J U D G E M E N T
This appeal is directed against the final order/judgement passed by Ld. D.C.D.R.F, Jalpaiguri dated 07/06.2018 in connection with consumer case no. 60 of 2017. The factum matrix of the case is that the complainant/respondent Niloy Bal after completion of his Madhyamik Examination from W.B.B.S.E in 2010 could not pursue his higher studies for his illness. Thereafter, the complainant/respondent after recovery from illness set up his mind to go through higher studies as external candidate and came to the contact of the respondent no. 1 who disclosed his identity as the owner and founder of an educational centre North Bengal Oasis Institute of Education duly affiliated to National Institute of Open Schooling. The respondent no. 1 also assured him that his institution would make arrangement for the admission of the complainant/respondent in the course of higher secondary through NIOS and demanded Rs.20,000. The appellant/OP agreed with the said arrangement and time to time made payment of Rs. 18,000 to the respondent no. 1 on different dates in year 2015 for the academic session 2015-16. After waiting two years the OP no. 1 could not make arrangement for the higher studies of the complainant/respondent. The complainant/respondents then contacted with the respondent no. 1 for returning of his money. Ultimately, when he was refused in getting back the money which he had paid to the tune of Rs. 18,000. He then sent a legal notice dated 18/10/2018 to the respondent no. 1. Respondent no.1 then by registered post through advocate letter annexure 1 dated 01/11/2017 asked the complainant/appellant to take back Rs. 18,000 along with interest at the rate of 6 per cent per annum. Then the complainant came to the Ld. Forum for compensation of his sufferings for two years and harassment. Both respondent no. 1 and 2 had contested the said case by filing written version and contended inter alia that the complainant/respondent was a student and he is not a consumer as defined under the Consumer Protection Act,1986 and was not entitled to get any relief in the consumer forum.
The consumer forum after hearing both sides and on perusal of relevant document passed the impugned order. Being aggrieved with the said order the appeal follows on the ground that the complainant/respondent has no cause of action as because he showed his apathy and stop contacting with the appellant/OP after getting admission for his higher studies. Though the appellant/OP never portrayed his institution to be a part of National Institute of Open Schooling. He agreed in reply to the legal notice to pay back Rs. 18,000 which he received from the complainant/respondent along with interest at the rate of 6 per cent per annum and as such the cause of action never existed. The further case of the appellant is that the impugned order is misconceived, erroneous, contrary to law and likely to be set aside.
D E C I S I O N W I T H R E A S O N S
This appeal is heard in presence of Ld. Advocate of the appellant and in presence of the respondent/complainant who pursues his case personally by submitting the written note of argument. During the course of argument Ld. Advocate of the appellant mentioned before the Commission that no relief should be preferred in favour of the complainant/respondent as because as per provision of the Consumer Protection Act,1986 a student is not a consumer. His second fold of argument is that in this case without taking evidences on the part of either sides the Ld. Consumer Forum had accepted the case of the complainant/respondent which is severe violation of the procedure enunciated in section 13 of the Consumer Protection Act. The last but the least argument is that here only one person came to the forum with allegation of defrauding various student on the part of the appellant/OP whereas no other person came with any allegation before the Ld. Forum about such fraud practice. According to his argument the compensation of Rs. 1 lakh as awarded for the Ld. Forum along with a sum of Rs. 50,000 to be deposited in the Consumer Welfare Fund is nothing but erroneous and baseless. In support of the entire argument Ld. Advocate relied upon judicial decisions as follows: -
- (iii) (2016) CPJ 230 (NC)
- (iii) (2015) CPJ 487 (NC)
- (iii) (2014) CPJ 120 (NC)
The respondent No. 2 of this case did not contest the appeal in spite of receiving notice and none came on behalf of respondent no 2 to make any argument or to hearing the appeal. The complainant/respondent in his written note of augment relied upon the findings and decisions of the Ld. District Forum. After going through the decisions cited before this Commission it is well established fact that consumer protection Act mainly confines for protection of the bona fide consumers who suffers from any unfair and restricted trade practice or there is any deficiency of service for which he has hired. Generally, student pays the admission fees, tuition fees before the academic institutions for the cost of his education and to get the degrees. And in that circumstances, students are not consumers and academic institutions are not service providers. But here in our present case which is otherwise one. Here there was a contract between complainant/respondent and the appellant/OP that the appellant/ OP would admit the complainant/respondent under N.I.O.S. for the higher secondary course and in lieu of such assurance and contract the appellant/OP No. 1 has obtained Rs. 18,000 as charges for the purpose of higher study of the complainant/respondent. Here the student and academic institution relationship does not exist. Rather the appellant/OP clearly mentions in his pleadings that his institution was never affiliated to NIOS. His position was only to be authorised signatory of NIOS. He does not run any academic institution. Therefore, we may presume that the activities of the appellant/OP are nothing but a franchise who helps the students to obtain degree or certificates from other academic institution in lieu of money. Here in this case, the admitted position is that the appellant/OP was always agreed to pay back Rs. 18,000/- including interest at the rate of 6 per cent per annum which itself speaks that the respondent/complainant could not get the proper service from the part of the appellant/OP for which he has paid and waited for two years.
Ld. Forum in its judgement clearly opined that school examination board is not a service provider and a student who takes an examination is not a consumer. But unaffiliated educational institution when admitted students for consideration of higher studies in lieu of fees from the students for imparting of education and if there is no rendering of service in proper way then the student can claim compensation for damages which he had suffered as per provisions of Consumer Protection Act, 1986. Therefore, the State Commission do not find any irregularity in findings of the decisions of the Ld. District Consumer Forum.
Here in this case, it is argued on the part of the appellant/OP that the Ld. Forum did not follow the established procedure of CP Act, particularly, Section 13 has been infringed as because evidence in this case could be recorded by the Ld. Forum and established the case of the complainant only on the basis of pleadings and documents of the both sides. It is a fact that in this case the Ld. Forum did not obtain any evidence in chief from the complaint/respondent or form the OP/appellant. Ld. Forum in the judgment categorially mentioned that both parties of the case had submitted before the forum to pass final order accepting the petition of compliant and the written version as their respective evidence on affidavit. The Ld. Forum consulted the pleadings and documents of the both sides and relied the documents produced by each side. Now, the question is whether the judgments based on only upon the pleadings and documents have any legal sanctity under provisions of Consumer Protection Act, 1986.
We know very well that the object of CP Act is to secure judicial purpose to promote the facilities in a comprehending manner for settlement of issues involved in the consumer complaint and to assess the damage and the act has debarred from the settled legal Forums provides under the Code of Civil Procedure. The Act intends to secure inexpensive and expeditious consumer service.
If we see the case in another perspective, we find that the evidence as used in the judicial proceedings has several meanings. Evidence is that which may be placed before the Court in order that it may decide the issues of fact. Here in this case the Ld. Forum has based his decision in this case on perusal of the pleadings and documentary evidences and hearing of both the sides. Therefore, in such a context we cannot reach to a conclusion that the Ld. Forum has passed the erroneous judgment as no evidence was recorded on its part.
Now, the question is why Ld. Forum asked the appellant/OP to pay compensation of rupees 1 lakh to the complainant/respondent and to deposit 50,000 in the bank account of West Bengal State Consumer Welfare Fund. After going through the entire pleadings and all the relevant documents placed in this case, the Commission did not find any whispering form any different angle that the appellant/OP have defrauded many other clients by the same way and fashion as alleged in the consumer complaint towards the appellant/OP.
Admittedly, the appellant/OP is an unemployed youth who for his self-employment to maintain his livelihood opened his enterprise and if he is asked to pay compensation of Rs. 1 lakh towards the damage suffered by the respondent/complainant and to deposit a sum of Rs. 50,000 in the bank account of West Bengal State Consumer Welfare Fund then it would cause tremendous hardship on his part in proportion to the commission and omission he has done towards the complainant respondent. So, the ordering portion of the judgement of the Ld. Forum should be modified and instead of Rs. 1 lakh compensation it should be confined to Rs. 50,000 and he shall have to deposit Rs. 10,000 instead of Rs. 50,000 to the West Bengal State Consumer Welfare fund. The Other portion of the order of Ld. Forum shall remain intact.
In this way, the appeal is hereby disposed of.
Hence, it is
O R D E R E D: -
That the appeal no. A/5/2018 under section 15 of the CP Act,1986 is hereby partly allowed on contest without any cost. The order of Ld. D.C.D.R.F, Jalpaiguri dated 07.06.2018 in connection with CC/60/2017 shall remain intact except the amount of compensation Rs. 1 lakh to be read as now Rs. 50,000 and the amount to be deposited in the West Bengal State Consumer Welfare Fund to be read as Rs. 10,000 instead of Rs. 50,000.
Let a copy of this order be sent to the Ld. D.C.D.R.F, Jalpaiguri by e-mail and by registered post. Let the original documents if any filed by the parties to this case be returned to them on proper receipt. Both parties to this appeal case will be at liberty to have a copy of judgement received free of charges.
The stay order passed by this commission vide order no.2 dated 26.07.2018 stands recalled.
