BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 24^th DAY OF MARCH 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act, 2019 (herein under referred as an Act) through GPA holder of the complainant for the following reliefs against the OPs:-

(a) Direct the OPs to pay of Rs.17,79,480/- towards the loss of stipend that would be obtained in Ph.D.

(b) Direct the Ops to pay Rs.19,46,255/- towards the loss of benefit of tuition waiver of 3 semesters.

(c) Direct the OPs to pay Rs.3,70,800/- towards the VISA fees and other Miscellaneous expenses that will incur towards VISA extension for second time to pursue Ph.D program including travel to US Embassy and back outside USA.

(d) Direct the OPs to pay Rs.10,08,576/- towards the expenditure on additional living expenses.

(e) Direct the OPs to pay Rs.1,48,320/- towards expenditure on applications to Ph.D program to 12 Universities which includes application fee, GRE, Transcripts (MS and BE), Courier fees etc.,

(f) Direct the OPs to pay Rs.34,00,000/- towards compensation for mental stress, agony etc.,

(g) Direct the OPs to pay Rs.13,34,880/- towards the expenditure of the said amount by the complainant for taking up MBA course to wait up for one year for the Ph.D program on account of the negligence of the OPs.

(h) Pass such other orders or issue such other directions.

2. The case set up by the complainant in brief is as under:-

The complainant has completed his B.E. in Civil Engineering in First Class with Distrinction from MITK, Udpi, affiliated to Visvesvaraya Technological University in the year 2014.  Thereafter, he applied for Master’s programme in various Universities and he was confirmed with Master degree during August, 2017.  During the master’s degree, the complainant has received Graduate Assistantship, Research Grant and various research awards.

3. It is further case of the complainant that after master’s degree, as per the advice of his professor, the complainant wanted to pursue a Ph.D in Civil and Environmental Engineering in the year 2018 and he wanted to apply to different Universities for Ph.D programme.  The complainant having shortlisted 12 most reputed Universities submitted an application for Ph.D programme.  The transcripts provided by the OPs in the official sealed cover for consideration were also submitted. He has paid required fee to each transcript to the OPs.   However, in March 2018 he received intimation about rejection of application from University of Louisiana.  Thereafter, he received an E-mail correspondence with attachment on 16^th May 2018 from University of Louisiana, wherein he noticed that his application was rejected due to the wrong transcripts under graduate bachelor of Engineering issued by OPs.  Thereafter, he immediately approached the OPs for deficiency of service and negligence.  The OPs having accepted the mistake, assured the complainant to send correct transcripts.  But, complainant lost an opportunities of falls in the year 2018.  Thereby, he was forced to take MBA for which he spent huge amount due to the mistake committed by OP.  The complainant lost stipend, other benefits and he was forced to spend expenditure on execution.

4. The complaint is within time.  Even though, cause of action commences on 16^th May, 2018.  But, the Hon’ble Supreme Court of India extended limitation from 15.03.2020 to 28.02.2022.  Therefore, complaint is not barred by limitation.

5. After receipt of notice, OP Nos.1 and 2 only appeared and OP No.1 filed version.  The OP No.1 contends that the complaint is not maintainable.  The complainant is not a consumer and OP being the Education Institution, is no rendering any service.  The complaint is not maintainable before this Commission in view of different decisions of the Hon’ble Supreme Court of India and Hon’ble National Commission.

6. The complainant having applied for transcripts on 30.10.2015, collected the same on 06.11.2015.  The complainant kept quite for a long time without making any effort to see any mismatch.  There is delay of four years inr filing the complaint. The OPs are not liable to pay any amount as there is no deficiency of service and negligence.  They request to dismiss the complaint.

7. The complainant has filed affidavit evidence of his power of attorney holder and got marked 26 documents.  The affidavit evidence of Registrar of OP No.1 has been filed.  No documents are marked on behalf of OPs.    

8. The following points arise for our consideration:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

9. Our answers to the above points are as under:

       Point No.1:  Negative

      Point No.2:- Negative

      Point No.3: As per final orders

REASONS

9. Point Nos.1 and 2:  In order to consider the case set up by the complainant and defence set up by the OPs that whether the complainant is a consumer, whether OPs are service providers and is there any consumer dispute to decide the controversy between the parties. In order to appreciate these contentions, it is relevant to refer the documents produced by the complainant with reference to the allegations made in the complaint which are being spoken by the GPA holder of the complainant.
10. The complainant has specifically pleaded in para 24 that that in view of the order of Hon’ble Supreme Court of India, the complaint is not barred by limitation.  At this stage, it is relevant to refer circular No.7/2022 issued by Hon’ble National Commission wherein the earlier order to giving benefit of limitation from 15.03.2022 extended till 28.02.2022.  Therefore, complaint is not barred by limitation.
11. It is admitted fact that the complainant being student of MITK, Udupi College passed B.E in Civil Engineering first class with distinction in the year 2014 and this college is affiliated to Visvesvaraya Technological University, Belgaum which is being represented by the OPs. Ex.P.1 is the power of attorney executed by the complainant in favour of Shwetha Boregowda who has filed affidavit evidence.  Ex.P.2 proves that the complainant has obtained Bachelor of Engineering under University seat No.4MK10V007 in Civil Engineering with first class with distinction and certificate came to be issued in May, 2015.  Ex.A.3 is the copy of the marks-card issued by University of Arkimsils at Little Rock about Masters of Science Post graduation.  This fact is also proved from Ex.A.4.  Ex.A.5 is also indicates that the complainant has secured his masters degree from UALR University.  On 12.02.2018, 04.01.2018 and 02.12.2017 G-mail were issued to the complainant.  E-mail dated 12.02.2018 indicates that the complainant was called upon to produce official college transcript and they asked the complainant to wait for four weeks after submitting the application.  Under Ex.A.7, the complainant made a payment to Little Rock College in April 2018 and May 2018.  However, ULAR Institution issued an E-mail to the complainant on 16.05.2018 stating that there was an error in the transcript mentioning the name of RishaB I Kothari on the top with University No.4NN091S023 issued and 2^nd page of the transcript disclose the name of complainant with his University seat No.4MK10CV007 and it appears dated 15^th May, 2018.  According to the OP No.1 and affidavit evidence that the complainant had applied for transcript on 30.10.2015 and collected the same on 06.11.2015.  The complainant has not denied this fact either by filing rejoinder or in the affidavit evidence of his power of attorney.  Later on, the complainant under Ex.A.9 dated 22.05.2018 addressed a letter to OP No.1 stating that the University attached the wrong transcript of Rishab I Kothari.  Similarly on 22.05.2018, the complainant had sent another E-mail as per Ex.A.10 to OP No.1 reiterating the earlier facts and contending that his graduate admission was rejected from any Universities and sealed transcript does not match with actual online graduate application submitted by him.  But, complainant has not produced the copy of online graduate application submitted by him showing what information he had furnished to the University of USA in the application.  An adverse inference can be drawn against the complainant in non-production of online graduate application.  However, on 22.05.2018 the OP No.1 had send E-mail expressing apology for error and OP No.1 agreed to arrange to send correct transcript to the addressee.  The complainant produced along with explanation letter sent by the OP No.1. It clearly indicates that the incorrect transcript was issued by the OP No.1.  Even though, complainant refers that most of the Universities including safest declaim his application.  The question arises, whether this fact is proved.
12. As per Ex.A.11 UA Little Rock University by intimation dated 17.07.2018 asked the complainant switch over his application to start in spring 2019.  It means, an opportunity was granted to the complainant to apply for Ph.D course which starts in spring 2019.  According to the complainant, he came to know about in correct transcript in May, 2018.  But, UA Little Rock University has created opportunity by sending letter in July 2018.
13. The complainant by issuing legal notice dated 01.12.2020 has contended that he wanted to purse Ph.D in Civil Engineering and Environment in the year 2018 and he applied for 12 Universities.  Ex.P.12, 13 and 14 demonstrate service of this notice on the OPs.  The OP No.1 has issued reply as per Ex.P.15 contending that the complainant applied for transcript with VTU Regional Centres on 30.01.2015 and transcripts were collected on 06.11.2015.  We failed to understand why the complainant has not opened one of the transcripts on 16.01.2015 to ascertain the correctness of the transcript.  The complainant remained silent from 06.11.2015 till 2018 without opening the transcript.  It is not the case of the complainant that OPs issued incorrect transcripts in 2015.  As admitted by the complainant, he obtained masters of Science degree in August, 2017 in University of Arkilnsils Ill Little Rock.
14. Ex.A.16 is the payment receipt, he remained silent from 06.11.2015 till 2018 without opening the transcript.  It is not the case of the complainant that OPs issued incorrect transcripts in 2018.  As admitted by the complainant, he obtained masters of Science degree in August, 2017 in University of Arkilnsils Ill Little Rock.
15. Ex.A.16 is the summary statement issued by University of UALR at Little Rock on 28.08.2018 showing amount due the $8413.85.  Ex.A.17 is the display transcript about Master Degree of the complainant.  Ex.A.18 is the graduate record of the complainant.  Ex.P.19 is the certificate under Section 65(B) of Evidence Act with regard to the E-mails produced under Ex.P.20 and other documents under Ex.P.21 to Ex.P.26.
16. We carefully perused the E-mails under Ex.P.20 on 15.03.2018, the University of Washington intimated the complainant that his application was not sufficiently competitive for admission.  It indicates that the complainant was not having sufficient marks to get admission in University of Washington graduate.  Similarly, Reply of University of Miami dated 14.05.2018 that application of complainant was not positive.  University of California, Merced also informed that they were unable to offer admission to the complainant.  The another University by letter dated 16.02.2018 informed the complainant that UCLA has made a decision on the application of the complainant for environment and sustainability for fall 2018.  University of California, Irvine also informed the complainant by intimation dated 11.04.2018 that his request for graduation programme for fall 2018 has been denied.   UC Devis also informed the complainant on 03.06.2018 asking the complainant to view the University decision letter.  Similarly,  University of Arkansas expressed that they unable to accept the complainant in their programme of study. Similarly, the E-mail dated 24.09.2018 it was intimated to the complainant that his application has withdrawn from consideration and inactivated. But, these communications never indicate that candidature of the complainant was denied due to incorrect transcript.  Later on, 09.05.2018 UA Little Rock University called upon the complainant to submit official transcript via the USPS by 30.04.2018.  Further, communication between complainant and UL Lafayette Graduate School clearly indicate that the transcript of the complainant issued by Visvesvaraya Tech University are unofficial transcript and they cannot continue with his application, they called upon the complainant to send official transcript.  The same University also intimated the complainant on 16.05.2018 to provide photo copy of his transcript for better understanding of mistakes.  Later on, as intimated in the preceding paragraph UA Little Rock University by letter dated 16.05.2016 had sent copy of transcript showing the name of Rishab I Kothari.  The copy of the online application submitted by the complainant is most essential to understand whether mistake was kept, the complainant has not produced this document.  Ex.P.23 to Ex.P.25 are the details of expenses and Ex.P.26 sealed transcript of complainant issued by OP No.1.
17. Even though, OPs have not produced any document.  But, OPs contend that the complainant is not a consumer and University has not provided any service.  Even though, OP No.1 admits mistake crept while sending transcript.  But, complainant has not produced any documents to show that he has obtained transcript from OP No.1 by paying necessary fee.  The complainant has not produced any document for having paid any consideration to get either official or unofficial transcript.
18. It is one of the contention of the OPs that the OP No.1 is the Education Institution and complaint against Education institution is not maintainable.
19. To controvert this contention, advocate for the complainant vehemently argues that the complaint against the OPs is maintainable.  In support of her argument, she places the reliance on certain decisions which are as follows:-

1. Anand Institute of International Studies Vs. Sani Jaggi and Ors. – IV (2019) CPJ 589 (NC), 2019(3) CPR 598.
2. FIIT JEE Ltd., Vs. Vikram Seth and others – II (2019) CPJ 140 (UT Chd.)
3. Buddhist Mission Dental College and Hospital Vs. BHupesh Khurana and others (2009) 4 SCC 484.
4. Bhupesh Khurana and others Vs. Vishwa Buddha Parishad and others – 2001(1) CPC 140, 2003 (1) CPR 49.
5. Punjan Urban Planning and Development Authority and others Vs. Vidya Chetal and others – AIR 2019 SC 4357.

20. We carefully perused the facts and ratio involved in all the decisions.  In the first decision, the appellant institution had issued advertisement that job will be provided to the complainant in reputed University of Australia.  The complainant being influenced by such advertisement, took admission.  Under such circumstances, it was held that the complaint against such institution was maintainable.  But, facts and ratio of this decision are not applicable to the present case on hand.
21. In the 2^nd decision, the Hon’ble State Commission, Chandigar held that the complaint against Education institution was maintainable.  The complaints were filed for refund of fee and compensation.  But facts of this case are not applicable to the present case on hand.
22. In the 3^rd decision, Hon’ble Supreme Court of India categorically held that the complaint against College was maintainable which practiced unfair trade practice on the complainant.  But, in this case, no unfair trade practice is practiced on the complainant.  Moreover, the education institution was neither recognized nor affiliated, could not have started admission.  But, in this case, the Institution of the OPs is recognized University.  Therefore, fact of the above decision are not applicable to the present case on hand.
23. In the 4^th decision, the Hon’ble National Commission, the institution issued advertisement for admission of BDS Course for 91-92 stating that the college is under Magadh University, Bihar and Dental Council of India, New Delhi.  There was unfair trade practice and mal-practice.  Under such circumstances, the complaint against college was admitted. The facts of this decision are not applicable to the present case on hand.
24. It is true that the Hon’ble Supreme Court of India in BWSSB Vs. A.Rajappa held that in case of University or an education institution, the nature of activity is exhypothesis education which is the service to the student, Irgo University as a Industry.  The decision of A.Rajappanwas based on triple test with regard to workman, industry and industry disputes. But, here in this case is not concerned about industry and industry disputes. 
25. In the last decision of Hon’ble Supreme Court of India categorically ruled that certain statutory dues, such as fee can arise out of a specific relation.  But, in this case the complainant has not produced any piece of paper for having paid fee to get trancripts from the OP.  Therefore, this decision is not applicable.
26. The advocate for the OPs while opposing the complaint argues that the OP is a not a service provider and complaint against University is not maintainable.  In support of their arguments, they places the reliance on the following decisions:-   

1.  Bihara School Examination Board Vs. Suresh Prasad Sinha (2009) 8 SCC 483.
2. Maharshi Dayanand University Vs. Surjeet Kaur (2010) 11 SCC 159.
3. Anupama College of Engineering Vs. Gulshan Kumar and others Civil Appeal No.17803/2017.
4. P.T.Koshy and another Vs. Ellen Charitable Trust and others SLP (C) No.22532/2012.

27. The decision Nos.1 and 2 are most relevant and decision No.2 has been referred in decision Nos.3 and 4.
28. In the first decision, the Hon’ble Supreme Court of India categorically held that statutory Board provide any service in the senses the term is used in the Act and examine is not a consumer.
29. It is admitted by the complainant that he was student of MITK, Udupi and secured BE in Civil Engineer from that college which is affiliated to Visvesvaraya Technological University.  The complainant neither paid fee to OPs for education purpose nor directly obtained any education/service from the OPs. The ratio involved in this decision squarely applies to the present case on hand.
30. In the 2^nd decision, it was categorically ruled that respondent Surjeet Kaur neither consumer nor University is rendering any service to its student as admitted by the complainant.  The complainant was a student of MITK College, Udupi, where he studied 4 years B.E. Civil graduation.
31. In 2^nd decision, respondent persuades two courses simultaneously and subsequently, the complainant claim for direct to award Bed degree, his contention was rejected.  The Hon’ble Supreme Court of India while setting aside the order of Hon’ble National Commission categorically held that the complainant is neither a consumer nor University is rendering any service.  This decision squarely applies to the present case on hand.
32. When the complainant is not considered as consumer, OP University is not considered as service provider, there is no question of deficiency of service.  The complaint against OPs is not maintainable.  Accordingly, complainant is not entitled to any of the reliefs.
33. Point No.3:- Having regard to the discussion referred above, complaint requires to be dismissed. We proceed to pass the following 

  O R D E R

1. The complaint is dismissed.
2. No costs.
3. Furnish the copy of this order to both the parties.

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 24^th March, 2022)

Documents produced by the Complainant which are as follows:-