Aggrieved by the order dated 27.03.2009 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (for short, ‘the State Commission’) in First Appeals No.3142/07, 3404/07 & 1391/08, the original complainant has filed this petition purportedly under Section 21(b) of the Consumer Protection Act, 1986 for invoking the supervisory jurisdiction of this Commission with the prayer to set aside the impugned order passed by the State Commission.
2. The facts and circumstances which led to the filing of the complaint are amply noted in the orders of the fora below and need no repetition at our end but for answering the present proceedings, we may simply note that alleging deficiency in service on the part of the opposite parties – respondents, complainant, Shelly Sachdeva filed a complaint claiming the refund of the balance fees of Rs.12,000/- deposited by her for MBA course, besides claiming a compensation of Rs.5,00,000/- and cost of the proceedings. It would appear that on being noticed on the complaint, the opposite parties filed written version raising certain objection in regard to the territorial jurisdiction of the District Consumer Forum, Yamuna Nagar at Jagadhri to entertain and try the said complaint filed by the complainant. The said objection being preliminary in nature and as it could go to the root of the matter, the District Forum answered the said objection vide an order dated 05.11.2007 rejecting the objection and holding that the consumer Forum, Yamuna Nagar at Jagadhri had the territorial jurisdiction to entertain and try the complaint filed by the complainant. Thereafter, the complaint was proceeded on merits and answered by an order dated 05.11.2007 thereby partly allowing the complaint of the complainant with a direction to the opposite parties to refund the balance of the admission fee received by them, besides a compensation of Rs.2,00,000/- and Rs.5,500/- as cost of litigation.
3. Aggrieved by the said order, the opposite parties filed the above numbered appeals before the State Commission. It appears that at the appellate stage, once again, the appellants raised objection in regard to territorial jurisdiction of the District Consumer Forum, Yamuna Nagar at Jagadhri to have entertained and decided the complaint. The basis of the said objection was that no part of cause of action arose within the jurisdiction of the Consumer Forum, Yamuna Nagar at Jagadhri and in this regard, several facts were pointed out. The State Commission, it appears, was convinced by the said arguments, oblivious of the position that by an earlier order dated 05.11.2007, the District Forum had decided the said objection holding that it had the jurisdiction to entertain and try the said complaint. The State Commission, going by the said finding, set aside the order passed by the District Forum and consequently allowed the appeals and dismissed the complaint, even without relegating the complainant to the jurisdiction of the appropriate forum, competent to entertain the complaint. Aggrieved by the said order, the complainant has filed the present petition.
4. We have heard Mr. Anil Hooda, learned counsel for the petitioner and Mr. Pankaj Sharma & Mr. B.S. Sharma, counsel for the respondents and have considered their submissions.
5. On a consideration of the entirety of the facts and circumstances and the material obtaining on record and even by the own admission of the opposite parties – respondents that despite having received the entire fee, they were not able to provide the tuition to the complainant at the center at Saharanpur and thereafter to hold even the examination at Dehradun or at any other place despite having issued the admit card, the deficiency in service on the part of the opposite parties is writ large. The complainant must have suffered not only the monetary loss but must have felt tortured and harassed as her precious one year of academic carrier was wasted due to the action / inaction of the opposite parties – Institute / University. This position stands fortified from the opposite parties’ own stand that they had to refund 25% of the fee received by them. The refund of the fee to the above extent must be on account of the failure of the opposite parties no.2 & 3 to provide the requisite service as they promised to provide to the complainant.
6. So far as the question of jurisdiction is concerned, we have already noticed that the District Forum considered the said objection and answered the same in favour of the complainant vide order dated 05.11.2007 which was not challenged further by the opposite parties by way of appeal etc. and, therefore, they will be deemed to have accepted the said finding and order. In any case, they continued to participate in the complaint proceedings uptil the time it was decided by the said Forum, meaning thereby that the objection, even if it was waived by the opposite parties. In this view, we are supported by a decision of the Supreme Court in the case of Vikas Motors Limited vs. Dr. P.K. Jain, AIR 2000 SCC 102 wherein it was held as under:
“The objection regarding jurisdiction was decided by the District Forum vide its order dated 26th July, 1991 against which no appeal or revision was filed by the appellant and that apparently appears to have become final. After participating in the proceedings and being satisfied with the verdict regarding jurisdiction, it is too late for the appellant to urge, at this stage, that the District Forum had no territorial jurisdiction to entertain the complaint and pass orders under the Consumer Protection Act (hereinafter referred to as “the Act”). The appellant is estopped from raising the plea of jurisdiction at this stage, on the ground that he cannot be permitted to both approbate and reprobate after submitting and acquiescing to the territorial jurisdiction of the District Forum.”
7. Learned counsel for the respondents has, however, argued that the consumer fora had no jurisdiction to entertain a dispute like the one raised by the complainant in her complaint. The basis of this submission is that the opposite parties being university / statutory board did not provide any service to the complainant in the sense the term is used in the Act and complainant cannot be said to be consumer. In support of this plea, the counsel heavily relies upon supreme Court decision in the case of Bihar School Examination Board vs. Suresh Prasad Sinha, (2009) 8 SCC 483 wherein, going by the facts and circumstances of the case before it, the Supreme Court held as under:
“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 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 examination conducted by Board, hire or avail of any service form the Board for a consideration. On the other hand, a candidate who participates in examination conducted by 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-vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by Board to ascertain whether he is eligible and fit to be considered as having successfully completed secondary education course. The examination fee paid by student is not the consideration for availment of any service, but the charge paid for privilege of participation in the examination. The Act does not intend 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 conducting of examination, or evaluation of answer scripts, or furnishing of mark sheets or certificates, there may e some negligence, o mission 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. 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.
8. We have carefully considered the above referred decision of the Supreme Court but in our view, the said decision is of no help to the respondents because the facts and circumstances of the case in hand are altogether different than what were noticed by the Supreme Court in the above referred case. In the above referred case, the complaint was filed alleging deficiency in service on the part of Bihar School Examination Board for not declaring the result of the son of the complainant and as a result of which one academic year of the son of the complainant was wasted. In that case, the Board was concerned only with holding the examination and declaring the result of such examination. In the case in hand, the Sardar Vallabh Bhai Patel has simply been arrayed as a proforma party because the complainant claimed that the other two opposite parties, namely, College of Information and Techonoly, Lal Kothi, Chander Nagar, Saharanpur and K.C.C. Software Ltd., B-1/2627, Community Centre, Janakpuri, New Delhi claimed to be recognized by Sardar Vallabh Bhai Patel University of Agricultural & Technology, Meerut and the petitioner acted pursuant to such advertisement and took admission in the College of Information and Technology, Saharanpur, i.e. Opposite party no.2 for getting tuitions for the course of MBA. Even if it is assumed that the examinations were to be held by Sardar Vallabh Bhai Patel University of Agriculture & Technology, Meerut, the other two opposite parties, namely, College of Information and Technology, Saharanpur, and K.C.C. Software Ltd., Janakpuri, New Delhi cannot escape their liability to compensate the complainant for the deficiency on their part as has been pointed out in the earlier part of this order.
9. The District Forum has awarded a compensation of Rs.2,00,000/- besides ordering the refund of the balance 75% fee (after taking into account that 25% has already been refunded). We are of the view that award of compensation of Rs.2,00,000/- is on higher side and grant of compensation of Rs.1,00,000/- besides refund of balance fee will adequately meet the ends of justice in this case.
9. In the result, the revision petition is partly allowed. The impugned order dismissing the complaint is hereby set aside and the order of the District Forum is modified to the extent that the opposite parties – respondents, namely, College of Information and Technology, Saharanpur, and K.C.C. Software Ltd., Janakpuri, New Delhi shall refund the balance 75% of the fees received by them, i.e., Rs.12,000/- and also pay a lump sum compensation of Rs.1,00,000/- to the complainant. Parties shall bear their own costs throughout.
