::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.85/2016.
Date of filing: 03.10.2016.
Date of disposal: 29.01.2018.
P R E S E N T:-
(1) Shri. Jagannath Prasad Udgata, B.A., LL.B.,
President
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: 1. Vidyavati D/o Muktappa/W/o Kailas,
Age: 39 years, Occ: Nill,
R/o Kumbarwada Bidar.
(By Sri. B.Krishnappa, Adv.)
VERSUS
OPPONENT/S: 1) The Principal
Pragati ANM Training Center
Chidri Road Bidar
(By.Sri. P.M.Deshpande, Adv.)
:: J UD G M E N T ::
By Shri. Jagannath Prasad Udgata, President.
The complainant is before us by filing a complaint u/s 12 of the consumer ProtectionAct,1986 against the opponent alleging deficiency of service and payment of compensation.
2. The sum total of the complaint is that, she got herself admitted in the A.N.M. (Auxillery Nursing and Midwifery) course then being imparted by the Pragati A.N.M. Training Center (O.P.) in the academic year 2010-11 and passed the course in November 2011 by securing 79.7% marks (as per Ex.P.1). It is further her contention that, she has paid the prescribed fees of Rs.1,10,000/- to the institution, though the later was not in the habit of granting any receipt or acknowledgement. To that effect she has led the evidence of P.W.2 by name one Lily Grace D/o Loke by filing an affidavit Supporting the contentions of the complainant, who has got herself examined as P.W.1. The evidences of both the aforesaid witnesses have remained unchallenged.
3. The complainant has further avered that, had she been given her A.N.M. certificate and S.S.L.C. certificate she would have been successful in securing a Govt. Job with a good salary and even otherwise, she could have got a job in any Private hospital against a monthly salary of Rs.15000/- to Rs.20,000/- at least, which should be awarded to her till the O.P. institution releases the certificates. She has filed an additional affidavit on 30.12.2017 claiming total compensation of Rs.20,00,000/-, considering the fact that, her date of birth being 01.06.1976, she has lost the job prospect with Govt. fully.
4. In course of trial of the case, we have come across a most bizarre phenomena. The complainant has been persistently and meticulously appearing in the case, many times without her lawyers and has been clamouring that, she has claimed a compensation of Rs.9,00,000/- in her complaint. Even, she has shown us a photocopy (Xerox) of the original complaint drafted by her counsel, from which the figure of compensation is appearing as Rs.9,00,000/-. In the copy for the Ld. Member same figure is mentioned.
5. Per centra, glimpsing the complaint, we found in Para-6 of the complaint. The compensation claimed as Rs.4,50,000/-. So also in the prayer column over written by a black ball point pen. However, underneath the scribbling the original computer typed figure of Rs.9,00,000/- is visible to the naked eye and court fee amount of Rs.200/- was paid vide D.D. bearing No.674266 drawn Vijaya Bank. The C/F column is also hand written in black ball point pen without any initials of the scribe.
6. To clarify the issue, we insisted upon the complainant to secure the presence of Sri. B. Krishnappa, her Advocate, who appeared before us on 22.01.2018 and insisted that, the original compensation claim was Rs.9,00,000/- and feigned surprise that, the figure has been corrected to Rs.4,50,000/-. We then examined the vakalath executed by the complainant in which another Advocate by name Smt. Renuka has subscribed her name and signature. We then found, the writing pattern, pen used by Smt. Renuka Advocate resembles wholly to the corrections effected in the body of the complaint in Paras 6 & 11 and also the prayer column. Sri.B. Krishnappa, Advocate, when put across the fact, submitted that, aforesaid Smt. Renuka has abandoned legal practice and leaving Bidar has gone away somewhere with family and hence untraceable. However, after thoroughly analyzing the whole spectrum, we are of the considered opinion that, the overwriting/corrections were effected by Smt. Renuka, one of the Advocate on record, but her misfeasance should not be an impediment for just entitlements of the complainant and hence we propose to reckon the original compensation claimed as Rs.9,00,000/- and proceed with the case.
7. The sole opponent appearing through counsel has filed versions on 17.01.2017, claiming that, the complaint is wholly mis conceived, groundless, unsustainable in law being without any relations of trading. That, there is no element in the case confirming the definitions of ‘complaint’, ‘Consumer Dispute’ and ‘Service’ u/s 2(1) of the C.P. Act and the complainant is not a consumer. It is further canvassed that the complaint is a blatant abuse of process of law and further that, the complainant has not paid the fees of the institution while studying, so also for the hostel facilities availed and also the examination fees to the Board for which the marks card was not issued to the complainant. To substantiate his contention of non-locus standi of the complainant, the O.P. had submitted a case law purported to be reported in 2014 NCJ-508 (NC). On examination, we found the so called citation is a combination of different pages of different law journals and hence we refused to accept it for consideration and rejected the same vide orders date: 05.09.2017.
8. On 06.06.2017, the O.P. filed evidence affidavit and was directed to keep the Principal and Administrator present before the forum and produce all relevant records pertaining to the academic year 2010-11 and 2011-12, which was not complied till 03.07.2017. On the same day, te O.P.s counsel under took to return the S.S.L.C. marks card and A.N.M course certificate by 04.07.2017. On the next date it was canvassed that, the institution has been closed, documents were misplaced. In 18.07.2017, it was submitted by the O.P. that, should the complainant file an application, all relevant certificates would be issued to her. On 07.08.2017. The complainant in person appeared before us and filed an affidavit to the effect that, she has approached the O.P. and the later refusing to receive her application and issue the certificates had sent the same by speed Post. The copy of the application, postal receipt and postal acknowledgement have been submitted by her and marked as Ex.P.7 to P.9 respectively.
9. Ultimately, on 10.01.2018, the O.P. has submitted the S.S.L.C. and A.N.M. course certificate, which was directed to be kept in safe custody by the registry.
10. The complainant in an attempt to substantiate her claim has submitted documents listed at the end of this order. Both sides have filed evidence affidavits and written arguments.
11. From the discussions, recorded herein regarding the claims and defenses, the following points arise for our considerations.
- Does the complainant prove that, she had under gone sufferings due to deficiency of service?
- Does the O.P. prove that, the complainant cannot be construed as a consumer?
- Is the complainant entitled for pecuniary compensation and if so to what extent?
- What order?
12. Our answers to the Point fixed are as follows:-
Point No.1. In the affirmative.
Point No.2. In the Negative.
Point No.3. As thread barely discussed below.
Point No.4. As per final order for the following.
:: REASONS ::
13. Answers to point No.1 and 2 run side by side and are being dealt simultaneously.
14. The complainant claims to have paid the necessary fees to the O.P. institution and has further avered that, the O.P. was not in the practice of granting any receipts/acknowledgments. To drive in her point, she has examined herself and has led the evidence of another of her batch mate by name Lily Grace (P.W.2.) The witnesses were never cross examined, nor any interrogatories were filed questioning their testimony. Per contra, the O.P. has claimed that, her certificates were with held since she has not remitted the necessary fees. In to-days world, is incredible that, a private academic institution established with an obvious commercial orientation, would ever allow a pupil to continue her academics for a long period of eighteen months without payment of fees and permit her to sit in the examination. Further, the opponent inspite of several opportunities given, had failed to produce the academic records of the relevant year, from which the admission and fees collection could have been ascertained. The default of the O.P. to discharge its burden of proof has remained un-attended throughout.
15. In the written arguments filed, at page No.3 and 4, the complainant has mentioned extracts of two judgements of J.K. and Kerala State Commissions as copied underneath.
C P J-2003 J & K Page No.196.
(IN case of Amarchand V/s Ranjeet Memorial Public school).
Sec.2(1) (g) of C.P.Act.
Educational Services-School-leaving certificate, where a private Body was imparting Education under consideration, the complainant had applied for school leaving certificate but the O.P. had demanded over charges of the dues for receiving certificate against the rules and had harassed the complainant, the O.P. was liable to pay the compensation due to deficiency in service.
C P J-2004 Kerala (N.C.) Page No.27 (Sriharn Naik- N.V/s University of Kerala).
Educational Services-LL.B.degree certificate not issued where on the contention that qualifying examination on the basis of which the complaint had under gone LL.B curse was not recognized by the university, National Commission observed that No objection was raised at the time of admission course and was declared passed all the years, held as services of University was hired for consideration, hence the complainant is entitled to compensation due to deficiency in service.
In this case the O.P. has admitted in Para No.8 of W.S. that, the marks card was not given to the complainant due to non-payment of Fees, it means that, the O.P. is rendering his service for consideration, therefore, the complainant case comes under within a definition of sec.2 (1) (g) of C.P. Act, the above said two authorities and admission on the part of respondent the complaint is maintainable before this Hon’ble Forum.
16. As discussed earlier, the O.P. attempted to thrust upon us a ruling of the Hon’ble National Commission by tagging different pages of different journals, which was declined by us. Even other wise, if for a moment the veracity is accepted, the ratio led down would not be applicable to the present case being that of with holding academic certificates unreasonably for a long period of seven years.
17. Point No.3. In course of personal submissions before us, the complainant has been claiming that, candidates securing less marks that her have got secured Govt. jobs as A.N.M,. No evidence to that aspect has been led before us. However, we agree to her canvassing that, even if she had got a private job, the salary would have been in the range of Rs.15,000/- Pm. The job of A.N.M. involving considerable skill and expertise, the claim appears to be quite reasonable. Hence we hold that her monthly loss should be calculated @ Rs.15,000/- at least, which would be just in all aspect.
18. Next, coming to comprehend the duration of loss assessment, we pip into the document produced as Ex.P.1. The result was declared by the Health and Family welfare Directorate, Govt. of Karnataka in November 2011. At least, three months approximate time would be required to prepare the necessary certificate and transmit the same to the O.P. institution for distribution to the candidates. Hence we are of considered opinion that, the computation should start form 01.03.2012, till the date of submission of the certificates in the court on 10.01.2018, roughly 69 months, during which she could have earned a sum ofRs.10,35,000/- from private employment. To this figure has to be added at least 20% towards probable prospects, which would stand at Rs.2,07,000/-. Both figures together would constitute the sum of Rs.12,42,000/- as just compensation to be awarded with other conventional figures. Hence, we proceed to pass the following:-
::ORDER::
- The complaint is allowed in part.
- The O.P. is hereby directed to reimburse the complainant a sum of Rs.12,42,000/- towards loss of wages.
- The O.P.is further directed to pay a sum of Rs.2,00,000/- as compensation towards the sufferings and mental agonies;
- No amount to be awarded for litigation expenses because of misfeasance’s of the counsels on record;
- The complainant to pay the balance of the C/F to be calculated by the office;
- S.S.L.C. and A.N.M. certificates submitted by the O.P. to be given to the complainant under due acknowledgement.
- Four weeks time granted to comply this order failing which the award amount would carry an interest @ 12% P.A. from the date of filing of the complaint.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 29th day of January 2018).
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Ex.P.1- Result sheet of A.N.M. course of Noember-2011.
- Ex.P.2– Copy of identity card.
- Ex.P.3– Admission Card.
- Ex.P.4—Office copy of legal notice.
- Ex.P.5- Postal acknowledgement.
- Ex.P.6- Copy of complainants voter I.D. Card.
- Ex.P.7- Copy of representation date: 18.07.2017.
- Ex.P.8- Postal receipt of above.
- Ex.P.9- Postal acknowledgement of representation.
- Audio caset (Not exhibited).
Document produced by the Opponent.
–Nil-
Witness examined.
Complainant.
- P.W.1- Smt.Vidyavathi (complainant).
- P.W.2- Smt. Lily Grace.
Opponent.
- R.W.1- Yunus Khan.
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
