Friday, June 18, 2010

PC: Omission to inform the date of examination

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY

FRIDAY, the 11th day of April, 2008

First Appeal No.4/2007

V.Ramesh Kumar,

Puducherry. ………. Appellant

Vs.

1. The Co-Ordinator,

Madurai Kamaraj University,

Puducherry.

2. The Director,

Madurai Kamaraj University,

Madurai. ………. Respondents

(On appeal against the order passed by the District Forum, Puducherry in Consumer ComplaintNo.37 of 2006, dated 30.11.2006)

Consumer Complaint No.37 of 2005

V.Ramesh Kumar,

Puducherry. ………. Appellant

Vs.

1. The Co-Ordinator,

Madurai Kamaraj University,

Puducherry.

2. The Director,

Madurai Kamaraj University,

Madurai. ………. Respondents

BEFORE:

HON’BLE JUSTICE THIRU N.V.BALASUBRAMANIAN

PRESIDENT

TMT. P.V.R.DHANALAKSHMI,

MEMBER

FOR THE APPELLANT:

Thiru P.Vengadakrishnan,

Advocate, Puducherry.

FOR THE RESPONDENTS:

Thiru M.Lakshmi Narasimhan,

Advocate, Puducherry.

J U D G E M E N T

This appeal is preferred against the order of the District Forum in complaint No.37/2006, dated 30.11.2006. The District forum has rejected the complaint on the ground that the complainant cannot be regarded as a ‘consumer’ and the omission to inform the date of examination by the 1st respondent/O.P. to the appellant/ complainant does not come under the purview of “Service” within the meaning of the Consumer Protection Act, 1986 (hereinafter called the ‘Act’ for convenience) and hence the complaint filed by the complainant is not maintainable.

2. The brief facts necessary for the disposal of the appeal are:

The complainant has joined M.C.J. (Master of Communication and Journalism) which is a two year course for the academic years 2004-2006 by way of Distance Education Programme of the Madurai Kamaraj University and he joined the course with the 2nd O.P. – University and the 1st O.P. – Study Centre. He is a lecturer in the Department of Bio-Chemistry in St. Joseph’s College, Cuddalore. The complainant was not able to attend the first year theory examination on 26.12.2004, but, he attended the I year Practical examination at Chennai comprising seven days lecture from 30.04.2005 to 06.05.2005 conducted by the Resource Persons and had secured 72% marks in the practical examination. He subsequently appeared for the I Year Theory Papers as well as the theory papers for the Second year in the examination held in December, 2005 at Puducherry and had secured 56% marks. There is no dispute that the complainant received the mark sheet also. The complainant has to appear for the II Year Practical –II examination, i.e Photography and Videography Course for completion of the course. According to the complainant, he has made necessary arrangements for availing leave for seven days, but, had not received any intimation for the said Practical Examination which comprises of seven days lectures. It is the case of the appellant that he has been frequently calling upon the Opposite Party No.1 several time in anticipation of intimation, but, the Opposite Party No.1 had not replied to his queries. He has paid the necessary fees also and made several telephone calls, but, all turned in vain. It is stated that both the opposite parties are liable for the consequence of his non-appearance of the Practical II Examination of the II Year and the Opposite Party No.2 is vicariously liable and he has lost bright future in the field of Communication & Journalism, which promised substantial income and after issuing the notice, he has filed the complaint for compensation to a tune of Rs.10.00 lakhs.

3. The 1st Opposite Party has filed the version admitting the complainant joined the Master of Communication and Journalism Course under the Directorate of Distance Education of the University in the Study centre at Puducherry. It also admits that the complainant has attended the practical and theory examinations held in December, 2005 and also received the relevant statement of marks. It is also admitted that the complainant had to appear for the Second Year Examination (Practical –II Photography & Video Production). It is denied that the complainant had not received the intimation regarding the practical examination and also denied the claim for compensation. It is stated that the Madurai Kamaraj university was established under an Act of the Government of Tamilnadu, namely, Madurai University Act of 1995 and in pursuance of its lawful activity, the said University had started Directorate of Distance Education and the University is serving several students and enroll number of students for various courses and used to arrange contact classes. It is also stated that all the said course and activities are by personal contacts as between the students and Study Centres and the Study Centres have to co-ordinate all the activities for the course in such education as per the agreement entered into between the complainant and the opposite parties and as per the prospectus issued by the opposite parties to all the enrolled students. It is also stated that the complainant got all the information regarding the papers and materials in time for study in the said course and for appearance for the relevant classes and examinations. It is also stated that after intimation, the complainant has not appeared for the examination in November, 2004 eventhough the Hall-Ticket-cum-Identification Certificate for the examination was issued by the opposite parties 2 and 1 respectively. It is also stated that the complainant paid the University Centre Fees during February, 2005 and the application was promptly responded by dispatch of materials and papers including the Hall Ticket-cum-Identification Certificate for the examination. It is stated that the complainant had appeared for the Practical - I examination and the University’s Study Centre has sent the statement of marks of the said examination. It is also stated that he again applied for registration for four theory subjects for the I Year and five subjects for the II Year for the examination of November, 2005 and all the requisite papers including hall ticket, etc were despatched in time and an intimation of 08.02.2005 was sent to all the students for the practical course for the said academic year. It is stated the complainant had attended 8 subjects, but, did not appear for the Practical-II Examination. It is also stated that the complainant had passed all the papers and consequently statement of marks also sent to him. As far the main complaint of the complainant that he has not received intimation for the practical examination for November, 2005 is concerned, there is no whisper in the version of the opposite party No.1 whether is any intimation was sent for the Practical examination held for November, 2005. It is also stated that the opposite parties have arranged for another examination to the students including the complainant and intimation on 03.07.2006 was sent to avail the opportunity and complete the course. The other averments made in the complaint are denied and they pray that the complaint should be dismissed.

4. The District Forum has rejected the complaint on the ground that the performance of statutory duties by educational institutions in laying down criteria – rules – regulations for conducting examinations cannot be considered to be hiring of service for fees and the non-intimation of the date of examination by the 1st opposite party to the complainant is a dispute relating to the conduct of the examination and hence the omission would not come under the purview of ‘service’ and consequently the complainant cannot be considered as a ‘consumer’. The District Forum has chosen to place reliance on the decision of the National Commission in the case “Deputy Registrar (Colleges) & Another Vs. Ruchika Jain & Others (reported in 2006 (3) CPR 18 (NC) to come to the above conclusion and hence the complaint was dismissed on the ground not maintainable.

5. We heard Mr.P.Vengadakrishnan, learned counsel for the appellant and Mr. M.Lakshmi Nrarasimhin, learned counsel for the respondents.

6. The points that arise for consideration in the appeal are:

1. Whether the complainant is a ‘consumer’ and whether

the omission to intimate the date of practical examination

would amount to ‘deficiency of service’ within the meaning

of the Act.?

2) If so, whether the complainant is entitled to any compensation?

7. As stated by us, there is no dispute the complainant joined the course M.C.J. (Master of Communication and Journalism) conducted by the Directorate of Distance Education, Madurai Kamaraj University and the subject chosen by him was Communication & Journalism and the study centre is at Puducherry. It is also not in dispute that the complainant has passed first year four theory papers and Practical-I Examination, as evident from Ex.C5. It is also seen from Ex.C8 that he has applied for examination to be held for November, 2005 and enclosed the necessary Demand Draft for the examination and he appeared in November, 2005 theory examination and passed eight theory papers, as evident from Ex.C10. He has also paid the University Fees and Centre Fees, as evident from Ex.C11 and C12. It is also seen from Ex.C8 that he applied for the appearance for four theory subjects in the First Year and for four theory subjects in the Second Year and also for the Practical subjects (Photography and Video Production – JBL) and necessary fees were also paid. He has stated that the total number of subjects appearing would be 9 including one practical examination in Photography and Video Production. It is also seen from the same document that the Hall Ticket-cum-Identification Certificate was issued for the P.G. Non-Semester Examination of November, 2005 and the practical subject namely, Photography and Video Production-JBL is also mentioned in the hall ticket. It is seen from the version filed by the 1st O.P. that he had appeared for all the eight theory subjects, but, absented for the practical subject and the case of the complainant is that he had not received intimation for the practical examination of November, 2005.

8. Now, it is relevant to notice the relevant portion of the Prospectus produced by 2nd O.P Ex.R1, as the entire case revolves on the interpretation of the terms of the prospectus. The relevant paragraphs are reproduced as under:

1. Application Forms for the University Examination will be sent to the students by the Programme Officer. Information regarding Examination, Fees to be paid and other regulations governing examinations will be sent along with examination forms. All the filled in application should be submitted with examination fee and Xerox copy of of admission card issued by this office to the Programme Officer who will in turn forward the same to the Director, DDE, Madurai Kamaraj University.

2. The Examination Fee payable by the student should be made every time by way of Demand Draft drawn in favour of The Registrar, Madurai Kamaraj University payable at Madras.

3. The Examination Centre will be fixed by the Programme Officer. The date for University Examination will be intimated by the Controller of Examinations, Madurai Kamaraj University through the Programme Officer of the Study Centre.

Hall Tickets: Hall tickets for examination will not be sent to the students directly. The students should obtain their Hall Tickets, scheme of examination from the Chief Supdt. Of the Examination centres as fixed by the Programme Officer three days before the commencement of the examination.

There is no dispute that the complainant has not appeared for the II Year Practical Examination Practical-II, though he has stated the examination held in December, 2005, but, the version filed by the 1st Opposite Party., it is stated that the examination was held for November, 2005. The submission of Mr. M.Lakshmi Narasimhan, Learned counsel for the respondents is that the 1st Respondents/O.Ps is not duty bound to send any individual intimation for practical examination as the 2nd Opposite Party has to deal with several lakhs of students of correspondence course and the students are not only in India but also outside India and it is not expected that individual intimation card could be sent to the candidates appearing for the examination. We unable to accept the submission as Clause-I of the information regarding the University Examination of the prospectus provides that application form for the University Examination would be sent to the students by the Programme Officer and it contemplates the individual intimation to the students of forwarding of application forms to the Programme Officer. It is also seen from the version of the 1st Opposite Party that individual notices were sent for all the examinations and it is stated that intimation dt. 08.02.2005 was sent to all the students including the complainant for the practical class for the I Year Examination. It is also seen from the version of the 1st Opposite Party that the hall-tickets were also dispatched to the students by the 1st O.P. for the examination of November, 2005. It is also seen from the document filed by the respondents that individual intimation was sent for the practical training programme for the I Year examination giving the duration of the practical training programme, venue, date, time and the names of resources persons also. Even assuming that individual intimation was not required to be sent, the 1st O.P. should have atleast displayed in the notice board in the office of the 1st respondent/O.P. giving full details of the practical training programme for the II Year Practical Examination. It is not the case of the opposite parties that any such general intimation for conduct of the practical examination for the second year course was effected by affixing the programme for the practical examination in the office of the 1st O.P. It is a definite case of the complainant that he has not received any intimation and the respondents/O.P.s have not established by production of any relevant material or evidence to show that either an individual intimation was sent to the complainant or general intimation was intimated to the students by display in the notice board of the office of the 1st O.P. regarding the date, time and venue of the holding of the II Year Practical Examination. As far the 2nd respondent/O.P. is concerned, it is the duty of the University to conduct the examination and they should discharge their duty by informing the 1st respondent/O.P No.1 the date of examination and then it is the duty of the first respondent/O.P.1 to intimate the date of University Examination to the students. Hence, both are liable for any omission to inform the students regarding the date of the examination. Mr. M.Lakshmi Narasimhan, Learned counsel for the respondents/Opposite Parties referred to the statement in the cross-examination of the appellant/ complainant wherein he has stated that he has no knowledge as to whether there is any clause or terms in any of the Exs.C1 to C19 regarding the necessity or duty of the respondents/Opposite Parties to give any sort of intimation of any manner. We are of the view that the whole case of the appellant/complainant is the non-intimation of the date for the examination and an isolated statement of the appellant/ complainant in the cross-examination is not a ground to reject the complaint.

8. Mr. Lakshmi Narasimhan, learned counsel submitted the date for the University Examination is required to be intimated by the Controller of Examinations, Madurai Kamaraj University through Programme Officer in the Centre. He submitted that the regulation of the prospectus does not contemplate any individual intimation by the programme officer of the study centre. Even accepting the contention of Mr. Lakshmi Narasimh that the word ‘initmated’ in the prospectus should be construed in a narrow sense, there is absolutely no material to establish that the complainant was intimated of the date of the II Year practical examination by affixture of the programme of the practical examination of the second year in the notice board of the office of the 1st respondent/O.P. The relevant regulation of the prospectus issued by the 2nd O.P. contemplates intimation of the date of the university examination to the students and in the absence of any such intimation, the students may not be able to take up the examination. Hence, a duty is cast upon on the part of the Study Centre to intimate the date of University Examination as soon it receives the date for the University Examinations from the Controller of Examinations of Madurai Kamaraj University. It is also seen from the documents filed by the opposite parties that practice is that individual notices were used to be sent to the students and in one of such document dated 11.10.2004, issued by the 1st O.P., it is clearly stated that the detailed examination programme would be sent to the eligible candidates atleast ten days before the examination.

9. The question that arises is whether the complainant can be regarded as a ‘consumer’ and whether there is any ‘deficiency in service’ by the Opposite parties. The District Forum has relied upon the decision of the National Commissioner in the case “Deputy Registrar (Colleges) & Another Vs. Ruchika Jain & Others (reported in 2006(3) CPR 18 (NC), wherein National Commission laid down the following criteria to determine the question whether the complainant can be regarded as a ‘consumer’ or not. (reproduce Para 28)

Performance of statutory duties by a University or College in laying down criteria/rules/regulations for conducting examinations, eligibility criteria for permitting the student to appear in the examination or declaration of the results of a student who appeared in the examination and such other activities, cannot be considered to be hiring of service for fees. Those are statutory functions not depending upon the contract between the parties. The services which are to be rendered on the basis of the statutory provisions by the University/educational institution cannot be construed as rendering of service for consideration in the form of fees. Giving of admissions to the students in a school/college /institution/university by recovering fees and in such cases if there is any dispute with regard to the validity of such admission or illegality, irregularity committed by such institution in giving admissions, such dispute would be covered under the Consumer Protection Act, 1986. This is on the basis of contract between the parties, i.e. students and the institution, and is based on the consideration (fees) for rendering education. Such students on the basis of Section 2(1)(d)(ii) read with Section 2(1)(o) would be hirer of service for consideration and hence would be consumer. Further, deficiency as defined under Section 2(1)(g0 would be apparent as this would be a fault/shortcoming in nature and manner of performance which is required to be maintained by or under any law.

10. Learned counsel for the O.P. also submitted that the service performed by the University for conduct of the examination cannot be considered to be hiring of services for fees and they are statutory functions not depending upon the contract from the parties and hence the services rendered on the basis of statutory provisions by the university and educational institutions cannot be construed as rendering of service in the form of fees. There is no dispute regarding the same. Though the examination is required to be conducted by the University and it is open to the University to draw the eligibility criteria for permitting the students to appear in the examination, the declaration of the results of the students who appeared in the examination cannot be regarded as ‘service’ within the meaning of the Act as they are required to be done on the basis of statutory provision, but, in so far non-intimation of the date of the examination is concerned, it cannot be regarded as a statutory function which is statutorily required to be performed by the University. There is a dispute regarding the non-intimation of the date for holding of the examination and on the basis of the contract, i.e on the basis of the prospectus issued by the Madurai Kamaraj University, the opposite party has undertaken the duty of intimating the students of the date of Examination and the programme of the examination. The mere fact that there are number of students studying in correspondence course may be more than one lakh, does not absolve the University or the Opposite Parties of it’s responsibilities or its duty undertaken by virtue of the prospectus to intimate the students the date of examination. It is not a statutory duty, but, it is a duty to be performed on the basis of the contract, namely, the prospectus issued by the University and it is done on the basis of the consideration received in the form of fees received alongwith the application form filed for the examination from the students. Therefore, we are of the view that the decision of the National Commission in Ruchika Jain case far from supporting the case of the respondent/opposite party really supports the case of the complainant on this issue and the duty of informing the date of holding the examination is undertaken on the basis of the contract between the students and the opposite parties by the University and it is based on consideration. Therefore, the complainant would be a hirer of services on consideration and hence he is a ‘consumer’ within the meaning of the Act and if there is any deficiency in service as defined u/s 2(1)(g) of the Act, it would be a deficiency or fault or shortcoming in the performance of the contractual duty, which is required to be done on the basis of the contract entered into between the parties in the form of prospectus. Since there is deficiency of service, the complainant is entitled to maintain the complaint. We have already held that the complainant was not intimated the date of holding the practical II Year in the Photography and Video Production-JBL and there was deficiency in rendering of service by the 1st O.P. Hence, the complainant is entitled to maintain the complaint.

11. The next question that arisen is whether regarding the fixation of amount of compensation. The complainant has stated that he has lost bright prospectus in the job market and he has also produced some advertisements calling for applications for appointments. We are of the view that the O.P. gave him an immediate opportunity very soon though after filing the complaint, for his appearance in the Practical Examination. We are also of the view that the 2nd O.P. is the University and it is not a place of profit. Considering the nature and extent of service rendered by the O.P.s in the field of education and also taking into the account the mental agony and sufferings and the loss suffered by the complainant, we are of the view that the complainant is entitled to a compensation of Rs.30,000/- only. As far the 2nd respondent/O.P. is concerned, it is the duty of the University to conduct the examination and they should discharge the duty through the 1st respondent/O.P. intimating the date of examination and hence the 2nd respondent/O.P. is also vicariously liable for the liability to pay the amount. Further, the first respondent/O.P.1 acts as an agent of the 2nd respondent/O.P.No.2 in the duty to inform the students of the date for holding the examination and the 1st respondent/ O.P. has no independent role and in this sense also both are liable jointly to pay the amount of compensation. Hence, both parties are jointly liable to pay the compensation amount.

12. In the result, the appeal is allowed. The complainant is entitled to compensation of Rs.30,000/- (Rupees Thirty-Thousand only) for the deficiency in service, mental agony and loss of future income of the appellant/complainant. No costs. The respondents/opposite parties are granted six weeks for making payment.

Dated this the 11th day of April, 2008.

(N.V.BALASUBRAMANIAN)

PRESIDENT

(P.V.R.DHANALAKSHMI)

MEMBER

Courtesy_

http://164.100.72.12/ncdrcrep/judgement/350FA4-07.html


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