By: Smt. E.Ayishakutty, Member, (In-Charge of President)

The complainant's daughter Hiba Abdulla was a student in 1^st opposite party school from 9^th std to 10^th std. She appeared for public examination in March 2010 and was declared passed. Complainant wished to admit his daughter for plus one and plus two classes in another school and applied for her transfer certificate and connected documents. Complainant alleges that first opposite party demanded to pay the fees for plus one and plus two classes and refused to issued the TC and connected documents without paying the fees. He submits that 1^st opposite party compelled the complainant to

continue her education in 1^st opposite party school itself and demanded the price of the plus one and plus two text books and fees for these classes if the complainant wishes to get the transfer certificate of the student. Opposite party No1 told to the complainant that an undertaking has been given by the parents at the time of admission that fees for the classes up to 12^th standard would be paid in case the student leaves the school before completing the 12^th std. It is alleged that opposite party No 1 has forged documents using the signed paper given by complainant at the time of admission. Complainant submits that he has not given any assurance to opposite party No1 that the child would study in the same school till 12^th std. On enquiries complainant came to know that opposite party has demanded such fees from several other parents who applied for TC after completing 10^th std. Complainant sent written request for TC and other connected documents. But opposite party refused to issue the same. Hence he filed this complaint before the Forum alleging deficiency of service on the part of opposite party.

Complainant requested to direct opposite party to issue TC, Mark list, Pass Certificate, Conduct Certificate and migration certificate to the complainants daughter Hiba Abdulla. He also requested to direct opposite party to pay Rs. 3 lakhs to him for the mental agony and financial loss sustained to him due to the act of opposite party No1.

Opposite party No1 filed version. He admits that complainants daughter Hiba Abdulla was admitted in class 9^th and she studied in the opposite party No1 school till the completion of 10^th standard and passed the public examination. Opposite party denied the averments of complainant that they demanded plus one and plus two fees for obtaining TC and compelled to study the opposite party school for the same opposite party No1 submits that complainant had not filed proper application for

TC according to school rules. At the time admission complainant had given an undertaking signed by him. In this undertaking they agreed to educate the child in the opposite party school up to 12^th standard. It was also undertaken that in case the student leaves the school before completion of 12^th standard the entire fees up to 12^th standard would be paid. This condition is included in the prospectus of the school. Complainant had paid a total Rs. 16650 as fees to the opposite party No1 as fees to 9^th and 10^th standard. The rules stated in the prospectus doesnot allow to issue TC without paying fees for plus one and plus two classes. The under taking given by the complainant is not a forged or concocted documents. He submitted that complainant has paid all fees up to 10^th standard but he is bound to comply the rule in prospectus and the undertaking given. If the complainant is willing to pay the fees up to 12^th standard opposite party is ready to issue the TC and connected documents. If one student leaves after 10 standard it will cause much financial loss to the institution and the country. This condition of payment of fees is not applicable to classes from LKG to 7^th standard. Uniform, books and free educations are given deserving students. The school is run according to the conditions stated in the prospectus. Opposite party has refused to issue TC on valid ground. There fore the complaint is liable to be dismissed with cost of opposite party. Notice served to second opposite party but he is not appeared name called absent set exparte. Second opposite party is the Council / Board of education. No allegation of deficiency has been alleged against second opposite party. He is impleaded to inform the dispute pending between complainant and first opposite party.

Complainant filed affidavit restating his condentions in the complaint as well as the circumstances that arose after filing of the case. Ext. A1 to A7 . marked on his side. Opposite party filed counter affidavit Ext. B1 to B7 marked. No oral evidence adduced both sides.

Points to decide:-

(i) Whether complainant is consumer under consumer protection Act 1986.?

(ii) Whether opposite party No1 is deficient in his service?

(iii) If so what is the relief and cost?.

Along with the complaint the complainant filed IA 236/11 praying for interim order to direct opposite party to give the transfer certificate and related documents as the child has to join another school. Complainant submitted that opposite party No1 denied the TC and related documents since the complainant is not ready to pay the fees up to 12the standard as per the prospectus of the school. Opposite party No1 has no case that complainant has not paid the fees up to 10the standard. The IA for interim order allowed on 27/9/2011 and opposite party was directed to produce the TC and related documents before the Forum on 28/9/2011. But the order of the Forum has not been complied by 1^st opposite party till this day. Instead of complying the order, 1^st opposite party filed a revision petition before the Honorable State Consumer Dispute Redressal Commission but it was dismissed. Then he filed revision petition again before the Honorable National Consumer Dispute Redressal Commission RP No 302/2012. The Honorable National Commission vide order dated 2/3/2012 confirmed the interim order passed by this Forum. Without complying the interim order opposite party No1 filed another IA by challenging the maintainability of this case before the Forum. This IA was dismissed with vide separate order. First opposite party appeared in person and argued the matter. He laid thrust on the decision rendered in Bihar School Examination Board Vs Suresh Prasad Sinha 2009 CTJ 1057 (SC) (CP). He argued that the service rendered by an educational institution would not fit in to the definition of “service” under the Consumer Protection Act 1986. Opposite party also relied on the decision rendered by the Honorable National Commission in RP No 479/2005 and RP No 480/2005 Kota open University Vs Smt Rajkumar sharma decided on 10/12/2009

While submitting arguments first opposite party picked out and laid emphasis on the words in the said judgment of National Commission which are as under:-

“Now, in the matter of imparting education by the University or Board

or educational institution, the issues are no longer debatable and res integra

in view of decision of Honorable Apex Court in Civil Appeal No.3911/2003

Bihar School Examination Board Vs Suresh Prakash Sinha holding that Bihar

School Examination Board is not rendering “service” as defined under

Consumer Protection Act.1986. Impliedly. Same analogy has to be applied in case

of other educational institutions which impart education. Collecting fee for

their various activities”

Counsel for complainant strenuously argued distinguishing the facts of the two cases. In the decisions placed before us the dispute pertained to issue with regard to conduct of examination and declaration of results etc.

In the instant case the dispute is regarding demand of fees. The educations institution (First opposite party) contends that the student who joins 8^th standard and leaves the school after completion of 10^th standard has to pay fees for plus one and plus two classes also. The transfer certificate. Mark list and related documents have been retained by first opposite party for not paying the fees for plus one and plus two classes. In our view this dispute is not covered by the ruling given by Honorable Apex Court in S.P.Sinha's case. The judgment rendered in that case is in the context of discharging statutory functions/duty only. A University or Board performs certain statutory duties/functions. Conducting examination, checking of the answer books of the students, evaluation of marks and declaring of results are all statutory duties and do not depend upon contract or the hiring of service for consideration. Any dispute regarding these functions is therefore outside the purview of Consumer Protection Act. But these are separate distinct from the functions discharged by an educational institution while imparting education. Students seek admission in an educational institution, be it a school, college or university by paying fees. Imparting of education by the educational institution after charging fees falls within the ambit of 'service'. Students as hirer of service for consideration are consumers. In the case of any shortcoming or irregularity committed by the institute in the admission process or deficiency in performance of service by it like the college not having recognition as advertized etc. the redressal of such disputes can b sought under the provisions of Consumer Protection Act.

The Honorable Supreme Court has cautioned against illegal fee fixation and fee collection in Islamic Academy of Education and another Vs. State of Karnataka and others 2003(6) SCC 697. In para 56 of the judgment the issue was discussed as under:-

“It must be mentioned that during arguments it was pointed out to us

that some educational institutions are collecting in advance the fees

for the entire course. ie., for all the years. it was submitted that this

was done because the institute was not sure whether the student would

leave the institute midstream. It was submitted that if the student left the

course in midstream then for the remaining years the seats would lie vacant

and the institution would suffer. In our view an educational institution can only

charge prescribed fees for one semester/year. If an institution feels that a

particular student may leave in midstream then, at the highest, it may require

that student to give a bond/bank guarantee that the balance fees for the whole

course would be received by the institute even if the student left in midstream.

If any educational institution has collected fees in advance, only the fees of that

semester/year can be used by the institution. The balance fees must be kept

invested in fixed deposits in a nationalized bank. As and when fees fall due for

a semester/year only the fees falling due for that semester/year can be

withdrawn by the institution. The rest must continue to remain deposited

till such time they fall due. At the end of the course the interest earned on

these deposits must be paid to the student from whom the fees was collected in

advance”

The Honorable Apex Court was referring to professional course which are usually conducted for a duration of fixed years/semesters. For such courses were most students have attained the age of majority, the Court has categorically emphasized against collection of fees for education/service that has not been imparted. A student who leaves 10^th standard and is a minor being tied up with bond to his detriment cannot be considered enforceable.

The Honorable National Consumer Disputes Redress Commission in IT & T Learning solutions Ltd. vs. Gaurav Malik R.P.No.377/2007 decided on 03-05-2011 applied the principle laid in Islamic Academy case and held that the collection of fees in advance was wrong. The institution was directed to refund the fee of Rs. 23,600/- along with interest @ 6% perannum together with cost of Rs. 500/-. Similar view was taken in Shri. Saranpreet Singh Vs. The Principal Lala Lajpat Rai Institute of Engg.& Technology R.P.No. 3432/2009 decided on 10-11-2010.

In N.I.I.T.Ltd. Vs. Shashank Rastogi 2011 CTJ 608 (CP)NCDRC Appeal No. 729/2010 decided on 15-04-2011 the National Commission found that not imparting the training after collection of fees is deficiency. The appellant institute was directed to impart the training and also pay compensation of Rupees One lakh besides cost of Rs. 10,000/-

From the above discussions we have to hold that the decision rendered in S.P.Sinhas case is not applicable to the facts of this case. The issue raised in the complaint in our view is a consumer dispute coming within the purview of the Consumer Protection Act.

It was submitted on behalf of complainant that the admissions to plus one classes for this year (2011-2012) would close in August 2011. As the child has to get T.C, mark list and related documents to join in any other school before the admission closes, the matter was taken up as expeditiously as possible by this Forum. On 23/09/2011 first opposite party (the principal cum manager of the school) was represented by authorized agent. The agent was heard in detail. Interim order to issue the T.C. And related documents was passed on 27/9/11. The case was then posted for version of first opposite party and also for reporting compliance of interim order to 28/09/2011. On 28/9/11 opposite party No1 filed IA 315/11 seeking time for complying the interim order as they intend to go for appeal but this IA dismissed and the case was posted 29-08-2011 to the affidavit and document of complainant on 12/10/11 opposite party filed IA 322/11 to extent time to file appeal against the interim order of the Forum. This IA also dismissed. The moot point that poses for analysis on the question of deficiency is whether first opposite party can be justified in collecting/ demanding fees of plus one and plus two classes, when the student wishes to leave the institution after 10^th standard.

To consider the question of deficiency, we think that it is necessary first to narrate the chronology of events during the pendency of the case.

Along with the complaint the complainant had filed I.A 236/11 seeking interim relief to direct the first opposite party to issue the T.C. At the earliest as the child has to take admission in another school before the admission closes. Emergent notice was issued to first opposite party through courier and by registered post and the case was posted to 29/07/11. Although the notice through courier was served. On this day opposite party No1 absent On 12/8/2011 notice issued through registered post was returned as addressee absent. As the matter is emergent and it is submitted that the child has to get admission and registration from a new school a special messenger is appointed for service of notice. The notice to opposite party through a special messenger was ordered and the notice to opposite party through special messenger has been returned as unserved with report that addressee absent. Then a fresh registered notice issued to opposite party and case posted to 23/9/11. On this day opposite party No1 represented through authorized agent and the copy of the IA for interim order and complainant handed over to this agent and case posted to 27/09/11 for version and counter of opposite party No1. The authorized agent of opposite party No1 appeared and heard the IA for interim order. IA allowed directing opposite party No1 to produce TC and related documents of the daughter of complainant before the Forum on the next day on 28/9/11. On 28/9/11 opposite party filed IA 315/11 seeking time to comply the interim order as they intend to go for appeal. This IA dismissed and case posted for affidavit and documents of complainant to 12/10/11. On this date opposite party filed another IA 322/11 to adjourn the case and extent time for filing appeal which was also dismissed. Then 31/10/11 the agent of opposite party No1 appeared and submitted that IA236/11 that is the interim order of the Forum is stayed by the Honorable State Commission. But on 23/11/11 order of the State Commission received by confirming the order of the Forum in IA 236/11. It was submitted by opposite party No1 that the interim order to issue TC is not intended by him to comply and that he wished to file revision petition before the Honorable National Commission and filed IA 416/11 to extent the case for the same. IA 416/11 was dismissed and directed him to file counter affidavit. Then on 28/05/2012 opposite party filed IA for advance the case along with an IA on the issue of maintainability of the case. This IA was dismissed with vide separate order with cost on 08/06/12. Then on 15/06/2012 opposite party No1 filed

another IA 245/12 seeking adjournment for filing revision petition before NCDRC and the Honorable Supreme Court, but he had not made out any sufficient ground for the revision and hence this IA also dismissed by the Forum. Then the case was posted for final hearing to 12/07/12. On 13/08/12 opposite party No1 filed IA 300/12 to cross examine the complainant which was allowed and posted for cross of the complainant on 1/9/2012. But on 1/9/2012 opposite party No1 absent, then the case adjourned on 4/10/12. on 4/10/12 opposite party No1 represented and prayed time for cross on 18/10/11 opposite party No1 represented through counsel Adv. Usman, Manjeri and Vakalath filed. Then the next two posting he prayed time for cross examination of complainant. Then on 3/12/12 the counsel for opposite party submitted that opposite party No1 is not in station and prayed one more chance for cross. Then the case was posted to 11/12/12 as last chance. Then on 29/12/12 the counsel for opposite party submitted that opposite party No1 is not in station he is abroad. The evidence of opposite party already closed on 15/6/12 and the case was posted for hearing on that day. But on 13/08/2012 the counsel for opposite party filed IA 300/12 for cross of examination the complainant. It was allowed. But opposite party No1 was not ready to cross the complainant. The main purpose of this IA was to be seemed that opposite party willfully delay the matter without a valid reason. T he case of the complainant is very clear to him. There was no need of a cross examination to clarify the matter. Hence the evidence of both sides closed on 29/12/12. The case posted to 9/1/13 for hearing. But on 9/01/2013 opposite party filed an IA 16/13 to implead the manager or head of the institution of opposite party school and extent time to rectify the mistake of the appeal before the apex court. It was posted for counter to 14/1/13. On this day counter filed and heard both sides. IA posted for order and case posted for hearing to 21/1/13. On 21/1/13 opposite party No1 absent no representation. IA 16/13 dismissed with vide order. Heard the counsel for complainant and case posted for orders to 6/02/13.

Now we will advert ourselves to the question whether opposite party can be justified in collection fees for plus one and plus two classes for issuing the T.C after completion of 10^th standard. Opposite party stated that the complainant is willing to educate their child in opposite party school up to 12^th standard and in case they opt to leave the school before completing 12^th they undertake to pay the fees for all four years from 9^th to 12^th standard. Ext. B1 and B5 copy of the school prospectus in which it is seen stated as under:

The students who leave school when they are in 8^th ,9,10,11 or 12 should pay the entire fees for all the other years.(Fees for all five academic years) The same rule is applicable for those joining 11^th standard.

Imparting education by charging fees is a service. Any dispute would fall within the ambit of the definition of consumer dispute. Education is not a business. People engaged in running educational institutions have always been cautioned by Apex court against the illegal practice of collecting capitation fees collection of lump sum fees in advance, withholding of certificate.

These decisions point towards the growing tendency of commercializing education as a business and turning it solely profit oriented. The contention raised by opposite party is that there is a condition stipulated in the prospectus that complainant has to pay the fees up to 12^th standard in case he wants to leave after completing 10^th standard. In our view this condition in the prospectus is totally unconscionable and unfair. At no stretch of imagination can an educational institution collect fees for the education/service that it has not imparted to the student. Opposite party has no case that they are empowered to collect such fees under any statutory provisions or that their right is authorized by law except the case that their own prospectus (a document prepared by them selves) authorized the same. A consumer has a right to choose his service provider. Nobody can be compelled to be a consumer. Such conditions in the prospectus are nothing but unconscionable bargain restricting the consumers liberty and freedom of choice. Opposite party who appeared through agent relied upon the decision rendered in F.A.No.A/570/2001 by SCDRC Bihar, Patna. On perusal of the said decision we find that the facts of the case do not have any bearing to the facts presented before us now. The decision is totally inapplicable to this case. The Honorable National Commission in Brilliant Tutorials Pvt. Ltd. Vs Ashwini Verma 2011 CTJ NCDRC page 288 has taken the view that when complainant left the institute after nine months from a course of two years duration, he was entitled to refund of fees of one academic year along with compensation and costs. It was held that charging of fees in advance beyond current semester/year amounts to unfair trade practice. We therefore hold that demand to pay the fees of plus one and plus two classes in order to issue T.C mark list and related documents by first opposite party is unfair trade practice. On this count we hold first opposite party guilty of committing unfair trade practice.

Now we come to the question of granting reliefs to the complainant. Ext.A3 letter send by complainant shows that complainant has forwarded written application for T.C, as early on 9^th march 2011. It can be inferred that application for T.C, was presented directly to the school even before this date. Ext. A6 is the complaint send to the Director of Education Trivandrum. Complaint was send to second opposite party by e-mail. After all such efforts the complainant has approached this Forum. It was submitted by the counsel appearing on behalf of the complainant that the child was provisionally admitted to another school with CBSE syllabus. That the admissions to CBSE school this year was closed in mid August and that the child could not be registered with the CBSE Board by the school for want of certificate. Apart from the hardships, the mental strain and pain suffered by the parents and the student who is a minor can be imagined. The act of opposite party has led to the child losing an academic year. This has happened only due to the oppressive attitude of first opposite party. The wrong done, in our opinion has been aggravated by non-compliance of the interim order. Opposite party has thereafter abandoned the case and has not appeared at all. Then such acts cannot be allowed to recur. We are of the view that an award of exemplary damages will serve the useful purpose in vindicating the strength of law. Damages punitive in nature will help to deter other service providers from including in such unfair trade practices. We consider that a consolidated amount of Rs. 2,00,000/- (Two lacs only) would meet the ends of justice. The complainant is definitely entitled to get the T.C mark list and all related documents. In the interest of justice we consider that CBSE Board for Southern region, Chennai will condone the delay and consider favorably to register the student this academic year itself as the whole mishap has occurred on no fault of the student or the parents. Complainant is also entitled to costs of Rs.2000/-

In the result we allow the complaint and order the following:-

First opposite party shall issue T.C, to the student Hiba Abdulla, the daughter of the complainant showing her character as good. First opposite party shall also hand over mark list, conduct certificate showing character as good, migration certificate, pass certificate and all related documents within one month from the date of receipt of copy of this order.

First opposite party shall pay to the complainant Rs. 2,00,000/- (Two lakhs) as damages within one month from the date of receipt of copy of this order. On failure to hand over the T.C and other certificate as stated above and within the time limit, first opposite party shall pay interest @ 10% p.a, upon the sum of Rs.2,00,000/- (Two lakhs only) from the date of order till date of handing over the certificates.

Dated this 6th day of February , 2013

Sd/

E. AYISHAKUTTY, MEMBER, (In-Charge of President)

Sd/-

MOHAMMED MUSTHAFA KOOTHRADAN, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1to A7

Ext.A1 (s) : Admission instructions of opposite party school

Ext.A2 : Council for the Indian School Certificate Examination 2011 ICSE

Ext A3 : Application for T.C, dated, 09/03/2011

Ext A4 : FIR in Edakkara Police station on 21/10/10.

Ext A5 : Application filed by the complainant to opposite party No2

Ext A6 : Petition filed by the complainant to the Director of Education Trivandrum

Ext A7 : The date and amount of the fees paid by the daughter of complainant

Witness examined on the side of the opposite party : Nil

Documents marked on the side of the opposite party : Ext. B1 to B7

Ext.B1 : Prospectus - 2009-2010

Ext.B2(s) : Application for TC of the student Ameena Abdulla

Ext.B3 : Receipt No date or signature

Ext.B4 : Application for Admission to standard 9 for 2009-2010

Ext.B5 : Prospectus 2010-11

Ext.B6 : The council record

Ext.B57 : The resolutions and syllabuses of opposite party No1 school. 2011 and 2012

Sd/-

E. AYISHAKUTTY, MEMBER, (In-Charge of President)

sd/-

MOHAMMED MUSTHAFA KOOTHRADAN,MEMBER