BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P.No. 617/2000 Filed on 25/2000

Dated: 30..11..2009

Complainant:

M. Mebel Das, Das Bhavan, Rail View, Kottukanjiramvila, Pappanamcode-P.O. - 695 018.

(By Advs. K.K. Rajeev Punnapuram & N.G. Mahesh)

Opposite parties:

1. Zameer Bin Kamal, The Managing Director, Manarul Huda Trust – Office, M.K. Manzil, Kamaleswaram, Thiruvananthapuram.

2. The Principal, National College of Applied Sciences, National Nagar, Manacaud – P.O.

   (By Adv. A. Abdul Kharim)

    

3. The Director, IHRDE, Prajoe Towers, Vazhuthacaud, Thiruvananthapuram.

(By Adv.Saju Sugathan)

 

This O.P having been heard on 30..09..2009, the Forum on 30..11..2009 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

This case remanded by the State Consumer Disputes Redressal Commission, for fresh disposal of the matter in accordance with law more particularly in the light of the observations made in the Remand Order.

The facts leading to the filing of the complaint are that complainant joined for the Diploma Course in Computer Applications and Office Management having 2 semesters with a total duration of one year, conducted by opposite parties 1 & 2 in the year 1996 and sponsored or recognised by the 3^rd opposite party, that the examinations of the said course was conducted by the 3^rd opposite party, that the complainant appeared for the 1^st semester examination of the said course having four subjects and she passed in 2 of the subjects and failed in the other 2 subjects viz. - Computer Fundamentals and Principles of Financial Accounting, that complainant again appeared for both papers in October 1997 and in August 1998, but the result of the said 2 Supplementary Examinations was not published and mark list was not given to the complainant. It is further submitted by the complainant that she had appeared for the examinations in accordance with the rules of the prospectus and that the minimum mark required for a pass is 50% and those who passed the examination will get Diploma in Computer Application and Office Management, and that she was not in a position to apply for job opportunities for want of mark list. Hence this complaint to direct opposite parties to issue mark list and original certificate and to pay compensation to the complainant.

2. 1^st and 2^nd opposite parties have filed their version contending that the complaint is not maintainable either in law or on facts, that imparting education by an institution is not a service and a student studying at an educational institution is not at all a consumer, that the complainant filed the complaint by suppression of material facts, that the 1^st opposite party is the Managing Trustee and 2^nd opposite party is the Principal of the National College of Applied Science which is run by the 1^st opposite party. The 3^rd opposite party is an independent autonomous authority under the Government of Kerala, on whose recognition and approval the 2^nd opposite party conduct the courses, that the 3^rd opposite party is the authority responsible for the conduct of examination, valuation of papers, issue of mark list and certificate for the candidates who appeared for the examination, that the complainant was a student of the 2^nd opposite party for one year Diploma Course in Computer Application and Office Management in the year 1996 and appearing for the 1^st Semester Examination (during April 1997) and failed in 2 subjects – Principles of Financial Accounting and Computer Fundamentals, that the complainant appeared the IInd Semester Examination during December 1997 and passed the same, that along with the IInd semester the complainant had also registered for the two failed subjects of the 1^st semester, but her result was withheld as she had not written the both subejcts together, that piecemeal/compartmental examination was not permitted in the said two subjects, that the result of the examination was also withheld by the 3^rd opposite party, opposite parties 1 & 2 have no authority to issue the marklist or the certificates. The 3^rd opposite party is the proper authority to issue the same, but the 3^rd opposite party is not able to issue the diploma certificate as she had not passed all the subjects in the 1^st semester. Diploma Certificate could be issued only after the successful completion of both semester. The complainant had to write both the failed subjects together, she had written the examination of both subjects separately by two different occassions. The complainant's contentions are unsustainable and irrelevant.

3. 3^rd opposite party filed version stating that the complaint is not maintainable, that the Government is a necessary party in this case, since 3^rd opposite party is controlled by the Government of Kerala, that the complainant is not a consumer, that the educational institutions are not providing any commercial service, that the 3^rd opposite party is an educational institutions, that there is a settled position, that the examinations are conducted and the results are published by the educational institutions not on the basis of hiring of service, that the complainant's appearance for the 1^st semester examination during November 1997 and August 1998 were cancelled being piecemeal appearance and the fact was intimated to the training centre, that the complainant was given one more chance to appear to the 1^st semester Supplemenary Examination in March 1999, that the complainant did not turn up for the examination. Since complainant had not passed for the 1^st semester examination so far, she stands as a failed candidate for DCA & OM course. There is no deficiency in service or unfair trade practice on the part of opposite parties. Hence 3^rd opposite party prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether there is deficiency in service on the part of opposite parties in not issuing the mark list for the examination written by the complainant?

    

2. Whether the complainant is entitled to get compensation, If so, at what amount?

4. In support of the claim, complainant has filed affidavit and Exts. P1 to P5 were marked. In rebuttal, 2^nd opposite party has filed counter affidavit and Exts. D1 to D9 were marked.

5. Points (i) & (ii) : Admittedly, complainant joined for the Diploma Course in Computer Applications and Office Management having 2 semesters with a total duration of one year, conducted by opposite parties 1 & 2 in the year 1996 and sponsored or recognised by the 3^rd opposite party. The examinations of the said course was conducted by the 3^rd opposite party. Admittedly, complainant appeared for the 1^st semester examination of the said course having four subjects and she passed in 2 of the subjects and failed in the other 2 subjects viz. - Computer Fundamentals and Principles of Financial Accounting. It has been the case of the complainant that she again appeared for both the papers in Supplementary Examination in October 1997 and in August 1998, but 3^rd opposite party withheld the result and mark list not issued. Ext.P1 is the copy of the mark list for the 1^st semester issued by the 3^rd opposite party. As per Ext.P1, complainant has failed in two papers – 'Computer Fundamentals' & 'Principles of Financial Accounting. Ext.P2 is the Admission Ticket for 1^st semester supplementary examination, August 1998 for Computer Fundamentals issued by the 3^rd opposite party to the complainant. Ext. P3 is the Admission Ticket for 1^st Supplementary Examination, October 1997 for 'Principles of Financial Accounting' issued by the 3^rd opposite party to the complainant. Ext. P4 is the copy of the Advocate notice dated 11/7/2000 addressed to opposite parties 1 to 3 by the complainant. Ext.P5 is the prospectus issued by 3^rd opposite party with respect to the aforesaid diploma course in Computer Application & Office Management. The Rules and Regulations for examination are stated in the prospectus as follows:

1. Semester Examinations will be conducted by the institute of Human Resources Development for Electronics immediately after the completion of each semester course.

2. Candidates who have successfully completed the semester course with a minimum of 75% attendance alone will be permitted to register for the Semester Examination

3. Maximum number of chances that can be availed of by a student to pass the Semester Examination is three (consecutive chances)

4. The minimum mark required for a pass in each subject will be 50%

5. Those who pass the first and second semesters in the first chance securing an aggregate of 75% of more marks put together will be declared to have passed the course in first class with distinction.

6. Those who pass the first and second semesters securing an aggregate of 60% or more marks will be declared to have passed the course in first class.

7. All other successful candidates will be placed in second class.

8. Those who pass the examination will be awarded a Diploma in Computer Applications and Office Management by the Institute of Human Resources Development for Electronics.

This case remanded by the State Commission vide Judgment dated 20/6/2008 for fresh disposal of the matter in accordance with law more particularly in the light of observations made in the Remand Order. We need to follow the observations already made by the State Commission in its Order. The observations made by the State Commission in paragraph 9 & 10 of the Order in Appeal 688/02 are reproduced hereunder:

"A reading of the aforesaid rules and regulations for examination would not give any indication that a failed candidate cannot appear for the 2^nd time for the failed subjects alone. Nothing can be inferred from the Ext.P5 prospectus that the appellant/complainant had no right or authority to appear for the examination with respect to the failed subjects. Another important aspect to be noted at this juncture is the acceptance of the prescribed examination fee by the 3^rd opposite party and issuance of Exts. P2 & P3 admission tickets (hall tickets) for the examinations. Thus, in fact, the 3^rd opposite party permitted the complainant to appear for the examination with respect to the failed subjects. The present stand taken by the 3^rd opposite party could not be justified. The failure on the part of the 3^rd opposite party to issue mark list in respect of those examinations would amount to deficiency in service. The fact that the complainant paid the required fee for the examination and she took pain to write those examinations would make her eligible to get the mark list of those examinations. So, the complainant is entitled to get her grievances redressed by issuing the mark list. There can be no doubt about the fact that the 3^rd opposite party is legally bound to issue the diploma if it is found that the complainant had obtained the pass mark in those examinations". Ext.D1 is the copy of the prospectus. Ext. D1 and Ext.P5 are one and the same. Exts. D2 and D3 are copy of the notification dated 31/1/1998 regarding IHRD examinations Nov/Dec. 1997, Result announced. Ext. D4 is the copy of the notification dated 16/12/98 regarding IHRD Diploma in Computer Application & Office Management Course - 1^st semester conducted during August 1998, result published. Ext. D5 is the copy of the letter to 2^nd opposite party from the 3^rd opposite party. Ext. D6 is the copy of the result of IHRD Examination March/April/1999. Ext. D7 is the copy of the letter dated 5/6/07 issued by 2^nd opposite party to 3^rd opposite party. Ext. D8 is the copy of letter dated 28/6/2000 addressed to 2^nd opposie party by the 3^rd opposite party. Ext. D9 is the copy of the letter dated 1/7/2000 addressed to the complainant by the 2^nd opposite party. In view of the observations already, made in the Remand Order, by the State Commission, we find there is deficiency in service on the part of opposite parties in not issuing the mark list for examination written by the complainant.

In the result, complaint is allowed. Opposite parties are directed to issue mark list for examination written by the complainant. Opposite parties shall issue the Diploma Certificate (original certificate) if it is found that the complainant had obtained the pass mark in the said examinations. Opposite parties shall pay the complainant a sum of Rs.10,000/- towards compensation.

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 November, 2009.

G. SIVAPRASAD PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P.No. 617/2000

APPENDIX

I. Complainant's witness : NIL

II. Complainant's documents:

P1 : Photocopy of Insitute of Human Resources Development for Electronics Marklist dated 29/5/1997.

P2 : " admission ticket dated 22/7/1998.

P3 : " of admission ticket dated 11/9/1997.

P4 : " advocate notice dated 11/7/2000.

P5 : Prospectus issued by 3^rd opposite party.

III. Opposite parties' witness : NIL

IV. Opposite parties' documents:

D1 : Photocopy of prospectus dated 20/6/1996.

D2 : " notification dated 31/01/1998.

D3 : " notification dated 30/01/1998.

D4 : " notification dated 16/12/1998.

D5 : " letter to 2^nd opposite party from the 3^rd opp. Party dated 17/02/1999.

D6 : " the result of IHRD Examination March/April/99.

D7 : " letter dated 5/6/2000.

D8 : " letter dated 28/6/2000

D9 : " letter dated 1/07/2000.

PRESIDENT

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