Delhi

West Delhi

CC/22/360

HIMANSHU VERMA - Complainant(s)

Versus

UPGRAD EDUCATION & ORS. - Opp.Party(s)

17 Oct 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-III: WEST

GOVT. OF NCT OF DELHI C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD,

JANAK PURI NEW DELHI

 

Complaint Case No.  360/22

 

In the matter of:

 

	SH. Himanshu Verma GH-2/10-C, ANKUR APPARTMENT, PASCHIM VIHAR, NEW DELHI-110063                 …........Complainant
	Versus

 

1. UPGrad Education Private Ltd.

NISHUVI, GROUND FLOOR, 75,

Dr. ANNIE BESANT RD. WORLI,

MUMBAI, MAHARASHTRA- 400018.

 

 

2. O P Jindal Global University,

SONIPAT NARELA ROAD,

NEAR JAGDISHPUR VILLAGE,

SONIPAT, HARYANA 131001

,.......OPPOSITE PARTIES

 

 

 

DATE OF INSTITUTION: 13/09/2022 JUDGMENT RESERVED ON: 12/10/2022 DATE OF DECISION: 17/10/2022

 

Ms. Sonica Mehrotra, President

Ms. Richa Jindal, Member

Mr. Anil Kumar Koushal, Member

Order passed by MS Richa Jindal, Member

 

 

 

 

ORDER

1. That the complainant has filed a present complaint under section 25 of the CPA Act, 2019 alleging deficiency service on the part of OPs as the Quality and Content of education is very poor and claims compensation to the tune of Rs 4,80,000/-.

 

2. That the "Complainant" is a citizen of India and claim to be a "Consumer" as defined under the provisions of Section 2(5) & 2(7) of the Consumer Protection Act, 2019, respectively and is constrained to approach this Hon'ble Commission against the Opposite Parties for indulgence in "Deficiency of Service and Unfair Trade Practice" committed by the Opposite Parties against the Complainant, falling within the ambit and mischief of the provisions of the Consumer Protection Act 2019. The present complaint was filed under section 35 of the Consumer Protection Act, 2019. The matter was listed on 12/10/2022, wherein counsel for the complainant argued the matter on admission and order was reserved.

 

2. After going through the arguments as well as material placed on record, it reveals that the main question involved in the present complaint is whether the Complainant is a consumer and hence covered under the definition of the consumer as per the Consumer Protection Act,2019 or not?

 

3. The only aspect for consideration before us is whether the Complainant was excluded from the purview of the definition of “consumer” under Section 2(7) of the Consumer Protection Act, 2019 on account of the Education is a commodity or not. As per the law of land, it is already settled that issue of maintainability can be decided at any stage. Reliance is placed on the following Judgement:-

 

Hon'ble Supreme Court in case tilted as “Hewlett Packard India Ltd. Vs Shri Rama Chander Gehlot” in CA No. 7107/2003 decided on 16.02.2004 held that

“Issue of maintainability has to be decided before admitting or hearing the matter on merit.”

 

8. in FIRST APPEAL NO. 337 OF 2017 in a case titled “KOSHY VARGHESE THAVALATHI HOUSE, MELE VETTIPURAM, PATHANAMTHITTA Versus HDFC BANK LTD. & 2 ORS.” Held that

“It is settled law that the question in which law point is involved can be decided at any stage of the proceedings of the case.

 

4. In case title “Shashi Bhushan Shori vs The Chairman-Cum-Managing Director” decided on 4th October 2012 decided by STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH in First Appeal No. 230 of 2012 held that

“It is, however, the settled principle of law, that the Consumer Foras, at any stage of the proceedings, are duty bound to decide of their own, the legal questions, as to whether the complainant fell within the definition of a consumer; whether they (Foras) had territorial and pecuniary jurisdiction to entertain and decide the complaint;”

 

5. It would be pertinent to begin our discussion by referring to the definition of the term “consumer” under Section 2(7) of the Consumer Protection Act, 2019:

“2(7) “consumer” means any person who—

 

1. partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person but does not include a person who obtains such goods for resale or any commercial purpose; or
2. hires or avails of any service 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 service 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 are availed of with the approval of the first-mentioned person, but does not include a person who avails of such service for any commercial purpose.

Explanation.—For this clause—

1. the expression "commercial purpose" does not include the use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

(b)   the expressions "buy any goods" and "hires or avails any services" include offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

7.     Based on the facts and material brought on record, and oral arguments submitted by the complainant the specific points have emerged for consideration that Whether the complaint is maintainable under the Consumer Protection Act?

8.     in our considered opinion the education is not commodity and student taking education cannot be said to be a consumer. Reliance is upon the following judgments.

a.     Rajendra Kumar Gupta vs. Swarup Public School 2021 (1) CPJ (NC) 368 dated 2.2.2021, wherein, it is held as under:

"9. In Anupama College of Engineering v. Gulshan Kumar and Anr. the Hon'ble Supreme Court has held:

"Leave granted. The only question raised in this case is whether a college is a service provider for the purposes of the Consumer Protection Act, 2019. Learned Counsel for the appellant has placed the decision of this Court in Maharshi Dayanand University v. Surjeet Kaur. (2010) 11 SCC 159.

b.     The aforesaid decision was followed by this Court in SLP (C) No. 22532/2012 titled as P.T. Koshy &Anr. v. Ellen Charitable Trust &Ors. The order reads as follows: "In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur, wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986. In view of the above, we are not inclined to entertain the special leave petition. Thus, the special leave petition is dismissed". In view of the consistent opinion expressed by this Court, the orders passed by the National Consumer Disputes Redressal Commission in Revision Petition No. 3571/2013 and Revision Petition No. 807/2017 are not in accordance with the decision of this Court and are therefore set aside. The civil appeals are allowed."

9.     In the landmark judgement of Manu Solanki and Ors. vs Vinayaka Mission University I (2020) CPJ 210 (NC), while addressing the issue whether an Educational Institution is a 'Service Provider' for the purpose of Consumer Protection Act, 1986, Larger Bench of this Commission held: -

"33. Keeping in view Maharshi Dayanand University (supra) has addressed on merits and the question of law in detail and the same has been consistently followed by the Hon'ble Supreme Court in P.T. Koshy &Anr. (supra), Prof. K.K. Ramachandran (supra) and the latest decision of Anupama College of Engineering (supra), we are of the considered view that the ratio laid down by the Hon'ble Supreme Court in the last judgment that is Anupama College of Engineering (supra) has to be followed.”

10.   It is settled law, as stated in the aforementioned precedents set by the Hon'ble Supreme Court as well as this Commission, that Educational Institutions do not fall within the ambit of the Consumer Protection Act, 1986 and education which includes co-curricular activities such as swimming, is not a "service" within the meaning of the Consumer Protection Act, 1986. I, therefore, concur with the view of the State Commission that the Complainant is not a consumer and the Complaint not being covered under the Consumer Protection Act, 1986 is not maintainable."

11.   In “LBS Group of education institute vs. Arjun Singh 2021 (1) CPJ (NC) 151” dated 31.8.2020 wherein, it is held as under:

"7. We have heard learned Counsels for the Parties and perused the documents placed on record. In our considered view, a Preliminary Issue as to whether Educational Institutions providing Education and other Incidental Activities to the students come within the purview of the Consumer Protection Act, 1986 or not arises in this case and the said issue is squarely covered by the decision of a Larger Bench of three Members of this Commission in the case of Manu Solanki and Others Vs. Vinayak Mission University and other connected cases, 1(2020) CPJ, 2010, wherein the Larger Bench has held that Educational matters do not come within the purview of the Consumer Protection Act, 1986 and, therefore, the Complaint is not maintainable.”

12    We are of the considered view that conduction of Coaching Classes does not fall within the ambit of definition of 'Education' as defined by the Hon'ble Seven Judge Bench of the Supreme Court in P.A. Inamdar (Supra). Coaching Centres cannot be equated to regular schools or colleges which are regulated by a Regulatory Authority and also confer a Degree/Diploma on the student who has passed in the examinations conducted as per the Rules and norms specified in the statute and also by the concerned Universities. Therefore, strictly speaking Coaching Centres cannot fall within the definition of 'Educational Institutions'. We refrain from making any comments on the submissions of the learned Counsel for the Complainants with respect of Coaching Institutions indulging only in 'rote learning'.

13.   In view of the foregoing discussion, we are of the considered opinion that the Institutions rendering Education including Vocational courses and activities undertaken during the process of pre- admission as well as post-admission and also imparting excursion tours, picnics, extra co-curricular activities, swimming, sport, etc. except Coaching Institutions, will, therefore, not be covered under the provisions of the Consumer Protection Act, 1986.

14.   In Civil Appeal No. 17802 of 2017 between “Anupama College of Engineering vs. Gulshan Kumar and Ors.” dated 30.10.2017 by Hon'ble Supreme Court wherein, it is held as under:

"Learned counsel for the appellant has placed the decision of this Court in Maharshi Dayanand University v. Surjeet Kaur [(2010) 11 SCC 159]. The aforesaid decision was followed by this Court in SLP (C) No. 22532/2012 titled as P.T. Koshy &Anr. v. Ellen Charitable Trust &Ors. The order reads as follows:

In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur[(2010) 11 SCC 159] wherein this Court placing reliance on all earlier judgments has categorically held that education is not a Signature Not Verified commodity. Educational institutions are not providing Digitally signed by MEENAKSHI KOHLI Date: 2017.11.02 any kind of service, therefore, in matter of admission, 16:56:02 IST Reason: fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986."

15.   Maharshi Dayanand University vs. Surjeet Kaur dated 19.7.2010 wherein, it is held as under:

"19. The third and the most important issue that deserves to be answered is the competence of the District Forum and the hierarchy of the Tribunals constituted under the Act 1986 to entertain such a complaint. In our opinion, this issue is no longer res integra and has been extensively discussed by a recent judgment of this Court in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha, (2009) 8 SCC 483, where it has been held as under :-

12.When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services" 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 education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination.

16.   The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi-commercial activity). But the Act does not intend 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 certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service-provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a `service provider' and a student who takes an examination is not a `consumer' and consequently, complaint under the Act will not be maintainable against the Board."

17.   Relying on a catena of judgments including, FIITJEE vs K.Udaya Geetha. FIITJEE vs Lanka Sadanand applying the ratio laid down in Maharshi Dayanand University vs Surjith Kaur (2010 (11) SCC P.159, P.T. Koshy v. Ellen Charitable Trust, (2012) 3 CPC 615 (SC), the Opposite Party raised the preliminary objection of maintainability holding that ‘education is not a commodity and the complainant-student is not a consumer and hence educational institutions do not come under the purview of the Consumer Protection Act.

18.   Considering the ratio laid down in the above referred judgments that the education is not commodity and service imparting education institution cannot be held to be service provider and student cannot be said to be a consumer. Therefore, consumer court has no jurisdiction to dealt with the matter pertaining to the deficiency of service in education.

19.   Educational institutions are not providing any kind of service, therefore, in matter of admission, fees, etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 2019".

20.   We, therefore, dismiss the present complaint as non-maintainable before this Commission without entering into merits of the dispute between the opposing sides and the complainant company is free to agitate its case in any appropriate court as per law. However, the complaint is given the liberty to file a fresh complaint. Accordingly, the complaint filed by the complainant is dismissed without prejudice to the rights of the complainant to seek him appropriate remedy before the appropriate Court.

21.   The time spent by him before the District Commission while prosecuting the complaint shall be excluded by that authority while computing the period of limitation for filing the case before appropriate authority, etc. as mandated by Hon’ble Supreme Court Judgement in a case titled as M/S Laxmi Engineering Works vs P.S.G. Industrial Institute; Equivalent citations: 1995 AIR 1428, 1995 SCC (3) 583

“The appeal accordingly fails and is dismissed but without costs. If the appellant chooses to file a suit for the relief claimed in these proceedings, he can do so according to law and in such a case he can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act while computing the period of limitation prescribed for such a suit. “

22.   The complaint is therefore directed to be returned to the complainant along with annexures against acknowledgement. A copy of the complaint should be retained for records. The complaint is disposed of accordingly in the above terms.

23.   A certify copy of the order may be given to all parties after receiving the application for obtaining certify copy as per the direction received from Hon’ble State Commission. Order be sent to www.confonet.nic.in.

24.   File be consigned to record room.

25.   Announced on 17.10.2022.

(Richa Jindal)         Member

(Anil Kumar Koushal)               Member

(Sonica Mehrotra)                         President