STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,  DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

First Appeal No.  1002  of 2012                                                 

                                                      Date of institution  : 02.08.2012        

                                          Date of decision     :  22.01.2015 

M/s CAAN Wings Immigration Consultancy through Mrs. Diamond Sodhi, Program, Director, 329, New Jawahar Nagar, Jalandhar.

…….Appellant/opposite party

Versus

Kamaljit Singh son of Sh. Dharam Singh, resident of village Naura, Tehsil and District Shaheed Bhagat Singh Nagar,(Nawanshahar)

……Respondent/Complainant

First Appeal against the order dated 12.04.2012 of the District Consumer Disputes Redressal Forum, Jalandhar.

Quorum:- 

           Hon’ble Mr. Justice Gurdev Singh, President.

                        Shri Vinod Kumar Gupta, Member

Present:-

          For the appellant      : Sh. Aman Dhir, Advocate.

          For the respondent  : Sh. H.S.Dhandi, Advocate

VINOD KUMAR, GUPTA MEMBER :

                        This appeal has been preferred by the  appellant/opposite party ( in short "OP") against the order dated  12.04.2012 passed by District  Consumer Disputes Redressal Forum, Jalandhar (in short, "District Forum"), vide which the complaint filed by the respondent/complainant  was allowed and  opposite party was directed to refund Rs.65,000/-, out  of Rs.75,000/-;  which was deposited by complainant vide Ex.C-7, along with Rs.5,000/-,  as  compensation and litigation  costs. It was also mentioned in the order that the amount of Rs.10,000/- which  was deducted by opposite party as  processing fee is not to be refunded and further any fee/dollar which was deposited by complainant for processing application for immigration/Visa is also not be refunded.

2.                Brief facts of the case are that the respondent/complainant  filed the complaint under the Consumer Protection Act, 1986, against the OP on the averments  that he was ITI Diploma Holder of Diesel Mechanic, from Industrial Training Institute, Nawanshahr.  The OP had been publishing in the Daily Newspaper "Jag Bani" and other daily vernaculars and had been attracting the young people for going abroad in a legal manner and had been taking money on one pretext or the other after entering into  agreement. On the basis of advertisement in the newspapers, the complainant approached OP for going to Australia as Diesel Mechanic.  OP entered into an agreement with him on 16.11.2006 for procuring Visa under the category of "skill matching" and took attested copy of the passport from him. He was having 4-5 years experience in the Motor Mechanic trade as well as in Diesel Mechanic. It was further pleaded that on the basis of said agreement, OP received an amount of Rs.19,500/- from him,  vide receipt dated 16.11.2006. OP assured him that his immigration visa to Australia will be received within a period of 10-12 months positively.  He was asked by OP to deposit 300 Australian Dollars.   OP  asked  him  in the month of August  2007  to  deposit  Rs.28,500/-, which  was deposited  by  him  on 11.8.2007.   The  complainant   again  appeared  in   the  IELTS in June 2008 as validity of  the earlier  IELTS was only for two years.  OP advised the complainant  that he was required to show more funds for Canberra and accordingly  he made arrangements. He was assured that his immigration visa would be arranged with the same IELTS score. OP forwarded his application along with his documents in the year 2008 for processing his Visa.  He was asked by the OP to provide proof of his having liquid money worth Rs.4.5 Lacs. The Government of Australia raised objections to his application. In order to reply to the objections, he got his house re-evaluated  for Rs.7 Lakhs as per the advice of OP.  The complainant was also medically examined prior to submission of his file for the second time. The OP further asked him   to deposit a sum of  Rs.27,000/-, in the month of December 2008. He deposited the same on 26.12.2008, thereafter,  OP again asked him  to deposit Australian Dollars for which draft of said amount  was handed over to the OP. OP submitted his file to Australian Immigration Authorities in the month of February 2009. He was informed  that  the immigration authorities raised objection with regard to his  IELTS score whereas  OP was in full knowledge of the fact of  IELTS having been passed by him in the  year 2006 at the time of  entering into the agreement. He issued a notice to OP to supply  copy of the objections letter, sent by the Australian Embassy. But it failed to supply the same. In the month of April 2009, he was informed by OP that his application for immigration was rejected.  He made a request to the OP  to refund his amount, but  it  refused to do so.  In the complaint, he prayed for issuance of following directions to the opposite party:-

(i) to refund  the sum of Rs.75,000/-, along with interest @ 12% per annum from the date of deposit till its actual payment;

(ii) to refund of Rs.300+275 Australian Dollars i.e. Rs. 9,900/- + Rs. 9,034/-, deposited with Oppsoite party along with interest @12% per annum;

(iii) to pay interest on Rs.3,78,000/- @ 12% per annum till April, 2009;

(iv) to pay Rs.1,00,000/-, as compensation for  causing mental agony  and harassment.  

(v) to pay Rs. 10,000/-, spent on the IELTS in the year 2008; and

(vi) to pay Rs. 5,000/- as costs of proceedings.

3.               The complaint was contested by OP by filing written reply. Preliminarily objections were taken that the complaint was not maintainable; the complainant was not having locus-standi  to file complaint ; the complaint was bad for mis-joinder and non-joinder of the necessary parties and that the complainant had not come to the District Forum with clean hands. On merit, it was admitted that the OP  was running immigration consultancy  in the name and style  of Caan Wings immigration consultancy and had some times been getting published advertisement in news-papers for information of the general public to avail its services for going abroad legally. It was denied if it had been attracting young people for going abroad. Rather whosoever was eligible could avail its services. It was further denied that it had been taking money on one pretext or the other against the agreement. It was admitted that the complainant  contacted OP for immigration to Australia and all the formalities were made clear to him for getting skill matching Visa. It was denied  that OP promised that  he was fulfilling  all the requirements for permanent immigration to Australia. However, it was not denied that as per the facts stated before it, the complainant was eligible to apply for the skill matching visa with the condition that he was required to pass the IELTS test. It was admitted that it had  entered into an agreement on 16.11.2006 for the required consultancy service for Skill Matching Visa with him.  The OP admitted that he paid Rs.19,500/- on 16.11.2006 as per the agreement and  it was informed to him  that  the process will take about 10-12 months' time in processing his file. He appeared in the IELTS test in June 2008. It was denied that he appeared for the reason that the validity was only for two years of IELTS. He appeared for the reason that he was not having the required bands in the IELTS and was required  to get the same for proper process. The application of the complainant was forwarded  for state sponsorship. It was made clear to him that all the financial and other documents were required to be prepared by him at his own cost. It was pleaded that the Government of Australia returned his application with some objections. It was further pleaded that his application  was not rejected by the Australian Embassy/Immigration Authorities  and that  his case was still under process with the Department of Immigration & Citizenship. Denying all other allegations made in the complaint, dismissal of the complaint was prayed for.

5.       Both the sides produced evidence before the District Forum, in support of their respective averments, which after going through the same and hearing learned counsel on their behalf,  allowed the complaint , vide aforesaid order.

6.     Aggrieved by this order, the OP has come up in appeal on the grounds  that the learned District Forum  has failed to appreciate the material  brought on record and District Forum has  erred in giving findings that there was deficiency in service on the part of  the OP as OP was aware that complainant  was not possessing the required numbers of bands but still OP asked  him to deposit the amount on different dates. It was submitted that the complainant  was never told by OP that 5 band in IELTS was enough for Skill Matching Visa. Rather the complainant was apprised that his application cannot be processed because he failed to score requisite bands, but he  was adamant to go to Australia. Accordingly,  he gave an undertaking that he will work hard and will clear the IELTS and if he was unable to score the requisite score then, OP will not be held responsible.  Learned District Forum  has come to the conclusion on the basis of Newspaper cuttings (Ex.C2 to Ex.C4)  that on the basis of such advertisement, young persons got attracted.  But the Newspaper clippings were of November and December 2008, whereas, the complainant approached OP  in the month of November 2006. So, the question of allurement did not arise at all. Learned District Forum held that OP was aware that the complainant’s case could not be processed due to low scores in IELTS, even then it charged the professional fee. Learned District Forum has ignored that in an agreement signed on 16.11.2006, it was clearly mentioned that Rs.28,500/- would be charged once positive skill assessment in favour of applicant was received. If the OP was alluring the youths, then it would have charged the complainant for skill assessment when he  applied in March,2006. When complainant received positive skill assessment in the month of July, 2007. It was  only then that he was asked to deposit  the fee amounting to Rs.28,500/-.  Acceptance of the appeal and setting aside the impugned order was prayed for.

7.      We have heard learned counsel for both the sides and have carefully gone through the records of the case.

8.      As per agreement dated 16.11.2006 Ex.C-7 for procuring visa under category skill  matching visa, the complainant paid Rs.75,000/- on different dates i.e. Rs.19,500/- on 16.11.2006, Ex.C-9, Rs.28,500/- on 11.08.2007 Ex.C-10 and Rs. 27,000/- on 26.12.2008, Ex.C-16. The complainant   appeared in the IELTS examination in the year 2006 and secured 5 bands.  He again appeared in IELTS examination in the year 2008 (Ex. C-11) to secure more band in the IELTS. But, unfortunately, he again secured 5 Bands.  As a result of this, his application for procuring visa to Australia Immigration Authority was delayed and could not be submitted by the OP to the concerned authority in Australia.  We have perused the agreement  dated 16.11.2006(Ex.C7). The relevant portion reads as under:-

     "CAAN Wings agrees to refund the total amount of professional fee after deducting Rs.10,000/- as the service and administrative charges, if the client's approval is not obtained from Australia subject to the following  restrictions.

"CAAN Wings will not refund the professional fee charged if:

(i)   The applicant does not co-operate in initiating the process for skilled Migrant Visa for Australia within 45 days of signing the Agreement. The agreement will stand null and void and the  applicant will have no right of refund for any amount paid to CAAN Wings towards their professional fee in such an event;

ii) Once the applicant signs the fee agreement and subsequently the applicant does not wish to proceed any  further for any  reason whatsoever."

The complainant gave declaration on 16.11.2006,(EX.O-3), in which, it was mentioned that total claimed points 130,  and qualifying points needed 120. On the basis of that the OP submitted his application for further process. In para 12 of the complaint, the complainant admitted that the OP submitted his file to Australia Immigration Authority in the year 2009. The complainant placed on record Ex. C-2 to C-4 newspaper clippings, as evidence which were for the year 2008, whereas, complainant had approached the OP in the year 2006. So, these are not applicable. In para 5 of the complaint, the complainant alleged that the OP had promised that he was going to get the immigration visa to Australia within a span of 10-12 months, positively. He was asked by the OP to deposit 300 Australian dollars, which was deposited by him. Ms. M/s Diamond Sodhi, Program Director, in para 21 of her affidavit  Ex. O-A, deposed that the application of the complainant was not rejected by the Australian Embassy and Immigration Authority and his case was still pending under process with the Department of Immigration Citizenship. The complainant received the letter dated 23.07.2007 (Ex.O-7) from the Australian Government, Department of Employment and work place Relations, in which it was mentioned that the assessment was completed taking all information into account and he was successful. OP sent letter dated 21.11.2008, Ex. O-8, letter dated 20.12.2008 Ex.O-9 and        letter dated         08.05.2009 Ex.O-10, in which the OP demanded the documents from the complainant. The complainant failed to submit those documents. The OP placed on record writing dated 11.05.2009, as per O-11 in which the complainant had given the undertaking that if he was not able to clear the IELTS, then the OP would not be responsible for any lapse. OP even helped the complainant by imparting free coaching to secure the required bands required for applying with the Department of Immigration and Citizenship.

9.                The complainant received the positive skill assessment letter  from  Australian Government (Department of Employment and workplace) in  the Month of July 2007. After that, he deposited the fees amounting to Rs. 28,500/- on 11.08.2007 (Ex. C-10), as per agreement. Therefore, considering the totality of the case, the complainant  himself was responsible for the delay. The duty of the OP was to assess the eligibility criteria  of the complainant and then  to submit his application to the concerned Authorities in Australia. He fulfilled the criteria as his aggregate marks came to 130  against the eligible marks of 120.  Accordingly, he was declared successful by the Australian Government (Department of Employment & Workplace). He was asked to submit the documents & his application is still pending for want of documents. Therefore, what was the duty of the OP, was  performed by it. The OP claimed the professional fees, as agreed and other dues were deposited by it to the concerned Australian Authority.The learned District Forum allowed the complaint on the ground that the OP was held  responsible  for not telling the persons that he was not eligible for applying Visa. But the learned District Forum did not properly appreciate the facts  and evidence brought on record. So, the findings recorded by the District Forum to the contrary  cannot be sustained. Therefore, no deficiency in service on the part of OP is proved.

10.                In view of our above discussions, the appeal of appellant/OP is accepted and the impugned order of the District Forum is set-aside. Consequently, the complaint of the respondent/complainant is dismissed. No order as to costs.

11.    The sum of Rs.25,000/- was deposited at the time of filing of the appeal on 02.08.2012 and another sum of  Rs. 50,000/-  was deposited on 5.9.2012 as per directions of this Commission dated 13.08.2012. These  amounts , along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellant/ OP by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.

12.    The arguments in this case were heard on 09.12.2014 and the order was reserved.  Now, the order be communicated to the parties.

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

                                                          (JUSTICE GURDEV SINGH)

                                                                          PRESIDENT

                                                            (VINOD KUMAR GUPTA)

Janurary  22, 2015                                         MEMBER

RK 2