Tamil Nadu

StateCommission

FA/138/2018

The Management of WMA Matriculation. Hec. Sec. School - Complainant(s)

Versus

T. Jameeel Basha - Opp.Party(s)

M/s. BFS Legal

27 Mar 2023

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble THIRU  JUSTICE R. SUBBIAH  :     PRESIDENT

                 THIRU R   VENKATESAPERUMAL         :      MEMBER

 

F.A. No. 138 of 2018

(Against the order passed in C.C. No.141 of 2012 dated 13.07.2017 on the file of the D.C.D.R.F., Chennnai (South).

 

Friday, 27^th day of March 2023

 

The Management of MWA Matriculation

  Higher Secondary School

Represented by its Secretary

No.5, Conran Smith Road

Gopalapuram, Royapettah

Chennai- 600 086.                                             .. Appellant/

                                                                        2^nd Opposite party

 

- Vs –

 

1.  I. Jameel Basha

     3^rd Floor, Clive Battery

     Platinum Printers Bldg.,

     No.8, North Beach Road

     Chennai – 600 001.                                       ..  1^st Respondent/

                                                                                Complainant

 

2.  The Director of School Education

     DPI Complex

     Nungambakkam

     Chennai – 600 006.                                       ..  2^nd Respondent/

                                                                            1^st Opposite Party

 

 Counsel for Appellant /2^nd Opposite Party    : M/s.BFS Legal

 

 Counsel for the 1^st Respondent/

Complainant      : 

       

2^nd Respondent/ 1^st Opposite party      : Party in person

 

                                               

This appeal came before us for final hearing on 16.12.2022, and on hearing the arguments of the counsel for the Appellant and on perusing the material records, this Commission made the following:-

O R D E R

R.SUBBIAH J., PRESIDENT

                This appeal has been filed under Section 15 of the Consumer Protection Act, 1986 as against the order dated 13.07.2017 passed by the District Consumer Disputes Redressal Forum, Chennai (South) in C.C. No.141 of 2012, allowing the complaint, in part. 

 

                2. The Appellant herein is the 2^nd Opposite Party and the 1^st Respondent is the Complainant.  The 2^nd respondent is the 1^st opposite party.  For the sake of convenience, the parties shall be referred to, as per their ranking before the District Forum.

        3. The factual background culminating in this appeal is as follows:   The case of the complainant is that he admitted his first daughter by name, J.Hidhaya Manal, in the 2^nd opposite party institution, in the year 2006.  His daughter completed her 12^th standard in the 2^nd opposite party school and appeared for the Public Examination held in March 2012.  In the results published through internet on 22.05.2012, the mark list against her Reg.No.831517 reflected as “0” in front of 5, instead of “0” after 5, namely, 50 marks which she actually obtained in the chemistry practical.  In the SSLC Public Examination, his daughter secured 93% of marks and she is one of the brightest and intelligent student in the School.  They were expecting more than 80% of marks in the 12^th standard public examination.  Whileso, in the mark list published through internet, against Chemistry Practical for 50 marks, it was shown as “05” marks, whereas after publication of results, the school authorities revealed that for the practical exams, in all the three subjects, she was awarded 50 marks each.  In total, she has secured 963 marks but because of the erroneous entry against one practical paper as 05 marks instead of actual 50 marks, she is deemed not to have passed, apart from abysmally reducing the grand total.  Hence, sensing the serious extraneous error and flaw that had crept in, which had resulted in great prejudice to one of the best performing students, the school authorities themselves immediately pretended to take up the issue with the 1^st opposite party for redressal of the just and genuine grievance, but in vain.  Left with no other option or alternative, the complainant approached the opposite parties in person, requesting them to amend and alter the mark statement of his daughter, by deleting “0” in front of 5 and inserting the same after 5, in order to make it 50 marks, which she actually obtained in the chemistry practical.  Since the opposite parties refused to entertain the complaint dated 23.05.2012 in person, the complainant sent the same by speed post.  But no action was taken.  The complainant also lodged a complaint to the higher authorities, which also ended in vain.  Hence, alleging deficiency of service on the part of the opposite parties, he has filed the present complaint seeking the following directions to the opposite parties:-

1. To pay a sum of Rs.5,00,000/- towards mental agony;
2. To pay a sum of Rs.5,00,000/- for deficiency of service;
3. To pay a sum of Rs.5,00,000/- towards loss of future earnings;
4. To pay a sum of Rs.4,00,000/- towards medical expenses; and
5. To pay the cost of the complaint.

        4.  The 1^st opposite party did not appear before the District Forum, hence they were set ex-parte. 

 

        5. Resisting the complaint, the 2^nd opposite party had filed a version stating that the daughter of the complainant appeared for Higher Secondary School Certificate Examination in March 2012, as a student of their school, with Registration No.831517.  On 22.05.2012 when the results were published, the complainant’s daughter saw that her Chemistry Practical marks in the internet has been misprinted as 005 instead of 050, while she had scored 50 as internal marks in the said chemistry practical, as per the records of the 2^nd opposite party.  Immediately, it was brought to the notice of the 2^nd opposite party by the complainant and the 2^nd opposite party on the very same date, forwarded a letter to the Joint Director of Higher Secondary Examination pointing out the said error and requesting to carry out the necessary corrections, at the earliest.  The wife of the complainant, who is the mother of the said student received the original uncorrected mark sheet on 30.05.2012 from the 2^nd opposite party, with the promise to return it when it is required.  Though the 2^nd opposite party followed the matter with the 1^st opposite party, they issued the corrected mark sheet only on 13.06.2012, since the 1^st opposite party was held up in their administrative work of revaluation/recounting.  On receipt of the same, the 2^nd opposite party handed over the corrected mark sheet to the daughter of the complainant, who acknowledged receipt of the same, by her letter dated 13.06.2012.  She had also informed the 2^nd opposite party that the original mark sheet issued earlier could not be returned to the 2^nd opposite party as the same was in the custody of her Advocate.  Further, immediately on receipt of the complaint, the 2^nd opposite party took up the issue with the Joint Director of Higher Secondary Examination regarding the misprint of practical marks in chemistry paper of the complainant’s daughter and as soon as the corrected mark sheet was received, they handed over the same to the said student.  Hence, the allegation made against the 2^nd opposite party as though there is negligence on their part, is not at all sustainable.   In fact, all the students in the school had scored 50 marks in the internal practicals and therefore it is false and misleading by the complainant, to allege that the school authorities had pretended to take up the issue with the 1^st opposite party, sensing the serious ex facie error and flaw, which had resulted in great prejudice to one of the best performing students.  Hence, absolutely there is no deficiency of service on the part of the 2^nd opposite party and thus sought for dismissal of the complaint. 

 

        6. In order to prove the case, on the side of the complainant, along with proof affidavit 9 documents were filed and the same were marked as Ex.A1 to A9.  On the side of the 2^nd  opposite party, along with proof affidavit 1 document was filed and the same was marked as Ex.B1.

 

        7.  The District Forum, after analyzing the entire evidence and records, had observed that while declaring the result and issuing the mark sheet, the mark scored by complainant’s daughter was wrongly printed as ‘5’ instead of ‘50’ by the computer.  Immediately after notice of such wrong entry, the 2^nd opposite party had sent a letter for taking suitable steps by the 1^st opposite party.   But, the 1^st opposite party, had issued the corrected mark sheet only after 21 days, which would have caused mental agony to the complainant and his daughter.  Hence, it has come to the conclusion that there is deficiency of service on the part of the opposite parties and directed both the opposite parties, jointly and severally, to pay a sum of Rs.25,000/- towards mental agony and Rs.5000/- as costs.  Aggrieved over the same, the present appeal has been filed by the 2^nd opposite party.

 

        8.  There is no representation for the 1^st respondent/ complainant. 

 

        9.  Keeping in mind the submissions made by the counsel for the appellant/ 2^nd opposite party, we have carefully gone through the entire material available on record. 

 

        10.  It is the main allegation of the complainant that his daughter had secured 050 marks in the Chemistry Practical in her Class XII Public Examination held in March 2012.  But her marks were erroneously printed as ‘005’ instead of ‘050’ in the mark sheet.  Therefore the future prospects of his daughter have been severely hampered. 

 

        11.  Whereas, it is the contention of the counsel for the appellant/ 2^nd opposite party that the subject matter of the complaint will not fall within the purview of Consumer Protection Act.  The Consumer Protection Act has been enacted to provide a forum to protect the interests of consumers in case of any deficiency in the goods purchased or services availed.  Therefore, in order to sustain a complaint under the Act, it is pertinent that the complainant should come within the purview of the definition of a Consumer, as defined under the Act.  He has to satisfy the requirement of either Section 2(d) or 2(o) of the Act, to show that he is having locus standi to file a complaint before the Consumer Forum.  In this regard, he has also relied on the following judgements of the Hon’ble Supreme Court:

1. P.T. Koshy & Ors. Vs. Ellen Charitable Trust & Ors., [MANU/SC/1324/2012] ;
2. Anupama College of Engineering Vs. Gulshan Kumar & Ors., [MANU/SCOR/83254/2017] ; and
3. Prof. K.K. Ramachandran Director/ Vice Principal G.R.D College of Science, Coimbatore Vs. S. Krishnaswamy & anr., in Civil Appeal No.4133 of    2013 ;

Therefore, a reading of the above referred judgments makes it clear that the appellant/2^nd opposite party is not discharging any service as defined under Section 2(o) of the Act.  In view of the same, imparting of education by Educational Institutions would not qualify as a service under the Act and also the student receiving such education will not fall within the purview of Consumer, as defined under the Act.  Thus, he sought to set aside the order of the District Forum. 

 

                12.  It is the case of the complainant that his daughter appeared for XII Public Examination as a student of the 2^nd opposite party school.  When the results were published, it was noticed by her that the chemistry practical mark was printed as ‘005’ instead of ‘050’. Hence, the complainant approached the opposite parties to rectify the same and issue a corrected mark sheet.  The opposite parties took 21 days time to correct the mark sheet, which had resulted in hampering the future of the complainant’s daughter. Therefore, he has come forward with the complaint.  But, according to the 2^nd opposite party the issue involved in this complaint will not fall within the purview of Consumer Protection Act.  In order to sustain the complaint under the Act, we have to see whether the complainant falls under the definition of a Consumer, as defined under Section 2(d) of the Act.      

“Section 2(d) “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 purpose.”

 

Therefore, it is clear to have any locus standi to file a complaint, the complainant ought to have satisfied the requirement of Section 2(d) of the Act.  But, as contended by the counsel for the 2^nd opposite party, in the instant case, the complainant has neither purchased any goods from the 2^nd opposite party nor has he availed any services from the 2^nd opposite party.  In this regard, it would be appropriate to rely upon some of the judgments referred by the 2^nd opposite party, to have a fitting answer. 

“The Hon'ble Supreme Court in P.T.Koshy and Others Vs. Ellen Charitable Trust and Others in Special Leave to Appeal (Civil) No.22532 of 2012, dated 09.08.2012, has held as follows:

"1. In view of the judgment of this Court in Maharshi Dayanand University Vs. Surjeet Kaur MANU/SC/0485/ 2010: 2010 (11) SCC 159: 2010(2) Code of Civil Procedure 696 S.C. 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 Civil Appeal No.6807 of 2008 dated 19.07.2010, in the case of Maharshi Dayanand University Vs. Surjeet Kaur, the Hon’ble Supreme Court has observed that,

        “ 19. The third and the most important issue that deserves to be answered is the competence of the District Forum and the hierarchy of the Tribunals constituted under the Act 1986 to entertain such a complaint. In our opinion, this issue is no longer res integra and has been extensively discussed by a recent judgment of this Court in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha, (2009) 8 SCC 483, where it has been held as under :-

        "11. The Board is a statutory authority established under the Bihar School Examination Board Act, 1952. The function of the Board is to conduct school examinations. This statutory function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative.

 

        12.When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services" to any candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination.

        13. The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi-commercial activity). But the Act does not intend to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer- scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service-provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a `service provider' and a student who takes an examination is not a `consumer' and consequently, complaint under the Act will not be maintainable against the Board."

 

Therefore, the dictum laid down in the above judgments would clearly show that imparting of education by Educational Institutions would not qualify as a service under the Act and also the student receiving such education will not fall within the purview of Consumer, as defined under the Act.  Hence, we are of the opinion that the complaint is not maintainable before the Consumer Forum.  But, the District Forum without considering all these aspects had allowed the complaint and hence the order of the District Forum is liable to be set aside. 

 

                12.  Therefore, we set aside the order dated 13.07.2017 passed by the District Consumer Disputes Redressal Forum, Chennai (South) in C.C. No.141 of 2012 and the complaint is dismissed. Consequently, the Appeal is allowed.

 

 

 

R   VENKATESAPERUMAL                                                                                              R.SUBBIAH

         MEMBER                                                                                                                    PRESIDENT

 

 

Index :  Yes/ No

AVR/SCDRC/Chennai/Orders/March/2023