BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 11/01/2010

Date of Order : 29/02/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 12/2010

Between

And

O R D E R

A. Rajesh, President.

1. Brief facts of the complainant's case are as follows :

The 1^st opposite party is an immigration consultant and the 2^nd opposite party is their branch office in Kochi. The complainant availed their service for obtaining permanent resident Visa in Canada. The opposite parties offered to arrange permanent resident visa within 4 to 5 years from the date of application. Accordingly, application was submitted before the 2^nd opposite party and the complainant paid Rs. 25,000/- towards registration fee for immigration on 11-11-2003. Subsequently, the complainant paid Rs. 49,600/- on 09-02-2004 towards professional charges. Again, the complainant paid Rs. 19,000/- towards immigration fee on 23-09-2004. Thereafter, 1000 dollars (equivalent to Rs. 49,600/-) was paid on 22-11-2004 towards professional charges. The Canadian High Commission had created a file with the file No. B 047420796 (ITI) and a communication dated 07-10-2004 was received by the complainant. While so, a letter dated 04-09-2009 was issued by the High Commission of Canada stating the rejection of the complainant's application. The reason given for the rejection is that the authorized representative of the complainant Mr. Satish Nandre has informed them that the complainant has not submitted requested documents and thus he is not representing the complainant's application any more. Mr. Satish Nandre is an officer of the opposite parties and he made wrong representation before the High Commission and on the basis of his submission, the application was rejected. Nobody including Mr. Satish Nandre or his staff contacted the complainant seeking production of documents asked by the High Commission of Canada so far. The statement made by the representative of the opposite party to the effect that he is not representing the complainant's application any more amounts to deficiency of service for no reasons sustainable. The opposite party had collected professional charges for representing the complainant before the High Commission of Canada. Due to the willful omission on their part, the complainant suffered huge financial loss, mental agony and hardships. Hence this complaint.

2. The version of the opposite parties :

The 1^st opposite party is an immigration agency. The complainant approached the opposite parties with an intention to immigrate to Canada. The complainant paid the requisite fee for the same. Accordingly, the opposite parties processed and submitted the application before the Canadian High Commission, New Delhi on 24-08-2009. They alloted file No. BO 47420796 on 07-10-2004. Thereafter, the High Commission issued a letter on 06-11-2008 to the opposite parties to fulfill the other requirements within a time frame. The opposite parties sent the documents to the complainant with a covering letter for complying with the instructions from the High Commission by courier as well as E-mail in the address furnished by the complainant before the opposite parties inter alia call upon the complainant in his telephone numbers. Unfortunately, there was no response on the part of the complainant. In spite of repeated attempts, the opposite parties could not contact the complainant. Subsequently, the opposite party sent withdrawal of authorisation to the High Commission on 06-02-2009 with a copy to the complainant, for that also there was no response on the part of the complainant. There is no negligence or deficiency in service on the part of the opposite parties in processing the application of the complainant. The opposite parties request to dismiss the complaint.

3. This Forum allowed the complaint vide order dated 30-10-2010. The 1^st opposite party preferred Appeal No. 202/2011 against the order before the Hon'ble Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram. The Hon'ble Commission allowed the appeal vide order dated 11-04-2011 and remitted the matter to this Forum for fresh disposal on payment of cost of Rs. 8,000/-. The opposite parties complied with the order.

4. The complainant was examined as PW1 and Exts. A1 to A4 were marked on his side. The witness for the opposite parties was examined as DW1 and Exts. B1 to B9 were marked on their side. Both sides filed argument notes. Heard the learned counsel for the parties.

5. The points that arose for consideration are :-

1. Whether the complainant is entitled to get refund of the visa processing fee from the opposite parties?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

6. Point No. i. :- According to the counsel for the complainant, the opposite parties did not make any effort to locate the complainant in the address and telephone numbers provided by him and so he lost his chance to go to Canada thence. It is stated that the complainant is entitled to get refund of the full amount from the opposite parties.

7. Per contra, the learned counsel for the opposite parties vehemently contended that the opposite parties had taken their earnest efforts to fulfill their duty and responsibility to the complainant thereby no deficiency in service is there on the side of the opposite parties. The counsel relied on the following decisions rendered by the Higher Judiciary :

1. State of M.P. Vs. Hiralal and Others (1996) 7 SCC 523.

2. M/s. SIL Import USA Vs. M/s. Exim Aides Silk Exporters AIR 1999 Supreme Court 1609.

3. Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines and Another (2000) I SCC 66.

4. Alavi Haji Vs. Muhammed 2007 (3) KLT 77 (SC).

5. Ravi Vs. Ayyappa Roller Flour Mills Ltd. 2009 (1) KLT 335.

6. M/s. Lufthansa German Airlines Vs. M/s. Indian National Science Academy 2010 (2) CPR 88 (NC).

8. The parties are in consensus on the following issues undisputedly :

1. In 2003, the complainant availed himself of the services of the opposite parties to process his application to immigrate to Canada and paid the amounts as per Ext. A1 series receipts (4 in numbers).

2. The Canadian High Commission accepted the complainant's application and alloted file No. B 0474 20796 (ITI) to the complainant, evident from Ext. A2 letter dated 07-10-2004.

3. The office of the High Commission of Canada rejected the application of the complainant for immigration, evidenced by Ext. A3 letter dated 04-09-2009.

4. The address of the complainant stated in the applications is “Kuttipuzha Joy Thomas, 13/420 A, New Colony, Mankavu, Palakkadu, Kerala”

9. Exts. B1 to B4 goes to show that the opposite parties had despatched the intimation from the High Commission regarding the further processing of the visa application forwarded in the above address. The complainant does not have a case that the opposite parties had despatched Exts. B1 and B4 in a wrong address other than the one furnished by him. During evidence, the complainant who was examined as PW1 admitted that he had simultaneously received a communication through Ext. B7 e-mail, which is a copy of Exts. B1 and B3. So, the confirmed inference for no reasons otherwise is the acceptance of the intimation. Since, the opposite parties had despatched the cover contending the information from the Embassy in the correct address and simultaneously through Ext. B7 e-mail, we cannot attribute any deficiency in service on the part of the opposite parties. The decisions rendered by the Hon'ble Supreme Court (cited by the opposite parties) squarely applicable in the instant case, which has only to be accepted.

10. Admittedly, as per Ext. A1 series the opposite parties have received a sum of Rs. 120,600/- towards professional fees and Rs. 19,000/- towards immigration fees. The opposite parties maintain that out of the above amount, they have collected only Rs. 25,000/- towards service charges the balance amount had been forwarded to the Canadian Embassy. Since the application of the complainant was rejected by the Embassy, naturally he is entitled to get refund of the fees. Neither parties fail to produce the relevant Rules or Regulations governing the refund of the fees by the Canadian Embassy.

11. Be that things as it may, it cannot be unsustained that the opposite parties should process and forward the application of the complainant to the Canadian Embassy to get refund of the fees remitted by him with the Embassy vide Exts. A1 series excluding Rs. 25,000/- the service charges of the opposite parties.

12. In the result, we partly allow the complaint and direct as follows :

1. The opposite parties shall process and forward the application of the complainant to the Canadian Embassy to get the remitted fee refunded provided the complainant requests or submits the application for the same.

2. It is made clear that the decision rendered by the Canadian Embassy would be final as far as this complaint is concerned unless otherwise questioned.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 29^th day of February 2012

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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