DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.:876 of 2009 Date of Inst:22.06.2009 Date of Decision:30.09.2010 Deepak Kumar Raheja s/o Dr.S.C.Raheja, Raheja Hospital, Vill. & P.O. Bhuna, District Fatehabad (Haryana). ---Complainant V E R S U S 1. Mr. Sunil K.Jaggi, Auscan Education and Immigration, Consultant Pvt.Ltd., SCO No.11 Above Tejees, Sector 17-B, Chandigarh-160017. 2. Auscan Education and Immigration, Consultant Pvt.Ltd., SCO No.11 Above Tejees, Sector 17-B, Chandigarh-160017. ---Opposite Parties QUORUM SHRI LAKSHMAN SHARMA PRESIDENT SMT.MADHU MUTNEJA MEMBER PRESENT: Sh.M.L.Batra, Adv. for complainant Sh.Ayush Arora, Adv. Proxy counsel for OP. --- PER LAKSHMAN SHARMA, PRESIDENT Sh.Deepak Kumar Raheja has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to :- i) Refund Rs.2 lacs as expenses along with interest @ 18% from 02.01.2007 i.e. the date of agreement till its realization. ii) Pay Rs.1,00,000/- as compensation and punitive damages. iii) Pay Rs.15000/- as litigation expenses. 2. In brief, the case of the complainant is that in the year 2007, he was employed with Aviva Life Insurance co. and was posted as Financial Planning Consultant. He wanted to migrate to Australia and to work there. OPs are professional service providers. They provide service with respect to preparation and submissions of immigration applications. So the complainant approached them and hired their services for submissions of his application for migration to Australia. OPs were required to submit his application for migration to Australia after comprehensively assessing his qualifications and experience. An agreement to this effect was executed between them on 02.01.2007. Complainant submitted all the documents concerning his qualifications and experience. After checking the said documents and assessing his qualifications and experience, OPs submitted his application for migration to Australia under Skilled Independent Regional (Provisional) Visa Scheme Called “SIR”. According to the complainant, assessment of his qualifications and experience was also got done from “VETASSESS”, an agency to assess the qualifications and advise about the eligibility. As per report of this agency also, the complainant was found eligible to migrate under Marketing Specialist. On the basis of declaration made by the complainant to migrate and live in South Australia for at least two years, his sponsorship for the said VISA “SIR” was also approved by Government of South Australia (Annexure P-3). The prescribed application form duly filled in by the complainant was checked and forwarded to the concerned department by OPs vide letter dated 24.04.2007(Annexure P-3). It has further been pleaded by the complainant that Ms.Sandra Shephard, an officer of Department of Immigration and Citizenship of Australia Government vide letter dated 17.12.2007 (Annexure P-4) informed OPs that the complainant was not eligible under the Skilled Independent Regional (Provisional) Visa Scheme Called “SIR”. On enquiries, the complainant was informed by OPs that official of Embassy had picked up wrong category of profession. The complainant was assured that the matter will be taken up with the concerned Embassy by exercise of the ‘Review Rights”. The complainant made repeated visits to the office to know about the progress under “Review Rights” but OPs failed to give any positive response. Subsequently, OPs refunded a sum of Rs.20000/- through cheque dated 30.09.2008 against the total expenses of Rs.2 lacs. Ultimately, the complainant served a legal notice dated 31.03.2009 upon OPs requesting to refund Rs.2 lacs along with interest but to no effect. In these circumstances, the present complaint was filed seeking the reliefs mentioned above. 3. In the reply filed by the OPs, it has been pleaded that the complainant represented that he has been serving as Insurance Adviser with LIC of India and as Financial Planning Consultant with Aviva Life Insurance Co. Pvt. Ltd. The complainant had submitted an experience certificate dated 08.08.2007 said to be issued by LIC of India besides giving a statutory declaration dated 16.05.2007 evidencing his working as Financial Planning Consultant with Aviva Life Insurance Co. Pvt. Ltd. According to the OPs, on processing the claim it was found that duties being performed by the complainant have direct and more nexus with the duties attached to category of insurance agent and not that of Financial Planning Adviser for which post the complainant had given his experience certificate. It has further been pleaded that the category of Financial Planning Adviser is included in the skill in Occupational List (SOL), however, the category of insurance agent is under category 59993-11 which is not included in SOL. Therefore, the claim of the complainant was rejected by the Department of Immigration, Australia. Ultimately, the complainant informed OPs that he is no more interested to apply afresh. Therefore, out of the total amount i.e. Rs.27,000/-, a sum of Rs.20000/- was refunded to the complainant vide cheque dated 30.09.2008 after retaining Rs.7000/- as per the terms and conditions of the agreement. In these circumstances, according to OPs, there is no deficiency in service on its part and the complaint deserves dismissal. 4. We have heard the learned counsel for the complainant and proxy counsel for the OPs and have gone through the entire record including documents, annexures, affidavits etc. 5. Annexure P-1 is the “Contract of Engagement and Retainer Agreement” executed by the OPs with the complainant. It enumerates the duties of the client (complainant) as well as of the “firm” (OPs) which reads as under:- DUTIES OF THE CLIENT 1. To affirm that neither he nor any other family members included in the said application will present at any false and misleading information or document to either the firm or the Australian Government. 2. To confirm that neither he nor other family members included in the said application will present fraudulently obtained or forged documents to either the "firm" or the Australian Government. 3. To forth with advice the "Firm" of any communications received from any source. 4. To corroborate that he is responsible to ensure the co-peration of his relatives as needed. And for so doing, this document shall constitute good and sufficient authority and declaration. 5. To follow the instruction given by the "Firm's representative in the strictest manner. 6. To pay to the Australian High Commission visa fees and faithfully pay the agreed fees in Indian Rupees at the appropriate exchange rate on the day of payment for such above services to the "Firm" in the following manner. Xxxxx The "Firm" will not be responsible for any kind of refund in case of any voidance of "Duties of the Client" listed in the contract or due to medical issues or fraudulent document submitted or in case of any criminal case lodged against any member of client's family. 7. Additional services are requested, these will be charged appropriately by the Firm. DUTIES OF THE FIRM 1. Assistance in the preparation and submission including correspondence. 2. Comprehensive assessment and counseling of the applicant. 3. Submit the completed application and supporting documentation along with the formal submission on the Firm's covering letter. 4. Liaisons between Australian High Commission and the other appropriate Australian Government Agencies, the applicants) and his relative(s). 5. Appraise and prepare the applicant for the interview. 6. Monitoring of the case progress through to the completion. 7. Whilst in Australia assist in applying for Medicare Card, opening of Bank accounts and familiarize with the Australian way of life. 6. From the perusal of the said agreement, it is evident that it was the duty of the OPs to comprehensively assess the qualifications and experience of the complainant on the basis of documents submitted by him and to advise as to whether he fulfills the requirements of getting the required visa or not. Admittedly, the complainant had submitted documents concerning his qualifications and experience. The OPs were required to assess the eligibility of the complainant to get the desired visa (i.e. Skilled Independent Regional (Provisional) Visa) on the basis of the said documents in the light of : i) Migration Act. ii) Migration regulations. iii) The procedure advice manual. iv) The Australian Standard Clarifications of Occupations (ASCO). v) The information contained in and the documentation supplied with this application for migration to Australia. as has been done by Mr.Sandra Shepherd in his order (Annexure P-4). 7. The OPs are not absolved of their duties to comprehensively assess the eligibility of the complainant to get visa independently on the basis of the documents furnished by him. Merely by seeking an opinion from Mr.Sue Hamilton, Manager Qualification Unit-“VETASSSESS” (with whom the complainant has no concern) in respect of confirming the eligibility of the complainant for the grant of visa, they cannot claim to have discharged their duty of correctly assessing the eligibility of the complainant for grant of visa. Annexure P-4 is the decision on the application submitted by the complainant for migration. The relevant portion of the said decision reads as under:- “As the applicant does not meet the requirements of subclass 495, I, therefore, refuse to grant a skilled-Independent Regional (Provisional) (Class UX) Visa to the applicant”. 8. From the bare perusal of the said order, it is apparent that the VISA was declined because the complainant was not having sufficient experience in the required stream and did not fulfill the requirements of clauses 495.211(1) or 495.211(2). 9. None of the documents furnished by the complainant has been found to be false or misleading. Rather the above said decision has been given on the basis of the evaluation of the duties and responsibilities of the job done by the complainant as mentioned in the documents submitted by him. So the argument advanced by the learned counsel for the OP to the effect that the complainant had furnished false information has no force. 10. As per the terms and conditions of the agreement (Ex.C-1), it was the duty of the OP to comprehensively assess the qualifications and experience of the complainant. From the above discussion, it is apparent that the OPs have failed to comprehensively assess the qualifications and experience of the complainant about his eligibility for Skilled Independent Regional (Provisional) Visa at the time of submission of his application. It amounts to deficiency in service. Further more, as per the rules only the sponsor could apply to the “Migration Review Tribunal”. For review of the decision, OPs failed to file any application for the review against the order of Mr.Sandra Shepherd . It also amounts to deficiency in service. 11. It has been pleaded by the complainant he spent a sum of Rs.2,50,00/- for the purposes of getting the visa. However, from the documents placed on record, payment of only Rs.1,13,845/- to OPs is proved. So the complainant is entitled to the refund of the above said amount. In addition to it, the complainant is entitled to a sum of Rs.50,000/- as compensation and Rs.5000/- as litigation expenses. 12. In view of the above findings, this complaint is allowed with a direction to OPs to pay a sum of Rs.1,13,845/- to the complainant. OPs are also directed to pay a sum of Rs.50,000/- to the complainant as compensation for mental agony and harassment besides Rs.5000/- as costs of litigation. 13. This order be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which the OPs shall be liable to refund Rs.1,63, 845/- to the complainant along with penal interest @ 18% p.a. from the date of filing of the complaint i.e. 22.06.2009 till its realization besides costs of litigation. 14. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 30.09.2010 sd/- (LAKSHMAN SHARMA) PRESIDENT cm sd/- (MADHU MUTNEJA) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
