- (1.) THE opposite party - appellant has filed this appeal under sec. 15 of the Consumer Protection Act, 1986 ("the Act" herein) against the order dated 13. 12. 89 passed by the District Forum, Bikaner in Complaint Case No. 198/89. THE complainant-respondent submitted a complaint before the District Forum on 25. 8. 89 stating that his grand-son Shri Harish Singh Bhati son of late Shri Jagdish Singh Bhati had appeared in the second year B. Com. (Three year Degree Course (T. D. C.) in the year 1988 from B. J. S. Rampuria Jain College, Bikaner. He was declared successful at the examination in the month of August, 1988. He did not receive marks-sheet of all the subjects until the date of filing of the complaint, though he made several requests to the Principal, B. J. S. Rampuria Jain College, Bikaner that marks-sheet may be delivered to him as early as possible. After considerable time, the marks-sheet in respect of the subjectsalesmanship of Office Management, was sent whereas aforesaid Shri Harish Singh had appeared in all the subjects as a regular student. His roll number was 07598. He wrote three times to the Governor of Rajasthan, who is Chancellor of the University. This report was sent along with letter dated 31-3. 89 by the Registrar Rajasthan University, Jaipur to the Controller of Examination, Ajmer, Despite that the marks-sheet was not received. As the marks sheet was not sent in time, Harish Singh could not appear at the annual examination in April, 1989 and so his one year was wasted. On account of that, the complainant, who is a gurdian of Harish Singh suffered mental agony and financial losses. THE following relief was sought**********
(2.) SEPARATE replies were filed by the Principal, B. J. S. Rampuria Jain College, Bikaner and the opposite-party. In the version of the case, which was submitted on 16. 9. 89, the opposite-party stated that the result of Harish Singh for Second Year T. D. C. (Com.) Examination, 1988 was declared on 2. 8. 88 and as per the Tabulation Register, he was declared as passed. It was stated in the Tabulation Register that he was registered only in the subject of Salesmanship and Office Management. After receipt of the notice from the District Forum, the correct position was revealed and thereafter Harish Singh was registered in all the subjects and his result was declared on 11. 8. 89 and marks-sheet was sent by registered post. It was pleaded by the opposite-party that no representation was received from Shri Harish Singh to the University of Ajmer as the representations were made to the University of Rajasthan. The complainant submitted his affidavit sworn on 5. 10. 89. On behalf of the opposite-party affidavit of Shri Prem Chand Jain, Section Officer, was filed. The District Forum passed the impugned order on 13. 10. 89. It held that on account of the negligence of the opposite party one year of Shri Harish Singh was lost and that this negligence in rendering services to Shri Harish Singh caused mental agony. The complainant, according to the District Forum, must have also suffered mental torture and, therefore, it awarded Rs. 5000/- as compensation to Shri Harish Singh. Aggrieved, the complainant has filed this appeal as aforesaid. The complainant-respondent was granted adjournments on his applications. It was ordered on 19. 2. 90 that if the complainant-respondent fails to appear on the next date, appropriate orders will be passed in the appeal and no further adjournment will be granted. On March 20, 1989, as the registered envelope, which was sent to the complainant, was not received undelivered and four weeks has passed since it was sent by registered post, it was presumed that he has been served. Arguments of the learned counsel were heard and concluded on March 20, 1990 and the case was ordered to be put for dictation of orders on 24-3-90. On that day, the registered envelope had been received back with the which was not legible. This envelope was received after the argendorsements bad been heard and concluded. Mr. Virendra Lodha, learned counsel for the complainant (sicppellant) opposite-party submitted that the District Forum did not consider the question regarding maintainability of the complaint as it lacked inherent jurisdiction to entertain, try, hear and decide his complaint. According to the learned counsel, the order passed by the District Forum is without jurisdiction and so, it should be set aside. In this connection, he invited our attention to the definitions of 'complainant', 'complaint', 'consumer', 'consumer dispute', 'deficiency', and 'service' as contained in the Act and further argued that the relief which has been granted by the District Forum could not be granted under s. 14 (1) of the Act. It may be stated here that the complainant is the grand-father of Harish Singh who appeared at 2nd Year T. D. C. Examination, 1988. 'complainant' has been defined in Sec. 2 (l) (d) of the Act. It, inter-alia, means a consumer,'complaint' has been defined in sec. 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 obtaining any relief provided by or under the Act. The definition of 'consumer' has been defined in sec, 2 (l) (d) of the Act, the material part of which, is as under: " 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 the first mentioned person. " 'consumer dispute" means a dispute where the person against whom a com-plaint has been made, denies or disputes the allegations contained in the complaint. 'deficiency' has been defined in sec. 2 (l) (g) of the Act as follows: " 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 undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;" It is relevant to notice the definition of 'service'. " Service" mean service of any description which is made available to potential users and includes the provisions 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 no include the rendering of any service free of charge or under a contract of personal service. " Harish Singh appeared at the 2nd Year T. D. C. examination, 1988 from B. J. S. Rampuria Jain College, Bikaner. The marks-sheet of all the subjects, according to the complainant, was not sent and after a long delay, it was made available to him only in respect of one subject 'salesmanship & Office Management'. The case of the complainant is that Harish Singh Bhati had appeared in all the subjects and he was a regular student of the college and he was not given the mark-sheet of all the subjects, which he should have been given. After the receipt of the notice from the District Forum, it transpired that Harish Singh Bhati was registered in all the subjects and his result was declared on 11-8-89 and marks-sheet was sent. The complainant has alleged himself to be guardian of Harish Singh. The question is whether the complainant can be said to be a 'consumer' and further that the University of Ajmer, while conducting the 2nd year T. D. C. Examination of Harish Singh and declaring the result thereof, renders any services to the complainant. The examination fee is charged from the candidate, who appears at the examination, by the University. According to the definition of 'service', it means 'service of any description' which is made available to potential users. It is an illustrated definition. It includes the provisions of facilities in connection with banking, financing etc. , as enumerated in sec. 2 (1) (0 ). In our opinion, conducting of examination, evaluation of answer books and declaration of the results according to the evaluation, do not constitute 'service' with in the meaning of sec. 2 (1) (0) of the Act and, further that paying the examination fee by the candidate to the University for the aforesaid purposes, does not mean that the candidate has hired the services of the complainant (sic. opp. party ). The expression used in sec. 2 (1) (0) of the Act is "services of any description". Section 14 (1) of the Act, for the present purpose, is as under:- " 14 (1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complainant or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to take one or more of the following things, namely: (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) 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. " The complainant has claimed in the complaint that a direction may be issued to the opposite-parties to supply marks-sheet of all the subjects declaring him passed and further that Rs. 10,000/" may be awarded on account of mental suffering, financial losses etc. The relief claimed by the complainant is supplying of marks-sheet and as this was not done, the District Forum opined that Harish Singh had lost one year, This relief could not have been granted under sec. 14 (1) of the Act. Having regard to the averments made is the complaint and after considering the above mentioned definitions given in the Act and also the relief claimed by the complainant, we are of opinion that the complainant could not invoke the jurisdiction of the District Forum in respect of the reliefs prayed for by him. The matter does not rest at that. The District Forum has awarded compensation to the tune of Rs. 5000/- to Harish Singh. The principal reason given by the District Forum is as follows:- ;g gks ldrk gs o vfure ifj. kke esa vuqrrh. kz ?kksf"kr gqvk fdurq bl ckr dh tkudkjh mls vxlr] 1988 esa gh fey tkrh rks og blh ijh{kk ds fy;s viuh rs;kjh djrk rfkk viuk ,d o"kz dke esa ys ldrk Fkka izfri{kh dh =qfv ds dkj. k gh ;g Nk= ,d o"kz ls Hkh vf/kd le; rd dqn ugha dj ldk gsa The complainant, in his affidavit dated 5-10-89, has admitted that the University of Ajmer sent the marks-sheet of Harish Singh in respect of 2nd Year T. D. C. Examination, 1988 in respect of all the subjects on 14-8-89 by post and he was declared failed. He has not said a word about compensation. Section 14 (1) (d) of the Act was considered by the National Commission, New Delhi in Consumer Unity and Society, Calcutta Vs. the Chairman and Managing Director, Bank of Baroda (1 ). It observed as unden:- " Under this clause compensation can be awarded to a consumer only in respect of any loss or injury found to have been suffered by him due to the negligence of the opposite-party. It is of the essence of this provision that the loss or injury for which compensation is to be adjudged and awarded should be found to have been caused by the negligence of the opposite-party. The complainant has therefore to establish that there was negligence on the part of the opposite-party and that as a consequence thereof loss or injury was suffered by him. It is only in such event that award of compensation would be warranted under the provisions of this sub-clause. " The principles determining the compensation have also been laid down by the National Commission in some of the decided cases. In Bharat Tractor, Muzaffar-pur Vs. Sri Ramchandra Pandey (2) it was observed as under:- " The position in relation to the further direction issued by the State Commission that the appellant should pay a sum of Rs. 8000/- as compensation for harassment and loss suffered by the complainant is however, totally different. While section 14 of the Consumer Protection Act, 1986 (read with section 18) does empower the State Commission to award compensation for any injury or loss suffered by a consumer on account of the negligence of the opposite-party, the claim must be substantiated by sufficient evidence and the compensation has to be assessed not arbitrarily but on the basis of well accepted legal principles. Unfortunately, in this case, the order of the Commission does not contain any discussion of the question of the alleged harassment or loss nor has it disclosed as to how it quantified the compensation to be awarded to the complainant. "
(3.) IN General Manager, South Eastern Railway and Ors. Vs. Shri Anand Prasad Sinha & ors. (3), the National Commission made the following observations "it is an established principle of law that the compensation awarded must have a rational relation to the nature and extent of the injury, inconvenience or physical and mental suffering* caused to the complainant by the action or omission of the opposite-party. No attempt was made by the State Commission to approach the question of quantification of compensation from this correct perspective. The status of the complainant was of little relevance in this context since every passenger who has paid for first class travel and who has been subjected to inconvenience and suffering of a like nature on account of defects in the department is entitled to similar treatment in the matter of award of compensation, irrespective of any question of statue. " Again in Commercial Officer, Office of the Telecom, District Manager, Patna vs. Bihar State Warehousing Corporation (4), the National Commission has held as under: " As indicated by us in some of our earlier judgments, the award of compensation by the Forums established under the Act has to be made only on well recognised legal principles governing the quantification of damages or compensation. The compensation to be awarded has to be quantified on a rational basis on a consideration of material produced before the adjudicating forum showing the extent of injury suffered and the manner in which and the extent to which monetary loss has been caused thereby to the complainant. . . . . . . . . " There is no material on record to substantiate the claim for compensation. The District Forum did not approach the question from the correct perspective. The complainant has failed to substantiate by sufficient evidence the claim for compensation- The compensation has been assessed by the District Forum arbitrarily. Bearing in mind the principles laid down by the National Commission in the aforesaid decisions, we are of opinion that the District Forum was not right in awarding compensation to the complainant. No other point survives for our consideration in this appeal. The appeal is allowed and the order dated 13-12-89 passed by the District Forum, Bikaner in complaint Case No. 198/89 is set aside. The complaint is dismissed. No costs. Order pronounced on March 23, 1990. . ;