Reserved

State Consumer Disputes Redressal Commission

U.P., Lucknow.
Appeal no.1489 of 2015

Silver Bells Institute for Higher Education,

Panipat Road, Shamli through its Director/

Principal.                                                              ...Appellant.

Versus

1- Vijay Kumar s/o Virendra Kumar,

     R/o Kairana, Distt. Shamli.

2- Vice Chairman, Ch. Charan Singh University,

     Meerut.                                                      ...Respondents.

Appeal no.1487 of 2015

Silver Bells Institute for Higher Education,

Panipat Road, Shamli through its Director/

Principal.                                                              ...Appellant.

Versus

1- Sandeep Kumar s/o Sureshpal,

     R/o Aryapuri Dehat, Kairana, Distt. Shamli.

2- Vice Chairman, Ch. Charan Singh University,

     Meerut.                                                      ...Respondents.

 Appeal no.1488 of 2015

Silver Bells Institute for Higher Education,

Panipat Road, Shamli through its Director/

Principal.                                                              ...Appellant.

Versus

1- Sagar Kumar s/o Naresh Kumar,

     R/o Kairana, Distt. Shamli.

2- Vice Chairman, Ch. Charan Singh University,

     Meerut.                                                      ...Respondents.

Present : -
1. Honorable Shri Sushil Kumar, Member.
2. Honorable Shri Vikas Saxena, Member.

Shri Alok Kumar Singh, Advocate   for Appellants.
None present on behalf of the respondents.

Date: 19.01.2023

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Judgment

Per Shri Vikas Saxena, Member:- The aforesaid three appeals have been filed by the Silver Bells Institute for Higher Education, the opposite party of complaint no.157 of 2012, Vijay Kumar versus Silver Bells Institute, complaint no.158 of 2012 Sagar Kumar versus Silver Bells Institute and complaint no.156 of 2012 Sandeep Kumar versus Silver Bells Institute. All the three Complainants instituted the complaint against the appellant on the same facts, therefore all the three Complainants were decided by the learner the District Consumer Redressal Commission, Shamli by means of the Single judgment dated 03/07.2015.

As per these complaints, the Complainants took admission in the BBA course of the Institute on the assurance that the said course of BBA was recognised from Chaudhary Charan Singh University, Meerut, for which the appellant Institute was affiliated to the University. It is contended by the Complainants that this fact was contained in the prospectus of the course of the institute and believing this fact all the Complainants took admission in the BBA course of the institute. As per the curriculum, the first semester examination was to be held in month December 2011 and 2nd semester in the month June 2012 but both the semesters postponed to June 2012. Still, no examination was conducted even after passing of June 2012. It lis alleged by the Complainants that the appellant institute has played a fraud with them. The Complainants instituted these complaints for damages for mental, physical and financial loss. 

The appellant submitted its written statement in the proceedings of the complaint which states that the institute

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was affiliated to the University renewed affiliation to the institute was granted by Chaudhary Charan Singh University on date 31-0 7- 2012 and after that the admissions to BBA course, were taken by the institute. The examination in December 2011 were not taken by thembecause, at that time the matter of affiliation was pending. It is also submitted by the appellant that this has been held by honorable High Court and honourable Apex Court that an examinee /student is not a consumer  to an educational institution and therefore , this complaint is not maintainable in a consumer Court.

After hearing both the parties of all the complaints the learned  District Consumer Redressal Commission, Shamli allowed all of them and granted a compensation for Rs.56,720/-(Rs. Fifty Six thousand Seven Hundred and Twenty) to each of the Complainants along with an interest of  8% per annum on the amount from the date of Institution of the suit till date of actual realization. Being aggrieved from the impugned judgment the opposite party of the complaint the Bells Institute has preferred these appeals.

These appeals have been preferred on the grounds that learned District Consumer Redressal Commission has not appreciated the fact that there was no deficiency on the part of the appellant and also erred in giving the finding that at the time of Institution of present Complaint on date 11.07. 2012, the institute was not affiliated with Chaudhary Charan Singh University for the BBA course. The Institute was, in fact, affiliated to the university and at that time a renewal of the affiliation was pending with the Government of Uttar Pradesh and the same was renewed on date 31.07.2012. The   District Consumer Redressal Commission did not consider the laws

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cited by the appellant that educational institution are not providing any service and for this reason this complaint under Consumer Protection Act is not maintainable in a Consumer Forum.

We have heard the learnt counsel Shri Alok Kumar Singh, advocate on behalf of the appellant but none appeared on behalf of the respondents.

It is submitted on behalf of the appellant/ the opposite party that admittedly, the opposite party Institute is providing BBA degree/diploma to students and the complainants were the students. As per the various judgments of Honourable Supreme Court and Honourable NCDRC, an educational Institute providing education to students cannot be considered a ‘service provider’ and the student/complainant cannot be considered as a 'Consumer' as per definition provided in Section 2 (1) (d) of The Consumer Protection Act, 1986. The Complainant on the other hand submitted that the opposite party of the complaint is an independent body, although imparting education yet it cannot be considered as an ‘educational institution’ in true sense, within meaning of the Consumer Protection Act.

 This arguments raised by the complainant finds no force, as the opposite party /appellant is an institution which is imparting education and the complainant in the complaint has admitted that he was an a student of the institution / the opposite party. Considering this admission of the complainant there remains no doubt that the appellant is an ‘educational institution’ and the complainant was a student taking education there.

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The District Consumer Redressal Commission, has t in the impugned judgment that the appellant Silver Bells Higher Education Institute  is not an educational institution as it is a self-financing institution, therefore it does not come within the definition of educational institution in a legal sense. In our view, stand taken by the learnt the District Consumer Redressal Commission has no force in light of the recent judgments of Honourable National Consumer Redressal Commission, New Delhi and honourable Apex Court. The opponent Silver Bells Institute is admittedly conducting academic BBA course and providing  diploma/certificate in the same educational course and the Complainant also enrolled as students in the institute. The controversy between them is that the institute, which was providing education to the Complainants /students was not affiliated at the time of their Admission . Then on affiliation of the institute does not obliterate or affect the relationship of the Complainant with the institute which is no doubt that of a relation of an educational institution and students. It is given in the aforesaid judgment of  Manu Solanki (supra) of  honorable NCDRC that in matter of any institution imparting training or education even like a coaching institute, a consumer forum has no jurisdiction to entertain any grievance of the student. In the judgment Honourable NCDRC has held:-

46. For all the afore-noted reasons, we are of the opinion that any defect or deficiency or unfair trade practice pertaining to a service provider like ‘Coaching Centres’ does fall within the jurisdiction of the Consumer Fora.

Honorable NCDRC differentiating between college/ institution from coaching centers considered the fact that an

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educational institutions provides diploma or degree to its student and these are regulated by rules of University those factors, these attributes are absent in case of a Coaching center. Still, The Honorable Commission, for practical reasons considered that even coaching classes cannot be considered a ‘service provider’ within meaning of the Act ant any grievance by a student against those is barred from the per view of the act.  

............that conduction of Coaching Classes does not fall within the ambit of definition of ‘Education’ as defined by the Hon’ble Seven-Judge Bench of the Supreme Court in P.A. Inamdar (supra). Coaching Centers cannot be equated to regular schools or colleges which are regulated by a Regulatory Authority and also confer a Degree/Diploma on the student who has passed in the examinations conducted as per the Rules and norms specified in the statute and also by the concerned Universities. Therefore, strictly speaking Coaching Centers cannot fall within the definition of ‘Educational Institutions’. We refrain from making any comments on the submissions of the learned Counsel for the Complainants with respect of Coaching Institutions indulging only in ‘rote learning’.

Following the aforesaid judgment of the Honourable NCDRC, we are of the considered view that the appellants are on a better footing as they are not only providing educational training to the students but also giving them degree / diploma of BBA course. Therefore, it cannot be said in view of the judgment of Honorable NCDRC that they( the appellants) are providing ‘Service’ and the complainant as their students are ‘Consumers’.

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Now, this bench has to consider these preliminary objections first, as raised by the opposite party, that weather this complaint can be considered as a consumer dispute and can be heard under the provisions of the consumer protection act 1986. 

          This preliminary objection we consider regarding the relationship of 'Service Provider' and 'Consumer' of the complainant and the opposite party/Institute who are admittedly ‘student’ and ‘educational institution’ respectively, for providing education to the complainant as a student. We found conflicting judgments of Honourable Supreme Court and honourable NCDRC on this point.

          The question before this bench is that when conflicting judgments of honourable Supreme Court are in existence, what course of action should be taken in that situation. Honourable NCDRC clarified and held that in that situation the judgment pronounced by the larger bench of honourable Supreme Court should be followed, which has squarely taken the matter in detail, as the similar situation arose on the same point of controversy before National Consumer Disputes Redresal Commission, New Delhi in case Manu Solanki & Others. Versus Vinayaka Mission University reported in I (2020) CPJ 210 (NC). The Honorable NCDRC held in that case the view that:-

          32. We rely on the Judgment of the Full Bench of the Hon’ble Supreme Court in Amar Singh Yadav & Ors. v. Shanta Devi & Ors., AIR 1987 SC 191, in which the Hon’ble Supreme Court while deciding the Law of Precedence has observed that when there is a direct conflict between two decisions of the Supreme Court of Co-equal Bench, the

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subordinate Court must follow the judgments which states the law more elaborately and accurately and that the question whether the decision is earlier or later is not material. In the instant case in Maharishi Dayanand University Case (supra) the Hon’ble Supreme Court had discussed the law elaborately.

In this case before Honourable NCDRC, Learned Counsel appearing for the Opposite Parties placing reliance on the judgment of the Hon’ble Supreme Court in P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors., 2012 (3) CPC 615 (SC), pronounced that students are not ‘Consumers’ and ‘Education’ is not a commodity and that Educational Institutions are not rendering ‘Service’. As against this view, the Hon’ble Supreme Court in Civil Appeal Nos. 7003-7004 of 2015, P. Sreenivasulu & Anr. v. P.J. Alexander & Anr., dated 9.9.2015 has held otherwise, wherein the Hon’ble Supreme Court has clearly laid down that Educational Institutions would come within the purview of the Consumer Protection Act, 1986 and that Education is a Service. He further argued that in the judgment cited by the Counsel for the Opposite Parties it has not been emphatically laid down that the Consumer Fora do not have jurisdiction to entertain ‘all disputes’ regarding ‘any activity’ associated with ‘Educational Institutions’.

The Honourable NCDRC elaborately discussed the various judgments of Honourable Supreme Court and finally reached to the conclusion on relying the judgment of Hon’ble supreme Court in Maharshi Dayanand University v. Surjeet Kaur, reported in III (2010) CPJ 19 (SC) has held as follows:-

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35. We find force in the contention of the learned Counsel appearing for the Petitioner in Revision Petition No. 3159 of 2014, who vehemently contended that post admission and having attended college for some period of time if the student leaves the college within his own volition and the seat falls vacant, which may or may not be filled by another candidate, the fee cannot be refundable as issue of is of ‘post admission’ and the student had left the seat ‘during the course of imparting education’. Any defect/deficiency in conferring of a degree/ diploma, marks, certificates which may arise ‘during the course of imparting of Education’ does not fall within the purview of Consumer Protection Act, 1986. Hence, the aforenoted judgments squarely apply and students falling in this category are not ‘Consumers’

Almost in the similar matter before us, the Honourable NCDRC again gave the verdict that any shortcoming in imparting the education, cannot be considered a ‘service’ within the meaning of Consumer Protection Act. Which is as follows:-

39. Learned Counsel appearing for the Petitioner in Revision Petition No. 222 of 2015 vehemently contended that the Complainant had taken admission in B. Ed. course of the Opposite Party affiliated with the Opposite Party No. 2, Uttrakhand Technical University, who subsequently came to know that the Institute was not recognized by NCTE and therefore sought for refund of the fees. Whether such an unfair trade practice post admission would fall within the ambit of the Act needs to be seen. As the Institution is imparting education though it has been not recognized by the National Council of Technical Education, it would not make

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 any difference because it will be covered under the education. Thus, the said Institute would not be rendering any service as defined in the provisions of the Consumer Protection Act, 1986.

          From the aforesaid discussion it is clear that the honourable NCDRC in the judgment has given that the honourable Supreme Court has time and again held that any matter related to imparting education in any educational institution cannot be taken as 'Service' as defined in The Consumer Protection Act, 1986. It is argued by the Counsel for the complainant that the honourable apex court in case of Manu Solanki vs Vinayak Mission University and others (Civil Appeal Diary Numbers (S) 12901/2020) on date 15 - 10 - 2020 entertain the appeal by observing as following: -

"Delay condoned.

Since they are divergent views of this Court bearing on the subject as to whether an educational institution or University would be subject to the provisions of The Consumer Protection Act, 1986, the appeal would require admission.

       Admit.

          It is argued by the Counsel of the complainant that the appeal against the judgment has been admitted by the Honourable Supreme Court and an interim order has been passed, therefore it can be taken that the law laid down by the honourable NCDRC in case Manu Solanki and others versus Vinayak Mission University and others cannot be followed by the State Commissions and District Commission. We do not find force in this argument because, the honourable NCDRC has given the judgment considering various judgments

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pronounced by honourable Supreme Court on this point and at present, until the judgment is reversed or quashed by the Honourable Supreme Court, it is propriety to follow the judgment of honourable NCDRC in Manu Solanki & Others. versus Vinayaka Mission University reported in I (2020) CPJ 210 (NC). Therefore, in the present situation this bench finds that the education imparted in the opposite party/Institute and any matter or deficiency in the imparting education cannot be taken as 'Service' in view of The Consumer Protection Act, 1986 and the dispute not being the matter between a 'Consumer' and 'a service provider', cannot be heard and decided by this Consumer Commission. The District Consumer Redressal Commission has allowed the complaint without considering this preliminary objection and the legal position at present on this point. Therefore we find that the impugned judgment deserves to be set aside and the appeal is liable to be allowed.

Order

The Appeal no.1489 of 2015 Silver Bells Institute for Higher Studies Versus Vijay Kumar, Appeal no.1487 of 2015 Silver Bells Institute for Higher Studies Versus Sandeep Kumar and Appeal no.1488 of 2015 Silver Bells Institute for Higher Studies Versus Sagar Kumar are allowed and impugned judgment and order of the District Consumer Redressal Commission is set aside. 

Both the parties in the appeals shall bear their own costs.

 Stenographer is requested to upload this judgment on the website of the commission forthwith.

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 Let copies of the judgment be made available to both the parties without delay.

(Sushil Kumar)                    (Vikas Saxena)
       Member                                                    Member

Jafri(V), PA1

Court no.2