BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 29/06/2009

Date of Order : 31/12/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 338/2009

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :

On 11-08-2006, the 1^st and 2^nd opposite parties selected the complainant as mechanical supervisor and promised Visa by the end of August 2006 on a charge of Rs. 8,000/-. Instead of Supervisor Visa, they provided Labour class visa and charged Rs. 50,000/-. On 03-12-2006, the complainant reached at Al Ain and the 2^nd opposite party started harassing the complainant for one or another reason. On 13-01-2007, the 2^nd opposite party terminated the complainant's service and directed him to return. Though the complainant approached the courts in Al Ain due to the undue influence of the 2^nd opposite party he could not succeed. On 05-05-2008, the complainant was arrested and put in jail at the behest of the 2^nd opposite party. Subsequent to the release from jail due to the intervention of the Malayalee Samajam, the complainant managed to return from there on 14-08-2008 having had to leave behind his valuable documents and certificates. Thus, the complainant is before us seeking direction again the opposite parties to refund Rs. 50,000/- with interest the amount paid for visa charges and to pay Rs. 4.5 lakhs towards damages.

2. The version of the 1^st opposite party :

The complainant placed application before the 1^st opposite party for his overseas employment. Since the age was over and he was not fit for obtaining job as desired he was selected for the post of electro mechanical supervisor instead of his application for some other post. He has paid Rs. 8,500/- only to the 1^st opposite party as service charge as demanded by them. There is no deficiency in service on the part of the 1^st opposite party.

3. The defense of the 3^rd opposite party :

The 2^nd opposite party selected the complainant as mechanical supervisor. The 3^rd opposite party arranged the interview for the selection. The 3^rd opposite party has received only Rs. 8,500/- towards medical examination charges, certificate attestation charge, air ticket charge and agency service charges etc. On 10-08-2006 and 11-08-2006, more than 100 candidates attended the interview and 36 were selected and 17 visas were issued by the 2^nd opposite party, including the complainant. After, selection the 2^nd opposite party had issued offer of employment which is subject to the approval by the General Authority for Health Services for the Emirates of Abu Dhabi. But the complainant failed in the test twice. The Labour Court, Al Ain in U.A.E. did not consider the case of the complainant and the court directed to return the passport after canceling the Visa. Eventhen, the complainant did not return to India, then he was arrested by the police for illegal stay. There is no deficiency in service on the part of the 3^rd opposite party.

4. Notice against the 2^nd opposite party dispensed with, since he is abroad. The complainant was examined as PW1 and Exts. A1 to A14 were marked on his side. The 1^st and 3^rd opposite parties were examined as DW's 1 and 2 respectively. Exts. B1 to B10 were marked on the side of the opposite parties. The complainant who appeared in person filed argument notes. Heard the complainant and the counsel for the 1^st and 3^rd opposite parties.

5. The points that arose for consideration are :-

1. Whether the complainant is entitled to get refund of Rs. 50,000/- the visa charges form the opposite parties?

2. Whether the opposite parties are liable to pay a sum of Rs. 4.5 lakhs by way of damages?

6. Point No. i. :- Admittedly, the complainant went abroad in Ext. B1 Visa. The job offered as per Ext. B1 is 'brick mason'. According to the complainant, he had paid Rs. 50,000/- though the opposite parties offered free Visa as per Ext. A1 advertisement. The 3^rd opposite party maintains that they have charged only Rs. 8,500/- from the complainant that too for expenses for medical examination, certificate attestation, air ticket and agency service charge. But nothing is on record to substantiate the contention of the complainant that he had to pay Rs. 50,000/- to the 3^rd opposite party. It cannot be deeemed to be acceptable that an employment agency would render free service to a job seeker, because the contention raised by them do not confirm the same or even conform to the contentions raised.

7. Point No. ii. :- It is evident that the complainant had gone to Al Ain been denied the job he was promised, not been able to return arrested for lack of service from the 1^st and 3^rd opposite parties but was able to return with the Malayali Samajam of Al Ain alone. The mental agony that the complainant has had to suffer speaks volumes due to the deficiency in service on the part of the 1^st and 3^rd opposite parties for which they are answerable squarely.

8. Rule 10 (1) (ix) (a) of the Emigration Rules 1983 reads as follows :

“Terms and conditions of the certificate – (1) The registration certificate shall be subject to the following terms and conditions -

“(a) a register of receipt of charges from emigrants recruited, in the form of an original acquittance roll containing the signature of each emigrant from whom the charge has been received. Each such register shall be with reference to a demand for recruitment. The register shall be with reference to a demand for recruitment. The register shall be maintained as permanent records;”

Rule 10 (1) (xiv) (e) reads as follows :

“The holder of the certificate shall -

(e) facilitate amicable settlement of disputes between the employer and the emigrant.”

9. The failure of the 1^st and 3^rd opposite parties in complying with the above statute holds them responsible for such delinquency and deficiency in service. For reasons for which this Forum cannot turn a blind eye or deaf ears. For reasons substantiated above, compensation is justified. However, the mental agony claimed by the complainant seems to be too tall. Ends of justice can adequately be met by an award of Rs. 50,000/-, especially since the the complainant is safely back in home land whereas more unfortunate case have to be recalled.

10. For reasons above, the decision cited by the 3^rd opposite party rendered by the Hon'ble National Consumer Disputes Redressal Commission in Jainnul Abdean and Another Vs. Twaik East International and Another 1998 (2) CPJ 91 cannot be upheld in the instant case due to lack of nexus.

11. In the result, we partly allow the complaint and direct that, the 1^st and 3^rd opposite parties shall jointly and severally pay a compensation of Rs. 50,000/- (Rupees Fifty thousand only) to the complainant for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till payment.

Pronounced in open Forum on this the 31^st day of December 2011

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 :-

=========