State Consumer Disputes Redressal Commission
Wwics Ltd. vs Satinder Pal Kaur Gill on 25 March, 2015
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1252 of 2011
Date of institution : 23.08.2011.
Date of Decision : 25.03.2015.
1. Worldwide Immigration Consultancy Services Ltd.
(WWICS) SCO -11, 1st Floor, above Spice Office, Leela
Bhawan, Patiala, through its Prop/Partner.
2. WWICS Ltd. Head Office A-12, Industrial Area, Phase-VI,
Mohali through its Managing Director.
3. WWICS Ltd. Regd. Office - DLF Center, Mazzonnia
Floor, Savitri Cinema Commercial Complex Greater
Kailash-II, New Delhi, through its Manager/Incharge.
........Appellants/Opposite parties.
Versus
Satinder Pal Kaur Gill aged 35 years w/o Jasbir Singh Gill r/o
Village Kaleka, Tehsil Bagha Purana, District Moga, Now r/o
House No.33, Vidya Nagar, Near Bajwa Academy, Opp. Punjabi
University, Patiala.
........Respondent/Complainant.
First Appeal against order dated
24.06.2011 of District Consumer
Disputes Redressal Forum,
Patiala.
Before:-
SH.J.S.KLAR, PRESIDING JUDICIAL MEMER
SH.VINOD KUMAR GUPTA, MEMBER
Present:-
For the appellants : Sh.Raman Walia, Advocate For the respondent : Sh.R.K.Shukla, Advocate First Appeal No.1252 of 2011 2 VINOD KUMAR GUPTA, MEMBER :
This appeal has been preferred by appellants ('the opposite parties' in the complaint) under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against respondent (the complainant in the complaint), challenging order dated 24.06.2011 in C.C. No.665 of 2010 passed by the District Consumer Disputes Redressal Forum, Patiala (in short the 'District Forum'), accepting the complaint of the complainant and directing OPs to refund the amount of Rs.1,18,550/- (Rs.30,000/- + 20,000/- + 68,550/-) deposited by the complainant with the OPs, as the retainer fee, professional fee and the fee for the services to be rendered by the GSBC after the landing of the complainant in Federal Canada, Rs.50,000/- as compensation for mental harassment. The instant appeal has been preferred against the same by OPs, the present appellant in this appeal.
2. The brief facts of the case are that Sh.Satinder Pal Kaur Gill complainant filed the complaint under Section 12 of the Act, 1986 against the opposite parties on the averments that in the month of November, 2009, she went to the office of OP No.1 (WWICS Ltd., First Floor, Above Spice Office, Leela Bhawan, Ludhiana through its proprietor) and asked about the plan for PR Canada. The official of the OP No.1 told her about Gold Spot Plan for Federal Canada under skilled worker's category and asked her to deposit Rs.30,000/- as fee. She was further asked to deposit the relevant documents within fifteen days after First Appeal No.1252 of 2011 3 depositing Rs.30,000/-. She had deposited further sum of Rs.20,000/- after filing the case for immigration. She deposited Rs.30,000/- on 01.12.2009 vide receipt No.103208 of 2009 and submitted the documents with OP No.1. OP No.1 assured her that she would get her visa within six months. She visited the office of the OP No.1 and she came to know that her case was not filed to the quarter concerned. She was asked to deposit Rs.20,000/- and US$ 1500 more and only then, her case would be filed by OPs. She deposited Rs.20,000/- on 29.01.2010, vide cheque No.704130, drawn on ICICI Bank Ltd. Sangrur Branch and on the next date, she approached OP No.1 to ascertain the value of amount of USD 1500, she came to know that the same were of the value Rs.68,550/-. It was further pleaded that the officer of the OP No.1 compelled her to give Rs.68,500/- in cash, but, she did not agreed for the same. However, when the matter snowballed into a heated discussion, OP No.1 agreed to issue a receipt. On 01.02.2010, the complainant paid Rs.68,550/- to the OP No.1 and OP No.1 issued the receipt to that effect. It was alleged that the OP No.1 insisted her to deposit Rs.68,550/- in the account of one Deep Sharma, instead of giving the cheque in favour of WWICS only and lateron, OP No.1 asked her that they would themselves deposit the amount in the account of Mr.Deep Sharma and issued the receipt to her. It was further pleaded that OP No.1 issued the letter dated 01.02.2012, wherein it was disclosed that they have received the entire payment including Rs.30,000/- as retainer fee, Rs.20,000/- as professional fee, 1500 First Appeal No.1252 of 2011 4 US$ (Rs.68,550/-) and thenceforward there was nothing due from the complainant to the OPs. It was promised that she would get the visa very soon. She received the letter dated 30.03.2010 from the OPs, wherein, it was mentioned that Ops had received the CHC file on 23.3.2010 and asked her to deposit USD 1500, which she had already deposited with OPs of Rs.68,500/- on 01.02.2010. On receipt of this letter, she visited OP No.1 and was informed that she had already paid USD 1500. She was told that Mr.Deep Sharma (Collection Head) Head Office, in whose account, the amount of Rs.68,550/- was deposited, had been defaulting and he also left the company and hence she had to deposit another USD 1500. It was alleged that she visited the office of the OPs a number of times asking for the refund of fees, as she did not want to pursue the case. However, the complainant was informed that the matter was being investigated, but when she insisted for the refund of money, the official of the OPs asked her to give the letter in writing why she did not want to pursue the case. The complainant gave a letter to OPs in writing on 24.06.2010 for the refund of the amount. The complainant also wrote letter dated 07.07.2010 to the visa officer of Canadian High Commission New Delhi, for the refund of visa fee. The complainant has filed the complaint seeking directions to the OPs to pay Rs.1,18,550/- (Rs.30,000/- + 20,000/- + 68,550/- = 1,18,550/-) alongwith 18% interest per annum and Rs.50,000/- for mental harassment and to further pay Rs.10,000/- as costs of litigation.
First Appeal No.1252 of 2011 5
3. The complaint was contested by the opposite parties by filing the written reply before the District Forum raising preliminary objections that the complainant is bad for non-joinder of M/s Global Strategic Business Consultancy (GSBC) Dubai (UAE) with whom the complainant had entered into a separate contract dated 30.11.2009. The amount of USD 1500 is alleged to have been paid by the complainant to M/s Global Strategic Business Consultancy (GSBC) and the same could not be claimed by the complainant from the OPs. The complainant had not impleaded Mr.Deep Sharma with whom she was allowed to deposit the amount of Rs.68,550/- in cash with the settled terms and conditions of the payment, as the payment had to be paid by way of demand draft only. The District Forum, Patiala had no jurisdiction to entertain and try the complaint because of Clause 17 of the Contract of Engagement dated 30.11.2009, which provides that all the differences and disputes arising between the parties shall be referred to the Sole Arbitration of the Vice President (Finance) at Chandigarh. On merits, it was admitted that the complainant had entered into a contract of engagement on 30.11.2009 with them and she paid Rs.50,000/- to them in terms of agreement. It was pleaded that her case was duly filed before the Canadian High Commission. It was further pleaded that the complainant had also entered into a separate agreement with Global Strategic Business Consultancy (GSBC) Dubai (UAE). As per the agreement, she had chosen the fees plan by agreeing to pay Rs.50,000/- to the OPs towards their fees and USD 1500 First Appeal No.1252 of 2011 6 fees of M/s Global Strategic Business Consultancy, Dubai, for availing the post landing Services in Canada. It was further averred that the complainant had voluntarily applied for the withdrawal of her case due to her family problems. It was denied that the complainant deposited Rs.68,550/- (USD 1500) with OPs, she was sent letter dated 30.03.2010 to send USD 1500 by draft as per the clause 5 of the contract arrived by the complainant with M/s Global Strategic Business Consultancy, Dubai. The amount of USD 1500 was never credited in the account of M/s Global Strategic Business Consultancy, Dubai. It was further pleaded that Mr.Deep Sharma had left the job, if any amount was deposited with Mr.Deep Sharma in cash against the settled terms and conditions, he should have been impleaded as OP in his individual capacity to answer the claim of the complainant independently. The other allegations of the complaint were denied by the opposite parties and the dismissal of the complaint was prayed for.
4. The complainant tendered in evidence affidavit of Yati Singh holder of the Power of Attorney of the complainant Ex.C-1 alongwith documents Ex.C-2 to C-10 and closed the evidence. On the other hand, the OPs tendered in evidence the affidavit of Rajiv Bajaj, Estate Officer of the OPs at Chandigarh Ex.R-10 alongwith documents Ex.R-1 to R-9 Jaspal Dr.Roli Aggarwal Ex.R-1 alongwith the documents Ex.R-3 to R-7 and closed the evidence. On conclusion of evidence and arguments, the District First Appeal No.1252 of 2011 7 Forum, accepted the complaint of the complainant and directed the OPs to refund the amount of Rs.1,18,550/- (Rs.30,000/- + 20,000/- + 68,550/-) deposited by the complainant with the Ops as the retainer fee, professional fee and the fee for the services to be rendered by the GSBC after the landing of the complainant in Federal Canada, Rs.50,000/- as compensation for mental harassment. Dissatisfied with the above order of the District Forum, OPs now appellant has filed this appeal against the same.
5. We have heard learned counsel for the parties and have gone though the record of the case.
6. It is an admitted fact in this case that the complainant had agreed to retain the services of the OPs for receiving professional service with regard to the preparation and submission of her immigration case for Fedral Canada. An agreement Ex.R-2 was signed on 30.11.2009 with OPs under Gold Spot Plan for PR for Federal Canada. The complainant also signed another agreement on the same date i.e. 30.11.2009 with M/s Global Strategic Business Consultancy, Dubai for (UAE) for post landing service in the Canada which is proved on record as Ex.R-7. As per the agreement, the complainant paid Rs.30,000/-, vide receipt No.103208/215 dated 01.12.2009 Ex.C-3, Rs.20,000/- on 29.01.2010 Ex.C-4 and Rs.68,500/- dated 01.02.2010 Ex.C-5.
7. The OPs issued the receipt vide letter dated 01.02.2010 vide Ex.C-6, which is reproduced as under :- First Appeal No.1252 of 2011 8
"We have received all the payments of
company. Retainer 30000/- Professional Fee
Rs.20000/- + USD 1500. Now you have no
dues with company.
You have to pay only VPF for Spouse CAD $
550 + VPF of Son CAD $150, Landing Fee for
P.A. & Spouse CAD $ 490 each."
8. Sh.Yadwinder Kaushal, Asst. Manager, Case
Processing Section, Patiala Branch office sent the letter dated 30.03.2010 Ex.R-8 to the complainant, wherein it was mentioned that your case has been filed on 01.02.2010 and they received CHC file on 23.03.2010 along with the requirement letter of updated and deficient document within 120 days from the date of their letter i.e. by 21.07.2010 as per the Contract of Engagement . He was requested to submit the professional fees of USD 1500, the same having become due. Letter dated 17.04.2010 Ex.R-4 was also sent to the complainant regarding the dispatch of CHC documents.
9. The version of the complainant is that under the contract of engagement Ex.R-2, she was not obliged to deposit anything beyond Rs.50,000/- qua US$ 1500, but even then, the same had been got deposited by the OPs to M/s Global Strategic Business Consultancy (GSBC), Dubai (U.A.E) with whom the complainant had entered into separate contract dated 30.11.2009 vide Ex.R-7 inspite of OP No.1 made an acknowledgement vide letter dated 01.02.2010 Ex.C-6. On the other hand, the stand of First Appeal No.1252 of 2011 9 the OPs is that the complainant deposited Rs.68550/- (USD 1500) with Mr.Deep Sharma, who is an employee of OP, who had left the job. This version of the OPs is not acceptable, but the complainant had deposited Rs.68,500/- with the OPs to make the draft and OPs issued the receipts, which is proved on record Ex.C-5&6. The complainant sent the letter dated 24.6.2010 Ex.C-9 to the branch Manager Patiala of the OP for refund of Rs.50,000/- + USD 1500. In this letter, it was mentioned that the file was received in March, 2010 due to the family circumstances and matter was not processed furthre. Another letter dated 07.07.2010 was sent by the complainant to the VISA Officer Canadian High Commission, New Delhi Ex.C-1, wherein it was mentioned that she wanted to withdraw her case. On the basis of the request, application, the OP sent the letter to Canadian High Commission on 14.07.2010 Ex.R-5, wherein, it was mentioned that the client is not longer interested in processing her case to Canada and due to her personal problems and requested to refund the visa processing fees. The Government of Canada and High Commission, Canada vide letter dated 27.07.2010 Ex.R-6 sent to the complainant, in which, it was mentioned that the file has been withdrawn and processing fees have been refunded through the centralized in take office in Sydney and complainant would receive it in 8-12 weeks. The main question which emerges in this case is whether the respondent is entitled to the refund of amount, which was paid to the appellant. We have First Appeal No.1252 of 2011 10 perused the Contract of Engagement (Skilled Category) Ex.R-2, wherein, Clause 10 pertains to Refund.
Refund :- i) The services provided by the Company being professional in nature, the entire fee is non-refundable. As per Clause 11A, the company will not refund any of the total fees and shall be entitled to full payment if. Once the client signs this contract and then he/she does not wish to proceed further for any reason whatsoever or the client voluntarily withdraws the immigration case at any stage. In this case, the OPs have performed its part of contract by filing the case of the complainant and file number dated 23.3.2000 was allotted, but due to the personal family circumstances of the complainant, the complainant herself gave the request for the withdrawal of the case. So, she falls under Clause of Section 11A (i, ii) thereof. The Agreement dated 30.04.2015 Ex.R-7 is arrived between the complainant and M/s Global Strategic Business Consultancy (GSBC), Dubai (U.A.E)and it has got no concern with the Contract of Engagement Ex.R-2 arrived between complainant and the OPs. The complainant had to pay USD 1500 to M/s Global Strategic Business Consultancy (GSBC), Dubai (U.A.E) for availing their post landing service in Canada. The complainant admittedly deposited equivalent value of USD 1500 with the OP, as acknowledged by the OP, vide their letter dated 01.02.2010 Ex.C- 6 and any default of the same made by any employee namely Deep Sharma would not mean with OPs and would demand the same from the complainant. It appears that GSBC, Dubai is an First Appeal No.1252 of 2011 11 associate of the OPs and that is why they collected the amount of Rs.68,550/- from the complainant on its basis, which clearly shows the deficiency in service on the part of the OPs. So, the complainant is entitled to the amount of Rs.68,550/-. The District Forum did not appreciate the facts so the order of the District Forum requires modification. Accordingly, the appeal filed by the appellant is partly allowed and the impugned order dated 24.06.2011 passed by the District Forum is modified to the extent that the complainant is entitled to recover Rs.68,550/- only from the OPs alongwith interest @ 10% from the date of deposit till actual realization and litigation expenses to the tune of Rs.10,000/-. The appeal of the appellant is accepted qua the demand of Rs.30,000/- + 20,000/- = Rs. 50,000/- as wrongly awarded by the District Forum and order of the District Forum is set-aside to this extent. The complaint is partly accepted with regard to the amount of Rs.68,500/- alongwith interest @ 10% till actual payment and the compensation for mental harassment is reduced to Rs.25,000/- in this appeal. The complaint is dismissed with regard to the remaining amounts.
11. The appellants/OP No.2 has deposited an amount of Rs.25,000/- with this commission at the time of filing the appeal. The amount of Rs.25,000/- with interest accrued, if any, be remitted by registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days. Remaining amount shall be paid by the appellant to the First Appeal No.1252 of 2011 12 respondent No.1/complainant within 45 days from the receipt of copy of the order.
12. The arguments in this appeal were heard on 18.03.2015 and the order was reserved. Now the order be communicated to the parties.
13. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(J.S.Klar)
Presiding Judicial Member
March 25 , 2015. (Vinod Kumar Gupta)
Lb/- Member