Jagannath Bag, Member
The present appeal is directed against the Order, dated 22. 09. 2013, passed by the Ld. District Consumer Disputes Redressal Forum, North 24-Parganas, in CC Case No. 278/2013, whereby the complaint was allowed ex parte with cost against both the OPs.
The Complainant’s case, in brief, was as follows:
The Complainant working as a Library Assistant at Calcutta Institute of Technology, Howrah, got admitted for BLIS course in the year 2009 at the OP-1 Institute, a franchisee under Vinayaka Mission University (through distance education). She paid all necessary fees, i.e. Rs. 9950/-, as per University Rules and Regulations and completed her examination. But she did not get the Mark Sheet and Certificate, as a result of which, she could not submit the same to her appointing authority. She repeatedly requested the OPs for supply of the Mark Sheet and Certificate, but the OPs neglected to furnish the same. Lawyer’s notice was issued to the OPs. She has been losing her increment and is faced with a threat to her job and career. Hence, she filed a petition of complaint with a prayer for direction upon the OPs to refund Rs.9,950/- with interest and to pay compensation of Rs.1,00,000/-.
The OPs did not prefer to contest the case in spite of notice upon them.
Ld. Forum below having perused the petition of compliant, the copy of documents and the evidence on affidavit, submitted by the Complainant, found that the Complainant after long persuasion got her Mark Sheet. But the certificate was not issued to her. It was held by the Ld. Forum below that the Complainant’s contentions have been squarely substantiated by her unchallenged oral and documentary evidence on record. Ld. Forum below allowed the complaint ex parte with direction upon the OPs to supply the Complainant her certificate for the course (BLIS) for the year 2009 and also to pay a sum of Rs. 15,000/- as compensation including litigation cost by an account payee cheque within a month from the date of communication of the order, failing which a punitive damage of Rs. 100/- per day shall have to be paid from the date of communication till compliance and the amount will be credited to the Consumer Welfare Fund.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the OP No.1- turned -Appellant has come up before this Commission with prayer for direction to set aside the impugned order.
The memorandum of appeal has been filed along with copies of the impugned order and the petition of complaint. The Respondent No.1 filed a written objection.
The Appellant filed BNA together with copies of the order of the Hon’ble Supreme Court in P.T. Coshy and Anr. -vs- Ellen Charitable Trust and Ors. in Special Leave to Appeal (Civil) No. (S) 22532/2012.
The Respondent -1/ Complainant filed 5 sets of BNA with some additional claims including enhancement of claim for compensation and cost.
Ld. Advocate appearing for the Appellant submitted that the order of the Ld. District Forum is liable to be set aside in view of the order of the Hon’ble Supreme Court of India in Special Leave to Appeal (Civil) No.(s) 2532 /2012 holding that education is not a commodity and the complaint was not maintainable under the jurisdiction of the Consumer Forum. It was also stated that the Respondent No. 2 (Proforma Respondent) by their letter dated 22.10.2013 addressed to the Respondent No.1 stated that a cheque of Rs. 15,000/- in favour of the Respondent No.1 has been enclosed towards compensation in full and final settlement as per the decision of the Ld. District Forum. It was also submitted that the Mark Sheet and provisional Certificate have already been sent to the co-coordinator i.e., the Appellant and the office of the Appellant vide their letter dated 13.11.2013 requested the Respondent No.1 to receive the Certificate and give a receipt of acceptance which was refused by the Respondent/Complainant. It was asserted that the Complainant has no ground to agitate as the Respondent No.2 has already paid Rs. 15,000/- as the full and final settlement towards compensation as awarded.
Authorized representative of the Respondent No.1 submitted that in spite of Ld. Forum’s order, no compliance has been made by the OPs. A compensation of Rs. 15,000/- is quite negligible as the OP /Appellants exposed severe negligence/deficiency in service and adopted unfair trade practice. A sum of Rs. 25,000/- was demanded by the Appellant for obtaining the provisional certificate from the office of the OP /Appellant. The Respondent / Complainant suffered huge financial loss on the ground of non-submission of the certificate before her appointing authority as her increments in salary have been withheld for several years. Further, she could not pursue MLIB Course or PHD without having the certificate. Her father suffered heart attack as he was much worried about her non- possession of the certificate. The compensation which the Ld. Forum below awarded was meager and such compensation should be enhanced suitably as stated in the BNA No. 5 submitted on the date of hearing i.e., 07.10.2015. The point for consideration is whether the impugned order suffers from material irregularity and or legal infirmity.
Decision with Reasons:
There is no dispute that the Complainant / Respondent pursued BLIS course at the institute of the OP No.1 / Appellant on payment of necessary fees.
It is also a fact that though she passed her examination, she was not provided with the Mark Sheet and the Certificate which the Complainant alleged to be a deficiency in service and unfair trade practice on the part of the OPs / the Appellant herein.
As the complaint was not contested, an ex parte order was passed by the Ld. Forum below against the OPs on the basis of petition of complaint as well as oral and documentary evidence produced by the Complainant /Respondent.
However, it appears that the Ld. Forum below preferred not to deal with the moot point of maintainability of the compliant, particularly as to whether the Respondent/Complainant was a consumer under the provisions of the Consumer Protection Act.
Ld. Advocate for the Appellant has cited the order of the Hon’ble Supreme Court in Special Leave to Appeal Civil No. (S) 22532/2012 wherein the Hon’ble Court categorically held that education is not a commodity and educational institutions are not providing any kind of service. Ld. Advocate also referred to the decisions of this Commission in complaint case No. CC/345/2014 and First Appeal No. FA/1111/2013 wherein maintainability of educational related dispute being challenged by the OP, it was held that as per the decision of the Hon’ble Supreme Court, the complaint was not maintainable.
In the present case, it is apparent that OP Nos.1 and 2 are educational institutions engaged in conducting various education courses and holding examinations to the students enrolled with them. Hon’ble Supreme Court in disposing of the petition (s) for special leave to Appeal (Civil) No. (s) 22532 /2012 ordered as follows:
In view of the judgment of this Court in Maharshi Dayanand University -vs- Surjeet Kaur 2010 (11) SCC 159, wherein this court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of
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service, therefore, in the matter of admission, fees etc., there cannot be a deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986. Going by the above quoted order of the Hon’ble Supreme Court we are constrained to hold that Ld Forum below does not have the jurisdiction to adjudicate the complaint filed against the OPs/Appellant The impugned order suffers form legal infirmity. In the result, the appeal succeeds. Hence, Ordered That the appeal be and the same is allowed. The impugned order is set aside. The complaint stands dismissed. The Complainant / Respondent No.1 shall be at liberty to move appropriate Forum/Civil Court for Redressal of her grievance as per law. There shall be no order as to cost.