Sri Satish Kumar Panigrahi, Presiding Member

                        Sri Manoj Kumar Nayak in person filed an application for restoration of C.C. 8 Of 2020 alongwith copy of order of Hon’ble High Court of Odisha, Cuttack in W.P.C.18709/22. This case has been restored. The impugned order dated 12.07.2022 passed in this case is hereby recalled to expeditiously dispose the complaint. Again notice was issued to the parties for rehearing.

                  The fact of the case as averred by the complainant is that, he has applied the online form in the website for admission into LKG standard for his daughter by payment of Rs.400/- (non refundable) at Andhra Bank, Berhampur in favour of DAV public School, Gandhinagar, Berhampur in a challan. Thereafter the O.P.No.1 has called to complainant for lucky draw system for booking the seat in LKG standard education after payment of above amount and the complainant was present to book seat in said lucky draw event conducted by the management of O.P.No.1 & 2. The complainant’s lucky draw token drawn for booking the seat by the O.P.No.1 management and he has given opportunities for admission of complainant’s daughter in to LKG standard education and he recommended the remittance amount of Rs.41,190/-to their bank account No.006310011010337 at Andhra Bank, Old Bus stand, Berhampur. During holiday period at school, the complainant’s spouse suffered from some illness and for which the complainant along with his child Dipansha Nayak shifted to Bhubaneswar for further treatment of his wife. The complainant’s daughter was residing with her mother at Bhubaneswar in the period of her mother’s treatment and the complainant’s spouse was visiting Doctor’s clinic for check-up time to time as per recommended by the physician.Andthe complainant daughter’s education should not disturb,the complainant has requested to O.P.No.1 for transfer of his daughter’s education of LKG standard to any other branch school of DAV public school, Bhubaneswar without spoiling her career by communicated through letter dated:01.07.2019 and the O.P.No.2 has replied to complainant’s request with no objection in a letter dated:09.07.2019 by inquiry for availability of seat in other branch school of DAV public School at Bhubaneswar. The complainant has communicated several letters to branch school of DAV public school at Bhubaneswar also addressed to O.P.No.3 & 4. The branches school of DAV Public School at Bhubaneswar are namely i) DAV public School, Sailashree vihar, Bhubaneswear-751021, ii) DAV Public school, Pokhariput, Bhubaneswar-751012, iii)DAV Public School, Ghatikia Road, Bhubaneswar-751029,  iv) DAV Public school, CRP-DAV Road, Unit-8, Nayapalli, Bhubaneswar- 751012.Thereafter, the branches school of DAV public school i.e. O.P.No. 3 & 4 replied to the complainant’s request by stating no vacant seat available. But the Branch school of DAV Public School, Ghatikia Road and CRP-DAV Road, Nayapalli did not reply to the complainant’s requests for admission into LKG standard. Similarly the college Managing Committee of DAV Public School, Citra Gupta Road, New Delhi has not communicated any information to complainant’s requests till to date though he intimated him by a letter. The matter stood thus, the complainant temporarily re-admitted his daughter in the school namely “KALYAN BAL BIHAR SCHOOL” IRC village, Nayapalli, Bhubaneswar for not to disturb in her educational career and she should not debar from education in the right time for learning. She is continuing her education till to date in the above mentioned school. The complainant has requested to O.P.No.1 for refund of amounts of Rs.41,190/- as paid by him as his daughter has not attended the classes conducted by the O.P.No.1 except one single class on 22.04.2019 after the date of admission.Due to declaration of Summer holiday from 23.04.2019 up to re-opening of the school, the daughter of the Complainant has not attended the classes. But replying to the letter of the Complainant, the O.P.No.2 illegally repliedand stated that, the attendance of LKG reflected about the presence of the Child from the date of joining till to date. Further, the OP no.2 claimed the school’s dues amount on behalf of O.P.No.1 from the month of July 2019 to the month of December 2019. The OP no.2 also recommended to pay the said outstanding amount through online, which is contravene under the eye of law and it is arbitrary. In other side, the complainant submitted that, his daughter continuing here education in KALYAN BAL BIHAR School till dates with anticipation of transfer of her education from O.P No.1 to the branch school of DAV Public School at Bhubaneswar for continuity of her education, but the branch school of DAV Public School of Bhubaneswar confirmed about no vacant seat availability for joining into L.K.G. standard by transfer basis. The complainant further alleged that, the O.P.No.1 has illegally collected the tuition fees amount from March 2019 to May 2019 without conducting the classes from the above period as the school has been declared as holiday for summer vacation. Further, the summer vacation extended up to 18.06.2019 without any classes conducted by the O.P.No.1 after admission of complainant daughter’s into LKG standard. The O.P.No.1 has replied on dated 09.12.2019 to the complainant’s communicated letter through registered post by stating that, no refund can be avail as non-refundable amount received by them and the OP no.1 also stated thatthe complainant daughter’s continuing her education under them and attendance record is available with their custody till to date and they demanded for payment of pending dues amount of tuition fees by online bank transaction, which is illegal demand as the complainant’s daughter continuing her education at “KALYAN BAL BIHBAR SCHOOL”. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to refund the paid amount by the complainant with interest @18%  thereon from the date of dues till final payment, compensation of Rs.2,00,000/- and litigation expenses of Rs.50,000/- in the best interest of justice.

      3. The O.Ps filed written version through their advocate. It is stated that the complaint is not maintainable due to absence of any cause of action as against the O.Ps and whereas the complaint against an educational intuition regarding returning of fees is not at all maintainable either in facts or law. Education is not a commodity and student is not a consumer and it is outsides the purview of the Consumer Protection Act. Therefore the complaint is liable to be rejected or dismissed as it is not maintainable. All the O.Ps are totally unaided and controlled by the head office at Delhi and every DAV school is having separate management committee at local level to manage the activities of the respective schools. Most importantly there is no such provision of transfer of students from one DAV school to another DAV school at all as alleged. Hence the pleas of the complainant regarding transfer of students are illegal, unjust and not sustainable or maintainable either on facts or in law. After following the due process and procedure Dipansa Nayak was selected and got admitted in LKG standard at the school of the O.P.No.1 and accordingly she was allotted with Admission No. 10039, Section-F and Roll No.10 in the school. However, due to some reasons the child could not attended the classes and the reasons are best known to the complainant and the cause of the absence of the child as pleaded in the complaint, is a concocted one, false and baseless and requires verification of documents. Hence it requires strict proof of the same. The allegation of “request made to O.P.No.1 for transfer the child” is not at all permissible and completely illegal and the O.Ps are neither support nor encouraging such things ever as witnessed. Therefore O.Ps have not done any wrong and illegal thingsrather suggested to follow the right way as undertaken in the application “I agree to abide by the Rules & regulations of the school & undertake the responsibility”. Furthermore, as per the standing rules of all the schools for taking school leaving certificate as available in the school dairy O.P.No.1 & 2 supplied under heading in serial No.1 & 2 of RULES OF ATTENDANCE & WITHDRAWAL, as “Parents seeking TC shall have to apply before one week in the supplied format on payment of requisite fee prescribed by the school and TC shall be issued after all the fees and other dues of the school are cleared”.  The complainant was advised to take the School Leaving Certificate by paying the outstanding dues and can re-admit the child as per complainant’s necessary, but surprisingly the suggestion of O.P.No.1 was bluntly refused by the complainant and further the complainant threatened the staffs to drag the institution to the court of law and will realise the amount with interest. All the school are running under self-financing system and without any aids from either of the Governments and more importantly from Class LKG to Standard-II of O.P.No.1 have been running at Gandhi Nagar 2^nd lane Berhampur on a rented house. Accordingly by following admission process, the complainant took admission of his ward by clearing the dues from April to June 2019 but did not pay the rests of fees of the ward for the academic session 2019 and 2020 of the school. When Dipansa Nayak got admission in LKG in the school of O.PNo.1 she is deemed to be a student of LKG standard of the relevant academic session of the school.  However, without submitting a leave application Dipnsa Nayak remained absent to that effect, as such the student’s attendance register of LKG standard, Section-F, she was marked “ABSENT” for that session and she was continued as a student of LKG for the academic year 2019-2020 in the school register of the O.P.No.1 school. The O.Ps have done nothing wrong to attract any of the provisions of this Act. The O.P.No.3 & 4 received the respective letters given by the complainant and they have also given suitable reply to those letters. They have no role to play as no reliefs claimed against them. All the O.Ps have discharged their respective duties and responsibilities diligently and no illegalities have been committed by any of the O.Ps for which any of the provisions of Consumer Protection Act. Furthermore, there are catena of judgements wherein the Hon’ble Court held that, ‘subject of education does not come under category of service’ and the provision of Consumer Protection Act were not applicable in present case hence it is nothing but an attempt by the complainant to frustrate the O.Ps altogether. Therefore the O.Ps pray that, for the reason stated above, the complainant is neither entitled to the alleged refund amount nor any compensation as claimed and the Ops are neither liable to pay any alleged refund nor compensation as claimed by the complainant and the complaint of the complainant is not maintainable either in law or on facts, as such the complaint petition is liable to be dismissed, in the best interests of justice.

4. To decide the case in hand, the following issue needs to be answered in accordance to the Act, 1986 i.e.,

1. Do Educational Institutions fall under the purview of the Consumer Protection Act, 1986?
2. What deficiencies of service are rendered by the opposite party no.1?

To clarify the only issue, the complaint, written version, evidence on affidavit and written argument of both the parties are verified minutely.

Consumer Protection Act, 1986

The Consumer Protection Act, 1986 in this respect was sufficient to fulfill the requirement of every consumer by providing various reliefs available in the Act. In India diverse groups of consumers are available. The consumer protection law protects the interest of every consumer irrespective of age, sex, caste, place etc., with respect to all kinds of goods defined under “Sale of Goods Act, 1930” and every kind of services possible to be contemplated as service under the Act 1986.

This Act extends protection against Government body, statutory institutions as well as corporate sectors. The most pragmatic feature of this Act is the recognition of consumers’ right to be informed about the quality, purity, standard and price of goods and services, which is a potential device to prevent exploitation.

Concept of Service and Consumer under the Act, 1986:

Service

The term ‘service’ is defined in Section 2(1)(o) of the 1986 Act:

Therefore, it is clear from the preamble of the definition that service of any kind or nature that is rendered in exchange of consideration to direct or potential user comes within the definition of service. Some types of services even enumerated in an explicit manner within the definition but the definition of service is not limited to only those mentioned explicitly.

Consumer

Therefore, the term consumer is really broad and includes any beneficiary of service without differentiation with respect to the type of beneficiary or nature of goods or service he/she purchases. Interestingly, the scope of service in this definition also has no limit because of the term “any service”. Therefore, there is no bar in accommodating students into the definition of the consumer because “any person” connected as the purchaser to “any goods” or “any service” is the consumer as per the Act. It is, still, important to find a support, outside the consumer protection Act, in favour of the term consumer when it applies to the student in the affair of School-students relationship.

Issue No.1:-Do Educational Institutions fall under the purview of the Consumer Protection Act, 1986?

            No, the Hon’ble Supreme Court of India had a differing view. In the case of Maharshi Dayanand University v. Surjeet Kaur reported in (2010) 11 SCC 159, relying upon all earlier judgments, the Supreme Court held that education is not a commodity. 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. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.

In P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors. reported in (2012) 3 CPC 615 (SC), Hon’ble Supreme Court held, in a brief order that educational institutes do not, through the performance of educational activities, render any service, in respect of which a complaint of deficiency could be maintained, and that consumer forums did not have the jurisdiction to adjudicate them. In view of the above discussions and explanations, it is found that the order in the matter of P.T. Koshy does not have support on legal and logical grounds.

Issue No.2 :-What deficiencies of service rendered by the opposite parties? The complainant’s contention in this regard is that, though the OP no.1 has provided service for one day on 22.04.2019 and thereafter from 23.04.2019 the school was closed for Summer Vacation as per circular of Govt. of Odisha and refund the paid amount by the Op no.1 by following the CBSE Rule by Affiliation Bye-Law.

Further, the complainant in support of his claim regarding entire deposits made at the time joining relied upon the ‘7.4-Refund of Fees under Chapter 7: School Fees of the Affiliation Bye-Laws 2018 (Date of Notification: 18/10/2018) of Central Board of Secondary Education which speaks as follows –

‘7.4 Refund of Fees: In case not otherwise provided by the Appropriate Government, in the event of student discontinuing the studies or wishing to migrate to some other School, dues shall be collected only up to the month of discontinuance or migration and not up to the month in which the transfer certificate is applied for. This shall apply to all Heads of Fee.’

In view of the above ruling of the CBSE, in the instant case, the Complainant has deposited the money as per Annexure- B under the Heads of Fees for the month of April-May-June ‘2019 in favour of his daughter Dipansha Nayak. And the opposite party no.1 has correctly collected the fees upto the class attended by the daughter of the complainant. In the present case, the complainant has not withdrawn the admission and/or obtained any Transfer Certificate from the Opposite Party no.1 of his daughter Dipansha Nayak to join in any other school as admitted in his complaint at para 13. The bye-law of the CBSE is very clearly and specifically clarifies in Chapter-1 at 1.3.11 of 1.3 under “School Fee” means the amount of money paid to the School by the students in connection with the conduct of studies. As such, the admission of Dipansha Nayak was continued in the school of the Opposite Party no.1 as per the Bye-Laws of the School till the date of discontinued the studies. So there is no room for the Opposite party no.1 to refund the school fees paid by the complainant. But the complainant failed to appraise about the deficient services provided by the OP no.1 to the Commission during post-admission into the School.

The complainant in support of his case relied upon judgment of Hon’ble National Commission held in Manu Solanki & Others v. Vinayak Mission University & others in the case is disposed of on 20.01.2020 wherein a large Bench of the National Commission examined in detail the decisions of the Supreme Court and concluded that all educational institutions and related activities and at para 51 delivered that, “in view of the foregoing discussion, we are of the considered opinion that the Institutions rendering Education including vocational courses and activities undertaken during the process of pre-admission as well as post-admission and also imparting excursion tours, picnics, extra co-curricular activities, swimming, sports, etc. except coaching institutions, will, therefore, not be covered under the provisions of the Consumer Protection Act, 1986. Hence it is dismissed as not maintainable.”

On foregoing discussion and in our considered view there is no deficiency in service on the part of the O.Ps. Hence the complainant’s case is dismissed against the O.Ps without cost.

The case is disposed of accordingly.

      The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.

The file is to be consigned to the record room along with a copy of this Judgment.

(SHRI SATISH KUMAR PANIGRAHI)

PRESIDING MEMBER

(SMT. SARITRI PATTNAIK)

             MEMBER (W)

PRONOUNCED ON: 17.04.2023