PER  MRS. NEENA SANDHU, MEMBER.

1.         This order shall dispose of the aforesaid two appeals, arising out of the order dated 17.2.2011, passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in complaint case No. 320 of 2010, vide which it allowed the complaint and directed the Ops jointly and severally to pay Rs.2,67,558/- alongwith interest @6% p.a. since 8.9.2009 (the date of its deposit), to the complainant which he had deposited in the account so supplied by them. The OPs were further directed to pay Rs.50,000/- as compensation and Rs.5,000/- as costs of litigation, within 30 days, failing which they were liable to pay penal interest @ 18% p.a. on the aforesaid amount instead of paying it @ 6%, since the date of its deposit i.e. 8.9.2009, till its actual realization, to the complainant, besides payment of compensation of Rs.50,000/- and litigation costs of Rs.5,000/-.

2.         Briefly stated, the facts of the case, are that the complainant decided to study in Australia for his bright future, and he also cleared IELTS test with 7 bands in each module, which was the requirement for getting the VISA.  It was stated that the father of the complainant met Mr.Janesh Arora (OP No.2), who after perusing his certificates, assured that the complainant was eligible for getting the study VISA abroad and told him to deposit Rs.1,00,000/- towards the charges, besides the college fees, and other expenses. The complainant alongwith his father went to OP No.1, on the advice of OP No.2, where he was asked about the course, in which, he was interested, OP No.1 told that the complainant would get admission in Hales College. OP No.1 told the complainant and his father that they would arrange the offer letter, for the complainant, within a few days, mentioning the course details such as college fee, prepaid fee, start and end date of the course. OP No.1 told the complainant to deposit the documents. As such, he deposited all the original documents with OP No.1. It was further stated that after getting the offer letter Mr. Janesh Arora told the complainant to deposit the fee. When his father asked about the VISA, Mr.Janesh Arora assured that the complainant would surely get the same.  On the assurance of OPs No.1 and 2, the mother of the complainant took a loan of Rs.6 lacs, from SBI. It was further stated that on 8.9.2009, the complainant deposited an amount of Rs.2,67,000/- in the account mentioned by Mr.Janesh Arora. The father of the complainant also paid Rs.50,000/- through cheque to OP No.2, as his charges. He told them he would pay another amount  of Rs.50,000/- after getting the VISA.  It was further stated that on 14.9.2009, he received an email from OP No.1  alongwith COE Certificate, in which, it was clearly mentioned that the student should reach Australia by 12.10.2009 for Orientation Programme and the course was to start from 26.10.2009.  The complainant contacted OP No.1 to know the status of the case OP No.1 told that almost all the documents were complete, except a few, which were to be provided to it by OP No.2. OP No.1 further told the complainant to submit the documents after receiving the same from OP No.2. It was further stated that after two days, the complainant and his father went to the office of OP No.1 to know about the documents but, it representative told that it had not received the documents from OP No.2. When the complainant contacted Mr. Janesh Arora, Proprietor of OP No.2, he assured to do the needful but he did not send the documents. In the meantime, the starting date of the course i.e. 26.10.2009 also expired but the complainant did not get the VISA. It was further stated that when the complainant alongwith his parents contacted OP No.1, he was shocked to find that his file was not forwarded to the Embassy  till date, and the documents were lying in the office of OP No.1.  On 3.11.2009, OP No.1 returned the documents, to the complainant. The complainant requested OP No.1 to refund his college fee also which was credited to the college bank account, but its representative told that the fee would not be refunded and advised him to defer the course till November, 2009 with the assurance that they would submit his refund case before the starting date of the course, but they failed to do so. It was further stated that when the father of the complainant went to the proprietor of OP No.2 at Jalandhar, and told him, that he would get registered a criminal case registered against them, he issued a cheque of Rs.40,000/-. It was further stated that Mr.Janesh Arora, Proprietor of OP No.2 visited the office of the father of the complainant in April, 2010 and told that the refund had come and collect the same from OP No.1. The complainant and his father visited the office of OP No.1, where Mr.Janesh Arora was also present. OPs No.1 and 2 told the complainant to provide the bank account number as well as the Swift number, which were provided to them, but till date, no amount was refunded to the complainant.  It was further stated that the abovesaid acts of the OPs amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed

3.         Reply was filed by OP No.1, wherein, it was denied that the complainant had paid any consideration to it. It was also denied that OP No.1 was required to arrange an offer letter for the complainant or that the complainant and his father visited him in this regard.  It was stated that OP No.1 had no role to play, as only complementary assistance, was rendered by it to the complainant. The complainant was the client of OP No2 and not of OP No.1.  It was further stated that the complainant was to blame himself for the loss of tuition fee, as he could not arrange sufficient funds, so as to enable him to apply for Australian Student VISA.  It was further stated that the complainant could not have got any refund of fee because as per the college policy, the same was given to only those students, whose visas were refused. It was further stated that no fee was refunded to those students, who just changed their minds. It was further stated that whatever, OP No.1 did, the same was done on behalf of OP No.2.  All other allegations, levelled by the complainant, in the complaint, were denied being wrong. It was further stated that there was neither any deficiency, in service, on the part of OP No.1 nor it indulged into unfair trade practice.

4.            Separate reply was filed by OP No.2, wherein, it admitted the factual matrix of the case. It was stated that the admission of the complainant was confirmed in Hales College and he was told to complete other formalities to get the VISA but he failed to show his financial status, which was mandatory. Due to this reason, the complainant could not reach Australia, in time. It was denied that the OP No.2 demanded Rs.1 lac from the father of the complainant towards the charges. It was further stated that only Rs.50,000/- were charged from the complainant, out of which, Rs.40,000/- were refunded to him.  It was further stated that OP No.2 was not liable to refund the college fee. All other allegations, levelled by the complainant, in the complaint, were denied being wrong. It was further stated that there was no deficiency, in service, on the part of OP No.2 nor it indulged into unfair trade practice.

5.         The parties led evidence, in support of their case.

6.         The learned District Forum allowed the complaint, in the manner, referred to, in the opening para of this order.  

7.            Aggrieved by the order, passed by the learned District Forum, appellant/OP No.1, filed an appeal No.52 of 2011, whereas, OP No.2 /appellant, filed appeal No.64 of 2011.

8.         We have heard the Counsel for the parties, and have gone through the evidence, and record of the case carefully.

9.            Alongwith the appeal, an application for permission to place on record the true photocopy of Annexure R-1, copy of the guidelines issued by Australian Embassy & Annexure R-3 confirmation of enrollment issued by Hales College, Australia, has been filed, by the applicant/appellant.

10.       In view of the reasons mentioned in the application, we are of the view that these documents are necessary for proper adjudication of the appeal. Hence, the application is allowed and the same (documents) are taken on record. 

11.       The learned Counsel for the appellant/OP No.1 in appeal No.52 of 2011 contended that the impugned order passed by the District Forum is not sustainable in law because the complainant is not a consumer qua OP no.1 as per Section 2(1)(d) (i) of the Consumer Protection Act, 1986 as no consideration had been paid by the complainant to the OP No.1.  In the absence of any consideration paid by the complainant to OP No.2 there was no privity of contract, between them. Therefore, the complainant was not entitled to seek any relief against OP No.1. The Counsel for the appellant/OP No.1 placed reliance on the following cases. Rabinarayan Sahoo Vs. Dr. B. Jayaram Patra and Ors. I(2004) CPJ 3(NC), M/s Fruit & Vegetable project New Delhi & Anr. Vs. N.Sankar Reddy & ors. 1994(2) CPC 566 and  M.Vittal Rao & Ors. Vs. Brindavan Builders Pvt. Ltd. 2008(1) CPC 468.   It was further submitted that the complainant was to apply for VISA with the help of OP No.2 to the Australian Embassy and the role of OP No.1 was limited to the extent of providing assistance to OP No.2, in the form of securing admission in the college, and at no point of time OP No.1 was involved or had any role, whatsoever, in assisting the complainant to file the application for grant of Visa.  It was further stated that the complainant was well aware of the Rules and Regulations as an “offer letter/contract of terms and conditions” was sent to him he was at fault by not arranging and showing the amount in his account as per Australian Laws and that was why OP No.2 could not process his case for grant of VISA.  It was further stated that the complainant tried to commit fraud with the Court and the OPs since he did not enclose complete “Offcer Letter/Contract of Terms and Conditions”, which ran into 4 pages and had complete information about refund conditions. He deliberately only enclosed first two pages of the offer letter/ contract of terms and conditions (Annexure R-1). 

12.       The learned Counsel for appellant/OP No.2 in appeal No. 64 of 2011 contended that the complainant had orally hired the services of the appellant for the restricted purpose of arranging admission for him in an Australian College and nothing more.  It was admitted that such admission was obtained for the complainant by the appellant, yet he being unable to arrange the requisite funds, therefore, he could not go to Australia. It was further contended that as a gesture of goodwill, the appellant refunded a sum of Rs.40,000/- to the complainant out of the total service charges of Rs.50,000/- received by OP No.2 and a sum of Rs.10,000/- only was retained towards expenses incurred by it for arranging admission of the complainant. It was further submitted that the complainant never handed over the papers required for the grant of Australian VISA to the appellant. It was further contended that as per the VISA requirements, the complainant had to pay Rs.22,250/- by way of bank draft in favour of Australian Embassy, as also to show his or his family’s financial position to the extent of Rs.23,69,800/- with documentary proof in that regard as specified by the Australian Government but he had neither purchased the requisite bank draft nor furnished the document regarding his financial status. It was further contended that the complainant himself directly paid the fee in the bank account of the College and the same was neither routed through the appellant nor respondent No.2, nor was the same paid to any one of them. It was further contended that the mother of the complainant had taken a loan of Rs.6 lacs from the bank, which shows that the complainant and his family had at no point of time possessed the liquid assets amounting to Rs.23,69,800/- being the mandatory requirement for grant of student Visa by the Australian Embassy, in the absence of which, no application for Visa could be submitted by the complainant.  The Counsel for the appellant placed reliance on Mohammed Samdani Basha Vs. Syed Isac Basha 2006(4) Civil Court Cases 89,  Arun Khanna & Anr. Vs. Rajeev Gupta & Ors. 2007(1) Civil Court Cases 639, and Chengalvaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs 1994(1) RRR 253.  It was further stated that, there was no deficiency, in service, on the part of OP No.2 nor it indulged into unfair trade practice.

13.       The learned Counsel for respondent No.1/complainant contended that the complainant decided to study in Australia and he also cleared IELTS test.  He further contended that the complainant’s father met Mr.Janesh Arora, who after perusing his certificates, assured that he was eligible for getting the study VISA abroad and told him to deposit Rs.1 lac towards the charges beside the college fees and other expenses. On the advice of OP No.2, he went to OP No.1 the representative whereof that the complainant would get admission in Hales College. He was also told that they would arrange the offer letter, within a few days. OP No.1 told him to deposit all the original documents with it. After getting the offer letter, Mr. Janesh Arora told the complainant to deposit the fee and on 8.9.2009, he deposited a sum of Rs.2,67,000/- in the account mentioned by Mr.Janesh Arora and also paid Rs.50,000/- through cheque to OP No.2, as his charges. The complainant was also told to pay another amount  of Rs.50,000/- after getting the VISA. It was further contended that on 14.9.2009, the complainant received an email from OP No.1  alongwith COE Certificate, in which, it was clearly mentioned that the student should reach Australia by 12.10.2009 for Orientation Programme and the course was to start from 26.10.2009.  The complainant contacted OP No.1 but the representative thereof told that almost all the documents were complete, except a few, which were to be provided to them by OP No.2. After two days, when the complainant and his father went to the office of OP No.1, it told that the documents had not been received from OP No.2. The complainant contacted Mr. Janesh Arora, Proprietor of OP No.2 and assured to do the needful. The proprietor of OP No.2 did not send the documents, due to which, the starting date of the course i.e. 26.10.2009 also expired and the complainant could not get the VISA. When the complainant contacted OP No.1, he was shocked that his file was not forwarded to Embassy. The complainant then requested OP No.1 to refund him college fee but OP No.1 told that the fee would not be refunded and advised him to defer the course till November, 2009 with the assurance that they would put his refund case before the starting date of the course, but they failed to do so. The complainant’s father went to OP No.2 and told him that he will get registered a criminal case against them, upon which, OP No.2 issued a cheque of Rs.40,000/- but no further amount was refunded to the complainant. It was further contended that the impugned order passed by the learned District Forum being well reasoned is liable to be upheld.

14.       It is established from the evidence, on record, and was also admitted by the OPs that their services were hired by the complainant, for seeking guidance and advice for getting admission in a College in Australia, on the basis of study visa. After perusing the certificates and other documents of the complainant, the OPs assured him that they will arrange study visa for him, for admission in an Australian College. Admittedly, OP No.2 charged Rs.50,000/- as his service fee. C-3 is a copy of the letter, which was received by the complainant from Hales College, Australia that he had been offered a place in certificate III in Hospitality (Commercial Cookery), Certificate IV in Hospitality (Commercial Cookery) and Diploma of Hospitality. The payment schedule of fees of the course was also mentioned therein. On the asking of the OPs, the complainant deposited a sum of Rs.2,67,000/- in account in 0030116754568 told by the OPs as fees of the Counsel. Thereafter, the OPs never provided any assistance to the complainant as to which formalities he had to complete for getting study visa and how much amount should be in his account to prove his sound financial status for grant of study visa.

15.       It was the primary duty of the OPs to explain each and everything to the complainant especially they should have made him aware of all the Rules and Regulations for getting admission abroad. Had they informed the complainant regarding this condition that there should be at least minimum amount of 24 lacs in his account for getting visa for Australia then, in this situation, the complainant either could have arranged that much amount, in his account or he would not have been deposited the fee for Rs.2,67,000/- with the abovesaid college. Therefore, from these facts and circumstances, we have come to the conclusion that, the OPs were deficient in not assisting and guiding the complainant properly, which tantamounts to deficiency, in service and indulgence into unfair trade practice.

16.            Moreover, we don’t find any merit in the contention of the Counsel for OP No.1 that the complainant is not consumer qua him because no consideration had been paid to him whereas, on the contrary, it had been proved on the record that the complainant had duly paid the consideration to the OPs. The aforesaid cases by OP No.1 in support of its contention are not applicable to the facts cited of the present case

17.       Even the contention of the Counsel for OP No.1 that there was no privity of contract between the complainant and OP No.1, is also not correct because there is sufficient material on the record to prove that the complainant had hired the services of the OPs for the purpose, mentioned above. Moreover, the perusal of Annexure C-5, a receipt of the document of the complainant, handed over by the OP No.1, to the father of the complainant, clearly proves that the documents of the complainant were lying with OP No.1 for grant of visa. Therefore, it has been proved that the OP No.1 was providing services to the complainant, hence there was privity of contract between the complainant and OP No.1.   

18.       The contention of the Counsel for OP No.2 that the complainant with insidious designs to obtain favourable orders intentionally withheld the most material part of “Letter of Offer/Terms and Conditions of Admission”, running into 4 pages whereas the complainant attached the extracted first page. In order to counter the allegations the learned counsel for the complainant submitted that OP No.2 had given only the first page of the Letter of Offer (Annexure R-1) to the complainant and the same was duly attached alongwith the complaint and other three pages of the said letter, were never sent to the complainant. He drew our attention towards columns Student name and Student ID at page No.2 of the said Annexure which were left blank. He further submitted that in the absence of the name and ID of the complainant, it could not be believed that OP No.2 had sent this Enrolment Acceptance document to the complainant. We are also of the opinion that OP No.2 had sent only letter of offer i.e. page No.1 of Annexure R-1, to the complainant. Therefore, it is proved that no misrepresentation was made by the complainant. The cases referred to by OP No.2, in support of its contention, are not applicable to the facts of the present case.

19.       With the foregoing discussion, we have come to the conclusion that there was deficiency, in service, on the part of OPs and they also indulged into unfair trade practice. The District Forum has rightly allowed the complaint. We don’t find any illegality in the order passed by the learned District Forum. Thus, there is no reason to interfere with the same

20.             Consequently, we dismiss both the appeals filed by OP No.1 and OP No.2, being devoid of merit, and uphold the impugned order.

21.       The parties are left to bear their own costs. 

22.            Copies of this order be sent to the parties, free of charge.  

Pronounced.                                                                                  

1^st  September, 2011.