DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB. Consumer Complaint No.19 of 2017 Date of institution : 21.03.2017 Date of decision : 16.01.2018 Gurbaj Singh Cheema aged about 47 years son of Sh. Mann Singh R/o Near Dr. Ranjit House, New Officer Colony, Opposite B.Z.S.F.S.School, Sirhind, Tehsil and District Fatehgarh Sahib. ??..Complainant Versus Mukesh (Physics Lecturer) Prop of Anand Vidaya Mandir C/O Airtel DTH Service Center, Balaji Telecom, Opp. Mahesh Hospital, Bikkaner Wali Gali, Bassi Road, Sirhind, Tehsil & District Fatehgarh Sahib. ?..Opposite Party Complaint Under Sections 11 to 14 of the Consumer Protection Act. Quorum Sh. Ajit Pal Singh Rajput, President Sh. Inder Jit, Member Present : Sh. G.S.Sandhu, Adv.cl. for complainant. Sh.H.S.Cheema, Adv.Cl. for Opposite party. ORDER By Ajit Pal Singh Rajput, President Complainant, Gurbaj Singh Cheema aged about 47 years son of Sh. Mann Singh R/o Near Dr. Ranjit House, New Officer Colony, Opposite B.Z.S.F.S.School, Sirhind, Tehsil and District Fatehgarh Sahib, has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Sections 11 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under: 2. The complainant met with OP, who is running a private educational institute of Physics namely "Anand Vidayamandir", for coaching of physics subject for his minor daughter, namely; Muskan Kaur Cheema. The OP assured complainant that he will provide better education to his daughter and also gave assurance that he will return the entire fee amount if he failed to provide better service. Thereafter on 20.11.2016, the complainant got admitted his daughter in the said coaching centre of OP. The complainant gave a cheque bearing No.888640 in lieu of coaching fee of Rs.13,000/- to OP. The OP failed to attend the classes regularly and he remained absent. Due to his absence, the daughter of complainant did not get better marks in her physics subject during her class test. Therefore, the complainant quit her daughter from coaching centre of OP in the first week of January and got admitted his daughter in another institute for further coaching/tuition of said subject and also paid further fee for the same. The complainant requested the OP to refund the amount of Rs.13,000/- in lieu of tuition/coaching fee but he refused to refund the same. The complainant also served a legal notice on OP but all in vain. The act and conduct of the OP amounts to gross negligence, deficiency in service, carelessness and unfair trade practice on his part. Hence, this complaint for giving directions to the OP to refund the amount of Rs.13,000/- to the complainant alongwith interest. 3. The complaint is contested by the OP. In reply to the complaint, OP raised certain preliminary objections, inter alia, that the present complaint is not maintainable in its present form as the complainant is not the consumer as per the Consumer Protection Act; the complainant has got no locus standi or cause of action to file this complaint; the complaint is false, frivolous and vexatious and the complainant has suppressed the true and material facts from this Forum. As regards the fact of the complaint, OP stated that the daughter of the complainant was duly registered as student in the institution of OP and filled registration form after admitting all the rules and regulations prescribed in the said form, which was duly signed by the daughter of the complainant. It is further stated that the institution of the OP is one of the best coaching institute in the area of District Fatehgarh Sahib and there are 65-70 students of various schools studying physics. Several students of the OP have got distinguished marks in the C.B.S.E. as well as P.S.E.B. examinations. Almost 18-20 students of the OP's institution secured 90% to 95% marks in the examination during the year 2016. It is further stated that complainant has leveled false allegations regarding the ability and capability of the OP. There is no deficiency in service or negligence on the part of the OP. After denying the other averments made in the complaint, OP prayed for dismissal of the complaint. 4. In order to prove his case, the complainant tendered in evidence true copies of documents i.e. registration form/admission form Ex. C-1, account statement Ex.C-2, legal notice Ex. C-3, his affidavit Ex. C-4, affidavit of Rajesh Kumar Ex.C-5, copies of documents Ex. C-6 to C-9 and closed the evidence. In rebuttal, OP tendered in evidence his affidavit Ex. OP-1, legal notice Ex. OP-2, reply to legal notice Ex. OP-3, postal receipts Ex. OP-4 and OP-5, copy of registration forms and DMCs of students Ex. OP-6 to OP-82 and closed the evidence. 5. Learned counsel for the complainant at the very outset relied upon the decision of Hon?ble National Commission, in case titled as Krishan Mohan Goyal Versus St Mary?s Academy & Anr, IV 92017) CPJ 368(NC). He pleaded that the present complainant is fully covered by the decision of the Hon?ble National Commission, as the daughter of the complainant was not able to procure full marks in Physics subject as promised by the OP at the time to charging tuition fee/coaching fee amounting to Rs.13,000/-. Learned counsel pleaded that the mark sheets placed on record of the other students has no concern in regard to the case of the complainant. He argued that it is established from the act and conduct of the OP, that due to negligence on the part of OP, daughter of the complainant could not secure 100% marks and the complainant deserves to be compensated for the same. 6. On the other hand, Learned counsel for the complainant has submitted that the judgment of the Hon?ble National Commission relied upon by the complainant is not applicable to the facts of the present case. He pleaded that due coaching was given to the daughter of the complainant and she had secured 79% marks in physics subject. Learned counsel further pleaded that other students who got coaching from the OP also secured good marks, as it is established from the mark sheets i.e Ex.OP-70 to Ex.OP-82. Learned counsel argued that the present case is covered by the judgments of Hon?ble Supreme Court titled as Bihar School Examination Board Vs. Suresh Prasad Sinha, IV(2009) CPJ 34(SC), Maharshi Dayanand University Vs. Surjeet Kaur, Civil Appeal No.6807 of 2008 decided on 19.07.2010 and P.T.Koshi & Anr. Vs. Ellen Charitable Trust & Ors. III (2012) CPJ 615. 7. However, on careful consideration of the aforesaid case law, we find that the facts of the case given in the case law are quite distinguished from the facts of the case in hand. The Hon?ble National Commission in case of Krishan Mohan Goyal Versus St Mary?s Academy & Anr,(Supra) has observed, while discussing the judgments of Apex Court in case titled as Bihar School Examination Board Vs. Suresh Prasad Sinha, IV(2009) CPJ 34(SC), Maharshi Dayanand University Vs. Surjeet Kaur, Civil Appeal No.6807 of 2008 decided on 19.07.2010 and P.T.Koshi & Anr. Vs. Ellen Charitable Trust & Ors. III (2012) CPJ 615, that,?None of the above referred three cases, in my view, would apply to a case where the school is found to be deficient even in providing the basic aid and assistance which any educational institution will provide to a student studying with it. Deficiency in imparting education which is the core function of an educational institution, in my view is altogether different from rendering such basic help and assistance to the students. A student may not be the consumer of the school as far as the core function of imparting education or taking examinations is concerned, but, the position would be altogether different where the deficiency on the part of the educational institution is found in an activity altogether different from imparting education, where a consideration is being charged for such an activity on the part of the educational institution". 8. The Hon?ble National Consumer Dispute Redressal Commission, New Delhi, while referring to the decisions of Hon?ble Apex Court, in case titled as RABINDRA BHARATI UNIVERSITY Versus JAYATI ROY CHOWDHURY & OTHERS, in Revision Petition No.263 to 266 of 2017 decided on 07.11.2017, has held as under: "Further, making a valiant attempt to convince us that apart from the fact that decisions in P.T. Koshy (supra) and Prof. K.K. Ramachandran, relied upon by Counsel appearing for the University, are clearly distinguishable on facts, learned Counsel has submitted that in the afore-noted two decisions the decision of the Hon?ble Supreme Court in Buddhist Mission Dental College and Hospital (supra), wherein certain decisions rendered by the Constitution Bench have been referred to, has not been noticed and, therefore, the decisions cited on behalf of the University, being per-incurium, are not binding on us. Having heard learned Counsel for the parties and gone through the material on record, including the precedents cited by them in support of their rival stands, we are unable to persuade ourselves to agree with learned Counsel for the Complainants. As noted above, the decisions of the Supreme Court in P.T. Koshy (supra) and Prof. K.K. Ramachandran (supra) are directly on the point arising for consideration in these cases and have been rendered after the decision of the Hon?ble Supreme Court in Buddhist Mission Dental College and Hospital (supra). We are bound by the ratio of both the decisions. Accordingly, following the afore-noted decisions in P.T. Koshy (supra) and Prof. K.K. Ramachandran (supra), the Revision Petitions are allowed; the impugned orders are set aside; and the Complaints are dismissed, leaving the parties to bear their own costs". 9. Accordingly in view of aforesaid discussion and decisions of the Hon?ble Apex Court and Hon?ble National Commission, we find that the judgment relied upon by the Learned counsel for the complainant is not applicable to the facts and circumstances of the present case. Hence the present complaint is not maintainable and is disposed of with the direction to the complainant to approach the appropriate court of law for redressal of his grievances against the OP. All the original and requisite documents placed on record be returned to the complainant. A copy of the said documents be retained in record. 10. The arguments on the complaint were heard on 11.01.2018 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room. Pronounced Dated: 16.01.2018 (A.P.S.Rajput) President (Inder Jit) Member