JUDGMENT 26.10.2010 Justice Pritam Pal, President 1. This appeal by opposite parties is directed against the order dated 15.12.2009 passed by District Consumer Forum-I, U.T.Chandigarh whereby complaint bearing No.974 of 2009 of respondent(complainant)was allowed with costs of Rs.5000/- and appellants (OPs) were directed to pay to the complainant compensation of Rs.1.00 lac for keeping him in dark for about five years and for not rendering any service. OPs were also directed to refund the remaining amount of Rs.28040/- alongwith interest @ 9% p.a. from 7.4.2009 till the date of refund besides interest @ 9% p.a. on the entire amount of Rs.50,000/- from 4.7.2004 to 6.4.2009. The above amounts were ordered to be paid within 30 days from the receipt of copy of the order, failing which OPs were made liable to pay penal interest @ 12% p.a. from 14.7.2009 till actual payment. 2. The parties hereinafter shall be referred to as per their status before the District Forum. 3. In nutshell, the facts as set out in the complaint are that the complainant in response to an advertisement of OPs approached them and applied for the post of Truck Driver in Manitoba (Canada) and paid Rs.50,000/- as registration fee. The parties entered into an agreement on 4.7.2004, a copy of which is annexure C-1. It was alleged that OPs did not process his case for immigration to Canada for the said job and kept his registration money for about 5 years and misguided him to prepare and undergo for IELTS though it was not required and also charged Rs.3000/- vide receipts copies of which are Annexure C-2 & C-3. The complainant visited OPs time and again to enquire about his immigration case but they did not provide any information. OPs kept the complainant in dark and wasted his five years by not applying for the post for which they took the money. Ultimately OPs sent to the complainant a cheque of Rs.21,960/- dated 6.4.2009 towards the refund of registration fee as against Rs.50,000/- paid to them on 30.6.2004. The matter was then taken up with OPs and a legal notice was also sent but OPs kept mum. Hence, alleging deficiency in service and unfair trade practice on the part of OPs, complainant filed complaint before the District consumer Forum 4. On the other hand, OPs contested the complaint and filed a joint reply inter-alia stating therein that the Agreement was executed on 4.7.2004 whereas the complaint was filed in year 2009, so it was barred by time. However, it was pleaded that the complainant had duly received the cheque of Rs.21,960/- dated 6.4.2009 as a full and final settlement with the OPs vide Annexure R-1 & R-2 and after the receipt of above said cheque, the complainant had no right and cause of action to file the present complaint. It was stated that after the execution of agreement with complainant, a letter was received from Canada vide which the course of IELTS + S.Eng. was made mandatory for the candidates for the appointment of Truck Driver in Manitoba-Canada and as such the complainant was requested to pass IELTS + S.Eng. course in response to which he also deposited Rs.3000/-. As the complainant failed to pass the requisite course of English Language by getting the required IELTS 5 Band, which was mandatory for the appointment of Truck Driver in Canada ,so he lost his right to claim any relief but on humanitarian ground a sum of Rs.20,000/- plus Rs.1960/- as interest thereon was paid to him towards full & final settlement. It was pleaded that there was no deficiency in service on their part and a prayer was made for dismissal of the complaint. 4. The District Consumer Forum after going through the evidence and hearing counsel for parties allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved, opposite parties have come up in this appeal. 5. We have heard learned counsel for the parties and gone through the file carefully. The main point of arguments raised on behalf of the appellants/OPs was that the Agreement was executed on 4.7.2004 whereas the complaint was filed on 14.7.2009, so it was beyond the period of limitation and refund of money by OPs on 6.4.2009 did not extend the period of limitation because it was returned by OPs at their own. Further, the appearance of complainant in the IELTS exam in the year 2007 could not help him in extending the period of limitation as he could not qualify the same with required number of bands and as such his application could not be moved for immigration to the Canadian Consulate. Moreover, the complainant had received Rs.21960/- on 6.4.2009 as full and final settlement by executing a receipt and after receiving the said amount he was not entitled to raise any grievance as he had no legal right to claim refund of registration fee of Rs.50,000/- as per agreement. However, these points of arguments have been repelled by learned counsel for complainant. 6. We have given our thoughtful consideration to the submissions made by learned counsel for OPs and find the same to be devoid of any merit, inasmuch as there was continue cause of action ; the Agreement was entered between the parties on 4.7.2004, OP asked the complainant to clear IELTS in 2007 and received fee for the same vide receipts dated 9.5.2007 & 5.6.2007 respectively and ultimately the amount was refunded on 6.4.2009, so complaint filed on 14.7.2009 was within limitation. Further, as observed by learned District Forum OPs failed to produce the original receipt of which Annexure R-2 is photocopy. The said document is without any date and there was no letter written by OPs to the complainant prior to the issuance of this receipt, if they had ever invited the complainant for compromise. Even otherwise OPs failed to produce any documentary evidence to prove that they had taken requisite steps for processing the application of complainant for migration to Canada after the registration of application. 7. It is pertinent to mention here that the complainant had approached OPs on 4.7.2004 but they failed to move the application for immigration to Canadian Consulate. It was obligatory on the part of OPs to check the ability of complainant with regard to the appointment of Driver before registration of his application. In case he did not possess requisite qualification for the post of Driver, his application should not have been accepted. Further, the policy of Government of Manitoba-Canada was stated to be changed in 2007 when complainant was informed vide letter dated 16.4.2007 that only those persons could be appointed as truck driver who would qualify the course of IELTS with 5.0 Bands. Had OPs been efficient in sending his application earlier to the concerned quarter the same would have been allowed before 16.4.2007. Thus, the Learned District Forum rightly held OPs guilty of deficiency in service and unfair trade practice by receiving amounts from the intending migrants but did not take effective steps for doing the needful. 8. In view of the above discussion, we are of the opinion that there is nothing wrong in the impugned order passed by the learned District Forum. Thus, the appeal fails and same is hereby dismissed, leaving the parties to bear their own costs. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | |
