STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. | : | 90 of 2012 | Date of Institution | : | 16.03.2012 | Date of Decision | : | 05.07.2012 |
M/s Worldwide Immigration Consultancy Services Ltd. (WWICS Ltd.), Head office at A-12, Industrial Area, Phase 6, Mohali. ……Appellant V e r s u s Aditya Kumar, R/o Mohalla Kotla, Near PWD Guesthouse, Town Gangoh, District Saharanpur (U.P.). ....Respondent Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (Retd.), PRESIDENT. MRS. NEENA SANDHU, MEMBER. Argued by: Sh. Raman Walia, Advocate for the appellant. Sh. Deepak Aggarwal, Advocate for the respondent. PER JUSTICE SHAM SUNDER, PRESIDENT 1. This appeal is directed against the order dated 12.12.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which it accepted the complaint, and directed the Opposite Party (now respondent), as under:- “In view of the foregoing, after taking into consideration the pleadings as well as evidence led by the parties, we are of the considered opinion that the OP Company was deficient in providing proper services to the complainant. The present complaint has lot of merit, weight and substance. The same is accordingly allowed. The OP is directed to refund to the complainant a sum of Rs.25,000/- plus $1400 (in Indian rupee taking the exchange rate of 12.12.2011) charged from him towards professional fee. The OP is also directed to pay Rs.50,000/- as compensation for mental agony and physical harassment, apart from Rs.10,000/- as litigation cost. This order be complied with by the OP, within one month, from the date of receipt of its copy, failing which they would be liable to pay the above awarded amount, alongwith interest @ 12% p.a. from the date of filing of the present complaint i.e. 07.10.2010, till the amount is actually paid to the complainant, besides paying the litigation cost of Rs.10,000/-“. 2. The facts, in brief, are that the complainant (now respondent) approached the Opposite Party, for immigration to Canada. He disclosed his qualification & work experience and expressed his desire & readiness to settle abroad, as a skilled worker. The Opposite Party, replied to the queries, raised by the complainant, such as immigration process, its standing reputation & success rate and time taken for sending people abroad under various programs etc. After mock interview of the complainant, checking of his relevant documents, and experience certificate in original, the Opposite Party, informed him that its immigration expert had assessed him, as a suitable candidate for immigration to Canada. It was told to the complainant that his application for immigration to Canada, under skilled professional, was to be proceeded out of turn in 6 to 8 months. The complainant submitted all the requisite documents, such as qualification, work experience etc., as demanded and needed by the Opposite Party, for assessing his case. He also deposited Rs.25,000/-, with the Opposite Party, on account of rendering of professional services vide Annexure C-2. He also deposited Canadian dollars 1400 and Rs.19,000/- with the Opposite Party vide Annexures C-4 & C-5. It was stated that the Contract of Engagement, Annexure C-2, was executed between the parties. It was further stated that the Opposite Party negligently did not perform its part of the contract, as it did not submit the documents to the High Commission of Canada, provided by the complainant. Resultantly, the case of the complainant was not only prolonged beyond 6-8 months, but was also rejected by the High Commission of Canada vide letter dated 2.6.2009 (Annexure C-7), on the ground of non-submission of documents. It was further stated that the Opposite Party, was to review the case, monitor it properly, ensure timely issuance of permanent visa, and was to further identify for submission of all required documents, but it was totally negligent, in doing so. It was further stated that the Visa of the complainant was rejected, by the Canadian High Commission, only on account of deficiency, in rendering service, by the Opposite Party. The Opposite Party, was many a time, asked to refund the amount, deposited by the complainant, as he had not been granted Visa, but to no avail. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed. 3. The Opposite Party, in its written version, admitted that the complainant approached it, for immigration to Canada, as skilled worker. It was also admitted that a sum of Rs.25,000/-, as processing fee, was deposited by the complainant, with it. It was stated that the documents submitted by the complainant, were duly scrutinized by the Opposite Party, and his case was submitted to the Canadian High Commission. It was further stated that the complainant was required to submit the IELTS result and he was asked to do so, vide letter dated 27.4.2004 (Annexure R-8). It was further stated that the complainant was repeatedly asked and the e-mails, of the Canadian High Commission asking him (complainant), for the submission of documents, were sent through Regd. Post (Annexure R-10 to R-13) to him, but he failed to submit the requisite documents, as required by the Canadian High Commission, New Delhi. It was further stated that the case of the complainant was rejected by the Canadian High Commission, vide their letter dated 2.6.2009 (Annexure R-14). It was further stated that that the rejection of Visa of the complainant was not, on account of deficiency, in service, on the part of the Opposite Party, but due to his own (complainant`s) fault, in not submitting the required documents. It was further stated that the amount of Rs.19000/- vide Annexure R-6 was paid to the Canadian High Commission, as Visa processing fee, and the same was non-refundable. It was further stated that US $ 1400 vide Annexure R-6/A, were paid to M/s GSBC, Dubai, U.A.E., which Company had no concern with the complainant, and had also not been impleaded, as a party, to the complaint, and, as such, no claim of this amount, against the Opposite Party, could be made. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong. 4. The Parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, came to the conclusion, that the Visa of the complainant was rejected, by the Canadian High Commission, on account of deficiency, in service, on the part of the Opposite Party. 6. Ultimately, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 7. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party. 8. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, submitted that, no doubt, the complainant approached the appellant/Opposite Party for his immigration to Canada, as a skilled worker, and Contract of Engagement Annexure C-2, was entered into between the parties. He further submitted that a sum of Rs.25,000/-, paid by the complainant, to the Opposite Party, for assisting him in preparation of his case for permanent residency for immigration; reviewing and identification for submission of all the required documents and supporting evidence; submission of complete case with supporting documentation and evidence alongwith the submission report to the processing Visa office; and assisting the complainant , in keeping the file up-to-date and in interview preparation. He further submitted that the duties of the client were to submit all the requisite documents, asked for, from him, by the Opposite Party, for its onward transmission to the Canadian High Commission. He further submitted that even, as per the Contract of Engagement, Annexure C-2, the complainant was required to have high proficiency in English Language (IELTS)/any other test, as laid down, by the Immigration Authorities subject to change from time to time. He further submitted that the case of the complainant was submitted to the Canadian High Commission, after reviewing the documents furnished by him, to the Opposite Party. He further submitted that the Canadian High Commission, asked for other documents/information, from the complainant, as well as from the Opposite Party. He further submitted that the complainant was duly informed, for submission of the documents and the information asked for, by the Canadian High Commission, but he did not submit the same, within the requisite period, as a result whereof, the Visa application of the complainant was rejected. He further submitted that since M/s GSBC, with which US $ 1400, were deposited, had not been impleaded as a party, to the present complainant, therefore, the Opposite Party could not be made liable to make refund of that amount. He further submitted that Rs.19,000/-, were deposited with the Canadian High Commission, for processing the aforesaid application, and the same was non-refundable. He further submitted that the Opposite Party was not deficient, in rendering service. He further submitted that it was on account of the fault of the complainant, in not submitting the relevant documents, and furnishing the requisite information, to the Canadian High Commission, that his Visa application was rejected, and, as such, he was not entitled to the refund of any amount. He further submitted that the District Forum was wrong, in accepting the complaint of the complainant, and granting relief. He further submitted that the order of the District Forum, being illegal and perverse, is liable to be set aside. 10. On the other hand, the Counsel for the respondent/complainant, submitted that no letter was sent by the Opposite Party, which it had received from the Canadian High Commission, asking the complainant to submit the requisite documents and furnish the information, as mentioned therein. He further submitted that, under these circumstances, the question of submission of those documents and furnishing of information, by the complainant, did not at all arise. He further submitted that it was the duty of the Opposite Party, to properly assess the documents, and work experience of the complainant, before sending his case to the Canadian High Commission. He further submitted that since the case of the complainant was not properly processed, his Visa application was rejected. He further submitted that M/s GSBC, with which US $ 1400 were deposited, was the sister concern of the Opposite Party, as Ravinder Singh Sandhu, is a Director of the Opposite Party and also of M/s GSBC, and, as such, the Opposite Party, is liable to refund this amount. He further submitted that since the Visa application of the complainant was rejected on account of deficiency, in rendering service, by the Opposite Party, he was entitled to the refund of amount. He further submitted that the order of the District Forum, being legal and valid is liable to be upheld. 11. Undisputedly, at the time of hiring the services of the Opposite Party, by the complainant, a Contract of Engagement Annexure C-2, was executed, between the parties. According to this Contract of Engagement, the duties of the Opposite Party/Worldwide Immigration Consultancy Services Ltd., were to assist the complainant in preparation of his case for permanent residency for immigration; review and identify for submission of all the required documents and supporting evidence; submission of complete case with supporting documentation and evidence alongwith the submission report to the processing visa office; assist the complainant , in keeping the file up-to-date and in interview preparation; ensure rendering services of GSBC and its associates, with regard to assistance in assessment of educational and professional qualifications from educational and professional bodies; advice about immigration laws of that Country; and endorsements and final approval of the case from overseas bodies. The duties of the client are also mentioned in paragraph number 2 of this Contract of Engagement Annexure C-2. It was the duty of the complainant as per this Contract of Engagement to produce all the information truthfully, in writing, as requested by the Company, and the processing Visa Office, as per Company`s instructions. It was also one of the duties of the complainant to forthwith provide all the supporting documentation and other evidence, as required by the Company. He was also to provide only such documents, which were legal, valid and genuine, especially the documents, including educational qualifications and experience. According to paragraph 2 (j) of the contract of engagement, it was the duty of the complainant, to have high proficiency in English Language (IELTS)/any other test as laid down by the Immigration Authorities, subject to change from time to time. At the time of entering into Contract of Engagement Annexure C-2, a declaration in the shape of affidavit, copy whereof is R-3 dated 16.06.2004, was also furnished by the complainant. In this declaration, in the form of affidavit, it was stated by him, that he had signed the Contract of Engagement Annexure C-2, without any coercion or undue influence, on the part of either party at any moment of time while executing the same. He further undertook vide this declaration, to abide by the various terms and conditions of the Contract of Engagement Annexure C-2, in totality. Another certificate dated 13.06.2004, was also submitted by the complainant, which is Annexure R-4, wherein, it was undertaken by him, that he will provide all information in IMM008 regarding academic record, technical qualifications and experience, as per the information provided by him, in the Assessment Form, on the basis of which he had been declared “Qualified” by WWICS i.e. the Opposite Party. It was also undertaken by the complainant, that in case WWICS was unable to file his case, because of variation in the information given, in the Assessment Form, he will not be entitled to any refund of the money paid to it. Admittedly, the case of the complainant, was submitted by the Opposite Party, to the Canadian High Commission, alongwith the documents supplied by him, after properly scrutinizing, and assessing, his experience and qualifications. As stated above, right from the very beginning, and, even in the Contract of Engagement Annexure C-2, the complainant was asked to submit the record/result of IELTS. Annexure R-7, is the letter dated 27.08.2004, vide which the case of the complainant for immigration was sent by the Opposite Party, to the Canadian High Commission, Immigration Section, New Delhi. Vide another letter Annexure R-8, dated 27.08.2004, the complainant was asked to submit the documents mentioned therein, within 30 days, for sending the same to the Canadian High Commission. An email Annexure R-10 dated 13.10.2008, was received by the Opposite Party, wherein the Canadian High Commission sought additional documents and information. On 13.10.2008, itself, letter Annexure R-11, alongwith email aforesaid, was sent to the complainant through Registered AD, requesting the complainant to submit the documents, as also the information, sought for by the Canadian High Commission vide the aforesaid email. Acknowledgment receipt of this letter is Annexure R-12. No doubt, according to the Counsel for the respondent/complainant, this letter was never received by him, as it was not sent at his permanent address, yet, his contention does not appear to be correct. The complainant gave his current mailing address, which is mentioned in Annexure R-11, in his application Annexure R-1, which was submitted by him, to the Opposite Party, for free assessment. Even the contention of the Counsel for the respondent/complainant, that this letter was not received by him, is further belied from Annexure R-15, a letter dated 09.07.2009, which was also addressed by the Opposite Party, to him, at the same address. The letter Annexure R-15, later in date, addressed at the same address, if received by the complainant, his contention could not be believed, that he did not receive the letter Annexure R-11, vide which he was asked to submit the documents and furnish the information, sought by the Canadian High Commission, within 90 days. Admittedly, the documents, asked for, by the Canadian High Commission, vide email Annexure R-10, from the complainant, which was sent to him, by WWICS i.e. Opposite Party, vide letter Annexure R-11, were not submitted by him, within the prescribed time, or even thereafter. Since, he did not submit the documents and furnish the information, mentioned in the email Annexure R-10 sent vide letter dated 13.10.2008, Annexure R-11, his application for grant of Visa was rejected by the Canadian High Commission, which was sent to him, vide letter Annexure R-15 dated 09.07.2009. The complainant did not perform the duty, cast upon him, as per the Contract of Engagement Annexure C-2 i.e. he did not submit the documents and furnish the information, sought by the Canadian High Commission, from him, through WWICS. The blame, therefore, completely lay on the shoulders of the complainant. Had the relevant documents, as asked for, vide the aforesaid email and letter been submitted by the complainant, to the Opposite Party, and had it not further submitted the same, to the Canadian High Commission, as asked for by it, it would have been staid that the Opposite Party was deficient, in rendering service. There was, therefore, no deficiency in rendering service, on the part of the Opposite Party. In the instant case, since, the application for grant of Visa to the complainant, was not rejected, on account of the deficiency, in rendering service, on the part of the Opposite Party, he was not entitled to the refund of Rs.25,000/-, paid as processing fee, by him. The District Forum was wrong, in coming to the conclusion, that it was on account of deficiency, in rendering service, on the part of the Opposite Party, that visa application of the complainant was rejected. The findings of the District Forum, in this regard, being perverse, are set aside. 12. The next question, that falls, for consideration, is, as to whether, in the absence of impleadment of M/s GSBC, as a party to the complaint, to which US $ 1400 were paid, the refund of the same, could be claimed from the Opposite Party. No doubt, the Counsel for the respondent, submitted that Sh. Ravinder Singh Sandhu, at the relevant time, was the Director of the Opposite Party, as also of the M/s GSBC, and, as such, both being sister concerns, the Opposite Party was liable to refund that amount. However, the mere fact, that a person is a Director, in so many Companies, did not mean that he will be liable to discharge the liability of the Company, which was not impleaded as a party. In Worldwide Immigration Consultancy Services Ltd., Vs. Manohar Singh Randhawa, Revision Petition No. 3334 of 2010, decided on 08.3.2011, by the National Consumer Disputes Redressal Commission, New Delhi, it was observed as under:- “Having considered the respective submission, we must at once hold that the orders of the fora below directing the petitioner company to refund the fee of 1500 U.S. dollars deposited by the complainants with the Worldwide Immigration Consultancy Services Canada Inc. cannot be upheld in any view of the matter because the said amount was paid by the complainants under agreements signed by the complainants under the advice of the petitioner. Since these amounts were not received by the petitioner and were received by a third party i.e. Worldwide Immigration Consultancy Services Canada Inc. and that they are not privy to the said agreement, no liability can be enfastened on the petitioner for the refund of the said amount. The said Worldwide Immigration Consultancy Services Canada Inc. has not been made a party in the complaint and, therefore, we are not aware as to whether there was any deficiency in service on the part of that company or what is their stand”. 13. The principle of law, laid down, in Immigration Consultancy Services Limited`s case (supra) is fully applicable to the facts of the instant case. In the absence of impleadment of M/s GSBC, to which US $, 1400 were paid, no claim of refund of this amount, could be made, against the Opposite Party. The submission of the Counsel for the respondent/complainant, in this regard, being incorrect, is rejected. 14. Coming to the refund of a sum of Rs.19,000/-, which was paid to the Canadian High Commission, by the complainant, for processing his Visa application, it may be stated here, that the same was non-refundable. That was the fees, which was deposited by the complainant, with the said High Commission. The said High Commission performed its duty, in processing the application for Visa of the complainant, and asked for additional documents/information, within 90 days, from the date of issuance of the letter, referred to above. The complainant was duly informed by the Canadian High Commission, with regard to the submission of the documents/additional information. He was also duly informed regarding submission of the documents/information, asked for by the Canadian Embassy, vide letters aforesaid, by the Opposite Party, but he failed to discharge his duty, as per the Contract of Engagement Annexure C-2, by not supplying the documents, as a result whereof, his application for Visa was rejected. In these circumstances, the complainant could not claim refund of this amount. Otherwise also, as stated above, this amount was non-refundable. 15. No other point, was urged, by the Counsel for the parties. 16. The order, passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission. 17. For the reasons recorded above, the appeal is accepted with no order as to costs. The order of the District Forum is set aside 18. Certified Copies of this order be sent to the parties, free of charge. 19. The file be consigned to Record Room, after completion Pronounced. July 5, 2012 Sd/- [JUSTICE SHAM SUNDER (Retd.)] PRESIDENT Sd/- [NEENA SANDHU] MEMBER Rg.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
