Op EdsOP. ED.

In Buddhist Mission Dental College and Hospital v. Bhupesh Khurana[1] the appellant had published an advertisement inviting applications for admission to Degree Course of Bachelor of Dental Surgery. The advertisement was ‘misleading’ in several ways. It was held by two Judges of the Supreme Court of India on 13.02.2009, that this was a case of total misrepresentation which is an ‘unfair trade practice’; the appellant was neither affiliated nor recognised for imparting education; this fell within the purview of ‘deficiency’ under the Consumer Protection Act, 1986 (‘the Act’). However, in Bihar School Examination Board v. Suresh Prasad Sinha[2], two-Judges Bench held on 04.09.2009 that the appellant was not rendering any ‘service’ and a ‘complaint’ under the Act would not be maintainable against it, for a fault in conducting an examination. We nearly hear an echo in Maharshi Dayanand University v. Surjeet Kaur[3] and in State of Tamil Nadu v. K. Shyam Sunder[4]: a student is no ‘consumer’.

In Punjab Urban Planning and Development Authority v. Vidya Chetal[5], three Judges were clear, that the definition of ‘service’ is not exhaustive and the legislature has left the task to the judiciary to explain the provision on a case to case basis. “The purpose of leaving this provision open ended, without providing an exhaustive list indicates the requirement for a liberal interpretation.” How then are, mostly all activities related to educational institutions excluded from the reach of the Act?

In Kerala Tourism Development Corporation Ltd. v. Deepti Singh[6],  two Judges were of the view that the finding of ‘deficiency’ of ‘service’, arrived at by National Consumer Disputes Redressal Commission (‘NCDRC’), was correct. The deceased, with ample future prospects, had drowned in a swimming pool of a hotel. The lifeguard on duty had also been assigned the task of being a bartender. This was considered to be a deviation from duty of care and amounted to ‘deficiency’ of ‘service’ of the hotel management. In light of the above, if a student (‘XYZ’), while justifiably pursuing the extracurricular activity of a swim in an intra-school contest, suffers injury on account of an employed, negligent lifeguard – will not the school be liable under the Act?

Once Manu Solanki v. Vinayaka Mission University[7] (‘Solanki’) is decided by the Supreme Court there would be a final answer. It is interesting, the question, for the time being, was answered in negative on 20.01.2020 when Solanki was before NCDRC in Manu Solanki v. Vinayak Mission University[8]:

 “Such incidental activities of an educational institution while imparting education would not amount to rendering any ‘service’ under the provisions of the Consumer Protection Act, 1986.”

This would mean, not only ‘consumer law’ has no remedies for XYZ but also for a student who suffers injury, in a picnic organised by an educational institution, on account of an employed, negligent bus-driver.

Whether it be concerning the Act or the Consumer Protection Act, 2019, a ‘deficiency’ is certainly an imperfection or inadequacy in the quality of performance, undertaken to be performed, in relation to any ‘service’ of entertainment or amusement. If one considers: (i) ‘service’ requires a liberal interpretation; (ii) many of us are personally witness to, and data should be collected on the same, several schools demand lofty amounts of donations and a submission of income tax details of parents of the child; and (iii) educational institutions often charge exorbitant fees for boarding, food etc., it becomes clear that the conclusion, a student is no ‘consumer’, cannot and should not always be correct. It merits an explanatory thought every time. The jurisprudential basis for the rule of widest construction, as relatable to being liberal, must be elastic enough to meet new social realities.

Thus, the order of the Bench comprising of  Dr. D.Y. Chandrachud, Indu Malhotra and Indira Banerjee, JJ.  on 15.10.2020 in Solanki[9]: “Since there are divergent views of this Court bearing on the subject as to whether an educational institution or university would be subject to the provisions of the Consumer Protection Act, 1986, the appeal would require admission” is correct.


* Practicing Advocate at New Delhi and Kolkata.

[1] (2009) 4 SCC 473

[2] (2009) 8 SCC 483

[3] (2010) 11 SCC 159

[4] (2011) 8 SCC 474

[5] (2019) 9 SCC 83

[6] (2019) 16 SCC 573

[7] Civil Appeal Diary No. 12901 of 2020

[8] 2020 SCC OnLine NCDRC 7

[9] Supra Note 7.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Justice V.K. Jain (Presiding Member), observed that Executing Court cannot go behind the decree and therefore, the State Commission has no option but to execute the order passed in the Consumer Complaints.

It has been stated that three Consumer Complaints were instituted before the State Commission against five persons including the appellant.

The above-stated Consumer Complaints were allowed by the State Commission against all the OPs including the appellant.

The order passed by the State Commission was not complied, therefore execution proceedings were initiated against the OPs in the Consumer Complaints including the appellant. Non-Bailable Arrest Warrants were issued by the State Commission, but the same was not executed and hence they were again issued and sent to SSP, Mohali.

Decision

Bench stated that in its opinion, the Consumer Complaints were allowed against all the OPs including the appellant, the appropriate remedy for him was to challenge the order passed by the State Commission in the Consumer Complaint.

Executing Court cannot go behind the decree and therefore, the State Commission has no option but to execute the order passed in the Consumer Complaints irrespective of whether the appellant had resigned from the Directorship of the company or not.

Since an Executing Court cannot go behind the decree, it was not open to the State Commission nor is it open to this Commission to examine, in execution proceedings, as to whether the appellant had resigned from the Directorship of the company as is claimed by him or not. Similarly, neither the State Commission acting in the execution proceedings nor this Commission, while hearing an appeal arising out of the execution proceedings, can go into this question.

Therefore, in view of the above, no relief to the appellant could be granted.

However, the Commission permitted the appellant to apply to the State Commission to be released on his personal bond if he is unable to arrange a surety. If such a request is made, it will be examined by the State Commission on its own merits. [Hardayal Singh Mann v. Inderjit Singh, Appeal Execution No. 60 of 2020, decided on 29-10-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: While deciding the instant appeals which raised objections concerning the jurisdiction of the J&K High Court to hear and decide appeals arising out of the orders passed by the Jammu and Kashmir State Consumer Disputes Redressal Commission, in view of the application of the Jammu and Kashmir Reorganization Act, 2019 which repealed the erstwhile Jammu and Kashmir Consumer Protection Act, 1987; the Division Bench of Ali Mohammad Magrey and Vinod Chatterji Koul, JJ., held that that all the pending proceedings/ appeals arising out of the orders or awards passed by the erstwhile Jammu and Kashmir State Consumer Disputes Redressal Commission will continue to be heard and decided by the High Court as if the un-amended provision/ Act is still in force.

However, the Bench clarified that from now on all the fresh proceedings concerning consumer complaints/ grievances/appeals shall be dealt with as per the mode and method prescribed in the newly changed scheme of law as provided in the Jammu and Kashmir Reorganization Act, 2019.

As per the facts of the case, the complainant owned a residential building which he had insured with both; the National Insurance Company Ltd. and the Oriental Insurance Company Ltd. On 23-09-2002, some terrorists sneaked into his house. In the gun battle that ensued between the terrorists and the security personnel, the insured/complainant’s house was heavily damaged and was eventually razed to the ground in order to eliminate the terrorists. Complainant claims to have approached both the Insurance companies to depute surveyors on the spot. National Insurance Company Ltd. deputed an investigator to the spot, who, after making spot inspection, asked for certain documents from the complainant which were provided; however the complainant received no further information. The Oriental Insurance Company Ltd., however, did not depute any Surveyor to the spot; instead, a communication was addressed by the Company to the complainant informing him that the policy stood terminated from the date of its inception. Therefore, the complainant approached the then Jammu and Kashmir State Consumer Disputes Redressal Commission for relief. As per the Commission’s assessment, the total liability was fixed to Rs. 15 Lakhs which was to be shared by both the Insurance companies. Complainant, being dissatisfied with the said order, has filed the appeal seeking enhancement of compensation in his favour. Hakim Suhail Ishtiaq, appearing on behalf of the complainant, submitted that the Commission, while passing the impugned order, did not appreciate the evidence on record in its true and correct perspective. J. A. Kawoosa, representing the National Insurance Company Ltd., argued that the impugned order passed by the Commission is contrary to law. Whereas N. H. Khuroo, appearing on behalf of the Oriental Insurance Company Ltd., challenged this Court’s jurisdiction to hear and decide these appeals in view of the application of the Jammu and Kashmir Reorganization Act, 2019. Counsels for both the Insurance companies contended that the insured/complainant had effected the insurance without disclosing vital material facts like the occupation of the premises by the terrorists as well as the existence of the simultaneous policy of insurance obtained from the other Insurance Company, thereby violating the principle of ‘uberrima fidei’.

Examining the facts of the case and the contentions raised by the parties, the Court observed that issue pertains to the nature of the disclosure made by the insured/ complainant in the proposal form and its impact on the entire process of invitation and acceptance of the offer. The relationship between an insurer and the insured is recognized as one where mutual obligation of trust and good faith are paramount. The Court upon perusing the evidences noted that the insured did make lapses in revealing certain vital information regarding the premises.

Thus, Bench held that the Commission had erred in properly appreciating the evidence on record, therefore its impugned order granting the compensation of Rs 15 lakhs to the complainant was set aside.[Sajad Ahmad Malik v. Divisional Manager, National Insurance Company Ltd., 2020 SCC OnLine J&K 299 , decided on 22-06-2020]