BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 284/2005 Filed on 02.08.2005

Dated : 30.06.2009

Complainant:

S. Remya, Beth-es-da, Choondupalaka, Kattakada – 695 592.

(By adv. S.A. Karim)

Opposite party:

The Secretary, Society for Information Technology Development, Vattiyoorkavu, Thiruvananthapuram – 13.

(By adv. Priya Murali)

This O.P having been heard on 11.05.2009, the Forum on 30.06.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Facts of the case are as follows: The complainant noticed an advertisement in a Malayalam daily inviting application for computer teachers training course by the opposite party. She sent application to join the course. Consequently, she received a reply from the opposite party directing her to appear for counselling at 10 a.m on 05.09.2003 at Ap-Tech Computer Education in Neyyattinkara. On 05.09.2003, the counselling day, the opposite party's Neyyattinkara office received Rs. 1,500/- as per receipt No. 0526564. Before appearing for counselling, the opposite party's office collected Rs. 50/- for application form and prospectus. On the same day the complainant was selected for the course. On the next day the complainant went for attending the course, then the opposite party's office told the complainant that there was no computer teachers training course and therefore she was admitted for computer course. So she returned home without attending the course. The complainant further did not attend the course and went several times for refund of the amount paid. On 26.07.2004 she sent an advocate notice demanding the refund of the amount. The opposite party neither replied nor refunded the amount. Hence this complaint.

The opposite party filed version contending the entire allegations against them. Opposite party admitted that their institution is the one conducting Computer Teacher's Training Course. In connection with the conducting of the said course, this opposite party has entered into arrangements with various institutions to conduct the said course through the said institutions. M/s Aptech Computer Education is one among the said institutions. It is further admitted that a call letter was sent to the complainant by this opposite party requiring her to appear for the counselling. However, after the counselling, the complainant had decided to be admitted for the other computer course on the instigation of the said M/s Aptech Computer Education. In fact, the amount of Rs. 1,500/- paid by the complainant was paid to the said M/s Aptech Computer Education and the said amount was neither collected by this opposite party nor was it collected for and on behalf of this opposite party. It was the foul play committed by the said M/s Aptech Computer Education by converting a student who wanted to get admitted to the course conducted by this opposite party to another course being conducted by them. The said M/s Aptech Computer Education has not paid any amount to this opposite party on account of the fee remitted by the complainant. This opposite party submits that the said M/s Aptech Computer Education who admittedly received the course fee from the complainant and misdirected the complainant to get admitted her to another course is liable to refund the said amount to the complainant and hence the said M/s Aptech Computer Education is a necessary party in the above matter. The above complaint, without impleading the said M/s Aptech Computer Education who is a necessary party, is bad for non-joinder of necessary party and is liable to be dismissed. This opposite party further submits that the said M/s Aptech Computer Education is not an agent of this opposite party and there is no principal agent relationship between the said M/s Aptech Computer Education and this opposite party. Only relationship between the M/s Aptech Computer Education and this opposite party is that the said M/s Aptech Computer Education is making arrangements for doing the aforesaid course of this opposite party in their institution. In fact, if the averments of the complainant as stated in the complaint are true, it was a foul play committed by the said M/s Aptech Computer Education by attempting to convert a student who went to his institution for getting admission to the most novel and well known course being conducted by this opposite party to another course conducted by them. Whatever happened in between the complainant and the said M/s Aptech Computer Education is not known to this opposite party. Anyway, the complainant had never had any direct dealings with this opposite party. This opposite party has been conducting its courses very efficiently without giving any room for any blemish from any quarters. After receipt of the lawyer's notice caused to be issued by the complainant, this opposite party had contacted the said M/s Aptech Computer Education and directed them to settle the issue if any, as this opposite party's name is unnecessarily been dragged into the issue. Then the said M/s Aptech Computer Education had informed this opposite party that they would be settling the issue with the complainant and hence this opposite party has not sent any reply to the lawyer notice caused to be sent by the complainant. These being the facts, this opposite party is not at all liable for any relief as claimed in the complaint.

Points that would arise for consideration are:-

1. Whether the complainant is a consumer or not as per Sec. 2 (d) of Consumer Protection Act?

2. Whether the complaint is bad for non-joinder of necessary parties?

3. Whether there is any deficiency in service or unfair trade practice from the side of opposite parties?

4. Reliefs and costs.

Points (i) & (ii):- In this case the complainant has produced 3 documents. The document marked as Ext. P1 is the letter sent by the opposite party to attend the counselling for joining Computer Teacher Training Course. Ext. P2 is the receipt issued by Aptech Computer Education for the acceptance of Rs. 1500/- as course fee dated 05.09.2003. Nowhere in this document we can see that the fee is for the course of Computer Teacher Training or the amount was received for and on behalf of opposite party. In this case the complainant herself admits that she was admitted in another course not for the Computer Teacher Training course. Ext. P3 is the copy of lawyer's notice issued by the complainant to the opposite party. In this case the complainant has no case that she had remitted any amount to the opposite party. As per Sec. 2 (d) (ii) of the Consumer Protection Act consumer means any person who [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised or under any system of deferred payment, when such services availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose].

In this case complainant has not produced any evidence to show that she has hired the service of the opposite party for consideration. In order to be a consumer for the purpose of services it is necessary that the services must have been hired or availed of for consideration. In the light of the above said discussion we find that the complainant is not a consumer. It is the duty of the complainant before she made the payment for admission to enquire about the details of the course and whether the course was conducted by the opposite party or not. Nowhere in Ext. P2 receipt mentioned the name of the opposite party.

And also the main contention of the opposite party in this case is that the Aptech Computer Education who has collected the fee from the complainant and misdirected the complainant to join another course is liable to refund the amount and hence the Aptech Computer Education is a necessary party. But the complainant never turned up to take steps to implead the Aptech Computer Education as a party in this case. We have also the same view that for the proper adjudication of this complaint Aptech Computer Education is a necessary party. For the above said reasons the complaint is also bad for non-joinder of necessary party.

In the above circumstances, there is no need for considering the other points.

In the result, the complaint is dismissed. No costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 284/2005

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of letter sent by the opposite party to the complainant

dated 30.08.2003.

P2 - Copy of receipt issued by Aptech Computer Education for

Rs. 1,500/- dated 05.09.2003.

P3 - Copy of lawyer's notice issued by the complainant to

opposite party.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT