21.11.2017
MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
Instant Appeal under Section 15 of the Consumer Protection Act, 1986 has been filed by the Appellants/O.Ps challenging the judgment and order dated 10.11.2014 passed by the Ld. District Forum in Complaint Case No. 135/2014 allowing the complaint ex-parte against the Appellants/O.Ps with the directions upon the said Appellants/O.Ps to pay to the Respondent/Complainant Rs.1,69,050/- with interest @ 9% per annum till final payment within two months from the date of the impugned judgment and order and to pay as compensation an amount of Rs.5,000/- for causing harassment and mental agony to the Respondent/Complainant and also a litigation cost of Rs.1,000/- to the Respondent/Complainant within two months from the date of the impugned judgment and order, failing which, as ordered, a penalty @ Rs.50/- per day will be imposed upon the Appellants/O.Ps which will be deposited with the Consumer Welfare Fund.
The case was that the Respondent/Complainant, being attracted by an advertisement of the Appellants/O.Ps in daily newspaper about their offer of two year course of MBA at Salt Lake Campus had got himself admitted to the Appellant/O.Ps’ Institution on 09.07.2012. The Appellants/O.Ps who, at the time of admission, claimed their institute to be the best in the field, ultimately proved themselves to be far less than their advertised competency but before that realization, the Respondent/Complainant had already completed payment of admission fees and course fees in instalments, totalling to the tune of Rs.1,69,000/-.
The Respondent/Complainant ultimately could not come out successful in his quest for desired degree and came to realize the deficiency in rendering proper service to him by the Appellants/O.Ps was the cause of his failure and being discontented, the Respondent/Complainant filed the complaint case before the Ld. District Forum.
The Respondent/Complainant, as it revealed from the case record, did not attend the hearing on successive four occasions in spite of due service of notice and accordingly, the appeal was heard ex parte.
Heard Ld. Advocate appearing on behalf of the Appellants/O.Ps, who, submitted that the complaint was heard ex parte against the Appellants/O.Ps in the lower Forum.
As submitted, the Respondent/Complainant got himself admitted to the Institute knowing fully well that the Institute was an educational one. As contended, it was well settled by a catena of decisions of both the Hon’ble Apex Court and Hon’ble National Commission that the Educational Institutions were not service providers and accordingly, the students were not consumers. The Ld. Advocate, in this context, referred to specifically the decision of the Hon’ble Supreme Court in Civil Appeal No. 6807 of 2008 [Maharshi Dayanand University – vs. – Sujit Kaur] and submitted that the instant issue was beyond the purview of the C. P. Act.
As submitted further, the Appellants/O.Ps’ organization functioned the twin tasks of re-orienting education and research towards need of both public and private sector and established the link between National Economic Planning and the development of private enterprises in the country.
The Ld. Advocate continued to submit that the Ld. District Forum failed to appreciate that the issue being related to education matters, the Respondent/Complainant was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. As continued further, the Ld. District Forum’s order is thoroughly misconceived as the Appellants/O.Ps being not any service provider are immune to the Consumer Protection Act, 1986.
The Ld. Advocate went on to submit that the Appellants/O.Ps had collaboration with the famous University of South India called M. S. University which is the state owned university and with Mahatma Gandhi University since 2012 for their programme in Management through their Directorate of Distance Education.
The Respondent/Complainant, as continued, had definitely gone through the prospectus supplied to him at the time of admission and were aware of the fact that the admission/course fees were not refundable. Drawing attention to the letter dated 03.07.2012 of the Appellants/O.Ps’ organisaiton addressed to the Respondent/Complainant, the Ld. Advocate pointed out that the letter, in its footnote at page 2 of 2, had made it clear that the fees once paid (except caution deposits) are not refundable.
The Ld. Advocate concluded saying that the Respondent/Complainant who because of sheer inefficiency on his part could not come out successful, had filed the complaint with an ulterior motive of deriving unlawful enrichment.
Perused the papers on record.
The decision of the Hon’ble Supreme Court in Civil Appeal No. 6807 of 2008 [Maharshi Dayananda University – vs. – Surjit Kaur supra] that the Ld. Advocate for the Appellant/O.P. had referred to his argument did not appear to be squarely applicable as the issue related to the petition involved an ingredient of violation of statutory provision laid down under Article 17(b) of General Rules of Examination by pursuing two courses as regular candidate in the same academic session.
Moreover, a Seven Judge Bench of the Hon’ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board – vs. – Rajappa & Ors. reported in AIR 1978 SC 548 at page 583 (Pr.) 118 observed, “in the case of the University or an educational institution, the nature of activity is, ex-hypothesis, education which is a service to the community. Ergo, the University is an industry”.
That apart there were matters like Usmania Islamic Academy – vs. – State of Karnataka [Writ Petition (Civil) 350 of 1993] and Bupesh Khurana & Ors. – vs. – Biswa Buddha Parishad & Ors. reported in 2000 CTJ 801 (CP) where the Ho’ble Apex Court and Hon’ble National Commission observed that the educational Institutions were answerable before Consumer Fora and imparting education in educational institution was hiring service since fees were paid for the said services respectively.
The decision pronounced by the 7 Judges Bench of the Hon’ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board – vs. – Rajappa & Ors. (supra) being the decision of the largest Bench of the Hon’ble Supreme Court so far on this issue, the said decision superseded all other contrary views of smaller Bench of the Hon’ble Court.
Bowing before the said decision – the law of the land as of now – I am of the considered view that there was no wrong in adjudicating the instant case.
It was glaringly apparent that the Respondent/Complainant appeared the Board Examination but could not succeed to achieve his goal. His receiving of service from the Appellants/O.Ps should not be questioned in view of the above observation.
The Respondent/Complainant might have reasons for his being aggrieved for not doing fairly in the examination but, that discredit goes solely to him and not to anybody else. The refund, as prayed for, therefore, prima facie appears to be not tenable. More so, when the offer letter addressed to him by the Appellants/O.Ps organization left a clear and unequivocal indication that the fees, excepting caution deposits, were not refundable.
We, therefore, are of considered view that the Ld. District Forum had passed the order with material irregularity and the same is needed to be set aside.
Hence, ordered, that the appeal be and the same is allowed setting aside the impugned judgment and order and consequently, the complaint stands dismissed.
