Punjab

StateCommission

FA/449/2014

M/s Worldwide Immigration Consultancy Services Ltd. - Complainant(s)

Versus

Harparwinder Kaur - Opp.Party(s)

Raman Walia

24 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 449 of 2014

                                                           

                                    Date of institution: 16.4.2014    

                             Date of Decision:  24.2.2015

 

1. M/s Worldwide Immigration Consultancy Services Ltd., Head Office A-12, Industrial Area, Phase-VI, Mohali.
2. M/s Worldwide Immigration Consultancy Services Ltd. (WWICS Ltd.), Midland Financial Centre, 3^rd Floor, Near Vishal Mart, Jalandhar through its Branch Manager.

…..Appellants/Opposite Parties

                                      Versus

Harparwinder Kaur wife of Omkar Singh, Resident of B-III, New Guru Amar Dass Nagar, Jalandhar.

…..Respondent/Complainant

 

First Appeal against the order dated 13.3.2014 passed by the District Consumer Disputes Redressal Forum, Jalandhar.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellants            :         Sh. Raman Walia, Advocate

          For the respondent :         Sh. K.S. Dhillon, Advocate

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellants/opposite parties (hereinafter referred as “the OPs”) have filed the present appeal against the order dated 13.3.2014 passed by the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter referred as “the District Forum”) in consumer complaint No.349          dated 29.8.2013 vide which the complaint filed by the respondent/complainant(hereinafter referred as ‘the complainant’) was allowed with a direction to the Ops to pay a sum of Rs. 1,32,000/- and Canadian $875 or equal amount in the Indian Currency to the complainant and also pay Rs. 3,000/- as litigation expenses and to pay this amount within a period of one month, failing which the Ops will be liable to pay interest @ 9% p.a.

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the Ops on the allegations that tempted with the advertisement circulated and published by the Ops that they are providing Immigration Consultancy Services for getting PR Visa, the complainant contacted the Ops and OP No. 2 assured that they will arrange Family Visa and PR for the complainant. After assessment of the credentials of the complainant and on discussing the matter in detail, the complainant was told that her case is fit for permanent immigration to Canada. The complainant was further told by the Ops that they are working in consultation with their associates in different foreign countries including Canada through their placement division Global Strategic Business Consultancy (in short ‘GSBC’). The complainant believing the assurance given by the Ops, availed the services of the Ops for getting permanent Visa and availed for Gold Package offered by GSBC and Ops also assured for placement of services for her and her family. Complainant agreed with the assurance of OP No. 2 and applied for PR in Canada vide application No. B-47505522 to Canadian Embassy and File No. WWICS 23929 was prepared. The agreement was executed between her husband and Op No. 2 and at that time husband of the complainant paid a sum of Rs. 30,000/- to the Ops vide receipt No. 1746 dated 2.10.2003. After that OP No. 2 charged an another amount of Rs. 30,000/- vide receipt No. 5860 dated 14.1.2003 and receipt No. 4134 dated 16.10.2003. Op No. 2 received another sum of Rs. 72,000/- on 27.11.2003 vide receipt No. 180 and 181 as professional fee for WWICS Canada for arranging Gold Package for the complainant and her family for settlement and placement in service in Canada and also received Canadian Dollar 175 for evaluation of the degree. The complainant fulfilled all the conditions for PR for  Canada i.e. IELTS and obtained the required band. OP No. 2 failed to arrange VISA. OP No. 2 had also assured to finalise her case within a period of 18 to 24 months but her case was submitted to the Canadian Embassy in March, 2005 only and she had deposited a sum of Rs. 43,000/- with said Embassy. After that she did not receive any intimation from the Op upto September, 2009 when OP No. 2 told the complainant that her case has been rejected by the Canadian Embassy. Then OP No. 2 received 700 Canadian Dollars to file the case against Canadian Embassy in Federal Court of Canada but the Ops have not filed against the refusal of the case of the complainant. The case of the complainant was refused due to fault of OP No. 2 as they were deficient in their service. Hence, the complaint has been filed for refund of Rs. 1,32,000/- and 875 Canadian Dollars alongwith interest @ 12% p.a., Rs. 50,000/- on account of mental harassment and Rs. 20,000/- as litigation expenses.

3.                The complaint was contested by the Ops, who filed written reply taking preliminary objections that the complaint was liable to be dismissed as no cause of action had arisen to the complainant to file this complaint, there was no privity of contact between the complainant and the Ops. In fact Mr. Omkar Singh husband of the complainant had entered into a contract of engagement dated 2.10.2003 for availing the professional services of the Ops; the complainant had voluntarily withdrawn her application after change of Immigration rules, therefore, the complaint was not maintainable. After receiving the application of the complainant, her case was filed with Canadian High Commission. A letter dated 7.3.2005 was received from Canadian High Commission. Canadian High Commission vide email dated 10.11.2008 informed the complainant that Canadian High Commission is in the process of reviewing her application and certain documents were required from her, which were duly submitted by her. The IELTS test cleared by the complainant was also sent to the Canadian High Commission, however, due to bad luck of the complainant, Canadian Government introduced the new Act, namely, Job, Growth and Long Term Prosperity Act, which became a law on 29.6.2012 under which all the applications, which were made before 27.2.2008 were terminated by operation of law. Since the application of the complainant was received by the Canadian High Commission on 7.3.2005, therefore, her case was also terminated by operation of law. The complainants were advised to file a law Suit in the Federal Court, which was duly filed by her. The complainant was advised to wait for the decision of the law suit but the complainant became restless and submitted a refund letter dated 14.4.2013 requesting to close and to refund her Embassy Fee, which was done by her online. Therefore, the Ops were nowhere deficient in their services. A sum of 700 Canadian Dollars have been paid by the complainant to M/s GSBC, Dubai vide draft dated 6.9.2011 to whom the complainant had entered into a separate contract dated 2.10.2003 for availing post landing services and that amount cannot be claimed from the Ops; the Forum did not have any jurisdiction because as per Clause 13 of the Contract of Engagement all differences and disputes between the parties shall be referred to the Chief Executive Officer of the Company for Arbitration; the complainant was not entitled to any refund  in view of Clause of the contract of engagement, which was signed by the complainant with the answering respondents/Ops. On merits, same averments were reiterated, which was mentioned in the preliminary objections. It was reiterated that there was no deficiency in services on the part of the Ops. The complaint was without merit and it be dismissed.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of his allegations, the complainant had tendered into evidence her affidavit Ex. CW-1/A, affidavit of Capt. Ranjit Singh Ex. CW-2/A, contract of engagement Ex. C-1, letter of WWICS dt. 3.6.05 Ex. C-2, letter of complainant dt. 16.4.12 Ex. C-3, legal notice Ex. C-4, reminder of legal notice Ex. C-5, postal receipts Exs. C-6 to 8, acknowledgement receipts Exs. C-9 & 10, receipts Exs. C-11 to 16, copy of draft Ex. C-16, copy of a/c payee cheque Ex. C-17, draft copy of Canadian cheque Ex. C-18. On the other hand, opposite party No. 1 had tendered into evidence contract of engagement Ex. Op-1, letter of Canadian High Commission dt. 5.2.05 Ex. Op-2, letter of WWICS dt. 31.1.09 Ex. OP-3, letter of Canadian High Commission dt. 6.5.09 Ex. Op-4, email dt. 22.2.13 Ex. Op-5, Federal Court application Ex. Op-6, letter dt. 16.4.12 Ex. Op-7, cheque copy Ex. Op-8, Contract of Engagement Ex. OP-9, letter dt. 14.7.05 Ex. Op-10, law suit office copy Ex. Op-11.

6.                After going through the allegations in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the complaint filed by the complainant was allowed as referred above.

7.                Counsel for the appellants has contended that the order so passed by the learned District Forum is liable to be set-aside as no cause of action had arisen to the complainant to file the complaint as there was no privity of contract with the complainant. In fact it was Omkar Singh husband of the complainant, who had retained the services of the Ops.

8.                However, in case we go through the documents on the record, the main applicant was the complainant. Although agreement for engagement was with her husband and he had deposited the amount but as rightly observed by the learned District Forum, the complainant was the beneficiary and under Section 2(1)(d)(ii), it also include any beneficiary of such services other than the person, who availed the services for consideration paid or promised, therefore, being beneficiary under that contract of engagement, the complainant also fall under the definition of the ‘consumer’ and during the course of arguments, the counsel for the appellants was unable to convince how the complainant does not come within the definition of the ‘consumer’. It has been further contended by the counsel for the appellants that Rs. 30,000/- was taken by the Ops as their professional fee, which is clear from the contract of engagement Ex. C-1 and according to Clause 3, it has been mentioned that in consideration of the Company professional services, the client agreed and undertake to pay the Company a sum of Rs. 30,000/- at the time of retaining the services and in Clause 8 i.e. Refund Clause, the refund of Retainer Fee is not applicable in the following circumstances:-

“8.      The Company will not refund any of the total fees and shall be entitled to full payment if:-

1. Once the Fee Agreement is signed by the client and then the client does not wish to proceed any further to get his/ her case filed for any reason whatsoever.
2. The client does not cooperate in filing the case with Visa Office within 60 days of signing the Fee Agreement.

c to k)xxxx                      xxxxx                                       xxxxxx”

9.                Whereas the case of the complainant falls under these clauses, therefore, he will not be entitled to refund of professional fee. But apart from a sum of Rs. 30,000/- as professional fee taken on 2.10.2003, the Ops had also received a sum of Rs. 20,000/- vide receipt No. 5860 dated 14.10.2003 and Rs. 10,000/- vide receipt No. 4134 dated 0.10.2003, a sum of Rs. 32,000/- vide receipt No. 180 dated 27.11.2003 and a sum of Rs. 40,000/- vide receipt No. 181 dated 27.11.2003, a sum of Rs. 43,200/- was sent by the complainant directly to the Canadian High Commission and during the course of arguments, it was admitted that this amount alongwith interest has been received by the complainant from the Canadian High Commission after she had withdrawn her application from Govt. of Canada vide draft dated 9.6.2013 of Rs. 70,422.54p Ex. C-18. She also paid a draft of 700 Canadian Dollar, which was received to file a Law Suit when the case of the complainant was rejected on account of change of Law by the Canadian Government and that draft was prepared in the name of GSBC and ultimately, it was to be sent to that agency and that Law Suit was also filed by the said Agency. It was filed before the Federal Court i.e. application for relief and judicial review and notice in that application was given. The matter was pending and before decision, the complainant on 10.1.2013 had withdrawn her case for Permanent Resident (PR), therefore, when the application for relief and judicial review was filed on behalf of the complainant, certainly, the amount 700 Canadian Dollar were paid to that agency and only then the application was filed for judicial review and in case the complainant has availed the services for filing her application for judicial review then she is not entitled to get back that amount. A sum of 175 Canadian Dollar were paid for assessment and evaluation of her degree by CCTT. Otherwise the complainant has not placed on the record the said receipt vide which 175 Canadian Dollar were paid by the complainant to the Ops. The complainant has placed on the record the receipts Exs. C-11 to C-15 vide which a sum of Rs. 1,32,000/- has been paid to the Ops. It has been stated by the Ops that a sum of 1600 Canadian Dollar i.e. Rs. 72,000/- was to be paid to the GSBC for processing their application. It was never stated by the Ops that this amount was to be paid to GSBC, otherwise, it would have been paid in the name of GSBC. However, no document has been placed on the record by the Ops vide which a sum of Rs. 72,000/- equal to 1600 Canadian Dollar was paid to GSBC. Apart from the professional fee, the Ops have illegally retained the other amount. The application of the complainant has been rejected on account of change in Law and in case the reason to reject the application of the complainant was as such then the complainant was not entitled for the refund of the professional fee, which was agreed between the complainant and the Ops. Therefore, she will be entitled to the refund of Rs. 1,02,000/- only. The learned District Forum has not made it clear how the complainant will be entitled to the refund of professional fee of Rs. 30,000/- when the application was duly submitted by the Ops to the Canadian High Commission and it was rejected not on account of their fault but on account of change in law and similarly, a sum of Rs. 700 Canadian Dollar will not be entitlement of the complainant when on her advice application for judicial review was filed before the Federal Court of Canada, therefore, the order so passed by the learned District Forum requires modification.

10.              In view of the above discussion, the appeal is partly accepted and the order of the District Forum is modified. Instead of Rs. 1,32,000/- and Canadian Dollars 875, the complainant will be entitled to Rs. 1,02,000/-. Other part of the order will be remain as it is. No order as to costs.

11.              The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 25,000/- in compliance with the order dated 28.4.2014. These amounts with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

12.              Remaining amount shall be paid by the appellants to the respondent within 30 days from the receipt of the copy of the order.

13.              The arguments in this appeal were heard on 23.2.2015 and the order was reserved. Now 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.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                                          (Jasbir Singh Gill)

                                                                                                    Member

 

February 24, 2015.                                                (Harcharan Singh Guram)

as                                                                                                Member