Heard learned counsel for the appellant and respondent in person on V.C.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The factual matrix leading to the case of the complainant is that the complainant got his admission in OP-Institute on 15.06.2015 to prosecute to PGDM programme course. The complainant alleged inter-alia that he has deposited fees of Rs.3,10,000/- with OP under latter’s institution in shape of Demand Draft to take admission and obtained receipt thereof. After taking admission the complainant alleged about the unhygienic water and spices food served in hostel of institution for which the complainant became seriously ill. He came back to his home at Puri and got himself treated there and at Bhubaneswar. The doctor diagonised him suffering from chronic colitis due to such food and water supply while he was living in hostel of OP-institution.
4. It is alleged that the health condition of the complainant did not improve, he has to discontinue his study with intimation to the OP. The OP only refunded Rs.31,000/- in shape of cheque and the complainant stated to have not received that amount. The complainant informed the OP that he is entitled to get back Rs.3,10,200/- from the OP, but the OP did not refund the same. So, the complainant alleging deficiency of service on the part of the OP, filed the complaint U/S-12 of the Act before the learned District Forum,Puri. Hence, the complaint.
5. The OP has been set-exparte in this case as they did not appear inspite of receipt of notice.
6. The learned District Forum,after perusing the case of the complainant passed the following order:-
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“The case is allowed ex-parte against the Opposite Parties. The Opposite parties are jointly and severally liable to refund Rs.1,54,000/- to the complainant together with interest thereof at the rate of 9% per annum from 1.5.2017 till the date of actual payment. The Ops are also to pay Rs.5,000/- towards compensation for mental agony and harassment and Rs.2000/- towards cost of litigation to the complainant. The above payment shall be made within 30 days from the date of receipt of this orders. “
7. Learned counsel for the appellant submitted that learned District Forum has committed error in law by passing the impugned order without giving opportunity to the OP to hear them on the maintainability of the case. He submitted that the complaint is not maintainable on the ground that the learned District Forum has no territorial jurisdiction to decide the dispute U/S-11 of the Act. He further submitted that learned District Forum has not applied judicial mind to the fact that the entire transaction took place at Kochi and no any part of cause of action arose at Puri for which the learned District Forum,Puri lacks territorial jurisdiction.
8. Learned counsel for the appellant further submitted that learned District Forum has erred in law by not considering the facts that the OP has no any negligence on their part and since it is a educational institution, the consumer complaint is not maintainable. According to him ‘Education’ is not subject of service under definition of the Act. Moreover he submitted that as complainant left institute, OP has to bear the loss of one seat lying vacant which is loss to OP-Institution. So, he submitted to set-aside the impugned order by allowing the appeal.
9. The respondent appearing on V.C. submitted that the OP willfully did not participate inspite of receipt of notice. He also submitted that he has been treated at AIIMS,Bhubaneswar and at Puri by senior govt. doctor after being affected by the unhygienic water and food served in the hostel of OP. He also submitted that the money for fees demanded by OP has been transacted from Puri to the OP. He also submitted that there is deficiency of service on the part of the OP by not disbursing to complainant to serve hygienic food and water, for that OP is liable to refund the entire amount. He also submitted that due to unhygienic food and water he has suffered being not able to prosecute the study at OP-institution and for that he is also entitled for compensation from OP. So, he supports the entire impugned order and submitted to dismiss the appeal.
10. Considered the submission of learned counsel for the appellant and complainant in person, perused the DFR including impugned order.
11. It is well settled in law that the onus lies on complainant to prove the deficiency of service on the part of the OP and the maintainability of the complaint before the Consumer Forum.
12. It is admitted fact that the complainant got his admission in the institute of the OP at Kochi. It is not in dispute that the complainant has paid Rs.3,10,200/- before the OP. It is not in dispute that he was also admitted in the hostel of the OP to prosecute the study at the institution of OP.
13. In complaint supported by the affidavit, the complainant has stated that after admission in the course, he was staying at hostel of OP but his health did not remain well due to unhygienic food and water served in hostel for which he has to visit AIIMS,Bhubaneswar for investigation and treated at Puri at his own town. In support of his treatment, the complainant has filed the medical reports of AIMS,Bhubaneswar towards his investigation at Bhubaneswar on 12.01.2016,the copy of medical report dtd.21.07.2016 at the OPD or District Headquarters Hospital at Puri shows his treatment for Colitis.
14. Besides above facts,ultrasound report dtd.22.07.2016 shows that he was suffering from Colitis. Not only this but also the medical report dtd.15.09.2016 of the complainant issued by Dr. Bamdev Mohanty,Ex.CDMO,Tala Malisahi,Puri shows that he has suffering from pain in abdomen. The complainant further stated in the affidavit that due to his illness he could not continue his course for more than three months and requested the OP accordingly. Besides he requested OP to refund the 2nd and 3rd instalment tution fee, caution deposit and institution uniform fees for Rs.1,85,000/-. He sent letters on 22.01.16,16.03.2016,19.05.2016 and 16.04.2017 to the OP. He states that after much request OP refunded Rs.31,000/- but the cheque could not be encashed within three months for which that amount has also not been paid.
15. The aforesaid documents as submitted by the complainant have clearly proved that due to spicy food and unhygienic water at the hostel of OP complainant suffered from colitis and treated at Bhubaneswar and Puri. It is clear from the Section-11 of the Act that the cause of action should only arise wholly or partly so as to confer territorial jurisdiction to the concerned learned District Forum. The contention of the learned counsel for the appellant is that none of the cause of action took place at Puri for which the District Forum,Puri lacks territorial jurisdiction to adjudicate. Since the money transaction can be taken online, the question of transaction of money cannot be a ground to decide the cause of action. This principle has been decided by this Commission in other cases.
16. However, in the peculiar facts and circumstances of the case as proved above since the complainant paid the amount to the OPs and remained in hostel of OP at Kochi but suffered and treated at Puri, a part of cause of action arose at Puri. Therefore, the territorial jurisdiction of District Forum, Puri to adjudicate the complaint cannot be denied. In this regard the law as expounded by Hon’ble Supreme Court is very clear to show that where the cause of action arises either partly or wholly, the concerned District Forum has territorial jurisdiction to entertain the claim. Hence, the contention of learned counsel for the appellants is indefensible in this regard.
17. So far merit of the case is concerned, the OPs have not appeared on the ground as stated by the learned counsel for the appellants that notice has been misplaced. Moreover learned counsel for appellant submitted that they have not challenged on merit but assailed same on maintainability of the complaint under the Act. Moreover he submitted that the maintainability of case can be challenged in appellate Forum in stead of district forum for which he does not press for denovo hearing after remanding the case.
18. Apart from this, learned counsel for the appellant submitted that the ‘education’ is not a subject so as to cover same under definition ‘service’ under Section-2(o) of the Act to entertain the complaint and in this regard this Commission has already taken view in favour of the appellant. The respondent submitted that this is a case where the deficiency of service on the part of the OPs is proved by the complainant for which question of ‘education’ under definition of ‘service’ does not arise.
19. It is well settled in law that so far service of ‘educational institution’ for holding examination or related issue therewith, the subject ‘education’ would not come within the ambit of Consumer Protection Act, 1986. But, when an institution accepts the money to deliver service as agreed between the parties and failed to perform such act, that amounts to deficiency in service on the part of institution. In this case, the complainant has proved that there is deficiency of service on the part of OP by serving spurious and spice foods and unhygienic water which made him ailing and he had to discontinue a good course at OP-Institution. The OPs have not taken any plea in the appeal memo whether the allegations of the complainant are correct or not. Therefore, there is reason to believe that the OPs did not appear in the case before learned District Forum to contest as it has no dispute with facts proved by complainant.
20. In view of discussion made in above paras, this Commission do not find any reason to remand the case for denovo hearing. On the other hand, the complainant has proved with the aforesaid evidence that there is negligence and deficiency of service on the part of the OPs by not considering several requests of the complainant either to remove the defect or to refund the aforesaid amount when he discontinued the course.
21. Lastly the learned counsel for appellant contended that learned District Forum did not consider the fact that by discontinuance of the course by complainant, a seat remained vacant and in such circumstances the OP-institution suffered from financial loss. Complainant submitted that when OP-institution has deficiency of service by not serving hygienic food and water, non-refund of tuition fee for 2nd and 3rd instalment, caution money and uniform charge are unfair trade practice of OP. The last leg of argument advanced by both parties require active consideration. In the above case when OP could not provide hygienic food and water which compels a complainant-student to discontinue course, the loss to carrier of complainant can not be compared with financial loss of OP –institution inasmuch as educational institutions should not be place of commercial hub. It is sacred place where future of student is decided. When a student has failed to continue due to deficiency of service of OP and at the same time is denied to get refund of tuition fees, it is surely unfair trade practice on the part of OP. It should be remembered that ‘Educational Institution should be commercial centre to usher in unfair trade practice. So plea of appellant is untenable. Rather complainant has proved unfair trade practice on the part of OP.
22. In view of aforesaid analysis, this Commission do not find any error with the impugned order and as such the impugned order is affirmed and the appeal stands dismissed. No cost.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties.
