REEKHA GUPTA

        Revision petition nos. 3130 of 2009 and 3131 of 2009 have been filed against the judgment dated 26.05.2009 passed by the State Consumer Disputes Redressal Commission, Union Territory Chandigarh (“the State Commission”) in First Appeal no. 2276 of 2008. As both these revision petitions arise out of a common order of the UT State Commission, we propose to pass a common order.

2.     The facts of the case are taken from the lead file, i.e., R P no. 3130 of 2009. The facts of the case as per the respondent/ complainant are that the petitioner/ opposite party had advertised in newspaper inviting application for immigration to Canada mentioning the different trades and their eligibility criteria. The respondent had to opt for a trade and the petitioner was to confirm the eligibility conditions. Accordingly, the respondent opted for the technical trade mentioned at S No.5 of the format, i.e., Carpenter and Cabinet Maker and also produced the certificates in original as demanded to authenticate his eligibility.

3.     After scrutinising all the documents the petitioner entered into a service agreement with the respondent on 10.10.12006 and received a consideration amount of Rs.60,000/- as first stage payment for processing the case of the respondent for permanent residency in Canada under Head BCPNP. The remaining payment was to be made at the time of nomination and on receipt of immigration Visa as per schedule as agreed. They further promised to clear the process within a period of 6 – 8 months as stated in the advertisement.

4.     To the utter shock of the respondent, a letter followed by the reminder was received from the Overseas Immigration from Canada , the associate of the petitioner in Canada, that the case of the respondent was not processed as the immigration services at Chandigarh had not taken any action despite reminders for payment and information. Thus, the fanciful promises as stated initially and the contents of letter dated 07.06.2007 appeared to be false and had been given with the intention to cover up the lapses as the time schedule given by the petitioner had expired.

5.     The respondent had been making other preparations simultaneously, such as, getting published his name and the names of other family members for adding the surnames as required for the purpose of immigration for which the respondent spent in thousands and was also not accepting any new work-jobs of carpentry keeping in view the time span involved for such jobs and hence suffered huge losses. The respondent had taken a loan initially from his brother and thereafter again from the Bank with interest for which he deserves to be compensated.

6.     In the aforesaid circumstances, the respondent prayed for the following reliefs:

1. Directing the petitioner to refund Rs.60,000/- along with interest @ 12% till realisation;
2. To pay Rs.4,00,000/- as compensation on account of harassment and mental agony faced by the respondent and his family at the hands of the petitioner for more than one and a half years.
3. To pay Rs.15,000/- for travelling and miscellaneous charges.
4. To pay Rs.11,000/- as cost of litigation.
5. Any other relief which this Hon’ble Court may deem reasonable in the set circumstances.

7.     The petitioner/ opposite party in their reply before the District Consumer Disputes Redressal Forum I, U T Chandigarh (‘the District Forum’) admitted that the respondent had entered into service agreement with the petitioner on 18.10.2006 and they had received consideration amount of Rs.60,000/- but denied that the petitioner had promised to clear out the process within a period of 6-8 months. Usually application process time of the Canadian High Commission was about 18-24 months and this was in fact brought to the knowledge of the respondent vide agreement dated 18.10.2006 and agreed between the respondent and the petitioner and specifically mentioned  the condition no. 11 of the Agreement.

8.     The petitioner, earlier, had a contract with Overseas Immigration from Canada but due to the fact that the said Overseas Immigrant Co., had started correspondence directly with the clients of the petitioner to mislead them and also against the terms and conditions as agreed upon between Overseas Immigration Co., and the petitioner in the best of interest of the clients of the petitioner, all the dealings with the said Overseas Immigration Co., were immediately withdrawn and even the customers of the petitioner were suitably advised regarding the same including the present respondent vide letter dated 17.11.2007.

9.     Petitioner vide letter dated 25.02.2008 informed the respondent that his approval for H R D C (Human Resources Service Department of Canada), had been received by the petitioner and further request was made to the respondent to submit additional documents, Embassy fee draft and professional charges of petitioner as per the agreement. The respondent was asked to deposit all the above said documents within 7-10 days time as the same were a necessary requirement needed in the processing of the case of the respondent and that in default, the petitioner would be  left with no other option in the said circumstances and would be constrained to cancel respondents approval. In the said eventuality the retainer fees of Rs.60,000/- deposited by the respondent would be forfeited against the cancellation charges. The delay, if any, was attributable to the present respondent and the petitioner cannot be held responsible for that. Further, once the case of the respondent was successfully processed and rather defaulting party is respondent himself appeared to have changed his mind as knowing approval regarding his case had been successfully received by the petitioner and the fact having been intimated to the respondent, he failed to follow up on the requirement to further process the case. In fact, as a gesture of goodwill the petitioner on behalf of the respondent forwarded Rs. 2.5 lakh tothe concerned authorities and suffered huge loss.

10.    The District Forum vide its order dated 05.11.2008 while allowing the complaint has held as under:

“6.    ............... We do not find any merit in any of these contentions.  The payment of Rs. 2.50 lacs was not to be made by the Complainant on the issuance of any such letter as Ex. R-1 and R-2.  It cannot be said to be nomination, because this letter is not approved by Human Resource Development Canada – a Department of the Government of Canada, which approves employment of foreigners.  Such like letters could be prepared by OP themselves in backdate in order to save their skin when the Complainant through a notice (Annexure P-12) wanted to proceed against them.  No affidavit of any authorized person from the Service India Centre has been filed by the OP to authenticate any of these letters or to prove that employment has been arranged for the Complainant.  Rather, Annexure R-1 shows that the said letter “did not authorize the individual to enter, remain or work in Canada, which is the responsibility of the Citizenship and Immigration Canada”.  These are, therefore, useless documents which the OP is trying to introduce to camouflage their deficiency in rendering proper service. 

7.             It was argued by the learned Counsel for the OP that on receipt of the letters (Annexure R-1 and R-1/A, the OP through Annexure R-2 asked the Complainant to deposit the remaining amount, but he did not deposit the same, due to which the candidature of the Complainant was cancelled and the fee of Rs. 60,000/- was foreited.  These documents are alleged to have been sent through courier, the copy of which is Annexure R-3.  The Complainant denied if any such documents were sent to him.  His contention is that in fact, Annexure R-1 and R-1/A and R-2 have been fabricated by the OP, after he served on the OP a notice, copy of which is Annexure C-12.  The Complainant also asked the OP to produce the courier receipt, vide which these documents may have been delivered to him.  The OP produced a writing titled as Bill/Cash Memo. Jon the letter pad of B.S.N. Services.  According to the learned Counsel, the courier receipt number  as mentioned in Annexure R-3 and this writing is the same.  We do not find any merit in this contention.  The courier was sent, according to the OP through Trackon Couriers Pvt. Limited, but no receipt thereof has been produced. On the other hand, the Bill/Cash Memo is that of B.S.N. Services and not of Trackon Couriers Pvt. Limited.   Moreover, preparing such like documents do not mean if any documents were sent to the Complainant, unless there is a receipt issued by the Complainant having received the documents through the courier, which in spite of repeated opportunities has not been produced by the OP.  Furthermore, no affidavit of Trackon Couriers Pvt. Limited or B.S.N.  Services has been placed on file.  The record prepared by this Agency for the delivery of courier to the Complainant has also not been produced. We are, therefore, of the opinion that these documents have been fabricated by the OP in order to make out a defence after the receipt of the notice from the Complainant that is why they are unable to produce any receipt for the delivery of documents to the Complainant.

8.     As regard the contention that the OP paid from their own pocket a sum of Rs. 2.50 lacs, there is no proof in this respect also.  There is no mention as to whom the said amount was paid, nor any receipt has been placed on file.  In the written statement, it is not mentioned as to who were the concerned authorities to whom the amount was forwarded or the date on which it was forwarded. Furthermore, if this amount has been forwarded, then the Complainant would have been called for interview and a visa would have been allowed to him, but the same has not been allowed so far, which also falsifies their contention that the OP forwarded Rs.2.50 lacs to the concerned authorities on behalf of the Complainant. It shows the extent to which the OP could tell lies not only to the Complainant, but before this Forum also.  The fact of the matter is that the OP has not taken any steps to procure nomination for the Complainant and, therefore, the question of Complainant depositing further amount of Rs. 2.50 lacs did not arise. 

10.    In view of above discussion, we are of the opinion that the OP had been guilty of adopting unfair trade practice to befool the customers and were deficient in rendering proper service to the Complainant.  The present complaint, therefore, must succeed and the same should be allowed.  We, therefore, direct the OP to return an amount of Rs. 60,000/- along with interest @ 12% per annum since the date of deposit i.e. 18.10.2006, till realization. The OP is also directed to pay a sum of Rs. 2,00,000/- as compensation to the Complainant, (which shall be paid along with Rs. 60,000/- and interest thereon) within thirty days from the date of receipt of the copy of the order, failing which it would be liable to pay the same along with interest @ 12% per annum on the amount of compensation since the filing of the present complaint i.e. 7.4.2008, till realization. IN addition, the OP would also be liable to imprisonment and/or find under Section 27 of the Consumer Protection Act, 1986”.    

11.    Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission while adverting to the merit of the appeal held as under:

“We are of the considered opinion that contention of appellant has some merit that the District Forum placed too much reliance on documents C 6 and C 7 while other documents placed as Annexure R 1 and R 1 A have been totally ignored resulting in injustice to the appellant. The District Forum accepted annexure C 6 and C 7 vide which the Overseas Immigration Services informed the complainant that his application has been received from the appellant company but it was not accompanied with the requisite fee and it shall be retained for 30 days and returned, thereafter. However, Annexure R 1 and R 1/A were not read into evidence as the Forum observed that these were fabricated and not proved to have been sent to the complainant as the original courier receipt was not produced on record. Thus the contention of appellant is justified that the veracity of annexure C 6 and C 7 without any proof of the delivery of the same was not doubted and Forum totally ignored that both these documents are on a plain paper not even on the letter head of the company, still were accepted to be genuine while the District Forum in a biased manner insisted upon the proof of delivery of documents R 1 and R 1/A. It is contextual note that these annexure R 1 and R 2 had all the relevant details which support the case of the appellant that due action on processing his case was taken but the complainant failed to submit the documents and pursue his case further thus the immigration could not fructify. We also find some force in the plea of appellant that complainant himself has placed documents C 10/A on record which show that he was also pursuing/ considering migration to Australia. The District Forum held the appellant liable for deficiency services as the case was not processed but we hold that his conclusion is against exhibit R1 and R 1 A which is arranged Employment Opinion Confirmation for 7335567 (system file number of complainant). The Annexure 10 A also lends the support to the plea of the appellant that complainant did not seriously follow the immigration to Canada as was trying the option of going to Australia as well and because of the same reasons he did not furnish the requisite documents and fee as required/ stipulated under the agreement.

9.     Going by the record annexure C 2 placed on record by the complainant and it stated in his pleadings as well as documents that the complainant had applied under technical trade category at serialno. 5 for Carpenter and Cabinet Maker which mentions the qualification of ITI Diploma with experience two years, if not a diploma holder the applicant must possess the experience of five years, which also corroborate the version of the appellant that as per conditions required for migration under skilled worker category, it was condition precedent for the complainant to be employed and have requisite experience, thus the observation of the District Forum that complainant could not take any job here and on account of same compensation of Rs.2.00 lakh was allowed, is against the conditions of the category under which he had applied.

10.    It is admitted as well as borne by the receipt on record bythe appellant/ OP that Rs.60,000/- have been paid by the complainant. It was raised by way of personal loan from M/s Citi Financial Services, the copy of the loan agreement is also on record. We uphold the impugned to the extent that OP/ Appellant is liable to refund this amount with interest from the date of payment till realisation with interest @ 12% per annum. The other averments of the complainant that his case for immigration was not processed has not been proved in view of Arranged Employment Confirmation as per annexure R 1 and R 1 A. The submission of the original documents and further amounts payable at various stages as required for the process of immigration not been proved rather not been averred even by the complainant. In the absence of any proof of compliance of conditions and the fact that the complainant at the same time have been trying to process his case to Australia as well, his plea of harassment and deficiency on the part of appellant cannot be upheld and thus the compensation of Rs. 2.00 lakh granted by the District Forum on that account is set aside.

11.    In addition, the appeal is accepted partly and impugned order is modified by setting aside the amount of compensation, however, the order of the District Forum  directing the OP/ appellant to refund Rs.60,000/- with interest @ 12% per annum from the date of deposit, i.e., 16.10.2006 till realisation is upheld.”

12.    Hence, the present revision petition.

13.    We have heard the learned counsel for the petitioner and the respondent in person and carefully gone through the records of the case.

14.    Counsel for the petitioner argued that since the petitioner had fulfilled their part of the agreement by processing the application and obtaining a positive arrangement of employment opinion as also approval of HRDC, they were not guilty of any deficiency of service or unfair trade practice. For processing the case further with the Canadian High Commission, the petitioner had requested the respondent to submit additional documents, embassy fee draft and company’s professional charges as per condition 1 of the agreement. It is the respondent who did not follow up the matter. He had been informed that unless the above-mentioned documents and money were deposited within 7-10 days the approval would be cancelled and the retainer fee of Rs.60,000/- would be forfeited against the cancellation charges. The respondent on the other hand stated that he had not received the services he had sought vide their agreement dated 18.10.2006. He further, stated that the petitioner had not received the services as applied for and that the documents allegedly sent to him regarding HRDC approval and arrangement employment opinion were fabricated. In fact his application for BCPNP had been returned vide letter dated 04.01.2008 by the associate of the petitioner Overseas Immigration Services as they had not received any payment either from the respondent or from the petitioner.

15.    The petitioner has failed to convince us that they have successfully carried out the services to be provided by them in the service agreement and contract dated 18.10.2006. Counsel for the petitioner as also the petitioner who is present in person today could not give any evidence of respondent having received the letter dated 25.02.2008 supposedly sent to the respondent asking him to submit the additional documents and embassy fee draft, as also charges as per the agreement. In these circumstances, it could not be established that the respondent’s case for immigration was successfully processed but only fell through, because the respondent did not give the required documents and fees and hence, the respondent alone was at fault.

16.    The respondent in his revision petition, has argued that his career has been ruined by the petitioner who played with the life of the respondent and caused mental and physical harassment. In the circumstances, the amount of Rs.2.00 lakh as compensation allowed was not on the higher side and prayed for restoration of the order of the District Forum.

17.    The respondent admitted during arguments that he had been following up the case personally by repeatedly visiting to the petitioner’s office, and yet he would have us believe he had no knowledge of any progress in the matter. He was also aware that as per the agreement he had to pay a total sum of Rs.7.60 lakh with Rs.2.5 lakh to be paid on receipt of the nomination and that he paid nothing after paying Rs.60,000/- on signing the agreement.     

18.    We agree with the conclusion reached by the State Commission that the District Forum had erred in totally ignoring the exhibits R 1 and R 1 A which was the employment opinion confirmation as also holding that the complainant could not take any job here on account of which compensation of Rs.2.00 lakh was allowed. As per conditions required for migration under skilled worker category, it was a condition precedent for the complainant to be employed and have requisite experience. Further, the respondent has also brought on record that he was considering/ pursuing to migrate to Australia simultaneously.

19.    The Hon’ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 has observed:

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”  

20.     Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act.  The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Hence, both the present revision petitions are hereby, dismissed with no order as to cost.