IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 23/S/2009 DATED : 08.09.2009.
BEFPRE PRESIDENT : SMT. ANITA DEBNATH,
Ex-Member of W.B. Higher Judicial Services and
Addl. Dist. & Session Judge,
President, D.C.D.R.F., Siliguri.
MEMBER : SMT. PRATITI BHATTACHARJEE.
COMPLAINANT : SPANDAN ROY CHOWDHURY,
S/O Pankaj Kr Rai Chowdhury,
R/O 106, Raja Ram Mohan Roy Road,
Hakimpara, Siliguri, P.O. & P.S.- Siliguri,
Dist. – Darjeeling, West Bengal.
O.Ps. 1) : THE PRINCIPAL,
Lincolns High School, Karaibari,
Siliguri- 734 001, Dist.- Darjeeling, West Bengal.
2) : MR. N.N. PAUL,
General Secretary,
Lincolns High School, Karaibari,
Siliguri- 734 001, Dist.- Darjeeling,
Proforma OP. 3) : THE CHIEF EXECUTIVE & SECRETARY, The Council for Indian School Certificate Examination, Pragati House, 3rd Floor, 47-48 Nehru Place, New Delhi – 110 019.
FOR THE COMPLAINANT : Sri Digendra Nath Sarkar, Advocate.
FOR THE OPs : Sri Manas Sarkar, Advocate.
J U D G E M E N T
Brief case of the complaint runs as follows :-
The complainant is an Ex-student of Lincolns High School, Karaibari, Siliguri.
The OP No.1 which affiliated to the Council for Indian School Certificate Examinations, Pragati House, 3rd Floor, Nehru Place, New Delhi.
The complainant passed the I.S.C. –XII 2007 Examination in the year 2007 for the session 2006-07. But the OP did not handover the pass certificate to the complainant in
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spite of his repeated request and reminders. The complainant by his letter dated 21.03.08 requested the OP No.1 to handover the said certificate to the complainant. Due to non-receiving of the said certificate he has suffering from mental agony and depression. Despite receiving the said certificate from the competent authority the OP No.1 did not handover the same to the complainant. The said certificate is required for his carrier and it has come to his knowledge that the OPs have lost/misplaced the said I.S.C. Pass Certificate of the complainant while shifting the office of the OP to another place. Even then, while he asked for the said certificate from the OP he was asked to furnish proper application stating that the said certificate was lost from his possession. On hearing such request he categorically denied to submit any application to the OPs in this regard. It has come to his knowledge that the OPs sent a Demand Draft of Rs.135/- being No.668685 dated 21.02.08 to the Council for getting duplicate copy of the said I.S.C. Pass certificate. But such proposal was not accepted by the Council for the Indian School Certificate Examinations and they advised the OP to send Court affidavit, newspaper advertisement with regard to loss of pass certificate. But the complainant refused to do the same because he was not in a position to swear a false affidavit in this regard. Although he requested the OPs to issue pass certificate either in original or in duplicate copy and he has also sworn an affidavit before the Judicial Magistrate, 1st Court at Siliguri on 17.03.08 stating the actual fact of loss of certificate from the custody of the OPs. Even then the OP did not handover the same to the complainant after expiry of a long period. He was pressing for false affidavit from the complainant with ill motive and for illegal gain. So, the complainant sent a lawyers notice to the OPs through his lawyer requesting the OPs to handover the said I.S.C. Pass Certificate to the complainant but to no effect. Hence, this case for compensation and for issuance of certificate.
The said application was filed supported by affidavit.
OP No.2/The General Secretary of the school contested the said case by putting Written Version supported by affidavit denying each and every allegation as made therein with a specific defence that the case is not maintainable. The complainant has suppressed the very material fact contrary to the real fact. The case does not come within the purview of Consumer Protection Act.
It has been admitted that the complainant passed the I.S.C. XII 2007 Examination in the year 2007 for the session 2006-07. After publication of the said result all mark sheets had been given to the students of their school including the complainant. The Pass Certificates were given to all successful students/candidates including the
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complainant. It has been further alleged that after publication of the result of the said I.S.C. XII 2007 Examination at first mark sheets were given to all the candidates appeared for the said examination and thereafter certificates were given to those candidates including the complainant. It has been further alleged that non-delivery of pass certificate normal studies and carriers of a students has not been affected in any manner. Mark sheet of the examination is sufficient only for normal studies of any student. The complainant was asked to follow the normal procedure for duplicate certificate and he was asked to make an application for duplicate I.S.C. Certificate to the Council but such advised was not followed by the complainant rather the school authority was pressured unduly and also gave a legal threatening.
In order to obtain a duplicate I.S.C. Certificate from the Council necessary procedures are to be observed i.e. application for issuance of duplicate I.S.C. Certificate and affidavit in original duly sworn before the Notary Public, A notice published in a daily newspaper, Demand Draft for Rs.1,500/- So, the complainant was advised to take up all those procedures but it has not been followed rather pressurized the school with false fabricated allegations. It has specifically pleaded that the complainant has lost his certificate but with an ill motive and unlawful gain he has filed the instant case. Despite delivery of the original certificate to the complainant has filed the instant case with false allegation of negligence and deficiency of service and misplace of the alleged certificate. The I.S.C. Certificate is nothing but an ornamental document which is not necessary for higher studies or to build up a carrier of a student. The question of suffering of mental agony, anxiety does not arise. Even then, the OP has already applied for duplicate I.S.C. Certificate of the complainant on receiving the information from the complainant about the said loss of certificate and incurred a sum of Rs.3,000/- without having any fault on their part. So, the case of the complainant does not stand and is liable to be dismissed with cost.
Upon consideration of the pleadings of the respective parties the following points are framed for determination of the controversy involved in the instant case :-
- Is the case maintainable ?
- Whether the alleged certificate of I.S.C XII Examination 2007 was actually lost from the custody of the OPs ?
- Whether there was any deficiency of service on the part of the OPs ?
- Is there any Unfair Trade Practice on the part of the OPs ?
- Whether the petitioner is entitled to get any decree or award ?
- To what are the relief/reliefs, if any ?
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Point No.1
The complainant has furnished several documents in support of his claim.
The OPs also submitted several documents to substantiate their defence.
When jurisdiction of the instant case has been questioned it requires to be considered first.
Be it mentioned first that neither party chose to lead any evidence to support their respective case. Both of them filed Written Argument in support of their case.
The OP in their W.V. as well as Written Argument it has been alleged that the complainant does not come under the purview of the Consumer Protection Act, 1986 as the OPs have/had never rendered any service of the complainant.
It has been urged by the Ld. Advocate of the OP No.2 that the complainant is not a consumer as provided under Section 2(1)(d) of the Consumer Protection Act, 1986 and nature of dispute does not come within the purview of Consumer Dispute as provided under Section 2(1)(e) of the said Act, 1986.
In support of his contention reliance has been placed upon a decision reported in 2007 CPJ Vol. I 285 wherein it has been held by the Hon’ble State Commission Rajasthan that wherein issues relate to examination held by University, be it the matter of declaration of results, marking, valuation, revaluation of papers, the University or other examinations conducting bodies like CBSE do not render any service and since in the present case, the complainant appellant had not hired or availed the services of the respondents (university) for consideration, therefore, he was not a consumer.
In reply the Ld. Advocate for the complainant relied a decision in the case of Ajeet Protap Singh Vs. V.C. Indira Gandhi National Open University reported in AIR 2007 180 (Raj) wherein the Hon’ble ‘State Commission Rajasthan held that Sec 2(1)(o), 2(1)(d) service’ – imparting of education by an Educational Institution for consideration – Falls within the ambit of service as defined. Students admitted imparted education for consideration – can claim themselves to be ‘Consumer’ of the ‘services’ of education as defined in Section 2(1)(d).
In AIR 2007 (NOC) 1614 (NCC) in the case of Secretary, Board of Secondary Education, Orissa Vs Ms Sasmita Moharana it has been held that it is imperative on part of Board of Secondary Education that errorless mark sheet is to be issued to candidate – issuance of wrong mark sheet amount to deficiency in service.
The instant case has been filed by the complainant an ex-student of Lincolns High School, Karaibari, Siliguri against the Principal, General Secretary of the said school and
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others on the plea that he was not given the I.S.C. Pass Certificate despite repeated request and he was asked for swearing affidavit to that effect that it was lost by him and to pray for duplicate certificate on production of Affidavit to that effect, paper publication and payment of requisite fee.
Section 2(1)(d)(ii) of the said C.P. Act 1986 provides for hires or avails of any service for a consideration.
Section 2(1)(e) defines consumer disputes means a dispute where the person against whom a complaint has been made denies or disputes the allegations contained in the complaint.
It is an admitted position that the complainant was the ex-student of the Lincolns High School. When the student took education from the said school he got such facility on consideration and there is no denial in this regard. If that be so, when such service was hired or availed of on consideration the complainant who was ex-student is, therefore, a consumer as provided under Section 2(1)(d)(ii) of the said Act.
Therefore, the nature of disputes as alleged also comes within the ambit of Consumer dispute as provided under Section 2(1)(e) of the said Act, 1986.
Further more on careful consideration of the decision as cited by the Ld. Advocate of the complainant the Principals as enunciated by the Hon’ble State Commission that the students comes within the purview of the consumer. But the facts and circumstances of the case in hand and case under reference relied by the Ld. Advocate for the OPs reported in 2007 (1) CPJ 285 are quite different and not matching with the case and principles of law are also different and as such the said decision is not applicable in the instant case.
Under this facts and circumstances, we are of the view that the Forum has ample jurisdiction to entertain the instant case and the complainant is a consumer under the Act of 1986 thereby the case is quite maintainable in law.
The issue is thus disposed of in favour of the complainant.
Point No.2 – 6.
All these issues are taken up together for the sake of convenience as they are interlinked.
The sole and substance of the case is that the complainant was not handed over the I.S.C. Pass Certificate in spite of several request even after service of letter of request followed by legal notice and he was asked to state that the said certificate was lost by him and to swear affidavit to that effect coupled with paper advertisement and payment of
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requisite fee by way of Demand Draft of Rs.1,500/- but such request was refused by the complainant with the plea that he would not swear any false affidavit as advised.
The defence case of the OP under the Written Version that the said certificate was handed over to all the successful candidates including the complainant even then the complainant denied it and made a pressure upon them with ill motive and illegal gain with a threat.
In the instant case neither party chose to lead evidence and the case and the counter case are to be decided on the basis of the affidavit as submitted by them.
So, the main dispute is whether I.S.C. PASS Certificate was actually delivered to the complainant or not ?
Whether the said certificate was lost from the custody of the complainant or from the custody of the OP ?
Whether certificate was delivered as alleged to the complainant or receipt and if so whether such claim is backed by any documentary evidence or not ?
All these points are crucial to decide it in order to solve out the nature of dispute involved in the instant case.
The complainant has furnished several documents in support of his claim Registration Card – I.S.C 2007 goes to show that Registration Number of the complainant is B/WB111/074/07.
Admittedly the complainant passed I.S.C Examination in the year 2007 for the session 2006-07 from Lincoln High School, Siliguri.
From the letter issued by one Anita Mitra, Principal addressed to the Chief Executive & Secretary, Council for the Indian School Certificate Examinations, Pragati House, 3rd Floor, 47-48 Nehru Place, New Delhi – 110 505 it reveals that there is averment of misplace of I.S.C. Pass Certificate, March, 2007 of the complainant due to shifting of their office and prayed for issuance of Duplicate I.S.C. PASS Certificate in favour of the said student so as to enable them to hand it over to the concerned student and demand draft of Rs.100/- was enclosed for the said purpose.
This letter does not bear any date and signature of the Writer but it was written in the letter head of the said school concerned.
The copy of the said letter was furnished along with the plaint/complaint copy of which was sent to the OP along with the notice to the instant case.
There is no denial in this regard in four corners of the Written Version rather they are silent in this regards. Even the OP No.3 did not come forward to deny that such type of letter was received by them.
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Further a reply issued by one Sangeeta Bhatia, Assistant Secretary for the Council for the Indian School Certificate Examination dated Feb 2008 there is mention of incomplete application and there was advice of sending original court affidavit, original newspaper announcement and other requirement. It has also not been challenged by the OP.
The sole defence is that the document in question was handed over to the candidate. If at all delivered/handed over obviously there would be office record maintained by the school authority. Without putting signature over the register concerned no certificate would be handed over to any of the student including the complainant. It is the normal procedure. But such register has not been produced to prove that the said certificate was actually delivered to the complainant and when or how it was so delivered. Even then that register is not produced before the Forum for appreciation about such delivery.
The said register is the best document to substantiate their such defence. It is the normal procedure in the case of delivery of vital document to any student or anyone. But such document has been withheld. Withheld of any vital document it goes against the person who did not produce it and the Forum can draw adverse inference against the School Authority for non production of the said Register.
Further, the complainant’s specific case of loss of the said certificate by the School Authority has been denied by the OP.
The complainant by way of affidavit duly sworn before the Ld. Judicial Magistrate, 1st Court made a specific case of lost by the School Authority and he was asked or pressurized by the School Authority to swear an affidavit stating such loss was caused from his custody and refusal of the same caused the cause of action for the instant case.
When the OP has not proved by cogent evidence and or documentary evidence that the said document was delivered to the complainant we are constrained to hold that such document has not been handed over to the complainant by any means and their such defence is not backed by any documentary evidence. Further more, both the documents addressed to the Chief Executive and Secretary (for the attention of Ms Sengeeta Bhatia) and its reply by Sangeeta Bhatia have not been denied by the OP specifically after receive of those documents remained silent in this regard.
Therefore, circumstances leads the Forum belief that the said document was lost from the custody of the School Authority by any means and to avoid their such liability
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they tried to avoid it pressurizing the complainant to state loss from his custody.
An Education Institution like the OP is a place of high estimate to the whole society which deals with the career, so as to say, the future of the students is expected to function in most disciplinary manner. But in the instant case the school authority without admitting their fault pressurized the complainant to admit the alleged loss on the fault on his part. The document may be misplaced or lost from any one’s possession on various ground but that does not mean it may be avoided and shifts the burden to the shoulder of the other. When there is intentional avoidance it amounts to the negligence on the part of the school and it amounts to deficiency of service and Unfair Trade Practice also. This sort of activities on the part of the School Authority is not expected and it should not be lost sight of that the Educational Institute should keep in mind that they are dealing with career of the students and slight inadvertence on their part has the effect of destroying such career. Absence of care and caution is a deficiency in service attracting the liabilities under the Act. They can not avoid their part in the fashion as pleaded in the Written Version and such type of method as adopted hamper the very sanctity of the institution and prestige of the institution has been lowered down to the estimation of the public including the student concerned.
Deficiency defines under Section 2(1)(g) of the said Act of 1986 which means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which being in force or has been under taken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
Service as provided under Section 2(1)(o) of the said Act of 1986 means service of any description which is made available to potential …………
Considering all the facts and circumstances in the light of our reasoning as stated above we are constrained to hold that the case of the complainant is more strengthen than that of the OP whose defence are not supported/backed by any documentary evidence and as such it has not been substantiated by any cogent evidence and thus they failed to prove their such defence.
The manner of denial the service in order to hand over the said certificate and avoidance to state the loss/misplace of the document in question on the fault on their part and persuasion for stating false affidavit upon the complainant it is be fitting for the Institution and such denial of service amounts to deficiency of service as provided under Section 2(1)(g) & (o) of the said Act. In action on their part it causes mental shock and agony to the complainant.
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It is partinent to mention here that the OP took a specific defence that original certificate is not so necessary for the better carrier of the complainant. This sort of argument is not at all acceptable and desirable. Certificate is a valuable piece of document and it requires in each and every step for future carrier. Such objection as taken by the OP is an ornamental document is nothing but an avoiding tendency to admit their fault as taken place and it has already been held that such document was lost due to the fault on the part of the OPs.
Be it mentioned here that the Ld. Advocate on behalf of the OP categorically submitted before the Forum that duplicate certificate is ready for delivery to the complainant and it has been brought from the competent authority by incurring a huge cost. When latches is on the part of the OP the question of incurring huge amount does not arise rather it is their liability to bring the same by any means to handover the same to the complainant concerned. However, when it has already been held that the document in question was lost from the custody of the OP and it has not yet been traceable there is no other option than to handover the duplicate copy to the complainant concerned.
The inaction on the part of the OPs No.1 & 2 and manner of refusal to handover the certificate in question denying the loss due to the fault on their part it amounts to deficiency in service as already held hereinbefore and due to such harassment to the complainant concerned in the manner as stated above obviously the complainant sustained pain, sufferings, shock, mental agony by the activities of the OPs and the psychology of the student despite a renowned institution did not feel so. Thereby the some sort of money is to be awarded causing mental agony to the complainant concerned by way of loss of the document in question, denial of truth and trying to evade their liabilities and pursuing the complainant to swear a false affidavit in this regard.
Therefore, the complainant is entitled to get an award of Rs.5,000/- from the OP No.1 &2. But there is no delay or violation of rules and regulations in issuing duplicate copy of the certificate concerned and they have no role to play toward the loss of the certificate and as such the claim of the complainant does not lie against the OP No.3.
Thus, the issues are decided in favour of the complainant.
In the result the case succeeds in part.
Hence, it is,
O R D E R E D
that the Consumer Case No.23/S/2009 is allowed on contest with cost of Rs.1,000/- against the OP No.1 & 2 but dismissed against the OP No.3 but without cost.
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The complainant is entitled to get a compensation amounting to Rs.5,000/- from the OP No.1 & 2 who are jointly and severally liable to pay the said sum to the complainant.
The OP No.1 & 2 are directed to pay the said amount of Rs.5,000/- together with cost of Rs.1,000/- of the instant case within one month from the date hereof failing which the amount shall carry interest @ 9% p.a. from the institution of the instant case i.e. 30.03.09 till realization of the awarded sum in default the complainant is at liberty to put the decree in execution.
The OP No.1 & 2 are further directed to handover the duplicate copy of the certificate as already withdrawn to the complainant immediately.
Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.
