KUMARI SEEMA BHATIA vs REGISTRAR, RAJASTHAN UNIVERSITY

KUMARI Seema Bhatia has filed this complaint under Section 12 read with Section 17(a)(i) of the Consumer Protection Act, 1986 ("the Act" herein) against the Registrar, Rajasthan, University, Jaipur on 25.4.1990 for the reliefs mentioned in the relief para whereby claiming a sum of Rs. 9,97,200/- from the opposite party. It has been alleged by the complainant that she appeared in Second Year (T.D.C. (Science) Examination from Lal Bahadur Shastri College, Jaipur held by the Rajasthan University. Her roll number was 13331 from 1989 examination. In the result she was declared eligible for supplementary examination. After the declaration of the result in accordance with the rules she submitted an application on 2.8.1989 after deposit Rs. 100/- for re-evaluation of the answer books of Chemistry II and III papers in which she is said to have obtained 6 and 9 marks respectively. For deposit of Rs. 100/- for the purpose of re-evaluation receipt No. 49425 was issued to her. As she was not shown the result of the re-evaluation she filled the supplementary examination form and deposited the fees. The supplementary examination was held in the second/third week of October, 1989. The results were declared in Nov./Dec, 1989 in which the complainant was declared successful. The complainant has stated that as the result of re-evaluation was not intimated to the complainant in time, she had to appear at the supplementary examination on account of which she had suffered mental torture and loss in studies of the Third Year. The result of the re-evaluation was conveyed to the complainant vide letter No. 10229-19 dated 16.2.1990 in which it was written that her marks in Chemistry III paper have been increased from 9 to 15 and she is declared pass. The case of the complainant is that as the result of the re-evaluation was conveyed after considerable delay, she had to appear at the supplementary examination for which she suffered mentally and could not study in the Third Year. The members of the family of the complainant were also put to harassment and so she is entitled to compensation. According to her the service rendered after declaration of result in respect of re-evaluation was deficient. She was claimed the following reliefs : ATAH PARIVADI NIMNA PRAKAR SE VAJIB MUAVAJA KI MANG KARTIHAI- (1) PRARTHI PARIVADI DWARA POORVAMULYANKAN KI FEES HETU 100/- RUPAYA WA SUPPLEMENTARY PARIKSHA KI FEES KE 100/- RUPAYA IS PRAKAR KUL 200/ RUPAYA AVAM SUPPLEMENTARY MAI GHOSHIT VISHYO KO PADNE HETU TUTOR PUR 3 MANH KA KHARCHA 6,000/- RUPAYE IS PRAKAR KUL 6,200/- RUPAYE KHARCH KI YE GAYE TO PARIVADI PRAPT KARNE KI ADHIKARI HAI.

(2) PRARTHI YA PARIVADI APNI TRITYA VARSH KI PADAI NIYAMIT ROOP SE NAH1 KAR PAAI AVAM USKE NUKSAN KO POORA KARNE KE LIYE 8 MANH TAK TUTOR RAKHNE PUR 16,000/- RUPAYE KHARCH KIYE GAYE ATAH PRARTHI YA UKT RASHI PRAPT KARNE KA ADHIKARI.

(3) PARIVADI KO MASIK UTPEEDAN KASHT WA KATHINAI SAHAN KARNIPADI HAI JISKA KHAMIYAJA MUDRA MEI VARNIT KARNA SAMBHAV NAHI HAI PARANTU PHIR BHI MERI STITHI ME PRARTHIYA 9,00,000/- (NAU LAKH RUPAYE) KI MANG KARTI HAI.

(4) PARIVADI KE SATH SATH PARIVADI KE PARIVARJANO KO BHI KAFT MANSIK UTPEEDNA WA KASHTA UTHANE PADE ISKI KSHTIPURTI HETU PARIVADI 75,000/- (PACHAHTAR HAZAR RUPAYE) KI MANG KARTI HAI. IS PRAKAR KUL 9,97,200/- (NAU LAKH SATYAVAN HAZAR DO SAU RUPAYE) PAVADI KO DILAYE JAVE.

WITH the complaint she submitted photo stat copies of Second Year TDC mark-sheet 1989, receipt for 100/- mark-sheet of supplementary examination letter dated 16.2.1990 from Assistant Registrarand re-evaluation mark-sheet of Second Year TDC. The opposite party Registrar, University of Rajasthan opposed the complaint. He raised certain preliminary objections about the maintainability of the complaint. It was pleaded that the complainant is not a consumer. The dispute raised is not a complaint as defined in Section 2(1)(c) of the Act. It was submitted that the University does not render any service as envisaged by Section 2(1)(o) of the Act. It was denied that there was any deficiency of service by the opposite party as alleged by the complaint. It was stated in the version of the case that though fee is charged for re-evaluation of answer books under the provisions of the Ordinance/rules yet the work of reevaluation, does not come within the meaning of "service". It was further pleaded that the complainant is not entitled to any compensation.

In the first instance notice was issued to the complainant to show cause as to why the complaint be not rejected as not maintainable under the Act. In pursuance of that Shri Manohar Bhatia appeared. After nearing him, we ordered for the issuance of the notice to the opposite party. The opposite party raised the objection of the maintainability of the complaint. We heard both the parties on 21.3.1991. It was ordered on 21.3.1991 that the order on the question of maintainability of the complaint is deferred and the question will be decided at the time of final decision of the complaint after trying it. The order on the question of the maintainability of the complaint until final decision was deferred.

A rejoinder was submitted on 6.4.1991 on behalf of the complainant without obtaining leave from the Commission. An affidavit of the complainant in support of the rejoinder was also submitted. No objection was filed on behalf of opposite party regarding taking of the affidavit on record. As parties have filed affidavits thereafter. It is taken on record. In support of the complaint Shri Manohar Bhatia father of the complainant and the complainant submitted their affidavits. On behalf of the opposite party affidavit of Shri Damodar Bhawan was submitted with photo stat copies of application for re-evaluation of answer books with rules and letter dated 21.8.1990 marked Ex. R. 1 and R. 2 respectively. An additional affidavit of Shri Damodar Bhawan after filing of the rejoinder was also submitted. We heard Shri Manohar Bhatia on behalf of the complainant and Mr. Punit Sharma, Advocate for Mr. A.K. Sharma appearing for the opposite party.

WE consider it proper to examine the question of the maintainability of the complaint first. WE may notice the definitions of the "complainant", "consumer", "consumer dispute", "deficiency" and "service" as contained in the Act. The complainant we have been defined in Section 2(1)(b) of the Act. It, inter alia means a consumer. Complaint has been defined in Section 2(1)(c) of the Act. It amongst others means any allegation in writing made by the complainant that the services mentioned in the complaint suffer from deficiency in any respect with a view to obtain any relief provided by or under the Act. The definition of consumer has been given in Section 2(1)(d) of the Act. The material part of which is as under:- "2(1)(d) "Consumer" means any person who,- (i) ... (ii) hires any services, for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of i.e. first mentioned person."

"Consumer dispute" means a dispute where the person against whom a complaint has been made denies or disputes the allegations contained in the complaint. "Deficiency" has been defined in Section 2 ((1)(g) of the Act. It is as follows:- "(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality nature, and manner of performance which is required to be maintained by or under any law for the time being in force or has been under, taken to be performed by a person in pursuance of a contract or otherwise in relation to any service." It is also necessary to consider definition of "service". It is as under: "(o) "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing supply of electrical, or other energy, board or lodging or both, entertainment amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

The case of the opposite party is that the complainant has not hired any service from the opposite party. Seema Bhatia while undergoing a course of study in the University of Rajasthan according to opposite party was not a "consumer" for the relationship between the complainant and the University of Rajasthan is neither covered nor intended to be covered under the provisions of the Act. It may be stated that the University of Rajasthan is an autonomous body. It was established under the University of Rajasthan Act, 1946. In Section 4 of the University of Rajasthan Act power has been given to it to hold examination and to confer degrees and other academic distinctions upon persons who have pursued a course of study in the University or its affiliated colleges or approved institutions and appear at and pass the examination of the University under conditions laid down in the Ordinances and Regulations. The University has power to do all such other acts incidental to the powers conferred by Section 4 of the University of Rajasthan Act, 1946 ("the Act of 1946") as may be requisite in order to further the objects of the University as an educational body. There are various authorities of the University, viz. the Senate, the Syndicate, the Academic Council, the faculties, the Board of Studies, the Board of Inspection etc. Section 29 of the Act of 1946 provides for the scope of Ordinances. Ordinance 157-A provides for the rules for re-evaluation of answer books. An objection has been raised that the complainant applied for re-evaluation under the provisions of the Ordinance 157-A rules and as there was no violation or breach of rules the complaint could not be filed by the complainant. In the alternative it was submitted that there was any violation of the provisions of the ordinance/ rules it cannot be made the subject-matter of dispute and adjudication under the provisions of the Act. Attention was drawn to the rules printed at the back of the re-evaluation form, providing that the candidate should proceed further treating their result as unchanged for all purposes until declaration of the result of re-evaluation of scripts. The grievance raised by the complainant is that there was delay on the part of the opposite party in informing the result of re-evaluation as a result of which the complainant had to appear in supplementary examination and she was deprived of Third Year TDC. It is significant to note that the Rules of Re-evaluation do not provide for any time limit for the declaration of the result of re-evaluation. Rules 10 and 11 reads as under:- "(10) A candidate who is declared eligible for Supplementary examination as a result of reevaluation shall be permitted to appear at the usual Supplementary examination or if the same is already over, at the time of next Main examination. Such a candidate will also be eligible to appear at the next higher examination as a non-collegiate candidate, if such facility exists for the examination concerned. (11) A candidate who becomes eligible to seek admission to the next higher class consequent upon the improvement of his/her result on revaluation in the middle of a session shall be considered eligible for admission to that class within 21 days from the date of communication of the re-evaluation result but not later than 31st December of the same session. In such cases the attendance shall be counted from the date of admission. Where the facility of appearing as a non-collegiate candidate is available, a candidate shall also be eligible to apply for permission to appear at an examination in that category within 21 days from the date of communication of the re-evaluation result."

An inference is sought to be drawn that reevaluation of answer books is a time consuming process and the University, is not under any legal obligation or duty to declare the result of reevaluation before the supplementary examination. It is submitted that the complainant appeared at the supplementary examination without a waiting the result of re-evaluation. She is her own accord appeared at the supplementary examination in the month of October 1989. The opposite party has detailed the procedure for re-evaluation of the answer books and the reasons for not sending the information about the re-evaluation earlier than it was actually sent, but that is not of much importance. The work of re-evaluation of answer books is not "service" though a certain amount of fees is charged for re-evaluation under the provisions of the ordinance/rules.

THE question is whether the complainant can be said to be a consumer and further that conducting of the examination and declaration of the result thereof after re-evaluation of the answer books the opposite party is said to have rendered deficient service when the re-evaluation fee is charged from the candidate who applies for reevaluation. Having considered the definition of service which is inclusive one also contained in Section 2(1)(o) of the Act, we are of opinion that examination, re-evaluation of answer books, declaration of result 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 fee by a candidate for the purpose of re-evaluation of answer books does not mean that the candidate has hired the service of the opposite party. It has been observed by the National Commission in Society for Civic Rights v. Union of India and others, reported in I (1991) CPJ 199 (NC)=1991 CSMR CAS 12. that consumer must be one who has hired a 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 had hired the service of the opposite party. Here means payment by contract for the use of thing or for personal service, the engagement on these terms. It is not necessary to notice the authorities bearing on the difference between "Tax" and "Fee".

IT may be mentioned that the opposite party has stated that according to Ordinance 169I the complainant is not entitled to claim any damages from the University on account of the alleged delay in the declaration of the result on the basis of re-evaluation of answer books. Ordinance 169-1 is as follows :- "No candidate shall be entitled to claim any damages whatsoever from the University on account of late declaration of the result or on account of delay in the issuing of mark-sheet/ certificate/degree/diploma or on account of delay in declaration of result on the basis of scrutiny of marks of re-evaluation of answer books or such other cases."

Having regard to the averments made in the complaint and after considering the above definitions given in the Act, we are of opinion that the complainant cannot invoke jurisdiction of the State Commission and as the complainant is not a consumer, she is not entitled to maintain the complaint. In these circumstances, it is not necessary to go into the merits of the complaint and we refrain ourselves from expressing any opinion on its merits.

The complaint shall, therefore, stand dismissed on the limited ground stated above. There will be no order as to costs. Complaint dismissed.