State Consumer Disputes Redressal Commission
Idp Education India Pvt. Ltd. & Anr. vs Geetu Bhalla on 3 April, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.660 of 2022
Date of Institution : 04.08.2022
Reserved on : 11.03.2024
Date of Decision : 03.04.2024
IDP Education India Private Limited (wrongly mentioned as
International Development Programme, IDP Education Australia in
the complaint), having its office at : SCD 140-142, Sector 9, Madhya
Marg, Union Territory of Chandigarh. Also at : Feroze Gandhi Market,
above Titan Show Room, Ludhiana, Punjab. Registered Office: Suit
No.610-616, 6th Floor, International Trade Tower, Nehru Place, New
Delhi-110019.
.....Appellant/Opposite Party
Versus
Ms. Geetu Bhalla wife of Mr. Avon Bhalla, resident of House No.141,
Dasmesh Nagar, Ferozepur City, Punjab.
.....Respondent/Complainant
Appeal under Section 41 of the Consumer
Protection Act, 2019 to challenge the
impugned order dated 26.04.2022 passed
by the District Consumer Disputes
Redressal Commission, Kapurthala Camp
Court at Ludhiana in RBT/C.C. No.61 of
2016.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Present:-
For the Appellant : Sh. Nihit Nagpal, Advocate
For the Respondent : Sh. Nitish Garg, Advocate
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First Appeal No.660 of 2022
1) Whether Reporters of the Newspapers
may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported
in the Digest? Yes/No
JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The Appellant/Opposite Party i.e. IDP Education India Private Limited has approached this Commission by way of filing the present Appeal under Section 41 of the Consumer Protection Act, 2019 (in short the 'Act') being aggrieved by the order dated 26.04.2022 passed by the District Consumer Disputes Redressal Commission, Kapurthala Camp Court at Ludhiana (hereinafter referred as the 'District Commission') in RBT/C.C. No.61 of 2016. whereby the Complaint filed by Respondent/Complainant had been allowed.
Caveat Petition No.16 of 2022 :
2. This Caveat Petition has been filed by the Respondent/Complainant for issuance of prior notice to them in case of filing of any Appeal by IDP Education Australia.
3. Sh. Nitish Garg Advocate representing the Respondent/Complainant had put an appearance on 06.09.2022 before this Commission. Accordingly, Caveat No.04 of 2024 was disposed off vide order dated 06.09.2022.
Main Case
4. Briefly, the facts of the case as made out by the Complainant before the District Commission are that the Complainant 3 First Appeal No.660 of 2022 had attended the Seminar at Ferozepur in the month of November 2006 as conducted by the OPs regarding chance of learning and earning in Australia. The Complainant had consulted the OPs regarding required documents for the purpose of getting job in Australia. After verifying the technical as well as academic qualification and the experience of the Complainant, the OPs had advised to get registered the application with Australian Computer Society at Sydney. The Complainant had applied for registration with Australian Computer Society at Sydney by depositing $350 (INR of Rs.12,300/- + Rs.200 as foreign currency exchange charges). It was further mentioned that the Australian Computer Society, Sydney had confirmed the receipt of skilled assessment application vide reference No.240756 on 23.01.2007. The Complainant had hired the services of the OPs for valuable consideration, as such the Complainant was the 'Consumer' of the OPs. Thereafter, the Complainant was asked to fill up the Form for Membership of Australian Computer Society. She had sent the complete skilled Visa application to Australia under registered cover alongwith $1990 (AUD) (INR Rs.69391.30/-). The Australian Government had confirmed the payment vide receipt No.1740509536. Thereafter, the Department of Immigration and Citizenship, Australian Government had acknowledged the receipt of Visa Application and had also demanded the requisite documents vide letter dated 22.08.2007. Thereafter, the Australian Government through OPs had demanded certain documents i.e. the copy of Master of Science Degree Certificate and English Language ability 4 First Appeal No.660 of 2022 IELTS Australia Test Result and some other desired documents vide email dated 17.03.2008 within a period of 25 days of receiving the letter. The Complainant had got conducted her medical examination from the authorized Doctor namely Dr. (Mrs.) Harkamal Bagga at Ludhiana by paying fee of Rs.3600/- as confirmed by the OPs. The Complainant had completed all the required formalities and had also sent all the documents through email on 07.05.2008 to the Case Officer, Adelaide Skill Processing Centre, Sydney, Australia. She had appeared before IELTS Australia on 22.05.2008 after depositing the examination fee of Rs.7200/- with OP No.1 and thereafter the exams were conducted by OP No.2 at Ludhiana. The Australian Government vide email dated 29.05.2008 had fixed the dead line of 26.06.2008 for IELTS test result. The result was declared on 31.05.2008 Complainant got 6.5 overall band, but she was not satisfied with the test result of module writing wherein she scored 5.5. She applied for revaluation of module 'writing' by depositing fee of Rs.5500/- and the writing module was increased from 5.5 to 7.0 vide letter dated 07.08.2008 by the IELTS Australia. The complainant had cleared the IELTS examination by securing 6 bands in each module. However, the OPs had not informed the Australian Government that the complainant had also applied for revaluation on 17.06.2008. The Australian Government had sent the refusal letter on 23.07.2008 whereas the revaluation result was declared on 07.08.2008. The complainant had requested to reopen and to accept the IELTS test result by mentioning the reasons in detail stating that there was no 5 First Appeal No.660 of 2022 fault on the part of the complainant but still her request was not accepted. Further it was mentioned that it was a case of 'deficiency in service' as well as 'unfair trade practice' on the part of the OPs.
The Complainant had prayed that OPs be directed to pay Rs.5,00,000/- as compensation on account of causing mental agony, harassment, sufferings and also the loss of career at the hands of the OPs, further to pay Rs.12506/- (350$ registration fee), Rs.69391.20 (1990$ AUD visa application fee), medical examination fee of Rs.3600/-, IELTS fee of Rs.7200/- and also to pay Rs.5500/- as litigation expenses.
5. Upon issuing notice, OPs had appeared and filed written version wherein certain preliminary objections were raised stating therein that the Complainant was having no cause of action and locus standi to file the Complaint. Further it was mentioned that the Complainant had not approached the District Commission with clean hands and had concealed certain material facts. It was denied that OPs had got conducted IELTS Test in the month of May 2008 and as such, the Complainant had not availed the services of the OPs. The other averments made in the Complaint were also denied.
6. Both the parties have adduced their respective evidence in support of their contentions.
7. By considering the averments made in the Complaint and reply thereof and also on considering the oral arguments raised from both the sides and by considering all the relevant documents as 6 First Appeal No.660 of 2022 adduced by them in support of their contentions, the Complaint filed by the Complainant was allowed vide order dated 26.04.2022. The relevant portion of the said order as mentioned in para No.13 is re- produced as under:-
"11. In view of above detailed discussion, we partly allow this complaint and direct the OPs to refund the actual total payment alongwith other payments taken by the OPs alongwith interest @8% from the date of its actual receipts till its realization. Further OPs are directed to pay Rs.1,00,000/- as compensation on account of mental agony where she suffered for not migrating to Australia despite securing sufficient marks after revaluation and further OPs are directed to pay Rs.11,000/- as litigation expenses. Compliance of the order be made within one month from the date of receipt of copy of the order failing which OPs would be liable to pay interest on the awarded amount @8% per annum from the date of filing its original complaint."
8. Aggrieved by said order dated 26.04.2022 passed by the District Commission, the Appellant has filed the present Appeal before this Commission.
9. It is also relevant to mention here that initially the Complaint was filed before the District Commission, Ferozepur and it was decided vide order dated 22.04.2009. Thereafter, both the parties had filed appeals before this Commission. First Appeal No.771 of 2009 filed by the Appellants/OPs was allowed by this Commission vide order dated 23.05.2014. The relevant portion as mentioned in para No.11 is reproduced as under:
7First Appeal No.660 of 2022
"11. In view of above discussion, the appeal (F.A. No.771 of 2009) is accepted and the impugned order is set aside. Since, the District Forum had no territorial jurisdiction to entertain and decide the complaint, therefore, the complaint is required to be returned to the complainant.
12. Copy of this order along with record of the District Forum be sent to the District Forum forthwith, with the direction that after due service of respondent/complainant, the complaint alongwith documents be returned to her, for presenting the same before the appropriate authority, having jurisdiction, under law."
First Appeal No.846 of 2009 filed by the Appellant/Complainant was dismissed vide order dated 23.05.2014. However, the liberty was granted to the Complainant to approach the appropriate authority, having jurisdiction, under law. Hence, the Complainant had filed the Complaint before the District Commission, Ludhiana.
10. Mr. Nihit Nagpal Advocate, learned counsel for the Appellant has submitted that the impugned order passed by the District Commission is bad in law as the District Commission has not considered a material fact that the Complaint filed by the Respondent/Complainant was not a consumer dispute as the education was not a commodity and Respondent/Complainant was not 'Consumer' within the meaning of the Act. Learned Counsel has further submitted that the Appellant was not a 'service provider' and 8 First Appeal No.660 of 2022 as such it was not a case of any 'deficiency in service' on his part in view of the provisions of the Act. The Complaint was not maintainable before the District Commission. The test was conducted by Planet Education Private Limited and not by the Appellant and the District Commission had not taken into consideration all these aspects. Learned Counsel has further submitted that the Respondent/Complainant herself was responsible for rejection of her Visa Application by the Australian Government as her claim was against the present Appellant was not maintainable as per the terms and conditions. The Respondent/Complainant had appeared in the test on 15.11.2007. Thereafter, she approached IELTS Test Centre of Planet Education Private Limited on 22.04.2008 after a period of approximately 6 months. The Respondent/Complainant had agreed to appear in the IELTS Test on 22.05.2008 and she appeared for IELTS Test at Test Centre of Planet Education Private Limited Ludhiana on 22.05.2008. Further it has been submitted that vide communication dated 29.05.2008, DIAC-Australian Government once again advised to Respondent/Complainant to submit the result with requirement of IELTS scores within a period of 28 days i.e. till 26.06.2008, failing which, her Application for grant of Visa would stand rejected. The result of IELTS Test was declared on 31.05.2008 and she scored overall score of 6.5 bands but remained unsatisfied with the score she filed for inquiry of result i.e. revaluation with the Planet Education Private Limited on 20.06.2008 as per Clause 23 of the IELTS Application Form's terms and conditions and other 9 First Appeal No.660 of 2022 provisions. The Respondent/Complainant was well aware about the time of applying EOR and release of result as the result of revaluation was to be declared within a period of 6 weeks. The Respondent/Complainant was well aware of the terms and conditions and the same was binding upon her. Thereafter, EOR result was issued to the Respondent/Complainant vide letter dated 04.08.2008 from IELTS Australia Private Limited. She was informed about the pre-requisite of IELTS result score for her Visa Application but the Respondent/Complainant had failed to submit her IELTS Test result to DIAC-Australia Government by 26.06.2008 and her Visa was rejected. Further it has been submitted that the Respondent/Complainant had dealt with the examination agency of Australia and also submitted her application with ACS, Sydney and had also submitted her Visa Application for skilled migration to DIAC Australian Government on 29.03.2007 but without fulfilling the mandatory requirement of IELTS test score. She was informed vide letter dated 22.08.2007 about the requirement of said test result. She herself had admitted before the Australian Government that she was not aware of the mandatory requirement and thereafter she was given final opportunity by the Australian Government vide communication dated 29.05.2008 for submission of her IELTS test result on or before 26.06.2008, failing which, her application was to be rejected. The Visa Application was rejected by the Australian Government on account of default of Respondent/Complainant herself.
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11. Mr. Nitish Garg Advocate, learned counsel for the Respondent/Complainant has submitted that the District Commission has passed a detailed speaking order after considering the arguments raised from both the sides and the Complaint was partly allowed. The compensation amount has been awarded by considering the mental agony and sufferings suffered by the Complainant alongwith litigation expenses of Rs.11,000/-. The order is well reasoned based on proper appreciation of evidence and as such no interference is required. Accordingly, the appeal filed by the Appellant/OP be dismissed with cost.
12. Heard the learned counsel for the parties and we have also gone through the record/documents of the case carefully.
13. As per the version of the Respondent/Complainant she had consulted the OPs regarding the requirement/documents for job in Australia. On assurance of OP No.1, she got her skilled application registered with Australian Computer Society at Sydney and paid the requisite fees. On the other hand, OPs had denied the version of the Complainant by stating that the Complainant had neither availed any of the services of the OPs nor any document was issued to her. The Appellant/OPs had simply denied the version of the Complainant but had not mentioned any reason why the Respondent/Complainant had filed said Complaint against the OPs and it was result of any enmity. In case the Complainant had not impleaded the concerned party in the Memo of Parties, the OPs could have filed the application for 11 First Appeal No.660 of 2022 impleading the concerned party as a OP before the District Commission but the Appellant/OPs had not made any efforts and even had also not raised any objection regarding non-joinder and misjoinder of necessary parties. As such we find no force in this argument of the Appellant/OPs.
14. The Appellant has also relied upon judgments to the effect that education is not a commodity as such the Appellant is not a service provider. It is pertinent to mention that the Complainant had approached the Appellant for the purpose of getting better job in Australia not for education purposes and as such, the judgments relied upon by the Appellant are not applicable to the present case.
15. The Respondent/Complainant was not satisfied with the test result against Module "Writing" (score 5.5) which was conducted on 22.05.2008 and result was declared on 31.05.2008. The last date of submission of IELTS test result was 26.06.2008. As per the version of the Respondent/Complainant, she had deposited the fee of Rs.5500/- through D.D. with OP for revaluation on 17.06.2008, but the OPs had failed to inform the Australian Government on or before 26.06.2008 regarding revaluation and remained mum upto 07.08.2008 whereas the Australian Government had sent the refusal letter on 23.07.2008. Moreover, after revaluation the score against Module "Writing" it was increased from 5.5 to 7. Meaning thereby the Complainant was right that low score had been awarded to her in the result. Alleging a case of 'deficiency in service' on the part of the 12 First Appeal No.660 of 2022 OPs, the Complainant had filed the Complaint before the District Commission with the following prayer:-
"It is therefore prayed that the present complaint may kindly be accepted and the reliefs i.e.Rs.5,00,000/- being the compensation on account of mental agony, harassment sufferings or carrier loss at the hands of opposite parties, 350$ as registration fee equal to Rs.12306/-+Rs.200/- = Rs.12506/-, Visa application fee of 1990 $ AU equal to Rs.69391.20 ps, Medical examination fee Rs.3600/-, IELTS fee Rs.7200/- and Rs.5500/- as litigation expenses of the present complaint, may please be awarded in favour of the complainant and against the opposite parties."
From perusal of the prayer clause, it is apparent that the Complainant had not prayed for any interest amount in the prayer clause of the Complaint but the District Commission has overlooked the prayer of the Complainant and had awarded interest amount @8% on the refund amount without any basis and justification. It is pertinent to mention that the Complainant had prayed for litigation expenses of Rs.5500/- but the District Commission by ignoring the same has also awarded Rs.11,000/- as litigation expenses without giving any justification or reason. From the perusal of the facts and circumstances of the case, the compensation amount as awarded by the District Commission i.e. Rs.1,00,000/- is also on higher side and the same is reduced to Rs.50,000/-. It is also pertinent to mention here that in the appeal, the Appellant has prayed for passing an order which may deem fit by this Commission in view of the facts and circumstances of the case.
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16. Accordingly in view of facts and circumstances of the case and above discussion, we partly allow the Appeal and the order passed by the District Commission is modified by issuing the following direction to the Appellant:-
1. to refund the actual total payment alongwith payment taken by the Appellant/OPs from the Complainant minus the refunded amount, if any;
2. to pay Rs.50,000/- compensation for mental agony and harassment suffered by the Complainant;
3. to pay Rs.5500/- as litigation expenses.
The Appellant is also directed to comply with the order within a period of 45 days from the date of receipt of certified copy of the order, failing which, the Appellant would be liable to pay 9% on over and above said amount from the date of filing the Complaint till its realization.
17. The Appellant had deposited an amount of Rs.63,206.17 at the time of filing of the Appeal with this Commission. Said amount, alongwith interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The Respondent/Complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law. 14 First Appeal No.660 of 2022
18. Since the main case is decided, the pending applications, if any, are also disposed of.
19. The Appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER April 03, 2024 (MM)