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Judgment
IN this revision petition, there is challenge to order dated 10.7.2012, passed by State Consumer Disputes Redressal Commission, UT, Chandigarh (short, "State Commission"), vide which (FA No. 57 of 2012) filed by the petitioners/opposite parties was dismissed. Brief facts are that, on being allured by an advertisement regarding Deck Cadet Course (Pre Sea Training) published by petitioners, respondent/complainant approached them on 2.7.2009 for getting his son -Mohit Arora admitted in the said Course. Petitioners informed the respondent that they are offering said course, culminating into licence for Continue Discharge Certificate, upon which placement of the candidate would be made on the Ship. Respondent was required to deposit Rs. 3,15,000, out of which Rs. 1,55,000 was for Pre Sea Training and an amount of Rs. 1,60,000 was to be deposited before start of Continue Discharge Certificate Course. It is averred that respondent deposited a sum of Rs. 25,000 on 2.7.2009 and thereafter Rs. 40,000 on 5.9.2009 and the balance towards the initial payment was paid through Cheque No. 39334 of Rs. 25,000 and Cheque No. 393335 of Rs. 50,000. It is also averred that by the Receipt dated 24.11.2009, a total fee of Rs. 1,55,000 for Pre Sea Training was paid.
IT is further averred that son of respondent was issued Admission Letter/Selection Letter by the petitioners along with training fee structure, vide letter dated 31.7.2009 and also an affidavit dated 22.8.2009 stating that the required fee of Rs. 3,15,000 is taken for two stages of training for the award of Deck Cadet Licence by Panama Authority. It is stated that respondent''s son was issued various certificates regarding the training provided by petitioners in respect of Pre Sea Training. It is also stated that after the completion of Pre Sea Training, the next stage was regarding Onboard Training, which was to commence from 4.11.2009, but the same was not started. Accordingly, respondent through her husband gave letter dated 29.1.2010. In response to it, petitioners asked respondent''s son to deposit the remaining fee of Rs. 1,60,000. Respondent has alleged that her son was taken to Bangkok (Thailand) on 12.3.2010 on the assurance that Continue Discharge Certificate would be issued there. Before departing, a sum of Rs. 1.60 lacs was also taken by the petitioners. According to respondent, her son was issued certificate to work Onboard of Panamanian Ship for a period of three months i.e. 16.2.2010 to 15.5.2010 and thereafter, received letter dated 22.4.2010 through petitioners from one Hailong Shipping and Investment Development J.S. Co., Vietnam for OK to Onboard Training starting from 3.5.2010. According to respondent, many commitments were made regarding Continue Discharge Certificate and Licence to Board, but no worthwhile development took place and her son has to stay at Bangkok. Thereafter, he was taken to Cambodia on 14.4.2010. Respondent has also alleged that her son had to stay at Cambodia for one month and returned back on expiry of his visa. According to the respondent, Certificates issued by the petitioners are fake, they have no recognition for imparting said training and have no authority to issue said certificates. Therefore, respondent requested the petitioners to refund the complete fee amount of Rs. 3,15,000, deposited with them, but to no effect. Petitioner Nos. 1 and 2 in their written statement denied the allegations of the respondent. They admitted that respondent has deposited Rs. 1,55,000 vide receipts. It has been pleaded that on completion of the Pre Sea Training Course, requisite certificates were issued to the candidate. Thereafter, they provided Certificate and letter to the candidate for joining "Onboard Training", without any delay. It has been pleaded that respondent has failed to deposit Rs. 1,60,000 for Onboard Training of the candidate and only Rs. 1,47,200 was paid on 15.3.2010, that too after completion of the Training and issuance of Transitory Certificate in February, 2010. It has been pleaded that letter was issued to the candidate for completing the Onboard Training and to join the vessel in time. It has further been pleaded that respondent''s son returned to India without consulting petitioners and failed to reach the company''s office by the stipulated date i.e. 12.5.2010. It is asserted that petitioner No. 1 -Institute is duly recognized Institute and the certificate issued by them are genuine. The authorization Certificate has been issued to the petitioners by Competent Authority. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part, prayer for dismissal of the complaint was made.
OPPOSITE party No. 3 (in the District. Forum) filed separate written statement and pleaded that the complainant availed the services of petitioner Nos. 1 and 2 and no averments regarding deficiency in service has been made against him. It is also stated that he has no concern with any official of petitioner No. 1 Institute, at any stage. All the allegations made in the complaint had been denied. Pleading no deficiency in service on his part, opposite party No. 3 prayed for dismissal of the complaint.
DISTRICT Consumer Disputes Redressal Forum -I, UT, Chandigarh (short, "District Forum") considering the evidence led by the parties, vide order dated 5.1.2012, allowed the complaint against the petitioners and dismissed the complaint qua opposite party No. 3, observing as under: We are of the considered opinion that the OP Nos. 1 and 2 were deficient in providing proper services to the complainant. The present complaint has lot of merit, weight and substance. The same is accordingly allowed. The OP Nos. 1 and 2 are jointly and severally directed to refund to the complainant a sum of Rs. 3,15,000. The OP is also directed to pay Rs. 50,000 as compensation for mental agony and physical harassment, apart from Rs. 10,000 as litigation cost. However, the complaint qua OP No. 3 stand dismissed and exonerated from any deficiency in service on its part.
Being aggrieved by order of the District Forum, petitioners filed an appeal before the State Commission which dismissed the same vide its impugned order.
HENCE , this revision petition.
WE have heard learned Counsel for the petitioner and gone through the record. It has been contended by learned Counsel that Selection letter dated 31.7.2009 clearly depicts that no promise of any kind of employment was made by the petitioners while admitting the son of the respondent and fee was charged only on account of Pre Sea Training Course and On -board Training Course and not for providing any employment. Even prospectus of petitioner No. 1 -Institute does not provide for such terms that they will provide any kind of employment. In support, Counsel has relied upon decision of this Commission, Sekhar Bhattacharya v. Goutam Roy Chowdhury,, I (1994) CPJ 120 (NC).
DISTRICT Forum, while allowing the complaint has held: 13. Now in order to clinch the matter, reliance has been placed on document such as Annexure C -7 is the copy of affidavit executed and duly signed by Prof. Sunil S/o. Shri Dr. P. Dayal (OP No. 2), whereby he had promised to refund the amount of candidates including complainant''s son -Mohit Arora and issued cheque in their favour. The relevant extract of said affidavit is reproduced as under - -
Whereas I promised the following parents to get their wards commissioned/employed in the Merchant Navy.
That I took them to Thailand and Cambodia from 12 March 10 to 14 May, 2010. But I could not get them employed in Merchant Navy and as well as cruise liners. Now I willingly issued the following cheque as security for the money I have taken from them - -
1........
2.. Mohit Arora, S/o. Shri Raj Kumar # 2050, Sector 66, Mohali. Cheque Nos. 000024, 000031 dated 9/6/10 Rs. 3,15,000, 18,585.
This document/evidence Annexure C -7 produced/placed on record by the complainant has neither been controverted nor rebutted by the OPs, which admittedly, clearly and apparently proves that the OP Nos. 1 and 2 were deficient in rendering proper services and also indulged into unfair trade practice on the part of the OPs.
THE State Commission, while upholding the decision of the District Forum observed; Admittedly, opposite party Nos. 1 and 2 intimated the son of the complainant regarding on -board training vide Annexures C -5 and C -6. However, opposite party Nos. 1 and 2 failed to establish by adducing any tangible evidence, that all the arrangements to reach Vietnam for on -board training were to be made by the candidates despite the fact that they had received Rs. 1,60,000. Even opposite party Nos. 1 and 2, failed to satisfy this Commission, by leading cogent evidence that they ever took the son of the complainant along with other candidates to Bangkok and Cambodia. It means that the son of the complainant went to Bangkok and Cambodia on his own. In this view of the matter, we do not find any merit in the submission of the Counsel for opposite party Nos. 1 and 2, that the onboard training could not be completed due to the fault of the complainant''s son. Even otherwise, it is beyond imagination that a prudent person would go and stay unnecessarily for a month especially in a different Country when he had prior knowledge that his training was to be imparted in some other Country. Therefore, we are of the considered opinion that opposite party Nos. 1 and 2 were deficient, in rendering services and indulged into unfair trade practice by not refunding the amount despite repeated requests of the complainant. This fact has further been corroborated from the undertaking given by Sh. Sunil Kumar of appellant/opposite party No. 2 whereby he undertook to refund the amount deposited by the complainant.
THE undertaking Annexure C -7 executed and duly signed by Professor Sunil S/o. Dr. P. Dayal appellant/opposite party No. 2, which was duly notarized by the Notary, reveals that he promised to refund the amount deposited by the complainant, and other candidates. He also issued a cheque in the sum of Rs. 3,15,000 to the complainant. In the absence of any tangible evidence, the contention of appellants/opposite party Nos. 1 and 2 that the aforesaid undertaking was the result of pressure, collective threat, coercion and undue influence, could not be believed. Moreover, the proceedings under the provisions of the Consumer Protection Act, 1986, are summary, in nature, whereas, the allegations of coercion, undue pressure, etc. are required to be proved by leading detailed evidence and the same cannot be adjudicated, in the summary procedure.
THE argument, put forth by the Counsel for opposite party Nos. 1 and 2, that they imparted the Pre Sea Training successfully qua which the certificates had already been issued, hence the amount of Rs. 1,55,000 paid by the complainant, is not refundable, whereas, the District Forum wrongly directed for the refund of the same is not tenable because for the completion of the Course, the certificate for on -board training was necessary. In the absence of such certificate, the Certificate issued by opposite party Nos. 1 and 2 for the Pre Sea Training is a piece of waste paper. The complainant, on the basis of this certificate, could not get any job. Taking all these facts into consideration, we come to the conclusion, that opposite party Nos. 1 and 2, were certainly deficient, in rendering services and the District Forum rightly allowed the complaint. The order of the District Forum, being legal and valid, is liable to be upheld. 12. It is well settled that under Section 21(b) of the Consumer Protection Act, 1986, (for short, "Act")/the scope of re visional jurisdiction is very limited. Under this Section 21, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., : II (2011) CPJ 19 (SC) : IV (2011) SLT 303 : 2011 (3) Scale 654, has observed:
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.
As per undertaking given by the petitioner No. 2 (copy placed at page 47 of the paper book), it is manifestly clear, that petitioners promised the parents to get their wards commissioned/employed in the Merchant Navy. Petitioners also took them to Thailand and Cambodia from 12 March to 10 to 14th May, 2010, but, could not get them employed in Merchant Navy as well as cruise liners. Thus, deficiency on the part of the petitioners is writ large in this case.
Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21(b) of the Act. Since, two Fora below have given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is hereby, dismissed with cost of Rs. 10,000 (Rupees ten thousand only).
PETITIONER is directed to deposit the cost of Rs. 10,000, by way of demand draft in the name of ''Consumer Welfare Fund'' as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization. List on 17.5.2013 for compliance.