Punjab

StateCommission

A/11/713

WWICS - Complainant(s)

Versus

Dr. K.L. Bhagat - Opp.Party(s)

Raman Walia

06 Aug 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.713 of 2011

 

 

                                                Date of Institution: 28.04.2011

                                                Date of Decision : 06.08.2015

 

 

M/s WWICS Ltd 211, Defence Colony, Jalandhar and another                                                                                                                                                                                                                                                                                                     …..Appellant/Opposite party

                                      Versus

 

Dr. K.L Bhagat, S/O Sh. Kartar Chand, 1580, New Suraj Ganj (West) Bhargav Nagar, Jalandhar City

 

                                                                                                                                                              … Respondent/Complainant.

 

 

First Appeal against order dated 15.03.2011 passed by the District Consumer Disputes Redressal Forum,  Jalandhar

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                   :         Sh.Raman Walia, Advocate  

          For the respondent      :         Sh. Surinder Sharma, Advocate

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the opposite party in the complaint) has directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated 15.03.2011 of District Consumer Disputes Redressal Forum Jalandhar, accepting the complaint of the complainant by directing the OP to refund the fee of Rs.25,000/-, along with interest @ 12% per annum with effect from 04.01.2010, besides payment of Rs.20,000/-, as compensation for mental harassment. The instant appeal has been preferred against the same by OP now appellant.

2.      The complainant Dr. K.L Bhagat has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP, on the averments that complainant wanted to apply for permanent residency at Canada through WWICS. He  contacted the OP, through Counsellor Ms. Ritu Sahota, and discussed the procedure therefor. He was asked to deposit Rs.25,000/- initially with documents and application and then his application was to be forwarded to Canadian Authorities for approval. The balance amount of fee was to be paid after approval from Canadian Authorities by the complainant. The complainant handed over all the requisite documents and paid Rs.25,000/-, vide cheque bearing no.6886 on 11.11.2009 and was also given assurance that his case would be sent within 10 days and approval from Canadian Authorities was expected to be obtained within 30-45 days. The complainant sent e-mail to Customer Care, but it was of no avail. The complainant received application form from WWICS (given no.FSN 57412) through e-mail for confirmation of the data, which meant that the process had started by WWICS. The complainant corrected the data at the earliest and requested the Manager, as well as, above Ms. Ritu Sahota to expedite the process. The complainant was informed that amount of Rs.20,000/- was due against him and his complete application would be forwarded, when he cleared the outstanding dues. The Manager of the OP assured the complainant that he would get the waiver of Rs.20,000/- from its head office. The complainant objected to pay Rs.25,000/- initially, despite waiting for one and half month. When nothing was done by OP, the complainant decided to withdraw his application from WWICS on 24.12.2009 and sent written request for refund the money of Rs.25,000/- with interest on 28.12.2009 through e-mail on 4.1.2010. The complainant has, thus, filed the present complaint directing the OP to refund Rs.25,000/-, besides compensation of Rs.75,000/- for his mental harassment.

3.      Upon notice, OP appeared and filed written reply raising preliminary objections that it is the case of non-payment of fee to OP by complainant on account of his voluntary withdrawal from the above process. The complainant had chosen Bronze Package with payment plan, as Special Spot, as per Clause 1 of the Contract. As per Clause 3, the complainant had agreed to pay the total fee of Rs.50,000/- to the OP, out of which he paid only Rs.25,000/- and was given a discount of Rs.5,000/- being defence personnel. The complainant had not paid the remaining amount of Rs.20,000/- to OP, which he was to pay at the time of receipt of file number, as per Clause 3 of the contract dated 11.11.2009. File serial no.57412 (FSN) was received by the complainant on 10.12.2009, as set out in para no.3 of the complaint. He was to pay Rs.20,000/- on the receipt of file number, but complainant had not paid the same and on the contrary started demanding refund from OP. The complainant was not entitled to it, being a case of Voluntary Withdrawal on his part, as per Clause 11(a) of the Contract The OP performed its part of the contract and duly processed the case of the complainant , which was due to be filled before the Canadian High Commission. The complainant, vide e-mail dated 11.12.2009, requested to show the final case file before filing the case and refused to pay the balance payment of Rs.20,000/- to OP. The OP further averred that complainant was bound to pay the remaining amount of Rs.20,000/-, once the OP had processed the application of the complainant.  It was further averred that, as per Clause 17 of the agreement dated 11.11.2009, jurisdiction of the Chandigarh Courts is only thereto to decide the case. The complaint was contested even on merits by the OP and it prayed for its dismissal.

4.      The complainant tendered in evidence, the affidavits of complainant Ex.C-A and Ex.C-B along with copies of documents Ex.C-1 to Ex.C-15. As against it, OP tendered in evidence the affidavit of Aseem Dhoby Branch Manager WWICS Ltd Ex.R-A along with copies of the documents Ex.R-1 to Ex.R-5. On conclusion of evidence and arguments, the District Forum, Jalandhar, accepted the complaint of the complainant directing the OP to refund the amount of Rs.25,000/- along with interest @ 12% per annum and to pay compensation of Rs.20,000/- for mental harassment, Rs.3000/-, as costs of litigation. Dissatisfied with the order of the District Forum Jalandhar dated 15.03.2011, the OP now appellant has preferred this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case.

6.      The affidavits of complainant is Ex.C-A and Ex.C-B on the record in support of his averments. Ex.C-1 is Free Plan document. Ex.C-2 is the information regarding application. Ex.C-3 is the procedure and fee of the company. Ex.C-4 is the e-mail dated 30.11.2009 by OP to complainant. Ex.C-5 is e-mail from complainant to OP. Ex.C-6 is e-mail from complainant to OP. Ex.C-7 and Ex.C-8 are letter addressed to Ms. Ritu Sahota to the effect that, as per agreement, complainant has to pay Rs.20,000/- before filing of the case and it was asked to the complainant to clear the outstanding fee. Ex.C-9 is e-mail dated 11.12.2009 sent by the complainant  to OP to the effect that the complainant raised objection, as to why Rs.20,000/- was being asked at that stage from him. Ex.C-11 is e-mail from complainant to OP for the withdrawal of the case by the complainant from the OP and refund of the money. Similarly, e-mails Ex.C-12 and Ex.C-13 took place between the parties. Legal notice Ex.C-14 and e-mail Ex.C-15. Brochure of the procedure is also placed on the record.

7.      In rebuttal of this evidence, OP tendered in evidence affidavit Ex.R-A of Aseem Dhody Branch Manager WWICS Ltd/OP on the record. He stated in his affidavit that complainant had chosen Bronze Package with payment plan, as Special Spot, as per Clause 1 of the Contract Ex.R-1 on the record. He further stated that, as per Clause 3 thereof, complainant had agreed to pay a total fee of Rs.50,000/- to OP, out of which he paid only Rs.25,000/- and was given a discount of Rs.5,000/- being a defence personnel. He stated  in his affidavit that complainant had not paid the remaining amount of Rs.20,000/- , which he was to pay at the time of receipt of file number, as per clause 3 of agreement, despite signing the Contract dated 11.11.2009. He further deposed in his affidavit that file serial no.57412 (FSN) was received by the complainant on 10.12.2009 , as pleaded in para no.3 of the complaint. The complainant was to pay Rs.20,000/- on receipt of file number, however, complainant had not  paid the same and on the contrary started demanding refund for which he was not entitled to, being a case of Voluntary Withdrawal on his part, as per Clause 11(1) of the Contract.  He further deposed that letter dated 4.1.2010 has only been put up with an excuse that due amount was silently incorporated in the contract letter , which he had signed blindly and hence he was not liable to pay Rs.20,000/-. This witness further deposed that this case of payment of fee by the complainant to OP is in accordance with the contract entered into between the parties. We have also examined the document Ex.R-1 i.e. is contract of engagement. Ex.R-2 is withdrawal of the application by complainant to OP on 4.1.2010. Ex.R-3 is letter from the complainant to OP to expedite the process of filing, as one month has already expired. Another e-mail Ex.R-5 from complainant to OP on the record.

8.      The submission of counsel for the appellant before us is that the complainant, now respondent in this appeal, has not fulfilled the terms and conditions of the contract entered into between the parties and, hence, this is case of payment of money and nothing beyond that. Ex.C-1 is Fee Plan. The complainant opted for Bronze Package Spot Plan for which Rs.55,000/- on retainer, US $ 1300+Rs.20000 on spot within 30 days. Some writing has been recorded on document Ex.C-1, but there are no signatures by whom, it has been written, this writing is alleged to have been added by Ms. Ritu Sahota Counsellor, but without any substance on the record to this effect and hence, we are unable to hold so. Clause 3(a) of the agreement lays down that Rs.30,000/- is payable at the time of signing of the agreement. If the client has retained services of the company under Installment Payment Plan , then the balance fee of Rs.20,000/- becomes due immediately after receipt of file number in case of Canada or after receipt of positive skill assessment, which payment plans followed between the parties, as recorded above. Eventually, the complainant withdrew his application from the services of OP on 4.10.2010 on the point that the amount was silently incorporated by OP in the contract without his knowledge.

9.      From evaluation of above-referred evidence on the record, we find that complainant paid Rs.25,000/- to OP at the time of retaining the services. The complainant was required to pay remaining amount of Rs.25,000/- of the second installment, when the file number was given to the complainant. Rs.5,000/- was discount,  being a military personnel to the complainant. Clause 11(a) of the Contract is relevant in this regard between the parties that the contract has to be strictly interpreted by us, as this Commission is not competent to examine this point regarding the legal validity of the Contract, as it is function of regular Civil Courts only.  Clause 11(a) of the Contract Ex.R-1 lays down that once the client signs this contract, then he does not wish to proceed further for any reason whatsoever, the company will not refund any of the total fees and shall be entitled to full payment. Clause 11(c) of the Contract Ex.R-1 also applies to cases where clients voluntarily withdrew the immigration case at any stage. The complainant withdrew his application on 4.1.2010, vide Ex.R-2 in this case. The submission of the counsel for the complainant is that file was not sent by the OP to complainant and he applied for withdrawal of the case on 4.1.2010 due to deficient act of the OP, but without any substance.

10.    We hold that complainant pleaded in para no.3 of the complaint that he received FSN No.57412 through e-mail for confirmation of the data. The submission of the complainant is that the process was then started by WWICS/OP, whereas, version of the OP is that file serial no.57412 (FSN) was issued to the complainant on 10.12.2009, as stated in para no.3 of the complaint  and hence complainant was bound to pay remaining amount of Rs.20,000/- to OP, as per Clause 6 of the Contract.

11.    We conclude that the order of the District Forum under challenge in this case is not sustainable in this appeal. The District Forum has not appreciated the controversy involved in this case in the proper perspective. The Consumer Forum is strictly bound to interpret the contract between the parties and the principle of 'EJUSDEM GENERIS' is not applicable before Consumer Forum. The terms of the contract, as referred to above are clear that complainant has to pay the balance amount of Rs.20,000/- on receipt of file number only. File number was received by the complainant, as per para no.3 of the complainant on 10.12.2009, vide FSN 57412 through e-mail. There is categorical assertion of Assem Dhody Branch Manager contained in his affidavit Ex.R-A that the above referred was the file number and was not the application number.  The complainant sent e-mail dated 4.10.2010, much time thereafter to OP, after receiving of the file number. In the circumstances of the case, we do not find any deficiency in service or unfair trade practice on the part of OP. The OP has performed its part of the contract and is entitled to receive the full amount from the complainant, as per terms of the contract. The District Forum has, thus, erroneously mulcted the OP. The order of the District Forum cannot be sustained in this appeal.

12.    As a result of our above discussion, we accept the appeal of the appellant and by setting aside the order of the District Forum Jalandhar dated 15.3.2011, the complaint of the complainant stands dismissed.

13.    Arguments in this appeal were heard on 29.07.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

August  6,  2015.                                                                 

(ravi)