CONSUMER DISPUTES REDRESSAL FORUM

Palakkad, Kerala

Dated this the 25^th day of August 2017

PRESENT : SMT. SHINY.P.R, PRESIDENT                 Date of filing: 21/12/2016

                : SMT. SUMA K.P, MEMBER

      : SRI. V.P. ANANTHA NARAYANAN, MEMBER

CC/205/2016

Narendran.A.K

S/o.Krishnan A.S

Azhakhapath, Kulakkad P.O.

Cherpulassery Via, Palakkad Dist.                                                 : Complainant

(By Adv. T.G. Suresh)

                                                              Vs

1. The Vice Chancellor

 University of Calicut,

 Calicut University Post,

 Thenjippalam, Calicut Calicut.

2. The Controller of Examinations

University of Calicut,

Calicut University Post,

Thenjippalam, Calicut.

(By Adv. V.V. Madan Mohan & K.V. Gopesh)

3. The Director of Technical Education

East Fort, Thiruvananthapuram.

4.Vice Chancellor

APJ Abdul Kalam Technological University,

Thiruvananthapuram.

5. The Principal College of Engineering

Trivandrum CET Campus,

Thiruvananthapuram,

Kerala - 695016

6.The Registrar

University of Calicut,

Calicut University P.O,

Thenjippalam, Calicut.                                                                 : Opposite parties  

  ( By Government Pleader )

O R D E R

By Smt. Suma K.P.Member

The complainant herein was a B. Tech student of NSS Engineering College, Palakkad in  the academic final year 2013-2014.  The supplementary paper ‘Dynamics of Machinery’ which is the sixth semester could not be attended along with 8^th semester examination (final) due to the ill – health of the complainant. He appeared for the said paper in April 2015 supplementary examination, which was actually held in June 2015. He also appeared for Graduate Aptitude Test in Engineering (GATE) 2015 and he become eligible for the admission to M.Tech course at the college of Engineering Trivandrum. The student who secured provisional admission for M.Tech course on the basis of Gate score  had to produce the B.Tech mark list before the college authorities on or before 30/09/2015. The complainant secured the admission with confidence that he would pass the B.Tech Examination  and produce the required  certificate on or before 30/09/2015 .  There is also specific Govt. order and order of Hon’ble  High Court specifically and categorically stating that the Universities have to publish the results within 45 days after the examination. The complainant waited upto    18/09/2015 for the result. Since the result was not seen published on 18/9/2015, he submitted a letter before the Dean, P.G Studies stating that result of B. Tech  was not yet received. The Dean forwarded the letter to the Controller of Examination, University of Calicut but no reply was received from that end nor was the result made available.   Again on 16/11/2015, a letter was sent to the Director, Technical Education through college authority requesting to extend the time for submission of the mark list of B.Tech.   However the Director of Technical Education gave some  time  consideration  for  the  submission  of the

B.Tech mark list to the Dean, P.G. Studies. As the complainant  was waiting impatiently for the B.Tech result, he was forced to write another letter to Controller of Examination, Calicut University to published the result or at least send the confidential mark list to the Dean, P. G studies. No reply for the same was received.  Meanwhile the result was published by the Calicut University in the second week of January 2016, showing that the complainant had failed in the “ Dynamics of Machinery” paper.  The complainant was sure that the valuation of that paper was not proper, as the  complainant had every chance to pass that particular paper.  On 22/01/2015 complainant applied for the revaluation and request for obtaining the answer papers of the subject and the same was provided to the complainant. The complainant requested the Pro Vice chancellor, APJ Abdul Kalam Kerala Technological University for permission to pursue the M.Tech Course provisionally until revaluation result would be published by the Calicut University, by  permitting the complainant  to register his name to the second semester of M.Tech. An order disappointing the complainant was obtained from principle, Engineering College, Trivandrum terminating the complainant from the M.Tech Machine design 1^st semester  course.  Repeated request to retain the complainant to purview M. Tech course at least until the publication of pending revaluation  result had resulted invalid. The complainant alleges that it was due to the negligence by the concerned authority of  Calicut University, proper valuation of the supplementary paper  “Dynamics of Machinery” could not be carried out and also the result was published  very late by not giving any attention to the Govt. Order directing the University to publish the results within 45 days after every examination. It is very much clear that the complainant could pass the subject paper after giving due request for the revaluation of the paper. The complainant being 22-23 years old when he secured his M. Tech admission after a great struggle and studies due to the non submission of the  B. Tech certificate, which was not because of his fault, lost his one year academic prospect in the young age. So many career opportunities including selection in Engineering branch  from Air Force was also lost due to the non production of B. Tech certificate. This also was due to the negligence of 1^st and 2^nd opposite parties, which amount to clear deficiency in service and unfair trade practice committed by the opposite parties.  Thus the complainant is legally entitled to get   a sum  of Rs. 20,00,000/- as compensation for mental agony and damage to future prospects and cost of Rs. 5,000/-.  Hence the complainant had approached before the Forum seeking an order  directing the 1^st opposite party to  pay a sum of Rs. 20,00,000/- (Twenty Lakh Rupees Only) as compensation for mental agony and damage to future prospects and also to direct the opposite parties to pay a cost of Rs. 5000/- to the complainant.

Notice was issued to opposite parties for appearance. Opposite parties entered appearance and filed version stating that   “ The University is not a ‘Service provider and a student who takes an examination is not a “Consumer” and hence a complaint of this nature will not lie against the University before this  Forum.”  It was also submitted that it was held by the Hon’ble Supreme Court that the Universities being educational institutions  were not providing any kind of service, and therefore, they neither fell  within the definition of service providers, nor the students fell with in the definition of consumers.

The opposite parties also submits that the question of maintainability had to be heard and decided as a preliminary issue.  Hence the question with regard to maintainability was heard as preliminary issue.

The counsel for the opposite party had placed the decision rendered by our Hon’ble High Court 210KHC 6214 where in it is stated that  University could not have been sued before the CDRF by treating it as a service provider – Student also could not have been treated as consumer – There is no liability for the college also as the agent of the university in so far as it conducts the examination, to announce the results or to answer any claim for compensation  by treating it as a service provider.

Our Hon’ ble Supreme court has also held in (2009 KDC4907) Bihar School Examination Board  V. Suresh Prasad Sinna that , When the Examination Board conducts and examination in discharge of its statutory function, it does not offer its “ service” to any candidate. Nor does a student  who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis a vis other examinees. The  process is not therefore availment of a service by a student, but participation in a general examination conducted   by the board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary consideration for availment of any service, but the charge paid for the privilege of participation in the examination. But the Act does not intended to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer scripts, or furnishing of mark sheets or certificate, there may be some negligence, omission or deficiency, does not convert the board into a service provider for a consideration, not convert the examinee into a consumer who can  make a complaint under the Act.

For the reasons mentioned above, we are of the view that the opposite party here in (University of Calicut) is not rendering any service as defined under

the Consumer Protection Act 1986. Hence the above complaint cannot be adjudicated before the Forum as it is not maintainable before this Forum.

Pronounced in the open court on 25^h August  2017. 

  Sd/-

   Smt. Shiny. P.R

                         President

                                                                               Sd/-

             Smt. Suma. K.P

                           Member

                                                                                             Sd/-      

                                                                           Sri. V.P.Anantha Narayan

                            Member