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 Opposite Party No.1 Pinnacle Institute of Engineering and Management (PIEM) to impeach the Judgement/Final Order dated 08.05.2018 passed by the District Consumer Disputes Redressal Forum, Jalpaiguri (in short, Ld. District Forum) in Consumer Complaint No. 24/2017. By the impugned order, the Ld. District Forum allowed the complaint lodged by Respondent No.1 Sri Pinak Pani Ghosh under Section 12 of the Act with the direction upon the OP No.1/Appellant to pay Rs.1,00,000/- as compensation and litigation cost of Rs.5,000/- aggregating Rs.1,05,000/- to be paid to respondent no.1/complainant within one month from the date of order in default the amount shall carry interest @ 9% p.a. from the date of institution of the case i.e. for 08.06.2017 till its realisation and to deposit a sum of Rs.100/- per day towards punitive charges/penalty to be deposited in the account of State Consumer Welfare Fund, West Bengal.

The Respondent No.1 herein being Complainant lodged the complaint before the Ld. District Forum asserting that being a Junior Engineer (Civil) in the Department of Water Resources Investigation Development Department (WRIDD) under the Govt. of W.B. attached with the office of the Assistant Director of Agriculture (Soil Conservation), Siliguri he had been to the institute of OP No.1 on 14.10.2012 for pursuing the course of B.Tech. (Civil) Engineering Exam under Rajasthan Vidyapeeth (Deemed) University at Pratapnagar Udaipur, Rajasthan i.e. RVD University for three years Academic Sessions for 2011- 2012, 2012-13, 2013-14 and 2014-15 (Nos. of six semesters under correspondent mode) with a view to achieve higher degree/qualification to the respective field of Civil Engineering and paid Rs.11,000/- as admission fees and another sum of Rs.9,000/- towards registration fee. The complainant has stated that he enquired about proper affiliation of the institute to which he was assured that at the time of publishing semester result valid documents in relation to the affiliation would be delivered to the complainant. The complainant has stated that he had completed six semesters with the stipulated course and has paid course fee amounting a sum of Rs.1,03,000/- including semester fees and admission fees. The complainant has alleged that he is entitled to have Memorandum of Marks of six semesters from the OP and finally entitled to a final certificate in B. Tech. (Civil) Engineering from JNR Rajasthan Vidyapeeth (Deemed) University. But in reality, neither the three semesters results (sem – vi, vii and viii) nor the final certificate given to the complainant till date. The complainant has stated that on several occasions he requested the OP for results of those three semesters and final certificate along with proper document of affiliation but it turned a deaf ear. Hence, the respondent no.1 approached the Ld. District Forum on the allegation of deficiency in services on the part of OP with prayer for following reliefs, viz. – (a) a declaration as to examination results of sem- vi, sem-vii and sem-viii along with final certificate of B. Tech. (Civil) Engineering for academic sessions, 2011-12, 2012-13, 2013-14 and 2014-15 and conferred the same to him complainant; (b) to pay compensation of Rs.7,00,000/- for unfair trade practice and deficiency in service; (c) compensation of Rs.2,75,000/- for harassment and mental agony and (d) Rs.25,000/- as costs of litigation.

The Appellant being Opposite Party No.1 by filing a written version has stated that the mark sheets of three semester results (Sem-vi, vii & viii) and the final certificate was sent by the University and the said certificate was received by Smt. Joyshri Das, wife of the complainant who took the charge of the mark sheets and certificate, as claimed by the complainant.

The Proforma Opposite Party/Respondent No.2 did not contest.

After assessing the pleadings and the evidence led by the parties and other materials on record, the Ld. District Forum by the impugned order allowed the complaint to the extent as indicated above. Being aggrieved and dissatisfied with the said order, the OP No.1 has come up in this Commission with the present appeal.

We have heard Mr. Indra Kant Jha, Ld. Advocate for the Appellant and seen the materials on the record including brief notes of argument. Despite service of notice, the Respondent No.1/Complainant has not appeared to contest.

Undisputedly, Respondent No.1 took admission in Appellant institute on 14.10.2012 for pursuing the course of B. Tech. (Civil) Engineering under Rajasthan Vidyapeeth (Deemed) University at Pratapnagar Udaipur Rajasthan i.e. RVD University for three years academic session from 2011-12, 2012-13, 2013-14 and 2014-15 for six semesters under correspondence mode (Distance Education) with a view to achieve higher degree/qualification in the field of Civil Engineering through the appellant institute. It is not in dispute that on the date of admission i.e. on 14.10.2012 the appellant institute collected a sum of Rs.11,000/- as admission fee and another sum of Rs.9,000/- as registration fee from respondent no.1. It also remains undisputed that the respondent no.1 had completed six semester with stipulated course of period of session and the respondent no.1 has paid the necessary course fees in time amounting to Rs.1,03,000/- including semester fees and admission fee to the appellant institute on diverse dates against proper receipts. However, the respondent no.1 got results of three semesters but he did not get the mark sheets of the rest three semesters being semesters – vi, vii & viii nor the final certificate with proper document as to affiliation of the course.

On the contrary, it is the plea of the Appellant/OP No.1 that they handed over those mark sheets and final certificate to Smr. Joyshri Das, the wife of respondent no.1 who was also a staff of appellant institute. To substantiate the claim, the appellant institute had filed an affidavit sworn by Smt. Joyshri Ghosh (Das), wife of respondent no.1. In that affidavit, Smt. Joyshri Ghosh (Das) has stated that she collected the original mark sheet of 8th semester of B. Tech. On behalf of her husband/respondent no.1 on 06.03.2016 after putting her signature on the register and subsequently, she delivered and handover the same to her husband, who acknowledged the same. The evidence on record indicate that the relation between the respondent no.1 and his wife is strained and they have been living separately. Therefore, we do not find any reason how and under what circumstances, Smt. Joyshri Ghosh collected the original certificate on behalf of respondent no.1. Moreover, without any authority, there was hardly any reason on the part of appellant company to issue certificate in favour of the said Smt. Joyshri Ghosh without any consent of respondent no.1.

The materials on record indicate that Respondent No.2 University was given the status of Deemed University and authorised to offer programme in the field of Social Work, Education, Arts and Commerce. However, the respondent no.2 university overstepped the mandate and started distant education programmes, including for award of B. Tech, degree outside the field of specialisation without UGC/AICTE approval. In other words, the appellant university has started distant education programme in subjects or courses leading to award of B.E. and B. Tech. Degrees which were not within their field of specialisation.

The All India Council for Technical Education (AICTE) issued Regulation in 1994 and as per the said Regulation, no new technical institution or university, technical department shall be started and no course of programme shall be introduced by any Technical Institution, University including a Deemed University or University Department or College. However, the respondent no.2 University commenced its course in Engineering through Distant Education Mode in the year 2003 for people who were already employed in Technical fields and had previous technical qualifications but could not apply further due to various restrains. However, such programmes leading to degrees in Engineering were started without taking any approval from UGC and/or AICTE. On 27.06.2013 a Public Notice issued by UGC that no Deemed University would be allowed to take courses through Distant Education and when respondent no. 2 University applied to UGC for grant of approval, no reply was given by UGC.

In this regard, the decision of the Hon’ble Supreme Court in Civil Appeal Nos.17869-17870 of 2017 [Orissa Lift Irrigation Corporation Ltd. – Vs. – Rabi Sankar Patro & Ors.] appears to be relevant for arriving at a correct decision. The crucial facts emerge before the Hon’ble Apex Court that the respondent no. 2 University started Distance Education Programmes leading to degrees in Engineering, outside their field of specialisation. Such programmes were started without taking any approval from UGC and/or AICTE and there was no approved Engineering College or faculty at their main campus and the study centres were not inspected at any stage, nor any facilities therein were assessed and no authority had checked what kind of process were being conducted.

The Hon’ble Supreme Court has ultimately passed an order directing that the AICTE Regulations, 1994 do apply to Deemed to be Universities and the Deemed to be Universities in the present manner were not justified in introducing any new courses in technical education without approval of AICTE. The Hon’ble Supreme Court has also observed that all the degrees in the Engineering awarded by concerned Deemed to be Universities stand suspended. It has also been observed that the amount received from the students towards tuition fees and other expenditures shall be returned.

In view of the above, the question of issuance original mark sheet of Semesters – vi, vii & viii does not arise and question of issuance of Final Certificate of B. Tech. (Civil) Engineering also cannot be obtained. In other words, the respondent no.2 University had no authority to issue such certificate and as such handing over the same by the appellant to respondent no.1 appears to be a cock and bull story.

Considering the above, the Ld. District Forum was quite justified in awarding compensation of Rs.1,00,000/- and litigation cost of Rs.5,000/- totalling Rs.1,05,000/- to be paid within one month from the date of the order in default, the amount shall carry interest @ 9% p.a. from the date of filing of the case i.e. 08.06.2017 till its realisation and we do not find any reason to differ with the view of the Ld. District Forum to that effect.

However, we do not find any reason for imposition of punitive charges/penalty of Rs.100/- per day. In a decision reported in (2015) 1 SCC 429 [General Motor (India) Pvt. Ltd. – Vs. – Ashok Ramnik Lal Tolat & Anr.] a question came up for consideration before the Hon’ble Supreme Court whether in absence of any prayer made in the complaint and without evidence of any loss suffered, the award of punitiv

e damages is permissible?. In answering to the question – the Hon’ble Apex Court has observed – “Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specifically pleaded”. Neither there is any averment in the complaint about suffering of punitive damages by the other consumers nor the opposite party was aware that any such claim is to be met by it and the appellant/OP having no notice of such a claim, the said order is contrary to the principles of fair procedure and natural justice. Therefore, the order of punitive damages imposed by the Ld. District Forum being not sustainable in the eye of law, is liable to be set aside. In view of the above, the impugned Judgement/Final Order is modified only to the extent that the appellant/OP shall have no obligation to pay a sum of Rs.100/- per day as punitive charges/penalty imposed by the Ld. District Forum. However, the other part of the order is totally maintained. With the above observations, the appeal stands disposed of. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Jalpaiguri for information.