Date of Filing:10/11/2017

Date of Order:21/05/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 21^st DAY OF MAY 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.2945/2017

V/s

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT

1.  This is the complaint filed by the complainant against the Opposite Party(hereinafter referred to as O.P) under Section 12 of the Consumer Protection Act, 1986 praying this Forum to direct the O.P to pay Rs.40,250/- and to pay compensation of Rs.2,000/-.

2.      The brief facts of the complainant’s case are that, he took the services of the O.P in getting the immigration to be obtained to relocate himself to Canada by knowing that the O.P are doing the said services over internet. When he contacted them, one Hima belonging to O.P’s organization contacted him through mobile from Vizag. IER needs to be filled that shows that the point that the complainant need to score in IELTS. He filed the IER and it came to his notice that he has to score 7 points.  The O.P kept on calling him and convinced him to make payment of Rs.40,250/- which includes fee for the services and the taxes and he was informed the terms and conditions of the services offered and required for immigration at the time of receiving the payments. He trusted them. After one week, he received the legal terms and conditions from the O.P and was shocked to know that none of the conditions are in his favour. Hence he refused to put his signature to the said agreement. They ought to have informed the terms and conditions of the score i.e. required to be scored for processing the application for immigration before receiving the payments. No work was carried out in respect of processing his papers by the O.P. He then demanded O.P to repay the amount for which they wanted to convince him to go for Atlantic immigration pilot project. When he requested them to provide him the details of the project, they did not assist him, replied him and acted differently when he demanded the money paid by him to be repaid. When he approached National Consumer Forum the O.P came for settlement and agreed to repay 70% out of Rs.40,250/- which works out to be Rs.23,948/- and requested him to issue the prereceipt and the legal agreement stating that this is the full and final settlement of the claim for which he refused to do so. Inspite of repeated demands and requests, O.P has not refunded the amount which amounts to deficiency in service and unfair trade practice and hence prayed this Forum to allow the complaint as prayed.

3.   After receipt of the notice, O.P appeared before the Forum and filed its version stating that the complaint is not maintainable, there is no cause of action for the complaint and mere payment of amount will not give cause of action.  He has failed to demonstrate the deficiency in service.  This Forum has no territorial jurisdiction to entertain the complaint as the complainant has accepted the online agreement and further as per the said agreement, it is the courts at Hyderabad had jurisdiction to decide the case.  The complainant has suppressed the real facts and has played fraud on the court.

4.    It is further contended that the entire cause of action has arisen in the state of Telangana and no cause of action has taken place in Bengaluru. The O.P is always ready and willing to provide services as per the terms and conditions of the agreement. It has denied the allegation that he was not informed regarding terms and conditions before accepting the money. The complainant has meticulously gone through the terms and conditions of the agreement and then only has agreed for the payment. They have never given any job guarantee whereas, it is crystal clear from the website that there is no job guarantee provided by them but they only deal with the VISA service and theirs is not a placement or job consultancy service.   They agreed to pay 70% of the total amount, whereas, the complainant himself has dragged them to the Forum.  It has denied that they insisted the complainant to execute the agreement before receiving the amount. The complainant himself has breached the conditions of the agreement. It has provided the expert advise to the complainant and has paid salaries to the employees. Hence prayed the Forum to dismiss the complaint by imposing cost on the complainant.

5.      We have carefully gone through the entire evidence and documents produced by the complainant. After hearing their counsel, the following points arise for our consideration:-

1) Whether this Forum has jurisdiction to entertain

    the complaint?

2)   Whether the complainant has proved

    deficiency in service on the part of the

    Opposite Party?

3)  Whether the complainant is entitled to

    the relief prayed for in the complaint?

6.     Our answers to the above points are:-

POINT 1): In the affirmative.

POINT 2): In the affirmative

POINT 3): In the affirmative

As per the final order.

REASONS

ON POINT No.1:-

7.   O.P has taken the contention that, since the online payment has been made and since impliedly the complainant has agreed for the terms and conditions, it is courts at Hyderabad has the territorial jurisdiction and hence the complaint filed before this Forum is not at all maintainable.  He has produced the copy of the agreement wherein there is a clause that the jurisdiction has been agreed upon to be the Hyderabad Courts. Whereas, the complainant has vehemently denied that he had executed any agreement. In fact it is in his complaint that he refused to affix his signature on the legal agreement sent by the O.P to him after receiving the entire amount, after going through the contents of the agreement it is entirely not helping him in anyway.

8.   Under the various decisions of the Hon’ble High Court and Supreme Court, and since cause of action has taken place in Bengaluru and Courts at Bengaluru also have jurisdiction to try this case.  The parties themselves cannot restrict the jurisdiction of the Courts which has been provided by the Civil Procedure Code. Hence the above contentions are not acceptable.  This Forum has also jurisdiction to decide the complaint. Hence we answer Point No.1 in the affirmative.

POINT No.2:

9.   The complainant and the O.P have reiterated the facts of the complaint and the version in their affidavit filed in lieu of evidence. It is admitted that the complainant has paid Rs.40,250/- to get the assistance for immigration and VISA to go to CANADA  in search of a job. It is the case of the complainant that the O.P did not disclose the condition that he has to take up IELTH exam and score 7 points and then only he will be eligible for applying for the same. It is his specific case that, before taking money from him, had they disclosed the same, he would have waited till the exam and its result and thereafter, would have taken the decision of applying for VISA and paying money to O.P. O.P though have stated that, it is an online transaction and it is within his knowledge the terms and conditions, nothing has been placed on record to show that they have informed earlier regarding the exam he has to take, the score he has to obtain, in order to process and apply for immigration and VISA. They have not at made any efforts to show before the Forum that in fact they have moved the authorities to process the application of the complainant for granting immigration and VISA facility.

10.   As per the email correspondences that have taken place between the parties to the proceedings, it can easily be said that O.P has agreed to refund 70% of the total amount i.e. Rs.23,948/- to which complainant has not at all agreed.  This itself clearly go to show that O.P has not at all processed the application of the complainant and has not taken any steps in that direction. Hence he is not entitle to retain any portion of the amount paid by the complainant. In view of this there is  deficiency in service and there is an unfair trade practice by the O.P.  Hence we answer Point No.2 in the affirmative.

POINT No.3:

11.   In this case complainant has made a claim for refund of Rs.40,250/- and also damages of Rs.2,000/-. Since the O.P has in the correspondence agreed to refund the amount of 70%, which the complainant refused to receive as he has paid Rs.40,250/-, and since we have held that there is deficiency in service and unfair trade practice by the O.P, complainant is entitle for Rs.40,250/- and also entitle to receive a sum of Rs.2,000/- towards physical and mental strain and Rs.2,000/- towards litigation expenses. Hence we answer Point No.3 in the affirmative and pass the following:

ORDER

1. The complaint is allowed with cost.

2. The OP i.e. Kansas Immigration Pvt. Ltd., represented by its authorized signatory is hereby directed to pay to the Complainant a sum of Rs.40,250/- along with interest at the rate of 12% per annum from 30.05.2017till the entire amount is paid.

3. Further O.Pis hereby directed to pay to the complainant a sum of Rs.2,000/- as damages towards mental and physical harassment and Rs.2,000/- towards cost of the litigation expenses.

4.     The O.P is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 21^stDay of MAY 2018)

MEMBER                        PRESIDENT

*RAK

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

CW-1: Kirit Kumar Lakshshimidas Lakhani - Complainant.

Copies of Documents produced on behalf of Complainant/s:

Annexure-1: Copy of the Bank Pass book.

Annexure-2: Copy of the online cash payment screenshot.

Annexure-3: Copy of the letter.

Annexure-4: Copy of the letter dt:25.9.2017 .

Annexure-5: Copy of the screenshot of delivery proof.

Annexure-6 & 7 : Copy of the letters (2 Nos.)

Annexure-8: Copy of the mail details.

Annexure-9: Copy of the Agreement of service. 

Annexure-10: Copy of the Internal evaluation report.

Annexure-11: Copy of the Full and Final settlement agreement.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: - Nil-

Copies of Documents produced on behalf of Opposite Party/s

Doc: No.1: Copy of Online terms and conditions.

Doc.No.2:Copy of CRM Terms and conditions.

Doc.No.3:Copy of mode of payment.

Doc.No.4:Copy of email Communication.

MEMBER                        PRESIDENT