Gurcharan Singh Saran, Presiding Judicial Member:
1. The complainant has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (inshort CP Act) on the allegations that during the year 2005-2006 she got admission in B.A. 1st Year with OP No. 2 under the control of OP No. 1 and passed B.A. 1styear under Roll No. 53655 and certificate No. 734409 was issued on 27.6.2006 and then she took admissionin B.A. IInd year in the Academic Year 2006-07 with OP No. 2 and accordingly, she appeared in B.A. IInd year and passed that class underUniversity Roll No. 235288 and then she got admission in B.A. IIIrd year in the academic year 2007-08 and deposited there quired admission fee. However, the Result Section issued slip in which her result reveals R.L. but the official had written her marks in B.A. IInd year as 425/800 and result passed and when she visited the opposite party to get the original details marks sheet of B.A. IInd year then their official name, Pushpa Rani demanded the original mark sheet of B.A. 1st year and she handed over the mark sheet to the concerned official. Then the said official issued another mark sheet and he destroyed the original. When the official issued another mark sheet dated 31.10.2006 in place of the original mark sheet in which the complainant declared compartment case then father of the complainant addressed registered letter dated 24.7.2007 to the opposite party to issue the detailed marks sheets of B.A. 1 and 2 year. However, no response was received from them, in this way, the Ops have spoiled her bright career. The complainant was of marriageable age and her marriage schedule also broken down. Then she issued legal notice through her counsel dated 24.12.2008 and its reply was given by OP No. 1 after long period i.e. 2.2.2009, in this way the Ops are deficient in their services and demanded Rs. 25lacs as harassment, mental agony etc. alongwith litigation expenses.
2. The complaint was contested by Op No.1 only whereas OP No. 2 was ex-parte. OP No. 1 in its written statement have taken the preliminary objections that the complaint filed by the complainant is not maintainable as the complainant is not consumer as defined under the Act because OP is not service provider under the Act and is discharging statutory functions under the GNDU Act, 1969 and a reference has been made to œBihar School Examination Board Vs. Suresh Prasad Sinha?; the complainant was student of OP No. 2, who charged fee and OP No. 1 has been impleaded wrongly and the complaint is bad for mis-joinder of parties; the complainant has concealed the material facts and the complaint is liable to be dismissed on that ground; the complainant got admission in TDC-1 in S.D.A.M. College, Dinanagar in April, 2006 and she appeared in TDC-I Examination under Roll No. 53655 and her result was declared as pass. Consequently, DMC was sent to the College.However, immediately, thereafter it was found that there was some error by the De-Coder with regard to the result of Roll Nos. 53655 to 53658 i.e. the result of the affected candidates including the complainant was revised as per the order of the Deputy Registrar (Examination-II) in which she was shown as compartment English in placeof pass and thereafter College was informed about revision of the result and she was requested to give the already issued D.M.C. so that fresh DMC may be issued. However, the DMCs of the affected candidates were not received from the College. However, the University had corrected the official record and accordingly, the result of B.A. IInd year was declared as RL. The complainant visited the University and was informed about the factual position of the case. When she was asked to return her B.A. Ist year DMC and she submitted the same, fresh DMC as showing compartment in English was issued to her and previous DMC was destroyed. Consequently, the complainant appeared twice in the exam to clear her compartment in English under Roll No. 700173/ September 2007 and Roll No. 100030 in April, 2008 but could not clear compartment, therefore, she has concealed the material fact from the Honble Court; there was no cause of action to the complainant to file the complaint; the complaint has not filed against the University in its legal entity. On merits, the same pleas as taken in the preliminary objections were reiterated and ultimately, it was submitted that there is no meritin the complaint and the same be dismissed.
3. Replication was filed in which the allegations as stated in the written statements were denied and in the complaint were reiterated.
4. The parties were given time to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence her affidavit Ex. CA, details marks card of BA Part I Ex. C-1, receipts Ex. C-2 to C-4, result for BA Part-2 Ex. C-5, DMC of BA Part-I Ex. C-6, letter dt. 24.7. Ex. C-7, postal receipt Ex. C-8, legal notice Ex. C-9, postal receipts Ex. C-10, reply to legal notice Ex. C-11. OP No. 1 exhibited letter dt. 6.11.06 Ex. R-1/1, letter dt. 3.8.07 Ex. R-1/2.
6. We have gone through the allegations in the complaint and written reply submitted by OP No. 1, evidence and documents on the record.
7. The first question is whether the complainant is a consumer qua the OP as per the preliminary objections raised by the counsel for OP No. 1. Counsel for OP No. 1 has referred to the judgments of the Honble Supreme Court in œBihar School Examination Board Vs. Suresh Prasad Sinha? JT 2009(11) SC 541: 2010 (1) CLT 255 (SC), observed that œthe Education Boards and Universities are not Service Provider and the complaints against them are not maintainable. In œMaharshi Dayanand University v. Surjeet Kaur?, 2010(2) CPC 696 S.C. it was observed afterrelying upon all earlier judgments that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986. The Honble Apex Court in its latest judgment œP.T. Koshy and Anr. v. Ellen Charitable Trust and Ors.?, 2012(3) C.P.C. 615 (S.C.) has followed the above views.
8. However, the counsel for the complainant was unable to contradict these judgments, therefore, the complainant has failed to convince before us how he is consumer qua the OP in view of the judgments referred above.
9. In case the complainant is not a Consumer and the Ops is not Service Provider then there is no necessity to deal the case of the parties on merits.
10. In view of the above discussion, the complaint filed by the complainant is hereby dismissed for want of jurisdiction. However, the complainant will be at liberty to raise her grievance before an appropriate Forum/Authority, if so advise.
11. The period spent while pursuing the complaint before this Commission is excluded for the purpose of limitation as per the law laid down by the Honble Supreme Court in case œTrai Foods Ltd. v. National Insurance Co. and others?, (2004) 13 SCC 656.
12. The arguments in this consumer complaint were heard on 26.2.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
13. The Consumer Complaint could not be decided within the statutory period due to heavy pendency of Court cases.