Sri Utpal Kumar Bhattacharya, Member

This Appeal has been preferred u/s 15 of the C.P Act, 1986 challenging the judgment and order No. 2 dated 11.08.2016 passed by the Ld. District Forum, Hooghly in Complaint Case No.CC/116/2016 denying admission of the complaint on the ground that the case instituted by the Appellant/Complainant is not maintainable.

The fact, in brief, was that the Appellant/Complainant had taken admission in the college of Respondents/OPs for pursuing his ‘B-Tech’ (Mechanical Engineering) course during the academic year 2015-19.

The Appellant/Complainant made a part payment of Rs. 58,573/- out of the total fees of Rs. 3,31,386/- for the admission but ultimately could not attend the class even for a day due to sudden illness. The Appellant/Complainant then prayed for refund of the fees already paid by him at the time of admission which was not heeded to by the Respondents/OPs.

The Appellant/Complainant, being aggrieved with the above mentioned deficiency in rendering services, filed the Complaint Case which led to the passing of the judgment and order under challenging in the instant Appeal.

The case was heard ex parte against the Respondents/OPs.

Ld. Advocate appearing on behalf of the Appellant/Complainant drew the notice of the Bench to the “public notice” vide advertisement No. AICTE/Legal/04/(01)/2007 published by all India Council for Technical Education (AICTE) which had been empowered to take all necessary steps to prevent commercialization of technical education u/s 10(n) of AICTE Act.

As submitted, in the said notice it was made amply clear that the technical institutions and universities including deemed universities should refund to the student withdrawing from the programme, the fees collected from them deducting an amount not exceeding Rs.1000/- as processing charge.

Ld. Advocate cited the decision of the Hon’ble National Commission in Revision Petition No. 3288 of 2016 [Mody University of Sciences and technology and Anr.—Vs—Mega Gupta] where, while rejecting argument of the learned Counsel appearing for the revision petition towards not maintainability of the case since the Complainant withdrew from the university after she had been admitted to the course and had, in fact, been called for counseling, observed the Complainant a Consumer recorded in the lines, “according to our understanding of Bihar School Board’s case, the Hon’ble Supreme Court has not laid down as an abstract proposition of law that a student taking admission in an educational institute can never be a “Consumer” vis-à-vis the institution, within the meaning of Section 2(1)(d) of the Act.”

Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.

Perused the papers on record and considered submissions on behalf of the Appellant/Complainant.

It is of no denying the fact that the education is not a commodity but imparting education in exchange of fees, as had happened on the instant issue, definitely comes within the meaning of ‘service’ as defined in the C.P Act, 1986. In the present issue education is imparted by the Respondent/OP institution through its faculty members and the students aspiring for the said education course are to pay fees for the purpose. Since there are ingredients of hiring of services on payment of fees, we are led to the inevitable conclusion that the student, in the given circumstances, are bestowed with the status of consumer as envisaged under the provision of Section 2(1)(d) ibid.

A seven Judges Bench of the Hon’ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors, reported in AIR 1978 SC 548 at page 583 (pr. 118) observed as under:

“In the case of the University or an educational institution, the nature of activity is, ex hypothesis, education which is a service to the community. Ergo, the University is an industry”.

The Hon’ble National Commission in the matter of Bhupesh Khurana And Ors. Vs Vishwa Budda Parishad And Ors., reported in 2000 CTJ 801 (CP) held, “Imparting of education by an educational intuition for consideration falls within the ambit of ‘service’ as defined in the Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The Complainants had hired the services of the Respondent for consideration so they are consumers as defined in the Consumer Protection Act”.

The Appellant could not place before me any contrary view of any larger Bench of the Hon’ble Supreme Court. Therefore, the decision pronounced in Bangalore Water Supply and Sewerage Board (supra) appears to be the decision of the largest Bench of the Hon’ble Supreme Court in the matter by far. Thus, the said decision overrides all other contrary view of smaller Benches of the Hon’ble Court.

Bowing before the decision emanated from the highest Forum of the land, I consider the Complainant, a Consumer and the case is maintainable in terms of the provisions envisaged under the Act.

Since the case was dismissed at the threshold point by the Ld. District Forum without hearing the contest in parties in merit of the case, I find in the instant Appeal, a fit case to be remanded to the Ld. District Forum for hearing of the case from the phase it was last heard and for passing a reasoned order.

Hence,

Ordered

that the Appeal be and same is allowed in part. The case be remanded to the Ld. District Forum for hearing, allowing the contesting sides opportunities to represent themselves, from the stage it was last heard and to pass a reasoned order. The parties are directed to appear before the Ld. District Forum on 13.08.2019.