Friday, June 18, 2010

TC: Omission to inform the date of fees remittance

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT

F.A.NO.599/2005

[Against order in C.C.No.77/2002 on the file of the DCDRF, Madurai]

DATED THIS THE 9th DAY OF MARCH 2010

Prof. M.Krishna, M.A., B.L., |

Advocate, | Appellant/Complainant

Pushpak, Malligai Street, |

Bank Employees Colony, |

Madurai – 14. |

Vs.

1. The Laison Officer, |

Annamalai University, |

Directorate of Distance Education, |

Study Centre, Madurai-1. |

| Respondent/Opposite Party

2. The Director, |

Directorate of Distance Education, |

Annamalai University, |

Annamalai Nagar 608 002. |

The appellant as complainant filed a complaint before the District Forum against the Respondent/opposite party praying for the direction to the opposite party to pay a sum of Rs.5 lakhs for the mental agony suffered because of negligence and deficiency of service. The District Forum dismissed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.01.12.2003 in C.C.77/2002.

This appeal coming before us for hearing finally on 25.02.2010. Upon hearing the arguments of the counsels on eitherside, this commission made the following order:

Counsel for the Appellant /Complainant : M/s.Sampathkumar & Associates,

Advocate.

Counsel for the Respondent/ O.P. : Mr.Srinath Sridevan, Advocate.

M. THANIKACHALAM J, PRESIDENT

1. The unsuccessful complainant is the appellant.

2. The complainant who has got spot admission for M.L. decree course by correspondence course, has paid a sum of Rs.2,250/- on the date of admission and also paid first installment of tuition fee, on 30.08.2001. The second opposite party had collected from the complainant a sum of Rs.300/- exclusively, as postal and stationery fee, and therefore they are bound to inform well in advance, as to when the second installment of fees, is to be paid without fine. The opposite parties having failed, send a communication dated 18.12.2001, posted on 22.1.2002 informing the complainant that he had not remitted the second installment of tuition fee. The last date for payment was 31.12.2001 which was extended upto 20.1.2002 for payment without penalty. Having received a sum of Rs.300/- as hire charge, the opposite party have committed deficiency of service, by posting the letter dated 18.12.2001 on 22.1.2002, wherein also there was no indication of grace period to pay the fee without penalty. Because of the deficiency committed by the opposite parties, the complainant was forced to pay a sum of Rs.100/- as penalty, that too, due to the continuous negligence on the part of the second opposite party. Because of this conduct, the complainant had put to mental agony, for which, he is entitled to a sum of Rs.5 lakhs as compensation. Thus, the claim was lodged.

3. The opposite parties in their Written Version, questioning the jurisdiction of the District Forum on the grounds that they are not service provider and therefore as such Consumer Forum has no jurisdiction, that in the prospectus itself, it is stated, when and how the second installment of tuition fee has to be paid with penalty and without penalty etc., and for non-payment of tuition fee with fine, if at all the complainant paid penalty or fine that will not give cause of action to claim compensation, exorbitantly and that if the circular was received belatedly, he should have paid amount explaining the same, failing to do so, the complainant cannot accuse the opposite parties, claiming compensation, thereby, praying for the dismissal of the complaint, denying the further allegations in the complaint as frivolous.

4. The District Forum considering the rival contentions of the parties, perusing the affidavits and other documents relied on by them, reached the conclusion, that there was no default of any kind on the part of the opposite parties, that since there was no deficiency and that the Consumer Forum has no jurisdiction to decide this kind of disputes. Thus concluding, the complaint came to be dismissed on 1.12.2003 which is under challenge.

5. Heard, the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.

6. The learned counsel appearing for the appellant submitted, that the opposite parties having collected a sum of Rs.300/- specifically for the purpose of postal and stationery, had failed to inform the complainant about the due date of the second installment, which should be construed as deficiency, that because of the deficiency committed by the opposite parties, the complainant was compelled or forced to pay fine as well as penalty, thereby, caused mental agony, for which, the opposite parties should be directed to pay compensation, which were not properly analyzed and decided by the District Forum, thereby, prayed for redressal.

7. Per contra, it is the submission of the learned counsel for the opposite parties that in the prospectus itself, schedule is given for payment of tuition fee and therefore the failure if any on the part of the opposite parties to inform the last date of payment of tuition fee (second term) will not amount to deficiency, that the Consumer Forum has no jurisdiction because of the fact, the opposite parties are educational institution, who are doing statutory obligations and not doing any service and in this view, it is the further submission, the order of the District Forum is well within the frame of law, requires to be preserved.

8. The complainant on seeing advertisement made by the opposite parties, got admission for M.L. Decree, correspondence course, for which, a sum of Rs.2,250/- also paid by Demand Draft, not under challenge. Further for postal and stationery fee of Rs.300/- was collected from the complainant, not seriously challenged. The complainant upon admission, had paid the first installment of tuition fee and it seems, he has not paid the second installment within the time, thereby, forcing him to pay penalty. Aggrieved by this, accusing the opposite parties, that they having collected Rs.300/- should have informed well in advance, about the last date of payment of tuition fee, which they have not only failed, but also issued a circular belatedly after the due date, for which, they should be held responsible, labeling them as service provider committed deficiency.

9. In this context, we have to see, whether a sum of Rs.300/- was collected for informing the date of tuition fee to be paid or for some other purpose. Even as pleaded by the complainant, the said sum of Rs.300/- was collected exclusively, as postal and stationery fee, and not to inform the last date for payment of tuition fee, whether with fine or without fine as the case may be. Therefore, assuming on the part of the opposite parties that there was a failure to inform the last date for the payment of the second installment of tuition fee, that cannot be construed as deficiency. The fee collected is for sending stationer that i.e. study materials, which should include postal and not for informing dates regarding the payment of tuition fee, which would be seen from the prospectus.

10. In the complaint, an attempt was made to say neither in the prospectus issued by the second opposite party, nor in the communication, there was no whisper, of when the second installment to be paid, which appears to be quite against the documents filed by the complainant himself as seen from Ex.A1. Ex.A1 is the prospectus for the year 2001-2002. At Page 32, schedule is given about the payment of tuition fees, for first installment, second installment etc., which covers P.G. also. As seen from this schedule, first year’s second installment which we are concerned, fell due as on 31.12.2001 without fine and with fine, amount should be paid on or before 21.01.2002. The complainant having received the prospectus, without intimation from the opposite parties should have paid the second installment on or before 31.12.2001 and with fine atleast on or before 21.01.2002. It is the case of the opposite parties, failing to pay within the above said time frame, the fine of Rs.100/- per installment will be collected from the students and accordingly the complainant also paid admittedly. Therefore, as seen from Ex.A1, there is no duty cast upon the opposite parties to inform the dates, and the belated communication sent by way of precaution cannot be taken advantage by the complainant, to accuse the opposite parties as if they have committed deficiency. The District Forum considering all these facts has correctly held and I do not find any reason to disturb the same. The mental agony alleged, proceeded by deficiency all are imaginary, for which, the Consumer Forum cannot be give any relief.

11. It is the submission of the learned counsel for the opposite parties/respondents, there is no element of service to the candidates/students and the amount collected, is on the basis of the statutory obligation to be performed and therefore the opposite parties cannot be termed as service provider, and the complainant cannot be termed as consumer, placing the reliance upon the decision of the Apex Court in “Bihar School, Examination Board Vs. Suresh Prasad Sinha reported in “IV (200( CPJ 34 (SC)”, which dictum is squarely applicable. In view of this settled position also, the Consumer Forum has no jurisdiction and the complaint is liable to be dismissed for want of jurisdiction, which was done by lower forum, which now receives the confirmation, from this Commission also.

12. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Coimbatore in OP.No.77/2002, dt.01.12.2003. Under the facts and circumstances of the case, there will be no order as to cost, throughout.

M. THANIKACHALAM

PRESIDENT

INDEX : YES / NO

Ns/mtj//smb


Courtesy_

http://164.100.72.12/ncdrcrep/judgement/190F.A.599%20OF%202005%20(2).htm


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