Written Version contending, inter alia, that OPs 1 & 2 are the Directors of M/S Target Academy Pvt. Ltd. M/S Target Academy Private Ltd. was the franchisee of answering  OP. OPs 1 & 2 were authorized to enroll student for PAMCC & Panorama course with the collaboration of Karnataka Open University and on successful completion of the course, certificate were issued by KSOU  through the answering OP. Complainant  never paid any fees to the answering  OP for the course. OPs 1 & 2 have used the brand name of OP-3 and enrolled student under various courses without any authorization. The  answering OP reserves its right to take criminal action against OPs 1 & 2 for cheating and forgery. There is no deficiency in service against the answering OP. Accordingly, the answering OP-3 has prayed for dismissal of the complaint.

In this context, it is pertinent to mention here that, OP-3 did not participate in the instant  case except filing Writing Version.

Despite of service of notice, the OP-2 did not turn up to contest the case. As such, the case has proceeded ex parte against the OP-2.

In the light of the above pleadings, the following  points necessarily came up for determination.

1) Whether the complainant is a consumer under the OPs 1 & 2 as envisaged under the Consumer Protection Act, 1986.

2) Whether the OPs deficient in rendering proper service to the complainant?
            3) Whether the OPs indulged in unfair trade practice?

4) Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point No. 1:-

            Upon taking into account of the entire fact of the consumer complaint including the Written Version of the OP-1 and also considering the argument advanced by the Ld. Advocate of both sides and further on overall assessment and evaluation of the evidence as well as documents on record it is found that the complainant enrolled herself in Aptech Aviation and Hospitality Academy on payment of admission fees of Rs. 3,11,753/- in B.A. (Airline, Tourism & Hospitality Management ).

            In course of hearing the Ld. Advocate for the OP-1 submitted that complainant is not a consumer under the OP-1 as envisaged under Consumer Protection Act, 1986 and no service as defined under the said act has been provided to the complainant by the OP-1. He further contended that the complainant was a student of OP-1 Institute and the settled preposition of law as laid down by the Hon’ble Supreme Court as well as Hon’ble NCDRC, it has been categorically held that “education is not  a commodity neither the Educational Institutions are providing any services, thus, a student is not a consumer.”

            Per-contra, the complainant submitted that the OPs 1 & 2 by adopting an unfair trade practice have been giving coaching/tuition to the intending students after taking services charges from the students and mislead the students. Complainant is a consumer/service recipient under the OP-1 who is the service provider under section 2 (r) of the Consumer Protection Act, 1986.

To support his argument, the Ld. Advocate for the OP-1 relied upon the following judgments:-

"(1) Maharshi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159. It has been held that:

"Consumer Protection-consumer/Consumer dispute/Locus standi-Generally- University- if covered-Direction to issue BEd degree against rules of examination-Legality-Held, respondent as a student is neither consumer nor University is rendering any service to its students-Hence, Consumer Fora have no jurisdiction to entertain complaint-Respondent pursued MA and BEd simultaneously contrary to general rules of examination which prohibits pursuing two courses simultaneously-She had chosen to continue MA, while admission to BEd was cancelled-Without disclosing the said fact, respondent managed to appear for supplementary examinations for BEd, and passed, which results were withheld on detecting the mischief-Complaint filed for direction to award BEd degree- Held, claim of respondent was for a direction to appellant to act contrary to its own rules-No court has competence to issue direction contrary to law nor can direct an authority to act in contravention of statutory provisions-Hence, National Commission should not have issued direction to appellant to act contrary to statutory provisions-Also, respondent cannot plead estoppel either by conduct or against statute so as to gain any advantage just because she was erroneously allowed to appear in the examination-Consumer Protection Act, 1986-Ss. 2(1)(o) and 2(1)(d)(iii)"     

(2) "P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors., Civil Appeal No.22532 of 2012 decided on 9.8.2012.  It has been held that:-

In view of the judgment of this Court in Maharshi Dayanand University Vs. Surjeet Kaur 2010 (11) SCC 159 wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity.  Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service.  Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986."

(3)  Anupama College of Engineering Vs. Gulshan Kumar & Ors. in Civil Appeal No.17802 of 2017, decided on October 30, 2017 (SC), in this case Hon'ble Supreme Court has relied upon the decision of Maharshi Dayanand University Vs. Surjeet Kaur (supra) and has set aside the order of the National Commission passed in RP No.3571/2013 and RP No.807/ 2017.

(4)  Rabindra Bharati University Vs. Jayati Roy Chowdhury and Ors. MANU/CF/0744/2017 (NC) wherein the following view has been taken:-

"7.  As noted above, the decisions of the Supreme Court in P.T. Koshy (supra) and Prof. K.K.Ramachandran (supra) are directly on the point arising for consideration in these cases and have been rendered after the decision of the Hon'ble Supreme Court in Buddhist Mission Dental College and Hospital (supra).  We are bound by the ratio of both the decisions."

(5)  FIIT JEE Ltd. Vs. S. Balavignesh, MANU/CF/0509/2015, (NC). In this case, the revision petition filed by the Coaching Institute FIIT JEE Ltd. was allowed and order for refund of fees by the fora below was set aside by this Commission.

The only legal question raised in the instant consumer case is that the OP-1 Aptech Aviation and Hospitality Academy is an educational institution and in the light of judgment of the Hon’ble Supreme Court in Maharshi Dayannad University vs. Surjeet Kaur (supra) and in P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors (Supra), the complainant  cannot be considered as consumer and the OP-1 institute cannot be considered as service provider  and therefore, the present consumer complainant  of the complainant is not maintainable.

Though, the Hon’ble Supreme Court in Maharshi  Dayanand University vs. Surajeet Kaur (Supra) has observed that a student is not a consumer and the educational institution is not a service provider, however, in the same judgment the Hon’ble Supreme Court has also clarified the following.

The contention of  Ld. Advocate for OP-1  has therefore, to be accepted that the Rule being prohibitory in nature, the District Forum or the National Commission could not have issued a direction which violates the aforesaid statutory provision. It is settled legal proposition that neither the Court nor any tribunal has the competence to issue a direction contrary to law and to act in contravention of a statutory provision."

Thus, it is clear that one has to see whether the institution is a recognized institution under the law of the land, meaning thereby whether it is registered/affiliated under any statutory authority like UGC, AICTE, State Universities, State Boards or any other statutory body created by an statute.    It is also seen that the judgment of the Hon'ble Supreme Court in P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors. (supra) is based on the observations of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra) so, the basic tenets of the educational institution as observed by the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra) shall also be considered as integral to the decision of the Hon'ble Supreme Court in P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors. (supra). 

 So far as the decision of the Hon'ble Supreme Court in Anupama College of Engineering Vs. Gulshan Kumar & Ors. (supra) is concerned, there is no dispute that the college was governed by AICTE Rules and, therefore, it would definitely come in the definition of the educational institution as observed by Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra).  The other case relied upon by the learned counsel is  Rabindra Bharati University Vs. Jayati Roy Chowdhury and Ors.(supra).  In this case also University is a statutory body and therefore, the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra) would be equally applicable. Learned counsel for the petitioner has also referred to the judgment of FIIT JEE Ltd. Vs. S. Balavignesh, (supra).  It is seen that in this case, the National Commission has set aside the orders of the fora below on the ground of contract entered into between the students and the institution.  This Commission has not given any finding that the student is not a consumer and the institution is not a service provider, as observed by this Commission in para 8 of the judgment:-

 There may be merit in the contention that a coaching institute such as FIIT JEE Ltd. cannot be equated to an institution such as a university since it is only assisting the student in competing for admission to FIIT JEE by providing coaching to them, even if the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, the parties will be bound by the terms & conditions agreed by them at the time the complainant took admission in the coaching course, unless it can be shown that the petitioner had adopted an unfair trade practice, as defined in Section 2(r) of the Act."

In Jairpreet singh-in Jaipreet Singh Kaushal Vs. FIIT JEE Ltd. & Anr., RP No.918 of 2015, decided on 14.11.2017 (NC) this Commission has treated students as consumer and the FIIT JEE Ltd. Institution as a service provider.  In fact, the relationship between a consumers and service provider depends upon the nature of service being provided and relief being sought.  As critically examined above, it is seen that the immunity provided to the educational institutions from the Consumer Protection Act, 1986 by the Hon'ble Supreme Court in  Maharshi Dayanand University Vs. Surjeet Kaur (supra) has to be seen in the light of the observations of the Hon'ble Supreme Court quoted above where it has been observed that no court can pass order contravening the provisions of an statute.

From the above, it can be concluded that the educational institutions, which are imparting education of any kind within the admissible legal frame work of the country can be covered under the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra).  In other words, educational institutions covered under UGC, AICTE, State Universities, Central Boards and State Boards etc. can claim immunity from the provisions of Consumer Protection Act, 1986 for educational services. 

The Hon’ble Commission further held as under:-

"Imparting of education by an educational institution for consideration falls within the ambit of `service' as defined in the Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The complainants had hired the services of the respondent for consideration so they are consumers as defined in the Consumer Protection Act."

From the above discussion, it is clear that the OPs 1 & 2 institution cannot be given advantage of the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra). 

Based on the forgoing discussions, it is concluded that the complainant is a consumer and the OPs 1 & 2 institution are a service provider in the present case.  

Thus, Point No.1 answered in the affirmative.

Point Nos. 2 to 4:-

All the points are taken up together for sake of convenience and brevity in discussion.

            From the facts brought on record, especially those stated in the consumer complaint, it is clear that the complainant took admission in integrated course of Aviation which includes a diploma course of professional in Airport Management & Customer Care along with 03 years graduation course B.A.  (Airline, Tourism & Hospitality Management) and also paid Rs.  3,11,753/- as course fees on different dates against money receipts.

            It is an admitted fact that the Karnataka State Open University vide Public Notification No. KSOU/AB-EST-01/236/2011-12 dated 11.12.2015 declared that all professional technical  paramedical and bridge programs were discontinued from  08.08.2014. Fact remains that Aptech Aviation & Hospitality  Academy is a private Institution located in the State of West Bengal and Karnataka State Open University, Mysore is an university by an Act of State Legislature.

Karnataka State Open University, Mysore being a State University can operate within its state only. The University is not authorized to open Study Centre / Off campus centre beyond the territorial  jurisdiction of the State of Karnataka as per judgment of the Hon’ble Supreme Court in the case of Prof. Yash Pal – Vs – The State of Chhattisgarh (2005). The University is to follow the territorial jurisdiction policy of UGC as per its public policy dated 27.06.2013. The UGC has not granted any approval to the University to open off campus / study centre anywhere. The OP-1 has been conducting programmes offered by Karnataka State Open University, Mysore in an unauthorized manner. KSOU itself was not authorized to offer programmes in distance Education beyond 2012 – 2013 and to franchise its programmes to other organizations. Since franchising was never permitted either by the erstwhile DEC or UGC or even by the Law of the land through various judgments, the existence of these so called study centre is not legal.

            The OP-1 has been conducting programmes offered by KSOU in an unauthorized manner. KSOU is not authorized to offer any Distance Education Programmes beyond 2012-13 and to franchise its programmes to other organizations. The Hon’ble High Court of Kerala in its judgment in W.P. (c) No. 9779 of 2014 dated 20.12.2014 also inter-alia directed the UGC to initiate proceedings for withdrawal of the recognition of the Calicut University for running courses by Distance Education in contravention to the policy on territorial jurisdiction.

            The Division bench of the Hon’ble High Court, Calcutta in Writ Petition No. 13987 (W) of 2016 (Ashoke Kumar Nandy – Vs – Union of India & Ors) vide judgment dated 19.05.2017 held that the Institutions not recognized/ approved by the Universities through UGC in  the course not approved by UGC have admitted the students of the Academic Session 2016-17 illegally , which costs consequences inconvenience to the students of said Academic Sessions 2016-17 and also directed the Respondents No. 5 to 9 to refund the fees, if any, collected from the students for the Academic Year 2016 – 2017 within four weeks, to pay compensation of an amount of Rs.1,00,000/- to each of the students admitted  in the Academic Year 2016-17 who  enable to secure admission in any other institution for the year 2017-18 within  six weeks including other directions. Therefore, we are constrained to hold that a University established in a State cannot operate any campus / study centre beyond territorial jurisdiction of such state. UGC has also taken a serious view of misleading advertisements appearing in various newspapers as well as national daily newspapers offering opportunities for University degree beyond territorial jurisdiction and the general public, student and other stake-holders have been cautioned about such activities by issuing public notices. We think that the OP1 is illegally continuing to offer various programmes through distance learning mode in blatant  violation of the guidelines and directives of the UGC.

In course of argument, the Ld. Advocate for the OP-1 has contended that the course in which the student including the complainant enrolled are professional courses and the student have enjoyed the fruits of the same. He further submitted that the tendency of the complainant is not taking any jobs despite of being selected and her real intention is to squeeze money from OP-1. The course conducted by OP-1 is not affiliated by the Karnataka State Open University. Therefore, the OP-1 cannot bypass their liabilities in this regard. Thus, we are of the opinion that there is  deficiency in service  and unfair  trade practice on the part of the OP-1. Lotus Leaf  and KSOU are not necessary parties to the instant consumer case as there was no attachment /connection between the complainant and Lotus Leaf & Karnataka State Open University.

            Regard being had to the entire facts of the case coupled with evidence and documents on record as well as argument advanced by both parties and in the light of the guidelines issued by the UGC, there cannot be any doubt that the OP-1 is offering the educational programme illegally and without having affiliation or recognition of UGC and also in utter violation of the guidelines and directions of UGC. Thus, point Nos. 2 to 4 answered in the affirmative.

            In the result, the case merit succeeds.

Hence,

Ordered

That the complaint case be and the same is allowed on contest against the OP-1 with litigation cost of Rs. 5,000/- (Rupees five thousand) only.

The case is also dismissed on merit against  OP-3 and ex parte against  the OP-2 without any cost.

OP-1 is directed to refund Rs. 3,11,753/- (Rupees three lacs eleven thousand seven hundred fifty three) only after deducting 5  percent as administrative charges to the complainant  within  45 days from the date of this order along with litigation cost.

OP-1 is further directed to pay Rs. 25,000/- (Rupees twenty five thousand) only to the complainant as compensation for the loss of year, causing harassment and mental agony within the stipulated period.

Liberty be given to the complainant to put the order in execution, if the OP-1 transgresses to comply the order.