Dinesh Singh, Member
The dispute relates to 2009, we are in 2019.
1. We heard the learned counsel for the revision petitioner – Anand Institute of International Studies (institute), and perused the material on record.
2. The rival contentions have been brought forth by the District Forum in paras 1 to 5 of its Order dated 01.05.2013:
1. This complaint has been filed by the complainants under Section 12 of the Consumer Protection Act for compensation and refund of fee amount of Rs. 1,30,000/- deposited with the opposite party and Rs. 30,000/- towards examination expenses from the opposite party.
2. It is stated in the complaint that general public was allured by the opposite party institution by publishing an advertisement and the opposite party had given guarantee to the complainants for providing job after providing education to the complainants in a reputed university of Australia. It was stated therein that the study of two semesters will be provided in Jabalpur. Being influenced by this advertisement, the complainants contacted the local manager of the opposite party institution and the manager told about golden future of the complainants overstating the things at that time also and it was stated that the education / course will be provided to them at minimum cost. It was also stated that visa will be provided free of cost. Thus, exaggerating the things in this way and influencing the complainants, a sum of Rs. 10,000/- was got deposited from the complainants towards registration fee but the receipt was provided only for Rs. 7,500/-. Complainants No.1 was given admission in B.I.C., and complainants No. 2 and 3 were given admission in Bachelor of Accounting and complainants No. 4 was given admission in B.I.T.
3. It is stated in the complaint that when the complainants joined the institution for studies they found that there was no set up of the institution, there were no competent teachers, there was no literature and library i.e. there was no basic facilities of studies and the institution was being run by untrained staff and when the complainants raised objection, they were given assurance to remove these deficiencies. Further two draft of 850 Australian dollar and Rs. 40,000/- towards fee for first semester were got deposited from each of the complainants and assurance was given that the said amount will be adjusted on their going to Australia but in spite of this when the complainants did not find any set up of the institution, the complainants again raised objections, then the complainants were given assurances that examination is to be taken by the opposite party and the complainants will get good result and asked the complainants not to worry about that at all and during this period only English was being taught by a part time teacher and that teacher was not able to teach any technical subject / course. After 9 – 10 days, it was told to the complainants that the complainants are to be go to Delhi to participate in the examination and after that they will be eligible to study in Australia. The complainants raised object thereon but the same was ignored. During this period the complainants participated in AILS examination in Delhi twice. During this period Rs. 7,200/- were charged towards fee from each complainants and Rs. 15,000/- was spent of each complainants but they did not get the required points. Then the opposite parties told to the complainants that they will not be sent to Australia for study. At this the complainants raised objection and asked to refund their money. It is further stated in the complaint that the complainants have become upset from the assurances of the opposite party institution and the opposite party has grabbed the money of the complainants by alluring and giving false assurances to them by rendering unfair trade practice. Thereafter, the institution was closed in June 2009 and the opposite party refused to refund the amount taken towards fee from the complainants. Then a notice was sent to the opposite party through an advocate. Thus, the opposite party has rendered unfair trade practice and deficiency in service by giving false assurances and cheating the complainants. The complainant has been filed on this ground.
4. Reply to the complaint was filed by the opposite party institution stating that the opposite party institution had neither allured the complainants not had given any guarantee for providing job to them but passing of examination and getting job depends upon the ability of each student. It was also stated that information were not given to the complainants exaggeratingly. Further, it was stated that the opposite party institution is competent to provide the proposed courses which are provided under A.U.P.P. and the institution had sufficient set up for providing education in the said course. There were qualified teachers who were teaching the complainants, proper guidance was given literature was provided and maximum facilities were provided and the fee which was taken, the information of the same was already given to the complainants in the beginning, even then the complainants had not paid full fee to the opposite party institution and the complainants can get their result after making payment of balance fee and the opposite party is not responsible for the personal expenses of the complainants. It was further stated that the opposite party institution is ready to send the complainants to Australia for higher studies by giving them proper guidance even today but no action is being taken by the complainants themselves and the opposite party prayed for the dismissal of the complaint on this ground.
5. Additional reply was also filed on behalf of the opposite party, wherein it was stated that A. U. P. P. has not been made a party by the complainants and in the absence of it, the complainants is not maintainable. The agreement which is entered between the complainants and opposite party, they should have filed a suit for specific performance and it was also stated that the complaint has been filed on wrong facts with mala fide intention and prayed for the dismissal of the complaint.
(paras 1, 2, 3, 4 and 5 of the District Forum’s Order)
(as per translated copy furnished by the revisionist)
(emphasis supplied by us)
3. The District Forum had heard both sides, appraised the evidence, and, vide its Order dated 01.05.2013, allowed the complaint on merit:
6. On the basis of arguments advanced by the parties, it is to be decided, whether the opposite party rendered deficiency in service by adopting unfair trade practice? And whether the complainants are entitled to get back the fees deposited by them? The opposite party admitted in its reply that the complainants were being prepared in Jabalpur for sending them to Australia, then it would be deemed that the opposite party gave assurance to the complainants for sending them Australia and received consideration. Though the complainants have mentioned in their complaint with regard to the payment of fees to the opposite party but the opposite party has given its reply cleverly stating that the fees which was taken that was taken as per rules and the fee which the complainants gave to them is mentioned in para 8 of the complainant, it was stated in that regard that the fees which was taken, receipt of the same was given and now the opposite party will have to tell to this forum that the education which was being imparted to the complainants, whether the opposite party institution had any recognition from Government of India, or from the department of Human Resources of the Government of India or U.G.C. or any other competent University for running the said institution or any competent department of M.P. had given permission to the opposite party for running this institution in Jabalpur City to impart education to the students. But there is no mention of this in the reply filed on behalf of the opposite party nor there is any document on record showing that the institution was recognized by the Government of India or Department of Human Resources Development of the Government of India or UGC or any other competent University or no permission was given by any department of M.P. to run the institute in the name of Anand Institute in Jabalpur City. This forum does not give much importance to the documents which have been produced by the opposite party because the persons and institutions, with whom this forum is not familiar, these persons and institutions can only be given recognition if they are recognized or affiliated with such person or institution by Government of India or Government of M.P. and in the absence thereof, this Forum comes to the conclusion that the opposite party is not able to tell this forum the institution was actually recognized or affiliated by any University run by the Government of India or Government of M.P. or by any other competent University or UGC under the Government of India.
7. No institution whether small or big is not free to do any business without obtaining permission, recognition or affiliation with regard to the said business under the law made by the Government of India or State Government and any business run by any person or institution can be said legal if it is run after taking permission or affiliation from the government or competent body because law has been made to protect the interest of the affected persons or consumers and permission can be given to do any business only under law so that it should not cause any injury to any other person and he may be punished under the said law or the victim be awarded compensation. But the opposite party institution has not produced any such document or record before this Forum on the basis of which it could be inferred that under which recognition or law, the opposite party institution is affiliated and is imparting education and in the absence of this it will be deemed that the opposite party institution was rendering unfair trade practice arbitrarily.
8. The counsel for the complainants strongly contended that the opposite party institution has been closed completely and no action has been taken to send any student in Australia by the institution even till date but in the reply filed on behalf of the opposite party, it did not state about the closure of the institution. But the affidavits of Damneel Singh Taluja, Bhavandip Kaur, Sima Chhabra, Vishakha Dutt, Sandip Sharma, Monika Nagdev which have been produced in support of his statement it is specifically stated therein that stone pelting and sabotage was done by some unsocial elements at the opposite party institution and for this reason in order to get the institution repaired, the institution was closed for some time and I am also aware of this fact that the said institute will be opened again in the near future but no satisfactory document has been placed on record that the said institute was opened again. Under these circumstances, it is worth mentioning that it cannot be inferred that the institute will be opened in the near future which has been closed before the completion of education session in this education session. If the said institute had any set up, recognition, affiliated from competent University, certainly the institution would have worked for a long time. In the absence of these circumstances, only this fact is proved that in fact cash amount was received by the opposite party from the complainants influencing them and consequently the opposite party did not give anything to the complainants.
9. Now the opposite party raised an objection that A.U.P.P. is also a necessary party in the matter because the complainants made draft of 850 dollar in its name. The said objection was opposed on behalf of the complainants. We are not agreed with the contention of the opposite party because whatever the correspondence took place, that took place between the complainants and the opposite parties. The complainants have no direct transaction with A.U.P.P. Therefore, A.U.P.P. is not a necessary party. So far as the question of filing of suit for specific performance of contract is concerned, amount was received by the opposite party from the complainants by alluring them and it is observed by the Hon’ble Supreme Court in case law C.P.J. 2009 (1) page 25 Budhisht Mission Dental College Versus Bhupesh Khurana that, “When the institution is not affiliated from any University and have mislead the students for imparting education to the students by giving false advertisement, it is unfair and the students are liable to recover the fees received by the institution.” Under these circumstances the objections raised by the opposite party is dismissed. So far the question of objections raised by the opposite party with regard to the common interest of the complainants is concerned, being the common interest or not of the complainants it cannot be said that the case is not maintainable. Under these circumstances the case is liable to be prosecuted.
10. Now it is to see, how much amount the complainants deposited with the opposite party institution. While denying the facts mentioned by the complainants in their complaint and affidavits, the opposite party did not make any clear pleadings in its reply and affidavit and only stated in para 8 of its reply that the amount which is stated to be paid by the complainants to the opposite party, the said amount has been received as per rules and the receipt of the amount which is paid by the complainants have been given to them by the opposite party. Receipts have been produced by the complainants in support of their complaint. According to the receipt, complainants student Sani Jaggi gave two drafts of 850 Australian dollar dated 04.08.2008 and dated 17.11.2008 respectively and Rs. 40,000/- in Indian currency on 17.11.2008 as per Exh. C-4, student Mandip paid Rs. 10,000/- on 14.11.2008, Rs. 10,000/- on 29.12.2008 as per Exhibit C-5, Rs. 10,000/- on 15.06.2008 as per Exhibit C-6 and Rs. 7,500/- on 25.04.2008 as per Exhibit C-7, Rs. 5,000/- on 14.11.2008 and Rs.5,000/- on 18.08.2008 as per Exhibit C-7, 850 Australian dollar on 14.07.2008 as per Exhibit C-8, 400 Australian dollar on 23.12.2008 as per Exhibit C-9 and two drafts of 450 Australian dollar respectively as per Exhibit C-10, Mandip paid on 18.04.2008 Rs. 7,500/- and on 26.06.2008 Rs. 40,000/- as per Exhibit C-11. Sandip Soni paid on 23.05.2008 Rs. 7000/- and on 13.09.2008 Rs. 40,000/-, on 31.12.2008. Dollar 850 under Exhibit C-12, on 15.07.2008 850 dollar under Exhibit C-13. The above said amounts were received by the opposite party. So far the amount in the form of dollar has been deposited by Manprit Singh, in this regard a letter written by the State Bank was produced before us stating that D.D. No. F.D. 97 (R) (B) 240669 was made by Surendra Singh Saini on 17.07.2008. Likewise D.D. No. 97 (R) (B) 240774 of 850 Australian dollar was prepared on 19.01.2009 and the broad details thereof are required to be produced in evidence in the court. Therefore, please provide the certified broad details of the above drafts and the same has been certified by the State Bank of India but the question arises whether the above D.D. were deposited with the opposite party, while D.Ds have been prepared in dollar. The photo copy of the same has also not been filed along with the application. Only the number written on the application of Manprit has been certified by the bank. But keeping in view the circumstances of the case, we can conclude that as per the letter the D.D. was handed over to the opposite party by Manprit because the statements made by the complainants in para No. 6 and 8 of the complaint that dollar 850-950, total 1700 dollar were deposited by the complainants with the opposite party and remaining fee was stated to be paid latter but the said statement has not been rebutted by the opposite party in para 6 of its reply but it is stated that they have received fee as per rules. Thus in the absence of rebuttal and the certificate issued by the bank and observation of the Hon’ble National Commission has in case law C.P.R. 2013 Urban Improvement Trust Vs. Babulal Page 172 that: “averments made in complaint which have gone unrrebuttabled shall be deemed to be admitted.” Keeping in view these circumstances of the case, the complainants are entitled to receive their deposited amount from the opposite party with interest. Thus, the amounts deposited by the complainants as stated above, the complainants are entitled to get back the same with interest from the opposite party on the ground of deficiency of service.
11. Because the opposite party institution has wasted one year of the complainants by giving them false assurances, therefore we deem it proper to award Rs. 5,000/- towards compensation to each complainants. We also deem it proper to award Rs. 500/- to each complainants towards costs of litigation.
12. Therefore, on the basis of the above analysis, we pass order in favour of the complainants and against the opposite party.
(1) The opposite party shall pay the amount of 1700 Australian dollar as per the value of the same on date of preparation of draft and Rs. 64,400/-(Rupees sixty four thousand only) to each complainants within a period of two months;
(2) The opposite party shall pay simple interest at the rate of 8 percent at amount of 1700 Australian dollar at the value of date of preparation of draft and Rs. 64,400/-(Rupees sixty four thousand only) to each of complainants from the date of deposit till the date of payment.
(3) The opposite party shall pay Rs. 5000/- (Rupees five thousand only) to each complainants under unfair trade practice and deficiency in service.
(4) The opposite shall pay Rs. 500/- (Rupees five hundred only) to each complainants towards cost of litigation;
(5) The entire above amount should be paid within two months, otherwise interest at the rate of 8 percent will be paid at the ordered amount till the date of payment.
(paras 6, 7, 8, 9, 10, 11 and 12 of the District Forum’s Order)
(as per the translated copy furnished by the revisionist)
(emphasis supplied by us)
4. The institute appealed in the State Commission. The State Commission, vide its Order dated 04.01.2019, dismissed the appeal for want of prosecution:
Case NO. FA/13/941
DATE OF ORDER
ORDER WITH SIGNATURE
None for the appellant.
Ms. Sambhavna Rajput, learned counsel for the respondent.
We find that on earlier occasions also none appeared for the appellant.
The cost imposed has also not been deposited.
Since no one is appearing for appellant the appeal is dismissed for want of prosecution.
(State Commission’s Order)
5. We find the Order dated 01.05.2013 of the District Forum to be well-appraised and well-reasoned. We note the extract of the appraisal made by the District Forum, quoted, verbatim, in para 3 above, and in particular its emphasised (underlined) portions. We find no palpable mis-appreciation of evidence by the District Forum. No jurisdictional error, or a legal principle ignored, or miscarriage of justice, is visible.
6. As brought out in the appraisal made by the District Forum in its Order of 01.05.2013, the following significant and material ingredients are evident in this matter:
(i) the institute was registered as a ‘coaching center’ under the Madhya Pradesh Shops and Establishment Act, 1958.
(ii) the institute advertised to impart ‘education’, first in its coaching center in Jabalpur, and then in a university in Australia (the inducement was to ‘study’, ‘work’ and ‘live’ in Australia).
(iii) there is no (bonafide or authentic) documentation or certification placed on record by the institute to show that it had any permission or recognition from any ministry or authority of government of India or from any department or authority of government of Madhya Pradesh for conducting its such business of first imparting ‘education’ to its students in its ‘coaching center’ in Jabalpur and then in continuation to ensure their ‘study’ and ‘work’ and ‘life’ in Australia.
(iv) there is no (bonafide or authentic) documentation or certification placed on record by the institute to show that it had any affiliation or arrangement of any nature with any university or authority in Australia (or for that matter any university or authority in India) for ensuring the subsequent in continuation ‘study’ and ‘work’ and ‘life’ in Australia of its students.
(v) there is nothing placed on record by the institute to show that it had the necessary requisite infrastructure and wherewithal for conducting its such business of imparting ‘education’ to its students in its ‘coaching center’ in Jabalpur and then in continuation to ensure their ‘study’ and ‘work’ and ‘life’ in Australia.
(vi) the institute admitted that the complainants (students) were being ‘prepared’ in Jabalpur for ‘sending’ them to Australia.
(vii) the institute admitted that fee / money was received from the complainants (students) both by cash and by bank drafts, and both in the form of Indian rupees and Australia dollars.
(viii) it is well borne out that the institute closed down in June 2009, and it remained closed till the decision of the District Forum i.e. till May 2013.
(ix) the complainants (students) wasted one year of their education.
7. We note ingredients of, both, deficiency in service within the meaning of section 2(1)(g) & (o), and unfair trade practice within the meaning of section 2(1)(r), to be well and truly evident on the part of the institute.
8. The State Commission vide its impugned Order dated 04.01.2019 has dismissed the appeal for want of prosecution.
The appeal was filed in 2013. It was dismissed for want of prosecution after about 6 years, in 2019.
The ideal normative period to decide an appeal as laid down in section 19 A of the Act 1986 is 90 days (“An appeal filed before the State Commission or the National Commission shall be heard as expeditiously as possible and an endeavour shall be made to finally dispose of the appeal within a period of ninety days from the date of its admission.”).
The Statement of Objects and Reasons of the Act 1986 says of “speedy and simple redressal to consumer disputes”.
We note that on earlier dates, 04.04.2014, 23.09.2014, 07.11.2015, 03.06.2016, 09.08.2017 and 27.03.2018, none had appeared on behalf of the appellant institute before the State Commission. On the date it was dismissed for want of prosecution, i.e. on 04.01.2019, also, none was present for the appellant institute and the cost imposed earlier had also not been deposited. It was, thus, fairly dismissed for want of prosecution. We find the Order dated 04.01.2019 of the State Commission to be just and appropriate. No jurisdictional error, or a legal principle ignored, or miscarriage of justice, is visible.
9. Learned counsel for the revisionist institute argued that the case be remanded back to the State Commission, for adjudication on facts and law in first appeal in the State Commission and opportunity be afforded to the appellant institute before the State Commission.
10. We however note that sufficient opportunity, and more, was provided to the appellant institute by the State Commission before dismissing its first appeal for want of prosecution. (Here we simultaneously note that the District Forum had heard both sides, appraised the evidence, and passed a well-appraised and well-reasoned Order on merit.)
11. The Act 1986 is for better protection of the interests of consumers, in recognizedly a fight amongst unequals. We also note the significant and material ingredients enunciated in para 6 above.
12. For the sake of discussion, in different chronology and different significant and material ingredients, we could, perhaps, have considered remanding the case back to the State Commission at some cost.
In this particular case, however, noting the appraisal made by the District Forum in deciding the case on merit (refer para 3 above), and noting the unprofessional conduct of its first appeal before the State Commission which caused unrewarding protracted litigation before its dismissed for want of prosecution (refer para 8 above), and noting the significant and material ingredients of the matter (refer 6 above), in our considered view, mechanically remanding the case back to the State Commission would be a travesty of justice.
13. Revisional jurisdiction under section 21(b) of the Act
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1986 has a defined purview and ambit, which but does allow for (and also requires) ensuring that there is no travesty of justice. 14. We find the impugned Order dated 04.01.2019 of the State Commission to be without error. It does not require interference by this Commission. As such, it is upheld and affirmed on merit. 15. We find this to be a plain and simple case of an institute on the one side, and ordinary common consumers (students) on the other side, with the institute, unwarrantedly and unnecessarily, first, indulging in deficiency in service and unfair trade practice (refer paras 3, 6 and 7 above), causing loss and injury to the complainants (students), and then, indulging in protracted litigation, in various ways, spread over more than a decade, in one, two, and then, three, consumer protection fora. We also find that, before the third forum, i.e. this Commission, its case fails. The time and resources of this Commission have been unwarrantedly and unnecessarily wasted, which is not viewed favourably. 16. Considering the entirety of the facts and specificities of the case, the revision petition is dismissed with stern advice of caution to the revisionist institute (through its Proprietor / Manager) through imposition of just and appropriate cost of Rs. 1,00,000/- (rupees one lakh) to be deposited by ‘payee’s a/c only’ demand draft in the Consumer Welfare Fund of the District Forum within four weeks of the pronouncement of this Order. 17. The State Commission’s impugned Order dated 04.01.2019 (in dismissing the first appeal for want of prosecution) is upheld and affirmed. 18. The District Forum’s award as contained in its Order dated 01.05.2013 (in deciding the complaint case on merit) shall be complied with within four weeks of the pronouncement of this Order. 19. We make it explicit that the institute (juristic person) as well as its proprietor(s) / manager(s) (by name and by designation, both) as also its concerned functionaries (by name and by designation, both) are liable, individually, jointly, and severally. And the liability qua the consumers–complainants initiated the day the consumers–complainants made their respective first deposits with the institute / its functionaries, and it continues. 20. The District Forum shall undertake execution, both for ‘enforcement’ under section 25(3) and for ‘penalties’ under section 27 of the Act 1986, as per the law, if paras 16 and 18 above are not complied with within the stipulated period of four weeks of the pronouncement of this Order. 21. Let a copy each of this Order be sent to the complainants and to the District Forum by the Registry within seven days of its pronouncement.