KULASACHIV vs Anil Kumar Sharma

THIS appeal has arisen from order dated 10.5.1995 passed by District Consumer Disputes Redressal Forum (for short District Forum), Shivpuri in Complaint Case No. 109/94. District Forum in their order has taken a view that appellant has committed deficiency in service in that after taking examination fees, they failed to deliver the result in time and when they did declare it after a lag, they did not communicate it by registered post. District Forum, therefore, ordered the appellant (University) to compensation of Rs. 1,000/- to respondent.

APPELLANT in their reply to District Forum as opposite party averred that complainant (respondent No. 1 in this appeal) was not a consumer as per definition in the Consumer Protection Act, 1986 and hence District Forum had no jurisdiction to adjudicate in this case. APPELLANT has reiterated to adjudicate in this case. APPELLANT has reiterated the above point in his appeal and has prayed for setting aside the order of District Forum on grounds of it being illegal. We have heard both the parties and we have also perused record of the case. It is not disputed that declaration of result was delayed because of error in the computer due to which tabulation could not be done properly. However, the main point in the appeal before us as well as in District Forum was that whether the complainant, now respondent No. 1 in this appeal, was a consumer as defined in Section 2(1)(d) of the Act. The question was considered by the National Commission in the case of Chairman, Board of Exam., Madras v. Mohideen Abdul Kader, II (1997) CPJ 49 (NC)=1986-96 CONSUMER 1911. The National Commission after referring to the definition of consumer in Section 2(1)(d) observed in paras 12, 15 and 17 was thus : 12. The question whether a candidate for examination in the University of Rajasthan is a consumer intended to be covered under the provisions of the Act came up for consideration before the Rajasthan State Commission in "Kumari Seema Bhatia v. Registrar Rajasthan University" II (1992) CPJ 899 decided on 28.10.1991. Mr. Justice S.K.M. Lodha, President of the State Commission with the concurrence of other Members referred to in detail to the establishment of the University of Rajasthan under the University of Rajasthan Act, 1946 and to the various provisions of statutes and ordinances for conducting the examination and the detailed procedure for evaluation and re-evaluation of the answer books. It came to the conclusion that examination, evaluation of answer books, declaration of results and re- evaluation of answer books do not constitute service within the meaning of Section 2(1)(o) of the Act. Payment of the re-evaluation of answer books does not mean that the candidate has hired the service of the opposite party. Reliance was placed by the State Commission on the decision of this Commission in "Society for Civic Rights v. Union of India & Ors." 1986-1995 Consumer 760 (NS) that consumer must be one who has hired the service for consideration and to be a consumer the nexus of hiring of service must be established. So payment of the examination fee by the candidate for re- evaluation of the answer books to the University does not mean that the candidate has hired the services of the opposite party. Hire means payment by contract for the use of thing or for personal service, the engagement on these terms. The complaint in that case was dismissed on this limited ground. This is the earliest decision on the question to which we have come across. An appeal was filed before this Commission against the said order dated 28.10.1991 passed by the State Commission Rajasthan, being F.A. No. 133 of 1992 and disposed of by the order dated 12.4.1993 reading as follows : "The appellant is not present either in person or through authorised representative. We have gone through the records and heard the Counsel for the respondent. We are in complete agreement with the view expressed by the State Commission that in conducting the revaluation of the answer papers of a candidate who had appeared for an examination held by the respondent University, the respondent was not rendering any service as defined in the Act for consideration nor there was any arrangement of hiring of service for consideration as contemplated by the Act. Hence the approach made by the complainant to the State Commission seeking relief under the Consumer Protection Act was totally misconceived. The dismissal of the complaint petition by the State Commission on the said ground was absolutely correct. We confirm the order of the State Commission and dismiss this appeal. No costs."

The question again came up for consideration before this Commission in "Joint Secretary, Gujarat Secondary Education Board v. Bharat Narottam Thakkar" decided on 29.9.1993, I (1994) CPJ 187 (NC) when it was reiterated that in conducting the Secondary School Board Examination, evaluating answer papers, announcing the results thereof and thereafter conducting a re-checking of the marks of any candidate on application made by the concerned candidate, the Board is not performing any service for hire and there is no arrangement of hiring of service involved in such a situation as it contemplated by Section 2(1)(o) of the Act. The complainant in that case was not therefore a consumer and no relief should have been granted in his favour as against the Board of Secondary Education on the ground put forward by the candidate that there was delay in conducting the re- checking of the marks. The same view was reiterated in "Registrar, University of Bombay v. Mumbai Grahak Panchayat, Bombay" I (1994) CPJ 146 (NC)=1986-1995 CONSUMER 294 (NS). This view was followed by the Maharashtra State Commission in "Maharashtra State Board of Secondary Education v. Chairman, Grahak Jagrutisangh" II (1994) CPJ 1, by Andhra Pradesh State Commission in the "Secretary, Board of Intermediate Education v. M. Suresh & Anr", II (1995) CPJ 167, Kerala State Commission in "PM. Noushand & Anr. v. University of Kerala & Ors., II (1995) CPJ 334 and by Delhi State Commission in "Ruchika Bhartia v. C.B.S.E. & Anr.", II (1995) CPJ 436 and in other cases. 17. We must make it clear that in this case or in the earlier cases this Commission did not consider the general question whether the imparting of education for consideration would come or not within the ambit of the service under the Act. Whether a University or an institution affiliated to it imparting education is within the arena of consumer jurisdiction is a question which this Commission will consider and decide when (sic) directly arises before it. What this Commission had decided in earlier cases is that a University or the Board in conducting public examination, evaluating answer papers, announcing the result thereof and thereafter conducting rechecking 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 Section 2(1)(o) of the Act. A candidate who appears for the examination cannot be regarded as a person who had hired or availed of the service of the University or Board for consideration.

From the above cited decision of 16.1.1996, it is clear that respondent in the present case was not a consumer as per definition of consumer in Consumer Protection Act, 1986. National Commission also did not approve the action of State Commission or District Forum to disregard the decision of National Commission, by applying to it label of perinceuriam. We are, therefore, of the opinion that there is considerable force in the argument of appellant and consequently decision of the District Forum needs to be set aside as illegal. 15. In result, the appeal succeeds and is allowed. Order dated 10.5.1995 of District Forum, Shivpuri is hereby set aside. No order as to costs. Appeal allowed.