State Consumer Disputes Redressal Commission
M/S Worldwide Immigration Consultancy ... vs Manjit Kaur on 16 October, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 320 of 2014 Date of Institution 01.10.2014 Date of Decision 16.10.2014 1. M/s Worldwide Immigration Consultancy Services Ltd. (WWICS), SCO No.2415-16, Sector 22-C, Chandigarh, through its Director. 2. M/s Global Strategic Business Consultancy, Head Office, A-12, Phase VI, Industrial Area, SAS Nagar, Mohali through its Authorized Signatory/Director Sh.Parvinder Sandhu. ..Appellants/Opposite Parties. Versus Manjit Kaur D/o S.Charan Singh, resident of House No.919, Phase-3B-II, Mohali (Punjab). ...Respondent/Complainant. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SH. DEV RAJ, MEMBER
MRS.
PADMA PANDEY, MEMBER Argued by:Sh.Raman Walia, Advocate for the appellants.
PER PADMA PANDEY, MEMBER This appeal is directed against the order dated 27.08.2014, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it partly allowed the complaint filed by the complainant (now respondent) and directed the Opposite Parties (now appellants) as under :-
15. For the reasons recorded above, we find merit in the complaint and the same is partly allowed. OPs are directed :-
i) To pay an amount of Rs.40,000/- only to the complainant towards compensation on account of mental agony and harassment and deficiency in service on the part of OPs.
ii) To pay an amount of Rs.11,000/- to the complainant towards cost of litigation.
The liability of the OPs shall be joint and several.
16. This order shall be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the above said awarded amount to the complainant along with interest @ 12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.
2. The facts, in brief, are that Opposite Party No.1 (Worldwide Immigration Consultancy Services Limited) informed the complainant that it had launched an Arranged Employment Opinion Program for Canada for professionally trained workers and technically qualified professionals in various trades and occupations. It was stated that after the mock interview and on seeing the relevant documents and experience certificate of the complainant, she was assessed to be a suitable candidate for obtaining visa for Canada. The complainant was told that applications for Canada as a skilled professional under AEO were processed out of turn in 6 to 8 months and, thereafter, on the advice of the Opposite Parties, she submitted all the requisite documents, as demanded and needed for assessing her case. The complainant deposited a total sum of Rs.50,000/- through cheques vide receipts (Annexure C-1 & C-2). It was further stated that on 21.11.2005 a Contract of Engagement (Annexure C-3) was executed between the parties, which was unilateral, in nature, and containing one sided terms and conditions. Opposite Party No.1 explained to the complainant that the maximum time taken for permanent resident visa would be 6-8 months but the Opposite Parties totally failed in their obligations and duties and did not stick to the time bound schedule and, thus, indulged in unfair trade practice.
3. It was further stated that the Opposite Parties obtained the signatures of the complainant with trickery on one Contract of Engagement with Global Strategic Business Consultancy having its office at Dubai. They also obtained signatures on various other blank papers including blank cheques, from the complainant with trickery. Thereafter, the complainant was informed by the Opposite Parties vide letter dated 2.9.2006 (Annexure C-4) that she had cleared the first stage and that the second stage was interview by Canadian High Commission. Thereafter, some amounts were taken by Opposite Party No.1, from the complainant, by way of drafts in favour of the Canadian High Commission. It was further stated that after submission of the above said liquidated amount and drafts, in favour of the Canadian High Commission, whenever the complainant visited the office of the Opposite Parties, she was informed that they were waiting for the interview call and no other intimation was given to her. It was verbally told to the complainant that the Canadian High Commission in the month of August, 2006 was assessing applications received approximately 52 months ago and it was not possible for them to complete the initial screening within 52 months. The complainant fed up with the unfair trade practices adopted by the Opposite Parties, wrote the letter dated 28.12.2012 (Annexure C-5) for refund of her amounts, which was duly received vide receipt (Annexure C-6). The complainant was told that her case had been terminated but no proof was shown to her at any point of time.
4. It was further stated that in the mid of 2013, the Opposite Parties silently refunded a total sum of Rs.20,350/-, which was forwarded by them to the High Commission of Canada on behalf of the complainant. The complainant visited the office of the Opposite Parties numerous times for redressal of her grievances but the demands raised by her fell on their deaf ears. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
5. In their written statement, the Opposite Parties, stated that the complainant had signed two certificates dated 21.11.2005 (Annexure R-1/A & R-1/B) and also entered into two separate Contracts of Engagements (Annexure R-2 & R-3). The contract (Annexure R-2) was entered into by the complainant with Opposite Party No.1, and the Contract of Engagement (Annexure R-3) was entered into between the complainant and M/s GSBC, Dubai. It was further stated that both the complainant and Opposite Parties were bound by the various clauses of the Contract of Engagement entered into between them. It was further stated that the Opposite Parties duly verified and adhered to their part of contract and filed the case for permanent immigration of the complainant with the Canadian High Commission. As per the Contract of Engagement (Annexure R-2), the professional fee charged by the company was not refundable.
6. It was further stated that the immigration case of the complainant was affected by the provisions of the Jobs, Growth and Long Term Prosperity Act, 2012 and was terminated by law, as per letter dated 24.5.2013 (Annexure R-11). It was further stated that the complainant made the vague allegations and raised disputed questions of facts, which could only be decided by the Civil Court. It was further stated that the case for permanent immigration of the complainant was duly filed and intimation with regard to the same was sent to her vide letter dated 7.1.2006 (Annexure R-5). It was further stated that the complainant was thoroughly advised and guided by the Opposite Parties at all levels. It was further stated that the case of the complainant was duly filed with the Immigration Authorities, with all the necessary documents and certain documents such as International English Language Testing System (IELTS), Police Clearance Certificate (PCC), proof of funds available with the client for settlement in Canada etc., were to be forwarded at a later stage. On the very same day, the complainant was informed about the pending documents (Annexure R-5). It was further stated that letter dated 19.7.2006 (Annexure R-6) was received from the Canadian High Commission, acknowledging the complainants application and intimating that about 52 months were being taken for the processing of the application. It was further stated that the Company was regularly in touch with the complainant and the Canadian High Commission and was providing the necessary documents to the latter. It was further stated that letter dated 22.12.2008 (Annexure R-9) was received from the Canadian High Commission, but the complainant was interested in continuing with her immigration case, so she did not file any application for return of her application fee. Thereafter, vide letter dated 3.3.2009 (Annexure R-10), document with regard to French diploma was forwarded to the Canadian High Commission. However, due to coming into being the new Immigration Act, effective from 29.6.2012, the Canadian High Commission vide letter dated 24.5.2013 (Annexure R-11) intimated that the application of the complainant had been terminated by operation of law.
7. It was further stated that the complainant had been refunded an amount of Rs.31108.60 vide draft dated 16.7.2013 (Annexure R-12). It was further stated that the complainant had entered into a Contract of Engagement for receiving professional services with respect to preparation, submission and immigration case for Canada Federal under skilled category. It was further stated that the category for Arranged Employment Offer was different and the complainant had not signed under the said different category. It was further stated that as per Clauses 8 and 9 of the Contract of Engagement signed by the complainant, time was not the essence of contract. It was further stated that the Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.
8. The complainant, filed her rebuttal affidavit to the written statement furnished by the Opposite Parties, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written versions of Opposite Parties.
9. The Parties led evidence, in support of their case.
10. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, partly allowed the complaint, as stated above.
11. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
12. We have heard the Counsel for the appellants at the preliminary stage, and have gone through the evidence and record of the case, carefully.
13. The Counsel for the appellants/Opposite Parties submitted that the respondent/complainant had agreed that no refund would be applicable, as the services provided by the appellants being professional in nature. Yet ignoring the said clause in the Contract of Engagement, the learned District Forum allowed the complaint, even though the case of the respondent/complainant had been duly processed by the appellants. However, due to sudden change in the Legislation by the Canadian Government, the case of the respondent/complainant for permanent immigration had been returned by the Immigration Authorities and, as such, the appellants had duly performed their part of the contract and there was no deficiency in service on the part of appellants. He further submitted that as per the refund clause, contained in the Contract of Engagement, it was clearly mentioned that the refund of professional fee paid by the respondent/complainant would not be applicable in case of changes in the Immigration Rules and Regulations, due to which, she would no longer qualify under the program for visa to the destination Country and in such cases the entire professional fee paid by the client was to be non refundable. The Counsel for the appellants further submitted that the Canadian Government Ministry of Citizenship and Immigration, Canada, enacted the law i.e. the Jobs, Growth and Long Term Prosperity Act, which became operative from 29.6.2012. Under this Legislation, Federal Skilled Worker (FSW) applications made before 27.2.2008 were terminated by the operation of law, if a selection decision had not been made by an Immigration Officer before 29.3.2012. The case of the respondent/complainant was also affected by this provision and her application was terminated by law and intimation with regard to the same was sent to her by the Canadian High Commission.
14. After giving our thoughtful consideration, to the submissions, raised by the Counsel for the appellants/Opposite Parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded, hereinafter.
15. The first question, to be determined is, as to whether the appellants/Opposite Parties were liable to refund the professional fee of Rs.50,000/- to the respondent/complainant. The answer to this question is in the negative. The perusal of clauses relating to the refund of the fees in the Contracts of Engagement (Annexure R-2 and R-3), and the action taken by the appellants/Opposite Parties in sending the application of the respondent/complainant to the Canadian High Commission, does not warrant the appellants/Opposite Parties to refund the professional fee of Rs.50,000/-, to the respondent/complainant.
16. The next question, that arises for determination is whether the appellants/Opposite Parties were guilty of unfair trade practice and deficiency in service in not taking immediate steps, resulting into delay, on account of which, the application of the respondent/complainant was terminated by operation of law. As per Condition No.8 of the Contract of Engagement (Annexure R-2), the Company on receiving the documents from the respondent/complainant was required to make all efforts to file immigration case at the earliest, with the concerned visa post. Further, as per Condition No.9 of the said contract, the Company was to make honest endeavour to ensure speedy achievement of the objectives. In the instant case, after obtaining the professional fee, and after execution of the agreement (Annexure R-2), the appellants/Opposite Parties allegedly sent the case of the respondent/complainant to the Canadian High Commission on 7.1.2006 (Annexure R-4). However, the appellants/Opposite Parties had not placed on record any acknowledgment of the Canadian High Commission showing that the said case was duly submitted on 7.1.2006 itself. No postal receipt or other documentary evidence had been produced to prove the sending of documents on 7.1.2006 itself. The respondent/complainant had disputed the dispatch of this letter on 7.1.2006 and there was no definite evidence to this effect that the case of the respondent/complainant complete in all respects was sent with immediate promptness. Pertinently, according to the appellants/Opposite Parties, they sent the letter dated 7.1.2006 (Annexure R-5) to the respondent/complainant asking her to transmit valid passport and recent police clearance certificate within 90 days and also keep the proof of funds for the whole family irrespective of move plan alongwith other documents. The respondent/complainant was also advised to get an International English Language Test Score (IELTS) certified with minimum 7 grades. The respondent/complainant had contended before the District Forum that she did not receive any such letter from the appellants/Opposite Parties and she was kept in dark and despite the denial by the respondent/complainant of receipt of this letter, the appellants/Opposite Parties had not produced any proof of delivery of this letter to the respondent/complainant.
17. So far as the letter dated 19.7.2006 (Annexure R-6) is concerned, which was purported to be issued by the High Commission of Canada to the Opposite Parties, though we feel that the same was a genuine document, yet again there was no proof of delivery of this letter to the respondent/complainant. Appellants/Opposite Parties had failed to file any authentic proof regarding the submission of complete case of the respondent/complainant with High Commission of Canada and it could not be said that they took immediate steps for submitting the complete case of the respondent/complainant with promptness. Further, according to the appellants/Opposite Parties, they sent one letter dated 11.8.2006 (Annexure R-7) to the Canadian High Commission alongwith IELTS result of the respondent/complainant. Apart from it, vide letter dated 19.10.2006 (Annexure R-8), a notarized copy of divorce judgment of the respondent/complainant alongwith proof of funds was sent. Again there is no documentary evidence of proof of delivery of these letters. Therefore, no presumption could be drawn of delivery of these letters. There was also no documentary evidence to this effect that the respondent/complainant was made aware of the further developments in her application for permanent immigration. The appellants/Opposite Parties produced, in evidence, copy of the letter dated 22.12.2008 (Annexure R-9), whereby, the respondent/complainant was allegedly informed that if she was no longer interested in migrating to Canada, she could withdraw her application. This fact was denied by the respondent/complainant. The appellants/Opposite Parties did not produce any proof of delivery of this letter to the respondent/complainant. The case of the complainant before the District Forum was that due to non receipt of the said letter, she could not take a decision to withdraw the application for immigration within 90 days. According to the appellants/Opposite Parties, they further sent a letter dated 3.3.2009 (Annexure R-10) to the Canadian High Commission, whereby, they had sent copy of the document related to French diploma. Again there was no proof of delivery of this document. Therefore, no presumption could be raised whether this document was actually sent to the High Commission of Canada on the said date. The appellants/Opposite Parties had produced a letter dated 24.5.2013 received on 1.6.2013 (Annexure R-11) from the Canadian High Commission addressed to the respondent/complainant intimating that her application was terminated by operation of law, but the respondent/complainant had denied the receipt of this letter before the District Forum and the appellants/Opposite Parties did not produce the proof of delivery of this letter. It seems that the complete case of the respondent/complainant was not sent by the appellants/Opposite Parties to the High Commission of Canada on 7.1.2006, otherwise copy of the judgment of divorce and copy of the French diploma could be sent to the High Commission of Canada earlier also. The result of IELTS dated 24.5.2006 of the respondent/complainant was allegedly forwarded by the appellants/Opposite Parties on 11.8.2006, which also shows that it was not forwarded at the earliest to ensure speedy achievement of the objective. Had the appellants/Opposite Parties promptly submitted the documents to the Canadian High Commission then selection decision could have been made by the Immigration Officer before 29.3.2012. Had the complete case been forwarded to the High Commission of Canada by the appellants/Opposite Parties on 7.1.2006, the decision on the application could be taken by the Visa Officer earlier. Had the documents of the complainant been sent to the Visa Officer promptly, the application of the respondent/complainant for immigration to Canada would not have been terminated by operation of law.
18. It is also noteworthy that the respondent/complainant made an application for refund of total fee on 28.12.2012, which was received on that very day by the appellants/Opposite Parties (Annexure C-5 and C-6) but no reply to same was sent to her by them (appellants/Opposite Parties).
19. After having considered the various aspects of the matter discussed above, we feel that the appellants/Opposite Parties did not take prompt action on the application for immigration filed by the respondent/complainant and sent an incomplete case to the Canadian High Commission and also did not intimate the respondent/complainant about the action being taken by them on her application and further did not give any reply to her letter dated 28.12.2012 (Annexure C-5) for refund of the total fee. Therefore, all these acts/omissions point out towards the negligence and deficiency in service on the part of appellants/Opposite Parties resulting in harassment and mental agony to the respondent/complainant. Consequently, the respondent/complainant was certainly entitled to get compensation on account of deficiency in service on the part of Opposite Parties. The order of the District Forum, being legal and valid, is liable to be upheld.
20. The order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.
21. For the reasons recorded above, the appeal, filed by the appellants/Opposite Parties, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
22. Certified Copies of this order be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion.
Pronounced.
16.10.2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER rb STATE COMMISSION FIRST APPEAL No. 320 of 2014 Argued by: Sh.Raman Walia, Advocate for the appellants.
Dated _the 16th day of October, 2014
-.-
Vide our detailed order of the even date recorded separately, the appeal filed by the appellants/Opposite Parties has been dismissed, at the preliminary stage, with no order as to costs and the order of the District Forum has been upheld.
[DEV RAJ] MEMBER [JUSTICE SHAM SUNDER (RETD)] PRESIDENT [PADMA PANDEY] MEMBER rb