(Per: Justice B.C. Kandpal, President):
This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 28.09.2011 passed by the District Forum, Nainital in consumer complaint No. 30 of 2010, whereby the District Forum has partly allowed the consumer complaint and directed the appellants – opposite parties to pay compensation of Rs. 5,000/- to the respondent – complainant towards mental and financial agony together with Rs. 3,000/- towards litigation expenses within a period of one month from the date of the order, failing which the complainant was also held entitled to interest @9% p.a. pendente lite and future on the above amount.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant was a student of I.P.S.D.R. Microsoft I.T. Academy, which was affiliated with Kumaun University. At the time of admission, the complainant was assured of placement and on the basis of the said assurance, the complainant had taken admission in one year computer course on 25.07.2008. It is alleged that the course was started belatedly and before the examination of the first semester, the fee of second semester was charged. The first semester examinations scheduled to be held in December, 2008, were held in March, 2009. The second semester was due to end in April, 2009, but on account of negligence of the opposite parties, it ended in September, 2009 and valuable time of the complainant was lost on account of the negligence of the opposite parties. The complainant requested the opposite parties to declare the result, but to no avail. Thereafter alleging deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Nainital.
3. The opposite party No. 1 – Institute did not appear before the District Forum and, as such, vide order dated 12.04.2010, the District Forum proceeded the consumer complaint ex-parte against the opposite party No. 1. The opposite party No. 2 – University filed written statement before the District Forum and pleaded that the complainant was a student of opposite party No. 1 – Institute in the academic session 2008-09 and his course had ended in 2009; that the examination dates shown in the prospectus are not final because on account of unavoidable reasons, the same have to be changed; that on account of strike of employees, there was delay in first semester examination; that the result was declared in January, 2010 and that there is no deficiency in service on their part.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 28.09.2011 in the above manner. Aggrieved by the said order, the appellants have filed the present appeal.
5. None appeared on behalf of respondent – complainant. We have heard the learned counsel for the appellants and have also perused the record.
6. The case of the complainant is that his course was delayed by the opposite parties and there was delay in completion of his course and declaration of result on account of the negligence of the opposite parties. The University has stated that the delay in completion of the course was caused due to unavoidable reasons which were beyond the control. It has come on record that the diploma in respect of the course in question has already been issued to the complainant.
7. The first question to be decided is whether there is relationship of consumer and service provider between the complainant and the University. The Hon’ble National Commission in the case of Bihar School Examination Board and others Vs. Kundan Kumar and another; I (2015) CPR 97 (NC), has held that when examination board conducts an examination in discharge of its statutory functions involving holding periodical examination, evaluating the answer scripts, declaring results and issuing certificates, then there is no relationship of consumer and service provider between the parties. In the said decision, the Hon’ble National Commission has placed reliance on the decision of the Hon’ble Apex Court rendered in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha; VII (2009) SLT 109 = IV (2009) CPJ 34 (SC), in which it was observed as under:
“10. 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. 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 competent vis-à-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 second 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.
11. 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 intended 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.”
8. In view of the above legal position, the consumer complaint filed by the complainant was not at all maintainable against the University and the District Forum has not considered this aspect of the matter.
9. So far as the liability of the appellant No. 2 – Institute (opposite party No. 1 before the District Forum) is concerned, there is no dispute with regard to the fact that there was delay in completion of the course of the complainant and also in declaration of result and issuance of diploma, for which the complainant had to suffer. As such, the appellant No. 2 is liable to compensate the complainant for the loss suffered by him. So far as the quantum is concerned, the District Forum has awarded the just amount and the same can not be said to be on the higher side. Thus, the impugned order passed by the District Forum is fit to be confirmed against the appellant No. 2 – Institute and the appellant No. 1 – University is to be absolved from paying any amount to the complainant.
10. For the reasons aforesaid, the appeal is disposed of in the terms that the order dated 28.09.2011 passed by the District Forum in so far as against the appellant No. 1 – University is set aside and consumer complaint No. 30 of 2010 is dismissed against the University. The appellant No. 2 – Institute is held liable to pay the entire amount awarded by the District Forum per order dated 28.09.2011 to the complainant. The costs of the appeal made easy.
(D.K. TYAGI) (JUSTICE B.C. KANDPAL)
K
