Dev Raj, Member:
1. This appeal is directed against the order dated 9.1.2014 rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it allowed the complaint in the following manner:-
'14. In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them, jointly and severally. The Opposite Parties are directed to:-
[a] To refund the 50% amount of course of Rs.1,05,422/-;
[b] To pay compensation of Rs.20,000/- on account of deficiency in service and causing mental agony and harassment;
[c] To pay Rs.10,000/- as cost of litigation;
15. The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] above from the date of registration, till it is paid & the compensation amount as mentioned in sub-para [b] above shall carry interest @18% p.a. from the date of the institution of the complaint, till it is paid, apart from cost of litigation of Rs.10,000/-.'
2. The facts, in brief, are that the Opposite Parties, through various newspaper advertisements, attracted the students by assuring job placement and committed refund of 50% fee back, in the event of non-placement. It was stated that the complainant took admission in Diploma in Professional Cabin Crew Services, in the year 2007, under Enrolment No.21 (letter of registration, Annexure C-1), and paid the entire course fee of Rs.1,05,422/-, as demanded by the Opposite Parties from time to time (Annexure C-2 to C-10). It was further stated that the complainant successfully completed the course, but instead of providing a job, as promised, the Opposite Parties, on 16.10.2009, gave an assignment to the complainant of Jr. Mentor, at Delhi, for six months and, thereafter, gave another assignment of Mentor at Mumbai, for a period of three months, starting from 20.04.2010. It was further stated that when the complainant requested the Opposite Parties, to provide a job in the Airlines, he was assured that after the completion of aforesaid assignment, he would be placed in an appropriate Airlines. It was further stated that for the said assignment, he was given a consolidated sum towards the retainership fee of Rs.43,334/-, which was reduced to a meagre amount of Rs.5,556/-, when he refused to assure the other students with false promises, on behalf of the Opposite Parties. It was further stated that the complainant wrote a number of letters to the Opposite Parties, to fulfill their assurance and get a job for him, in some Airlines, but on getting no help from anywhere, eventually, he wrote a letter dated 10.10.2012 to the Opposite Parties, inter alia, requesting for refund of 50% amount, as promised (Annexure C-21).
3. It was further stated that, however, to his utter shock, the Opposite Parties, vide their reply dated 23.11.2012, refused 50% refund as committed, and rather offered only Rs.25,000/-, as a goodwill gesture. It was further stated that the Opposite Parties also rejected the claim of the complainant, for a job in some Airlines, as per the declaration (Annexure C-23). It was further stated that the aforesaid act of the Opposite Parties amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed seeking directions to the Opposite Parties, to refund Rs.53,000/-, being 50% of the amount, paid alongwith interest @12% per annum; pay Rs.18 Lacs as compensation for mental agony and physical harassment, besides Rs.10,000/- as cost of litigation.
4. Opposite Party No.1, in its written statement took up a preliminary objection that the complaint was barred by limitation. It was stated that no cause of action arose against it, as it was only a Franchisee of Opposite Parties No.2 to 4 i.e. Avalon Aviation Academy Pvt. Ltd., as per agreement dated 31.7.2007 (Annexure R-1). It was further stated that as per the agreement, the Aviation Academy Pvt. Ltd. had developed and established programs for providing training in aviation and Opposite Party No.1 took the franchisee to establish a centre for providing training in aviation in the course conducted by the Franchisor. It was further stated that all the training materials required in training and for the conduct of the training centre of Opposite Party No.1 were to be provided, by Opposite Parties No.2 to 4. It was further stated that the placement of the students, after the completion of course, was in the domain of Opposite Parties No.2 to 4, and the Franchisee, under no circumstances, was involved in contacting any placement agency for placing the students. It was further stated that Opposite Party No.1, was no longer the franchisee of Opposite Parties No.2 to 4, and had since 7.5.2010 left the Franchisee. It was further stated that the matter was, therefore, inter se the complainant and Opposite Parties No.2 to 4. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.3, in its written statement, took a specific preliminary objection that the complaint was hopelessly barred by limitation, as the course stood completed on 15.1.2009, and the Opposite Party was liable to provide job within one year from the completion of the course i.e. up to 15.01.2010. It was stated that the complaint could be filed by the complainant within two years i.e. up to 14.01.2012, whereas the complaint was filed on 7.5.2013. However, on merits, it was stated that that under the Scheme of the Company, the students were to be placed in the jobs, provided they approached the Company for the same with their bio-data, within one year of passing the course. It was further stated that, in the present case, the complainant did not approach within one year of passing the course. However, despite this, Opposite Party No.3, provided job placement, to him, for a period of 6 months and additional 3 months, in its Organization vide appointment letters dated 16.10.2009 and 05.05.2010, which the complainant duly accepted. It was, however, denied that any assurance was ever given to the complainant for his placement in some other Airlines by Opposite Party No.3. It was further stated that as per the declaration signed by the complainant, the placement was to be offered in Airlines and peripheral industry. It was further stated that since the Organization of Opposite Party No.3 belonged to the Airlines peripheral industry, therefore, the placement was provided to him in terms of the declaration. It was further stated that the complainant was paid Rs.64,445/- for 6 months and Rs.40,001/- for additional 3 months towards his salary for the period of total 9 months commencing from 20.10.2009. It was further stated that Opposite Party No.3, paid the entire consolidated retainership/salary for the period, the complainant worked. It was further stated that, as a goodwill gesture, Opposite Party No.3, offered Rs.25,000/- to the complainant, so as to settle unreasonable disputes, with him, though Opposite Party No.3 was not liable to pay the same as it had given the job placement twice to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
6. However, Opposite Parties No.2 and 4 adopted the reply filed by Opposite Party No.3, and did not file any separate reply.
7. The Parties led evidence, in support of their case.
8. After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above, in the opening para of the instant order.
9. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
10. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
11. The Counsel for the appellants/Opposite Parties No.2 to 4, submitted that respondent No.1/complainant completed his course on 15.9.2008 (Annexure C-11). It was further submitted that on 16.10.2009, he was appointed as Junior Mentor and on 5.5.2010, as Mentor (Annexures C-15 and C-17). It was further submitted that the cause of action to respondent No.1/complainant, firstly accrued, after completing the course on 15.9.2008, or when he was appointed as Junior Mentor on 16.10.2009, which was for a period of six months, or at the best on 20.8.2010, when the contract of his appointment as Mentor ended. It was further submitted that the complaint having been filed on 9.5.2013 by respondent No.1/complainant, was much beyond the period of limitation of two years, as provided by the Act.
12. The Counsel for the respondent/complainant submitted that the appellants/Opposite Parties, did not provide the job, which they had promised. It was further submitted that though respondent No.1/complainant was appointed as Junior Mentor and, thereafter, as Mentor, but that was only for a period of six months and four months respectively. It was further submitted that the appellants/Opposite Parties, were deficient, firstly, in not offering the Job, as promised and, secondly, that they kept on assuring that he would be provided the appointment as cabin crew in Airlines in due course of time. In support of his contention, the Counsel referred to Annexures C-16 and C-18. It was further submitted that the order of the District Forum, being just and correct, deserves to be upheld.
13. The core question, which falls for consideration, is, as to whether, the the complaint filed by respondent No.1/complainant, before the District Forum, was barred by limitation or not. Though Opposite Parties No.1 and 3, in their respective written statements, took up a specific objection that the complaint was hopelessly time barred, yet the bare perusal of the impugned order reveals that the same was neither touched, nor adjudicated by the District Forum. Even while addressing arguments in the appeal, the Counsel for the appellants/Opposite Parties, raised a specific plea that the complaint, filed by respondent No.1/complainant, before the District Forum, was time barred, and the same was liable to be dismissed on that score alone. In Ramesh Kumar Sihan Hans Vs. Goyal Eye Institute and others, Consumer Complaint No.135 of 2011 decided on 30.03.2012, it was held by the National Commission that the District Forum, State Commission or the National Commission are required to examine the complaint to find out (1) Whether the complainant is a consumer within the meaning of Section 2(1)(d) of the Act, and, as such, is entitled to invoke the original jurisdiction of the Consumer Forum; (ii) Whether the complaint raises one or more consumer disputes viz., unfair trade practice or restrictive trade practice, defects in goods or deficiency in service as defined under the Act; (iii) Whether the Consumer Forum has territorial and pecuniary jurisdiction, to entertain the complaint; (iv) Whether the complaint has been filed within the period of limitation, and; (v) Whether the complaint is accompanied by such amount of fee, as has been prescribed. The principle of law, laid down in Ramesh Kumar Sihan Hans’s case (supra) is fully applicable to the facts of the instant case. The District Forum, before deciding the complaint, on merits, was required to first decide the preliminary objections, taken by the appellants/Opposite Parties, in their written statements, particularly relating to the fact that the complaint was barred by limitation. However, without doing so, the District Forum went on to decide the complaint on merits. Thus, the District Forum, erred in allowing the complaint, after discussing the merits thereof, without settling the preliminary objection raised by the appellants/Opposite Parties that the complaint was barre
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d by time. 14. No other point, was urged, by the Counsel for the parties. 15. In view of the above discussion, it is held that the District Forum, erred in allowing the complaint and order passed by it, suffers from illegality and non-application of mind, warranting the interference of this Commission. 16. For the reasons recorded above, the appeal is accepted, with no order as to costs. The impugned order passed by the District Forum, is set aside. The case is remanded back to the District Forum, with a direction to first decide the preliminary objection raised by the appellants/Opposite Parties, in their written statements as to whether the complaint was barred by time or not. Thereafter, the District Forum shall decide the complaint afresh, on merits, after affording due opportunity, to the parties of being heard, on the issues, in accordance with law. 17. The parties are directed to appear, before District Forum (II) on 13.05.2014 at 10.30 A.M., for further proceedings. 18. The District Forum record, alongwith a certified copy of the order, be sent back to it, immediately, so as to reach there, well before the date and time fixed i.e. 13.05.2014 at 10.30 A.M. 19. Certified copies of this order, be sent to the parties, free of charge. 20. The file be consigned to Record Room, after completion.