MINU NASRY vs T.A. PAUL

TWO questions of importance and great significance under the Consumer Law arise in this case as under: (1) Whether expulsion of a student from the teaching / training institute would amount to deficiency in rendering service. (2) If answer to the question aforesaid is affirmative, as to whether expulsion of a student from teaching/training institute would be a negligent act entitling the complainant to compensation.

ON merits, the complaint filed by Minu Nasry was dismissed by District Forum, Ferozepur on January 7, 1997 that she has challenged the aforesaid order in this appeal. She was 2nd year student of General Nursing in Francis Newton Hospital at her own expense. Her parents had paid a sum of Rs. 10,000/- in cash as tuition fee and Rs. 400/- per month to pay as hostel fee. The complainant was admitted to the Institution/Hospital on August 30, 1991. Apart from the aforesaid expenditure, the complainant had to spend about Rs. 20,000/- on her books and uniform etc. She was expelled from the Hospital by Smt. T.A. Paul, Nursing Superintendent and Dr. Richard David, Director of the Hospital on February 17, 1993. Both of them were impleaded as opposite parties Nos. 1 and 2 respectively. The parents of the complainant were asked to get the complainant migrated to some other institution. Since they did not agree, she was expelled from the Hospital. This action was challenged in the complaint filed before the District Forum, Ferozepur. The opposite parties submitted their version contesting the complaint, inter-alia, alleging that the complainant was not a consumer as defined under Consumer Protection Act and the complaint was not maintainable. It was also bad for non-joinder and mis-joinder of necessary parties. The allegations were vague and no relief could be granted. Admission of the complainant, in the school of nursing run by the management of Francis Newton Hospital, was admitted. It was stated that a sum of Rs. 5,000/- only was charged towards tuition fee annually. Rs. 400/ - per month was charged as mess charges for the food served. The complainant was asked to migrate for valid reasons given in the letter dated February 12, 1993(Annexure A).The complainant was warned and asked to improve her conduct repeatedly. A letter in this respect was communicated to the complainant on February 2,1993 (Annexure B). The complainant was not keeping desirable standard of general behaviour. Her ward work was below average. She was disobedient, discourteous and in disciplined. She could not be allowed in the educational institution of repute. The role of father of the complainant was also communicated as unbecoming and extremely discourteous. Since the management never wanted to spoil the career of the complainant, she was asked to get herself migrated. The matter of the expulsion was stated to be legal, valid and for reasons. The same was as per rules and by- laws of the institution. Both the parties produced their evidence and several documents. The District Forum held the order of expulsion having been passed for cogent reasons and the complaint was dismissed. Since admission of the complainant in the school of nursing run by the opposite parties was for consideration paid, although there is dispute with respect to the actual amount of tuition fee charged, present is a case of hiring services of the opposite parties for consideration and with the expulsion of the complainant under order of the opposite parties, there is break or stoppage of rendering of such services which could be termed as deficiency in rendering service, if the action was without any rhyme or reason. Simple stoppage or break in the rendering of the services may not amount to deficiency in rendering services. Deficiency has been defined under Section 2(g) of the Consumer Protection Act to mean any fault, imperfection, shortcoming or inadequacy in the nature and manner of performance which is required to be maintained by or under law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service." Viewing from the aforesaid definition, the facts of the present case are to be taken into consideration. Rendering of services by the teaching or training institute as is the opposite party hospital has to be subjected to certain norms on the part of the complainant. She has to adhere to the discipline of the institution and if complainant had failed to adhere to the same, action to expel her would be outside the scope of the deficiency as referred to above. After hearing Counsel for the complainant and going through the record, we confirm the finding of the District Forum on merits that the expulsion is for valid reasons and supported by rules and regulations of the institution. The FORA under the Act is not to sit as an Appellate Authority over the judgments of the opposite party in such like matters.

Assuming for the sake of arguments that it is held that expulsion of a student would also amount to deficiency in rendering service, no compensation or relief under Section 14 of the Consumer Protection Act could be granted to the complainant. Such compensation is to be granted for the loss, if any, suffered on account of the negligent act on the part of the opposite parties as provided under Section 14(d) of the Act which reads as under: "to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party." Neither there is any allegation nor any finding can be recorded that the act of the expulsion of the complainant by the opposite parties is on account of any negligent act on the part of the opposite parties. The word negligent act has not been defined under the Act and ordinary meaning attributed to the word negligence is to be taken into consideration. The word negligence means, as given in the Concise Oxford Dictionary, 1990 Edition at page 494, as under : "Lack of proper care and attention, carelessness, an act of carelessness." In the present case it cannot be held that the act of expulsion would fall under any of the categories referred to above. Expulsion of a student for misconduct is a conscious act deliberately done for the reasons available for the same. Such an act cannot be treated as a negligent act.

NO doubt the complainant must have suffered some loss, on account of her expulsion from the hostel. The remedy does not lie before the FORA established under the Act. The relief granted under the Consumer Protection Act is in addition to the relief available under the ordinary civil law. While dealing with cases under the Consumer Protection Act, relief can be granted only when the case is fully covered under the four corners of the Act otherwise the complainant is to seek remedy in the Civil Court. Reference has been made to some of the judgments on behalf of the opposite party to the effect that educational services are not covered under the purview of the Consumer Protection Act which may briefly be referred to. (1) Board of School Education v. Raj Kumar and Another, 1995 (2) CPC 388. That was a case of holding/ conducting examinations by a Statutory Body. Relying upon the decision of the National Commission in Revision Petition No. II of 1993, Joint Secretary, Gujarat Secondary Education v. Bharat Narottatam Thakkar, decided on 29th of September, 1993 holding that a complaint by a candidate appearing for examination was not maintainable, relief was declined by the Haryana State Commission in the case referred to. The ratio of two decisions referred to above cannot apply to the case in, hand which is not a case of conducting examinations by any Board or University. (2) The Principal, C. Kandaswami Naidu College for Women, Cuddalore v. District Consumer Disputes Redressal Forum, Mylapore & Others, Madras, III (1995) CPJ 273 (DB)=1995 (2) CPC 413. The case was about disputes of salaries payable to the Principal or Teacher of the College and the observations were made that the Educational Institution was not covered under the ambit of the Consumer Protection Act. The aforesaid case is again distinguishable. (3) Central Academy Educational Society and Another v. Gorav Kumar, III (1996) CPJ 230=1996 (1) CPC 498.is a decision of State Commission, Rajasthan. The claim of the student for compensation for being turned out of the school was under consideration. While making reference to Sections 2(o)(ii) and 2(g) of the Consumer Protection Act, it was observed that the relationship of teacher and student of an Educational Institution was not a service on hire because student is not such a consumer which is linked anyway with the buyer of any economic goods and has not been linked with education, teacher and student. The allegation therein was that the Principal of the school had misbehaved with the complainants and turned them out of the School but finding was recorded that the student was not turned out by the opposite party, the Educational Society. With great respect to the President and Members of the Rajasthan State Commission, we do not agree with the opinion expressed. On the legal aspect, when teacher imparts education on accepting remuneration/consideration like any other professional, he would be rendering his services. Likewise an institution imparting education after accepting fees for the same would be rendering services to the students for consideration. To that extent, the matter would be covered under the provisions of the Consumer Protection Act. (4) Chairman, Board of School Education, Haryana v. Anubhav Tewatia, 1996 (1) CPC 591, was also referred to and ratio therein cannot be applied to the case in hand as the matter relates to holding of examinations by the Board of School Education. (5) Finally, the reference has been made to decision of National Commission in Prof. P. Narayanankutty v. Uptron India Limited, I (1996) CPJ 340 (NC)=1996 (2) CPC 281. The ratio of the aforesaid decision cannot be applied to the case in hand as the dispute was not between the student and the institution but was between the complainant who after getting franchise from the opposite party was to run the Educational Institution. Such a person, a franchise, could not be held to be a hirer of services of the principal, it was so held. The ratio is not applicable to the case in hand.

FOR the reasons recorded above, this appeal fails. The complainant is left to seek remedy, if so advised, before the Civil Court. There will be no orders to costs in this appeal. Appeal dismissed.