State Consumer Disputes Redressal Commission
Ohrien Global Immigration Consultants vs S. Joginder Singh, on 15 April, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 11 of 2010
Date of institution: 6.1.2010
Date of Decision:15.4.2014
Ohrien Global Immigration Consultants through its Manager 383, Red
Road, Hoshiarpur.
.....Appellant/Opposite Party
Versus
S. Joginder Singh, R/o C-2227, Ranjit Avenue, Amritsar.
.....Respondent/Complainant
First Appeal against the order dated 17.8.2009
passed by the District Consumer Disputes
Redressal Forum, Amritsar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellant : Ms. Manjuli Joshi, Advocate
For the respondent : Sh. J.P. Ratra, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/opposite party (hereinafter referred as "the OP") has filed the present appeal against the order dated 17.8.2009 passed by the District Consumer Disputes Redressal Forum, Amritsar(hereinafter referred as "the District Forum") in consumer complaint No.874 dated 23.12.2008 vide which the complaint filed by the respondent/complainant(hereinafter referred as 'the complainant') was allowed with a direction to the OP to pay a difference of the amount taken from the complainant paid to the College. The opposite party was further directed to pay the amount of Air Fare, which has to 2 FIRST APPEAL NO. 11 OF 2010 be spent by the complainant against the promise made by the Ops and also directed to pay Rs. 20,000/- as compensation and Rs. 1,000/- as litigation expenses.
2. The complaint was filed by the complainant against the opposite parties on the allegations that the Ops gave a public notice in the newspaper Dainik Bhaskar dated 31.12.2006 for arranging admission in Seneca College, Canada to the persons having the qualification of matriculation and above alongwith free air ticket and OGIC Scholarship upto 1000 Dollar. Since the complainant was interested to send his son to Canada on study basis, he alongwith his son approached the opposite party on 16.2.2007 and the Ops assured the complainant that they will definitely arrange the admission of the complainant's son in Seneca College, Canada besides free air ticket as well as Scholarship and he paid a sum of Rs. 22,000/- to the OP against receipt No. 123 dated 16.2.2007. However, the Ops wasted one year being unable to get admission of the son of the complainant in Seneca College, Canada and then on 17.4.2008 another amount of Rs. 10,000/- was received by the Ops giving assurance that he will arrange the Visa and admission of his son in the Seneca College. His son was called in April, 2008 and handed over one letter dated 30.3.2008 issued by Seneca College confirming the admission of his son stating that they are unable to arrange his admission in Seneca College and further assured that Sheridan College enjoys the same reputation as that of Seneca College, therefore, admission can be arranged in that College. Accordingly, the complainant deposited a sum of Rs. 4,32,000/- on 3 FIRST APPEAL NO. 11 OF 2010 22.5.2008 with OP i.e. Rs. 2,32,000/- vide cheuqe No. 350487 dated 27.5.2008 and Rs. 2 lacs vide cheque No. 350444 dated 22.5.2008 drawn on Punjab and Sind Bank, Basant Avenue, Amritsar, Rs. 20,000/- was paid towards College registration fee, Rs. 10,000/- as processing fee and Rs. 6,000/- was received as Embassy Fee. Then the son of the complainant was called for by the OP in August, 2008 and told the complainant that they had not been able to arrange admission of the son of the complainant in Sheridan College and that they have been able to arrange the admission of the complainant in Canadore College vide letter dated 5.8.2008 and through reliable sources the complainant came to know that the said College is situated in North Canada, which is very snow/cold area and atmosphere is not suitable for the Indians. Since the carrier of the son of the complainant was at stake and precious time of his son had wasted, the complainant had no other option but to accept the letter of Canadore College. The complainant requested many times to the OP to hand over the receipt of the fee paid but till date the OP had not supplied any receipt to the complainant. Since the payment was made by the complainant for the admission of his son, therefore, he is beneficiary and is 'consumer' under the Act. Further the Ops failed to give any free air ticket and scholarship of 1000 dollar as promised in the advertisement. The Ops gave mis-leading advertisement and are indulging in unfair trade practice and deficiency in their services, hence, the complaint with a direction to the Ops to furnish the detail of the amount charged from the complainant and to refund the excess 4 FIRST APPEAL NO. 11 OF 2010 amount, pay Rs. 4 lacs as compensation, Rs. 63,000/- for the purchase of the air ticket and taxi charges and litigation expenses.
3. The complaint was contested by the opposite party, who filed written reply taking preliminary objections that the complainant is not a consumer of the OP; therefore, the complainant has no right to file the present complaint; the complaint was not legally maintainable as it was not filed by competent person; the complainant had no locus-standi to file the complaint; no cause of action had arisen to file the complaint and that the Hon'ble Forum had got no jurisdiction to try this complaint. On merits, it was admitted that the son of the complainant had visited the office of the OP on 16.2.2007. It was denied that any assurance was given that they will definitely arrange the admission of the son of the complainant in Seneca College, Canada, besides free air ticket and scholarship. It was denied that the complainant paid a sum of Rs. 22,000/- against the receipt No. 9 dated 17.4.2008. Another boy Pankaj Preet Singh had made the payment of Rs. 22,000/- and its receipt was issued. It has been denied that the OP wasted one year being unable to get admission of the son of the complainant in Seneca College. It was also denied that it was assured that then will arrange the Visa and admission of the son of the complainant, rather the consent was withdrawn by the son of the complainant to take admission in Seneca College and he was handed over one letter dated 30.3.2008 issued in the name of the complainant by Sheridan College in the name of the son of the complainant in the College. However, the son of the complainant could not arrange/hand over the amounts for the admission in the 5 FIRST APPEAL NO. 11 OF 2010 Sheridan College in time. The opposite party did their hard work and arranged the admission of the complainant in Canadore College. The complainant had deposited a sum of Rs. 4,32,000/- as son of the complainant was interest to get admission in Canadore College. It was denied that the OP had received a sum of Rs. 22,000/-, Rs. 10,000/- and Rs. 6,000/- from the complainant. It was stated that the amount so received from the son of the complainant was non refundable amount and affidavit in this regard was duly executed by the son of the complainant. It was further denied that the OP ever called for the complainant or his son in the month of August, 2008. it was denied that the Canadore College is situated in North Canada, which is snow/cold area, which is not suitable to the Indian students or that it was under rating college. The son of the complainant took the admission in that College and completed his course and now he is estopped by his own act and conduct to say that the College was under rating college. Whatever was possible for the Ops to arrange the admission of the son of the complainant, it was so done, therefore, there was no deficiency in services on the part of the Ops. It was also denied that they did not fulfil the promise so stated in the advertisement. It was also denied that they were indulging in any unfair trade practice. Therefore, no merit in the complaint and the same be dismissed with special costs.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, receipts Ex. C-2 to C-4, 6 FIRST APPEAL NO. 11 OF 2010 cheques Exs. C-5 & C-6, letters Exs. C-7 & 8, receipt Ex. C-9, letter of acceptance Ex. C-10, confirmation of acceptance Ex. C-11, fees invoice Ex. C-12, letter dt. 5.8.08 Ex. C-13, student acceptance information Ex. C-14, pamphlet form Ex. C-15. On the other hand, the opposite party had tendered into evidence affidavit of Sandeep Ohri, M.D. Ex. R-1, affidavit of Pankaj Preet Singh Ex. R-2.
6. After going through the allegations in the complaint, written statement filed by the OP, evidence and documents brought on the record, the learned District Forum vide impugned order observed that the advertisement was given by the Ops for Seneca College. The admission was not arranged there then they stated to arrange admission in Sheridan College. It was also not done and ultimately, it was arranged for Canadore College, it was under rating college and that the Scholarship and free air ticket was not provided, accordingly, the complaint was allowed by the learned District Forum as stated above.
7. Aggrieved with the order passed by the learned District Forum, the appellant/opposite party has filed the present appeal.
8. We have heard the learned counsel for the parties.
9. In the grounds of appeal, it has been stated that the order of the learned District Forum is liable to be set-aside on the ground that the appellant had arranged the admission of the son of the complainant in Seneca College but it was he who did not opt for the course. Then confirmation letter for admission in Sheridan College was given to the complainant but he could not arrange the fee within the stipulated period and then the admission was arranged for the 7 FIRST APPEAL NO. 11 OF 2010 Canadore College, therefore, there is no default on their part as per the agreement Ex. C-9. The District Forum has ignored the terms of the agreement and has passed the impugned order, which is liable to be set-aside.
10. From the perusal of the pleadings and documents placed on the record by the parties, it is clear that as per the advertisement Ex. C-15 given by the appellant/OP in Dainik Bhaskar, they were to arrange study in Canada, Australia, UK & Europe and advertisement was given to arrange admission in Seneca College, the biggest college of Canada, who had passed 10th or 10+2 alongwith free air ticket and scholarship of 1000 US Dollar, accordingly, the complainant approached the Ops for the admission of his son in the Seneca College and had deposited a sum of Rs. 22,000/- with the OP vide receipt Ex. C-3 as registration fee. There is letter dated 4.5.2007 placed alongwith the appeal file although this letter dated 4.5.2007 has not been placed on the file of Learned District Forum. This letter was for admission in Seneca College but it was for 'Early Childhood Education' for three years course. It has been stated that in this College the admission was not taken by the complainant/respondent. During the course of arguments, it has been stated that this course is mainly for Girl students, therefore, there was no purpose for the complainant to get admission in that course. Then on 17.4.2008, another amount of Rs. 10,000/- was taken from the complainant and letter dated 30.3.2008 was given to the son of the complainant for admission in the Sheridan College and the fee was to be deposited within three weeks of the date of this letter and that the fee was not 8 FIRST APPEAL NO. 11 OF 2010 deposited within time. So far as documents on the record vide Ex. C- 5 cheque dated 22.5.2008 a sum of Rs. 2,32,000/- were paid to the Op and another cheque of the same date of Rs. 2 lacs was paid to the OP. Although the start of the course was September, 2008. It is the date of the start of the course, but the admission is to be completed before that date. In case the complainant has failed to deposit the fee within the stipulated period the college may fill up the seat from some other student, therefore, with regard to the admission in this College, the OP will not be able to arrange admission in the said College. There is every possibility that admission could not be insured due to late deposit of the fee. Then another letter Ex. C-13 dated August 5th, 2008 was addressed to the son of the complainant for admission in Canadore College. In the said College, the admission was taken and he has completed the course in that college.
11. Now vide impugned order, it has been ordered that in case there is a difference with regard to collection of the payment from the complainant and paid to the College the complainant will be entitled to the difference and there is no cross appeal from the side of the complainant to say that the learned District Forum has not returned the findings that the Ops had failed to get admission in the Seneca College. They had arranged the admission, it is a different matter that the course was not suitable to the complainant. Before the District Forum, OP did not produce the receipt of the amount, which was deposited by him with the Canadore College. However, in the appeal, the complainant/respondent has placed on the record the 9 FIRST APPEAL NO. 11 OF 2010 document of Canadore College on 3.9.2008 of the fee taken from the complainant, it is 10670 Dollars. The counsel for the complainant had calculated this amount @ Rs. 37.72 whereas the counsel for the appellant stated that on that date, the rate of the dollar was above Rs. 40/- but no specific exchange rate on that day has been placed on the record, therefore, it will be in the execution in case the complainant places on the record the conversion rate as on 3.9.2008 and then it will be decided what amount has been taken by the OP and paid to the College. In case they have taken the excess amount then he can go for recovery as per the order of the District Forum.
12. So far as the compensation part is concerned, originally as per the advertisement given in newspaper 'Dainik Bhaskar' dated 31.12.2006, he had got himself registered on 16.2.2007 although in the month of May, 2007, Seneca College has offered to the complainant but it was 'Early Childhood Education', which is mainly for Girl students, therefore, it could not be taken by the son of the complainant/respondent, therefore, while referring the course the OP should have searched/taken care, whether it will be suitable to the complainant but they did not care of this fact. Then in the Sheridan College, it has been stated that the letter dated 30.3.2008 was given to him in the month of April, 2008 and he deposited the fee in the month of May, 2008, although the course was to start in the month of September, 2009 but admission time was not upto that date, therefore, it is just possible that he could not be admitted due to timely deposit of the fee with the OP and then ultimately, admission was arranged in Canadore College where he took the admission and 10 FIRST APPEAL NO. 11 OF 2010 completed the course. Now he says that it was under rating College but there is no specific evidence on the record that it is under rating college. It was upto him whether the College is acceptable to him. In case he accepted the proposal and completed the studies, now he cannot raise the finger that the College was not upto mark. Even otherwise no specific evidence has been brought by the complainant that it is an under rating College. However, it is pertinent that in that complainant had wasted the period of one year for which the compensation of Rs. 20,000/- awarded by the learned District Forum is not on the excessive side.
13. In the advertisement placed on the record as Ex. C-15, there was a promise for free air ticket and OGIC scholarship upto $ 1000. Under the definition of 'consumer' as defined under Section 2(1)(d)(ii), it is not only contract but any promise also covers in the service, therefore, despite promise the Ops have failed to provide free air ticket, therefore, this relief has also been rightly granted to the complainant. In case we go through the pleadings and evidence on the record put forward by the parties on the record, we are of the opinion that the order so passed by the learned District Forum is justified and the same is hereby confirmed.
14. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
15. The arguments in this appeal were heard on 7.4.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
11FIRST APPEAL NO. 11 OF 2010
16. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
17. Remaining amount shall be paid by the appellant to the respondent within 30 days from the receipt of the copy of the order.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Vinod Kumar Gupta) Member April 15, 2014. (Harcharan Singh Guram) as Member