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Binay Bhattacharyya v/s The Proprietor, Gandhi Institute of Management & Technology Prop. Sarbani Das

Company & Directors' Information:- M BHATTACHARYYA & CO PVT LTD [Active] CIN = U24234WB1956PTC023074

Company & Directors' Information:- H S MANAGEMENT INSTITUTE PRIVATE LIMITED [Active] CIN = U74140DL2005PTC141500

Company & Directors' Information:- A S INSTITUTE OF MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U80302DL2005PTC140941

    First Appeal No. A/176/2018

    Decided On, 16 January 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, MEMBER

    For the Appellant: In person. For the Respondent: Rajesh Biswas, S.M. Madhumita Saha, Sourav Guha, Advocated.

Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

Challenge in this Appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of Complainant Sri Binay Bhattacharyya (father of Anindita Bhattacharyya-student) to impeach the Judgement/Final Order dated 25.01.2018 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint No. 10/2013 whereby the complaint lodged by the Appellant under Section 12 of the Act was dismissed on contest without any order as to costs.

The Appellant herein being complainant lodged the complaint before the Ld. District Forum asserting that her daughter Anindita is a meritorious student, who passed BCA(Hons.) under the University of Burdwan in the year; 2011 securing 1st Class. In response to an advertisement in a newspaper, the complainant approached the office of Gandhi Institute of Management and Technology at Salt Lake City, Kolkata for admission of his daughter in MCA Course. He purchased the prospectus of that college and paid registration charge of Rs.10,000/- as demanded. In the newspaper, website and prospectus of the institute, it has been mentioned that the MCA Course is recognised under Periyar University, a recognised University by UGC. The complainant has stated that for the purpose of admission of his daughter, he paid Rs.1,27,910/- thereafter. The complainant subsequently came to know that the course is not a recognised one and later on confirmed through an RTI application that the OP Institute had no affiliation or recognition as claimed by them through Preiyar University. The complainant has stated that he reported the matter to the Consumer Affairs & Business Trade Practices, Salt Lake Regional Office and in this regard, a joint meeting was held on 26.11.2012 where OP could not produce any document substantiating affiliation/recognition of the Periyar University or any other university reorganised by UGC or did not agree to resolve the dispute amicably. Hence, the complaint with prayer for refund of Rs.2,01,375/- with interest and incidental cost and compensation of Rs.6,00,000/- for harassment and mental agony aggregating Rs.8,01,375/-.

The Respondent being Opposite Party by filing a written version has stated that the case is not maintainable either in fact or in law and it is bad for non-joinder/mis-joinder of parties. The specific case of OP that being proprietress has been running the OP institute to conduct various courses in distant education with affiliation from Universities such as Periyar University, Statutorily constituted in Tamil Nadu Assembly under Act 45 of 1995. The OP has stated that the complainant as well as other intending students made them fully aware of the position and then only in accordance with the established procedure remitted necessary fees and charges in favour of the particular university, i.e. Periyar University directly and/or through the institute of the institute of OP so as to entitled to pursue studies. The OP has categorically stated that the complainant withdrawn her daughter on her own will and as such the complaint should be dismissed.

After assessing the pleadings and the evidence led by the parties and other materials on record, the Ld. District Forum by the impugned order dismissed the complaint. Being aggrieved and dissatisfied with the said order, the complainant has come up in this Commission with the present appeal.

We have heard the appellant in person and the Ld. Advocate for the Respondent and seen the materials on the record.

Undisputedly, the daughter of Appellant named Anindita passed BCA (Hons.), Part-III (Final) Examination, 2011 from the University of Burdwan securing First Class. The respondent has made an advertisement in a newspaper for admission of students to pursue different courses including MCA Course under the affiliation of Periyar University, Salem (Tamil Nadu). It is not in dispute that Anindita was admitted in MCA Course and for pursuing the course, she paid Rs.1,27,910/- including the payment of registration charges of Rs.10,000/-. Subsequently, the appellant withdrawn Anindita as the institute was found not to be recognised one. The truth has come to picture when the appellant received one reply against one RTI application from Periyar University on 10.12.2013. In the said document, it has been categorically stated that the respondent institute (Gandhi Institute of Management and Technology, Salt Lake City, Kolkata – 700091) has not been affiliated for conducting or studying three years MCA Course by the Periyar University. It also comes to surface that the appellant approached the Assistant Director, CA&FBP, Salt Lake Regional Office and in this regard, a process of mediation was held on 26.11.2012 and in the said meeting, the respondent could not produce any document substantiating affiliation/recognition of the Periyar University. At the time of hearing of appeal, precisely, on 07.01.2019 the hearing of appeal was adjourned in order to enable the respondent to produce the affiliation/recognition of Periyar University. On the date of further hearing on 08.01.2019, a document has been filed named Letter of Authorisation but the same has been issued by respondent themselves and the respondent has failed to show any document that their institute was recognised by Periyar University for conducting MCA Course. It is an apparent unfair trade practice on the part of respondent and in this regard the observation of the Ld. District Forum that inspite of having affiliation of Periyar University with the OP, the complainant withdrew his daughter appears to be a wrong finding and we cannot accept the same.

However, it is startling to note that Anindita, who has already attained majority has not lodged the complaint and instead of her, his father i.e. the appellant has filed the complaint. On scrutiny of the petition of complaint, we do not find any statement that Anindita has authorised his father i.e. the appellant to lodge the complaint before a Forum constituted under the Act. Anindita has also not tendered any affidavit in support of the claim of the appellant. The Ld. District Forum dismissed the complaint on several grounds including the ground that the complainant had no locus standi to lodge the complaint. In this regard, the Ld. District Forum referring a decision of Hon’ble National Commission reported in (2014) (1) CPR 138 [Sri P.N. Gupta – Vs. – The New India Assurance Co. Ltd. & Anr.] has observed that when the daughter of the complainant is alive, there is no scope to the complainant to lodge the complaint in a representative capacity on behalf of his daughter.

The Appellant, who appeared in person has drawn our attention to the order dated 30.08.2016 passed by the Hon’ble National Commission in RP/1850/2015 and submitted that when the matter has already been adjudicated by the Hon’ble National Commission, the Ld. District Forum had no scope to reopen the issue.

For appreciation of the dispute, it would be worthwhile to refer the term ‘complaint’ as defined in Section 2(1)(b) of the Act which is as follows –

“(b) ‘complaint’ means –

i. a consumer; or

ii. any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or

iii. the Central Government or any State Government,

iv. one or more consumers where there are numerous consumers having the same interest;

v. in case of death of a consumer, his/her legal heir or representative, who or which make a complaint”.

The foregoing provision makes it quite clear that a representative or legal heir can file a complaint only in case of death of consumer. In the present case, the student who paid the entire fees for pursuing her MCA Course must be categorised as consumer and she could have very well filed the present complaint. When the consumer herself being alive has not lodged any complaint or did not give any letter of authority to his father to lodge complaint, we share the view of the Ld. District Forum that the present complaint is not maintainable. The proposition of law is very clear that as per Section 2(1)(b)(v) of the Act, a legal heir or a representative could file a complaint only in case of death of consumer. In the present case, the consumer herself could have filed the complaint and hence the present complaint was not maintainable.

At the time of hearing, the Appellant could not explain any of the legal provisions under which the complaint could be filed by a father instead of his daughter, who is a consumer. The appellant also could not explain any reason for non-appearance of the actual consumer before the Ld. District Forum.

Considering all the above, we find it difficult to differ with the view of the Ld. District Forum that when the compl

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aint was lodged by a father of a consumer, when consumer is alive, the complaint was not maintainable. Therefore, after giving due consideration to the submission made on behalf of the parties when it appears that the Ld. District Forum has arrived at a just decision that the complainant/appellant cannot be categorised as ‘consumer’, the Ld. District Forum had no occasion to take such pain to enter into merits of the case. In any case, when it is found that the appellant/complainant is not a consumer, the Ld. District Forum has rightly dismissed the complaint and as such we do not find any reason to interfere with the order impugned. Consequently, the appeal is dismissed on contest. However, there will be no order as to costs. The impugned judgement/final order is hereby affirmed. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.