Samaresh Prasad Chowdhury, Presiding Member
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is directed against the Final Order being Order No.16 dated 17.01.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, Ld. District Forum) in Consumer Complaint No. 158/2017. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondents under Section 12 of the Act with the directions upon the Opposite Party Nos. 1 & 2/Appellants to refund Rs.1,88,400/- along with interest @ 7% p.a. from the date of filing of the case till realisation, to pay litigation cost of Rs.2,000/- within 30 days from the date of order in default the appellants/OP Nos. 1 & 2 shall pay a fine of Rs.100/- per day’s delay and the said amount shall be accumulated in the fund of the Ld. District Forum.
The Respondent Nos. 1 & 2 herein being Complainants lodged the complaint before the Ld. District Forum stating that complainant No. 1 being father of complainant No. 2 with a high hope admitted complainant No. 2 in the Global Institute of Fashion Technology to pursue three years B.Sc. Degree Course in the stream of Interior Designing and Architecture on 08.12.2014 for the academic session 2015-2017. The complainants have stated that for the purpose of the said course the Principal of the Institute has received Rs. 1,88,400/-. Besides the same for the purpose of admission, attending the college classes, complainant No. 1 had to incur amount of Rs. 40,000/- for conveyance charges, Rs. 1,00,000/- for accommodation and miscellaneous expenses of about 20,000/-. The complainants have stated that on 16.07.2016 the Principal (OP No. 1) informed the complainant No. 2 that the Institute will not be able to provide any B.Sc. Degree Certificate for the said course under Karnataka State Open University (K.S.O.U) and/or under any University and insisted the complainant No. 2 to join the classes for the two years Diploma Course in Interior Design and Architecture. On 17.09.2016 complainant No. 2 expressed his grievances in the matter and unwillingness to do the said course and also asked to refund all the money which the OP Nos. 1 and 2 received for the purpose but it turned a deaf ear. On 31.12.2016 the complainant No. 1 issued a notice through his Advocate upon OP No. 1 calling upon him to refund the money of Rs. 1,88,400/- along with incidental fees but it also remains unheeded. Hence, the respondent Nos. 1 and 2 approached the Ld. District Forum with prayer for several reliefs, viz.- (a) refund of Rs. 1,88,400/- received by OP No. 1 from complainant No. 1 as admission fees, registration fees, tuition fees for complainant No. 2; (b) refund of Rs. 1,60,000/- as conveyance charges, miscellaneous expenses etc; (c) Rs. 10,00,000/- as compensation and deficiency in services; (d) Rs. 1,00,000/- for mental agony; (e) l Rs. 5,000/- as litigation costs.
The Appellants/Opposite Party Nos. 1 and 2 by filing a written version have stated that they run an approved study centre by one Pan India Education which is collaborative institute of the Karnataka State Open University (KSOU) under whose supervision, the OP was to conduct certain courses offered by the KSOU. In this regard, the KSOU also signed a Memorandum of Understanding on 12.08.2014, issued certificate dated 14.11.2013 and subsequently issued a letter dated 30.04.2014 to the said Pan India Education approving the OP as its study center. But suddenly by a notification dated 16.06.2015 issued by University Grant Commission (UGC), had discontinued the recognition of the academic programme being conducted by KSOU and the said programme has been discontinued beyond the batch of 2012-2013. The OP has stated that they cannot be held responsible as there was no deficiency in providing services on the part of them.
The Pro-forma respondent No. 3 /Opposite Party No. 3 the Vice- Chancellor, KSOU did not contest.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint lodged by the Respondent Nos. 1 and 2 /complainants with certain directions upon the appellants/OP Nos. 1 and 2. Being aggrieved and dissatisfied with the said order, the OP Nos. 1 and 2 have come up in this Commission with the present appeal.
Mr. Souvik Kumar Das, Ld. Advocate for the appellants has submitted that the appellant is authorised Study Centre of KSOU and the responsibility of the appellants was to prepare the respondent No. 2 for examination which was conducted as per guidelines of KSOU and mark-sheet was also provided by them after conducting examination. He has further submitted that the fees charged by the appellants was towards their services and as per the Memorandum of Understanding substantial amount was also transferred to the KSOU for undertaking examination and issuing mark-sheets and as there is no deficiency on the part of appellants/OP Nos. 1 and 2, the impugned order should be set a aside. Ld. Advocate for the appellants has also contended that the Ld. District Forum has committed an error by not holding the KSOU was negligent in providing their services to the appellants.
Per contra, Ld. Advocate for the respondent Nos. 1 and 2 has contended that the appellant No. 1/OP No.1 has shown a rosy picture about the Institute and in their brochure they have categorically mentioned that the course of Interior Designing and Architecture is recognised by University Grants Commission (UGC). On such assurance, the respondent No. 2 got herself admitted on 08.12.2014 in the appellants institute. However, by a public notice dated 16.06.2015 UGC discontinued its recognition to KSOU, Mysore beyond 2012-13. Ld. Advocate for the respondent has further contended that after giving a show cause notice to KSOU on 10.06.2011 and after considering their response including personal hearing of the officials of the University such a step has been taken. In such a situation, when having notice about discontinuation of approval of the course by UGC beyond 2012-13 when the appellant continued the course and admitted the respondent No. 2 on 08.12.2014 , it signifies not only deficiency of services on the part of appellants institute but also amounts to unfair trade practice under Section 2(1)(r) of the Act.
Ld. Advocate for respondent No. 3 has submitted that for the fault of appellants, no amount of liability may be attributed upon respondent No. 3 and as such the impugned order should not be interfered with.
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 Nos. 1 and 2 being father and son visited the appellant’s institute viz.- Global Institute of Fashion Technology for pursuing a three years B.Sc- Degree course by respondent No. 2 in Interior Design and Architecture on 08.12.2014 for the session 2015-2017. It is not in dispute that for the purpose of admission and continuation of study, the respondent No. 2 has deposited a total amount of Rs. 1,88,400/- on diverse dates by way of instalments.
The evidence on record speaks that in the year 2014, the appellants institute had no recognition from UGC. It appears from public notice dated 16.06.2015 that the programmes offered by KSOU, Mysore has not been recognized by UGC beyond 2012-13. It is evident that at the relevant year of admission of respondent, precisely on 08.12.2014 the appellant institute was not recognized by UGC. Therefore, the appellant institute had no occasion to issue brochure mentioning the institute is recognized by UGC. This conduct on the part of appellant institute not only indicates deficiency or negligence on the part of them but also speaks about unfair trade practice adopted by them to dupe the students.
The evidence on record speaks that the respondents have paid a total amount of Rs.1,88,400/- on diverse dates to pursue the course of respondent No. 2. The respondent No. 2 was enrolled for three-year degree course in B.Sc(Interior Designing and Architecture) but on 16.07.2016 from the Principal of the Institute (appellant No. 1) he came to know that the appellant institute will not be able to provide the B.Sc. Degree Certificate and rather insisted respondent No. 2 to get himself admitted in two years advanced Diploma Course in Interior Designing and Architecture. As a result, like respondent No. 2 future of many students has been spoiled.
The appellant tried to absolve their responsibility simply on the ground that it had approval letter from KSOU to run the study centre. Inviting our attention to the letter given by the Planning and Development Officer, KSOU dated 28.11.2013 addressed to GIFT Institute/appellant where it has been mentioned that the appellant may run the study centre with collaboration of Pan India Education, Kolkata. The other letter dated 30.04.2014 given be Dean(study centres), of KSOU addressed to Pan India Education also indicates that the appellant institute has been approved the courses excepting Engineering related programmes. We failed to understand as to how the KSOU has given those letters when they had no authority to do the same.
In any case, the respondent hired the services of appellant and not directly from KSOU. In other words, the relation between the parties as consumer-service provider exists. As the respondent Nos. 1 and 2 /complainants have no direct relation with KSOU and the respondent hired the services of appellant institute simply on the basis of their brochure and promise of quality education, it is the appellant institute to be held responsible for such misery of the respondent.
The Ld. District Forum has rightly observed that the rights and contentions of the appellants, if any, against the respondent No. 3 (KSOU) may be availed of by taking separate action but in any case the Opposite Party Nos. 1 and 2/appellants cannot absolve their responsibility to compensate the respondent Nos. 1 and 2/complainant.
Therefore, after giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, it appears to us that the Ld. District Forum was quite justified in passing the order impugned directing the OP/appellant to refund Rs.1,88,400/- along with interest @ 7% p.a. from the date of filing of the case till realisation along with litigation cost of Rs.2,000/- to the respondent Nos. 1 and 2/complainants within 30 days from date.
However, I do not find any reason for imposition of fine 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 punitive dam
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ages 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 appellant was aware that any such claim is to be met by it and the appellant 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 penalty of Rs.100/- per day punitive damages imposed by the Ld. District Forum is not sustainable in the eye of law. In view of the above, the impugned Judgement/Final Order is modified only to the extent that the appellants/OP Nos. 1 and 2 shall have no obligation to pay fine of Rs.100/- per day as imposed by the Ld. District Forum. However, the other part of the order is maintained. With the above observations, the instant 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, Kolkata, Unit-II for information.