Sri Debasis Bhattacharya, Member
This appeal is filed against the Order dated 17-07-2015, passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas (for short, District Forum) in C. C. No. 601/2014, whereby the complaint case has been allowed. Being aggrieved by and dissatisfied with the same, OP thereof has preferred this appeal.
In short, case of the Complainant, is that, she enrolled herself at the OP University for pursuing one year Post Graduate Diploma Course in NGO Management for the academic session 2011-2012 and paid total course fee amounting to Rs. 15,000/- for this purpose in advance. It is alleged that, after 5/6 months of study, the OP stopped taking regular classes, full course materials were also allegedly not supplied by the OP authority. Although the said course was meant to be completed within a year, OP dragged its feet without any rhyme or reason for more than two years and all on a sudden woken up from its deep slumber after receiving notice from the Salt Lake Regional Office of the Consumer Affairs & Fair Business Practices, and decided to hold examination at short notice. By the time, the OP asked the Complainant to deposit examination fee of the year 2014, almost two years had lapsed and as the Complaint was out of touch of study for such long period of time and also did not receive full course materials from the OP, she did not find any expediency to sit for such examination. As such, she did not pay the examination fees. It is further alleged that although she repeatedly asked the OP to refund the course fees, there was no response from the side of the latter. Finding no other alternative, Complainant filed the case before the Ld. District Forum.
Appearing to defend its case, the OP denied all the material allegations. The OP also disputed maintainability of the complaint case contending inter alia that the Complainant is not a ‘consumer’ under the Consumer Protection Act, 1986.
Point for determination is whether the impugned order is sustainable in the eye of law.
Decision with reasons
Ld. Advocate for the Appellant primarily harped on the maintainability of the complaint case. According to him, ‘education’ is not a commodity; it cannot be construed as service either. As such, he urged to set aside the impugned order.
Ld. Advocate appearing for the Respondent, on the other hand, countered such contention and submitted that there is no infirmity with the complainant case insofar as maintainability aspect is concerned.
Let us first discuss, whether the instant case is indeed maintainable or not.
As we know, in terms of Sec. 2(1)(d) of the Consumer Protection Act, a "consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
There is no doubt that, by any means ‘education’ cannot be construed as ‘goods’. So, let us see whether it qualifies as ‘services’ or not. For this purpose, we have stumbled upon the literal meaning of the term ‘service’ as mentioned in some of the mostly respected dictionaries worldwide.
According to Business Dictionary, “Service” means, “Intangible products such as accounting, banking, cleaning, consultancy, education, insurance, expertise, medical treatment or transportation”. The Oxford Learner’s Dictionaries defines “Service” as “a system that provides something that the public needs, organized by the government or a private company, e.g., The government aims to improve public services, especially education”. “Service” has been described by the Collins Dictionary as, “an act of help or assistance”. According to Macmillan Dictionary, Service means, “a system provided by a government or official organization for the needs of the public”
As per Wikipedia, “In economics, a service is an economic activity where an immaterial exchange of value occurs. When a service such as labour is performed the buyer does not take exclusive ownership of that which is purchased, unless agreed upon by buyer and seller. The benefits of such a service, if priced, are held to be self-evident in the buyer's willingness to pay for it. Public services are those, that society (nation state, fiscal union, regional) as a whole pays for, through taxes and other means. Using resources, skill, ingenuity, and experience, service providers effect benefit to service consumers. Thereby, service providers participate in an economy without the restrictions of carrying inventory (stock) or the need to concern themselves with bulky raw materials. The service sector provides a service, not an actual product that could be held in your hand. Activities in the service sector include retail, banks, hotels, real estate, education, health, social work, computer services, recreation, media, communications, electricity, gas and water supply….”
In an article, titled, “Education: Our Most Important Service Sector”, Richard C. Larson of Massachusetts of the Institute of Technology observed that, “Education is a service industry comprising 10 percent of the US GDP, second only to health care at 17 percent. In the U.S. and over much of the world, classroom education remains a labor-intensive craft profession, essentially unchanged since the 19th Century.”
History professor Maria Serena I. Diokno from the University of the Philippines observed at a forum organized in UP Diliman that, “In today’s world, higher education has become a huge service industry. Nowhere is this more evident than in the General Agreement on Trade in Services (GATS) which has lumped education together with banking, tourism, and accountancy”.
We fully appreciate the notion of the Ld. Advocate that ‘Education’ is not a commodity. However, going by the dictionary meaning of the word, ‘Service” it does seem to us that by imparting education in lieu of fees, educational institutions are chiefly rendering service to the student community at large. Significantly, although the Ld. Advocate made a spirited averment to drive home his contention that ‘education’ is neither a commodity nor a service, for some obscure reasons, he stopped short of spelling out in clear terms what ‘education’ is all about.
It is the settled position of law that wherever there remains any ambiguity in respect of any aspect of a dispute, a Court of Law should go by the literal meaning of the word. In such a situation, we are of considered view that, ‘education’ does fall within the realm of service and accordingly, we have no qualms holding a concurrent view vis-a-vis Ld. District Forum in this regard. The objection of the Appellant in this regard is not tenable as such.
Next, we proceed to deal with the merit of the appeal.
It is the undisputed position of this case that the Respondent enrolled for a one year diploma course on NGO Management for the academic session 2011-2012. Going by the prospectus for such course, it was incumbent upon the Appellant to hold regular classes, impart quality education, hold timely education and issue certificates to successful candidates. As it appears, the Appellant cut a sorry figure on all these scores.
There can hardly be any two opinions as to the fact that delay always brings with it a whiff of irrelevance. Although the Appellant sought to wash its hands off the whole mismanagement and devoted all its energy to question the maintainability of this case, curious enough, it did not utter a single word to clarify what those alleged unforeseen circumstances indeed were that stood in the way of holding examination in time.
It would be no exaggeration to suggest that the Appellant, after taking full course fee from students, simply left them in the lurch. The Appellant could not show any such University rules that empowers it to fiddle with the career prospects of students by holding irregular classes, and organizing examination two long years behind the scheduled time frame at its convenience. Without any iota of doubt, it was a clear act of deficiency in service.
Further, it appears from the photocopy of prospectus on record that fees of any kind once deposited was not refundable under normal circumstances, implying therein itself that under extraordinary circumstances, the same was refundable. No doubt, the situation was anything but normal in the present case.
We, therefore, feel that by directing the Appellant to refund the entire course fee to the Respondent together with some other ancillary awards, the Ld. District Forum did not impart any injustice towards the Appellant. Rather, it seems to us that the Appellant has been handed out, what it really deserves.
In view of this, the appeal stands dismissed being devoid of any merit.
Hence,
O R D E R E D
That A/888/2015 be and the same is dismissed without any costs. Appellant is directed to comply with the impugned order within 30 days hence.
