State Consumer Disputes Redressal Commission
Sunil Kumar Jassi vs Worldwide Immigration on 20 September, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1043 of 2006.
Date of Institution: 17.08.2006.
Date of Decision: 20.09.2011.
Sunil Kumar Jassi S/o Sh. Harbilas Jassi, H.No.231, Rattan Nagar, Tripuri
Town, Patiala at present C/o M/s Cargo Motors, Chandigarh Road,
Nawanshahr.
.....Appellant.
Versus
1. The Chairman-cum-Managing Director, Worldwide Immigration
Consultancy Services Limited, Plot No.A-12, Industrial Area, Phase-6,
Opp. Lawrenance Public School, SAS Nagar, Mohali.
2. The Branch Manager, WWICS, Saini Complex, Preet Palace, Rahon
Road, Nawanshahr.
...Respondent.
First Appeal against the order dated
14.07.2006 of the District Consumer
Disputes Redressal Forum, Nawanshahr.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Sh. G.P. Vashishat, Advocate.
For the respondents : Sh. Raman Walia, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Sh. Sunil Kumar Jassi, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 14.07.2006 passed by the learned District Consumer Disputes Redressal Forum, Nawanshahr (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents, pleading that the appellant was aspirant of going to Canada and approached respondent no.2, who asked him to approach Patiala branch First Appeal No.1043 of 2006 2 of the respondents in June, 2000 and the papers were jointly prepared by respondent no.2 as well as Patiala branch of the respondents. The respondents assured the appellant to send him to Canada on payment of Rs.1,35,000/- approximately. The appellant was asked to pay Rs.25,000/- which he paid to the respondents vide receipt no.7061 dated 31.05.2000 and file no.6674 in respect of the case of the appellant was prepared. The appellant was further asked to pay US Dollars 1600 which were paid by him vide demand draft dated 25.07.2000. He also paid Canadian Dollars 175 and Canadian Dollars 60 against the receipts issued by the respondents.
3. After payment of above said amounts, the respondents came up with the plea that the case of the appellant had come under the new policy for which, another sum of Rs.25,000/- was required and further asked the appellant to clear the IELTS examination. The appellant paid Rs.25,000/- vide receipt no.2575 dated 10.04.2003 to the respondents and also cleared the IELTS examination and the result of the same was duly handed over to the respondents. The said Patiala branch was later on closed by the respondents. However, the respondents failed to send the IELTS test examination result of the appellant to the Canadian High Commission, New Delhi and for that reason, the appellant could not qualify the necessary Band and on enquiry, the respondents made the appellant to understand that the IELTS examination was not necessary in the case of the appellant and his case fell under the old scheme.
4. Due to non-submission of IELTS test examination result of the appellant by the respondents to the Canadian High Commission, New Delhi , the appellant has been deprived of an opportunity of going to Canada due to negligence and fault of the respondent and there is deficiency in service on the part of the respondents due to which, the appellant suffered mental tension and harassment. It was prayed that the respondents be directed to refund Rs.1,35,000/- along with interest @ 12% p.a. from the date of payment First Appeal No.1043 of 2006 3 till actual payment and pay damages/compensation to the tune of Rs.1,00,000/-.
5. In the reply filed on behalf of the respondents, preliminary objections were taken that the complaint is false, frivolous and baseless and is an attempt to harass the respondents and to extract illegal benefits. The complaint has been filed with the objective of judicial adventurism. The appellant has not approached the Forum with clean hands and the complaint is not maintainable. The appellant had entered into a contract of engagement with the respondents vide agreement dated 24.05.2000 and is governed by the terms and conditions of the agreement. The respondents have already provided the required services which were incumbent upon them and there is no deficiency in service on the part of the respondents.
6. The appellant himself approached the Patiala branch of the respondents with regard to filing of his case for permanent immigration to Canada under Independent Class and the appellant was duly assessed as per the information provided by him in the assessment form. He was fully eligible for Permanent Immigration to Canada under the said category and his case was filed before the Canadian High Commission, New Delhi, vide application dated 28.06.2000.
7. The Canadian High Commission after its due scrutiny and having found it to be complete in all respects, issued File No.B 040310406 and issued receipt for Non-Refundable Visa Processing Fee of Rs.14,250/- to the appellant. The appellant was intimated about the filing of his case as well as allotment of file number by the Canadian High Commission, New Delhi. However, consequent to the introduction of New Immigration and Refugee Protection Act which came into effect from 28.06.2000, the appellant was advised vide letter dated 16.09.2002 to learn French (moderate level) or marriage (graduate) from a recognized institute or get married to a minimum graduate/post graduate (regular studies) and pass IELTS Test with at least 7.0 grades/bands and above. Thereafter, the appellant was again requested First Appeal No.1043 of 2006 4 vide letter dated 15.03.2003 to confirm in writing the measures, he has taken to fulfill the above requirements and to provide the documentary evidence of the same to the respondents. On 19.04.2003, the appellant sent the IELTS result of overall 5 Bands which was not of minimum standard of marks i.e. 7 Bands and if the said result was forwarded to the Canadian High Commission, the case of the appellant would have been rejected and he would have failed to achieve 67 points required for permanent immigration to Canada. The respondent vide letter dated 28.04.2003, informed the appellant that the present IELTS result does not suffice the requirement of Canadian Immigration to get maximum points in English language i.e. 16 points and advised him to upgrade himself to Band 7 and above in each ability of test in order to assess his proficiency in English.
8. The respondents received a letter dated 08.09.2003 from the Canadian High Commission that the proof of current level of official language proficiency and an updated application form (IMM0008) of the appellant be sent to Canadian High Commission within 180 days and the respondents vide letter dated 28.10.2003 asked the appellant to provide the revised IMM 008 forms along with additional documents i.e. upgraded IELTS certificate with at least 7.0 grades/bands and also to get married to a minimum graduate/post graduate(regular studies). In case the appellant had secured 7 Bands in IELTS, then he would have been awarded 16 marks in English and got the permanent immigration and in case he had learnt fresh, then he would have been awarded 8 points for the same and in case of marriage to a graduate/post graduate, then there is a award of further 5 points and all these things were duly advised to the appellant.
9. Vide letter dated 07.08.2005, the Canadian High Commission called the appellant to appear for interview on 12.09.2005 at 9.00 hrs. concerning his application for permanent residence in Canada, along with the required documents and the respondents also intimated the appellant about the said interview. The appellant duly appeared before the Canadian High First Appeal No.1043 of 2006 5 Commission, New Delhi, but he failed to convince the Visa Officer with regard to his proficiency in English and due to that reason, the Visa Officer of the Canadian High Commission, New Delhi, rejected the immigration case of the appellant, by awarding him 59 marks whereas the requirement was of 67 marks as per the new Act. Against 24 marks for the official language i.e. English, the appellant was awarded only 6 marks and thus he fell short by 8 marks due to lack of his English skill as required by the Canadian High Commission.
10. As per Clause 5(j) of the Contract of Agreement, it was the duty of the appellant to attain sufficient knowledge of English language, as laid down by the Canadian High Commission, an assessment by the Visa Officer that an applicant speaks, read and write English fluently. The appellant has obtained the services of the respondents with regard to preparation and submission of his Permanent Immigration case to Canada which the respondents have already provided to him. The case of the appellant has been rejected by the Visa Officer due to the fault of the appellant himself and there is no deficiency in service on the respondents.
11. The respondents are still ready to re-file the case of the appellant, provided the appellant passes the IELTS test with at least 7 Bands/grades and above or produce proof of proficiency in English as required by the Canadian High Commission, as agreed by the appellant in the contract of engagement and deposit of the visa processing fee as required by the Canadian High Commission.
12. The appellant had entered into two different contracts of engagement, one with WWICS Limited, Chandigarh and the other with Worldwide Immigration Consultancy Services Canada Inc.7025, Tomken Road, Suite # 231, Mississauga, Ontario, Canada. The complaint is bad for non-joinder of necessary party, as the appellant has not made the said Worldwide Immigration Consultancy Services Canada as party. First Appeal No.1043 of 2006 6
13. As per Clause-15 of the Contract of Engagement signed between the parties, in all the matters, the legal jurisdiction shall be only of Chandigarh Courts and the District Forum has no jurisdiction to try and decide the complaint. Moreover, the appellant had contacted the Patiala office of the respondents and respondent no.2 has never been involved in any communication with the appellant nor any service was provided at Nawanshahr. In a case "Gagandeep Kaur Vs WWICS Ltd. the Hon'ble State Commission, Chandigarh has already settled that no refund is permissible as per the contract of engagement/agreement.
14. On merits, it was admitted that the appellant deposited Rs.25,000/- only as retainer fee with the respondents for the purpose of receiving professional services. Canadian Dollars 175 and 60 were deposited by the appellant as fee for additional assessment of his education and professional qualifications. US Dollars 1600 were deposited by the appellant with the Worldwide Immigration Consultancy Services Canada Inc.7025 for the reasons best known to him. Another sum of Rs.25,000/- was deposited by the appellant to the attorney at Canada for fighting against the changed immigration laws and due to the said cases filed, the points required for immigration were reduced to 75 to 67 and the appellant was required to secure on 67 points. The appellant miserably failed to qualify the test much less to obtain the minimum standard of marks 7 bands and above and he further failed to achieve 67 points required for permanent immigration and above and there is no deficiency in service on the part of the respondents. All other pleas were repeated again and again and denying all allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
15. Parties led evidence in support of their respective contentions by way of affidavits and documents.
16. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the appellant himself could not qualify and was not First Appeal No.1043 of 2006 7 having requisite qualifications for his permanent immigration to Canada and as such, he could not complain of any deficiency in service on the part of the respondents. The respondents received a sum of Rs.25,000/- on first occasion, Rs.25,000/- on second occasion and another 235 Canadian Dollars as per the contract of agreement, for processing his case and subsequent payments were made by him for assessment of qualifications etc. as well as for processing his case and those payments were made by the appellant after admitting his liabilities for the same and he could not seek refund of the same and there is no deficiency in service on the part of the respondents, and dismissed the complaint.
17. Aggrieved by the impugned order dated 14.07.2006 the appellant has come up in appeal.
18. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
19. Admittedly, the appellant deposited Rs.25,000/- as retainer fee with the respondents for processing his case. 235 Canadian Dollars were deposited for additional assessment of his professional qualifications and 1600 US Dollars were deposited by the appellant with Worldwide Immigration Consultancy Services Canada. Another sum of Rs.25,000/- was deposited by the appellant for the attorney at Canada for contesting his case against the changed Immigration Laws. However, the appellant could not qualify the test and he also failed to achieve 67 points required for permanent immigration.
20. In this appeal, the main question which emerges is whether the appellant is entitled to the refund of any amount out of the above amounts paid by the appellant?
21. Hon'ble National Commission in Revision Petition No.3334 of 2010 "Worldwide Immigration Consultancy Services Limited Vs Manohar Singh Randhawa", and Revision Petition No.3335 of 2010 "Worldwide Immigration Consultancy Services Limited Vs Suresh First Appeal No.1043 of 2006 8 Kumar", both decided on 8th March, 2011, in similar set of circumstances where the respondent was also Worldwide Immigration Consultancy Services Limited, held that the payment made to the Worldwide Immigration Consultancy Services Canada, was made directly to it and they were not party and no deficiency can be attributed. However, the Worldwide Immigration Consultancy Services Limited was liable to pay the amount received as fee/charges for rendering the services.
22. Applying the above proposition of law laid down by the Hon'ble National Commission, this Commission in case "Worldwide Immigration Consultancy Services Limited & Anr. Vs Hardeep Singh", First Appeal No.914 of 2006 decided on 12.07.2011, allowed the refund of the amount deposited with the said Worldwide Immigration Consultancy Services Limited.
23. Keeping in view the ratio of the law laid down in the above cases, the respondents are liable to refund the amount of Rs.25,000/- received by them as retainer fee. The District Forum has not taken into consideration the law laid down by the Hon'ble National Commission in the above revision petitions as well as by this Commission in the above case and, as such, the order of the District Forum is not sustainable and is liable to be set aside.
24. Accordingly, the appeal filed by the appellant is partly allowed and the impugned order dated 14.07.2006 under appeal passed by the District Forum is set aside and the appellant is entitled to recover Rs.25,000/- from the respondents. The appellant is also entitled to interest @ 7.5% p.a. on the said amount from the date of deposit till realization and the litigation expenses to the tune of Rs.2000/-. Accordingly, the complaint filed by the appellant/complainant is partly allowed to the extent mentioned above. The complaint qua the remaining amounts is dismissed.
25. The respondents are directed to pay the above amounts to the appellant/complainant within two months from the receipt of copy of the order. First Appeal No.1043 of 2006 9
26. The arguments in this appeal were heard on 13.09.2011 and the order was reserved. Now the order be communicated to the parties.
27. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member September 20, 2011.
(Gurmeet S)