Chandigarh

StateCommission

A/38/2018

Shivam Malhotra - Complainant(s)

Versus

The Managing Director OXL School of Multimedia - Opp.Party(s)

Shailendra Sharma Adv.

01 Nov 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	38 of 2018
Date of Institution	:	14.03.2018
Date of Decision	:	01.11.2018

 

Shivam Malhotra, Aged 24 years son of Sh. Rakesh Malhotra R/o H.No.599/1, Street No.5, Gurunanak Nagar, Patiala (Punjab).

…….Appellant.

Versus

 

1. The Managing Director, OXL School of Multimedia, Corporate Office: OXL Films, D-I-502 Shardha Nagar, Malad (W), Mumbai (Maharashtra).
2. The Director, OXL School of Multimedia, C/o ORANE Institute of Beauty & Wellness, SCO 232-234, Level III, Sector 34 A, Chandigarh.

                                                                                        ...Respondents.

 

Argued by:Sh. Shailendra Sharma, Advocate for the appellant.

                   Sh. Pankaj Chandgothia, Advocate for the respondents.

 

Appeal No.	:	56 of 2018
Date of Institution	:	27.03.2018
Date of Decision	:	01.11.2018

 

1. The Managing Director, OXL School of Multimedia, Corporate Office: OXL Films, D-I-502 Shardha Nagar, Malad (W), Mumbai (Maharashtra).
2. OXL School of Multimedia, through its authorized signatory Deepak Kumar, Office at SCO 232,233, 234, Level 3, Sector 34-A, Chandigarh.

…….Appellants.

Versus

 

Shivam Malhotra S/o Sh. Rakesh Malhotra R/o H.No.599/1, Street No.5, Gurunanak Nagar, Patiala (Punjab).

                                                                                        ...Respondent.

 

 

Argued by:Sh. Pankaj Chandgothia, Advocate for the appellants.

                   Sh. Shailendra Sharma, Advocate for the respondent.

 

Appeals under Section 15 of the Consumer Protection   Act, 1986 against   order dated 08.02.2018 passed by District   Consumer Disputes Redressal Forum-I, U.T. Chandigarh   in Consumer Complaint No.661/2016.

 

 

Appeal No.	:	76 of 2018
Date of Institution	:	18.04.2018
Date of Decision	:	01.11.2018

 

1. OXL Group through its Managing Director, SCO No.364-65-66, Level-IV, Sector 34-A, Chandigarh.
2. Kuljinder Singh Sidhu, Director, OXL Group, SCO No.364-65-66, Level-IV, Sector 34-A, Chandigarh.
3. Dinesh Sood,  Director, OXL Group, SCO No.364-65-66, Level-IV, Sector 34-A, Chandigarh.
4. Ashwani Kumar, Vice President, OXL Group, SCO No.364-65-66, Level-IV, Sector 34-A, Chandigarh.
5. Apwinder Singh, Regional Director, OXL Group, SCO No.364-65-66, Level-IV, Sector 34-A, Chandigarh.
6. OXL School of Multimedia, A Unit of OXL Films, through its Managing Director, D1-502, Shardha Nagar, Malad, Mumbai (Maharashtra).
7. OXL School of Multimedia, A Unit of OXL Films, through its Regional Director, SCO No.364-65-66, Level-IV, Sector 34-A, Chandigarh.

…….Appellants.

Versus

 

Mahesh Kumar S/o Sh. Mohinder Sigh, R/o H.No.37, Khuda Ali Sher, U.T., Chandigarh.

                                                                                        ...Respondent.

 

Argued by:Sh. Pankaj Chandgothia, Advocate for the appellants.

                   Sh. Gaurav Tangri, Advocate for the respondent.

 

Appeal under Section 15 of the Consumer Protection   Act, 1986 against  order dated 06.03.2018 passed by District   Consumer Disputes Redressal Forum-II, U.T. Chandigarh   in Consumer Complaint No.515/2017.

 

 BEFORE:  JUSTICE JASBIR SINGH (RETD.), PRESIDENT.                                  MRS. PADMA PANDEY, MEMBER

                 MR. RAJESH K. ARYA, MEMBER.

 

PER  RAJESH  K.  ARYA, MEMBER

                   Vide this common order, we propose to dispose of aforesaid three appeals bearing Nos.38 of 2018, 56 of 2018 and 76 of 2018.

2.                It may be stated here that appeal bearing Nos.38 of 2018 has been filed by the complainant (Shivam Malhotra) and appeal bearing No.56 of 2018 has been filed by the opposite parties - OXL School of Multimedia) & Anr. against order dated 08.02.2018 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’ only), vide  which, the complaint No.661 of 2016 filed by the complainant was partly allowed in the following manner:-

“10.  In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. The OPs are directed as under:-

1. To immediately refund the entire fee i.e. Rs.2,90,000/- to the complainant.
2. To pay Rs.50,000/- to the complainant as compensation for mental agony and harassment caused to him;
3. To pay to the complainant Rs.10,000/- as costs of litigation.

11.        This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.

3.             However, appeal bearing No.76 of 2018, has been filed by the opposite parties (OXL School of Multimedia & Ors.) against the order passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short ‘the Forum’), vide which, Consumer Complaint bearing No.515 of 2017 filed by the complainant (Mahesh Kumar) was allowed and the opposite parties were directed to refund an amount of Rs.1,50,000/- alongwith interest @9% p.a. from the date of deposits till realization; pay Rs.50,000/- as compensation for mental agony & physical harassment and Rs.8,000/- towards litigation expenses. Order was to be complied within 30 days from the date of receipt of its certified copy, failing which, the opposite parties were to pay additional compensatory cost of Rs.20,000/- to the complainant.  

4.             To dictate order, facts are being culled from Consumer Complaint bearing No.661 of 2016 titled as ‘Shivam Malhotra Vs. The Managing Director, OXL School of Multimedia & Anr.’.

5.                Before the Forum, it was case of the complainant (Sh. Shivam Malhotra) that lured by the advertisement given by the opposite parties regarding OXL Triple Advantage Programme, through which B.Sc. in Multimedia and PGD in Multimedia and other Diploma & Certificate courses, were being offered by them, the complainant approached Opposite Party No.2 in July 2013. He took admission in three year degree course in B.Sc. Multimedia in July 2013. The total course fee was Rs.2,70,000/-, which was to be paid in installments and till November, 2015, the complainant had paid Rs.2,90,000/-. However, the opposite parties failed to conduct any annual examination and when pressure from students increased, Opposite Party No.2 handed over one printed certificate pertaining to Diploma in Multimedia in December 2015 whereas the complainant had taken admission in B.Sc. Multimedia. In the month of December, 2015, Opposite Party No.2 closed its institute and shifted to another place where it was running another institute in the name and style of c/o ORANE Institute of Beauty & Wellness, SCO 232-234, Level III, Sector 34A, Chandigarh. On approaching Opposite Party No.2, it was assured to the complainant that the degree shall be awarded and examination shall be taken but at the same time, it stopped taking classes and closed the institute.  In April 2016, the complainant met the staff of Opposite Party No.2 and demanded refund of the fee charged, but to no avail. Hence, a consumer complaint was filed by the complainant before the Forum. 

6.                The opposite parties, in their written statement, while admitting the factual matrix of the case, stated that various degree courses were running with the help of National Coordinators, Mindtrek Edu Tech Pvt. Ltd., who had MoU with Karnataka State Open University (KSOU). It was further stated that the responsibility of the opposite parties was only to complete various courses and the degree was to be issued by KSOU to their National Coordinator (Mindtrek) Gurgaon, which was to issue the same to the opposite parties. It was further stated that on 21.9.2015, KSOU had issued one notification whereby it withdrew all the programmes offered by the collaborative institutions and their study centres of KSOU outside and within the territory of Karnataka State. It was further stated that the opposite parties issued a legal notice dated 23.1.2016 to the Coordinator (Mindtrek) to provide the pending degrees and also to KSOU on 3.2.2016 and 9.3.2016.  It was further stated that the opposite parties were trying to get pending degrees of students directly from KSOU. It was further stated that the opposite parties had also filed a criminal complaint dated 2.9.2016 against Coordinator (Mindtrek Edutech Pvt. Ltd.) before the Senior Superintendent of Police, Chandigarh, which is under investigation and at final stage.  However, the allegation of any fraud done by the opposite parties was specifically denied. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite parties nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

7.                The complainant filed replication, wherein he reiterated all the averments, contained in the complaint and controverted those, contained in written version of the Opposite Parties.

8.                All the parties led evidence. The Forum, on analysis of pleadings of the parties, documents on record, and the arguments addressed, partly allowed the complaint. When forming above opinion, the Forum, in Paras 8 and 9, observed as under;

“8.                   After going through the various documents on record, it is evident from Annexure C-2, admission form, that the complainant took admission in B.Sc. Multimedia course for three years and kept on paying the regular fee to the OPs.  Admittedly, the complainant could not complete the B.Sc. Multimedia rather due to withdrawal of the programme/course offered by the OPs, they issued certificate pertaining to Diploma in Multimedia in December 2015 (Annexure C-3). Importantly, the complainant never applied for this diploma in Multimedia and rather took admission in B.Sc. Multimedia. Annexure C-3 is not a certificate of any university but has been issued by the Institute of the OPs only.  Admittedly, the OPs closed their institute from the existing office where the complainant was used to attending the classes. Despite this fact, the OPs kept on assuring the complainant that examination will be conducted and degree of B.Sc. Multimedia shall be awarded to him, but, contrary to the same, the institute was closed and the classes were stopped abruptly. 

9.        We feel that the act of the OPs by charging the required fee for continuous two years but non-conducting the final examination and so non-issuing the degree certificate in which course the complainant got admission, ruined the future of the complainant. The negligent act of the OPs wasted three precious years of the complainant with no fruitful outcome. Evidently, the complainant stands nowhere and even if he has to take admission today in some other course, he will have to explain the gap period of approximately three years from the date of passing his 10+2 examination.  It was for the OPs to assure themselves before hand before charging fee from innocent students like the complainant and they cannot be allowed to play with the careers of the students. Hence, the act of the OPs for non providing proper services proves deficiency in service on their part which certainly caused mental and physical harassment to the complainant..” 

9.                We have heard the Counsel for the parties and have gone through the evidence and record of the case.

10.              Challenge to the order dated 08.02.2018 passed by the Forum is laid by the opposite parties on the ground that due to decision of UGC for discontinuing long distance education and notification of KSOU (Karnataka State Open University), the degree course of the complainant remained pending and he was not able to give further examination. It was stated that after notification dated 21.09.2015, the opposite parties issued legal notices to KSOU for not providing degrees to students of various courses. It was further stated that vide public notice & newspaper publication dated 15.04.2016, KOSU clearly mentioned that it would issue a separate notification, after getting continuation of recognition from UGC and therefore, the students, parents and other stake holders were requested to wait till such notification is issued by the University. It was further stated that the dispute between UGC and KSOU is still pending and KSOU is not providing any degrees to all education institutions within or outside territory of Karnataka till date. In their appeal, the opposite parties prayed that order be modified that the amount towards diploma course, which the complainant had already completed from the appellant – institute and for which, he also received diploma certificate, be deducted from the awarded amount i.e. Rs.1,80,000/- and the remaining amount be paid to the complainant.

11.           On the other hand, the complainant, in his appeal bearing No.38 of 2018, has prayed for enhancement of compensation to the tune of Rs.15 Lakhs.

12.              Reiterating the stand of the opposite parties, Sh. Pankaj Chandgothia, Advocate, Counsel for the opposite parties (appellants in appeal bearing Nos.56 of 2018 and 76 of 2018) argued that in view of ratio of judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi passed in case titled ‘Regional Institute of Cooperative Management. Vs. Nisha’, Revision Petition No.657-658 of 2014, decided on 02.05.2014, the complainant does not fall within the definition of consumer. Placing reliance on the aforesaid judgment, he argued that education is not a commodity and educational institutions are not providing any kind of service, therefore, in the matter of admission, fees, etc., there cannot be a question of deficiency of service and such matters cannot be entertained by the Consumer Fora under Consumer Protection Act, 1986.

13.              It may be stated here that similar issue came before this Commission in First Appeal No.219 of 2018 titled ‘Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial’, which was dismissed vide order dated 23.08.2018. In the said appeal, the star argument of the Counsel for the appellant, was that the opposite parties, being an educational institute, complaint against them cannot be entertained by a Consumer Fora. To base the argument raised, reliance was placed on two judgments of the Hon’ble Supreme Court of India titled Bihar School Education Board Vs. Suresh Prasad Sinha, IV (2009) CPJ 34 (SC) and Maharishi Dayanand University Vs. Surjeet Kaur, Civil Appeal No.680 of 2008 decided on 19.07.2010.

14.              After thoroughly discussing the import of aforesaid two judgments i.e. Bihar School Education Board Vs. Suresh Prasad Sinha and Maharishi Dayanand University Vs. Surjeet Kaur (supra), this Commission in Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial’s (supra), in Para 10 to 12, inter-alia, held as under:-

“10.        It was specifically said that the Board was not carrying any commercial, professional or service oriented activity and as such, consumer complaint was not maintainable, in such like cases before the Consumer Fora. However, it was also observed in later part of the judgment that ratio of a judgment is not mechanically to be applied to other case, without analysing the context in which observations were made by the Court in a given judgment. Same was the situation in the case of Maharshi Dayanand University (supra). In that case also, there was a dispute between the Authorities and student qua grant of B.Ed. degree to her. By taking note of observations made by the Supreme Court in the case of Bihar School Examination Board (Supra) it was said that Statutory Authority when performing statutory functions cannot be termed as service provider/industry.

11.        In the present case, as has been noted in earlier part of this order, the appellants have no statutory regulations/backing. It is a private Institute, not discharging any social obligation. In such like cases, we are of the considered opinion that no benefit of ratio of the judgments cited above, can be extended in favour of the appellants.

12.        The case of the respondent is also supported by the ratio of judgment passed by the Hon’ble Supreme Court of India in Buddhist Mission Dental College & Hospital, Versus Bhupesh Khurana & Others, Civil Appeal No.1135 of 2001, decided on February 13, 2009, wherein, the findings given by the National Commission, to the effect that imparting of education by an educational institution for consideration falls within the ambit of `service' as defined in the Consumer Protection Act, were upheld. Relevant part of the said judgment reads thus:-

“The Commission also held that this Court in Bangalore Water Supply and Sewerage Board (supra) held as under: [para 118 at page 583]:-

"...In the case of the University or an educational institution, the nature of the activity is, ex hypothesi, education which is a service to the community. Ergo, the University is an industry..."

The Commission further held as under:

"Imparting of education by an educational institution for consideration falls within the ambit of `service' as defined in the Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The complainants had hired the services of the respondent for consideration so they are consumers as defined in the Consumer Protection Act."

33. The Commission rightly came to the conclusion that this was a case of total misrepresentation on behalf of the institute which tantamounts to unfair trade practice. The respondents were admitted to the BDS Course for receiving education for consideration by the appellant college which was neither affiliated nor recognized for imparting education. This clearly falls within the purview of deficiency as defined in the Consumer Protection Act, which defines the `deficiency' as under:

"`Deficiency' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

34. Therefore, the Commission rightly held that there was deficiency in service on the part of the institute and the claimants respondents are entitled to claim the relief as prayed in the plaint. The appeal filed by the appellant is devoid of any merit and deserves to be dismissed.”

13.        Not only as above, in the case of Krishan Mohan Goyal Vs. St.Mary’s Academy and Anr., Revision Petition No.3144 of 2016, the National Commission has also held that in some aspects of education activities, the Consumer Fora is competent to take action against the erring Educational Institutes such like the opposite parties, adopting unfair trade practices and also not rendering proper service. Same is the ratio of the judgment decided by the National Commission, in Jaipreet Singh Kaushal Vs. FIIT JEE Limited and another, Revision Petition No.918 of 2015 decided on 14.11.2017, wherein, it was held that the Institute is not justified in charging fee, for the entire course in one go…………”

15.              It may be stated here that in the instant case, the educational institutions, in question, i.e. OXL School of Multimedia are not statutory bodies and are mere business establishments, imparting educational services to the students by charging hefty fees. Therefore, in view of the ratio of judgments, referred to above, the argument raised by the Counsel for the opposite parties, that the complainant does not fall within the definition of consumer and that education is not a commodity and educational institutions are not providing any kind of service, therefore, in the matter of admission, fees, etc., there cannot be a question of deficiency of service and such matters cannot be entertained by the Consumer Fora under Consumer Protection Act, 1986, is bereft of merit and stands rejected.

16.              On merits also, the appellants/opposite parties lost their case as the complainant could not complete the B.Sc. Multimedia Course as his three precious years got wasted because of withdrawal of the said Course and rather, the appellants/opposite parties issued certificate pertaining to Diploma in Multimedia in December 2015. However, the truth was that the complainant had taken admission in B.Sc. Multimedia course for three years, which dream of his got never completed. Despite charging fee for continuous two years, the appellants/opposite parties did not conduct the final examination and also did not issue the requisite degree certificate qua the course opted by the complainant and thus, played with his future. The Forum, in its order, in Para 8 & 9, rightly, held as under:-

“8.     After going through the various documents on record, it is evident from Annexure C-2, admission form, that the complainant took admission in B.Sc. Multimedia course for three years and kept on paying the regular fee to the OPs.  Admittedly, the complainant could not complete the B.Sc. Multimedia rather due to withdrawal of the programme/course offered by the OPs, they issued certificate pertaining to Diploma in Multimedia in December 2015 (Annexure C-3). Importantly, the complainant never applied for this diploma in Multimedia and rather took admission in B.Sc. Multimedia. Annexure C-3 is not a certificate of any university but has been issued by the Institute of the OPs only.  Admittedly, the OPs closed their institute from the existing office where the complainant was used to attending the classes. Despite this fact, the OPs kept on assuring the complainant that examination will be conducted and degree of B.Sc. Multimedia shall be awarded to him, but, contrary to the same, the institute was closed and the classes were stopped abruptly. 

9.        We feel that the act of the OPs by charging the required fee for continuous two years but non-conducting the final examination and so non-issuing the degree certificate in which course the complainant got admission, ruined the future of the complainant. The negligent act of the OPs wasted three precious years of the complainant with no fruitful outcome. Evidently, the complainant stands nowhere and even if he has to take admission today in some other course, he will have to explain the gap period of approximately three years from the date of passing his 10+2 examination.  It was for the OPs to assure themselves before hand before charging fee from innocent students like the complainant and they cannot be allowed to play with the careers of the students. Hence, the act of the OPs for non providing proper services proves deficiency in service on their part which certainly caused mental and physical harassment to the complainant.”

                   In view of above, the appellants/opposite parties are not entitled to any relief and, as such, their appeals bearing Nos.56 of 2018 and 76 of 2018, against the impugned order, deserve to be dismissed straightaway.

17.              On the other hand, the complainant, in his appeal bearing No.38 of 2018, has sought enhancement of compensation awarded by the Forum on the ground that due to above deficiency in rendering service and unfair trade practice on the part of the opposite parties, three academic years of his life got ruined and further even if the complainant had to take admission somewhere else, he would have to explain the gap period of these three years from the date of passing his 10+2 examination. It was argued that the compensation awarded is on the lower side and the same be adequately enhanced.

18.              In view of above discussion and as already held in the preceding paras that three precious academic years of a young aspiring student/complainant got ruined by the act and conduct of the opposite parties, on account of which, he also suffered immense mental agony and harassment. In our considered opinion, the compensation to the tune of Rs.50,000/- awarded by the Forum, is on the lower side. We, therefore, enhance the same to Rs.3,00,000/- (Rupees Three Lakhs Only). To this extent only, the impugned order needs to be modified.

19.              No other point was argued by the Counsel for the parties.

20.              For the reasons recorded above, appeal bearing Nos.56 of 2018 & 76 of 2018, being devoid of any merit, are dismissed, with no order as to costs. Impugned order dated 06.03.2018 passed by District Forum-II in complaint bearing No.515 of 2017 is upheld.

                   However, the appeal filed by the complainant (Shivam Malhotra) bearing No.38 of 2018 is partly accepted and the impugned order dated 08.02.2018 passed by District Forum-I is modified as under:-

1. The opposite parties are directed to refund the entire fee i.e. Rs.2,90,000/- to the complainant;
2. The opposite parties are further directed to pay an amount of Rs.3,00,000/- (Rupees Three Lakhs Only), instead of Rs.50,000/- awarded by the Forum, to the complainant as compensation for mental agony and harassment caused to him;
3. The opposite parties are further directed to pay an amount of Rs.10,000/- to the complainant, as costs of litigation;
4. This order be complied with by the opposite parties within a period of 30 days from the date of receipt of its certified copy, failing which, the opposite parties shall make payment of the amounts mentioned at Sr. No.(i) & (ii) above,  with interest @12% p.a. (simple) from the date of this order till realization, apart from compliance of direction at Sr. No.(iii) above.

21.              Certified copies of the order be sent to the parties free of charge.

22.              File be consigned to the Record Room after completion.

Pronounced

01.11.2018.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(PADMA PANDEY)

MEMBER

 

 

 

(RAJESH K. ARYA)

MEMBER

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