NIMS MEDICAL COLLEGE vs HARSH MATHUR S/O SHRI H.P MATHUR

This revision is directed against the order of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, "the State Commission) dated 19.2.2014 in first appeal No.650/2012.

Briefly stated, facts relevant for the disposal of the revision petition are that earlier the respondent filed a consumer complaint No.15/200 before District Consumer Redressal Forum, Rewari on 2.1.2007 which was subsequently withdrawn pursuant to the order of the District Forum on 29th September, 2008 with liberty to file fresh complaint before the Consumer Forum having territorial jurisdiction.

The respondent thereafter filed consumer complaint before District Consumer Redressal Forum, II, Jaipur on the allegation that the complainant took admission in the petitioner institute for Bachelor of Physiotherapy, Academic Session 2006-2007. The complainant on admission deposited fee of Rs.94,000/- which included Rs.55,000/? as fee for the course, Rs.10,000/? as hostel charges, Rs.10,000/- as mess charges, Rs.10,000/- as caution money, besides Rs.9,000/- as caution money for the hostel. It is the case of the complainant that before the admission, father of the complainant was assured that complainant would be allotted hostel room as per his entitlement and he would be properly taken care of. On being assured in this regard, father of the complainant left in in the college. However, after a wait of eight hours, the complainant was provided a small room in the hostel in which four students were already staying. The complainant protested and he was assured that he would be allotted some other room within a day or two. Despite of repeated requests, the complainant was not allotted a proper room in the hostel. It is further the case of the complainant that he was ill-treated in the hostel room by other students and because of that the complainant was compelled to withdraw from the petitioner institution on 20th July, 2008. Thereafter, the complainant requested for refund of fee as also his original certificates which were deposited at the time of admission but the petitioner/opposite party failed to oblige. Being aggrieved by non-refund of the fee, the complainant filed the consumer complaint.

The petitioner/opposite party on being served with the notice of the complainant resisted the complaint by filing written statement wherein the allegations made in the complaint were denied. It was pleaded that a proper room was allotted to the complainant in the hostel on sharing with only one student. No complaint in respect of inadequacy of the hostel room was ever made by the complainant. It is also pleaded by the opposite party that the complainant on his own left the institute without depositing the entire fee as a result of which one seat in the course remained vacant resulting in financial loss to the petitioner/institute. According to the opposite party complainant was weak in studies as a result of which he became depressed for which the petitioner institution cannot be blamed. It was pleaded that since the complainant left the course mid-way and one seat remained vacant, the petitioner was justified in refusing to refund the fee.

We have considered the rival contentions. On careful perusal of record, we find that both the foras below have exceeded their jurisdiction by entertaining the complaint which was not maintainable and was also barred by limitation.

So far as issue of limitation is concerned, admittedly, the son of the complainant took admission in the petitioner Institute in the year 2006-2007 and deposited fee in July 2006. As per the allegations in the complaint, the father of the complainant for the first time sought refund of fee vide letter dated 30.10.2006 which request was declined. The cause of action for filing the consumer complaint thus arose on 30.10.2006. According to Section 24A of the Consumer Protection Act, the period of limitation for filing a consumer complaint is two years from the date on which the cause of action occurs. Thus, the limitation for filing of consumer complaint was upto 30.10.2008. Admittedly, the instant complaint was filed before District Forum Jaipur on 07.09.2010 i.e. two years after the expiry of period of limitation.

Learned counsel for the respondent complainant has tried to get out of the situation by contending that actually consumer complainant was filed in District Forum Rewari on 02.01.2007 well within the period of limitation but the complainant had to withdraw the consumer complaint because District Forum Rewari did not have territorial jurisdiction to entertain the complaint. It is argued on behalf of the complainant that District Forum permitted the petitioner to withdraw the complaint with liberty to file fresh complaint before the consumer forum having territorial jurisdiction on the same cause of action. Therefore, it cannot be said that the complaint has been filed after the period of limitation.

We do not find merit in the above contention. Even if, the complainant under mistaken impression, had filed consumer complainant before Consumer Forum Rewari having no jurisdiction, at best the complainant can get set off of the period during which he was pursuing the complaint before the District Forum Rewari while computing the period of limitation for filing the complaint before competent consumer forum. Cause of action for filing the consumer complaint as per the discussion above arose on 30.10.2006. Approximately 1 year and 9 months was consumed by the complainant in pursuing the consumer complaint before the wrong forum. Thus, after allowing the set off of that period while computing the period of limitation, the consumer complaint, to be within limitation, ought to have been filed within two years limitation plus 1 years and 9 months period from 30.10.2006, meaning thereby that after getting the benefit of set off, the complaint was supposed to be filed somewhere around July 2010. Admittedly, consumer complaint was filed in the District Forum Jaipur on 29.09.2010 i.e. almost two months beyond the period of limitation. No cogent explanation for delay in filing of consumer complaint has been given nor any application of condonation of delay was moved by the complainant. Therefore, it is obvious that instant consumer complaint was barred by limitation and District Forum concerned had no jurisdiction to entertain the same.

As regards, the maintainability, the contention of the petitioner is that the impugned order of the State Commission is not sustainable as the orders have been passed in utter disregard of the law laid down by the Supreme Court in the matter of P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors. in Special Leave Petition No. 22532/2012 decided on 09.08.2012 wherein Hon''ble Supreme Court held as under:

"In view of the judgment of this Court in Maharshi Dayanand University Vs. Surjeet Kaur 2010 (11) SCC 159 wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.

In view of the above, we are not inclined to entertain the special leave petition. Thus, the Special Leave Petition is dismissed."

From the above, it is clear that both the foras below have acted beyond jurisdiction in entertaining and allowing the complaint. As such, impugned order cannot be sustained.

Thus, we allow the revision petition, set aside the impugned order and dismiss the complaint.