Kerala

StateCommission

A/13/39

M/S WORLD WIDE IMMIGRATION CONSULTANCY SERVICES LTD - Complainant(s)

Versus

FRENJITH.K.A - Opp.Party(s)

VETTOR.S.PRAKASH

30 Aug 2014

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

 

APPEAL NO.39/2013

JUDGMENT DATED 30/8/2014

 (Appeal filed against the order in CC No.125/2011 on the file of CDRF, Ernakulam  dated 31/10/2012)

 

 

PRESENT:

 

 

SMT. A. RADHA                            :         MEMBER

SMT. SANTHAMMA THOMAS    :        MEMBER

 

APPELLANTS:

 

1. M/s. World Wide Immigration Consultancy Ltd.,

DLF Centre, Nezzanine Floor,

Savithri Cinema, Commercial Complex,

Grater Kailash-11, New Delhi-110 046.

 

1. M/s. World Wide Immigration

Consultancy Service Ltd., Sona

Tower Above Birla Sunlife Insurance,

Jose Junction, M.G. Road, Kochi-16

– represented by the Branch Manager.

 

(By Adv:  Vettoor S Prakash)                   

 

                   Vs

 

RESPONDENT:

 

          Frenjith.K.A., S/o. K.J. Antony,

Kodiyath House, Karipai Road,

Kalamassery P.O., Pin-683 104.

          .

(By Adv:  S. Reghukumar & Others)  

 

JUDGMENT

 

SMT. A. RADHA  : MEMBER

 

          Aggrieved by the order passed by the CDRF, Ernakulam in C.C.No.125/2011 the opposite parties came up in appeal.

          2.  The case of the complainant is that he approached the opposite parties and registered his name for immigration to Australia under ‘gold’ category and paid the professional charges of Rs.30,000/- for processing the application of the complainant.  The opposite parties collected Rs.12,835/- equivalent 300 Australian $.  As instructed by the opposite parties the complainant passed IELTS with score of 5.5. The complainant paid  Rs.81,915/- as further professional charges for releasing TRA on 02/06/2009 and the required documents along with Rs.83,653/- on 3/7/2009 also.  Later on it came to the notice of the complainant that the 2^nd opposite party had not forwarded the amount of Rs.83,653/- paid on 03/07/2009 and the immigration papers to the department of immigration.  On enquiry it was learnt that the immigration rules has changed with effect from 01/07/2009.  The complainant demanded to refund the entire outstanding amount paid to the opposite parties which was paid on 03/07/2009.  The opposite parties denied to refund the balance amount of Rs.1,49,493/- and the complaint is filed to get the amount with compensation of Rs.1,00,000/- for mental agony and Rs.10,000/- towards cost of proceedings.

          3.  In the version filed by opposite parties it is stated that the complainant had not impleaded M/s. Global Strategic Business Consultancy, Dubai to whom the complainant had deposited the sum for US $ 1700 vide receipt dated 9/6/2009.  Hence the complaint is barred by non joinder of necessary party.  It is admitted that the 1^st opposite party is having branches all over India and 14 International Offices and having its registered office at New Delhi and Chandigarh.  The 1^st opposite party is imparting service only with respect to migration to Canada and Australia.  The opposite parties assist the candidates in the process which includes preparation of immigration file, verify their credentials, supply with required documents and communicate the case with the Australian or Canadian Authority.  The sanction for migration is to be fetched from the Canadian or Australian Migration Department which depends upon the education or technical qualifications, experience and ability of the applicant.  It is also contended that the opposite parties never offered the complainant job in Australia with salary of 2.5 Lakhs.  As per the agreement clause-2(a) the applicants are required to submit the complete documents within 30 days from the date of signing the agreement.  In this case the complainant failed to submit the complete documents along with certificates which resulted in the rejection of his application.  It is contended that the complainant went for a job in Merchant-ship outside India from 30/8/2008 till 20/6/2009 and the documents were sent only on 27/06/2009.  It is true that the complainant had the grade 5.5 under the IELTS requirements.  On 01/07/2009 the Department of Immigration and citizenship Australia increased the IELTS requirement to Grade-6.  Under the circumstances the complainant had to undergo fresh test in IELTS and secure grade-6 to enable his application to be forwarded to the Department of Migration Australia.  The complainant was not ready to undergo the test and demanded to refund the whole amount.  There is no deficiency in service on the part of the opposite parties. The opposite parties extended all possible help to forward the application efficiently and effectively to the immigration authorities.  The complainant had 10 months from August 2008 to June 2009 to submit the documents in advance which was not done in this case.  All communications are based on the agreement entered into between the parties on 11/4/2008 and the conditions are binding on the parties and the complainant accepted the same.  The complainant is not eligible for any refund of amount.  The opposite parties are professional in nature and the entire fee is non refundable.  It is a pre-requisite for migration to pass the IELTS test and achieve the fixed grade.  Hence the complaint is only to be dismissed.

          4.  The evidence consisted of the oral testimony of the complainant as PW1 and Exbts. marked as A1 to A9.  The opposite parties produced Exbt.B1 on their side.

          5.  The counsel for the appellant submitted that the respondent entered into an agreement, Exbt. B1, dated 11/4/2008 and the conditions of contract are binding on the parties.  The amount of US $ 1700 vide receipt dated 9/6/2009 was deposited to M/s. Global Strategic Business Consultancy, Dubai.  It is submitted that they were not impleaded in the party array who are necessary parties to the proceedings.  Being a separate legal entity to whom the respondent paid the amount, the amount cannot be demanded to refund by the opposite parties.  The respondent directly paid the amount in the name of Global Consultancy.  As per the contract Exbt.B1 clause-3 the opposite parties are giving professional service.  The respondent had to pass the skill assessment and the IELTS test.  It is also submitted that the Australian Immigration Department enhanced IELTS grade to grade-6 which resulted in the non-eligibility of the complainant to get through the immigration.  The D.D for 2,105 AUD was returned to the complainant as the respondent informed that he does not intend for further appearance for the IELTS test.  It is also to be pointed out that the respondent was working from 3/8/2008 to 20/6/2009 and was not in station.  He had not submitted the documents until 27/6/2004.  The counsel also brought out our notice to letter dated 23/5/2009 addressed to the complainant informing to expedite. The documents latest by June 15^th 2009 wherein it is also informed that with effect from 1^st July 2009 Australian immigration laws are changing and the IELTS requirement for trade person under revised rules would be minimum grade 6 in all modules.  In order to forward the necessary documents the complainant had to submit the necessary papers in advance due to the changing immigration laws which was not done in this case.  Hence in that event the opposite parties are not responsible and no refund would be entitled by the complainant.  The retainer fee is not payable by the opposite parties.  Exbts. A2 and A6 are not correct as per the agreement.  The amount as per Exbt. A9 was refunded and the balance amount was paid as migration processing fund.  There is no unfair trade practice on the part of opposite parties and all the communications should be processed under contract.  As per clause-5 part-4 of Exbt. B1 the processing fee is non refundable.  Hence the opposite parties are not liable or responsible for any financial loss caused to the respondent.

          6.  It is submitted by the counsel for respondent that the respondent had already paid Rs.2,23,660/-.  The respondent was a fitter by profession in Merchant Navy and approached the appellants for processing the visa for migration to Australia under the scheme ‘gold’ category.  The complainant paid higher charges being ‘gold’ category.  The complainant acquired score 5.5 in IELTS test.  All the certificates and credentials were submitted through the appellants.  No oral evidence adduced by opposite parties.  It is admitted that an amount of Rs.83,653/- was returned to the complainant as he had not intended to appear for the further IELTS test. The respondent submitted all the documents on 23/6/2009 as per the instructions communicated by letter dated 23/5/2009 by the appellants.  The complainant secured 5.5 grade and he remitted the required fees on 23/6/2009 to the opposite parties.  The respondent submitted the documents within a month subsequent to the letter issued by the opposite parties.  However, the D.D was returned to the respondent on the ground that the time had lapsed to submit the documents.  It is an irresponsible act of the 2^nd opposite party without submitting the documents in time so as to reach the concerned authorities for processing the application. Hence the appellants are liable to compensate the complainant and no documents filed by opposite party showing change of enhancement of grade in the IELTS score.  The respondent prayed to refund the amount already remitted to the appellants.

          7.  Heard both sides in detail and had gone through the documents.  Admittedly, the complainant approached the opposite parties for immigration to Australia and remitted the required amount as per the instructions of the opposite parties.  The complainant secured IELTS over all band score 5.5 and was eligible as per emigration rules in 2008.  It has come out in evidence that the complainant was working from 30/8/2008 on 20/6/2009 and was working in ship.  It is admitted that opposite party sent letter through e-mail in May, 2009 and he submitted the documents in June 2009.  It is also admitted that from 1^st July  2009 it is informed that there would be changes in Australia immigration laws wherein the IELTS requirements for trade person would be revised to minimum grade 6.  It is also admitted that the complainant executed Exbt. B1 and the documents had to be submitted within 30 days. On going through Exbt. B1, the letter  dated 23/5/2009, it is specifically mentioned that the complainant was requested to expedite the submission of documents latest by June 15, 2009.  In this case the complainant produced the documents only on 23/6/2009 which itself reveal that the submission of the document was belated.  It is true that IELTS grade had not changed until 01/07/2009 whereas the submission was within 30 days from the letter issued by the opposite parties.  It is to be specifically mentioned that the documents had to be submitted by 15^th June 2009 and it was not complied by the complainant and the delay in submission of documents equally goes on the negligent act on the part of the complainant.  As per the letter dated 28/7/2008 the Australian Department of Education communicated that the applications will be finalised in 20 working days.  The complainant had not forwarded any application or assessment fee until 23/6/2009.  Under the facts and circumstances of the case the appellants are not liable for the acts of the complainant or the changes in the rule of the Australian immigration rules.

          In the result, appeal is allowed setting aside the order passed by the Forum Below.

The office is directed to send a copy of this order to the Forum Below along with LCR.

 

 

 A. RADHA             :          MEMBER

 

 

 

 SANTHAMMA THOMAS    :        MEMBER

 

Sa.

 

 

 

 

 

KERALA STATE CONSUMER

                                                                 DISPUTES REDRESSAL

                                                           COMMISSION

THIRUVANANTHAPURAM

 

 

 

 

 

 

 

 

 

APPEAL NO.39/2013

JUDGMENT DATED 30/8/2014

 

 

 

 

 

 

Sa.