For the Petitioner : Joynarayan Chowdhury, Kamal Kanti Sarkar, Advocates.

For the O.Ps. :      Asit Baran Chowdhury, Advocate.                     

                           

 

          The complainant Mrs. Sukla Dutt Nandi has knocked before the door of the Forum with the allegation against the respondents, The Secretary, Holy Child English Academy, Malda, Debasis Sarkar, Rector of Holy Child English Academy, Malda and the Principal of the said academy contending inter alia that her daughter, Atrayee Dutt Nandi was a student of Standard X and her son Gaurab Dutt Nandi was a student of Standard VIII of the respondent school, who were admitted in the academic year 2006. According to the complainant she was very much regular in the matter of making payment of fees and other expenses for their wards. It is also her case and due to physical illness their wards could not attend school for a couple of days. On 11^th October, 2007, in the prayer assembly, her wards were announced to be expelled from the school. It is also her case that the father of the wards approached the Respondent No. 2 viz. Debasis Sarkar, Rector but he was verbally and physically assaulted by him. Again it is also her case that her daughter approached the respondents in order to know the reason of their expulsion from the school but she was also abused and was also threatened that in the event of her poking nose for the cause of her brother she would be driven out from the school and would face dire consequences. On 17^th September, 2007 ( wrongly written as Sept, 2008), her daughter was told to be expelled from the school. She was not given the registration certificate. Nor was she given any written paper regarding expulsion. The complainant for several occasions approached the School Authority for getting transfer certificate for her son and registration certificate for her daughter but the School Authority refused to give the same. The wards of the complainant, as a result of the aforesaid episode were not able to attend school. With all the above, the complainant has prayed for direction upon the School Authority in the matter of issuance of transfer certificate and registration certificate for their wards and also has prayed for damages for Rs. 95,000/- for harassment, mental agony etc.

 

          O.P.s have been contesting the case by filing written version wherein they have denied all material allegations contained in the petition of complaint. According to the O.P.s the case is also not maintainable because in the given facts and circumstances of the case it will not come within the purview of Consumer Protection Act. The positive case of the respondents is that the wards of the complainant were found to be irregular and absent from the institution without showing any reason. The said matter was brought to the notice of the parents by the institution by issuing letters dt. 08.07.2007 and 31.08.2007. Necessary fees were not also paid regularly according to the norms of the institution. On 09.07.2007 the institution was informed regarding illness of one of the wards but it was brought to the notice of the guardian that in order to appear in the final examination the students were supposed to acquire 75 % attendance in the class. One of the wards viz. Atrayee did not achieve the minimum required attendance in her previous institution wherefrom she came to the respondent institution. Further case of the respondent is that even after all the irregularities made on the part of the wards the institution brought registration certificate of Atrayee for appearing at final examination of the Council, but she did neither appear, nor informed the institution to that effect albeit sitting arrangement was made for her. However, the institution is always ready to provide transfer certificate and registration certificate as prayed for on the norms of the institution like payment of dues being followed. With all these the respondents have prayed for dismissal of the case.

 

Upon pleadings of both parties following issues are framed for adjudication of the disputes of the parties.

1)                 Whether the complainant / wards are the consumer falling within the provisions of Consumer Protection Act or not ? 

 

2)                 Whether the complainant is entitled to get any relief as prayed for or not ?

 

 

             In the plank of the argument the ld.lawyer on behalf of the opposite parties have submitted that the complainant can never be said to be the ‘Consumer’ falling within the definition of Sec. 2(1)(d) of the Consumer Protection Act and for that reason the complainant is not entitled to get any relief whatsoever. The ld.lawyer on behalf of the complainant has refuted his contention and by taking us through the relevant provisions of the Act he has tried to impress upon us that in as much as the wards of the complainant are admittedly the students of the O.P. school by paying fees and O.P. school has been imparting education after charging fees, the complainant must be treated as a consumer because charging of fees falls within the ambit of service as defined in the Act. We have given our cerebral thought over the submission made by the ld.lawyer on behalf of both parties and we are of considered view in as much as the O.P. institution has been imparting education by charging fees, the complainant must be treated as a consumer and as such there cannot be any ray of doubt that the case is perfectly maintainable in law. The issue is thus disposed of in favour of the complainant.

 

 

          The main point which is posed for consideration is whether there is any deficiency on the part of the School Authority for not giving any relief to the complainant so to say their wards. The documents which have been submitted before the Forum on behalf of both parties are the glaring examples that the wards of the complainant have been prosecuting studies in the respondent school. Exbts. 1 & 2 are the two receipt books wherefrom it goes to show that payment of monthly tuition fees were duly made up to the month of August, 2007. These two documents unequivocally speak that by way of charging fees the respondent School Authority have been imparting education to the wards of the complainant.

 

The allegation of using vituperative language made by the School Authority upon the complainant and her husband, in our view has not been proved to the satisfaction of the judicial conscience of the Forum because of self-contradictory evidence of the complainant as well as her husband. Again the physical assault upon the husband of the complainant has also not been proved by way of cogent evidence. Had there been any such assault definitely immediate action ought to have been taken by that very person who was assaulted but that has not been done so in the instant case.

 

Again the another allegation of expulsion of both the wards of the complainant from the school which was said to be pronounced in the assembly prayer has also not been proved. The complainant deposed that she heard from her wards regarding expulsion, but their wards nowhere in their evidence have stated that they relayed the matter of expulsion to their mothers. Had there been any such episode in that case definitely either the complainant herself or her husband ought to have approached the institution in order to get remedy for the purpose.

 

Now let us switch over another point as to whether there was any deficiency on the part of the School Authority for not giving registration certificate to the daughter of the complainant and for not issuing transfer certificate to the son of the complainant. The School Authority in their written version has admitted that they have brought registration certificate for Atrayee for appearing at final examination of the Council, but the complainant did neither appear, nor informed the institution to that effect though sitting arrangement for the student was made accordingly. Admittedly the said registration certificate was not issued to the concerned student. Even assuming for argument sake that the complainant / student, did not demand for the registration certificate, it is the paramount duty of the School Authority to issue the registration certificate thinking the prospect of the concerned students. It cannot be gain-said that without registration certificate the student concerned will not be allowed to appear at the final examination. In our view even if there was any kind of default on the part of the complainant / student in that case thinking the prospect of the student concerned the registration certificate ought to have been issued to the student and here in the instant case by not issuing the said registration certificate the School Authority did not act properly and for this reason we are of considered view that there was deficiency in service on the part of the School Authority in this regard.

 

We are not unmindful to note here that for not issuing registration certificate in favour of the student concerned she had to suffer lots of mental agony and she could not achieve her aspirations of studies. Therefore, in our considered view at least a consolidated certain amount of compensation should be awarded in favour of the student concerned though such compensation is not the measuring rod to compensate her irreparable loss.

 

Now let us come over another point as to whether the school authority were negligent for not issuing transfer certificate to the student concerned or not. Within the four corners of the record there is no cogent and convincing evidence, be documentary or oral, that the complainant approached the School Authority for the purpose of getting transfer certificate for their son, Gaurav Dutt Nandi . It cannot be denied that the School Authority is not supposed to read the mind of any person and until and unless it is demanded, the School Authority cannot be expected to issue the same. So in the instant case we do not find any irregularity on the part of the School Authority for not issuing transfer certificate in favour of the son of the complainant.

 

In the above conspectus and after giving our anxious considerations over the submissions made on behalf of both parties and also in tune with the spirit of the law, we are of the view that the complainant has been able to prove her case partly and accordingly she is entitled to get relief only for her daughter Atrayee Dutt Nandi which we have already discussed supra. The issue is thus disposed of.

 

It is, therefore,                         ordered

 

that Malda D.F. Case No. 21/2008 be and the same is allowed in part on contest without any order as to cost.

 

          The O.P. Nos. 1, 2 & 3 [1.The Secretary, Holy Child English Academy, Noonbahi Road P.O. Malda, P.S. English Bazar, Distt. Malda, West Bengal

2. Debasis Sarkar, Rector, Holy Child English Academy Noonbahi Road, P.O. Malda, P.S. English Bazar, Distt. Malda, West Bengal 3. Principal, Holy Child English Academy, Noonbahi Road, P.S. English Bazar, P.O. Malda, Distt. Malda  West Bengal]are hereby directed to issue the registration certificate in favour of Atrayee Dutt Nandi ( daughter of the complainant) under Regd. Post with A.D. within 15 days from the date of this order.                                           

          The complainant do get award of compensation to the tune of Rs. 5000/- as against the O.P.s for their whimsical act. The O.P.s are hereby directed to pay the aforesaid compensation of Rs. 5,000/- ( Rupees Five Thousand Only ) within 15 days from the date of this order failing which the complainant / petitioner would be at liberty to the get the award executed through the Forum.

 

          Let a copy of this be given to both the parties free of cost.

Sd/-                                         Sd/-                               Sd/-

Dr. Soumen Sikder                 Smt. Sumana Das                   Sri Sibsankar Pal

Member                                   Member                          President