State Consumer Disputes Redressal Commission
Worldwide Immigration Consultancy ... vs Paramjit Nigah Son Of Sh. Babu Ram Son Of ... on 4 October, 2012
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1651 of 2007
Date of institution: 24.12.2007
Date of decision : 04.10.2012
1. Worldwide Immigration Consultancy Services Limited, (WWICS
Ltd.) Head Office at SCO No. 2415-16, Sector 22-C, Chandigarh,
through its CMD/Chairman.
2. Branch Manager, WWICS Ltd, 211, Defence Colony, Jalandhar.
.....Appellants/O.Ps
Versus
Paramjit Nigah son of Sh. Babu Ram son of Sh. Labu Ram resident of
VPO, Kot Ranjha, Tehsil and District Nawanshahar.
.....Respondent/complainant
First Appeal against the order dated
11.10.2007 passed by the District Consumer
Disputes Redressal Forum, Jalandhar.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member
Sardar Jasbir Singh Gill, Member Argued by:-
For the appellant : Sh. Raman Walia, Advocate For the respondents : Sh. N.C. Doabia, Advocate First Appeal No. 1660 of 2007 Date of institution: 27.12.2007 Date of decision : 04.10.2012 Paramjit Nigah son of Sh. Babu Ram son of Sh. Labu Ram resident of Village and Post Office Kot Ranjha, Tehsil and District Nawanshahar, Punjab.
.....Appellant/Complainant Versus
1. Worldwide Immigration Consultancy Services Limited, Head Office at SCO No. 2415-16, Sector 22-C, Chandigarh, through its CMD/Chairman.
2. Branch Manager, Worldwide Immigration Consultancy Services Limited, 211, Defence Colony, Jalandhar.
.....Respondents/O.Ps First Appeal against the order dated 11.10.2007 passed by the District Consumer Disputes Redressal Forum, Jalandhar.
First Appeal No.1651 of 2007 2Before:-
Sardar Jagroop Singh Mahal, Presiding Judicial Member Sardar Jasbir Singh Gill, Member Argued by:-
For the appellant : Sh. N.C. Doabia, Advocate For the respondents : Sh. Raman Walia, Advocate JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER This order will dispose of two appeals bearing F.A. No. 1660 of 2007 (Paramjit Nigah Vs. WWICS and another) filed by the complainant for enhancement of compensation and F.A. No. 1651 of 2007 (WWIC and another Vs. Paramjit Nigah) filed by the O.Ps for setting aside the order dated 11.10.2007 passed by the learned District Consumer Disputes Redressal Forum, Jalandhar (in short the District Forum) vide which the O.P/appellant was directed to refund 50% of the amount of Rs. 1,37,268/- with 9% interest from the date of receipt till payment and also pay Rs. 3000/- as cost of litigation. Since both the appeals are against the same order, these are therefore being disposed of through this common order. In this order the parties are referred by their status as they enjoyed before the learned District Forum.
2. The case of the complainant is that on the basis of the advertisement displayed by the O.Ps in various newspapers, he attended a seminar held by the O.Ps at Jalandhar where they introduced themselves as expert and leading consultancy service for the purpose of immigration to Canada. They also First Appeal No.1651 of 2007 3 claimed to be duly licensed and recognised immigration agents of Canada and assured to provide efficient and diligent service in this matter. The complainant therefore visited their office at Jalandhar where O.Ps assured to assess him regarding his chance of immigration. The O.Ps entered into an agreement dated 24.11.2000 undertaking to efficiently, properly and diligently submit their case alongwith documents and assured them that the complainant more than adequately fulfils the requirements and his application was assessed by the experts of the O.Ps and they told that only 70 points were required for immigration to Canada whereas he qualified for 74 points. The complainant believing the said representation made the payment of Rs. 1,37,268/- on different dates.
3. According to the complainant he was never told by the O.Ps to clear ILETS/TOFFEL examination, his application for immigration was declined by Canadian High Commission on the ground of lack of knowledge of English language. According to him, the O.Ps acted in a gross negligent and deficient manner who intentionally, with malafide intention wrongly assessed the eligibility points of the complainant in order to receive heavy amounts, therefore they are liable to refund all the above said amount. It was alleged that they have caused him harassment and inconvenience to the tune of Rs. 3,50,000/- The complainant therefore filed the present complaint to recover the amount of Rs. 1,37,268/- alongwith Rs. 3,50,000/- as First Appeal No.1651 of 2007 4 compensation, Rs. 10,000/- as taxi fares to Delhi and Rs.
10,000/- as cost of litigation alongwith interest @ 18% p.a.
4. The O.Ps filed reply alleging that in the agreement, it was specifically agreed that the jurisdiction to decide any dispute shall be only of Chandigarh Courts and therefore the District Forum at Jalandhar have no territorial jurisdiction to try this complaint. It was also alleged that the complainant had entered into another contract with M/s Worldwide Immigration Consultancy Services Canada Incorporated, Canada (in short WWICS, Canada). The fee to be paid to WWICS Canada to hire their service was US$ 2100. The complainant had opted for spot payment plan under which the discount of US$ 500 was to be given to him and he was required to pay only US$ 1600 if he paid the same within 60 days from the date of signing of contract. It was alleged that the contract was signed on 24.11.2000 and therefore he was entitled to the discount only if he paid the amount of US$ 1600 till 27.1.2001 which was in fact paid 16.2.2001 and therefore he was not entitled to the discount and was liable to pay full amount of US$ 2100. It was alleged that it was the fault of the complainant because he could not score 70 points to qualify for immigration and got only 7 points regarding his knowledge of English.
5. On merits, they admitted that they had entered into an agreement with the complainant on 24.11.2000. It was denied if they told that the complainant qualified for 74 points. They also First Appeal No.1651 of 2007 5 referred to clause 9 (vi) of the contract which specifies that if he does not attain fluency in reading, writing and speaking English language, fee would not be refunded to him. It was also alleged that Rs. 25,000/- was paid by the complainant towards his law suit and legal fee to the lawyer in Canada which also is not refundable. Their contention is that they provided service which they assured and if the complainant failed to achieve 70 points in the interview, it was his fault for which no amount can be refunded to him. They prayed for the dismissal of the complaint.
6. Both the parties were given opportunity to adduce evidence in support of their contentions.
7. After hearing the arguments of the learned counsel for the parties and perusing the record, the learned District Forum vide impugned order dated 3.12.2007 partly accepted the complaint as mentioned in Para No 1 above.
8. We have heard the arguments of the learned counsel for the parties and have perused the record. Both the parties have challenged the same through these two appeals. Since both the appeals are against the same order, these are therefore being disposed of through this order.
9. The contention of the learned counsel for the O.Ps is two fold firstly that the complainant had separately entered into an agreement with WWICS Canada which was not made a party in this compliant and therefore in view of F.A. No. 90 of 2012 titled M/s Worldwide Immigration Consultancy Services Ltd Vs. First Appeal No.1651 of 2007 6 Aditya Kumar decided by State Consumer Disputes Redressal Commission, U.T. Chandigarh on 05.07.2012, the O.P cannot be ordered to refund the amount paid to the said company. Their second argument is that the immigration application of the complainant was rejected due to the reason that he failed to attain proficiency in English language, the deficiency was on his own part and therefore the O.P cannot be directed to refund any amount to him. We do not find any merit in any of these contentions. A similar question as the first one being raised now, was raised before this Commission in F.A. No. 1556 of 2007 titled WWICS Ltd Vs. Ajaypal Singh which was decided on 03.04.2012, F.A. No. 339 of 2008 titled WWICS Vs. Gurjinder Singh Jabbal decided by this Commission on 03.04.2012 and F.A. No. 662 of 2007 M/s WWICS Ltd. Vs. Ashwani Kumar Bhargav decided by this Commission on 16.4.2012. This argument was not accepted in those appeals. In those case, the learned counsel for the appellant had referred to the following five decisions rendered by the Hon'ble National Commission:-
1. F.A. No. 334 of 2010 (WWICS Vs. Manohar Singh Randhawa) decided on 8.3.2011:-
2. First Appeal no.982 of 2006 ("Worldwide Immigration Consultancy Services Ltd. and another Vs. Inderjit Mehra") decided on 12.07.2011:-
3. First Appeal No. 914 of 2006 ("Worldwide Immigration Consultancy Services Ltd. and another Vs. Hardeep Singh") decided on 12.07.2011:-First Appeal No.1651 of 2007 7
4. First Appeal No. 134 of 2008 ("S.Parkash Singh Vs. Worldwide Immigration Consultancy Services Ltd. and another") decided on 23.01.2012:-
5. First Appeal No. 1043 of 2006 ("Sunil Kumar Jassi Vs. Worldwide Immigration Consultancy Services Ltd. and another") decided on 20.09.2011:-
It was however noticed that the facts which emerged in the present appeal were not available in the case of WWICS Vs. Manohar Singh Randhawa and four other cases (Supra) referred to by the learned counsel for the appellant.
10. Ex. R-2 is the fee agreement executed between the parties showing that on the left side is mentioned as Head office of the OP/appellant company in India and on the right side is mentioned the address of the Immigration Firm in Canada as follows:-
Head office in India: Immigration Firm in Canada:
WWICS Ltd. WWICS Canada Inc. S.C.O. : 2415-16, Sect. 22-C, 7025, Tomken Road, Suite # 231. Chandigarh - 160 022, INDIA Mississauga, Ontario, L5S1R6, Canada Telefax : 0172-701631. 709552, Tel. :(905)564-7797, Fax : (905) 564-8309 711768, 702810, 713517, 713518 Toll-Free : 1-888-77-WWICS E-mail : [email protected] E-mail : [email protected] Website : www.wwicscanada.com
It shows that WWICS Canada is only a branch office or limb of the O.P. whose head office is in Chandigarh. The appellant mentioned that US# 2100 were to be paid to WWICS Canada and the complainant was not entitled to any discount because the said amount was paid late. In this manner, the appellant was pleading the case of WWICS Canada and never took the specific objection that it should be made a party to the present complaint. First Appeal No.1651 of 2007 8
11. The perusal of the complaint shows that the complainant/respondent never had any intention to enter into an agreement with WWICS Canada. The complaint rather shows that he had contacted the O.Ps and not WWICS Canada and he is not even aware of this fact if his signatures have been obtained by the O.P/appellant on another agreement, purported to have been entered with the said firm. There is no evidence to suggest as to who was the representative of WWICS Canada who signed the said agreement on its behalf. One thing is clear that when this document was signed, the complainant had no intention to enter into an agreement with WWICS Canada nor did he go to Mississauga, Ontario, Canada to their office for signing the said agreement. Otherwise also, obtaining the signatures of the complainant on documents purported to be with some other company in Canada would not make it a valid contract between the parties firstly in the absence of the intention of the complainant to enter into an agreement with them and secondly in absence of their representative to settle the terms of contract with the complainant. The contention of the learned counsel for the appellant that WWICS Canada was a necessary party and the amount purported to have been paid to them could not be recovered from the appellant is therefore devoid of merit. The evidence produced by the complainant shows that the entire payment now been demanded by the complainant was made by him to the appellant. There is no evidence to suggest nor was First Appeal No.1651 of 2007 9 there any intention on the part of the complainant to pay any amount to WWICS Canada. In such circumstances, the complaint could not be dismissed for non joining WWICS Canada as a party nor is he debarred to recover the amount alleged to have been paid to them.
12. Otherwise also, if the complainant has suffered any loss on account of the negligence or deficiency in service on the part of the appellant, the compensation can be claimed by him from the appellant even if the payment had been made to somebody else i.e. WWICS Canada in the present case. It is not a suit for recovery in which WWICS Canada was a necessary party to recover the amount paid to it, because compensation can be claimed from the persons due to whose fault the complainant suffered damages. In the present case even if for argument sake some payment had been made to WWICS Canada and if the immigration of the complainant failed due to fault of the appellant, the amount paid to WWICS Canada can also be recovered from the appellant. We are therefore of the opinion that non joinder of WWICS Canada would not stand in the way of the complainant to get damages if he is otherwise entitled to the same.
13. The next question arises as to whether there is deficiency in service on the part of the appellant or not. As per the First Appeal No.1651 of 2007 10 agreement Annexure R-2, the duties of the O.P/appellant as per the Para 4 were as follows:-
4. Duties of the Company:-
In conjunction and consultation with WWICS Canada Inc. WWICS Ltd. Shall provide the following services:-
(a) Assess the client's education, training, skills and experience for Canadian Permanent residence and advise the client about the Canadian Laws respecting Canadian Immigration;
(b) Assist the client in preparation of the
Canadian Immigration case for Canadian
Permanent Visa.
(c) Xxxxxxxxxxxxxxxxxxxxxxxxx
(d) Submit the completed case with supporting
documentation and evidence alongwith the
Company's submission report to the
processing Visa Office;
(e) Xxxxxxxxxxxxxxxxxxxxxxxxxxx
(f) Assist with respect to preparation for the
interview at the processing Visa Office.
(g) Xxxxxxxxxxxxxxxxxxxxxxxxxxx
(h) Xxxxxxxxxxxxxxxxxxxxxxxxxx
(i) Xxxxxxxxxxxxxxxxxxxxxxxxxxx
(j) xxxxxxxxxxxxxxxxxxxxxxxxxxx
The first duty of the O.P was to assess client education, training skills and experience but the O.Ps have not produced any document to prove as to how they assessed him and what was his score. The complainant has mentioned in Para No. 1 that the First Appeal No.1651 of 2007 11 application of the complainant was assessed by the experts of the O.Ps. and they told that only 70 points were required for immigration to Canada alongwith the family whereas the complainant qualified for 74 points i.e. 4 points in excess of the required number. This contention attains significance in view of the letter Ex. C-11 which supports this fact. When the Visa officer rejected his case for immigration, the O.Ps sent him a letter Ex.
C-11 to tell him that his case was very much fit for refiling and he stood very good chance of permanent residency. He was asked to cooperate with the O.Ps so that they provided required services in order to achieve the desired aim. It was never their case if he did not have the proficiency in English language or he was not competent enough to attain the requisite points for his immigration. They did not point out any deficiency much less lack of English language on the part of the complainant to get permanent residency in Canada. However the assessment made by them was proved to be a hollow one from Ex. C-2 which was the result of the interview conveyed by the Canadian Embassy who allotted him only two units out of 9 for knowledge of English under the Immigration Rules 1978 he got 7 points out of 24 under the IRP Regulations. It further shows that the complainant could not score more than 62 points out of 105 when 70 points were needed and he could not score 60 points out of 100 when 67 points were needed. The assessment of the complainant made by O.P was totally in-adequate and wrong. First Appeal No.1651 of 2007 12 The contention of the learned counsel for the complainant is that infact it was intentionally made wrong by the O.Ps to extract the fee from the complainant and push him for interview though he stood no chance of getting Canadian visa. On the other hand if they correctly assessed him and had told him that he could not get 70 points, the complainant would not have applied for immigration and in that case the O.P would not have got their fee and other charges. It was therefore dishonest assessment made by the O.P. who instead of correctly assessing his education, training skills and experience as undertaken by the O.Ps gave wrong points simply to extract fees and other charges from him. In this manner, the O.Ps failed in their duty to correctly assess the complainant which was the first deficiency in service on their part.
14. Learned counsel for the O.Ps has argued that in the application form Ex. R-9, the complainant himself mentioned that he can speak, read and write English fluently and therefore they presumed it to be correct. This contention cannot be accepted because the complainant may be having a very good opinion about himself, which may have been right or wrong but it was ultimately the duty of the O.Ps to assess him by asking him to speak in English, read a passage and write in English. It was so simple a method to assess him but they did not even adopt it. Even Canadian Immigration Authorities also adopted the said procedure in order to assess the complainant as it has been First Appeal No.1651 of 2007 13 mentioned in Ex. C-2 by the Visa Officer that he assessed the abilities of the complainant in English language by administering reading, writing test and assessed his ability in speaking throughout the course of interview. There is no reason why the O.Ps should not have applied the said procedure. On the other hand if whatever was mentioned by the complainant in the application was to be taken at face value, then there was no need for the complainant to engage the O.Ps for this purpose or to seek their expertise or to pay them fee for assessing the said abilities. The contention of the O.Ps therefore was rightly discarded by the learned District Forum.
15. It is also argued by the learned counsel for the O.Ps that it was necessary for the complainant to pass ILETS test and to improve his English language regarding which a mention was made in clause (j) of Para 5 of the agreement Ex. R-2. As per this clause the complainant was required to attain sufficient knowledge of English as laid down by the Canadian High Commission but no mention about ILETS was made in it. The fact as to what according to the Canadian High Commission is "sufficient knowledge of English" was in the knowledge of the O.Ps and it was to be specifically told to him by the O.Ps but they never told him about it and rather claim to have accepted as correct his version given in the application Ex. R-9. Further there is no mention made by them in this agreement Ex. R-2 if he was required to pass ILETS test. The learned counsel for the First Appeal No.1651 of 2007 14 complainant argued that this information was intentionally withheld from the complainant because they felt he would not agree to clear the ILETS and therefore would not agree to apply for immigration and they would therefore lose a client and consequently lose the fees to be paid by him. It was however necessary on the part of the O.Ps to assess speaking, reading and writing ability of the complainant at the time he entered into an agreement Ex. R-2 with them and in case the same were not up to the mark to ask him to clear the ILETS. It is clear that the standard of English language whatever the complainant enjoyed was considered by the O.P. enough to get permanent residency. Its proof is that even after his application was rejected by the Canadian Authority, the O.Ps wrote him a letter Ex. C-11 mentioning that he stood a very good chance for getting desired permanent residency. It was not their case that he was not fluent in English according to Canadian standards or he should clear ILETS. The O.Ps after obtaining the fee from the complainant made no efforts to assess language capabilities of the complainant and were therefore guilty of deficiency in service.
16. As per clause (b) of Para 4 of the agreement Ex. R-2, the O.P was to assist the complainant in preparation of the Canadian Immigration case for Canadian Permanent Visa and in view of clause (d) the O.P was to submit the completed case with supporting documentation and evidence alongwith the Company's submission report to the processing Visa Office. In First Appeal No.1651 of 2007 15 the present case no mention has been made by the O.P as to what assistance was provided to the complainant in preparation of the immigration case. They did not even tell him that he was weak in English and should clear ILETS. They did not assess his command over English language and his application was forwarded even without Company's submission report to the processing Visa Office. The supporting documents to show that the complainant had proficiency in English language was neither asked for nor attached with the application. The Visa officer in his report page 3 mentioned this deficiency that the result of assessment of his proficiency in the English language by an organisation or institution designed by the Regulations was not submitted nor was any other evidence in writing of his proficiency submitted. Admittedly it was to be submitted by the Ops who forwarded his application to the Canadian Embassy and it also was therefore a deficiency in service on their part. In fact the O.Ps forwarded the application without any contribution from their side which was contrary to their duty as mentioned in clause (b) and (d) of Para 4 of the agreement. They have not mentioned any such fact in their written reply as to how they performed this duty.
17. The next question arises that if due to the faults of the O.P as mentioned above, the complainant was unable to clear the interview and his application for permanent immigration was rejected, can the O.Ps enforce Para 9 of the agreement to retain First Appeal No.1651 of 2007 16 the fee received by it for the duties they failed to perform. Our answer to this question is in the negative. In the present case Canadian Immigration Visa was rejected only due to the fault of the O.Ps who did not properly inform, assess and assist the complainant. The O.Ps have no legal or moral right to retain the fee. However, the learned District Forum without taking into account above facts found faults with the complainant (though he was not at fault) and ordered refund of only half of the fee paid by him. In our view the complainant was entitled to the refund of full amount of fee paid by him.
18. We are therefore of the opinion that the O.Ps have no right to digest the amount of Rs. 1,37,268/- received from the complainant. Due to their in-action, the complainant had been deprived of his chance to get permanent immigration to Canada. He had already been harassed mentally and physically during this period for which the O.Ps shall also be liable to pay him compensation. In view of these facts, the appeal filed by the complainant is allowed with cost. The O.Ps are directed to refund the amount of Rs. 1,37,268/- alongwith interest @ 9% p.a. since the date of deposit till the amount is actually paid to the complainant. In view of the facts and circumstances of the case we taken a lenient view against the O.Ps and do not direct them to pay any compensation for the deficiency in service causing him mental and physical harassment thereby depriving him a chance to get permanent immigration to Canada. If the First Appeal No.1651 of 2007 17 entire amount is not paid within 30 days from the date of receipt of copy of the order, the O.Ps would be liable to pay penal interest @ 12% per annum on the amount of Rs. 1,37,268/- from the date of filing of the appeal i.e. 24.12.2007 till the amount is paid to the complainant.
20. In view of above discussion we are of the opinion that there is no merit in the appeal filed by the O.Ps and the same is accordingly dismissed. Litigation cost for both the appeals are assessed at Rs. 10,000/- each.
21. The O.Ps had deposited an amount of Rs. 25000/- with this Commission at the time of filing of the appeal on 24.12.2007 and Rs. 50,000/- on 20.2.2008 as per the order of the Commission dated 4.2.2008. This amount of Rs.75000/- with interest, if any, accrued thereon be remitted by the registry to the complainant by way of a crossed cheque/demand draft after the expiry of 45 days.
Copies of the order be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER October 4, 2012.
Rupinder First Appeal No.1651 of 2007 18 First Appeal No.1651 of 2007 19