STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Naveen Kumar Chaudhary s/o Shamsher Singh, R/o Q.No.RE/III-71/B, Old Railway Colony, Kota, Rajasthan.

V e r s u s

Regional Institute of Cooperative Management, Chandigarh (An Institution of National Council for Cooperative Training, New Delhi), Sector 32-C, Chandigarh, through its Director

…… Respondent / Opposite Party

Appeal under Section 15 of the Consumer Protection Act, 1986.

Argued by:

BEFORE:  

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

“Resultantly, in view of the foregoings and entirety of the case, we are of the opinion that the complainant has proved beyond any doubt the unfair trade practice on the part of OP. Therefore, the present complaint having lot of merit, weight and substance must succeed. The same is accordingly allowed. The OP is directed to pay compensation of Rs.1.00 lakh to the complainant, apart from paying litigation cost of Rs.25,000/-.

Similar directions are passed in the other consumer complaint cases, details of which are mentioned in Para No.1 of this order.

This order shall be complied with by the OP within a period of 30 days from the date of receipt of copy of this order, failing which it shall be liable to pay the compensation amount of Rs.1.00 lakh along with interest @12% p.a. from the date of this order till its actual payment, besides paying litigation cost, as aforesaid”.

2.           

3.            

4.           

5.           

6.           Pune University, Pune, and other Institutes, were also working under the control of the National Council for Cooperative Training (NCCT). It was further stated that the Post Graduate Diploma in Management, of VAMNICOM, Pune, was approved by the All India Council for Technical Education (AICTE), Ministry of HRD, Government of India. It was further stated that the Opposite Party had already applied to the Association of Indian Universities, for grant of recognition to the Diploma, in question, as equivalent to Masters of Business Administration degree, which was expected at any time. It was further stated that this position was explained to the complainant, as well as to other students. It was further stated that no assurances were given to the complainant and other students, that the Opposite Party guaranteed 100% placement, after the completion of aforesaid Diploma/Course. It was further stated that the Certificate issued to the complainant was not a worthless piece of document, but, on the other hand, it was recognized by the AICTE. It was denied that the complainant was entitled to the refund of fees and compensation. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

7.            

8.           9.            

10.        

11.         

12.         

13.        

14.          

15.         16.        

“No doubt, on account of the unfair trade practice, indulged into by the Opposite Party, by making a false representation that the Post Graduate Diploma in Management (Agr. Business) was recognized by the Association of India Universities, as equivalent to Masters of Business Administration Degree, the complainant was led to take admission, in the said Diploma/Course, by depositing a hefty amount of Rs.4,53,500/-,   

17.        

18.        , fees was paid by the students, for admission in the Medical College, which was not found to be recognized, as also the Opposite Party, had not obtained permission, from the Medical Council of India, which was the statutory body, and competent to grant recognition. No arrangement for clinical part of the curriculum, in the Country or abroad was made, and the students were left in lurch, after two years study, as they were not awarded the promised degrees. The complainants filed Consumer Complaints, for refund of the amount of fees etc. and compensation, before the State Consumer Disputes Redressal Commission, which accepted the same. Appeals were filed in the National Consumer Disputes Redressal Commission, New Delhi. The National Consumer Disputes Redressal Commission, New Delhi, dismissed the appeals, holding that the students fell within the definition of consumers, as they hired the services of the Opposite Party, for consideration. It was also held that the Opposite Party indulged into unfair trade practice, by giving misleading information that the College was recognized, though it was not so. It is, therefore, held that the appellant/complainant fell within the definition of a consumer.

19.         

“10. The Board is a statutory authority established under the Bihar School Examination Board Act, 1952. The function of the Board is to conduct school examinations. This statutory function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its “services” to any candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination.

11. The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi-commercial activity). But the Act does not intended to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer-scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service-provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a `service provider' and a student who takes an examination is not a `consumer' and consequently, complaint under the Act will not be maintainable against the Board.”

20.        , it was laid down that the discharge of a statutory function by the Board, such as holding  , therefore, is not applicable to the facts and circumstances of the instant case. No help, therefore, can be drawn, by the Counsel for the respondent/ Opposite Party, therefrom. 

21.        

“The PGDM has been recognized by the All India Council for Technical Education (AICTE), Government of India and recognized by Association of India Universities as equivalent to M.B.A. degree”.

22.        ,

“…………..Institute is committed to cent per cent placement of all its PGDM students in good and reputed Companies. The accommodation is provided on sharing basis in the hostel of the Institute.”

23.        , 

24.         

“Candidates with post-graduate diploma/ certificate course(s) or foreign degree/diploma should in their own interest, ascertain the equivalence of their course(s) with Master’s degree of recognized Indian universities from Association of Indian Universities (AIU), New Delhi. (www.aiuweb.org)”

25.        ^{Under these circumstances, the Certificate, which was issued by the Opposite Party, to the complainant, could be said to be a useless piece of paper.}

26.          

27.         28.        The next question, that falls for consideration, is, as to whether, the complainant/appellant, was entitled to the refund of entire amount, deposited by him, or not? On account of indulgence into unfair trade practices, referred to above, by the Opposite Party, the career of the complainant, and other students, studying in the aforesaid Diploma/Course, was spoiled. The expectations of the complainant, and other students studying with him, in the said Diploma/Course, to possess the degree, which was equivalent to MBA, having been recognized by the Association of Indian Universities, were dashed to the ground. Knowing fully well that the Post Graduate Diploma in Management, in which the complainant took admission, was not recognized by the Association of Indian Universities, as equivalent to Masters of Business Administration degree, a false misrepresentation was made, in the prospectus Annexure C-1. Under these circumstances, the mere fact that the complainant completed the said Diploma/ Course, for two years, and, was, ultimately issued the Certificate, which was of no use to him, did not, in any way, minimize the liability of the Opposite Party, with regard to the refund of amount of fees, and other charges, deposited by him (complainant). The complainant, in our considered opinion, was entitled to the refund of a sum of Rs.4,53,500/-, admittedly, deposited by him, at the time of admission, in the said Diploma/Course, and later on. Since, the Opposite Party indulged into unfair trade practices, referred to above, it could not be allowed to enrich itself, by retaining the amount of fees, and other charges, deposited by the complainant. In case, the refund is not ordered to be made, then it would amount to giving impetus to the unfair trade practices and illegal activities, indulged into by the Opposite Party. In that event, the Opposite Party, will continue adopting such malpractices, and unfair trade practices, so as to dupe the gullible students of immature age, by extracting money from them, on the basis of false assurances. The District Forum, in our considered opinion, was wrong, in not ordering the refund of amount of Rs.4,53,500/-, deposited by the complainant, on account of fees and other charges, for the Diploma/Course, in question.

29.        thMagadhUniversity, though this fact was found to be false. The students studied for two years. They were deeply frustrated, because their academic career was ruined. New Delhi, which directed the refund of amount paid by the complainants, on account of fees, and other charges, as also awarded compensation. Feeling aggrieved, an appeal was filed by the Opposite Party/appellant, whereas the Cross-Objections were filed by the complainants/respondents. The Hon`ble Supreme Court dismissed the appeal, filed by the appellant/Opposite Party, but accepted the cross-objections, enhancing the compensation, to the tune of Rs.1 lac, to be paid to each student, in addition to the compensation, to the tune of Rs.20,000/-, already granted by the National Consumer Disputes Redressal Commission, New Delhi. Thus, the principle of law, laid down, in

30.         

31.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to the enhancement of compensation, grant of   

32.        

                      The respondent/Opposite Party is directed to refund the amount of Rs.4,53,500/-, deposited by the appellant/complainant, towards fees including other charges, for the Diploma/Course aforesaid, within 45 days, from the date of receipt of a certified copy of this order.

                    The order of the District Forum, awarding compensation, to the tune of Rs.1 lac, is upheld, with rate of interest and the date from which it was to run, as held in First Appeal No.390 of 2013, titled as Regional Institute of Cooperative Management Vs. Naveen Kumar Chaudhary.

                   The appellant/complainant shall be entitled to costs of litigation of Rs.21,000/-, as reduced vide order dated 01.10.2013, passed in First Appeal No.390 of 2013, instead of Rs.25,000/-, awarded by the District Forum.

                   This order shall be complied with, by the respondent/Opposite Party, within 45 days, from the date of receipt of a certified copy thereof, failing which, the amount mentioned in Clause (i) shall carry interest @9% P.A., from the date of passing of the same i.e. 18.12.2013, till realization. .

33.        

34.        

Pronounced.

December 18, 2013

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

 (DEV RAJ)

MEMBER

Rg

STATE COMMISSION

(First Appeal No.)

Argued by:

Dated the 18^th

ORDER

2.           

3.           

                  (i).    The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.

                (ii).         Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.

               (iii).         Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.

                (iv).        Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law”.

4.           N.Balakrishnan v. M.Krishnamurthy, there was a delay of 883 days, in filing application, for setting aside the exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-

“It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."

The Court further observed in paragraphs 11, 12 and 13 which run thus:-

"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice videShakuntala Devi Jain v. Kuntal KumariState of W.B. v. Administrator, Howrah Municipality

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "

5.           Delhi High Court, while condoning 52 days delay, in filing the appeal, observed as under:-

“No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of the Apex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353”.

6                In the instant case, the delay in filing the appeal occurred, due to the reasons, that the certified copy of the order, which was sent through the Courier Agency, aforesaid, never reached the applicant, as a result whereof, he had to again apply for the same (certified copy), to the District Forum. Not only this the applicant/complainant also fell sick, as is evident from copy of the medical certificate Annexure A-2 (colly.),.   

7.           

8.   

9.   

10.        

11.        

12.        Certified copies of this order, be sent to the parties, free of charge

Rg.