The instant case has been initiated by the complainant U/S – 12 of Consumer Protection Act,1986 against the Opposite Party claiming an amount of Rs. 6,00,000/- with an interest @ 10.2% per annum on and from March 2017 to till date of realization + Compensation Rs.13,00,000/- + Litigation Cost of Rs. 20,000/- (Total Rs. 19,20,000).
The fact of the case, in brief, is that the Complainant is one of the director of Swastik Computer Education Private Limited and bona-fide consumer of Opposite Party. Surjit Barman was another director of Swastik Computer Education Private Limited. The above directors of Swastik Computer Education Private Limited engaged themselves with this Institution as their only livelihood by means of self employment. On 24.09.2016,16.12.2016 and 17.12.2016 order was placed by Surjit Barman before the Opposite Party for supply of computer related articles through e-mail with attachment file for BSDM project. The Opposite Party received the said order through e-mail and agreed with the proposal and committed to supply the materials as per the requisition made on 24.09.2016,16.12.2016 and 17.12.2016 over telephone. The Complainant paid Rs.4,00,000/- only to the Opposite Party on 17.12.2016 for aforesaid purpose. After said payment the Opposite Party only supplied some wire for CCTV and requested the Complainant to pay further amount of Rs.2,00,000/- as final payment for supply of materials as per order. On good faith on 23.02.2017 the Complainant again paid Rs.2,00,000/- only to the Opposite Party. After receiving of Rs.6,00,000/- from the Complainant , the Opposite Party negligently dealt with the Complainant and in spite of several request failed to supply further materials to the Complainant for said BSDM project. The Opposite Party assured the Complainant that the delivery of materials will be made within a week after payment of Rs.6,00,000/- but the Opposite Party failed to supply the articles till to date in spite of having full payment. The Complainant suffered a loss of Rs.2,00,000/- per month for non supply of ordered materials. The Complainant made several requests to the Opposite Party to return back the paid amount but the Opposite Party did not pay any heed. Having no alternative the Complainant filed the instant case for relief as prayed in the plaint.
Notice was duly served upon the opposite Party and after receiving the notice, the Opposite Party appeared before this Commission and filed his written version.
By filing written version, the Opposite Party has stated that the complaint case is not maintainable in its present form. The Opposite Party has stated that the Complainant gave initial payment of Rs.4,00,000/- on 04.01.2017. On 14.01.2017, the driver of the Complainant namely Ajay Mahato took the initial items necessary for the BSDM project. After receiving the items, the driver gave proper receipt on 14.01.2017. Rest and final items were again delivered to Ajay Mahato along with tax invoice dated 21.01.2017 and request to pay the due amount from total bill of Rs.10,33,762.27/- after deducting the initial amount. The Complainant again on23.02.2017 paid an amount of Rs.2,00,000/- to the Opposite Party but till now Rs.4,33,762.27/- is pending. But the Complainant till date has not paid the said amount even after several request and registered post. The Complainant is not entitled to get any relief. In the above facts and circumstances, the complaint case is liable to be dismissed with exemplary cost.
To prove his case, the complainant has filed photo copies of-
- Mails of Complainant forwarded to Opposite Party regarding supply of materials
- Synopsis of materials ordered
- E-payment details/ statement made by Complainant .
- Corresponding letters through e-mail
- Details of Swastik Computer Education Private Limited
- Voter ID of Complainant.
On the other hand, the Opposite Party has filed photo copies of -
- Delivery Chillan dated 14.01.2017
- Delivery Chillan dated 21.01.2017
- Tax Invoice no. ASC/002926/1517
- Reminder for dues
- Notice issued by AD Consumer Affairs & FBP
- Complaint by Complainant as director before AD Consumer Affairs & FBP
- 18 sheets of photos showing implementation of BDSM by the Opposite Party & his men.
In view of the above mentioned facts, the following points are cropped up for consideration-
POINTS FOR CONSIDERATION
1. Whether the case is not maintainable in its present form?
2. Whether the Complainant is a consumer to the Opposite Party?
3. Whether there is any deficiency in service on the part of the Opposite party?
4. Whether the Complainant is entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
We have heard argument by Ld. Advocate for the complainant and Ld. Advocate for the opposite party at length. We have also gone through the evidence on affidavit, cross-examinations and written argument filed by the parties. Perused the other materials on record.
At the time of argument Ld. Advocate for the Complainant narrated the fact of the case as mentioned in the plaint. He further submitted that the Complainant is running the said Swastik Computer Education Private Limited as their only livelihood by means of self employment. The Complainant is a consumer to the Opposite Party and there is deficiency in service on the part of the Opposite Party because he did not supply the ordered materials in spite of receiving payment of Rs. 6,00,000/-. The Complainant has successfully proved her case. So, the Complainant is entitled to get relief as prayed for.
In support of his contention, Ld. Advocate for the Complainant cited some case laws reported in 2022CJ 944 ( N.C. ) and 2021 CJ 700 ( N.C. ).
On the other hand, Ld. Advocate for the Opposite Party also narrated his defense case as mentioned in the written version. Ld. advocate for the Opposite Party further submitted that the instant case is not maintainable in its present form because the Complainant runs a commercial business for profit and not for her livelihood. The Opposite Party has supplied all the materials as per order of the Complainant but the Complainant has not paid the total amount. A sum of Rs. 4,33,762.27 /- is still due on the part of the Complainant. There is no deficiency in service on the part of the Opposite Party so, the complaint case is liable to be dismissed with exemplary cost.
In support of his contention, Ld. advocate for the Opposite Party also cited some case laws reported in Registrar, Manonmaniam Vs Sreosi Chatterjee 2022 NCDRC, The Director of Xavier Institute Vs Sujay Ghosh 2022 NCDRC, Principal LDRP Institute Vs Apoorva Sharma 2022 NCDRC, Amruta Bharti Vs Secretary, Council of Indian 2022 NCDRC, LBS Group of Education Vs Arjun Singh 2020 NCRDC, Niit Institute for Finance Vs Abhisek Tiwari 2020 NCDRC, Shivam Malhotra Vs Managing Director, Oxi. School 2022 NCDRC, Dr. Archana Rai Vs Rajsthan Technical University 2022 NCDRC, Reshma Om Hegde Vs Registrar(Valuation) & ANR. 2022 NCDRC, Dharamsinh Desai University Vs Bhagarv Batukbhai 2021 NCDRC, Sastra University Vs The District Consumer Disputes 2021 Madras High Court, Viswa Bharti Vs Rakhi Debnath 1995 Calcutta High Court, Amrit Kumar Das Vs Ge Capital Transportation 2015 SCDRC, The Managing Director, Srei Vs Santhi Kumar 2013 SCDRC and Sakthi Engineering Works Vs Sri Krishna Coir Rope Industry 2000 NCDRC.
Now, let us discuss all the points one by one.
Point No. 1
On perusal of the case record, it appears that on 22.01.2021 the Opposite Party filed a petition before this Commission for non-maintainability of this case. Copy was served. On that day, after simple hearing of Ld. Advocate for the both sides it was ordered vide order no.16 dated 22.01/2021 that let the petition will be heard at the time of final hearing. At the time of argument, Ld. Advocate for the both sides argued at length on this point. Several citation were also produced by both the sides. We have gone through all the citation produced by both sides in the light of facts and circumstances of this case.
It is the contention of the Complainant that the Directors of Swastik Computer Education Private Limited are engaged themselves with this institution as their only livelihood by means of self employment. The relation in between the Complainant and the Opposite Party is consumer and service provider so, the instant case is well maintainable in its present form and in law. On the other hand , it is contended by the Opposite Party that even if there is any defect/ deficiency/ unfair trade practice in the service offered by private bodies in offering the skill development courses and are not regulated and do not confer any degree or diploma recognized by any approved authority do fall within the ambit of definition of “Educational Institutions” and hence the Consumer Fora have no jurisdiction to entertain the same. The Institutions rendering Education including Vocational courses, will, therefore, not be covered under the provisions of the Consumer Protection Act. Consequently, the complaint filed by the Complainant herein should be dismissed as not maintainable.
It is fact that the Complainant is one of the Director of Swastik Computer Education Private Limited and her Institution is for computer education. It is clear that it is a private computer education Institute. In other words, this Institution teaches computer to the students or other persons on taking fee from the students. It is not disclosed by the Complainant whether this Institution is registered or not. In his question no.4 in questionnaires, the Opposite Party has asked Whether the Swastik Computer Education Pvt. Ltd. is engaged in computer education business ? If so, please supply the affiliation and permission and other details. In reply the Complainant has stated that No, the institute provides educational computer course to students under Govt. project. This answer of the Complainant shows that her institution is neither registered nor affiliated with any authority. In his question no.8 in questionnaires, the Opposite Party has asked What stands for abbreviation BSDM as mentioned in your complaint petition ? Supply the details of the BSDM Project and Tender details & completion certificate project. . In reply the Complainant has stated that Bihar Skill Development Mission and the project is confidential and you are entitled to get that one. This answer of the Complainant shows that she do not come before this Commission with clean hands and she runs a project of Bihar Skill Development Mission taking money from the Project Provider. In other words, it can be said that the Complainant is running a business of computer education commercially. However, the citations produced by the Opposite Party attract the facts and circumstances of this case whereas the citations produced by the Complainant does not attract the facts and circumstances of this case.
As per observation held by National Consumer Disputes Redressal Commission, New Delhi, in L.B.S. Group of Education Vs Arjun Singh & others that the Institutions rendering Education will not be covered under the provisions of the Consumer Protection Act,1986 as it is not rendering any service. In view of the above mentioned discussions we, are of opinion that the instant case is not maintainable.
Accordingly, this point is decided against the Complainant.
Point Nos. 2
It is admitted by the Complainant that her Institution is Swastik Computer Education Private Limited and her institution to the students and other people. In this regard ,our National Consumer Disputes Redressal Commission and Apex Court in several cases and many times has observed that The Institutions rendering Education will not be covered under the provisions of The Consumer Protection Act, 1986. In other words it can be said that the Institute does not fall within the purview of the Consumer Protection Act, 1986 as it is not rendering service. So, we do not hesitate to say that the Complainant is not a consumer under the Consumer Protection Act, 1986.
Accordingly, this point is decided against the Complainant.
Point No. 3 & 4
Both these points are taken up together for the sake of convenience and brevity.
It reveals from the record that the Complainant on 24.09.2016, 16.12.2016 and 17.12.2016 placed order before the Opposite Party for supply of computer related articles through E-mail with attachment for the purpose for BSDM project ( Bihar Skill Development Mission ). The list of ordered articles are mentioned in Annexure – A series filed by the Complainant. It further reveals that the Complainant paid Rs.4,00,000/- on 04.01.2017 to the Opposite Party as per instruction of the Opposite Party. Again on 23.02.29017, the Complainant paid Rs.2,00,000/- to the Opposite Party for the said materials. The placing of order and payment of Rs.6,00,000/- has been admitted by the Opposite Party.
It is the allegation of the Complainant that in spite of receiving the payment, the Opposite Party did not supply the total ordered materials but he supplied only some wires of CC TV. Whereas, it is denied by the Opposite Party stating that he has supplied all the materials which were ordered and a sum of Rs.4,33,762.27/- is still due on the part of the Complainant.
Now, the burning question is that whether the Opposite Party supplied all the ordered articles to the Complainant. On perusal of the Delivery Challan and Tax Invoice, it appears that the Opposite Party has supplied all the ordered materials and the same has been received by one Ajay Mahato having signed on the Challan and the Tax Invoice. It further appears from tax invoice that the total cost of the materials are 10,33,762.27/-.
At the time of argument, Ld. Advocate for the Opposite Party submitted that Ajay Mahato is the driver/staff of the Complainant whereas the Ld. Advocate for Complainant argued that the Complainant do not know him. The Complainant admitted that she received only wires of CC TV but failed to disclose the name of the receiver of that CC TV wires. Here, from the Challan, it appears that CABLE CC TV CPPLUS 540 MTR has been mentioned duly signed by Ajay Mahato. Further, both the parties have failed to produce the said Ajay Mahato to prove their respective case. Apart from it, the Opposite Party has filed some photographs showing that some persons are working / installing articles in the Education Institute of the Complainant.
In such circumstance, it appears that the Opposite Party has supplied all the ordered materials to the Complainant and there is no deficiency in service on the part of the Opposite Party and thus, the Complainant is not entitled to get any relief.
Accordingly, the point no.3 is decided in favor of the Opposite Party and point no.4 is decided against the Complainant.
Hence, it is
O R D E R E D
That the Consumer Case No. 138 of 2019 is hereby dismissed on contest but without cost.
Let a plain copy of this order be supplied to the parties free of cost.
