STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

M/s Destiny Overseas Pvt. Ltd., 2nd Floor, Kamadhenu Complex, Somagiguda, Hyderabad, Andhra Pradesh, through its Director Chaya Devi.

                                                ……..Appellant

V E R S U S

1. Davender Prashad Singh son of Sh. Dwarika Prashad resident of House No.10-11, New Sainik Vihar Jandli, Model Town, Ambala City (Haryana).
2. Satinder Singh Soni, Oztina Education Consultant, 21-E Estate, Near Dyal Nagh Gurdwara, Ambala Cantt-133001.

        ……Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

                   SH.JAGROOP SINGH MAHAL, MEMBER.

Argued by:  Sh.Ghulam Nabi Malik, Advocate for the appellant.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.                       This appeal is directed against the order dated 14.11.2011, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it accepted the complaint, and directed Opposite Party No.1 (now appellant), as under:-

“Hence, in the light of above facts, the present complaint is allowed against OP-1 and OP-1 is directed to refund Rs.3,78,300/- and pay interest @9% p.a. from the different dates of deposit of different amounts. OP-1 is further saddled with Rs.7,000/- as litigation costs.

The above said order shall be complied within 30 days of its receipt; thereafter OP-1 shall be liable for an interest @18% per annum on the aforesaid amount, except for litigation expenses”.  

2.                The facts, in brief, are that the complainant (now respondent no.1) was persuaded by Opposite Party No.2(now respondent no.2),  an authorized  representative of Opposite Party No.1, and was offered immigration to Australia. The complainant was convinced that Opposite Party No.1, would arrange a suitable employer, from Australia, to facilitate him(complainant) and his family for Australian Immigration, without the requirement of passing ILETS. In consideration of the said services, Australian Dollars 10,000 as service charges and Rs.15,000/- for assessment fee alongwith Australian Dollars 300, in favour of “Recognition Australian” were also demanded by Opposite Party No.2 for finding a suitable nomination/sponsor  in Australia, for the complainant. After receipt of a sum of  Rs.15,000/-, the Opposite Parties, issued receipt No.0179 dated 9.8.2006. Australian Dollars to the extent of 300 were paid by the complainant, through a demand draft, bearing No. FDB16012243-06 dated 30.10.2006,  and receipt Annexure C-2, was issued by the Opposite Parties. The complainant also deposited Rs.3,50,000/-, with Opposite Party No.2,  under acknowledgement dated 19.12.2006 Annexure C-3. It was stated that the complainant furnished all the requisite documents, like academic certificates and work experience certificate. He also submitted the pre-migration skills assessment application dated 7.11.2006 (Annexure C-4). Thereafter, the complainant made repeated visits to the Opposite Parties, to know the status of his case. In the meanwhile, for the purpose of visa processing, a medical report was demanded by the Opposite Parties, which he submitted vide receipt Nos.2270 and 2910 dated 11.12.2008 Annexures C-5 and C-6, respectively. It was further stated that the complainant had to incur approximately Rs.3,500/- for the said test. However, ultimately, Opposite Party No.2, left the service of Opposite Party No.1, and started his own concern under the name and style of “ONTINA EDUCATION CONSULTANT”, 21E, ESTATE at Ambala Cantt. Haryana. When no response was given, by the Opposite Parties, with regard to the status of the immigration of the complainant, left with no other alternative, a legal notice dated 13.12.2010 Annexure C-7, was served by the complainant,  upon them, but no reply to the same, was received by him. It was further stated that the aforesaid acts of the Opposite Parties,  amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for refund of Rs.3,78,300/- alongwith interest @15% per annum; Rs.50,000/-,  on account of mental agony and physical harassment;  and Rs.20,000/- against miscellaneous expenses, was filed.

3.             Opposite Party No.1, was duly served,  but no authorized agent, put in appearance, on its behalf, as a result whereof, it was proceeded against exparte, vide order dated 26.4.2011.

4.                Opposite Party No. 2, put in appearance, and filed its written version,  wherein,  he stated that he was an employee of Opposite Party No.1, at the relevant time. It was further stated that Dr. V. Mattu was the Managing Director of Opposite Party No.1, at the relevant time. It was admitted that Opposite Party No.2, obtained the amount,  referred to, in the complaint, from the complainant. It was further stated that the same was deposited, in the account of Opposite Party No.1. It was further stated that the crucial document i.e. IELTS, which was the condition precedent, for getting sponsorship of an employer from Australia, was not submitted, by the complainant, and the remaining documents submitted by the complainant, were of no use. It was further stated that Opposite Party No.2, was no longer an employee of Opposite Party No.1. It was denied that Opposite Party No.2, was, in any way, deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong.

5.                The complainant, and Opposite Party No.2, led evidence, in support of their case.

6.                Later on, none even appeared on behalf of Opposite Party No.2, on 27.10.2011, and thereafter.

7.                After hearing the Counsel for the complainant and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

8.                Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.

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

10.             The Counsel for the appellant/Opposite Party No.1, submitted that though Opposite Party No.1, was not served, yet, it was wrongly proceeded against exparte, by the District Forum, as a result whereof, it was not provided an opportunity, to put forth its version. It was further submitted that Opposite Party No.2, was neither an employee of the Company, nor he was authorized by Opposite Party No.1, to  collect money, from prospective immigrants, to various Countries. It was further submitted that actually, the Company, wanted to open its Branch Office, at Chandigarh, and for that purpose, it approached Opposite Party No.2, to arrange accommodation, for opening the same. It was further submitted that Opposite Party No.2, did not deposit any amount, if received, by him, from the complainant in the account of Opposite Party No.1. It was further submitted, that the District Forum, fell into a grave error, in holding that Opposite Party No.1, was deficient, in rendering service. It was further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

11.             After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant,  and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. Opposite Party No.2/respondent No.2, in his written version, in clear-cut terms submitted, that he was an employee of the appellant/Opposite Party No.1 and, in that capacity, he collected the amount, mentioned, in the complaint, by the complainant, for his immigration to Australia. He also admitted, in the written version, that the amount, so collected from the complainant, was deposited, in the account of  the appellant/Opposite Party No.1. Alongwith the appeal, an application Annexure A-2, dated 14.08.2008, was filed by the appellant. This application was addressed by Opposite Party No.1/appellant to the SHO Police Station, Sector 3, U.T., Chandigarh. Para 3 of this document reads as under:-

“That this job was assigned by the company to Satinder Singh Soni and he was looking after all the affairs of the Company at Chandigarh office and was collecting money and other papers from the students and all the job for processing all the paper work was done by the accused and the accused has to deposit all the amount in the account of Destiny Overseas Pvt. Ltd. His benefit will be taken from the company profits and used to get his salary from the income of the company including other company expenditure. Even many times Corporate Office has also sent money for meeting some urgent office expenditure based on the request of the accused, without aware of his scam with company account”.

12.             From the afore- extracted para 3, of Annexure A-2, it is proved,  that Opposite party No.2, was looking after the affairs of the Company, at Chandigarh Office, and was collecting money, and other papers, from the students. He was also doing the job of processing and other paper work. It is further evident from this document, that he was to deposit the amount, so collected, in the account of the Company. So the submission of the Counsel for the appellant, to the effect, that Opposite Party No.2, was never authorized to collect the money, but was only given the responsibility, to look after the office space, where it wanted to open its office, is belied from document Annexure A-2, referred to above. In case, after collecting the money from the complainant, Opposite Party No.2 did not allegedly, deposit the same, in the account of Opposite Party No.1, then this is a dispute, between them, but the third party, i.e. the complainant, could not be made to suffer,  for their act and conduct. From Annexure C-3, the certificate, dated 19.12.2006, it is evident that an amount of Rs.3,50,000/-, equivalent to 10000 Australian dollars,  was deposited by the complainant, as the initial deposit for his visa processing under employer nomination scheme. This document was issued by Satinder Singh Soni, Opposite Party No.2/respondent No.2. When Opposite Party No.1/appellant, was unable to arrange Australian immigration for the complainant and his family members, for, whatever the reason may be, then, it was its duty to refund the entire amount of Rs.3,78,300/-, deposited by the complainant, with Opposite Party No.2, its employee. Opposite Party No.1, did not refund the amount of Rs.3,78,300/-, which was deposited by the complainant, despite the fact that it did not render the requisite service to him. Opposite Party No.1, thus, could, certainly be said to be deficient, in rendering service. The complainant, was, thus, entitled to the refund of amount with interest. The District Forum, was right in holding so. The findings of the District Forum, being correct, are affirmed.

13.             No other point, was urged, by the Counsel for the appellant.

14.             The order passed by the District Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

15.             For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.

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

17.             The file be consigned to Record Room, after completion

Pronounced.

January 18, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

SD/-

[JAGROOP SINGH MAHAL]

MEMBER

Rg