DIST. CONSUMER DISPUTES REDRESSAL FORUM

NORTH 24 Pgs., BARASAT.

C. C.  CASE NO-10/2013

Date of Filing:                             Date of Admission:                      Date of Disposal:

16.01.2013                                      16.01.2013                                    25.01.2018

 Complainant:    Binay Bhattacharyya, Brindaban Lane, P.O. & P.S.-Kulti,

                              District-Burdwan (West Bengal), Pin-713343.

Vs.

Opposite Party:-The Proprietor, Gandhi Institute of Management & Technology,

                                AG-7, Salt Lake, Sector-II, P.S.-Bidhan Nagar (East),

                                 Kolkata-700 091.

P R E S E N T:-Sri  Siddhartha Ganguli  ….………………………Member.

                       :-Smt. SilpiMajumder………………………………Member.

ORDER:38

This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP as the OP did not refund the amount as paid by him till filing of this complaint inspite of several requests.

The brief fact of the case of the Complainant is that his daughter being a meritorious student obtained 1^st class in BCA under the University of Burdwan in the year 2011. In response to an advertisement in a newspaper the Complainant approached at the office of the OP for admission of his dauther in MCA course. On query Mrs. SarbaniMitra shown him recognition or affiliation certificate of Periyar University, Salem. Being satisfied he purchased the Prospectus of that college and paid Registration charge for Rs.10,000/- as per demand. In the advertisement, Website as well as in the Prospectus it was mentioned that the BCA (3years) & MCA (3 years) both are recognized under Periyar University being the recognized University (A Grade NAAC) & Recognized by UGC (HRD Government of India). In the ‘Fee Structure’ as supplied by the OP it was mentioned that ‘Free Laptop’ will be given and ‘Foreign Tour’ will be conducted. According to the Complainant the said information was published only with a view to allure the students. Upon perusal of the prospectus the Complainant decided to admit his daughter at the OP. Within few months from the date of commencement of the course and classes, the students were advised to submit their original educational certificates & Migration certificate along with photograph for the purpose of Registration with the University. But the daughter of the Complainant along with other students did not receive any registration certificate from the Periyar University under which the OP-3 was said to be affiliated. The students were given identity card in the last week of December, 2011 bearing the rubber stamp of J.J. Institute, wherein it was mentioned that the student is provisionally admitted under Periyar University, Salem. The above fact raised suspicion amongst the student in regard affiliation of the Institute under any University. The Complainant demanded the authority to return the Original Certificates along with Migration Certificate in original. The first examination fee amounting to Rs.4,200/- was paid by demand draft on 03.04.2012 purchased from Bank of India in favour of the Registrar, Periyar University, Salem and the same was submitted to the office of the OP as per direction. In the name of first year examination a fake examination was held in July 2012 at the Institute without issuing and admit card/hall ticket and the Institute supplied photo copies of old question papers (illegible & hazy) to the examinees bearing no name of the University by the Institute. The Institute printed pictorial pamphlets by putting photographs of students continuing studies in 1^st year stating that he/she got employment under reputed organizations falsely to allure the public at large. The OP-3 by way of newspaper advertisement, website and through prospectus circulated that it is recognized by the UGC and ‘A’ grade college approved by NAAC.Being attracted the students got admission therein and spoiled their career, such action of the OP can be termed as unfair trade practice. The OP had neither supplied free laptop to the student nor provided 8% concession to the girl students’ as per the fee structure of the Institute. Being aggrieved the Complainant complained the matter before the Assistant Director, CA & FBP, the OP was called for to resolve the dispute though mediation on 26.11.2012. Accordingly the OP was present and a joint meeting held on the said date. The OP could not produce any document showing affiliation/recognition of the Periyar University or any other University by UGC/A grade by NAAC etc. The OP was directed to produce the same on the next date. But the OP had failed to produce ay documents to that effect on 10.12.2012 & 10.01.2013 and the OP did not agree to resolve the dispute amicably. According to the Complainant being dissatisfied with such action and attitude of the OP has beensuffering from financial stringency and having no other alternative the Complainant has approached before this ld. Forum by filing this complaint praying for direction upon the OP to refund the amount of Rs.1,27,910/- along with interest on the said amount @16% p.a. for one year and five months i.e. Rs.20,465/-, expenses toward boarding and lodging in private arrangement @Rs.4000/-per month X12 months for Rs.48,000/-, cost of the stationary, typing, postage, photocopies etc. for Rs.2,000/-, Rs.3000/- for conveyance charge, to pay compensation to the tune of Rs.1,00,000/-, compensation for spoiling educational career& service career for Rs.5,00,000/- to him.

The petition of complaint has been contested by the OP by filing written version contending that the OP is running an educational institution in the name and style of Gandhi Institute of Management & Technology to conduct various courses in Distant education with affiliation from Universities such as Periyar University, statutorily constituted in Tamil Nadu. The Complainant being fully aware of the position remitted necessary fees and charges in favour of the Periyar University in accordance with the established procedure directly and/or through the OP for which his daughter became entitled to pursue studies and to appear in the examination and to get result and certificate from the said University through the OP. It is mentioned in the prospectus of the University that the examinees are allowed to appear in the examination held in semester, however the student could also appear for examination covering more than one semester, if falling in arrears. The daughter of the Complainant is thus entitled to appear in the forthcoming examinations going to be held in the year 2014. There was no bar for the student to complete the course without losing any academic year and also without suffering from any financial loss. The OP has denied the entire allegations as made out by the Complainant in the petition of complaint stating that the complaint having no merit at all is liable to be dismissed with exemplary cost.

Both parties have adduced their respective evidences of affidavit along with some documents in support of their respective contentions. Both parties have placed their reliance on some Rulings in favour of their respective arguments.

The record shows that on 03.04.2013 the OP filed a petition before this Ld. Forum praying for impleading the Periyar University as a necessary party in this complaint, but the Ld. Forum by passing an order on 05.06.2013 was pleased to dismiss the said petition of the OP with cost. Being dissatisfied with the order Revision Petition was preferred before the Hon’ble SCDRC by the OP, but the Hon’ble SCDRC was pleased to dismiss the said Revision Petition. Thereafter the OP filed another petition challenging the maintainability of the complaint stating that the ‘Complainant himself is not at all consumer under the OP as because he is not the student under the OP and he is also did not get himself admitted before the OP and also no service was hired by the Complainant. So the Complainant has no locus standi to file the instant case. As such the case is not maintainable.’ The Ld. Forum was pleased to dismiss the maintainability petition on 12.06.2014 holding the Complainant as defacto hirer of the service/hirer of service for his daughter who availed of the same.

Being aggrieved with the said order the OP preferred Revision Petition before the Hon’ble SCDRC which was registered therein as RP/107/2014, the Hon’ble SCDRC was pleased to allow the said Revision Petition setting aside the impugned order and the Hon’ble SCDRC was also pleased to dismiss the complaint being not maintainable on 13.04.2015. Being dissatisfied with the said order the Complainant preferred Revision Petition before the Hon’ble NCDRC, which was registered therein as RP-1850/2015. On30.08.2016 the Hon’ble NCDRC has been pleased to allow the said Revision Petition after setting aside the impugned order passed by the Hon’ble SCDRC. During advancing argument the Ld Counsel for the OP has argued that neither the Hon’ble SCDRC nor the Hon’ble NCDRC were pleased to pass an order based on the petition filed by the OP before the Ld. Forum challenging the maintainability of the complaint, so this point is still opened for adjudication and he is inclined to argue to the pointof maintainability.

In the point of maintainability the Ld. Counsel for the OP has stated on several points the complaint is not maintainable i.e.

1. The Complainant is not a consumer, his daughter is a consumer who is not in the picture of this complaint. Service was availed of by the daughter of the Complainant, not by the Complainant as his daughter was the student of the OP-Institution.
2. The complaint is not maintainable as it suffers from non-joinder of necessary party i.e. the Periyar University has not been made a party in this proceeding to whom the Complainant paid necessary fees/payments through the OP and the OP is an affiliated institution of the Periyar University. According to the terms and the conditions the entire liability casts upon the shoulder of the Periyar University as the said University is conducting the examinations, results and certificates are providing by the said University through the OP.
3. The education not being a commodity, the OP-Institution cannot be the service provider and the student is not a consumer.

Now we are to discuss on the aforementioned points for which the OP has taken plea that the instant complaint is not maintainable.

1. Admittedly the Complainant is not the student of the OP, the fact reveals that his daughter got admission in the course of MCA at the OP. According to the Complainant on behalf of his daughter he filed the complaint, which is very much maintainable. In this respect we are to say that there is no iota of evidence that payment was made for the course as per the prospectus to the OP by the Complainant, no bank statement is filed by the Complainant showing such payment. As the daughter of the Complainant being major one, she should be one of the Complainants in the cause title of the complaint. But without mentioning the name of his daughter, who got admission and availed of the service of the OP, her father has filed this complaint in his name as the ‘Complainant’. In this respect the Ld. Counsel for the OP has relied on the judgment passed by the Hon’ble NCDRC, reported in 2014 (1) CPR 138 (NC), wherein it is held that ‘a representative or legal heir can file a complaint only in case of death of consumer’. It is true that the daughter of the Complainant is still alive, hence there is no scope to the Complainant to prefer this complaint in representative capacity on behalf of his daughter.But upon perusal of the said judgment it is seen by us that the fact of the said case is not identical with the case in hand. We can take the ratio from another Ruling relied on by the OP i.e. volume-I (2010) CPJ 104 (NC), wherein it is observed that ‘beneficiary must avail services with approval of consumer’. Admittedly in the case in hand there is no document from where it is not evident that the daughter of the Complainant being the beneficiary got approval from her father-Complainant to avail of the services from the OP. The Op has relied on another judgment passed by the Hon’ble NCDRC, reported in 2016 (3) CPR 349 (NC), wherein it has been held that ‘the Complainant who is not covered under definition of ‘consumer’, he has no locus-standi to maintain consumer complaints’. Upon perusal of the said judgment it is revealed to us that the fact of the said case was that the Complainants purchased flats for commercial purpose, for this reason the said service does not come under purview of the Consumer Protection Act, 1986 and the Complainants cannot be termed as consumers as the the service hired for commercial purpose. The said ruling is not applicable in the case in hand as the fact is totally different. In this respect the Complainant has relied on the judgment of the Hon’ble Supreme Court in the case of Spring Meadows Hospital & Another vs. Harjol Ahluwalia through K.S. Ahluwalia & Another. Based on this judgment the Complainant has argued that if in that case parents can get compensation due to medical negligence towards their son, in this complaint also he is entitled to get reliefs as sought for on behalf of his daughter. In this respect we are to say that in respect of the cause title of the relied case and the instant one, there is gulf of difference i.e. in the relied case Harjol Ahluwalia was the minor son of their parents, inspite of this K.S. Ahluwalia, being the father of the said minor son has been made his minor son as a party and mentioned his name in the cause title of the complaint. Be it mentioned in that complaint the mother of the minor son was also made party. According to us the said ruling does not match with the argument of the Complainant as his major daughter has not been made party in this complaint as ‘Complainant’. In our view the daughter of the Complainant should be one of the Complainants in this complaint. Without doing so the Complainant has filed this complaint being the father of the student, who obtained service from the OP directly, rather no direct service was obtained by the Complainant.
2. In respect of non-joinder of necessary parties the ld. Counsel for the OP has relied on some judgments i.e. 2017 (2) CPR 28 (NC) & 2017 (2) CPR 98 (NC), wherein it has been held that ‘complaint can be dismissed for mis-joinder/non-joinder of parties’. But in view of the judgment passed by the Hon’ble Supreme Court in the case of Smt. SavitaGargvs The Director, National Heart Institute, reported in Vol-IV (2004) CPJ 40 (SC), wherein Their Lordships have held that due to non-joinder/misjoinder of necessary parties, the whole complaint should not go. Therefore having regard to the dictum of the Hon’ble Supreme Court we are of the opinion that this complaint should not be dismissed on the ground of non-joinder/mis-joinder of necessary parties in the complaint and the relied judgments cannot be applicable in the case in hand.
3. In this respect the Ld. Counsel for the OP has relied on some judgments i.e. 2017 (2) CPR 516 (NC), wherein it is held that ‘subject of education does not come under category of service, 2014 (3) CPR 152 (NC), it is hold therein that ‘student is not a consumer’. Upon careful perusal of the said judgments in our view as in the instant complaint allegation has not been made regarding any matter relating to any statutory functions such as periodical examinations, evaluation of answer sheets, declaring results, issues of certificates etc., rather allegation has been made regarding unfair trade practice as well a deficiency in service as the OP had advertised that the course is recognized by the Periyar University, a recognized University and also recognized by the UGC (HRD, Government of India), but the identity card issued to the students along with the daughter of the Complainant wherein it is clearly stated that the student has been only provisionally admitted under the Periyar University, Periyar Institute of Distance Education, Salem, hence the complaint is maintainable in view of the landmark judgment passed by the Hon’ble Supreme Court in the case of Lucknow Development Authority vs. M.K. Gupta, reported in 1994 1 SCC 243, wherein it is observed that ‘a statutory authority offers any kind of service for which a fee is charged, will be amenable to the jurisdiction of the consumer fora.’ In the paragraph no-4 & 6 of the said judgment it is mentioned which runs as follows-

4. “In absence of any indication, expressed or implied there is no reason to hold that authorities created by the Statute are beyond purview of the Act…….. The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility.

6…………… the entire purpose of widening the definition is to include in it not only day to day buying and selling activity undertaken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer.”

Having regard to the abovementioned observation we are of the opinion this complaint is maintainable in respect to its fact.

From the aforementioned explanation it is clear to us that the actual consumer, who hired the service of the OP did not file this complaint. Inspite of this we are inclined to enter into the merit of this complaint.

We have noticed the neither the petition of complaint or the written version filed by the parties supported by affidavit, which is mandatory in view of the landmark judgment of the Hon’ble Supreme Court passed in the case of Dr. J. J. Merchant vs. SrinathChaturvedi.

It is seen by us that that the Complainant has make the following allegations:-

1. Though it was advertised by the OP that the OP is recognized by the Periyar University, but actually there was no recognition/affiliation of the said University and according to the Complainant it is a glaring example of unfair trade practice of the OP.
2. Inspite of commitment free laptop was not given to the student.
3. Inspite of commitment foreign tour was not conducted.
4. The Demand Draft paid by him was misappropriated by the OP.
5. Inspite of commitment 8% concession was not given to his daughter.
6. Due to deficiency in service as well as unfair trade practice the career of his daughter became spoiled.

Now we are to see as to whether the abovementioned allegations as levelled against the OP by the Complainant has any basis or not.

1. In the paragraph no-2 of the petition of complaint it is mentioned by the Complainant that he found the recognition or affiliation certificate of PeriyarUniverisity, Salem while he approached before the OP with a view to admit her daughter in the MCA course therein. Therefore being satisfied with the said document shown by Mrs. SarbaniMitra, being an employee of the OP, the Complainant took decision to admit her daughter at the OP. There is no iota of evidence that any employee of the OP had created pressure on him for admitting his daughter or allured him in any manner. Moreover the document filed by the OP is clearly revealed that at the relevant point i.e. during the academic year 2011-2012 the OP was affiliated/recognized by the Periyar University. Therefore the main allegation of the Complainant have no legs to stand upon.
2. In the Annexure-C as filed by the Complainant it is evident that laptops will be given at the beginning of the 3^rd semester. Admittedly the daughter of the Complainant did not get the free laptop as she was withdrawn much prior to the beginning of the 3^rd semester. So getting of free laptop by the student does not arise at all. The Complainant has failed to prove this allegation.
3. The Annexure-C also speaks that foreign trip will be given before the commencement of the final year. Withdrawing herself from the course much earlier to the commencement of the final year, the daughter of the Complainant did not give any scope to the OP for foreign trip. So this allegation also does not stand.
4. In respect of appropriation of the demand draft, no cogent evidence is adduced by the Complainant, hence such allegation has no merit and basis at all.
5. The daughter of the Complainant was not given 8% concession inspite of being a girl student. In this respect the Annexure-C reveals that as the Complainant took the option-1, hence his daughter did not get such concession. The student who took the option-2 was entitled for such concession only. The Complainant after perusing the fee structure opted the option-1 as per his will and choice. Such choice reveals that the Complainant being aware was not interested to get concession. Hence the Complainant cannot prove this allegation.
6. Whether due to deficiency in service and unfair trade practice the future life of his daughter spoiled or not, in this respect no convincing evidence is adduced by the Complainant to prove such serious allegation.

From the aforementioned explanation we can come to the conclusion that the Complainant has miserably failed to prove the allegations as made out by him in the petition of complaint. Upon perusal of the facts and documents we are to say inspite of having affiliation of the Periyar University with the OP, the Complainant withdrew his daughter from the OP as per his sweet will and whims, for such withdrawn the OP has no liability. Therefor we do not find any deficiency in service as well as unfair trade practice on behalf of the OP as alleged by the Complainant. So the Complainant is not entitled to get any relief as sought for.

Going by the foregoing discussion hence it is ordered that the complaint is dismissed on contest. However considering the facts and circumstances of the complaint there is no order as to cost.

Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.

           Member                                                                                                    Member

Dictated & Corrected by me