Chandigarh

StateCommission

A/162/2018

Indira Gandhi National Open University - Complainant(s)

Versus

Vijay Kumar - Opp.Party(s)

Raghubir Tejpal, Adv.

15 Nov 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	162 of 2018
Date of Institution	:	07.06.2018
Date of Decision	:	15.11.2018

 

1.  Regional Office (IGNOU) Sector 14, Panchkula.

Regional Centre: Chandigarh through its Director.

2.  Indira Gandhi National Open University, Maidan Garhi, New Delhi 110 068 through its Director.

…….Appellants/Opposite Parties.

Versus

 

Vijay Kumar, Resident of House No.267, Sector 10, Panchkula.

                                                      ...Respondent/Complainant.

 

Appeal under Section 15 of the Consumer Protection   Act, 1986  against   order dated 07.05.2018 passed by District   Consumer Disputes Redressal Forum-I, U.T. Chandigarh   in Consumer Complaint No.541 of 2017.

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR. RAJESH K. ARYA, MEMBER.

 

Argued by:

 

Sh. Raghubir Tejpal, Advocate for the appellants.

Sh. Vijay Kumar, respondent in person.

 

PER  RAJESH  K.  ARYA, MEMBER

                   The appellants/opposite parties have filed this appeal against order dated 07.05.2018 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’ only), vide which, complaint bearing No.541 of 2017 filed by the respondent/complainant was partly allowed in the following manner:-

“8.     For the reasons recorded above, we find merit in the complaint and the same is partly allowed. Opposite Parties are, jointly and severally, directed:-

(i)  To pay an amount of Rs.10,000/- as compensation for mental agony and physical harassment to the complainant.

(ii) To pay Rs.5,000/- as costs of litigation to the complainant.

9.     This order be complied with by the Opposite Parties within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amount mentioned at Sr.No.(i) above, with interest @9% per annum from the date of filing of the present consumer complaint till realization, apart from compliance of directions at Sr.No.(ii) above.”

2.              Before the Forum, it was case of the complainant that he got admission in Bachelor Preparatory Programe (in short ‘BPP’) in the year 2013 and paid examination fee to the Opposite Parties on 25.03.2013 vide Annexure B. It was further stated that IGNOU asked all the candidates to submit their assignments in Regional Centre of IGNOU as well as Study Centre and as such, the complainant submitted his assignment on 28.03.2013 through registered post, which the department received on 01.04.2013. It was stated that the complainant paid examination fee on 16.09.2013 vide Annexure E and gave examination on 31.12.2013 but the result of the complainant was declared on 21.07.2015 i.e. after a delay of 1 year and 1 month. The complainant also sent letters dated 07.07.2014 and 17.09.2014 to IGNOU, New Delhi. It was further stated that the normal result was declared by the institute on or before June & December 2013 but the result of complainant was delayed up-to July 2015, which according to the complainant amounted to deficiency in service and indulgence into unfair trade practice on the part of the opposite parties. Hence, a consumer complaint was filed before the Forum. 

3.             The opposite parties, in their reply, while admitting the factual matrix of the case, stated that the complainant appeared in theory exams conducted by opposite party No.2 in June 2013 and his result was updated on official website on 26.07.2013 whereby he was declared successful in OSS as he secured 21/50. It was further stated that the complainant could not clear the exam of PCO as he got only 14/50 marks. He again appeared in remaining subjects i.e. PCO conducted in December 2013 but this time he passed by securing 19/50 marks and his result was updated on the website on 22.02.2014. It was further stated that the complainant submitted his assignment for OSS 101 subject on 03.04.2013 and after evaluation, awards were updated in June 2013. It was denied that any assignment was received for PCO-1 subject. It was further stated that letter dated 09.07.2014 sent by the complainant was accordingly replied by the opposite parties vide letter dated 17.07.2014. It was further stated that after issuance of a reminder by the opposite parties, the complainant submitted one assignment on 23.07.2014, which was sent for evaluation on 24.07.2014 to the concerned Study Centre and after evaluation of assignment, result was updated in July 2015 and Result Card was dispatched to the complainant at his residential address. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite parties nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

4.             The parties led evidence in support of their case.

5.             After going through the evidence on record and submissions of Counsel for the parties, the Forum partly allowed the complaint, as referred to above.

6.             Feeling aggrieved, the instant appeal, has been filed by the appellants/opposite parties.

7.                          We have heard the Counsel for the parties and, have gone through the evidence, and record of the case, carefully.

8.             Counsel for the appellants/opposite parties submitted that the Forum has overlooked the fact that the complaint was not maintainable in view of settled law that education is not a commodity and education institutions do not provide any service. To say so, he placed reliance on the ratio of judgments in the cases of Bihar School Examination Board Vs. Suresh Prasad Sinha, 2009 (6) SCC 483 (SC), Maharishi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159 and Raj Kumar Vs. MG Motors & Ors., III (2012) CPJ 693 (NC). On merits, it was reiterated that the respondent/complainant submitted one assignment on 23.07.2014, which was sent for evaluation on 24.07.2014 to the concerned Study Centre and after evaluation of assignment, result was updated in July 2015 and Result Card was dispatched to the respondent/complainant at his residential address.

9.             On the other hand, the respondent/complainant submitted that deficiency on the part of the appellants/opposite parties is writ large as the appellants/opposite parties declared his result after a delay of 1 year and 1 month despite the fact that as per desire of the appellants/opposite parties, the last      assignment was submitted by him before 24.07.2014. He further submitted that the Forum has rightly passed the impugned order and prayed for dismissal of the appeal filed by the appellants/opposite parties.

10.           Insofar as the objection raised by the Counsel for the appellants/opposite parties that in view of ratio of judgment in the cases of Bihar School Examination Board Vs. Suresh Prasad Sinha, 2009 (6) SCC 483 (SC), Maharishi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159 and Raj Kumar Vs. MG Motors & Ors., III (2012) CPJ 693 (NC), the complaint was not maintainable as neither education is a commodity nor University was service provider nor the complainant was consumer qua the University is concerned, it may be stated here that the objection raised is fully justified.

11.           The aforesaid issue qua maintainability of a complaint under Consumer Protection Act 1986 against a Statutory Authority or a University, functioning under a specific statute, has already been settled by the Hon’ble Supreme Court of India in Maharishi Dayanand University Vs. Surjeet Kaur’s case (supra), wherein the Hon’ble Supreme Court of India in Paras 19 and 20 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 :-

"11. The Board is a statutory authority established under the Bihar School Examination Board Act, 1952. The function of the Board is to conduct school examinations. This statutory  function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative.

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.

13. 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." (Emphasis added)

20. The respondent abused the privilege of appearing in the B.Ed. examination though she was not entitled to avail of the benefit of notification dated 16.3.1998.

The National Commission appears to have been swayed by observations made in the Bangalore Water Supply case (supra). The respondent as a student is neither a consumer nor is the appellant rendering any service. The claim of the respondent to award B.Ed. degree was almost in the nature of a relief praying for a direction to the appellant to act contrary to its own rules. The National Commission, in our opinion, with the utmost respect to the reasoning given therein did not take into consideration the aforesaid aspect of the matter and thus, arrived at a wrong conclusion. The case decided by this Court in Bihar School Examination Board (supra) clearly lays down the law in this regard with which we find ourselves in full agreement with. Accordingly, the entire exercise of entertaining the complaint by the District Forum and the award of relief which has been approved by the National Commission do not conform to law and we, therefore, set aside the same. We wish to make it clear that the National Commission felt that the respondent had been "harassed" and has also gone to the extent of using the word "torture" against an officer of the appellant. The appellant is an autonomous body and the decision of the appellant and the statutory provisions have to be implemented through its officers. This also includes the implementation of all such measures which have a statutory backing and if they are implemented honestly through a correct interpretation, the same, in our opinion, cannot extend to the degree of torture or harassment. The appellant had to be battle out this litigation upto this Court to establish the very fundamental of the case that the District Forum had no jurisdiction to entertain any such complaint and, in our opinion, they have done so successfully.”              

12.           By taking note of observations made by the Hon’ble Supreme Court in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha (Supra), it was said that Statutory Authority when performing statutory functions cannot be termed as service provider/industry.

13.           Similar view was expressed by Hon’ble Supreme Court of India in Anupama College of Engineering Vs. Gulshan Kumar & Ors (supra) and P. T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors.’, S.L.P No.22532/2012 decided on 09.08.2012.

14.           In the instant case also, the appellants - Indira Gandhi National Open University known as IGNOU, is a Central University, a statutory body was established in 1985 and is governed by a statute i.e. Indira Gandhi National Open University Act, 1985 (IGNOU Act 1985). University imparts education through distance education mode, therefore, the appellants - University discharges its statutory functions. The functions of the University are neither services nor a trade or business. Therefore, in the light of the authoritative pronouncement by the Hon’ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur’s case (supra), the complaint filed before the Forum under Consumer protection Act, 1986 against the appellants/opposite parties is not maintainable and is liable to be dismissed.

15.           Hence, we are of the opinion that the impugned order dated 07.05.2018 passed by District Forum-I, U.T., Chandigarh suffers from illegality and perversity.

16.          For the reasons recorded above, the appeal is allowed and the impugned order dated 07.05.2018 is set aside. Consequently, complaint case bearing No.541 of 2017 filed by the respondent/complainant, before District Forum-I, U.T., Chandigarh

against the appellants/opposite parties is held to be not maintainable. No costs.

17.          Certified Copies of this order be sent to the parties, free of charge.

18.          The file be consigned to Record Room, after completion.

Pronounced

15.11.2018.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(PADMA PANDEY)

        MEMBER

 

 

(RAJESH  K. ARYA)

MEMBER

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