MUMBAI GRAHAK PANCHAYAT, BOMBAY vs REGISTRAR, UNIVERSITY OF BOMBAY

MUMBAI Grahak Panchayat has taken up the cause of Miss Sangita Shashikant Mirashi, a student, against the Bombay University. The allegations made in the complaint are regarding the deficiency in the service of the Bombay University as regards the revaluation and verification of the marks obtained by Miss Sangita in B. Com. Examination held by Bombay University in April, 1990. The facts from the record show that Miss Sangita appeared for final year B. Com. Examination held by Bombay University in April, 1990 as a regular student. When the results were declared of the said examination on 16th July, 1990, Miss Sangita was declared failed. In the certificate issued by the Bombay University in the subject of ''financial accounting and auditing'', she was shown to have received 16 marks out of 100. In rest of the 5 subjects. Miss Sangita had passed. (Ex. A) is the mark list. Miss Sangita doubted about the marks and, therefore, she applied for revaluation of her marks on 21.7.1990. The Bombay University has been providing the service of revaluation of marks on payment of Rs. 100/- as fees. Accordingly Rs. 100/- were paid by Ms. Sangita for revaluation and she was issued a receipt by Bombay University bearing No. 757. Her application for revaluation and the receipt are collectively exhibited at Anx. ''B''. Ms. Sangita did not receive any communication from Bombay University about her revaluation of marks despite personal follow up in the University. As the winter examination was approaching fast, Ms. Sangita decided to appear for the aforesaid subject in the examination to be held in November, 1990. She again paid Rs. 100/- on 25-8-90 vide copy of Receipt being Ex. ''C''. She appeared for all six papers in November, 1990 Examination. It is also alleged that although Ms. Sangita failed in one subject, she decided to appear for all six subjects in November, 1990 Examination but the Hall Ticket issued to her mentioned the exemption of five subjects. This all came as a surprise to her since she has prepared for all six subjects. However, she was permitted to appear in all subjects after great pursuation. It is the case of complainant that after the lapse of 71/2 months, Ms. Sangita was informed by the Bombay University that in her revaluation of the marks for April, 1990 Examination, she was declared passed vide Communication No. 5391. She was also declared passed in November, 1990 Examination which she had given in absence of the aforesaid communication.

ON the basis of the undisputed facts mentioned above, the complainant alleged that there was a gross negligence on the part of the opposite party to declare Sangita as failed in November, 1990 Examination which amounts to deficiency in the service. According to Shri Deshpande, when a student pays fees for appearing for the examination, the University is legally bound to render reasonable and prompt service to the students about the valuation of the papers without any mistake. It is, therefore, alleged that although Ms. Sangita had-passed in April, 1990 Examination by securing 35% marks, she was required to spend additional amount of Rs. 100/- for revaluation of her marks and farther Rs. 100/- for appearing in November, 1990 Examination. In addition to this, according to Shri Deshpande, Ms. Sangita had to prepare for all the six subjects in the winter examination, which resulted in the loss of one year of her career and she was required to study hard for subsequent winter examination. The complainant is, therefore, claiming compensation on different heads of the amount of Rs. 1,23,200/-. In the written version dated 13-3-92, the Bombay University admitted the facts alleged by the complainant. However, if denied the negligence and the carelessness on their part. The only explanation given by the Bombay University for its failure to communicate the result of revaluation to the complainant is that during the period 16-4-90 to 31-3-91, throughout, the Bombay University Employees Union had lodged the agitation of work to rule. According to Bombay University Work to Rule agitation affected its working and, therefore, there was no negligence in the service of the Bombay University. The opposite party also alleged that the complainant is not a consumer and revaluation of an answer book cannot be considered as ''service'' within the meaning of Consumer Protection Act. It is also submitted that revaluation of an answer book is provided by way of a facility and there is no legal right to a student to have a revaluation of answer book.

We have heard Shri Shirish Deshpande and Shri Rodriques, Advocate and also gone through the complaint, written version of the opposite party and documents on record.

THE following issues arise for our consideration on the basis of disputed contentions between the parties. (1) Whether Ms. Sangita is a Consumer of the service of Bombay University within the meaning of C.P. Act. 1986? (2) Whether the O.P. provides service to the student or whether it is a facility made available to the complainant? (3) Whether the opposite party had rendered deficient service? (4) Whether the complainant is entitled for compensation and suffered loss due to negligence on the part of opposite party, and (5) Whether she is entitled for compensation?

As regards the first point, it is clear that the complainant Sangita, as a student of Bombay University had hired the services for consideration. Bombay University renders its service to the student by accepting consideration A fee of Rs. 100/- is charged for appearing for the examination and Rs. 100/- are charged separately for revaluation of the mark sheets. Definition of ''consumer'' appearing in C.P. Act u/Sec. 2(d)(ii) is so wide in its amplitude that it includes any service for consideration which is hired by a person. The ingredients of the aforesaid provision clearly show that if any person hires any service for consideration, then the hirer becomes the consumer of that service. Bombay University had clearly extended its service to the complainant by accepting Rs. 100/- as a consideration for allowing the complainant Ms. Sangita to appear for the B.Com. Final Examination in April, 1990 and further had also extended its service for consideration by accepting Rs. 100/- for revaluation and verification of marks. Both these acts clearly show that the Bombay University had accepted the consideration for rendering service to the student. In our view, all the necessary ingredients of Section 2(d)(ii) of the CP. Act are satisfied. The submission of the Bombay University that revaluation of an answer book is only provided by way of facility - does not appeal to reason. The University may call revaluation as a facility and still it remains a service. It is nothing but an act of rendering the service to a student for the revalution of answer papers for consideration. Under these circumstances, we are very clear in our mind that Ms. Sangita has proved that she has been a consumer of the services of the Bombay University and had hired the services of Bombay University and, therefore, this Commission has the jurisdiction to decide this consumer dispute. We now come to the third point as to whether the service rendered by the Bombay University was deficient. From the facts and circumstances of this case, we have come to the conclusion that the service rendered by the Bombay University was deficient in many respects. Firstly, although Sangita had passed in April, 90 examination by securing 35 marks, out of 100, she was declared ''failed'' by the Bombay University due to its negligence in the act of not correctly declaring the results of the examination. We find that when Ms. Sangita had secured 35 marks, the Bombay University was deficient in correctly showing those marks in the mark sheet at Ex. ''A''. The omission or error in showing the correct marks of the complainant in April, 1990 Examination resulted in the complaint being required to appear for November, 1990 Examination. This could have been avoided if the University had correctly shown the marks in Exh. ''A''. In our view, the Bombay University was deficient in not correctly showing the marks in mark-sheet and not promptly revaluing the marks of Ms. Sangita before the date of submitting the application for November, 1990 Examination. We clearly find that showing of wrong marks in Ex. A, is as a consequence of deficiency in the service of the opposite party.

ACCORDING to the learned Advocate Shri Rodriques, the University could not complete the work of revaluation due to the agitation of Bombay University Employees Union because "of ''Work to Rule'' between 16.4.90 to 31-3-91." In our view, there is no substance in this submission. Firstly, there is no evidence on record to show that there was such a "Work to Rule" agitation in Bombay University. Secondly, the result of the examination of Ms. Sangita for her examination of April, 1990 was already declared on 16.7.90. The declaration of wrong result cannot be attributed to the agitation of work to rule but due to the negligence by making a wrong entry of marks 16 in place of 35. Thirdly, the papers are valued not by the staff of the University but by the lecturers and professors who cannot be said to be in the agitation of ''work to rule''. It was canvassed on behalf of the Bombay University that the services of lecturers and professors are not available and, therefore, it takes time to declare the results. We have no quarrel about contention of the University regarding the paucity of lecturers and professors for valuing the papers but whatever, the services they render should ensure the correct showing of marks in mark-sheet from the answer books. The University is responsible to declare the result correctly and they cannot be absolved of their responsibility under the pretext that work to rule agitation was responsible for showing the student as failed when she had actually passed. It has also been submitted by Shri Rodriques that in Statute 77 of Bombay University, the Action of the University was in good faith and therefore, it can be condoned. We do not find any substance in this submission in as much as showing a student as failed although she has passed in the subject cannot be construed as an act of good faith. In view of our finding that the service of the opposite party was deficient, the complainant deserves compensation for the loss suffered by her. According to Shri Deshpande, the complainant had to unnecessarily pay Rs. 100/- for the revaluation of the answer papers which she is entitled to get refunded. Similarly, according to Shri Deshpande, she had 1st Class career and she secured 1st Class in her X and XII Examination. The complainant has claimed Rs. 50,600/- as compensation for mental shock to her and family members on account of her being wrongly declared as failed in April, 1990 Examination. Rs. 12000/- has been claimed on account of the loss of useful time for preparing for November, 90 Examination. Rs. 1,000/- has been claimed as compensation for the inconvenience caused while seeking the permission to appear in all six subjects. Rs. 60,000/- has been claimed on account of the loss of employment of one academic year. According to the Bombay University the claim of compensation is not justified as it is based on hypothetical consideration. We find that due to the negligence of Bombay University, Ms. Sangita had to pay Rs. 100/- for revaluation and she is entitled to get a refund of this amount. So far as the other amount of Rs. 100/- she had paid for appearing for November, 90 Examination, in our view, she is not entitled for refund of that amount as on her own she decided to appear for that examination. As regards Rs. 50,000/- for compensation, for mental shock, to Ms. Sangita and other family members, we find that although it is true that Ms. Sangita had to pass a period of about a year, in mental agony as she was declared ''failed'' the mental agony and shock cannot be calculated in terms of money and, therefore, in our view, it would meet the ends of justice if we grant Ms Sangita Rs. 5000/- as compensation for mental shock and troubles for appearing for the November, 90 Examination. As regards the claim of complainant of Rs. 12,000/- for the loss of 600 man hours and Rs. 1000/- for wrongly issuing the hall ticket, we find that it was the decision of Ms. Sangita to appear for winter examination in her anxiety to get through the examination and, therefore, it cannot be precisely said to be as a result of negligence in the service of the opposite party. Lastly, it has been submitted on behalf of the complainant that Ms. Sangita having a bright career could easily secure the services of a Company Secretary and draw a salary of Rs. 5,000/- per month. In support of this submission, the complainant has placed on record a receipt at Exhibit ''G'' showing that she was admitted to Company Secretary course on 17-5-1991. Although the claim appears to be hypothetical in nature. In our view the complainant could be in some employment for a year which opportunity she has lost due to wrongly declaring her as ''failed''. Apart from the monetary loss, the complainant carried the stigma of her failure in B. Com. Examination on the back drop of her 1st Class career in the past examination. Looking to her credentials and 1st Class career, the complainant could be gainfully engaged in some service and, therefore, definitely suffered the financial loss due to the negligence of the opposite party. We would, there- fore, like to quantify her loss for a year Rs. 6000/- at the rate of Rs. 500/- p.m. As regards the cost of this complaint, Shri Deshpande has submitted that it is a public cause litigation on behalf of the unfortunate student. Hence, we pass the following:- ORDER The Bombay University is directed to pay to the complainant Ms. Sangita Mirashi an amount of Rs. 11,000/- for mental agony and loss of employment of one year. The Mumbai Grahak Panchayat shall be paid Rs. 2000/- by Bombay University as costs of this complaint. The aforesaid amount shall be paid by the Bombay University within 30 days from the receipt of this order failing which both the amounts shall carry interest at the rate of 12% p.a. till realisation. Complaint allowed with costs