Punjab

Moga

CC/16/47

Jasvir Singh - Complainant(s)

Versus

Foreign Horizons (Overseas Consultants) Pvt. Ltd. - Opp.Party(s)

Sh. P.K.Sharma

28 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

                                                                                                                                                    C.C. No. 47 of 2016

                                                                                                                                       Instituted on: 03.02.2016

                                                   Decided on: 28.06.2016

 

Jasvir Singh, aged about 27 years son of Gurmail Singh son of Darbara Singh, resident of Village : Kale Ke, Tehsil Bagha Purana, District Moga.

                                                                             ……….   Complainant 

Versus

1.       Foreign Horizons (Overseas Consultants) Pvt. Ltd., SCO 126-127, Sector 8-C, M.Marg (Near Underground Parking), Chandigarh, through its Managing Director Mr. Arvind Ashat.          

 

2.       Sh. Arvind Ashat, Managing Director,       Foreign Horizons (Overseas

Consultants) Pvt. Ltd., SCO 126-127, Sector 8-C, M.Marg (Near Underground Parking), Chandigarh.

 

3.       Shikha Ahuja, Manager, Foreign Horizons (Overseas Consultants) Pvt. Ltd.,

SCO 126-127, Sector 8-C, M.Marg (Near Underground Parking), Chandigarh.

 

                                                                           ………. Opposite Parties

 

 

Complaint under Section 12 of the Consumer Protection Act, 1986.

 

 

 

Quorum:   Sh. Ajit Aggarwal, President

                   Smt. Vinod Bala, Member

                   Smt. Bhupinder Kaur, Member

Present:       Sh. Pranshu Sharma, Advocate Cl. for the complainant.

                   Sh. Harmandeep Singh Saini, Advocate Cl. for the opposite parties.

 

ORDER :

(Per Ajit Aggarwal, President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986  (hereinafter referred to as the 'Act') against Foreign Horizons (Overseas Consultants) Pvt. Ltd., SCO 126-127, Sector 8-C, M.Marg (Near Underground Parking), Chandigarh, through its Managing Director Mr. Arvind Ashat and others (hereinafter referred to as the opposite parties) for directing them to refund the amount of Rs. 5,03,000/- taken by Ops on account of granting Australian visa. Further opposite parties may be directed to pay Rs.2,00,000/- as compensation on account of mental harassment suffered by the complainant and Rs. 2,00,000/- on account of spoiling precious 2 years and career prospects of the complainant and Rs. 20,000/- as legal expenses to the complainant or any other relief which this Forum may deem fit and proper.

2.                Briefly stated the facts of the case are that complainant is a graduate and bright student and aspires to settle in Australia, as there are better employment opportunities. In the mid of October, 2014 the complainant met with his uncle Swarn Singh at Village Smadh Bhai, District Moga, who introduced the complainant with opposite party no.2 at Moga and opposite party no.2 told the complainant that he is running the business of Travelling Agency and Overseas Consultancies in the Name & Style of opposite party no.1 and he helps and procures Australian visa to his clients. He assured the complainant that if he will apply/process the documents through opposite parties, then the visa of Australia be granted to him within 3 months. The opposite parties told the complainant that there is no requirement to show the old funds and further told that if visa is not granted within 3 months, then money will be refunded. The complainant applied for issuance of visa for Australia through opposite parties and submitted all documents with them. The opposite parties told the complainant to pay Rs.30,000/- for processing, documentation and consultation charges. The complainant paid Rs.20,000/- in cash to the opposite parties at Moga in the presence of Swarn Singh against receipt no.646 dated 27.10.2014 and remaining Rs.10,000/- was paid by complainant through bank transfer receipt of which was no.650 dt. 28.10.2014 which was sent to complainant by opposite parties via e-mail. On 29.10.2014, opposite parties told the complainant to deposit college fee i.e. 8000 AU Dollar i.e. Rs. 4,40,000/- in their account no.134005500128. The complainant deposited Rs. 3,60,000/- on 30.10.2014 and Rs.80,000/- on 31.10.2014 through bank transfer in opposite parties account from Baghar Purana and Moga Branch of ICICI Bank. In February, 2015, opposite parties told the complainant to pay Rs.33,000/- as Embassy fee in opposite parties account which was paid by complainant on 18.02.2015, through bank transfer from ICICI bank Branch Bagha Purana to opposite parties bank account no.134005500128. After paying all the fess i.e. Rs.30,000/- on account of processing, documentation, consultation charges etc. and Rs.4,40,000/- i.e. Rs.8000/- AU Dollar as College Fee and Rs.33,000/- as Emabssy fee to opposite parties, even then the complainant could not get the visa of Australia as promised by the opposite parties. The complainant after depositing college fees on 30.10.2014 and 31.10.2014 asked many times to opposite parties to give him receipt of depositing tution fess/college fees in Australian College, but no receipt regarding deposit of tuition fee/college fee in Australian College was given by the opposite parties to the complainant. Further alleged that after depositing the embassy fees on 18.02.2015 by the complainant in the bank account of opposite parties account no.134005500128, opposite parties did not issue the VLN no./File No. to the complainant. If the opposite parties had filed a visa case in embassy then there must be a Ref. No/File/No./VLN.No. from which the complainant can trace his file status. In this way, opposite parties have provided deficient services to the complainant, as they have not filed visa case of the complainant nor deposited the college fee in the concerned Australian College. The complainant made many requests to opposite parties either to grant visa or refund the money as promised by the opposite parties orally and vide there acknowledgement, payment receipts and letters dated 27.10.2014, 30.10.2014 and 03.11.2015. The complainant also served a legal notice dated 15.12.2015 upon the opposite parties, but all in vain and no reply was given by opposite parties. The opposite parties are negligent and deficient in providing services to the complainant, as they neither fulfilled their promise to grant Australian visa to the complainant nor refunded the money to the complainant. Hence this complaint.

3.                Upon notice, opposite parties appeared through their counsel and filed written reply taking certain preliminary objections inter alia that complaint is nothing but a blatant abuse of the process of law as the same has been filed with ulterior motive to defame and further extort money from the opposite party in the light of the fact that the whole case of the complainant is based on wrong facts and has been filed on false and frivolous grounds. That the complainant very cleverly has tried to show that the money transaction of Rs.20,000/- stated on 27.10.2014 was done at Moga to the answering opposite parties in order to show that the cause of action accrued to the complainant at Moga in front of one Swarn Singh just to create self serving evidence; that by filing this complaint the complainant has tried to mislead this court by concealing true and material facts which are necessary for the proper adjudication of the matter; that this complaint has been filed by the complainant just to extort money from the opposite party by misusing the benevolent provisions of the Consumer Protection Act; that this Forum has no jurisdiction to adjudicate the present consumer complaint case as complainant came to the office of answering opposite parties at Chandigarh on 27.10.2014 and after understanding the complete procedure deposited Rs.20,000/- (part payment) in cash with the answering opposite parties in lieu of processing, documentation and consultation charges. A receipt dated 27.10.2014 was issued to the complainant by the answering opposite parties. That all the disputes are subject to the jurisdiction at Chandigarh and further the fee paid as processing, documentation and consultation charges was non-refundable. It has been further submitted that the balance amount of processing, documentation and consultation charges of Rs.10,000/- was deposited by the complainant in the account of opposite party company situated at Chandigarh and the answering opposite parties issued receipt dated 28.10.2014 and sent the same to the complainant via e-mail for his record. Further as per the programme/procedure, the complainant deposited the fee of the college as well as other charges involved in the processing of Visa case on respective dates in the account of the opposite party no.1 company at Chandigarh from various banks and he got the confirmation of the same whenever he came to Chandigarh to the office of opposite parties; that the present complaint is also not maintainable in law or facts as there is neither any deficiency in service on the part of the opposite parties nor any unfair trade practice has been adopted by the opposite parties. The complainant himself did not provide the relevant financial for the processing of his case and also withdrew his case on his own for the reason best known to him. The opposite parties applied the case due diligently in the college at Australia and got Letter of Offer – International student for the complainant, wherein the course was to start on 03.08.2015 till 18.03.2015. The complainant himself did not supply his relevant financial status record to the opposite parties without which the case was getting delayed. It has been further submitted that the opposite parties also requested the College in question to adjust the complainant in a later course but still due to folly of the complainant, it was not complete. The answering opposite parties never harassed the complainant rather they have said that all, the complainant needs to do is to write a proper written application addressed to the college in Australia seeking his refund of fee and within four to eight weeks time, the same shall be refunded. But the complainant for the reasons best known to him has not given the required written application for seeking refund of his fee and closure of his student application form, for which, the answering opposite parties cannot be held liable. It has been further submitted that opposite party no.3 is just an employee (student counsellor) of the opposite party no.1 company and she has never received any amount from the complainant in cash or in her account as stated by the complainant. The complainant is also guilty of harassing the female employee of the answering opposite party company for no rhyme or reason.

          In para-wise reply, all other allegations made in the complaint have been denied.

4.                In order to prove his case, complainant Jasvir Singh tendered in evidence his duly sworn affidavit Ex. C-1 and copies of documents Ex. C-2 to Ex. C- 13. Complainant has also tendered duly sworn affidavit of Sh. Swarn Singh, aged about 63 years s/o S. Jagir Singh, resident of Village Samdh Bhai, Tehsil Bagha Purana, District Moga Ex. C-14 and closed the evidence.

5.                In rebuttal, learned counsel for opposite parties tendered in evidence duly sworn affidavit of Sh. Arvind Ashat, Managing Director M/s Foreign Horizons Pvt. Limited Ex. OPs-1 and copies of documents Ex. OPs-2 to Ex. OPs-4 and closed the evidence.

6.                We have heard the learned counsel for both the parties and have also gone through the record placed on file.

7.                Ld. Counsel for the complainant argued that the complainant wants to settle in Australia for better future, in the month of October 2014 Swarn Singh uncle of the complainant introduced him to OP-2 at Moga who told that he is running the business of Travelling agency and Overseas Consultancies in the name of OP-1. He helps and procures Australian Visa to his clients. He assured the complainant that if he will apply the documents through OPs then the visa of Australia be granted to him within 3 months and also told that if Visa is not granted within 3 months then the entire money will be refunded, the complainant applied for issuance of visa for Australia through OPs and submitted all documents. The OPs told the complainant to pay Rs.30,000/- for processing, documentation and consultation charges. The complainant paid Rs.20,000/- in cash to OPs at Moga against duly issued receipt no. 646 dated 27.10.2014 and remaining amount of Rs.10,000/- was paid by him through bank transfer from Moga in the account of OPs on 28.10.2014 and receipt regarding it no.650 dated 28.10.2014 was sent to complainant via e-mail, copies of receipts are Ex C-4 & C-6. On 29.10.2014, the OPs told to complainant to deposit college fees i.e. 8000 AU Dollar i.e. Rs.4,40,000/- in Indian Currency, the complainant deposited Rs.3,60,000/- on 30.10.2014 and Rs.80,000/- on 31.10.2014 through ICICI Bank, Bagha Purana and Moga branch respectively. In February 2015 OPs told the complainant to deposit Rs.33,000/- as Embassy fee in OPs account which was deposited by complainant on 18.02.2015 through bank transfer from ICICI Bank Branch Bagha Purana to OPs bank account.  The copies of deposit slips are Ex C-7, C-8 and C-10, in total the complainant paid Rs.5,03,000/- to OPs, but even then the Ops could not get the visa of Australia as promised by them. The complainant asked many times to OPs to give him receipt regarding deposit of tuition fee/college fee in Australian College, but they did not give any receipt regarding tuition fees and visa. The complainant asked the OPs to provide VLN No./file no.  vide which, they applied his visa, but they failed to provide file name etc. from which the complainant could traced his file status. The Ops have not provide accurate services to the complainant and they did not file visa case of the complainant nor deposited the college fees and Australian Visa fees, which amounts to deficiency in service and trade mal practice on their part. The complainant requested the OPs many times either to grant visa or refund the money as promised by the OPs orally and as well as through e-mails. The complainant served a legal notice dated 15.12.2015 to OPs but they did not give any reply. The copy of the legal notice is Ex C-2. The Ops are negligent and deficient in providing services to the complainant as neither they fulfilled their promise to grant Autralian Visa to the complainant nor they refunded the money of the complainant. All these acts of the OPs amounts to deficiency in service and trade mal practice on their part. The complainant suffered huge financial loss as well as mental harassment and agony. The OPs may be directed to refund the amount of Rs.5,03.000/- which they received from complainant along with interest and compensation and litigation expenses.

8.                To controvert the arguments of the complainant, the counsel for the OPs argued that the complainant is not their consumer. The present complaint is an abuse of process of law as the same has been filed with ulterior motive to defame and further extort money from the OPs. The complainant very cleverly has tried to show that the money transaction of Rs.20,000/- stated on 27.10.2014 was done at Moga, but actually no transaction between the parties done at Moga, Ops have no office in the territorial jurisdiction of this Forum and no money was paid to him at Moga. All transactions between the parties done at Chandigarh and only the Courts at Chandigarh has jurisdiction to try and decide the present case. Complainant made payment of Rs.20,000/- at Chandigarh in cash at OPs office and remaining payments are also made in account of OPs in the bank of Chandigarh. There is no deficiency in service and no unfair trade mal practice has been adopted by the OPs. The complainant himself did not provide the relevant financial record for the processing of his case and also withdraw his case on his own for the reason best known to him. The OPs has never backed out from providing the services as agreed between the parties, rather they toiled hard for his case. The Ops applied the case due diligently in the college at Australia and got letter of offer-from them. The copy of offer letter is Ex OP-4. The complainant did not himself supply his financial record to OPs due to which the case was getting delayed. The Ops also requested the college in question to adjust the complainant in a later course, but still due to folly of the complainant, it was not completed. OPs never harassed the complainant, rather they have said to the complainant that he needs to write a proper application addressed to the college in Australia seeking his refund of fee, but till today the complainant has not given the required written application for refund of fees, for which, OPs cannot held liable. OP-3 is an employee of OP-1, she has never received any amount from the complainant. The complainant is guilty to harass the female employee of the OPs for no rhyme or reason. The complainant approached the Ops at Chandigarh and he applying visa, the amount of Rs.30,000/- charges as documentation and consultation charges is non-refundable. The application of the complainant was sent by the Ops to the desired college in Australia and only after the approval and selection, the tuition fee of the college/institution was to be paid. The application of the complainant was approved and he was asked to deposit the college fees. It is only due to the fault of the complainant his visa application cannot be processed, the OPs told to complainant to submit a written application to Australian college, but he did not give any application for refund of his fees, for which, the OPs cannot held liable. The Ops never denied the payment received by them and give proper receipt against them. The Ops requested the college in question to adjust the complainant in a later course, but still due to folly of the complainant, it was not completed. The OPs never harassed the complainant rather they have said that the complainant needs to do is to write a proper written application addressed to the college in Australia seeking his refund of fee and within four to eight weeks time, the same shall be refunded. There is no deficiency in service and any unfair trade mal practice on the part of the OPs. The present complaint is totally false and baseless and based on wrong facts. That the complainant is just harassing the OPs by filing this complaint against the OPs just with the motive of extracting money from them by misusing the benevolent provisions of law. The present complaint is liable to be dismissed with special cost.

9.                We have heard the arguments of both the parties and also gone through the pleadings and evidence led by both the parties. The case of the complainant is that he wants to settle in Australia for it he applied for visa through OPs and paid them consultation fees and embassy fees and tuition fees for study in Australian college in total Rs.5,03,000/-, the OPs promised to him that they will get the visa within 3 months and in case of failure they will refund entire fees, but they fail to get visa and they did not refund the fees received from him. In reply, the OPs admitted that the complainant applied for Australian Visa through them and paid fees as alleged by him, but they argued that they processed the case of the complainant deligately with best of their efforts, but it is only the complainant who did not provide them requisite documents for processing of his visa case and he himself withdrew his visa application, they deposited the tuition fees with Australian college, it is only due to the fault of the complainant his case could not be processed and there is no fault on the part of OPs, so complaint may be dismissed.

10.              The bare perusal of the file shows that complainant deposited Rs.20,000/- with OPs on 27.10.2014 vide receipt Ex C-4 and on this receipt, it is clearly written that if application not given by complainant then the fees would be refunded, further complainant paid Rs.10,000/- on 28.10.2014 and Rs.3,60,000/-on 30.10.2014 and Rs.80,000/- on 31.10.2014 and Rs.33,000/- on 18.02.2015 in account of the Ops from his bank account from Moga and Bagha Purana branch which is admitted by the Ops themselves. The plea of the OPs is that they deposited fees with Australian College that it is only due to the fault of complainant his visa file cannot be processed and his fees cannot be refunded by Australian College. The complainant produced a letter issued by OPs dated 30.10.2014 as Ex C-9 whereas they acknowledged and further written that tuition fees deposited through bank transfer is totally refundable, in case the visa is not granted by the embassy, further they issued a letter/undertaking on 03.11.2015 Ex C-11 whereas they agreed that the case of Mr. Jasvir Singh would be update by or before 09.11.2015  or the fees would be refunded, as per receipts but despite these acknowledgements they did not refund the fees of the complainant, further complainant produced copies of e-mails as Ex C-12, C-13 send by him to Ops on 10.11.2015 and 05.12.2015 whereas he demanded his refund of fees paid by him to OPs, as they fail to fulfil promise as per their commitments. The OPs relied on the documents letter of offer Ex OP-4 whereas they say that they get letter of offer for admission of complainant in college in Australia and for which they demanded tuition fees from the complainant deposited the same with that college, perusal of this document shows that this letter of offer is issued by 28.04.2015 and vide this letter of offer, the total tuition fees is 8880 Australian Dollar, this letter is issued on 28.04.2015 whereas the OPs received the tuition fees of 8000 Dollar amounting to Rs.4,40,000/-in Indian Currency from the complainant on 30.10.2014 in their bank account i.e. six month prior from getting letter of offer from Australia college. Moreover, as per terms of the letter and offer in the head payment arrangement only 50% of tuition fees was to be paid at the commencement of the course and remaining fees for 2^nd part of course was to be paid 2 weeks before its start i.e. too after the college has received and accepted completed and signed written agreement from student. Moreover the OPs failed to prove and provide any document in support that they ever deposit tuition fees on behalf of the complainant with the alleged college in Australia. They further fails to prove whether they paid any fees with Australian embassy for applying visa or any visa application or reference number vide which they applied visa for the complainant. All these acts of the Ops prove that they have not provide proper service to the complainant and they duped the complainant by receiving fees at their own and did not apply for his visa with embassy and not deposit any fees with college. Moreover in their acknowledgement and letter and receipt they admitted that entire fee is refundable if the visa is not granted to the complainant.

11.              The 2^nd main objection of the Ops is that this Forum has no territorial jurisdiction to try and decide the complaint as the OPs has no office in jurisdiction of this Forum and no transaction has done at Moga, no part of cause of action arose at Moga, so this Forum has no jurisdiction to try and decide this complaint.

12.              On it, the Counsel for the complainant argued that the complainant paid Rs.20,000/- in cash on 20.10.2014 at Moga to OPs and further remaining payments were also made at Moga and Bagha Purana i.e. within the territorial jurisdiction of this Forum in the bank account of Ops through bank transfers, so this Forum has the jurisdiction to try and decide this complaint as payment has made at Moga and part cause or arose at Moga. He put reliance on the citation 2005 (3) Consumer Protection Judgements 581 titled as Divisonal Railway Manager/Commercial, Southern Railway Vs Jasbir Singh decided by Union Territory Consumer Disputes Redressal Commission, Chandigarh whereas they held that the plea of lack of territorial jurisdiction was raised on the ground that the train originated from Ernakulam in the State of Kerala and the destination station was New Delhi and as such District Forum Chandigarh has no territorial jurisdiction to adjudicate the complaint. The Hon’ble State Commission observed that, so for as the booking of ticket from the website of the Indian Railways at Chandigarh is concerned, it has been admitted and once this fact is admitted then a part of cause of action arose at Chandigarh where the tickets were booked on website and the tickets were delivered at Chandigarh, U/s 11 (2) (c) of the Consumer Protection Act, 1986,  which provides that complaint shall be instituted in a District Forum within the local limits of whose jurisdiction the cause of action partly or in part arises. In our considered opinion, the District Forum was right in holding that it had territorial jurisdiction to entertain and adjudicate the complaint cases and the arguments advanced by the ld. Counsel for the appellants to the contrary has no merit. He further put reliance on the citation 1997 (1) Consumer Protection Judgments 144, titled as Kanshi Ram Vs Maruti Udyog Ltd. And ors. Decided by Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission Shimla whereas they held that what is cause of action? The cause of action constitutes bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. It goes without saying that the aforementioned circumstances that the complainant is a resident of Bilaspur and that he got the bank draft prepared at Bilaspur, confirmed the proposal of respondent no.2 at Bilaspur and got the vehicle after the receipt of the same bank draft, are in fact the vital facts in the formation of the contract of purchase/sale of Maruti Car. Having regard to all these circumstances, we have no hesitation to hold that part of cause of action has arisen in Bilaspur and the District Forum has jurisdiction to try the complaint. They further discussed in Luuknow Development Authority Vs M.K.Gupta III (1993) CPJ7 (SC) AIR1994 Supreme Court 787. The Supreme Court has held that the provisions of the Act have to be construed in favour of the Consumer to achieve the purpose of enactment as it is social benefit oriented legislation. Having regard to the above observations of the Supreme Court, if it is found that the District Forum, Bilaspur in the facts and circumstances of the case has jurisdiction otherwise under Section 11 of the Consumer Protection Act , 1986 to decide the complaint, the Courts should not so readily infer about the exclusion of the jurisdiction of the District Forum. If two interpretations are which goes in favour of the Consumer, should normally be adopted by the Courts.

13.              He argued that as the payments to OPs made at Moga through bank transfer in their accounts, so the part of cause of action arose within the territorial jurisdiction of this Forum and  this Forum has got jurisdiction to try and decide the present complaint.

14.              From the above discussion we are of opinion that this Forum has territorial jurisdiction and to try and decide the present complaint and as OPs are deficient in providing proper service to complainant for getting Australian Visa for him as it appears that they never applied for visa with Australian embassy and never deposited any tuition fees with Australian college and dishonestly kept all fees received by them from complainant with them. All these acts of OPs amounts to deficiency in service and trade mal practice on their part.

15.              We are fully convinced with the evidence, arguments and case law produced by the complainant, the present complaint is hereby allowed against opposite party nos. 1 & 2. Opposite party no.3 is only an employee of opposite party nos. 1 & 2. She did not receive any payment from complainant nor she in her personal capacity agreed to provide any service to complainant, any promise if made by her is on behalf by opposite party nos.1 & 2 being their employee, so she cannot be held liable personally responsible for the work done by her as employee of opposite party nos. 1 & 2, so the present complaint against opposite party no.3 Ms. Shikha Ahuja is stand dismissed. The opposite party nos. 1 & 2 are ordered to refund Rs. 5,03,000/- received by them from complainant alongwith interest @ 9% PA from the date of payment till realization. The opposite party nos. 1 & 2 are burdened to pay Rs 20,000/- (Twenty thousand only) as compensation for mental agony and harassment faced by complainant and Rs.3000/- (Three thousand only) as litigation expenses to the complainant. Opposite party nos. 1 & 2  are directed to comply with the order within one month from the date of receipt of the copy of the order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost. File be consigned to the record room. 

Announced in Open Forum

Dated: 28.06.2016

 

                        (Bupinder Kaur)                           (Vinod Bala)               (Ajit Aggarwal)

                              Member                                      Member                      President