KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.8/09
JUDGMENT DATED 30.11.2010
PRESENT:
SHRI. M.V. VISWANATHAN -- JUDICIAL MEMBER
Aptech Computer Education Limited
(Chemmanur Academy and Systems
Private Ltd.) IKM Complex,
Tana, Irinjalakuda, Thrissur -- APPELLANT
reptd by its Managing Director
Anisha Cherian.
(By Adv.Nair Ajay Krishnan & Ors.) Vs.
1. Riyas,
Tharayil House, Chenthrappinni,
Kodungalloor, Thrissur.
2. Aptech Computer Education Ltd.,
3rd Floor, Choice Towers,
Ernakulam, reptd. by its -- RESPONDENTS
Regional Manager.
3. Aptech Computer Education Ltd.,
Elite Auto House,
54 A, Andheri (East), Mumbai,
reptd. by its Managing Director.
JUDGMENT
SRI.M.V.VISWANATHAN,JUDICIAL MEMBER
Appellant was the first opposite party and respondents 1 to 3 were the complainant and opposite parties 2 and 3 respectively in OP.571/03 on the file of CDRF, Thrissur. The complaint therein was filed alleging deficiency in service on the part of the opposite parties 1 to 3 in imparting training to the complainant for 3 year computer course named as ACCP Programme. The complainant claimed refund of the course fee of Rs.39,449/- collected by the opposite parties from the complainant and also for compensation of Rs.25,000/- with cost of Rs.2,000/- for the mental agony, waste of time and financial loss suffered by the complainant.
2. The first opposite party (appellant) filed written version contenting as follows –
The complaint is not maintainable. The complaint filed against the educational institution is not maintainable under the Consumer Protection Act; that the agreement between the complainant and the first opposite party is a contract of personal service and the relation ship between the complainant and the first opposite party is that of a student and educational institution and not that of a consumer and service provider. The complaint is bad for non-joinder of necessary parties. There was no deficiency in service on the part of the first opposite party in imparting training to the complainant. The complainant joined the 3 year diploma course voluntarily. He has to pay the course fee of Rs.59,560/- but he remitted Rs.39,449/- only. The balance amount of Rs.20,219/- is due from the complainant. It is to avoid payment of the balance course fee, the present complaint is filed alleging deficiency in service. The first opposite party is not liable to pay any compensation to the complainant. The petition is filed without any bonafides. Thus, the first opposite party prayed for dismissal of the complaint.
3. Opposite parties 2 and 3 (respondents 2 and 3 herein) filed written version denying the alleged deficiency in service on their part. They contended that the opposite parties 2 and 3 is a company constituted under the Indian Companies Act, 1956 and it is engaged in imparting computer based education. The first opposite party is a franchisee of the opposite parties 2 and 3. As per the agreement entered into between the first opposite party and opposite parties 2 and 3, the first opposite party is liable to provide the entire infrastructure for running the institute including the computer and other accessories attached to the same. The opposite parties 2 and 3 supplied the necessary programs for imparting the education. The said programs are all high quality in all respects. The opposite parties 2 and 3 have no privity of contract with the complainant. The opposite parties 2 and 3 are not liable or answerable for any deficiency in service or omissions on the part of the first opposite party in imparting training to the complainant or other students. The code of conduct is served on the students and the said code of conduct would clearly show that all responsibility of servicing the student is vested with the franchisee center. As per the code of conduct, the students are at liberty to contact the Aptech Limited any time about the non service of the franchisee center. The complainant never approached the opposite parties 2 and 3 with any complaint regarding rendering of service on the part of the first opposite party. Thus, the opposite parties 2 and 3 prayed for dismissal of the complaint filed against them.
4. Before the Forum below, Exts.P1 to P9 documents were marked on the side of the complainant. Ext. R1 students code of conduct was produced and marked on the side of opposite parties 2 and 3. On the side of first opposite party, Ext.R2 to R6 were produced and marked. On an appreciation of the evidence on record, the forum below passed the impugned order dated 30th June 2008 finding deficiency in service on the part of the first opposite party. Thereby, the first opposite party is directed to refund the course fee of Rs.39,449/- with a further direction to pay compensation of Rs.2,000/- and cost of Rs.500/- to the complainant. Aggrieved by the said order the present appeal is filed by the first opposite party in the said OP.571/03.
5. When this appeal was taken up for final hearing, there was no representation for the respondents 1 to 3 (complainant and opposite parties 2 and 3 in OP.571/03).
6. We heard the learned counsel for the appellant/first opposite party. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the complainant is not a consumer coming within the ambit of the Consumer Protection Act, 1986. It is further submitted that there was no deficiency in service on the part of the appellant/first opposite party in imparting training for the computer programme named ACCP and that the complainant himself was attending the ACCP course and failed to remit the balance course fee of Rs.20,219/-. It is further submitted that the complaint in OP.571/03 was filed without any bonafides and to avoid payment of the balance course fee of Rs.20,219/-. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below.
7. The appellant/first opposite party has got a case that the complaint in OP.571/03 is not maintainable as the complainant is not a consumer and the service rendered by the first opposite party is not a service as defined under Section 2 (i) (o) of the Consumer Protection Act, 1986. This issue regarding the service rendered by the education institutions was considered by the Hon. National Commission as early as in the year 1994 in M.K.Jacob Vs. S.P.Soman and Anr. Reported in 1994 (1) CPR 625. It has been held that educational institution which charges heavy fees for services and imparts education is service under Section 2 (i) (o) of the Consumer Protection Act, 1986. It was further held in another decision in K.S. Satheesan Vs. A.Shanmugha Sundaram and Ors. reported in 1998 (1) CPR (470) that education is service under Section 2 (i) (o) of the Consumer Protection Act, 1986. In yet another decision rendered by Hon. National Commission in Bhooma Khana and Ors. Vs.Viswa Budha Parishath and Ors. reported in II (2001) CPJ 74 (NC) that imparting education for consideration is service under Section 2 (i) (o) of C.P. Act. It is to be borne in mind that the Hon. Supreme Court had also held in Bangalore water supply and Sewerage Board Vs. A.Rajappa and Ors. AIR 1998 Supreme Court 548 at 583 that in the case of the university or an educational institution the nature of activity is Hypothesic, education which is a service to the community, ergo, the university is an industry. Thus, in all respects, it can be held that the service rendered by the first opposite party in imparting computer education to the complainant on collecting course fee (consideration) is to be considered as that of a service provider and the complainant who availed the said service on consideration is to be treated as a consumer. So, the complaint in OP.571/03 alleging deficiency in service on the part of the opposite parties in imparting computer training is to be treated as a consumer dispute coming within the ambit of the Consumer Protection Act, 1986. So, the Forum below had jurisdiction to entertain the complaint in OP.571/03 and the complaint as framed is maintainable.
8. The first opposite party has also taken up the plea of non-joinder of necessary parties. But, there is nothing on record to show that the complaint is bad for non-joinder of necessary parties. The opposite parties 2 and 3 have categorically admitted the fact that the first opposite party is the franchisee of the opposite parties 2 and 3 and that the first opposite party has been rendering service by imparting computer education to the students like the complainant. So, the aforesaid contention of the first opposite party with respect to the plea of non-joinder of necessary parties is b negatived.
9. The definite case of the complainant (first respondent herein) was that the first opposite party failed in rendering service to the complainant as the first opposite party failed to impart proper computer education and training to the complainant. It is specifically alleged that the first opposite party failed to provide qualified faculty for imparting computer education and training to the students of ACCP course and that the first opposite party also failed to conduct the said computer programme (ACCP) course as assured in the course brochure and prospectus. It is further alleged that the first opposite party miserably failed in offering projects based on real life applications, as part of the aforesaid course. It is also alleged that the first opposite party has also failed in conducting the course examinations as stated in the course brochure and prospectus and that the training itself was not up to the standard as assured by the first opposite party.
10. Ext.P2 is the prospectus issued by the opposite parties to the complainant. A perusal of P2 prospectus would show that the opposite parties assured computer education to make the students as a fully competent IT professionals. They also assured to ensure working on simulated projects based on real life applications, where the students will learn to create shopping malls, banking net works, libraries etc; on the net. P2 prospectus would also make it clear that the opposite parties assured imparting of computer education on a high standard. Ext.P5 is the course brochure in ACCP programme. The aforesaid P5 brochure would show that ACCP programme is designed as a 3 year programme and on completion of the first year of the course the candidate will be qualified for CPISM and DISM and that after the second year of the course, the students will be provided with diploma in HDSE and that at the end of the 3 year the students of ACCP will be provided the diploma by name ADSE. Ext.P5 course brochure would show that after ACCP course, the students of the said course will be designed to carry on business in web sites and web based applications and they will become an enterprise web developer and a complete web professional and can develop business solutions with 3 tier architecture.
11. Admittedly, the complainant appeared for the first semester examination. The definite case of the complainant is that the subsequent examinations were not conducted by the opposite parties. The opposite parties could not adduce any evidence to show that they conducted the subsequent examinations for ACCP program for the year 2000-2003. There is also no case for the opposite parties that they offered the projects based on real life applications as assured by the opposite parties. No evidence is forthcoming from the side of the opposite parties to show that the opposite parties offered the aforesaid projects based on real life application. Thus, the complainant has succeeded in establishing his case regarding the failure on the part of the first opposite party in offering projects based on real life applications.
12. The complainant has got a definite case that the first opposite party failed to provide qualified faculty. The first opposite party denied the aforesaid allegation of the complainant regarding lack of qualified and experienced faculty. First opposite party relied on R3 faculty details. It is to be noted that R3 cannot be treated as an authenticated document to show the faculty details. Even R3 faculty details would support the case of the complainant that there was lack of qualified faculty. As per R3 faculty details, Rajesh Menon is designated as academic head. His qualification is BSC; Physics with PGDCA Aptech. It is to be noted that the specialized qualification for the academic head is PGDCA. It is to be noted that it is only the post graduate diploma in computer application. It is one year diploma course. But, the complainant herein joined for a 3 year course viz. ACCP course. So, the aforesaid Academic head cannot be considered as a qualified faculty to teach students for ACCP course. Another faculty is Renuka with Degree and PGDCA diploma. She is also not well qualified for taking classes for ACCP students. Another faculty is sreejith having ACCP course only. In R3 faculty details M/s. Vijish kumar, Vijay kumar, Reghunath, Thomas are shown as faculties having diploma or certificate in ADSE, DISM, HDSE respectively.
13. Ext.R1 is the students code of conduct produced from the side of opposite parties 2 and 3. The aforesaid code of conduct would make it clear that ADSE is only certification for 3 years course in Software Engineering. It would also show DISM is certification for one year course in information systems management and that HDSE is another certification for 2 year course in Software Engineering. It can be seen that faculties having only certification for one year or 2 year course were deputed to take classes or imparting training to 3 year course viz. ACCP course. The other faculties named Biju Padayattil and Prakash Devasse included in R3 faculty details are having only degree with PGDCA. The group leader Tokson Thomas was not having any specialized qualification for imparting training to students of ACCP course. R3 faculty details would show that the first opposite party miserably failed in imparting training to the complainant and other students of ACCP course. Thus, the deficiency in service on the part of the opposite parties would loom large. The forum below is perfectly justified in finding deficiency in service on the part of the first opposite party in imparting education to the complainant for ACCP course.
14. Ext.R2 is the students record as on 6.1.03 produced by the first opposite party. This would show the total fees for the courses and the fee paid by the students. In R2 list, 53 students are included. This list would take in students for ACCP course also. The code for ACCP course is given as 0003 – 3 years. R2 list would show that Sl.No.7 Resmi Menon joined for the ACCP course (0003). The total fee for that student is shown as 42,075/-. Sl.No.8 one Rebin C.I joined for the same ACCP course. The total fee for that student is shown as 47,025/-. Sl.No.9 is the complainant Riyas. The total fee for the complainant is shown as 59,650/-. But for Sl.No.10 Rajesh C.Menon, the course fee is only Rs.47025/-. It can be seen that the first opposite party collected from the varying fees for the very same course. Thus, there was no uniformity in collecting total course for ACCP. R2 list would also show that majority of students have not paid the entire course fee. Balance amount was outstanding from a number of students. It would also show for some of the students discounts were also given. So, the manner in which the total fee was fixed and the way in which the fee was collected from the students would also show irregularity and impropriety on the part of the first opposite party.
15. Admittedly, for the complainant the course fee for ACCP course was Rs.59650/-. It is also admitted by the first opposite party that the complainant paid Rs.39449/- towards the course fee and a balance of Rs.20,219/- is due from the complainant. The complainant has also admitted the fact that he had not remitted the entire course fee of Rs.59650/- but he paid only Rs.39449/-.
16. It is admitted by the first respondent/complainant that the appellant/first opposite party conducted proper classes for 6 months and that everything was effective and proper for 6 months. The complainant is not having any complaint against the opposite parties during the first 6 months. Of course, he also appeared for the first semester examination. It is contended by the first opposite party that the complainant attended the classes for the second year course and also for the third year till 11.7.03. It is also contended that the complainant did not appear for second year semester examinations due to his own laches and inefficiency. It is not disputed by the complainant that he attended the classes up to 11.7.03. This circumstance would show that the complainant availed the services of the first opposite party to some extent and he studied for the ACCP course up to 11.7.03.
17. The complainant issued P1 lawyer notice dated 28.6.03 and he received P4 reply notice dated 5.7.03. If the complainant was not satisfied with the services rendered by the opposite parties, he could have discontinued the said course then and there and he could have demanded refund of the course fee. P3 series of receipts would show that the complainant remitted fee even on 6.7.01. In this situation, the claim for refund of the entire fees of Rs.39449/- which the complainant paid to the first opposite party cannot be allowed. It is to be noted that the complainant utilized the lab facilities and library facilities available at the institution of the first
opposite party. The complainant also attended the classes up to the end of the 3 year course. It is only at the fag end of the course the complainant came up with the present complaint that too after attending the classes for about 3 years. This circumstances would not justify the order passed by the forum below directing refund of the course fee of Rs.39,449/- which the complainant paid to the first opposite party. There must be some deduction from the said amount for the services availed by the complainant. This Commission is of the view that a sum of Rs.20,000/- is to be deducted and the complainant is only entitled to get refund of Rs.19,449 with compensation of Rs.2000/- for the deficiency in service on the part of the first opposite party and also cost of Rs.500/-.
In the result, the appeal is allowed partly. The impugned order dated 30.6.08 passed by CDRF, Thrissur in OP.No.571/03 is modified. Thereby, appellant/first opposite party is directed to refund Rs.19,449/- to the first respondent/complainant with compensation of Rs.2,000/- and cost of Rs.500/-. In all other respects, the impugned
order is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN -- JUDICIAL MEMBER
s/L
