NATIONAL MODEL MATRICULATION HIGHER SECONDARY SCHOOL vs P.RAVIKRISHNAN

THIS appeal is directed against the order dated 18th day of September, 1998 in O.P. No. 140/1998 on the file of the District Consumer Disputes Redressal Forum, Coimbatore.

THE appellant is the opposite party while the respondent is the complainant. The subject matter of dispute is the refusal of the opposite party school to refund the school and other fees paid by the complainant father in relation to the admission of his minor son by name R. Narendar in L.K.G. Class in the opposite party school. The refund has been sought for by the complainant in view of the admission of his minor son before the opening of the school of the opposite party in another school though he gained admission in the school of the opposite party before its opening.

Despite service of notice, it appears, the opposite party school remained absent and consequently the opposite party was set ex parte and ex parte enquiry was held. By taking into consideration the materials placed on record, during the course of ex parte enquiry, the Forum below recorded a finding that the act of the opposite party in not effecting the refund of the school fee paid by the complainant in relation to the admission of his son would tantamount to deficiency in service on the part of the opposite party and consequently passed an order directing the opposite party to refund the complainant a sum of Rs. 4,215/- and pay to him a sum of Rs. 500/- as costs failing which penal action will be taken against the opposite party as per provision of law.

AGGRIEVED by the order as above, the opposite party resorted to the present action by engaging a Counsel of their choice, namely learned Counsel M/s. M. Sriram and T. Ravikumar. On service of process, the respondent/complainant also entered appearance through a Counsel of his choice, namely learned Counsel M/s. John Sundarlal Suresh and P. Suresh.

WHEN this matter came up for hearing before us today, learned Counsel appearing for the respondent/complainant were called; absent and no representation was made on their behalf. We are, however, inclined to dispose of the appeal on merits, of course, after hearing arguments of learned Counsel Mr. T. Ravikumar appearing for the appellant/opposite party and on perusal of the materials placed on record. Learned Counsel Mr. T. Ravikumar appearing for the appellant/opposite party would submit that in view of the decision rendered by the National Consumer Disputes Redressal Commission, New Delhi in First Appeal Nos. 61, 89 and 103/2002 that ''education and educational institutions'' would not come under the purview of the Consumer Protection Act, 1986 (for short, "the Act, 1986"), it goes without saying that this appeal has to be necessarily allowed. The First Appeal Nos. 61, 89 and 103/2002 arose before the National Commission from out of the order passed by this Commission in O.Ps. 171,183 and 170/1994. In all the aforesaid original actions, this Commission took the view that ''education and educational institutions'' would not come under the purview of the Act, 1986 pursuant to the decision of the Division Bench of High Court of Judicature, Madras in the case of The Registrar, University of Madras & Anr. v. The Union of India & Ors., 1995 Writ LR 246.

THE view of ours based on the Division Bench decision of the Madras High Court is, however, opposed to the view of the National Commission in its judgment in the case of Bhupesh Khurana & Ors. v. Vishwa Budha Parishad & Ors., II (2001) CPJ 74 (NC)=2000 CTJ 801 (CP). Despite this, the National Commission took the view that Education and Educational Institutions would not come under the purview of the Act, 1986 so far as the State of Tamil Nadu was concerned. What the National Commission said on such aspect of the matter is relevant for the present purpose and it reads as under : "National Commission in its judgment in the case of Bhupesh Khurana & Ors. v. Vishwa Budha Parishad & Ors., II (2001) CPJ 74 (NC)=2000 CTJ 801 (CP), held that education will come within the ambit of service as defined in Section 2(1)(o) of the Act. But on that basis, we cannot strike down the impugned judgment of the State Commission and then to direct it to hear the complaints on merit. That certainly would not per-missible. State Commission is a Tribunal within the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. National Commission cannot go against the law laid down by the High Court within the sphere of its jurisdiction. If we say that State Commission was wrong what in effect we would be saying is that High Court was wrong. We cannot even think of that."

For the reasons as above, the appeal deserves to be allowed.

IN fine, the appeal is allowed; the order of the Forum below is set aside; and the complaint itself is dismissed. We, however, make no order as to costs on the facts and in the circumstances of the case. Appeal allowed.