CO-ORDINATOR, INDIRA GANDHI NATIONAL OPEN UNIVERSITY MARGAO-GOA vs DEVEN A.VOLWAIKAR

THE appellants were the opposite parties in Complaint No. 8/94 on tine file of Consumer Disputes Redressal Forum, South Goa and being aggrieved by its direction to pay to the complainant by way of compensation of Rs. 5,000/- with cost, have preferred this appeal.

THE case put forward by the complainant before the District Forum is as hereunder : Indira Gandhi National Open University was established in the year, 1985 by an Act of Parliament for advancing and diseminate learning and knowledge by diverse means and also established the machinery for making this system viable by setting Study Centres at grass root level to cater to the students in vicinity of their location and and in the year, 1988 the complainant enrolled himself with opposite party No. I and his admission was confirmed by opposite party No. II and he was allotted the Study Centre at Margao-Goa. As per the terms and conditions of the syllabus and communications addressed to him from time to time and study materials and assignment were expected to be furnished to the complainant well in advance before answering the annual examination.

The complainant appeared and passed first year examination in October, 1989 and he answered second year exams partly in December, 1990 and partly in June, 1991 and when the 2nd year result was declared in August, 1991 it was revealed that he had already passed in the first year and due to oversight he had taken the same subject. He approached the concerned and he was orally advised to take another subject in place of EPS-01 and accordingly he took immediate steps to procure form by sending the letter to the concerned opposite parties but it had gone on deaf ear. At last he received the form on 25.9.1992 which paved the way to appear for that subject in June, 1993 and though he made repeated requests to send the assignments and study material in time, they were not sent and he received the same only after answering the annual examination of 2nd year in that subject and that it has resulted in loss of one year. Therefore, he sought for recovery of compensation of Rs. 25,000/- and Rs. 30,000/- towards mental agony.

THIS complaint was resisted by opposite parties and they pleaded that the complainant is not a consumer within the meaning of Consumer Protection Act and he cannot maintain the complaint before the Forum under the said Act and on that ground the complaint of the complainant is liable to be dismissed. They have also pleaded that the complainant has landed in such a situation on account of his own laches and not on account of fault or negligence on the part of opposite parties. Therefore, it has been urged that the complaint of the complainant should be thrown out. The District Forum after adverting to these contentions came to the conclusion that there was deficiency in service rendered by the opposite parties and therefore, he should be compensated by a sum of Rs. 5,000/- with cost. The District Forum upheld the contention of opposite parties that the complainant was not a consumer within the meaning of the same Act but nevertheless proceeded to award compensation.

THE first aspect to be examined is whether the complaint is maintainable before the District Forum for the alleged lapses of opposite parties and whether the awarded amount can be justified. The National Commission has held in the decision I (1994) CPJ 146 (NC) that a University while valuing the answer papers or undertaking the re-valuation of answer papers or the re- checking of marks awarded to a candidate at the instance of a candidate who had appeared for the examination is not performing a "service" which had been hired or availed of for consideration. In the decision II (1997) CPJ 49 (NC), Chairman, Board of Examination v. Mohideen Abdul Kader, the National Commission has held that a University or the Board in conducting public examination evaluating answer papers, announcing the results thereof and thereafter conducting re-checking of the marks of any candidate on the application made by the concerned candidate is not performing any service for hire and there is no arrangement of hiring of any service involved in such a situation as contemplated by the Act. A candidate who appears for the examination cannot be regarded as a person who had hired or availed of the services of the University or Board for consideration. There are a number of decisions of various other Commissions in our country to the same effect that while undertaking to conduct the examination and other work in relation to the same. University has not undertaken to render any services nor it could be said that the services have been hired for consideration. When the matter is covered by decision of National Commission, it is quite unnecessary for us to multiply these authorities in this regard. The two decisions of National Commission and some other decisions and other decisions of State Commissions cited before us are concerning the relationship of the students and University vis-a- vis conducting the examination. No other authority was cited before us relating to any other activities of the University vis-a-vis students but nevertheless we find that the same logic which applies in relation to University and Students pertaining to examination which had come before the consideration of National Commission would equally apply to the other activities in between the Students and University and if that be so, we find that even in relation to the matters agitated by the complainant before the District Forum, the University did not permit the complainant to appear for the other subject early and did not furnish him the said material at an early date cannot in our considered opinion be construed as deficiency in service within the meaning of said words as they occur in the Consumer Protection Act. If that be so even accepting the allegation made by the complainant against the University he cannot be construed an a consumer to enable him to file the complaint before the District Forum under the Consumer Protection Act. In that view of the matter the complaint ought to have been thrown out at the threshold. Even otherwise, it may be noticed that the situation in which the complainant landed was not on account of any fault of University. If he had answered the examination in a certain subject and taken the same for the next year also and later discovered the mistake, under such circumstances, it amounts to lapse on me part of the complainant and he cannot sustain the action for recovery of compensation because it may be noticed that University has to make arrangement regarding supply of material to one single student and having regard to the very nature of things, it will take some time. Therefore, there is no scope to sustain the award of compensation. In the result the award of compensation made by the District Forum is set aside and complaint shall stand dismissed. In the circumstances of the case we direct the parties to bear their own cost throughout. In the result the appeal is allowed. Appeal allowed. _______________