State Consumer Disputes Redressal Commission
M/S Wwics Ltd. vs Krishan Kaur on 10 July, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.66 of 2017
Date of Institution : 30.01.2017
Order reserved on: 06.07.2017
Date of Decision : 10.07.2017
1. M/s Worldwide Immigration Consultancy Services Ltd.
(WWICS Ltd.) Branch Office: SCO No.11, Above Spice
Office, Leela Bhawan, Patiala, Punjab, India through its
Branch Manager.
2. M/s. Worldwide Immigration Consultancy Services Ltd.
(WWICS Ltd.), A-12, Industrial Area, Phase-6, Mohali-
160055, Punjab, India through its Managing Director (South
East Asia Operations).
3. Akshay Sharma, Territory Manager, Business Immigration,
Worldwide Immigration Consultancy Services Ltd., (WWICS
Ltd.) Branch Office:- SCO No.11, Above Spice Office, Leela
Bhawan Patiala.
.....Appellants/Opposite parties
Versus
1. Krishan Kaur w/o S. Nachhattar Singh
2. Nachhattar Singh son of Late Sh. Dayal Singh, both
residents of Village Khansa, Post Office Ahru Kalan, Tehsil
and District Patiala.
.....Respondents/complainants.
Appeal against order dated
21.12.2016 passed by the District
Consumer Disputes Redressal
Forum, Patiala.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. Raman Walia, Advocate For the respondent : None ............................................ F.A. No. 66 of 2017 2 SURINDER PAL KAUR, MEMBER :-
Challenge in this appeal by appellant is to order dated 21.12.2016 of District Consumer Disputes Redressal Forum Patiala, dismissing the complaint of complainant against OP No.3 only and allowing it against OP Nos.1 & 2 by directing them to refund the amount received by them from complainant, minus the amount already refunded along with interest @ 7% per annum from the date of filling of complaint till actual realization and further to pay Rs.10,000/- as compensation for mental agony and Rs.5000/- as litigation costs. The appellants of this appeal are opposite parties No.1 and 2 in the complaint before District Forum Patiala and respondents of this appeal are complainants therein and they be referred, as such, hereinafter for the sake of convenience.
2. Complainants have filed complaint under Section 12 of Consumer Protection Act 1986 (in short 'Act') against OPs on the averments that, they availed the services of OP no.1, for immigration in Canada under business category, as they want to purchase the property in Canada for business purposes. OP No.3 being the Territory Manager of OPs made a rough estimate and demanded 32000 US $ in (Lump sum) as processing fee for the submission of the file, which was settled at 22000 US $, out of which 18000 US $ were to be paid before receiving the visa and remaining 4000 US $ were to be paid after receiving the same by the complainants. OPs explained the scheme of "Saskatchwan F.A. No. 66 of 2017 3 Immigrant Nominee Program" under which complainant's file was to be submitted and further assured them that the process would be completed within 15 to 18 months. On 31.7.2013, a cheque bearing No.487534 for an amount of Rs.2,02,248/- was deposited by complainants in favour of WWICS-OPs, which was duly received by the latter. On 14.8.2013, an amount of Rs.33,700/- in cash was paid to OPs and time and again, the complainants visited the O.P. No.1 to ascertain the status of file. They were surprised to ascertain, when OPs asked them about above said scheme, which had been closed by the Canadian Immigration Department. The OPs assured the complainant by advising them that a new scheme i.e. "British Columbia Provincial Nominee Program" was still available for submission of complainants cases thereunder and demanded the processing fee from them for applying under new scheme. On 13.9.2013, they paid Rs.1,68,540 through cheque bearing No.487537 dated 13.9.2013 in favour of WWICS-OPs under new scheme and it was assured that the amount, which was received under old scheme would be adjusted in new scheme. The remaining amount of the processing fee was also paid by them in Indian courrency i.e. Rs.3,35,985/- through cheque no.487538 dated 25.9.2013, in the name of Global Strategic Business Consultancy. OP demanded Rs.29,492/- after one month on the pretext of part payment of processing fee and hence complainants paid Rs.25,000/- in cash to OPs on 23.10.2013, further and endorsement was also made F.A. No. 66 of 2017 4 by OPs that remaining amount of Rs.4500/- was deposited in the account of O.P.No.3. Ops again demanded 3000 Canadian dollars as the same was to be paid to Ministry of Finance as processing fees of Canadian High Commissioner, hence, on 22.11.2013, they deposited Rs.1,89,000/- i.e. 3000 Canadian dollar in the account of Op no.3. They also submitted all the required documents to O.Ps for processing. On 13.8.2014, on the demand of O.Ps, vide cheque No.470374 dated 13.8.2014, they paid Rs.3,73,160/- i.e. 600 US $ as remaining processing fee to OPs. Complainant had paid 18,000 US Dollar as settled processing fee to OPs. Further, Rs.50,662/- were paid by complainants, vide cheque No.470372 dated 13.8.2014 in the name of WWICS Ltd. for separate file of Sh. Nachhattar Singh with Rs.18,600/- as fee of tourist visa, hotel booking etc. Time and again, they visited OPs to ascertain the status of Visa, but OPs put off the matter on one pretext and other and lastly in the month of September 2014, OPs communicated that their tourist visa had been rejected. OPs instead of Rs.1,89,000/-, refunded Rs.1,64,476,17p through cheque No.005794 dated 27.10.2014 drawn on HDFC Bank, Branch Leela Bhawan Market, Patiala and illegally grabbed Rs.25000/- approx. Complainants also spent Rs.6000/ on account of land valuation, Rs.7,000/- as C.A report, Rs.2,000 as Jamabandi expenses, other misc. expenses to the tune of Rs.5000/-, totaling Rs.20,000/-. They also suffered financial loss to the tune of Rs.12,64,000/-. A legal notice dated F.A. No. 66 of 2017 5 06.10.2015 was also served upon the OPs, but to no effect. Thus, above said act of OPs amounted to deficiency in their service. Hence, complaint was filed before the District Forum seeking following directions;
i. to refund Rs.12,64,000/- which was received
under different heads along-with interest @
18% p.a. and to return the documents received
by the OPs;
ii. to pay Rs.5,00,000/- as compensation for mental
harassment
iii. to pay Rs.11,000/- as litigations expenses and any other relief as per justice.
3. Upon notice, OPs No.1&2 filed the written reply by raising the preliminary objections that the present complaint is liable to be dismissed, as no deficiency in their service was established and they had already performed their part of contract. Complainant availed their services for grant of Exploratory Visa, however, the same was rejected by Visa Officer, who was not satisfied with the complainants that they would leave Canada at the end of their stay. The grant of Visa was purely the prerogative of Visa Officers and OPs can only assist in granting their application. They filed the case of the complainants and performed their part of the contract. On merits, it was pleaded that complainants entered into a contract dated 06.08.2013 for obtaining the Nomination Certificate under the "Saskatchewan Immigrant Nominee Program" and had agreed to pay an amount of F.A. No. 66 of 2017 6 Rs.1,80,000/-(plus Service Tax of Rs.22,248/-) totalling Rs.2,02,248/-. The service tax of Rs.22,248/- was non refundable. Complainants also entered into another contract dated 01.08.2013 for grant of permanent visa on the basis of the Nomination Certificate and had agreed to pay an amount of Rs.30,000/-(plus Service Tax of Rs.3708/-) totalling Rs.33,708/-. The case of the complainant was prepared under "Saskatchewan Immigrant Nominee Program", but the same was unfortunately closed by Canadian Immigration Authority. However, as per the contract, under Clause No.6 and 7, the fee paid by complainant was non-refundable. Further, a new programme was launched by "British Columbia Provincial Nominee Program" and complainants agreed to file the case under the abovesaid scheme and also agreed to pay the fee for the said scheme. Complainants again entered into another contract dated 31.08.2013 with OPs for grant of permanent visa on the basis of Nomination Certificate under BC-PNP and agreed to pay an amount of Rs,1,50,000/-(plus Service Tax of Rs.18,540/-) totalling Rs.1,68,540/-. The amounts which was earlier paid by the complainants were adjusted in new scheme, although the same was non-refundable, as per clause 10&11 of the contracts. Further, complainants entered into another contract dated 15.5.2014 with M/s GSBC, Dubai for grant of permanent visa on the basis of Nomination Certificate under BC-PNP and agreed to pay an amount of US $ 5097. As per this agreement, complainants were required to pay 18,000 US F.A. No. 66 of 2017 7 dollars to M/s GSBC, Dubai. It was denied that an amount of Rs.29,494/- in cash was received by the OPs. Complainant prepared the forged receipt of the same and Rs.4500/- was paid to Akshay Sharma not to OPs. As per the policy, no cash amount was accepted except cheque and DD/TT by OPs. However, 3000 Canadian Dollar were paid by the complainants towards the processing fee to Ministry of Finance, Canada, which was already refunded to the complainant, but OPs denied that an amount of Rs.1,89,000/- was paid to OP No.3, who has since left the services of OPs. This fact was admitted that 6000 US $ were paid by the complainants towards the fee of M/s GSBC, Dubai, making the total payment as US $ 11907(US $ 5097 + US $ 6000) out of the settled amount of US $ 18000. For Tourist Visa of Nachhatar Singh, complainants entered into contract dated 13.8.2014 and agreed to pay an amount of Rs.45,000/-(Plus Service Tax of Rs.5662/-) totalling Rs.50,662/-. Application for grant of tourist visa of complainants was refused, vide letter dated 19.9.2014 by the Visa Officer, as he was not satisfied with the complainants that they will leave the Canada at the end of temporary residence. Complainants are not entitled to any refund, as they performed their part of duty satisfactorily. There is no deficiency in their service and OPs prayed for dismissal of complaint with costs.
4. The complainant tendered in evidence his affidavit Ex.CA along with documents Ex.C-1 to C-24 and closed the F.A. No. 66 of 2017 8 evidence. As against it, OPs tendered in evidence affidavit of Sh. Rajiv Bajaj, Authorized Representative of the OP as Ex.OPA along with documents Ex.OP1 to Ex.OP10 and closed the evidence. On conclusion of evidence and arguments, District Forum Patiala, dismissed the complaint against OP No.3 only and it accepted the complaint against OP Nos.1 & 2, as per detailed order referred to above. Aggrieved by order of District Forum Patiala, OPs now appellants have preferred this appeal against the same.
5. We have heard learned counsel for appellants/OPs at considerable length and have also gone through the record of the case, as none appeared for the respondents in this appeal at the time of final arguments of this case.
6. It was argued by the counsel for the appellants that District Forum without appreciating the evidence, directed the OPs to refund the entire amount paid by the complainants. However, OPs already performed their part of duties by filing the immigration application on behalf of the complainants under "Saskatchewan Immigrant Nominee Program". The said program was capped by the said authorities, therefore, OPs were not liable for the rejection of the case of the complainants thereunder. Thereafter, complainants again retained the professional services of OPs under "British Columbia Provincial Nominee Program"
(BC-PNP) category as well as for visitor's visa. Again Canadian Immigration refused the immigration application of complainants F.A. No. 66 of 2017 9 on the ground that they failed to satisfy the Visitor Officer inquisition to the effect that they would leave Canada at the end of their temporary stay. Therefore, both the applications were rejected by the Canadian Consular. No deficiency in service is made out on the part of OPs, as they duly performed their part of the obligations. However, an amount of Rs.6,87,000/- had already been refunded to the complainants by OPs. Complainants are not entitled to for any amount, as they availed the professional services of OPs for this purpose. OPs now appellants submitted that order of District Forum is not sustainable in the eyes of law.
7. We have heard the submissions of the counsel for the appellants and perused the entire record of the District Forum. It is revealed that complainants had availed the professional services of OPs for permanent residentional visa at Canada and had paid an amount of Rs.2,02,248/- Ex.C3 in favour of WWIC- OPs. However, Saskatchewan immigrant nominee program, under which the immigration case of the complainant was filed, was capped by the Canadian High Commission. Again, complainants availed the services of OPs under "British Colombia Provincial Nominee Program" and paid an amount of Rs.1,50,000/-, vide Ex.OP2 as professional fee as per contract Ex.OP8 out of which Rs.18,000/- were paid as service charges. Further, complainants entered into another contract of engagement with M/s GSBC Dubai, vide Ex.OP9 and as per the F.A. No. 66 of 2017 10 said contract, complainants were required to pay an amount of US $18000 to the said company. However, a discount of US $4000 was given to complainant, therefore, they paid an amount of US $11097 equivalent to Rs.7,09,145/- annexure A-12 to OPs. However, under BC-PNP category, their case was processed and invitation letter was received on 16.07.2014 Annexure A-13. Accordingly immigration case of the complainant was prepared for Exploratory Visit, and meanwhile complainant No.2 also retained the professional services for immigration to Canada under visitor visa and entered into contract of engagement dated 13.08.2014 annexure A-14. As per the said contract, complainant No.2 had paid an amount of Rs.45,000/- annexure A-15 towards professional fee to OPs. Further an amount of Rs.5562/- was also paid by the complainant towards service tax. Immigration application was filed on behalf of complainant No.1 and 2, but both the applications were rejected, vide letter dated 19.09.2014 Ex.OP1 on the ground that visa officer was not satisfied with the complainants that they would leave Canada at the end of their stay. An amount of CAD $3000 equivalent to Rs.1,89,000/- was also paid by the complainant in favour of Ministry of Finance annexure A9 and Rs.1,64,000/- annexure A10 were refunded to complainant. Ops also proved that an amount of Rs 75,000 and 9,000 USS$ dollars annexure A2 were refunded to the complainant. However, complainants entered into another contract with M/s GSBC Dubai, vide Ex.OP9 and as per the said F.A. No. 66 of 2017 11 contract, the complainants were required to pay an amount of US $18000 to the said company, but the same is not impleded as a party in the complaint. Complainant should have impleaded the party of M/S GSBC in the complaint. Complainant availed the services of the OPs, as professional and professional fee is not refundable under the agreement. No deficiency of OPs is involved, if visa was rejected, as visa officer was not satisfied with the genuineness of case of complainant to leave Canada at the end of their stay. However, OPs failed to prove that out of Rs.1,89,000/- i.e. 3000 CAD Dollar only 1,64,000 was refunded to complainant on what basis they detained an amount of Rs.25,000/- therefore complainant is entitled to Rs.25,000/- along with Rs.15,000/- as compensation for harassment and litigation costs as OPs unnecessarily dragged the complainant into this litigation.
8. In view of our above referred discussion, appeal of the OPs is party allowed. Ops are directed to pay Rs.40,000/- within 45 days from the receipt of the certified copy of the order failing which OPs are liable to pay interest @9% per annum from the date of filling the complaint till actual realization.
9. The appellants had deposited an amount of Rs.25,000 with this Commission at the time of filing the appeal and further deposited Rs.2,50,000/- on 28.2.2017 in compliance of the order of this commission dated 2.2.2017. The amount to the extent of entitlement of complainants strictly as per this order be remitted to F.A. No. 66 of 2017 12 them, whereas the remaining amount, if any found due, thereafter, be remitted to the appellants with interest which accrued thereon, if any, by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay order, if any.
10. Arguments in this case were heard on 06.07.2017 and the order was reserved. The certified copies of order be communicated to the parties, as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (Surinder Pal Kaur) MEMBER July 10 , 2017 DB