D.A.V.INSTITUTE OF PHYSIOTHERAPY vs NAVLEEN KAUR

VIDE this order five appeals i.e. Appeal No. 952 of 1996 D.A.V. Institute of Physiotherapy v. Miss Navleen Kaur & Ors., Appeal No. 953 of 1996 - D.A.V. Institute of Physiotherapy v. Miss Kavita Kaushal & Ors., Appeal No. 954 of 1996, D.A.V. Institute of Physiotherapy v. Miss Chetna Arora & Ors., Appeal No. 955 of 1996, D.A.V. Institute of Physiotherapy v. Samir Sehdev & Ors., and Appeal No. 939 of 1996, Miss Chetna Arora & Others v. D.A.V. Institute of Physiotherapy and Ors., challenging order of District Forum, Jalandhar dated 18.10.1996 are being disposed of. Four complaints i.e. Complaint No. 200 of 1995, Miss Chetna Arora & Anr. v. D.A.V. Institute of Physiotherapy & Anr., Complaint No. 655/201 of 1995, Miss Kavita Kaushal & Anr. v. D.A. V. Institute of Physiotherapy & Anr., Complaint No. 202 of 1995, Samir Sehdev & Anr. v. D.A.V. Institute of Physiotherapy & Anr., and Complaint No. 249 of 1995, Miss Navleen Kaur & Anr. v. D.A.V. Institute of Physiotherapy & Anr., had been decided by one common order under challenge by the District Forum, Jalandhar. Learned Counsel appearing for the parties have stated that the appeals before this Commission can also be disposed by one order as the same points of law and facts are involved in all the cases.

THE facts in representative capacity may be noticed from Complaint No. 249 of 1996 and Appeal No. 952 of 1996 arising out of the said complaint. The complainants Miss Navleen Kaur and others approached the District Forum by stating that the opposite parties have established D.A.V. Institute of Physiotherapy at Jalandhar from the year 1994 for introducing Diploma in Physiotherapy course of 3 years plus three months internship. For admission in the said diploma in Physiotherapy a number of advertisements were issued in various newspapers all over India by the opposite parties and to demonstrate that the advertisements published in the Hindustan Times on 21.7.1994 and 30.7.1994 have been annexed as Annexures C-l and C-2 wherein it is mentioned that the D.A.V. Institute of Physiotherapy is approved by Indian Association of Physiotherapists (in short IAP) and the syllabus and Curriculum is as per International standard of Physiotherapy and it was stated that application on prescribed form for admission in diploma in Physiotherapy from the candidates obtaining minimum 45% marks in 10+1 (Medical) would be received upto August 10, 1994 by 4 p.m. Prospectus alongwith admission form can be had from the office of the Institute on payment of Rs. 100/- or by sending Rs. 120/- by Bank Draft only, if required by post in favour of Director, D.A.V. Institute of Physiotherapy, Jalandhar. The complainants purchased the prospectus and application form Annexure C-3 for Rs. 100/- for admission in the Diploma in Physiotherapy for session/academic year 1994-95. In the prospectus, it was inter alia mentioned that the course is recognised by I.A.P., an All India body recognised by the Government of India and the Curriculam and Syllabus is as prescribed by the I.A.P. and conforming to International standard of Physiotherapy. Examination will be conducted by the faculty constituted by I.A.P. The complainants deposited Rs. 200/- for Entrance Test and the same was held on 14.8.1994 for admission in the session/ academic year 1994-95 followed by interview on 15.8.1994 and they being successful were granted the admission.

In the prospectus Annexure C-3, the fee structure was not mentioned and on the asking of the opposite parties they deposited the requisite fee and it has been stated that the complainants deposited Rs 10,000/- vide receipt No. 4 dated 18.8.1994 Annexure C-4, Rs. 9,000/- vide receipt No. 22 dated 1.9.1994 Annexure C- 5, Rs. 9,000/- vide receipt No. 23 dated 1.9.1994 Annexure C-6 and Rs. 7,000/- vide receipt No. 26 dated 2.9.1994 Annexure C-7. The opposite parties pronounced that the fee of Rs. 35,000/- is for 1 years and thereafter for each next year they will be required to pay fee of Rs. 10,000/-.

AFTER the start of the course, it was revealed to the students/complainants that none of the doctors, as shown in the prospectus was visiting the hospital nor the students were being sent to any of the hospitals/nursing homes for any practical training. The students became apprehensive. The 33rd Annual Conference of the Indian Association of Physiotherapists was held at Chandigarh on February 18-20, 1995 at Post Graduate Institute of Medical Education and Research, Chandigarh and a Souvenir, PGIMER, Chandigarh was issued, specimen of the same has been placed at Annexure P-8, wherein list of schools of Physiotherapy recognised by I.A.P. was given and also given was the list of schools who have been granted provisional recognition by the I.A.P. It became clear that the opposite parties have neither been recognised by I.A.P. nor even the provisional recognition has been granted to the Institute. Objections were raised in February, 1995 by the complainants to the opposite parties alongwith other students and they were subjected to all sorts of insinuations, humiliations / accusations / insults and abuses. Thereafter, the parents of the students formed an association known as Physiotherapy Students Parents Association. Some of the correspondence made by the I.A.P. to the opposite party No. 1 and from the opposite party No. 2 to Guru Nanak Dev University, Amritsar and from the opposite party to Secretary of the parents of the wards. The letter from the opposite party to Executive President of the Physiotherapy Students Parents Association have been placed on the record as Annexures C-9 to C-13. Alleging deficiency in rendering service the present complaint was filed.

ON notice being served by the District Forum, the opposite parties filed their written version inter alia asserting that it was only a diploma course and for that purpose the Institute is not required to be affiliated or to obtain any sanction from any authority. I.A.P. is a voluntary association of Physiotherapy. It is not a statutory body nor have any control over the Physiotherapy. It is a body formed by Physiotherapy to regulate their own functions, Inspite of this fact, the diploma is to be conducted by an autonomous body still the application was moved to the I.A.P. and having granted provisional membership the students were selected. Twenty Students were selected. Two of them left to join other course and all other except the complainants who are four in numbers are continuing studying in the institution. The institution is fully equipped with all equipments required for imparting education for diploma course in Physiotherapy. It is asserted that it is a sole institution in the entire Northern India, who has taken up the Physiotherapy course. The opposite party is well known institution of education and is imparting education to the students in India. Students were told that the diploma course is being started and to start diploma course, it is not essential that the institution must be recognised. In the first year only basic education is to be given and in the subsequent year the practical education is to be given by the recognised doctors. The classes were regularly held. It is only few students who left the institution with an excuse only to get their fees back. It was further submitted in the written statement that education institution is not rendering service for earning but imparting education. The complainants had filed the rejoinder controverting the assertion made in the written statement and reiterating the averments made in the complaint. ON opportunity being granted the complainants filed affidavit of complainant Miss Navleen Kaur supporting the averments made in the complaint and referred to the documents Annexures C-l to C-13. The opposite party filed the affidavit of Sh. Sushil Vij, Principal, D.A.V. Institute supporting the assertion made in the written statement but did not adduce any documents. After hearing Counsel for the parties, the District Forum passed the order under challenge accepting the complaints and directed the opposite parties to refund the amount of fee etc. charged from the complainants and further directed to pay compensation of Rs. one lac to each of complainant and the costs of litigation fixed at Rs. 1,000/- was also directed to be paid by the opposite parties to each of the complainants. It was directed that opposite parties will comply with all the directions within one month on receipt of copy of the order failing which interest will start accruing @ 18% per annum from the date of order itself on the amount remained unpaid till the date of realisation. Purturbed by the order of District Forum, the opposite parties have filed aforesaid four appeals before this Commission and agitated with the less compensation awarded all the complainants in the four complaints before the District Forum have filed one appeal before this Commission. To begin with, objection was raised regarding the filing of one appeal by the complainants against the order passed in four complaints. To neutralize the objection, the learned Counsel for the complainants urged that as all the four complaints have been decided by the District Forum by one order and hence one appeal before this Commission is sufficient. We have expressed our inability to accept the contention of learned Counsel for the complainants regarding the maintainability of one appeal out of the four complaints. Four separate complaints had been filed before the District Forum. As per the mosaic and scheme of the Consumer Protection Act, 1986 and the Consumer Protection (Punjab) Rules, 1987 framed under the Act, each complaint is required to be disposed of. In every complaint order of the District Forum has to be communicated to the parties free of charge. ''An appeal'' arises out of ''a complaint''. For convenience sake the Consumer FORA may decide a number of complaints by one and the same order. The same order is required to be placed in each of the case file of each complaint. Hence, it cannot be accepted that one appeal is enough in more than one complaint. On the opportunity being granted the learned Counsel for the complainant stated that the present appeal be considered against the order arisen out of Complaint No. 200 of 1995 "Ms. Chetna Arora v. D.A.V. Institute".

THE four appeals filed by the opposite parties are taken first for disposal on merits. Opening the arguments, Sh. Ramesh Kumar, learned Counsel for the opposite parties has argued that the appellant-opposite party is an education institution and the students qua an education institution are not consumer and hence the complaint before the District Forum under the Act was not maintainable in law. So far as this Commission is concerned, the point is not res- integra. In Appeal No. 1008 at 1996 decided on 23.10.1997 "Indira Gandhi Open University v. Surinder Pal Ahir" we have held ''that at the time of conducting the study course the institution cannot be said not to have rendered the service to the students as defined under Section 2(1)(o) of the Act. THE case of the institution conducting the examination and conducting the course are poles apart. THE Supreme Court in AIR 1978 SC 548, Bangalore Water Supply and Sewerage Board v. A. Rajappa and Others, held that Education is an ''industry'' and ''pre-eminantly service''. Concomitently we do not find any modicum of merit in the contention of the learned Counsel that the institution conducting the study course is not rendering service as defined under the Act and the students qua an Education Institution are not consumer.

THEREAFTER it was contended by the learned Counsel that the institute runs diploma course for which there is no requirement of affiliation nor any sanction from any authority. It is further submitted by the learned Counsel that Guru Nanak Dev University has granted provisional affiliation to D.A.V. Institute of Physiotherapy, Jalandhar for starting diploma in Physiotherapy and has allowed about 30 students. By referring to letter Annexure PI produced alongwith the Memo of Appeal the Counsel contended that the admission to the institution was under pending approval of I.A.P. and candidates were told in this respect by the Members of the Selection Committee. Allegations and counter allegations have been made regarding the authenticity of the letter filed for the first time before this Commission stating that the students had been told by the Members of the Selection Committee that admission to the institution is pending approval by I.A.P. We need not go into the authenticity of the letter. It has not been disputed that the said letter does not find mention in the written statement filed before the District Forum nor the reference of the same find mention in the affidavit of the Principal, Dr. Vij filed by the opposite party before the District Forum. Otherwise also the letter, for the reasons hereinafter stated cannot advance the case of the opposite parties in any manner.

The stand of the opposite party that for running diploma course in Physiotherapy no approval of I.A.P. is required is devoid of merit and cannot improve the case of the opposite party in the face of advertisement-Annexures C1 and C-2 and the Prospectus Annexure C-3 wherein as stated above, it has been categorically mentioned that the Institute is approved by Indian Institute of Physiotherapy and further I.A.P. is an All India body recognized by Government of India and the curriculum and syllabus is as prescribed by the I.A.P. and International standard of Physiotherapy. Examination will be conducted by faculty constituted by I.A.P.

CONTRADICTORY stand taken in the advertisement - Annexures C-l, C-2 and Prospectus Annexure C-3 and the written statement and in the letter filed before this Commission has made the case of the opposite parties ridiculous one and much is not required to be stated in this respect. Be it may, it cannot be denied by the representation made in the advertisements Annexures C-1 & C-2 and Prospectus C-3 the students might have been swayed that the Institute is recognised and approved by the Indian Association of Physiotherapy and on that account alone they might have sought the admission with Institute. It had not been denied that throughout the year 1994-95 the institute had not been able to get sanction/approval from the I.A.P. or from any University. The students cannot be compelled and expected to continue their studies for an indefinite period in an unrecognised and unapproved institution. The contention that most of the students have continued their studies in institute cannot adversely affect the case of the complainants/students. We are in agreement with the District Forum that some of the students out of helplessness may have opted to continue their study but it cannot justify the stand taken by the opposite party that the students have left their studies of their own free Will and the opposite parties were not found deficient in any manner. The prudent parents would be concerned about the career of his/her ward and they certainly must have been very happy to find an avenue with the opposite party wherefrom they could expect that their children would turn out as qualified professional and would be in a position to stand on their own feets. Consequently they must have been felt upset when they discovered that the institution is not recognised one. Close to the case is the decision of the Hon''ble National Commission, New Delhi in "Akhil Bhartiya Grahak Punch v. Secretary, Sharada Bhavan Education Society & Ors."1986- 95 NS 579. The facts referred above established clearly that there was unfair trade practice as well as deficiency in rendering service on the part of the opposite parties towards the complainants/students who were deliberately admitted to the course/despite the fact that the Institute is neither recognised nor approved. A legislation which is enacted to protect public interests from undesirable activities cannot be construed in such a manner as to frustrate its objective. Public authorities acting oppressively are accountable for their behaviour. An Institution for that purpose, even an education institution acting maliciously or oppressively or arbitrarily and capriciously cannot he allowed and the Consumer FORA cannot afford to become silent spectator.

THE complainants had asked for the award of compensation because of non- employment, mental torture and deposited fee etc. THEre is no gain-saying that nothing is as precious as time. THE students have suffered one year of their career. Nevertheless compensation granted by the Consumer Forum cannot be booty. On the question of damages, the complainants have not adduced any material showing the exact extent of loss suffered by them. But even in such a case when it is absolutely clear that the tangible loss must have resulted to the complainants, it is only just and proper that the Redressal Forums constituted under the Act must quantify to the best of their judgments the loss that can reasonably be estimated. THE compensation is a term of very wide connotation. It is not defined in the Act. According to dictionary, it means ''compensating or being compensated; thing given as recompense''. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering insult or injury or loss. THErefore, when the Consumer FORA has been vested with the jurisdiction to award value of goods or services and the compensation for the negligent act, it has to be construed widely enabling the FORA to determine the compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. THE provision in our opinion enables a consumer to claim and empowers the Consumer FORA to redress any injustice done to him. Any other construction would defeat the very purpose of the Act. In our view, in the present case, in the absence of the cogent material adduced by the students the amount of Rs. one lac granted by way of compensation to each of the students is on the higher side. In the case of ''Akhil Bhartiya Panchyat'' (supra), the National Commission has also held that the compensation claimed by the complainant is, on the face of it, excessive, nigh and high. On account of loss of two years to the students of diploma course in Pharmacy, the National Commission allowed a compensation of Rs. 10,000/-. In addition of Rs. 10,000/- a sum of Rs. 2,000/- as costs to each of the complainants and sum of Rs. 3,000/- as costs to the Consumer Association-Akhil Bhartiya Grahak Panchyat was allowed. For the loss of one year, compensation of Rs. 10,000/- to each of the students was awarded in AIR 1997 M.P. 235, Sandeep Singh Sangar and Another v. State of Madhya Pradesh and Others. We also feel that the ends of justice would be properly met out by the grant of compensation of Rs. 10,000/- to each of the complainant. Consequently, we set aside the orders of the District Forum granting a compensation of Rs. 1,00,000/- to each of the complainants/students. However, it may be made clear that the opposite parties-Institution is not entitled to retain even a single penny charged from the complainants/students under any head. For that purpose, we direct the opposite party-Institution to refund the whole of the amount charged under any head from the complainants and in addition to this pay compensation of Rs. 10,000/- to each of the complainants/students with costs of Rs.1,000/- to each of the complainants/students as awarded by the District Forum. The complainants/ students would also be entitled to the interest @ 18% per annum on the amount deposited by them with the Institute from the date of deposit till its payment.

BY quoting Section 14(1)(d) of the Act ,it has been suggested that the Consumer FORA can only award compensation to the consumers for the loss and injury suffered due to ''negligence'' of the opposite party. As observed above, malacious or oppressive or arbitrary or capricious act is to be frowned and that would amount to deficiency of service and would constitute negligence also. The admission granted in the reckless and careless manner to an unapproved and unrecognized institution would constitute the gross and patent negligence. For comprehending the word ''negligence'' the following beacon light for interpretation of the statute provided by the Supreme Court of India in the case of "Vanguard Fire and General Insurance Co. v. Frnser & Ross AIR 1960 SC 971, is to be followed : "... The Court has not only to look at the words but also at the context, the collocation and the object of such words and interpret the meaning intended to be conveyed by the use of the words under the circumstances".

Right to education has been construed as a facet of right to life and flowing from right to life guaranteed under Article 21 of Constitution of India and a fundamental right. Reference may be made to Supreme Court of India in "Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi" (1991) 2 SCC 716, (1991 (2) SLR-682) and "J.P. Unni Krishanan v. State of A.P." (1993) 1 SCC 645, (AIR 1993 SC 2178).

CONSUMER FORAs are the ''parens patriae'' of the rights of the consumers enshrined and postulated under the Act. Justice is an attribute of human conduct. Law, as a social engineering, is to remedy existing imbalances, as a vehicle to establish an egalitarian social order in a Socialist Secular Republic. The Upanishad says that, "Let all be happy and healthy, let all be blessed with happiness and let none be unhappy". Preamble of the Constitution of India directs the centres of power : "Legislature, Executive and Judiciary - to strive to set up from a wholly Tendal exploited slave society to a vibrant, throbbing socialist welfare society under rule of law though it is a long march, but during the journey to the fulfilment of goal every State action including interpretation whenever taken, must be directed and must be so interpreted as to take the society towards establishing egalitarian socialist State, the goal. Mahatma Gandhiji, the father of the Nation, in ''Harijans'' dated October 9,1937 had stated that "true economics never militates against the highest ethical standard, just as all true ethics to be worth its name must at the same time be also good economics. An economics that inculcates Mammon worship and enables the strong to amass wealth at the expense of the weak, is a false and dismal science. It spells death. True economies, on the other hand, stands for social justice it promotes the good of all equally, including the weakest and is indispensable for decent life".

For the reasons recorded above, four appeals (Nos. 952 to 955 of 1966) filed by the opposite party are allowed in the terms indicated above and the Appeal No. 939 of 1996 filed by the complainants/students for the enhancement of compensation is dismissed and the order of the District Forum is modified in the terms so stated above.

NO order as to costs, so far as the present appeals are concerned. It may be observed that the learned Counsel for the Institute has sentimently and vehemently contended that the D.A.V. Institutions are rendering yeomen''s service to the nation in the field of education. There is no- doubt about this. It is not safe to bend the arms of law, only for the passion for the service rendered by the institute. Inspite of our high regards for the D.A.V. Institutions, we cannot put our seal of approval to the admissions granted to the complainants/students in the Institute, which at the time of admission was unrecognised and unapproved but was proclaimed to be recognised. It is quite possible that the institution might have granted the admission under some wrong impression. Before parting with the judgment, we may observe that after the judgment was dictated and before it was signed, we have received a letter from Dr. S.K. Vij of the Institute. The reading of the said letter between the lines also makes out that the institution was not granted recognition at the conduct of the admission in question and the approval granted takes place in a phased manner. Appeal allowed.