OSWAL BALMANDIR And KINDERGARTEN SCHOOL vs NARSI NANJIBHAI

THE District Consumer Disputes Redressal Forum, Jamnagar directed the appellant-opposite party to accept the fees for the bus charges and provide the facilities of bus to Amit Chandulal and Dipak Chandulal, the children of the complainant for taking them from the nearest bus stop in Gulabnagar to Oswal Balmandir and Kindergarten of the appellant from 1.2.93 mostly holding that the appellants cannot discriminate between the students of the same institute though the residence of the two children was some distance away from the bus stop. THE grievance of the respondent-complainant was that Amit and Dipak are admitted in the opponent school and the school provides the facility of two buses to several children of the school but the said facility is not provided to both the children of the complainant even though the complainant is prepared to pay the bus charges.

THE appellant contended before the District Consumer Disputes Redressal Forum that the residence of both the children at Gulabnagar is far away from the bus route and, therefore, it is not possible for them to provide that facility to both the children. It was also stated that the school has not collected donation or does not get grant from the government. THE other contentions that no such relief can be granted by the Forum etc. were also raised by the appellant. The order of the District Consumer Disputes Redressal Forum is mostly based on the consideration of the discrimination amongst the children of the same school. The District Consumer Disputes Redressal Forum has however failed to consider the very basic point as to whether the Forum has any jurisdiction to grant such a mandatory relief. The Forum practically accepted that the residence of both the children is not on the same route on which the buses for transport facilities of the students of the school are plied but in view of the Forum even though it may be at some distance away it would entail some more cost but even then said facility cannot be denied.

The order of the District Consumer Disputes Redressal Forum suffers from the very basic consideration as to whether the grievance of the complainant falls within the purview of the provisions of the Consumer Protection Act, 1986. The order of the District Consumer Disputes Redressal Forum should be set aside as the District Forum has no jurisdiction to pass any such order under the provisions of the Act. The complainant under the Act can get relief only if the person is a consumer as defined in Section 2(1)(d). This is not a case of buying goods and, therefore, the provisions of Sub-clause (1) of Clause (d) are not attracted. Admittedly the complainant had not hired or availed of services for consideration which has been paid or promised or is not a beneficiary of such service. The service should be hired or should be availed of for consideration. It is not the contention of the complainant that any such service is hired or availed of for consideration. The only contention is that the complainant is prepared to pay the fees for such facilities. Under the statute, or contract no obligation is undertaken by the appellant to provide such service. The complainant can get the relief if the deficiency in service is established. "Deficiency" means "any fault, imperfection, shortcoming or indequancy in the 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 the person in pursuance of the contract or otherwise in relation to any service." Admittedly, the appellant has no obligation either under the law or contract or otherwise for providing the transport facility to the children of the respondent and, therefore, the denial of any service does not amount to any deficiency of service. The service should be such service which is made available to the potential users and includes the transport service. Under Section 14 of the Act the relief can be granted to remove the defects or deficiency in service. But no such mandatory direction can be granted even though there may not be any defect or deficiency of service. The District Consumer Disputes Redressal Forum had no power and jurisdiction to issue such direction.

THE factual aspects also do not justify any such mandatory direction. It is practically an admitted fact that Gulabnagar, where both the children reside is not on the bus route and nearby the bus stop. According to the Forum it is about 3/4th kms. away from the nearest bus stop. To take the bus to the residence of the children would entail the extra cost. As the appellants are required to incur the extra cost for taking the bus for two children, they are justified in pleading their inability to provide that facility to both the children. No such mandatory direction which would entail financial burden should have been issued by the District Consumer Disputes Redressal Forum. In view of the above, the appeal requires to be allowed and the order by the District Consumer Disputes Redressal Forum should be set aside. ORDER The appeal is allowed. The order by the District Consumer Disputes Redressal Forum, Jamnagar is set aside. Parties to bear their own cost of the complaint and appeal. Appeal allowed. _____________