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Biswajit Santra v/s Pinnaccle Institute Engineering and Management & Others

Company & Directors' Information:- BISWAJIT ENGINEERING PRIVATE LIMITED [Active] CIN = U45203OR2020PTC033666

Company & Directors' Information:- INSTITUTE OF ENGINEERING & MANAGEMENT [Active] CIN = U80300WB2009NPL133456

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/1130/2017

    Decided On, 14 February 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, MEMBER

    For the Appellant: In-person. For the Respondents: Bodhisatta Biswas, Anil Kr. Gupta, Advocates.

Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Complainant to impeach the judgement/final order being Order No.16 dated 21.09.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, Ld. District Forum) in Consumer Complaint no. 124/2017. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Appellant under Section 12 of the Act with the direction upon Opposite Party Nos. 1 & 2 to pay an amount of Rs.27,000/- to the complainant apart from litigation cost of Rs.10,000/- within one month from the date of order, to pay compensation of Rs.30,000/- and also to pay Rs.50,000/- for indulging in unfair trade practice.

The Appellant herein being Complainant lodged the complaint before the Ld. District Forum stating that OP No.1 is the approved study centre of OP No.2, who runs open university and OP No.3 is the competent authority to grant recognition to the university. On 18.06.2015 the complainant took admission in the study centre of OP No.1 for a diploma course in Mechanical Engineering and the course fee was Rs.54,000/- for two years. The complainant paid an amount of Rs.27,000/- towards the fees of 3rd and 4th semester. At the time of admission, the complainant wanted to know from OP Nos. 1 & 2 whether the course was affiliated under the University Grant Commission (UGC) but they declined to give any satisfactory reply. However, at the time of examination of 3rd semester on 01.08.2015 the complainant came to know that OP No.2 was no affiliated under OP No.3. The complainant has alleged that the OP Nos. 1 & 2 have failed to conduct the examination of 4th semester of diploma course in Mechanical Engineering in which he took admission. On 14.07.2016 and 13.08.2016 by letters, the complainant requested OP No.1 to return the amount of Rs.27,000/- towards course fees of 3rd semester and 4th semester as they failed to conduct examinations due to non-recognition of OP No.3. Despite of receipt of those letters, OP No.1 remained silent to redress the grievances of the complainant. In this regard, the approach of the complainant before the Consumer Affairs and Fair Business Practices on 26.02.2016 yielded no result. Hence, the appellant approached the Ld. District Forum on the allegation of deficiency in services on the part of OPs with prayer for several reliefs, viz. – (a) to direct the opposite parties to pay an amount of Rs.27,000/- towards the course fee of 3rd and 4th semester in diploma of Mechanical Engineering course; (b) to direct the OPs to pay compensation of Rs.3,00,000/-; (c) to direct the OPs to pay litigation cost of Rs.30,000/-.

The Respondent No.1/Opposite Party No.1 by filing a written version has stated that they have been authorised to establish and run exclusive study centre of Karnataka State Open University (KSOU), Mukthagangotri, Mysore-570006 (Karnataka) through the Academic Collaborator Sandip Foundation for conducting the distance education programme as per the MOU between Sandip Foundation and KSOU. It is stated that complainant did not take admission for the institute of contesting OP but admitted in coaching classes of OP No.1 and whatever fees as alleged by the complainant was paid by him as tuition fees. The OP No.1 has also stated that the complainant was provided the service of teaching and conducting of examination and issuance of certificate and mark-sheets are not the responsibility of OP and those works do not come within the purview of the OP. The OP No.1 has stated that they were never deficient or negligent in providing any services towards students. It is also stated that OP No.1 has been holding/conducting the theoretical classes and practical classes in diploma course sincerely and honestly in the vicinity of Kolkata and from other parts of the State.

The Respondent Nos. 2 & 3 being Opposite Party Nos. 2 & 3 did not appear to contest before the Ld. District Forum and as such the complaint was heard and decided against them ex-parte.

On evaluation of materials on record, the Ld. District Forum by the impugned order allowed the consumer complaint on contest against OP No.1 and ex-parte against OP No.2 with certain directions, as indicated above. Being dissatisfied with the amount of compensation awarded by the Ld. District Forum, the complainant has come up in this Commission with the present appeal.

The Appellant, who appears in person has submitted that he was befooled by Respondent No.1 with an assurance to provide diploma in Mechanical Engineering through respondent no.2 (KSOU). During hearing of the appeal, he has placed before the Bench one mark-sheet showing the result of third semester examination – August, 2015 in Diploma in Mechanical Engineering dated 31.12.2015 and submitted that the said mark-sheet which is a fake one has been provided by respondent no.1 to him. He has submitted that being allured by the rosy picture about obtaining the diploma in Mechanical Engineering, he took admission in respondent no.1 institute on payment of Rs.27,000/-. But his dream and aspiration has been shuttered.

He has submitted that the Ld. District Forum has failed to appreciate that he has lost the educational life, promotion in service and loose increment in his service which results huge monetary loss and as such the compensation awarded by the Ld. District Forum is on lower side, the impugned should be interfered with.

Mr. Indrakant Jha, Ld. Advocate for the Respondent No.1, on the other hand has contended that the appellant took admission in their institute on 12.02.2015 for a Diploma Course in Mechanical Engineering and he received admit card and mark-sheet of third semester through the respondent no.1 issued by respondent no.2. Ld. Advocate for respondent no.1 has submitted that the respondent no.1 institute has provided coaching to the appellant for which the appellant has paid the course fee of Rs.27,000/- and as such question of deficiency on the part of respondent no.1 does not arise.

Mr. Debasish Ghosh, Ld. Advocate for Respondent No.2 has submitted that the respondent no.1 institute was not authorised by KSOU to conduct the course of Diploma in Mechanical Engineering. He has submitted that the KSOU was established by a legislation under the State Act and as such the respondent no.2 University had no sanction in authorising respondent no.1 institute to conduct the course on behalf of respondent no.2 university.

Mr. Anil Kr. Gupta, Ld. Advocate for the Respondent No.3 has submitted that the respondent no.1 institute has been conducting the programmes offered by KSOU (respondent no.2) in an unauthorised manner and the university itself was not authorised to offer programme in distance education beyond 2012-2013 and to franchise its programme to other organisations. Since franchising was never permitted either by the erstwhile DEC or UGC or even by law of the land, the existence of this so called study centre is not legal.

We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.

Undisputedly, the Respondent No.1 Institute is lying and situated at Premises No.48B, Dr. Sundari Mohan Avenue, 4th Floor, P.S.- Beniapukur, Kolkata – 700014 and respondent no.2 university is situated at Mukthagangotri, Mysore-570006 (Karnataka). Needless to say, an university cannot run unless it is recognised by UGC as per provisions of the University Grants Commission Act, 1956 which came into force on 05.11.1956. The said Act was enacted to make provisions for the co-ordination and determination of standards in the universities. The Commission under the provision of the Act has been entrusted with the duty to take such steps as it may thinks fit for the promotion and maintenance of standards of teaching, examination and research in the university. For the said purpose, the UGC has been vested with the power to recommend to any university the measures necessary for the improvement of university education and advice the university upon the action to be taken for the purpose of implementation of such recommendation.

Admittedly, Respondent No.1 is a private institution located outside the Sate of Karnataka, precisely in the State of West Bengal. KSOU (Respondent No.2) is a State University established by an Act of State Legislature. It was accorded institutional recognition by erstwhile Distance Education Council (DEC), IGNOU from 2007-08 to 2012-13 to offer programmes through distance mode. However, no further recognition has been given to the university.

Undisputedly, Appellant was admitted in Respondent No.1 institute for pursuing diploma course in Mechanical Engineering. It also remains undisputed that the appellant paid an amount of Rs.27,000/- towards the fees of 3rd and 4th semester in favour of respondent no.1. In order to bring confidence in the mind of appellant, the respondent no.1 institute/coaching centre issued one mark-sheet for third semester examination – August, 2015 dated 31.12.2015 in the name of appellant showing Serial no. M 1407352264 which appears to be a forged document as it does not bear any emblem of the University. Moreover, the KSOU (respondent no.2) had no occasion to issue any such mark-sheet to a student who is pursuing his studies in some other State other than Karnataka.

On going through the literature named ‘SCOPE’, Bangalore in collaboration with KSOU, it appears that KSOU was established on 1st June, 1996 with the assent of His Excellency Hon’ble Governor of Karnataka as a full fledged university in the academic year, 1996 vide Notification No.ED1UOV95 dated 12.02.1996 (KSOU Act-1992) the Act was promulgated with the object to incorporate an Open University at the State level for the introduction and promotion of Open University and Distance Education Systems in the education pattern of the State and for the co-ordination and determination of standard of such systems.

Therefore, the Ld. District Forum has rightly observed – “Karnataka State Open University, Mysore being a State University can operate with the State only. The university is not authorised to open study centre/off campus centre beyond the territorial jurisdiction of the State as per the judgement of Hon’ble Supreme Court in the case of Prof. Yashpal – Vs. – The State of Chhattisgarh (2005). The university was also required to follow territorial jurisdiction policy of UGC as per its public notice dated 27.06.2013. The UGC has not granted any approval to the university to open off campus/study centre anywhere. So it is evident that OP No.1 has been conducting programmes offered by Karnataka State Open University, Mysore in an unauthorised manner”.

Therefore, we do not find any reason to differ with the view of the Ld. District Forum and the Ld. District Forum was quite justified in directing the OP Nos. 1 & 2 to pay an amount of Rs.27,000/- to the complainant apart from litigation cost of Rs.10,000/-. The Ld. District Forum was also justified in assessing the compensation at Rs.30,000/- and we do not find any reason to interfere with the amount awarded as compensation.

However, the Ld. District Forum has not assigned any specific reason for awarding Rs.50,000/- for adopting unfair trade practice. The basic ingredients of ‘unfair trade practice’ are as follows –

i. it must be a trade practice;

ii. the trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or for the provision of any service; and

iii. the trade practice adopts any unfair method or unfair or deceptive practice including any of the practices enumerated in sub-clauses (1) to (6) of Section 2(1)(r) of the Act.

In (2015) 1 SCC 429 (General Motors (India) Pvt. Ltd. – vs. – Ashok Ramnik Lal Tolat & Anr.) the Hon’ble Supreme Court has observed thus :

“17. The Act is a piece of social legislation to provide a Forum to the consumers who are taken for a ride by suppliers of goods and services. The redress is provided to a consumer against any deficiency in service as well as against any loss or injury arising out of ‘unfair trade practice’. By later amendment, scope of complaint can cover not only individual consumer but also consumers who are not identifiable conveniently. However, the complainant has to make an averment and make a claim. Section 12 of the Act permits not only a complaint by a consumer to whom goods are sold or delivered but also any recognised consumer association or more consumers on behalf of and for the benefit of all consumers but still, a case has to be ma

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de out and the affected party heard on such issue. We are conscious that having regard to the laudable object of the social legislation to protect the interest of consumers, liberal and purposive interpretation has to be placed on the scheme of the Act avoiding hyper technical approach. At the same time, fair procedure is the hall mark of every legal proceeding and affected party is entitled to be put to notice of the claim which such affected party has to meet”. In the case before hand, we do not find any averment in the petition of complaint about the suffering of complainant to that effect which are awarded against a conscious wrong doing unrelated to actual loss suffered. Therefore, the order on account of Unfair Trade Practice awarded by the Ld. District Forum cannot be upheld. In view of the above, the impugned Judgement/Final Order is modified only to the extent that the respondent nos. 1 & 2/OP nos. 1 & 2 shall have no obligation to pay Rs.50,000/- on the head of ‘unfair trade practice’. The other part of the order passed by the Ld. District Forum is maintained. With the above observations, the instant appeal stands disposed of on contest. There will be no order as to costs in this appeal. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata Unit-II for information.