Kerala

Idukki

CC/269/2017

Alan Eby - Complainant(s)

Versus

The Administrator Munnar Catering College - Opp.Party(s)

Adv.Sasidharan

28 Jun 2019

ORDER

 

DATE OF FILING :20/12/17

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 28^th day of June 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT.ASAMOL P. MEMBER

CC NO. 269/2017

Between

Complainant : Alen Ebby, S/o Ebby Cheriyan,

Aymanathil House,

Pulluvazhy P.O., Perumbavoor.

(By Adv: T.S.Sadanandan)

And

Opposite Party : 1 . The Administrator,

Munnar Catering College, Suryanelli,

Munnar – 685 618.

2 . The Principal,

Munnar Catering College, Suryanelli,

Munnar, Pin – 685 618.

(Both by Adv:Prince J. Panalal)

3 . The Registrar,

Indira Gandhi National Open University,

Maidan Garhil, New Delhi – 110 068.

4 . The Regional Director,

Indira Gandhi National Open University,

Regional Centre, Kaloor, Kochi- 682 017.

(Both by Adv.Mohanakannan and Adv.T.S.Najimuddin)

 

O R D E R

SRI. S. GOPAKUMAR (PRESIDENT)

 

The case of the complainant is that,

 

Complainant was a student of two years Associate Degree in Hotel Management and Tourism for the year 2010-12 in opposite parties college. The complainant have completed the course and for this course he paid Rs.2,46,400/- as course fee. Even though the complainant completed the course and attended the examination no result was published and no certificate was issued by the opposite parties. The opposite parties averred

(Cont....2)

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the complainant that this course is approved by the AICTE, Government of India, Directorate of Technical Education, Government of Kerala, IGNOU Government of India. The opposite parties are responsible to publish the result and issue certificate in time. They are totally failed in their service. As the certificate is not issued the complainant could not join in any related job and thereby he has not earned any salary and suffered heavy loss and hardships.

 

The complainant further averred that complainant caused to issue a notice to the opposite parties demanding to issue the certificate and to pay compensation or to return the fees to the complainant. Even though the opposite parties received the notice they have not cared to respond with it. Hence the complainant alleging deficiency in service and unfair trade practice against the opposite parties filed this complaint seeking relief such as to direct the opposite parties to issue the certificate along with compensation and cost.

 

Upon notice opposite parties 1 and 2 entered appearance and filed detailed reply version, contenting that the complainant is not a consumer, as defined U/s 2(1) (d) of the Consumer Protection Act 1986. On the reason that the opposite parties are not conducting a Commercial Establishment, and there is an Educational Institution managed by a Trust without any profit motives. Opposite parties relied upon the judgement of Honourable Supreme Court in Maharshi Dayanand University v. Surjeet Kaur, 2010 (2) CPC 696 S.C. for establishing their version.

 

Opposite parties further contented that in the matter of admission, fees etc., there cannot be a question of deficiency of service and such matter cannot be entertained by the Consumer Forum. The opposite parties further contented that Honourable Supreme Court observed in “Bihar School Examination Board Vs Suresh Prasad Sinha (2010) (1) CLT 255 (SC), that the education Board and Universities are not Service Provider and the complainant against them are not maintainable”. Therefore deficiency in service or unfair trade practice, which are associated with the commercial intention of an establishment, are not applicable to this case and hence on the reason the complaint is prima facie liable to be rejected.

 

(Cont....3)

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Opposite parties further contented that the complainant was a student of Royal Community College, Munnar which is a division of Munnar Catering College and both of the institutions are run by same management in the same campus. This college conducted course approved by IGNOU, as a full time regular course. Opposite parties are neither bound to nor competent to issue Degree or Diploma certificate, since issuance of certificate can be done only by the University. Therefore, under no circumstances, non-issuance of the certificate can be treated as deficiency of the service on the part of these opposite parties. This fact was already conveyed to the complainant at the time of admission and by suppressing this facts the complainant approached to this Forum.

 

The opposite parties further contented that as per the guidelines of the IGNOU, this opposite parties is strictly limited for conducting full time regular courses in Hotel Management and Tourism, under IGNOU, and they have completely fulfilled their above responsibility. In this case the complainant is not complaining about the conduct of the course and the grievance is confined to the non issuance of the certificate alone. Therefore, the IGNOU, which is the University and is the only institution competent to issue the degree certificate, is a necessary party to this proceedings and hence the complaint is bad for non- jointer of necessary parties.

 

Opposite parties further contented that, upon completion of the course, the IGNOU has already issued the mark list and provisional certificate to the complainant. After receiving the mark list and provisional certificate, these opposite parties had even promptly remitted the prescribed fees for the issuance of the Associate Degree Certificate on 06/11/17 for the entire students and were in constant contact with the University for the issuance of the same. Therefore, no deficiency in service on the part of these opposite parties and hence the petition is liable to be dismissed.

 

Opposite parties further contented that as per the provisions of the UGC Act 1956, the responsibility of a college is only to provide a course of study and present students for the examination, for the award of qualification by the University. The responsibility of awarding any degree is the sole onus of the University and not the College. Therefore, the opposite parties are not

(Cont....4)

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responsible to publish the result and issue certificate in time is based on a complete misconception.

 

For Associate Degree under IGNOU, the certificate is to be issued by the IGNOU only, after conducting prescribed examination. It is true that there was some delay in conducting the examination itself, due to the major changes in the University, which was not attributable to these opposite parties. These opposite parties have been repeatedly taking up the matter with the IGNOU, as well as the concerned ministers at the centre collectively and individually. Since their attempts could not materialize, despite all the earnest efforts, these opposite parties have approached the Honourable High court of Kerala, through writ petition Nos. W.P. (C) Nos. 17193, 17785 and 21202 of the year 2012. This was in the best interest of the students including the complainant and this clearly shows the special interest taken by these opposite parties, to overcome the delay on the part of the University. All these had been promptly informed to the complainant through various communications and they are well aware of this, though they pretended otherwise due to ulterior motive.

 

The opposite parties further contented that, on account of and as a result of continuous efforts of these opposite parties, the University already conducted the examination, published the result and issued statement of marks and Provisional Certificate bearing No.104 of 21/07/16 in the name of the complainant. But the complainant refused to collect it from the college in spite of repeated intimations. It is still in the custody of the opposite parties and can be issued to the complainant against proper acknowledgement. This certificate is valid for all academic and professional purpose, but the complainant is deliberately hiding this fact and stated in para 2 of the complaint, that this certificate is not issued, the complainant could not join in any related job and thereby he has not earned any salary and suffered heavy loss and hardships. On going above said certificate it can be seen that the same contain an endorsement that, valid till the original is issued at the next convocation. It is also submitted that the mark list of the examination held by the University in the name of each candidate has been issued and the complainant has not collected the same from the college. This matter also deliberately concealed by the complainant. These documents are sufficient for anyone to join in any job. Instead, the complainant is trying to accuse the

(Cont....5)

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opposite parties with malafide intention. Hence there is no deficiency on the part of the respondent.

 

As per the contention raised by the opposite parties 1 and 2 regarding the non-jointer of necessary party, complainant filed a petition to implead IGNOG authorities as additional opposite parties 3 and 4. This petition allowed and the Registrar and Regional Director of Indira Gandhi National Open University was impleaded a additional opposite parties 3 and 4.

 

Upon notices opposite parties 3 and 4 entered appearance and filed detailed reply version admitting the fact that the complainant was a student of two years Associate Degree Programme in Hotel Management and Tourism in Royal Community College, Munnar bearing enrolment No. C10019438. 89 original certificate had already been despatched on 26/03/18 through speed post to the Royal Community College, Munnar. Hence they have no deficiency in this matter.

 

Evidence adduced by the complainant by way of proof affidavit and records. Complainant was examined as PW1 and Ext.P1 to Ext.P12 were marked. Ext.P1 is the prospectus of Munnar Catering College, Ext.P2 is the confirmation for admission letter, Ext.P3 is the ID card, Ext.P4 is the certificate of IGNOU, Ext.P5 is the letter of confirmation of education loan, Ext.P6 is the copy of cheque, Ext.P7 is the copy of fee receipt dated 27/04/12, Ext.P8 is the fee receipt dated 15/12/10, 13/12/10, 08/07/12 and 19/04/12, Ext.P9(series) are the copy of transfer certificate and course and conduct certificate issued by the Royal Community College, Ext.P10 is the copy of legal notice dated 26/05/17 and postal receipt, Ext.P11 is the Acknowledgement cards, Ext.P12 is the course certificate of Munnar Catering College.

 

No oral or documentary evidence is produced by the opposite parties.

 

Heard both sides,

 

The point for consideration is whether there was any deficiency in service from the part of the opposite party, and if so, for what relief the complainant is entitled to?

 

(Cont....6)

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The Point:- We have heard the learned counsels appearing for both parties and had gone through the documents.

 

It is an admitted fact that the complainant was a student of two years Associate Degree Programme in Hotel Management and Tourism in Royal Community College, Munnar which is a division of Munnar Catering College and both the institution are run by the same management in the same campus. As per the version of the complainant, he complied the course by paying Rs.2,46,400/- a course fee, for the year 2010-12. Even though the complainant has attended the examination the result is not published. Under the circumstances, the complainant issued a legal notice to opposite parties 1 and 2 demanding to issue the certificate and to pay compensation and to return the course fees on 26/05/17. Even after the receipt of the notice opposite parties has not cared to act upon it. Hence the complainant is forced to approach this Forum for redressing his grievance.

 

Opposite parties 1 and 2 responded this complaint by pointing out some legal aspects such as, the institution which the complainant was admitted is not opposite parties 1 and 2. He was admitted to the said course and the said course is conducting by Royal Community College, where as the Munnar Catering College is conducting other courses. The learned counsel for the opposite parties vehemently argued that this institution conducting this course as per the certificate of IGNOU, which is an open University, dated 03/07/09 and following the guidelines of IGNOU.

 

As per the contention of the opposite parties 1 and 2 IGNOU also impleaded as additional opposite parties 3 and 4.

 

The counsel further argued that, the complainant is not a consumer as per section 2(1) (d) of the Consumer Protection Act and the counsel pointed out so many decision of the Honourable Supreme Court of India and the Honourable National Consumer Disputes Redressal Commission, the decision are already discussed.

 

The counsel further pointed out that Indira Gandhi National Open University is the authority to schedule the examination. Conducting the examination preparing statement of marks and publishing result. The duty of

(Cont....7)

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the college is only to conduct the course admit the students and present the students for examination. If any delay caused in conducting the examination and publishing the result or sending the statement of mark, the IGNOU is alone liable and this opposite parties has no right interfere in these matter. The counsel further argued that the university had already conducted the examination of the complainant, published results and issued statement of marks and Provisional Degree Certificate in the name of the complainant. But the complainant, due to mysterious reason has refused to collect it from the college in spite of repeated intimation.

 

The learned counsel appear for IGNOU, opposite parties 3 and 4 stated that the original certificate of 89 students of this course including the second complainant had already been despatched on 26/03/18 through speed post number ED 594407939 IN to Royal Community College, Munnar.

 

On going through the evidence on record we found that, at the time of admission of the above discussed course opposite parties 1 and 2 given prospectus of the Munnar Catering College and the opposite parties issued fee receipt in the name of Munnar Catering College (Ext.P1, Ext.P7 and Ext.P8). Opposite parties given letter for confirmation of admission in the name of the second complainant also in the letter head of Munnar Catering College (Ext.P2). Hence the argument of the learned counsel that the Munnar Catering College is not liable for any act of Royal Community College is not withstanding.

 

The specific case of the complainant, that even though the course is completed the opposite parties failed to issue mark list and certificate to the complainant even after repeated request. To counter this allegation, opposite parties in their version, opposite parties 1 and 2 stated that even though they intimated the complainant to collect the Provisional Certificate and Mark List, complainant was not turned up to collect it from the office. This version of the opposite parties cannot be believable for a moment. Because opposite parties has not produced any communication details with the complainant, directing him to collect the certificate from the office. If the opposite parties send any letter to the complainant, for collecting the certificate their must be a copy of such intimation with them. But no evidence is produced by the opposite

(Cont....8)

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parties to strengthen their such a plea. Hence their version of the opposite parties cannot be considered and cannot be acceptable.

 

Ext.P10 is the copy of legal notice and its postal receipt and Ext.P11 is the Acknowledgement cards . On going through the documents. It is seen that the complainant issued the legal notice, by demanding the issuance of his certificate on 26/05/17 and the opposite parties received it on the next day itself. Even after the acceptance of the legal notice opposite parties failed to consider the request of the complainant, and opposite parties neglected the request of the complainant and handled this matter carelessly, without considering the future of the complainant.

 

In their version opposite parties 1 and 2 categorically stated that still the certificate are in their custody and they are ready to issue to the complainant against proper acknowledgement. On going through their statement of the opposite parties, Forum found that opposite parties are still playing tricks for non- issuance of certificate to the complainant without valued reasons. If the aim of the opposite parties for the better future of their student, they can produce it before the Forum immediately after the receipt of the notice and copy of this complaint and opposite parties has better opportunity to receive a acknowledgement from the complainant through this Forum.

 

The failure to issue the mark list and certificate of the complainant even after repeated request from his part and even after the acceptance of demand legal notice is a gross deficiency in their service and no doubt it caused much mental pain to the complainant and his family and it definitely affected his future. The allegation put forwarded by the complainant against the opposite parties 1 and 2 cannot be discarded, more over opposite parties 1 and 2 miserably failed to establish their version with clear and cogent evidence.

 

On the basis of above discussion, Forum is of a considered view that the act of the opposite parties in the above said matter is a gross deficiency in service and the opposite parties are bound to compensate the complainant adequately. Hence complaint allowed. Opposite parties 1 and 2 are directed to issue the certificate and mark list to the complainant within 7 days from the date of receipt of the copy of this order. Opposite parties 1 and 2 are further directed to pay compensation of Rs. 50,000/- to the complainant for his

(Cont....9)

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mental agony and Rs.5000/- as litigation cost within 30 days from the date of receipt of the copy of this order, failing which the compensation amount shall carry 12% interest from the date of default till its realisation.

 

Pronounced in the Open Forum on this the 28^th day of June, 2019.

 

Sd/-

SRI. S. GOPAKUMAR (PRESIDENT)

Sd/-

SMT.ASAMOL P. (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Alen Ebby

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 - The prospectus of Munnar Catering College

Ext.P2 - The confirmation for admission letter

Ext.P3 - The ID card

Ext.P4 - The certificate of IGNOU

Ext.P5 - The letter of confirmation of education loan

Ext.P6 - The copy of cheque

Ext.P7 - The copy of fee receipt dated 27/04/12

Ext.P8 - The fee receipt dated 15/12/10, 13/12/10 , 08/07/12 and 19/04/12

Ext.P9(s) - The copy of transfer certificate and course and conduct certificate

issued by the Royal Community College

Ext.P10 - The copy of legal notice dated 26/05/17 and postal receipt

Ext.P11 - The Acknowledgement cards

Ext.P12 - The course certificate of Munnar Catering College

On the side of the Opposite Party :

Nil.

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT