dated 07.09.2016, hence, it is proper and just to decide them together in the interest of justice.
3. The facts giving rise to the appeals in hand, in brief, are as such that Km. Shubhangi Tiwari daughter of Sh. Vijaykant Tiwari has got admission in Class-VI in the year 2007 and total fees, i.e. Rs. 1,40,000/- alongwith registration amount was paid to the opposite parties. It is further averred that second daughter Km. Richa Tiwari of Sh. Vijaykant Tiwari has also got admission in Class-VII in the year 2010 and paid Rs. 3,53,000/- to the opposite parties. It is further averred that the fees of Km. Shubhangi Tiwari was paid for 01.04.2012 to 30.09.2012, whereas the fees for Km. Richa Tiwari from 01.04.2012 to 31.03.2013 was paid to the opposite parties. Subsequently, an application dated 27.06.2012 was submitted before the opposite parties alleging that both the students Km. Shubhangi Tiwari and Km. Richa Tiwari, were withdrawing from the opposite parties on account of some family problems. The opposite parties after adjusting the amount, furnished a cheque of Rs. 32,085/- to the complainant, which was not encashed. It is further alleged that the complainant is entitled to get the whole security amount from the opposite parties thereby the opposite parties usurped the amount to the tune of Rs. 4,50,000/- from the complainant, hence, there was a deficiency in service on the part of the opposite parties. In such circumstances, the District Commission be pleased to grant the relief as mentioned in the complaint.
4. In the written statement, it was alleged that a cheque No. 496882 of Rs. 32,085/- dated 26.10.2012 was given to the complainant as per law. It is incorrect to say that the complainant is entitled to get the entire security
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deposits; there was neither any deficiency in service on the part of the opposite parties, nor they usurped any fees. It is further alleged that the provision of Consumer Protection Act, 1986 does not apply to the present case and the suit is not maintainable. As per the version of the opposite parties, the complainant has submitted their withdrawal application after two months from the date of start of session, therefore, after completing all the formalities, a cheque of the payable amount was given to the complainant.
5. After hearing both the parties and after taking into consideration the material available on record, learned District Forum / Commission passed the impugned judgment and order dated 07.09.2016, whereby it is held as under:-
"ifjoknh }kjk ;ksftr ;g ifjokn foi{kh laLFkku ds fo:) Qhl fjQ.M vadu cRrhl gtkj fipklh :i;s rFkk gtkZ&en esa rhl gtkj :i;s fnykus gsrq Lohdkj fd;k tkrk gSA /kujkf"k dh vnk;xh 30 fnu ds vUnj lqfuf"pr dh tk;A
;fn fufnZ'V vof/k esa /kujkf"k dk Hkqxrku ugha fd;k tkrk gS rks ifjoknh] mijksDr leLr /kujkf"k ij fu.kZ; dh frfFk ls olwyh rd 8% okf'kZd C;kt Hkh ikus dk ik= gksxkA"
6. On having been aggrieved by the aforesaid order of the District Commission, the appellant (opposite party) has preferred the present appeal No. 201 of 2016, contending that the District Commission erred in
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considering this fact that the present complaint was not maintainable, because the complainant does not lie within the definition of 'consumer' as defined in the Consumer Protection Act, 1986, which was also upheld by the Hon'ble National Commission in :-
a) Global Engineering College, Jabalpur & Ors., III
(20160 CPJ 230 (NC)
b) Regional Institute of Cooperative Management Vs. Naveen Kumar Chaudhary, (2014) 3 CPR
(NC) 152.
and the District Commission has not given the reason why the aforesaid law was not applicable to the present case. It is further averred that the amount due of Rs. 32,085/- towards refund of fees of the complainant was already paid by the opposite parties - appellant, through cheque which was an admitted case of the complainant; if the complainant failed to get the said cheque encashed, then the negligence is of the complainant and not of the opposite party. It is further pleaded in the appeal that the appellant is appropriate in paying the Rs. 32,085/- to the complainant and they have not committed any deficiency in service on their end. It is further averred that the District Commission failed to state under which provision of law the District Commission directed the appellant to make an additional payment of Rs. 30,000/- to the complainant, when it was apparent that the amount of Rs. 32,085/- have also been paid by the school was appropriate and they have not committed any deficiency in service, hence, the finding of the District Commission is not based upon the
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evidence and law. Therefore, the Commission be pleased to set aside the impugned judgment and the complaint should be dismissed.
7. In the appeal No. 209 of 2016, the appellant - complainant have averred that the amount to the tune of Rs. 4,50,000/- as security amount alongwith interest @ 12% per annum be awarded in favour of the appellant- complainant. It is further averred that the appellant had deposited Rs. 1,81,853/- and Rs. 2,91,370/- at different dates in the account of opposite parties. It is further averred that the opposite parties did not pay the security money etc. till the date of four months and they avoided to pay the same to the appellant - complainant. The act of not paying the security amount and other amount of fees as refund to the appellant - complainant has caused the physical, mental pain and agony to the appellant. The order of the District Commission is not appropriate; the appellate Commission be pleased to direct the opposite parties to refund the fees of Rs. 4,50,000/- alongwith interest @ 12% per annum.
8. We have heard both sides and perused the record available before us.
9. Hon'ble National Commission in its judgment dated 17.12.2017 rendered in Revision Petition No. 3144 of 2016; Krishan Mohan Goyal Vs. St. Mary's Academy and another, has discussed the law laid down by Hon'ble Apex Court in Maharshi Dayanand University Vs. Surjeet Kaur reported in (2010) 11 SCC 159, in which it has been laid down by Hon'ble Apex Court that a student is neither a consumer, nor the University is rendering any service, relying on the decision given in the case of Bihar
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School Examination Board (supra). Relevant portion of the said decision is reproduced below:
"The respondent as a student is neither a consumer nor is the appellant rendering any service. The claim of the respondent to award B.Ed. degree was almost in the nature of a relief praying for a direction to the appellant to act contrary to its own rules. The National Commission, in our opinion, with the utmost respect to the reasoning given therein did not take into consideration the aforesaid aspect of the matter and thus, arrived at a wrong conclusion. The case decided by this Court in Bihar School Examination Board (supra) clearly lays down the law in this regard with which we find ourselves in full agreement with. Accordingly, the entire exercise of entertaining the complaint by the District Forum and the award of relief which has been approved by the National Commission do not conform to law and we, therefore, set aside the same."
10. Hon'ble Apex Court in Civil Appeal No. 17802 of 2017; Anupama College of Engineering Vs. Gulshan Kumar and others, decided on 30.10.2017, has held that in view of the judgment of this Court in Maharshi Dayanand University (supra), wherein this Court placing reliance on all earlier judgments, has categorically held that educational institutions are not providing any kind of service, therefore, in matter of admission, fees
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etc., there cannot be a question of deficiency in service and such matter cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
11. Hon'ble National Commission in its latest judgment rendered in the case of Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others Vs. Sujay Ghose
reported in III (2022) CPJ 6 (NC), has specifically held that the Educational Institute does not fall within purview of Consumer Protection Act, 1986, as it is not rendering any services. While coming to the above conclusion, Hon'ble National Commission has relied upon a decision of Larger Bench of three Members of Hon'ble National Commission in the case of Manu Solanki and others Vs. Vinayak Mission University and other connected cases reported in I (2020) CPJ 210 (NC), wherein the Larger Bench has held that educational matters do not come within the purview of the Consumer Protection Act, 1986 and, therefore, the complaint is not maintainable.
12. Considering the aforesaid facts and circumstances of this case as well as the law laid down in the case of Bihar School Examination Board (supra); Maharshi Dayanand University (supra); Anupama College of Engineering (supra) and Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others (supra), it is crystal clear that the appellant No. 1 - Educational Institute is neither "service provider", nor the respondent - complainant being a student is a
"consumer". Accordingly, we are of the view that the matter in question cannot be brought before the Consumer Fora.
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13. In the appeal No. 201 of 2016, the appellant has conceded in para Nos. 4 and 5 that the amount due of Rs. 32,085/- towards refund of the fees of the complainant was already paid by the opposite parties through cheque and if the complainant failed to get the said cheque encashed, then negligence is on the part of the complainant and not on the part of the opposite parties.
14. The above pleas have clearly shown that the cheque sent by the opposite parties was not encashed, hence in such circumstances it is directed to the complainant to send the cheque to the institution to reissue it in favour of the complainant. The school is also directed to reissue the cheque on receipt of the above old cheque at the earliest.
15. In the light of the above cited case laws, we are of the considered opinion that the impugned judgment and order passed by the District Commission suffers from material illegality, infirmity and the same is erroneous. Therefore, we inclined to interfere with the impugned judgment, hence the appeal No. 201 of 2016 filed by the Unison World School deserves to be allowed; impugned judgment and order passed by learned District Commission is liable to be set aside. No order as to costs.
16. As the complainant (appellant in Appeal No. 209 of 2016) being a student, is not a consumer and the impugned judgment is set aside as hereinbefore held, hence, in such circumstances, the reliefs sought in the appeal No. 209 of 2016 cannot be granted to the complainant - appellant. Therefore, this appeal is also liable to be dismissed. No order as to costs.
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17. Accordingly, the appeal No. 201 of 2016 is hereby allowed and the appeal No. 209 of 2016 is dismissed. Impugned judgment and order passed by the District Commission is set aside. The complaint shall stand as dismissed. No order as to costs.
18. Statutory amount deposited, if any, by the appellant in First Appeal No. 201 of 2016 be returned to the appellant.
19. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The record of the District Commission be returned to the concerned District Commission alongwith copy of this judgment for record and necessary information.
20. File be consigned to record room along with a copy of this Order.
21. A copy of the Judgment be kept in the appeal No. 209 of 2016.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member
Pronounced on: 09.11.2022
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