DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Sh. Davender Prashad Singh son of Sh. Dwarika Prashad resident of House No.10-11, New Sainik Vihar Jandli, Model Town, Ambala City (Haryana).

                                                                                    ---Complainant

V E R S U S

1]       M/s Destiny Overseas Pvt. Ltd., through its Managing Director Dr. V. Mattu, 2^nd Floor, Kamadhenu Complex, Somagiguda, Hyderabad, Andhra Pradesh-500082.

2]       Sh. Satindfer Singh Soni, M/s Destiny Overseas Pvt. Ltd., SCO No.61-62-63, Sector 9-D, Chandigarh.

IInd Address:-

Satinder Singh Soni, Oztina Education Consultant, 21-E Estate, Near Dyal Nagh Gurdwara, Ambala Cantt-133001.

---Opposite Parties

BEFORE:            MR. LAKSHMAN SHARMA                    PRESIDENT

                        SH.JASWINDER SINGH SIDHU            MEMBER

Argued By:      Sh. KasturiLal, , Advocate for the complainant.

OP No.1 already exparte.

None for OP No.2.

PER JASWINDER SINGH SIDHU, MEMBER

1.             Complainant (hereinafter referred to as CC for short) has filed the present complaint against the Opposite Parties (hereinafter referred to as OPs for short), on the grounds that the CC was persuaded through its representative (OP No.2) and was offered immigration to Australia. The CC on being convinced that the OP’s organization would arrange a suitable employer from Australia to facilitate the CC and his family for Australian Immigration without the requirement of passing ILETS. In consideration of the said services, a demand of Australia Dollars 10,000 as service charges and Rs.15,000/- for assessment fee along with Australian Dollars 300 in favour of “Recognition Australian” were also charged for finding a suitable nomination/sponsor  in Australia. The said amount of Rs.15,000/- were duly received by the OPs and issued receipt No.0179 dated 9.8.2006. The CC further paid Australian Dollars 300 through a demand draft bearing No. FDB16012243-06 dated 30.10.2006. A copy of the same is annexed as Annexure C-2. The CC also paid Rs.3,50,000/- and the same was deposited with OP No.2 under acknowledgement dated 19.12.2006.

                The CC had furnished all requisite documents like academic certificates, work experience and had submitted the pre-immigration skills assessment application dated 7.11.2006 (Annexure C-4). Thereafter, the CC made repeated visits to the OPs to know the status of his case. Meanwhile for the purpose of visa processing, a medical report was demanded which the CC submitted vide receipt No.2270 and 2910 both dated 11.12.2008 (Annexures C-5 and C-6 respectively). The CC had to incur approximately Rs.3,500/- for the said test. Thereafter, the CC repeatedly visited OP No.2 to know the status of his case. However, in the meanwhile, OP No.2 left the service of OP No.1 and started his own concern under the name and style of “ONTINA EDUCATION CONSULTANT”, 21E, ESTATE at Ambala Cantt. Haryana. The CC finding himself stuck served legal notice. The same are appended as Annexures C-7 to C-10. On not receiving any reply to the said notice, the CC has filed the present complaint, aggrieved of the actions of the OPs in failing to provide proper services. The CC has demanded refund of Rs.3,78,300/- along with interest @15% per annum. The CC has further claimed Rs.50,000/- on account of mental pain, suffering and harassment and Rs.20,000/- against miscellaneous expenses.

2.              On being properly served, OP No.1 failed to make an appearance and hence, was proceeded against exparte vide order dated 26.4.2011. Whereas, OPNo.2 has contested the claim of the CC and has filed its version wherein has raised a preliminary objection to the fact that he only being the employee of OP No.1 and OP No.1 being a shareholder in the company and one of the Board of Directors as well as the Managing Director of OP No.1 a registered company established under Companies Act, 1956. Hence, the main grievance of the CC being against OP No.1, OP No.2 claims the dismissal of the present complaint against himself.

                On merits, OP No.2 has admitted to the facts of Para 1 of the present complaint but however, has denied himself being the authorized representative of OP No.1 as of today. However, the fact that OP No.2 was the employee of OP o.1 is admitted and hence cannot  be held vicariously liable for the acts of OP No.1.

                OP No.2 has also contested the fact with regard to the waiver of IELTS examination by the CC on the contrary has claimed that the failure on the part of the CC to furnish an IELTS certificate, his application for sponsorship of an employer from Australia could not be processed.

                OP No.2 has also claimed that all the money paid by the CC had been duly deposited into the account of OP No.1 and OP No.2 in his personal capacity was not liable for any claims of the CC. As the monies being received by OP No.1 at its end was liable to provide all the services desired and demanded by the CC. OP No.2 acting responsibly had provided with all the receipts of monies received by him.

                OP No.2 who is currently not in the employment of OP No.1 and is self employed, claims to be not liable for the acts of omission and commission of OP No.1 as on date. There is no connection between him and OP No.1. OP no.2 has further stated that he has not committed any fraud, criminal offence of cheating nor is deficient in providing services as he is neither the owner nor a shareholder of OP No.1. OP No.2 further claims that he has helped  the cause of CC by bringing on record the constitution and memorandum of article of OP No.1 from where the actual identity of OP No.1 is revealed and established.

                OP No.2 has prayed for dismissal of the present complaint against itself on the above grounds.

3.              Parties led their respective evidences.

4.              Having gone through the entire complaint, version of the OPs, the evidence of the parties and with the able assistance of the ld. Counsel for the parties, we have come to the following conclusions:-

[i]     As OP-1 is already ex-parte and none made appearance on behalf of OP-2, the present complaint is decided on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date) in absence of OP-2.

[ii]    The allegations of the CC as per his complaint go un rebutted against OP-1, who happens to be the principal company, with whom the CC had deposited the money and had engaged to render services for immigration to Australia. Though OP-2 who has appeared in the present complaint has denied any deficiency on his own part, but, however, has proved the case of the CC by admitting that he had received money from the CC on behalf of the OP-1. OP-2 has claimed that he was an employee of OP-1 and all the services demanded by the CC were to be provided by OP-1 and not OP-2 in his personal capacity. It is also mentioned that OP-2 is no more in the employment of OP-1 and in no manner liable for the claim of the CC.

[iii]   In the present circumstances we believe that the principal of vicarious liability is unidirectional i.e. the company can be held liable for all the acts of omission & commission of its employees and not vice-versa i.e. to say the employees of the company cannot be held liable in their personal capacity for the acts of the company. In the present circumstances, we feel as the money has been deposited in the account of the OP-1 by OP-2, and even the certificate (Annex.C-3) wherein it is clearly mentioned that the amount of Rs.3,50,000/- is refundable if the organization is unable to get a suitable employer from Australia to sponsor the CC for Employer Nomination Scheme, proves the bonafide credentials of OP-2, who has acted true to his responsibilities.

[iv]   As OP-2 is no more in the employment of OP-1, he is also unable to explain the reason with regard to the qualification of waiver of IELTS examination for the CC to qualify for immigration to Australia as of today. This fact can only be proved from the record of OP-1, who has failed to appear and contest the claim of the CC, though properly served.  In the light of the above observations, we feel that the main grievance of the CC is against OP-1 and it is only OP-1, who needs to be held liable for deficiency in service as per the allegations of the CC.

5.              Hence, in the light of above facts, the present complaint is allowed against OP-1 and OP-1 is directed to refund Rs.3,78,300/- and pay interest @9% p.a. from the different dates of deposit of different amounts. OP-1 is further saddled with Rs.7,000/- as litigation costs.

6.              The above said order shall be complied within 30 days of its receipt; thereafter OP-1 shall be liable for an interest @18% per annum on the aforesaid amount, except for litigation expenses.  

7.                 Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

14^th November 2011.                                                                   

Sd/-            

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER