Hon’ble Mrs. Soma Bhattacharjee, Member
The present appeal being no. A/751/2019 u/s 15 read with section 17 of of C.P. Act, 1986 has been filed by the OP No. 1 to assail the order dt. 24.09.2019 passed by Ld. DCDRC, Kolkata Unit II in CC/340/2018 whereby the Complaint case was allowed in favour of the complainant / respondent.
The concise facts of the complaint case are as follows:-
The complainant / respondent No. 1 came to know from the website of Appellant / OP Frankfinn Aviation Service Pvt. Ltd. that they are conducting courses for diploma in ‘Cabin Crew’. OP no. 3 assured her that the complainant is fit for the job of Cabin Crew in international and domestic airlines and she assured her that if she could not procure any job as cabin crew the institute shall refund entire admission fees. Being convinced and assured of getting a job the complainant / respondent took admission into OP no. 1 / institute and executed online student agreement. OP no. 4 had taken the measurement of height and weight of the complainant and mentioned the same in the admission form as 155 cm. She paid Rs. 1,50,000/- as course fees to Fankfinn Institute. Then the complainant appeared for interview with Spice Jet Airways and Indigo Airlines for cabin crew but her candidature was rejected on the ground of shortage of height. The complainant alleged that the OP nos. 3 and 4 had taken wrong measurement and suppressed the actual measurement and thereby adopted unfair and deceptive trade practice. The complainant requested the OP no. 1 institute to refund the amount but they did not pay any heed to the request. Thereafter the complainant sent legal notice to OP nos. 1 to 6 but such notice was not attended. Complainant was therefore compelled to file CC/340/2018 before the DCDRF, Kolkata, Unit II.
OP no. 1 appeared and filed W.V stating several grounds. OP no. 1 stated that education is not a commodity and educational institutions are not providing any kind of service hence there cannot be a question of deficiency of service. Thus the complaint case does not fall within the ambit of C.P. Act, 1986. The complainant had executed the online student agreement out of her own volition, obviously after reading the terms and condition mentioned. Complainant was fully aware of the fact that she was not eligible for cabin crew job but she was only eligible for ground staff. OP no. 1 accordingly prayed for dismissal of the complaint with cost.
OP nos. 2 to 6 were duly served the notices by the complainant. However, no written statement has been filed by them and hence the case proceeded ex parte against OP nos. 2 to 6.
Heard the submission of Ld. Advocates for both sides. Considered the materials and documents in the case record. For proper adjudication of the case the following points are to be considered.
- Is the case maintainable in the eye of law?
- Whether the Respondent / complainant is a consumer in terms of C.P. Act, 1986?
The question that arises is whether the impugned order is illegal or not.
The Appellant / OP No. 1 has cited several case laws in support of their argument. Judgments relied upon by the appellant holding that education is not a service and a student is not a consumer, are as follows:-
- Maharshi Dayandand University v. Surjeet Kaur in 2010 (11) SCC 159
- Bihar School Examination Board v. Suresh Prasad Sinha in 2009 (8) SCC 483
- P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors. in SLP (C) No. 22532 / 2012
- Prof. K.K. Ramachandran v. S. Krishnaswamy & Anr. in SLP (C) No. 3789 / 2012
- Anupama College of Engineering v. Gulshan Kumar & Ors. in Civil Appeal No. 17802 of 2017
- FIIT JEE Ltd. vs. Daya Chand Prasad Review Application No.42 of 2015 in RP No. 4634 Of 2012.
Judgments relied upon by the appellant on the issue of territorial jurisdiction are as follows:
- Shree Subhlaxmi Fabrics Pvt. Ltd. vs. Chand Mal Baradia and Ors. in (2005) 10 SCC 704
- Swastik Gases P. Ltd. v. Indian Oil Corporation Ltd. in (2013) 9 SCC 32
The case of the Ld. Lawyer of the Respondent, Rizwana Parveen is that if the respondent did not fulfil the conditions such as height etc, then the OP no. 1 should have rejected her online application right in the beginning and should not have accepted the admission fees from her.
The Ld. Lawyer of the Respondent also argued that in terms of Section 11 of Consumer Protection Act, 1986 the cause of action arose in Kolkata and hence the ground of territorial jurisdiction of the Appellant does not hold ground.
The Ld. Counsel for the respondent has submitted that as per the judgment of the National Commission in “Frankfinn Institution of Air Hostess Training and ANR VS. Aashima Jarial in R.P. No. 3052 of 2018 decided on 4th April, 2019, this National Commission stated that “Imparting of Education by an Education 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 Institution. If there is no rendering services, questions of payment of fees would not arise. The complainant had hired the services of the Respondent for consideration, so they are consumer as defined in the Consumer Protection Act.”
In the matter of Regional Institute of Cooperative Management Vs. Naveen Kumar Chaudhary reported in III (2014) CPJ 120 (NC), cited by the Appellant, the Hon’ble National Commission discussed and upheld that:-
“ The learned Counsel for petitioner has also referred to the judgment of Hon’ble Apex Court titled P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors., in Civil Appeal No. 22532 / 2012, decided on 9.8.2012, wherein it was held as under: “In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur, 2010 (11) SCC 159, wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. University v. Surjeet Kaur (supra) and Jagmitter Sain Bhagatv. Director, Health Services, Haryana & Ors., III (2013) CPJ 22 (SC) = 2013 (10) SCC 136, holding that:-
“the student, under such circumstances, is not a ‘consumer’.....”
In the matter of FIIT JEE Ltd. Vs. S. Balavignesh reported in III (2015) CPJ 112 (NC) cited by the Appellant, it was held that:-
“It was further noted that the State Commission had rightly applied the ratio of the decision of the Hon’ble Supreme Court in P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors. in Civil Appeal No. 22532 / 2012 decided on 09.08.2012 wherein relying upon its earlier decision in Maharshi Dayanand University v. Surjeet Kaur, MANU / SC/ 0485 / 2010 : V (2010) SLT 545 : 111 (2010) CPJ 19 (SC) : 2010 (11) SCC 159, it was held that the educational institute are not providing any kind of services and, therefore, in the matter of admission fee, etc., there cannot be a question of deficiency of service and such matter cannot be entertained by the consumer.”
It was further held that “ It was also stated in the reply that the petitioner is a self- financed and self-managed institute, being run on the fee collected from the students and it has to incur expenditure on lease rent of the premises, salary of faculty members and non-faculty staff, electricity and other charges, preparation and printing of study material, etc., irrespective of the number of students and the batches. It was Educational institutes are not providing anykind of service, therefore, in the 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. In view of the above, we are not inclined to entertain the special leave petition. Thus, the Special Leave Petition is dismissed.”
After giving due consideration to the submissions of both parties, materials on record, the impugned order and the position of law referred to above, we find that the impugned order is not sustainable in the eyes of law. Accordingly, the Appeal No. 751 of 2019 is allowed on contest. The impugned order of DCDRF Kolkata, Unit II in CC/340/2018 is set aside. Interim stay order, if any, stands vacated.
Let a copy of this order be sent to the Ld. DCDRF, Kolkata, Unit II.
Free copies are to be issued to all parties.
