The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the opposite parties to impeach the final order/judgment dated 27th March, 2017 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short, ‘Ld. District Forum’) in Consumer Compliant No. 339 of 2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by respondent Shri Indranil Dutta under Section 12 of the Act with direction upon the opposite parties/appellants to pay Rs. 89,150/- with an interest thereon @ 10% p.a. from 05.02.2015 till the realisation of the same, to pay Rs. 7,000/- as compensation and Rs. 2,000/- as litigation cost aggregating to Rs. 98,150/- which must be paid by 05.05.2017 otherwise the opposite parties have to pay punitive damage of Rs. 100/- per day from the date till the amount is recovered.
The respondent herein being complainant lodged the complaint before the Ld. District Forum asserting that he admitted his son Master Diptanghsu Dutta in Adamas International School on 24.11.2014 in KG for the academic session of 2015-16 by paying Rs. 90,150/- towards the admission fee. The complainant constrained to shift his residential flat at Belgharia Expressway due to some personal reasons for which it was difficult for his child to commute from Chandannagar (Hooghly) to the school daily, the complainant withdrew the admission and requested to refund the admission fee. However, the said request of refund was turned down. Hence, the respondent approached the Ld. District Forum with prayer for several reliefs, viz.- (a) a direction upon the opposite parties to pay a sum of Rs. 90,150/- along with interest @ 18% p.a. from 05.02.2015 till the date of realisation of the same; (b) a direction upon the opposite parties to pay a compensation of Rs. 25,000/- for harassment and mental agony and (c) costs of litigation etc.
The appellants/opposite parties by filing a written version resisted the claim by stating that the complainant is not a ‘consumer’ as defined in Section 2(1)(d) of the Act and they are not service provider as per Section 2(1)(o) of the Act. The opposite parties categorically stated that there was no deficiency in service on the part of them and as such the complaint should be dismissed.
On perusal of pleadings and the evidence led by the parties, the documents and other materials available on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite parties as indicated above. To assail the said order, the opposite parties have come up in this Commission with the present appeal.
Mr. Soumen Mondal, Ld. Advocate for the appellant has submitted that the complainant admitted his son for pursuing his studies in Adamas International School and there was no allegation whatsoever relating to imparting education or other facilities of the school. The respondent on his own accord withdrew his son from the school as he found it difficult for the child to commute from Chandannagar (Hooghly) to the school lying and situated at Belghoria. Ld. Advocate for the appellants has submitted that the Ld. District Forum should have considered that there was no negligence or deficiency on the part of the appellants in providing education or other facilities. Expanding his submission, Ld. Advocate for the appellants has submitted that the respondent/complainant cannot be categorised as ‘consumer’ as defined in Section 2(1)(d) of the Act and to fortify his submission he has referred a decision of Hon’ble National Commission dated 29.01.2015 passed in RP/1684/2009 [Registrar, GGS Indraprastha University – vs. – Miss Tanvi]. Ld. Advocate for the appellants has also placed reliance to a decision of Hon’ble Supreme Court in the case of P. T. Koshy & Anr. – vs. – Ellen Charitable Trust & Ors. SLP (Civil) No. 22532 of 2012 dated 09.08.2012 and submitted that education is not a commodity and the educational institutions are not providing any kind of service in respect of admission, fees etc. and as such there cannot be a question of deficiency in service. Ld. Advocate for the appellants has also referred a decision of Hon’ble Supreme Court reported in 2010 (11) SCC 159 [Maharshi Dayanand University – vs. – Surjeet Kaur]. Ld. Advocate for the appellants has finally submitted that the Ld. District Forum in passing the impugned order has placed reliance to a decision of Hon’ble National Commission in RP/3169/2015 [Principal, Sri Chaitanya Educational Institution – vs. – G.P. Rath] and submitted that the Ld. District Forum misconstrued the referred case where it was found that due to poor quality of the food served to the students a number of students including the son of the complainant suffering from food poisoning and in such a situation, the Hon’ble National Commission did not find any fault with the complainant in withdrawing his son from the institute but in the instant case no such allegation regarding education or other service has been made and as such the referred decision has no manner of application in this case.
Per contra, Mr. Rajesh Biswas, Ld. Advocate respondent/complainant has placed reliance to the decision in the case of Maharishi Dayanand University (supra) and Para-6 of the decision in the case of Principal, Sri Chaitanya Educational Institution (supra) and contended that when the appellant institution has failed to show that after withdrawal of son of respondent the appellant institution did not admit any student in the academic session 2015-16, the Ld. District Forum was quite justified in passing the order impugned and as such the impugned order should not be interfered with.
I have given due consideration to the submission advanced by the Ld. Advocates appearing for the respective parties and considered the materials on record.
Undisputedly, the respondent/complainant admitted his son Master Diptanghsu Dutta in KG in Adamas International School on 24.11.2014 for the academic session 2015-16 on payment of admission fee of Rs. 90,150/-. The fact remains that the respondent was a resident of Chandannagar, Dist.- Hooghly. The respondent was about to shift his residential flat at Belghoria Expressway from Chandannagar but for some of his personal reasons the same was not materialised. Naturally it will be quite difficult for the child to commute from Chandannagar to the School daily and for that reason the respondent withdrew his son’s admission and intimated the same to the school authority on 05.02.2015 which is much ahead of the commencement of the session May-April, 2015 and requested to refund the admission fee. The appellant school refused to adhere to the request of the respondent referring to Rule 11 of Rules and Regulations of the School which produces- “Fees once paid will not be refunded”.
For determination of the dispute, it would be pertinent to refer to the authority of the Hon’ble Supreme Court in the case of P.T. Koshy & Anr. – vs. – Ellen Charitable Trust & Ors., petition for Special Leave to Appeal (Civil) No. 22532 of 2012, decided on 09.08.2012 wherein it was held:
“In view of the judgment of this Court in Maharishi Dayanand University – vs. – Surjeet Kaur 2010 (11) SCC 159 wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service therefore, in 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”.
In Para-6 of the decision in the case of Principal, Sri Chaitanya Educational Institution (supra) it was observed as follows:
“6. That apart, the petitioner did not produce any rule of the institution prohibiting filling up the seat falling against on account of withdrawal of student. In the absence of such a rule nothing stopped the petitioner from filing up the vacancy which became available on account of withdrawal of the son of the complainant from the course in which admission was taken by him. Moreover, the petitioner did not produce any record before the District Forum to prove that the seat, which had fallen vacant on account of withdrawal of the son of the complainant actually remained vacant throughout the course and was not filled up at any point of time”.
The Ld. District Forum has given much reliance to the decision in the case of Principal, Sri Chaitanya Educational Institution (supra) in passing the order impugned. Unfortunately, in the said decision the decision of the Hon’ble Supreme Court in the case of Maharishi Dayanand University (supra) was not at all considered.
It is a settled legal proposition that the enactment of the Consumer Protection Act has been made to ensure better protection of the interest of the consumers. But unless a person comes under the purview of ‘consumer’ within the meaning of Section 2(1)(d) of the Act no relief can be granted.
The facts and circumstances in the case of, Sri Chaitanya Educational Institution (supra) are altogether different with the instant case. In the said case, due to poor quality of food served to the students a number of students including son of the complainant suffered from food poisoning for which the complainant withdrew his son from the institution. In the case before hand, the respondent/complainant has not made any allegation regarding deficiency on the part of appellant school. The contents of petition of complaint are silent to that effect.
Therefore, considering the materials on record and in view of the authority of the Highest Court of the Land in the case of P.T. Koshy & Anr. (supra) when the complaint relates to admission or withdrawal of fees etc., it can be safely said that the respondent/complainant cannot be categorised a ‘consumer’ within the meaning of Section 2(1)(d) of the Act.
For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs.
The impugned judgment/final order is hereby set aside.
The respondent/complainant is at liberty to approach the appropriate Court/Forum in accordance with law and in order to overcome the hurdle of limitation he may take assistance of the decision of Hon’ble Supreme Court reported in 1995 (3) SCC 583 [Laxmi Engineering Works – vs. – P.S.G. Industrial Institute].
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.
