Punjab

StateCommission

A/11/36

Overseas Visahelpline Consultancy Services Pvt. Ltd. - Complainant(s)

Versus

Gurjeet Singh - Opp.Party(s)

Durga Dutt Sharma

26 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             First Appeal No.36 of 2011

 

                                                          Date of Institution: 07.01.2011  

                                                          Date of Decision :  26.02.2015

 

1.       Overseas Visahelpline Consultancy Services Pvt.Ltd., SCO 10-11-      12, Third Floor, Sector 17-B, Chandigarh through its Director Jasbir          Thind.

2.       Jasbir Thind Director of Overseas Visahelpine Consultancy       Services Pvt.Ltd., SCO 10-11-12, Third Floor, Sector 17-B,          Chandigarh

 

                                                                                                                                                                   …..Appellants/Opposite Parties

         

                                      Versus

 

1.       Gurjeet Singh S/o Kartar Singh R/o Kotla Fazzal, Tehsil Bassi    Pathana, District Fathehgarh Sahib.

 

2.       Manvir Kaur D/o Gurjeet Singh S/o Kartar Singh R/o Kotla Fazzal        Tehsil Bassi Pathana, District Fatehgarh Sahib.

 

                                                                                                                                                         ….Respondents/Complainants

         

First Appeal against order dated 08.11.2010 passed by the District Consumer Disputes Redressal Forum, Fathehgarh Sahib

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

Present:-

 

          For the appellant              :         Sh.D.D.Sharma, Advocate

          For the respondents        :         Sh.R.M Sharma, Advocate

 

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

                            

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                  

           The appellants (the OPs in the complaint) have directed this appeal against the respondents of this appeal (the complainants in the complaint) challenging the order dated 08.11.2010 of District Consumer Disputes Redressal Forum Fatehgarh Sahib accepting the complaint of the complainants and directing the OPs to refund the amount of Rs.2,65,000/- along with 9% interest from 01.09.2009 till its actual payment. The instant appeal has been carried against the same by the OPs now appellants.

2.      The complainants have filed this complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that Ops deal in immigration for students for going abroad in countries like Canada, England, USA in connection with study purposes. The complainant no.1 wanted to send his daughter complainant no.2 to Australia for study purposes. The complainant contacted the OPs, who agreed to arrange the student's visa for complainant no.2 and demanded Rs.3,25,000/- from the complainant no.1 for this purpose in the shape of the demand draft in favour of Weizmann Forex Ltd. The complainant gave demand draft dated 07.03.2009, no.383650 of Oriental Bank of Commerce Fatehgarh Sahib for an amount of Rs.3,25,000/- to opposite parties payable to  Weizmann Forex Ltd payable at Chandigarh. The OPs assured the complainant that in case his daughter was not sent to Australia, then amount would be refunded. That on account of racist attacks on Indians in Australia, the complainant changed his mind not to send his daughter/complainant no.2 to Australia and demanded the refund the amount of Rs.3,25,000/- from the OPs. The OPs issued cheque bearing no. 173889 dated 1.09.2009 of HDFC Bank for Rs.50,000/-, which was delivered to complainant no.1 at his village address Kotla Fazal. The OPs assured the complainant no.1 to refund the remaining amount of Rs. 2,75,000/- after deducting the services charges within few days. However, the Ops have not refunded the balance amount of Rs.2,75,000/- to complainant despite repeatedly contacting them. The complainants have, thus, filed the complaint directing the OPs to pay Rs.2,75,000/-  to complainant along with interest and Rs.50,000/- as compensation for mental harassment.

3.      Upon notice, OPs filed joint written reply and contested the complaint of the complainant on the preliminary objections that complainant has not come to the Forum with clean hands. The complainant has not impleaded the college, where admission for complainant no.2 was sought as a party in this case. On merits, the complaint was contested by the OPs pleading that OP No.2 is Director of Overseas  Visahelpline Consultancy Services Pvt.Ltd., Sector 17, Chandigarh. That complainant No.1 approached the OPs for student visa for his daughter/complainant no.2 to Australia. That Manveer Kaur complainant gave a demand draft No.383650 dated 07.03.2009 of OBC Branch Fatehgarh Sahib directly payable  in favour of Weizmann Forex Ltd not in favour of OP Nos.1 and 2. That this amount is not refundable as per terms and conditions of the admission, which is duly signed and accepted by the complainant no.2, after depositing fee. That on account of fraud committed by the complainant with the OPs as well as Indian Government and Australian Government, the complainant succeeded to get visa for sending complainant no.2 to Australia on student visa on false documents. That complainant no.1 apprehended the arrest of complainant no.2 by Airport Authority and due to this reason, they  changed their mind. That as per terms and conditions of admission document the amount deposited is not refundable. That the amount of Rs.50,000/- has already been refunded to complainant and OPs prayed for dismissal of the present complaint.

4.      The complainant tendered in evidence  affidavit of Sh.Gurjeet Singh complainant Ex.C-1, photocopy of demand draft Ex.C-2, photocopy of cheque Ex.C-3, copy of notice Ex.C-4, original post/RC receipts Ex.C-5 to Ex.C-6, affidavit of Manvir Kaur Ex.C-7, copy of passport of Manvir Kaur Ex.C-8 and affidavit of Sandeep Singh Ex.C-9. As against it, OP tendered affidavit of Sh.Jasbir Singh Ex.RW-1/A, copy of letter of offer and acceptance Ex.R-1, copy of letter dated 12.3.09 Ex.R-2, copy of application status inquiry Ex.R-3, copy of cheque dated 1.0.09 Ex.R-4, copy of affidavit of Gurjit Singh Ex.R-6, copy of affidavit of Manvir Kaur Ex.R-6, copy of sale deed Ex.R-7, copy of formal offer and acceptance Ex.R-8. On conclusion of evidence and arguments, the District Forum, Fatehgarh Sahib accepted the complaint of the complainant and directed the OPs to refund the amount of Rs.2,65,000/- along with interest @ 9% from 1.09.2009 till its actual payment. Dissatisfied with the order dated 08.11.2010 District Forum, Fatehgarh Sahib, OPs now appellants have preferred this appeal against the same.

5.      We have heard learned counsel for the parties and also examined the record of the case.   The dispute between the parties lies in narrow compass, it is the stand of the OPs now appellants that the amount fee of Rs.3,25,000/- deposited by the complainant no.2 with Weizmann Forex Ltd and now at Australia, hence as per terms and conditions of the admission documents, this amount cannot be refunded. It was also highlighted, during the arguments that complainant no.2 prepared the demand draft directly in favour of the Weizmann Forex Ltd in Australia, depositing the fee and not in favour of the OPs. On the other hand, the complainant now respondents in this appeal contested it vehemently contended that fraud has been committed by the OPs on the complainants. The parties are governed by terms and conditions of the admission document. Affidavit of Gurjeet Singh complainant Ex.C-1 is on the record in support of his plea, as embodied in the complaint. Ex.C-2 photocopy of the demand draft in faour of Weizmann Forex Ltd for a sum of Rs.3,25,000/- of OBC Bank, it is evident from the perusal of Ex.C-2 that it is not payable to OPs and directly payable to the educational institute Weizmann Forex Ltd in Australia. The OPs have refunded Rs.50,000/- to complainant by virtue of cheque dated 1.09.2009, vide Ex.C-3 photocopy thereof on the record. Legal notice sent Ex.C-4, postal receipts Ex.C-5 and Ex.C-6 , affidavit of complainant no.2 Ex.C-7 on the record and her passport is Ex.C-8, affidavit of one Sandeep Singh in support of the case of the complainant is Ex.C-9.

6.      OPs now appellants relied upon the affidavit of Jasbir Thind, Director of Overseas Visahelpline Consultancy Services Ltd, wherein he swore that the demand draft was paid by the complainant directly to Educational Institute in Australia. That complainant changed his mind not on account of racist attacks on Indians in Australia but on account of the fact that he managed the visa for complainant no.2 on false documents and fearing arrest of the complainant by the Australian Authorities, complainant no.2 was not sent there. Ex.R-1 is letter of the offer and acceptance in this regard. This document is directly addressed to complainant by the Educational Institute in Australia. Document Ex.R-1 is the fundamental to settle this dispute between the parties. From perusal of the terms and conditions thereof dealing with refund policy, it is recorded in the column that if visa is cancelled due to actions of the student, no fee is to be refunded. Even visa refused prior to the course commencement full refund has to be refunded. If withdrawal is at least 10 weeks prior to agreed start date, full refund would be paid and if withdrawal at least four weeks prior to start date, 75% refund would be paid, whereas in case withdrawal of less than four weeks prior to agreed date  60% of the refund was to be paid. The start date as per this document of the course is 03.06.2009. The demand draft was directly sent by complainant no.2 to the Educational Institute in Australia. It is not in favour of the OPs, vide Ex.C-2 on the record dated 7.3.09. Had it been payable to the OPs, then OPs would have been held liable to pay this amount. When the students changed the mind, the complainant no.2 should have directly approached the Educational Institute of Australia, which has not been impleaded as a party in this case. The case of refund of the amount is covered under the terms and conditions of Ex.C-1. In case, the visa is cancelled due to action of the students on false documents as maintained by the complainant, then no refund is to be ordered. The bank draft has been sent to the Malborn Language Centre  Educational Institute in Australia. Since bank draft is directly in name of the educational institute and it has been sent to them, then complainant no.2 should have addressed her grievances against the educational Institute only for refund of the fee, if the case is covered under the terms and conditions contained in Ex.R-1 at all. Ops have refunded the amount of Rs.50,000/- , which have been received by them from the complainant, vide Ex.R-4 for processing this case. The affidavit of Gurjeet Singh Ex.R-5 is on the record. The affidavit of Manvir Kaur /complainant no.2 is Ex.R-6 on the record, she has swore in it that she shall be responsible for any documents provided with the application for visa to Australia.

7.      In view of our above discussion, the OPs have already refunded the amount to the complainant. The fee has been deposited with the Educational Institute at Australia by sending the draft to them. It is not within the power of the OPs to refund it. The complainant no.2 should have contacted the Educational Institute at Australia only for refund, if it was permissible under any of the terms and conditions of the admission policy Ex.R-1. Consequently, the District Forum has failed to appreciate the matter in the proper perspective in this case. Even if it is assumed or taken for arguments, sake that complainant no.2 wanted to withdraw the admission much time prior to agreed date of start of course, even then the complainant no.2 should have directly applied to the Educational Institute at Australia for refund of the fee, as the demand draft is directly made by the complainant under her own name to the Educational Institute in Australia i.e.  Weizmann Forex Ltd. Copy of demand draft Ex.C-2 is not in favour of the OPs. We are unable to sustain the order of the District Forum under appeal in this case.

8.      In the light of our above discussion, we accept the appeal of the appellants and by setting aside the order of the District Forum dated 08.11.2010, the complaint of the complainant now OPs in the appeal stands dismissed.

9.      The appellant had deposited an amount of Rs.25,000/- on 10.1.2011 and another sum of Rs.1 lac on 12.5.2011 in compliance of the order dated 30.3.2011 passed by this Commission. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the appellant no.1, who deposited it, by way of crossed cheque/demand draft after  45 days from receipt of copy of this order.

10.     Arguments in this appeal were heard on 20.02.2015 and the order was reserved. Now the order be communicated to the parties.

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

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

February, 26  2015.                                                                 

(ravi)