ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not providing immigration to Canada as assured even after receiving a prescribed retainers fee and fee for immigration and for refund of Rs.84,272/- and Rs.1,250/- Canadian dollar and 1200 US dollars and for Rs.50,000/- towards damages for causing him mental agony, hardship and discomfort and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant approached OP2 in the month of September 2014 seeking migration to Canada.  OP2 requested the complainant to pay Rs.84,270/- as retainership fee and the same was paid on 15.10.2014. Again OP2 requested the complainant to pay 1200 US dollars equivalent to Rs.76,780/- to pay the same to its office at Dubai and the same was paid through OP1 along with DD.  Further a sum of 1250 Canadian dollars was paid to OP1.  He was advised to wait for further notice from the Canadian High Commission. He waited till September 2015 but went on making enquiries with OPs.  On 04^th September 2015 he contacted one Digvijay over mail and requested him to inform regarding his visa process status.  He inturn informed the complainant to send mail directly to Canadian High Commission and as per the advise, he sent a mail directly to Canadian High Commission during October 2015 and was regularly following the status with OP2.   Whenever he enquired regarding the process of visa OP1 and 2 kept on saying that the same is under process.  He waited all the while but nothing happened.  Knowing fully well that the application of the complainant could not be processed by the Canadian High Commission, they collected huge amount and sent his application in the last week of December 2014 and did not intimate the factual possession of his application for visa, only in order to extract money from him.  Otherwise, they would have instructed him the real position and advised him to apply by next year i.e., 2015 instead of collecting the application and the money five days before closing of the process for the said year.  

3.      Further, he contends that he was shocked and surprised to hear during October 2015 from the Canadian High Commission that in the month of March 2015 itself, his application was returned due to certain limits. Thereafter, he requested OP to return all the original documents given by him to them along with Rs.84,270/- by way of DD and 1250 Canadian dollars and 1200 US dollars.  He was advised by OPs to contact the local post office to collect the documents sent by OP1.  When he enquired with post office, it was revealed that no such documents and letters were received by them from OPs.  He again informed to Digvijay who asked him to contact one Mahesh from Paul Merchant on 6^th November 2015, who inturn informed him to contact the Bangalore office.  On the contrary complainant did not receive any response or information from OPs which is highly illegal improper unprofessional and their intention is to cheat him.  OPs have misguided him on the visa application process and were very negligent and careless in not informing him the status regarding his visa application due to which he suffered mentally physically and financially.  Hence he is entitle for refund of the same. He had to issue legal notice on 01.12.2016 and the same was served on OPs on 07.12.2016 and 03.12.2016 respectively. Inspite of it they have not complied with the demand made in the notice and hence the deficiency in service, unfair trade practice by the OPs and hence the complaint.

4.      Upon the service of notice, OP1 and 2 appeared before the Commission and filed their version contending that the complaint is not maintainable either in law or on facts.  It is contended that the complainant applied for immigration to Canada and engaged their services for receiving professional services with respect to preparation, submission, and processing of immigration application on behalf of the complainant.  Before filing the application to the concerned immigration authorities, the educational credentials of the complainant was to be assessed from world education services, Canada, which is the assessing authority.  Accordingly, OPs assisted the complainant in getting his ECA done through the designated organization by collecting and submitting the relevant documents.  A positive assessment result was obtained from WES on behalf of the complainant and the result was duly forwarded to the complainant.  They did their job more than half of the work as per the contract by getting a positive skill assessment result of the complainant, they assisted the complainant in preparing his immigration case by reviewing and identifying the required case filing documents and supporting evidence. His application was duly processed, prepared and filed by them before the citizenship and immigration, Canada(CIC) for which they charged Rs.75,000/- as retainer fee which is non refundable.  The case of the complainant was returned due to capping by the immigration authorities.  At present only 25000 applicants were processed and selected and the remaining application received from all over the world were capped.  It was unfortunate that the complainant’s application was not choosen for processing within the said 25000 applications.  All though complainants application was received by the concerned authorities on 31.12.2014, as is clear from the correspondence dated 21.9.2015. OPs have no domine over such pick and choose method adopted by CIC and hence there is no deficiency in service or unfair trade on their part.  

5.      It is sheer bad luck of the complainant and his application was returned by CIC to him directly on 24.03.2015 through regular mail.

6.      It is contended that the complainant has entered into separate agreement with OP1 and with M/s Global business Strategic Consultancy, Dubai, for availing post landing services as per contract dated 17.10.2014.  It is a separate and distinct legal entity and any amount paid to the said company the same cannot be claimed from OP2.  

7.      When once the complainant has retained the services of OP, OP is bound to give service in respect of

1. Counseling and advising the client about the Immigration Category in which he/she retained the services and the Immigration procedure to be followed.
2. Providing and counseling the client about immigration package and the check list of documents, explaining the client in detail about the documents and the forms that are necessary for filing immigration application.
3. Advising the guiding the client in preparation of documents and forms in proper format as per the requirement of Immigration Authorities etc., Documents such as Experience documents, Education documents etc.

8.      Complainant has paid Rs.75,000/- towards retainer ship excluding the cost of Rs.9,270/- towards the taxes.  They being professional in nature, the entire fee for the services provided is not refundable as per clause 11(e) of the contract. Hence the complainant is not entitled for the same.

9.      Further the taxes collected are to be paid to the government towards service tax, education cess, secondary and higher education cess and hence the same is not refundable.  

10.    Further as per clause 23 of the contract, if any dispute arises between the parties, the same has to be referred to the arbitration.  Further the complainant has paid 1200 US dollars to Global Business Strategic Consultancy Dubai, which is a separate legal entity and further 1250 canadian dollar is paid to the Receiver General of Canada as visa processing fee, which was paid to immigration authorities and the refund of the same cannot be claimed from the OPs. They have provided their services in the best possible manner, however due to the bad luck of the complainant, and to capping of skilled work category, the complainant’s application was returned, for which OPs cannot be blamed.  It has denied the allegation that knowing fully well that there is a cap of 25000 applicants per year, OPs have sent the application in the fag end of the year which is to end in five days. Denying all the allegations made against it, in each and every para of the complaint, further contending that the complainant is not entitle for any of the amount, interest, compensation, damages or litigation expenses, prayed the forum to dismiss the complaint.  

11.    In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

12.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

13.   POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the OPs are providing service of immigration consultancy service for fee, and as per the documents produced the agreement the complainant obtained the services of OP in getting immigration to Canada under Skilled Workers Category.  It is also not in dispute that the OP received from the complainant a sum of Rs.84,270/- and further a sum of Rs.76,780/- in the form 1250 canadian dollar and 1200 US dollars respectively by using the credit card.  Further it is to be noted here that the reason assigned by the Canadian embassy authorities is that it exceeds the limit and cannot be considered. According to the scheme of providing immigration to foreigners, they have decided that 25000 applicants would be given immigration per year and the rest of will be rejected.

14.   It is to be noted here that the OP received the amount in the fag end of the calendar year of 2014 and processed the application to the Canadian high commission during December 2014 knowing fully well that the limit for providing immigration is only for 25000 people, it could have waited till the completion of the said calendar year and would have made the application to the Canadian high commission for processing in 2015, so that, the complainant would have got immigration to Canada.  Knowing fully well that the limitation and restriction of 25000 applicants per year, processing and sending the application of the complainant for processing through to the candian embassy at the end of the calendar year clearly falls under unethical practice and also unfair trade practice, which falls under C.P. Act, and hence we answer point No.1 in the affirmative.

POINT NO. 2:

15.   Though OP has contended that as per the agreement and terms and conditions, the amount paid by the complainant is not refundable, again the said condition also is violative of the Consumer Protection Act, as OP has received the amount without providing any assistance and service in order to make unlawful gain.  

        16.   The complainant has paid 1250 Canadian dollar, amounting to Rs.84,272/- to OP1 and 1200 US dollars amounting to Rs.76,780/- to OP2 through credit card.  Which according to OP1, had to be paid to OP2 for taking formalities.  Inspite of taking the said amount as observed above, the application of the complainant was rejected and further even after rejection, the same was not intimated to the complainant by OPs.  Whereas, he had to make his own effort by approaching the post office to know as to whether any a letter from the Canadian embassy has been sent to him and further to know on its own the status of his application for immigration, from Canadian embassy.  It also makes us to hold that it is also deficiency in service on the part of the OPs.  Hence for the services rendered by the OPs to the extent of receiving the application, processing, it making correspondence, sending it to Canadian embassy, for which they have incurred some amount. 

17.   In the complaint the complainant has sought a sum of Rs.84,272/- paid by way of cheque amounting to 1250 canadian dollar and Rs.76,780/- amounting to 1200 US dollar to OP2, along with damages of Rs.50,000/- for causing him mental agony and strain and discomfort and hardship along with cost of proceedings.  

        18.   Since the OPs have taken some steps to process the application for immigration, we feel that OPs to refund the amount by retaining a sum of Rs.50,000/- out of it for rendering their service and further to pay a sum of Rs.20,000/- for causing mental agony, physical hardship and discomfort and further a sum of Rs.10,000/- towards litigation expenses. Hence we answer point No.2 in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OPs are directed to refund a sum of Rs.1,61,058/- less Rs.50,000/- i.e., Rs.1,11,058/- with interest at 12% p.a., from the date of legal notice i.e., 01.12.2016 till the payment of the entire amount.
3. OPs are further directed to pay a sum of Rs.20,000/- towards damages for causing mental agony, physical hardship and discomfort and Rs.10,000/- towards litigation expenses. 
4. OPs are further directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 30^TH DAY OF JUNE 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

- NIL –

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

• NIL –

Copies of Documents produced on behalf of Opposite Party/s

• NIL –

MEMBER                                        PRESIDENT