PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the Final Order being Order No.15 dated 09.04.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, Ld. District Forum) in Consumer Complaint No. 280/2017.  By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent Shaista Parveen under Section 12 of the Act with the directions upon the OP/Appellant to refund Rs.1,33,600/-, to pay compensation of Rs.1,00,000/- and litigation cost of Rs.5,000/- in favour of respondent/complainant within 30 days from the date of order in default the appellant/OP shall pay a fine of Rs.100/- per day’s delay and the said amount shall be accumulated in the fund of the Ld. District Forum.

          The Respondent herein being Complainant lodged the complaint before the Ld. District Forum stating that in search of an institution which is well inclined for providing degree course-B.Sc. in Fashion Technology & Designing and she was provided a brochure and was given information that the institution is affiliated and holds a goodwill and GIFT (Global Institute of Fashion Technology).  On such assurance, the complainant got admitted in the said course by making payment of Rs.39.90,000/- only in cash on 26.06.2014 being registration fee, admission fee and first instalment fee and thereafter, on diverse dates she paid course fee of Rs.19,000/- on 25.08.2014, Rs.18,900/- on 10.10.2014, Rs.18,800/- on 19.02.2015, Rs.18,500/- on 21.04.2015, Rs.18,500/- on 22.06.2105 against the receipts.  The complainant states that it was a three years degree course but before its final result, mark sheets and certificate, it came to the surface that the institute is a fake institute and she came to know the same in the month of February, 2017 as per information provided by AICTE.  The complainant by a letter dated 20.03.2017 claimed refund of the amount but no steps have been taken by the institution.  Hence, the respondent approached the Ld. District Forum with prayer for an award/compensation of Rs.3,39,000/- under certain heads as spell out in Paragraph-11 of the petition of complaint. 

          The Appellant/Opposite Party by filing a written version has stated that they run an approved study centre by one Pan India Education which is collaborative institute of the Karnataka State Open University (KSOU) under whose supervision, the OP was to conduct certain courses offered by the KSOU.  In this regard, the KSOU also signed a Memorandum of Understanding on 12.08.2014, issued certificate dated 14.11.2013 and subsequently issued a letter dated 30.04.2014 to the said Pan India Education approving the OP as its study center.  But suddenly by a notification dated 16.06.2015 issued by University Grant Commission (UGC), had discontinued the recognition of the academic programme being conducted by KSOU and the said programme has been discontinued beyond the batch of 2012-2013.  The OP has stated that they cannot be held responsible as there was no deficiency on the part of them.

          After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint lodged by the Respondent/complainant with certain directions upon the OP.  Being aggrieved and dissatisfied with the said order, the OP has come up in this Commission with the present appeal.

          Ld. Advocate for the appellant has submitted that the Ld. District Forum should have dismissed the complaint as the same is bad for non-joinder of necessary party i.e. KSOU. He has also submitted that the appellant is authorised Study Centre of KSOU and the responsibility of the appellant was to prepare the respondent for examination which was conducted as per guidelines of KSOU and mark-sheet was also provided by them after conducting examination. He has further submitted that the fees charged by the appellant was towards their services and as per the Memorandum of Understanding substantial amount was also transferred to the  KSOU for undertaking examination and issuing mark-sheets and as there is no deficiency on the part of appellant/OP, the impugned order should be set a aside.

          Per contra,  Ld. Advocate for the  respondent has contended that the appellant/OP has shown a rosy picture about the Institute and in their brochure they have categorically mentioned that the course of Fashion Technology and Designing is recognised by UGC. On such assurance, the respondent got herself admitted on 26.08.2014 in the appellant institute. However, by a public notice dated 16.06.2015 UGC discontinued its recognition to KSOU, Mysore beyond 2012-13. Ld. Advocate for the respondent has further contended that after giving a show cause notice to KSOU on 10.06.2011 and after considering their response including personal hearing of the officials of the University such a step has been taken. In such a situation, when having notice about discontinuation of approval of the course by UGC beyond 2012-13 when the appellant continued the course and admitted the respondent on 26.08.2014 , it signifies not only deficiency in services but also an unfair trade practice under Section 2(1)(r) of the Act.

          We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.

          Undisputedly, the respondent visited the appellant’s institute for pursuing a course in B.Sc-Fashion Technology and Designing. The respondent was provided with pamphlet, brochure and admission form and the entire details of the course which shows that the respondent was induced by the appellant to the extent that they assured of quality course. It would be evident from  the brochure of GIFT for the year 2014 where it has been categorically mentioned that it is recognised by UGC through KSOU. Practically, in the year 2014, the appellant institute had no recognition from UGC. It appears from public notice dated 16.06.2015 that the programmes offered by KSOU, Mysore has not been recognized by UGC beyond 2012-13. Therefore, it is palpably clear that at the relevant year of admission of respondent, precisely on 26.04.2014 the appellant institute was not recognized by UGC. Therefore, the appellant institute had no occasion to issue brochure mentioning the institute is recognized by UGC. This conduct on the part of appellant not only indicates deficiency or negligence on the part of them but also speaks about the unfair trade practice adopted by them to dupe the students.

          The evidence on record speaks that the respondent has paid Rs.39,900/- on 26.08.2014 for registration fee, admission fee and first instalment fee and thereafter, she has paid a total amount of Rs.1,33,600/- including the amount of Rs.39,900/-  on diverse dates to pursue her course. The respondent was enrolled in three-year degree course in B.Sc(Fashion Technology and Designing) but before the final result, particularly in the month of February, 2017 she came to know that the appellant institute is a fake one. As a result, like respondent, future of many student has been ruined.

          The appellant tried to absolve their responsibility simply on the ground that it had approval letter from KSOU to run the study centre.  Inviting our attention to the letter given by the Planning and Development Officer, KSOU dated 28.11.2013 addressed to GIFT Institute/appellant where it has been mentioned that the appellant may run the study centre with collaboration of Pan India Education, Kolkata. The other letter dated 30.04.2014 given be Dean(study centres), of KSOU addressed to Pan India Education also indicates that the appellant institute has been approved the courses excepting Engineering related programmes. We failed to understand as to how the KSOU has given those letters when they had no authority to do the same.

          In any case, the respondent hired the services of appellant and not directly from KSOU. In other words, the relation between the parties as consumer-service provider exists. As the respondent/complainant has no direct relation with  KSOU and the respondent hired the services of appellant institute simply on the basis of their brochure and promise of quality education, it is the appellant to be held responsible for such misery of the respondent.

          The submission made by the Ld. Advocate for the appellant for  non-joinder of KSOU cannot be a dent to the respondent’s case.  If the appellant have any grievances against KSOU, they may initiate an independent action against KSOU but there is hardly any necessity on the part of respondent/complainant to implead KSOU as a party to this case.

          Therefore, after giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, it appears to us that the Ld. District Forum was quite justified in passing the order impugned directing the OP/appellant to refund Rs.1,33,600/-, compensation of Rs.1,00,000/- and litigation cost of Rs.5,000/- to  the  respondent/complainant   within 30 days from date.

          However, I do not find any reason for imposition of fine of Rs.100/- per day.  In a decision reported in (2015) 1 SCC 429 (General Motor (India) Pvt. Ltd. – Vs. – Ashok Ramnik Lal Tolat & Anr.) a question came up for consideration before the Hon’ble Supreme Court whether in absence of any prayer made in the complaint and without evidence of any loss suffered, the award of punitive damages is permissible?.   In answering to the question – the Hon’ble Apex Court has observed – “Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered.  Such a claim has to be specifically pleaded”.

          Neither there is any averment in the complaint about suffering of punitive damages by the other consumers nor the appellant was aware that any such claim is to be met by it and the appellant having no notice of such a claim, the said order is contrary to the principles of fair procedure and natural justice.  Therefore, the order of penalty of Rs.100/-  per day punitive damages imposed by the Ld. District Forum is not sustainable in the eye of law.

          In view of the above, the impugned Judgement/Final Order is modified only to the extent that the appellant/OP shall  have no obligation to pay fine of Rs.100/- per day as imposed by the Ld. District Forum. However, the other part of the order is maintained. The appellant/OP is directed to make payment of  Rs.2,38,600/- (Rs.1,33,600/- + Rs.1,00,000/- + Rs.5,000/-) within 30 days from date, in default, the amount shall carry interest @ 8% p.a. from date till its full realisation.

          With the above observations and directions, the instant appeal stands disposed of.

          The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.