BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

Annu Batra w/o Vikas Vinayak R/o 694, Sector-4, Panchkula, Haryana-134112.

                                                                 ……Complainant

Versus

M/s Opulentus Overseas Careers Pvt. Ltd. Jubliee Square, 2^nd Floor, Plot No.1128, Road No.36, Jubilee Hills, Hyderabad, Telangana-500033.

…….Opposite Party

COMPLAINT UNDER SEC. 35 OF THE CONSUMER PROTECTION ACT, 2019.

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

For the Parties:   Sh. Gurminder Singh, Advocate for complainant.    

Ms. Mamta Rani, Advocate for OP.

ORDER

(Sh. Satpal, President)

1.             The brief facts of the present complaint are that the complainant wished to enter into an agreement of service with OP for the purpose of Canada Federal Skilled Worker. In this regards to avail the services payment of Rs.82,600/- was made online in the bank account on 20.08.2018. After payment of the required amount an assessment was conducted by the OP to check the eligibility of the complainant. At the orientation call conducted by the OP, the complainant made clear that documents and certificate available with her. It is stated that the job certificate which the complainant could produce and the same was agreed by the OP. Being dis-satisfied at the very early stage no services were initiated by the OP, the complainant wished to withdraw/stop the services. At this time no paper work or document was prepared or processed by the OP. On 18.09.2018, a request for refund of the contractual amount was made and the same was accepted by the OP and it was assured that the refund will be initiated within 90 days. It was stated on the intranet service that the usual process time is 90 days and she will receive the final communication before 17.12.2018. After that the OP had not initiated any refund as requested and also stopped the intranet and all other services. As of now the OP has neither refunded the contractual amount nor any services have been provided. A number of times attempt was made to contact the OP on different modes including emails, telephone calls etc. but to no avail. The complainant has served a legal notice upon the OP on 15.04.2019 but all in vain. Due to the above said act and conduct on the part of the OPs, the complainant has suffered mental and physical agony, financial loss and harassment. Hence, the present complaint.  

2.             Upon notice, OP appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless and false; no cause of action; no territorial jurisdiction. On merits, it is stated that OP is a company incorporated under Companies Act, having its registered office at 2^nd Floor, H.No.8-2-293/A/1128, Jubilee Square, Plot No. 1128, Road No.36, Jubilee Hills, Hyderabad-500033. It is stated that the complainant had voluntarily approached the OP during the month of August, 2018 with an intention to migrate to the country of Canada under Federal Skilled Worker category. The OP being transparent in their dealing, initially suggested the complainant to take an Initial Review Report(IRR) to ascertain her eligibility before registering for their services. Accordingly, the complainant had requested the OP to generate an Initial Review Report (IRR) for Canada Federal Skilled Worker Visa for which she paid a small non-refundable fee Rs.1,180/- on 03.08.2019. Thereafter, the IRR for Canada Federal Skilled Worker for generated on 14.08.2018 specifying the complainant’s nominated occupation “Retail and wholesale trade managers”, wherein the complainant’s profile was qualified, subject to the scoring of required bands in IELTS. Being satisfied with her IRR and after deliberating over 15-20 days and paid INR 70,000/- on 20.08.2018 after huge discount and accepted online agreement from I.P.Address: 106:209:194:94. On 03.09.2018 orientation cum introduction call of the complainant and whole process was explained to her. After completing the orientation call, a customized checklist was shared with her. On 05.09.2018 after getting the customized checklist the complainant informed the OP that she won’t be able to get referral letter for past 6 years experience and she was guided on this. On 06.09.2018 she was informed about express entry but on 06.09.2018, complainant informed that she will not be able to get even a statutory declaration and the kind of documentation that is required is absolutely not feasible for her to arrange since both her company’s are closed now. On 07.09.2018 all her documents which were as per standard were approved and she was guided further for what is to be done for the rejected documents. She was further guided that if she cannot arrange documents then her spouse can sit for IELTS and on doing this her score will increase but on 12.09.2018 the complainant raised a refund and stopped the proceedings further citing her reason for withdrawal is personal reason. It is stated that on 17.01.2019 the refund reply was dispatched to the complainant and was informed that she was not eligible for refund as per clause 4, clause 23, clause 50(a) (b) and clause 55 of the online service agreement. So, there is no deficiency in service and unfair trade of practice on the part of OP and prayed for dismissal of the present complaint.

3.             To prove her case, the learned counsel for the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-9 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP has tendered affidavit Annexure R-A alongwith document Annexure R-1 to R-10 and closed the evidence.

4.             We have heard learned counsels for the complainant as well as OP and have gone through the entire record available on record including written arguments/written synopsis has been filed by both the learned counsels for the parties, minutely and carefully.

5.             It is evident that the complainant intended to obtain the visa for Canada under the category of Federal Skilled Worker and in this direction, admittedly, she deposited a sum of Rs.1,180/- with the OP as per acknowledgment receipt dated 03.08.2018(Annexure C-4) for the preparation of her Initial Review Report, which was prepared by Seasoned Research Analyst on 14.08.2018 on the basis of age, qualification, occupation and work experience of the complainant as claimed by the OPs. Based on Initial Review Report, the complainant was nominated for occupation of “Retail and wholesale Trade Manager”. The complainant has no grievances with regard to the aforementioned payment of Rs.1180/-, which was made for the preparation of initial review report. The complainant has the grievances with regard to the another payment of Rs. 82,600/-, which was made by her online in the bank account of the OPs on 20.08.2019 for availing the service of the OP in connection with the grant of visa for Canada under the category of Canada Federal Skilled Worker.  The complainant has sought the refund of aforementioned sum amounting to Rs.82,600/- on the ground that she was misguided by the OP as to the fulfillment of requirements as well as the submission of documents pertaining to the obtaining visa for Canada under the category of Federal Skilled Worker. The request of the complainant for the refund of aforementioned amount was rejected by the OP vide its letter dated 17.01.2019 (Annexure R-10(colly)) on the ground that the complainant was not entitled to refund as per Clause 50 and 55 of the Online Agreement (Annexure R-3) accepted by her on 20.08.2019. The OP has contested the present complaint, apart from merits, by raising several preliminary objections:-

6.             The first objection is that the Consumer Commission lacks the territorial jurisdiction as per the terms and conditions of the Online Agreement (Annexure R-3) which was duly accepted by the complainant on 20.08.2018 from IP address:106:209:194:94. It is contended that as per the said online agreement dated 20.08.2018, the court at Hyderabad has the jurisdiction to adjudicate the controversy, if any, between the parties. It is contended that the jurisdiction of this Consumer Commission is exclusively barred as per Clause 70 of the said online agreement dated 20.08.2018 read with Section 9 of the Civil Procedure Code, 1908. Reliance has been placed upon the case law titled as M/s Swastik Gases P. Ltd Vs. Indian Oil Corporation Ltd.

                This objection is not tenable on following grounds:-

                First of all, it is pertinent to mention here that the online agreement when compared with an offline ordinary written agreement cannot be equated and placed on similar footing. The online agreement, when compared with an offline ordinary written agreement,is not entitled to the similar weight and treatment. In fact, a consumer while browsing and choosing the goods and services available on the website of the seller/service provider, has no real choice between the acceptance or the rejection of the terms and conditions of the online agreement as the terms and conditions of online agreement, generally, are found voluminous spanning over several pages with small alphabets/letters, which are difficult to peruse and read minutely by a man of ordinary prudence exercising due diligence. Apart from this, the terms and conditions of the online agreement are found very often, hidden, vague and confusing and thus, in the case of online agreement, a consumer is afforded no real choice between the acceptance or the rejection of the terms and conditions of the online agreement.

                 In our considered opinion, the complainant, in the present case, had no meaningful choice except to give her consent to the unfair, unreasonable and unconscionable terms and conditions of the online agreement.

7.             Secondly, we find no such recital pertaining to territorial jurisdiction in the information as made available by the OP on its website in the shape of Annexure C-7.  It is pertinent to mention here that the OP on its website had given several information, in the shape of Annexure C-7,  pertaining to Canada Federal Skilled Worker, on the basis of which, the complainant had approached the OP for availing the facility pertaining to visa under the said category.

8.             At this stage, it may be relevant to refer the case law i.e. Headway Finance & Investment Co. Ltd. Vs. Sarla Devi(1995(3) C.P.J. 110) as relied upon by the complainant, wherein it is held that a term in a agreement ousting the jurisdiction of a District Forum will clearly be hit by provisions of Section 23 and Section 28 of the Indian Contract Act, being opposed to public policy and being oppressive to a consumer defeating the specific provisions of Section 11 of the Consumer Protection Act. Thus, such clause as contained in the service agreement is against public policy.

                Furthermore, we may, safely, place reliance upon the order dated 03.04.2021 passed the Hon’ble State Commission while disposing of F.A. No.548 of 2016 titled as Yatra Online Private Limited (Yatra.com) Vs. Dr.Vikramjeet Aggarwal & Others wherein it made its apt observations in Para No.16, 18 & 19 of the said order, which for the sake of convenience and clarity, may be re-produced as under:-

16.     The Consumer fora is required to consider two major factors while extending its jurisdiction over e-commerce transactions/e-contracts through Internet. Firstly, big business houses opt Internet transactions  for business because of its cost effectiveness, secondly, it allows  the business  house and service  provider  to insulate  itself against the jurisdiction  in every  State except  the place where they are physically  located. It is troublesome and unreasonable to the consumer located at a distant place or in other jurisdiction who have much lesser bargaining power and resources to litigate with business houses. To achieve a balance between two diverse considerations, we would consider with adaptations to e-contracts. Then from the facts, it is to be determined, did business house on its own volition marketed and contracted with the other party and consequent cause of action arising out of its actions.

18.     The need to interpret a contract/e-contract would arise into situations, firstly if the adjudication authority is of the opinion that the gap is needed to be filed in order to interpret the contract and secondly if it believes that an ambiguity of Contra Proferentem is generally implied where contract appears to be ambiguous.

19.     The Hon’ble Supreme Court in “Trimex International FZE Ltd. Dubai versus Vedanta Aluminium Ltd”.(20100 3 SCC 1 has held that e-mails exchanged  between parties regarding mutual obligations constitute a contract. Section 16(3) of India Contract Act provides that where a person proposes certain terms to the other and other party accepts the same by clicking on it, it is bound by all terms so proposed by the proposer. In online transaction party is in a position to dominate the will of another party and such a transaction appears on the face of it to be unconscionable. In online purchasing, sales proposal and acceptances are made on computer sitting at their respective places. The jurisdiction at both the places is to be considered, so that consumer can easily approach the Consumer Forum/ State Commission under the C.P. Act. While dealing such issues under CP Act, the jurisdiction of the Fora is to be decided keeping in view where the cause of action arose. This is the only rational approach to the concept of jurisdiction over the transactions made through Internet.

9.             In view of the aforestated legal position, we agree that the online agreement being oppressive to the consumer is in the nature of defeating the specific provisions of the Consumer Protection Act and hence, the plea of the OP is hereby rejected.

                On merits, it has been alleged that there has been lapse on the part of the complainant herself as she had failed to provide the required referral letter for past six years experience. It is contended that the complainant was informed that in view of her inability to procure the past six years referral/experience letter, her spouse could sit for IELTS, which would increase her score. It is further contended that the request of the complainant for refund of her deposited amount was rejected being not maintainable as per Clause 4 and Clause 23 of the online agreement.

10.            From the rival contentions and submissions of the parties, it is found that the request for the refund of the sum amounting to Rs.82,600/- was made by the complainant as she was not able to procure the past six years referral letters. There is e-mail conversation in the shape of Annexure C-6(colly) between the parties in this regard. The e-mail dated 06.09.2018 at 18:07 sent by the complainant to OP clearly indicate that she was not aware of any such requirement of six years referral letters in lieu of her experience before initiating the process for obtaining the visa. The information provided by the OP on its website, in the shape of Annexure C-7, pertaining to Canada Federal Skilled Worker shows that one year experience was required for a skilled worker. The relevant part of Annexure C-7 is reproduced as under:-

          Canada PR Canada Immigration Points-based Assessment

            The applicant must attain a minimum pass mark of 67. Applicants are assessed on        following factors:-

            Age

            Education

            Work experience

            Language ability

            Arranged employment

            Adaptability

            Sign up with us and know if your score the required points.

            To be eligible to apply for the Canada Immigration Canada PR Federal Skilled Worker     visa, the applicant:-

            a.         -

            b.         -

3. Must be a skilled worker who has at least one year of continuous full-time paid work experience or the equivalent in part-time continuous employment in one or more of the occupations listed.

11.            The complainant believing on the aforesaid information as complete and genuine proceeded further by way of depositing an amount of Rs.82,600/- in question in the account of the OPs. It is not the case of OP that the information pertaining to Canada Federal Skilled Worker as allegedly provided by it in the shape of Annexure C-7 was not made available by it on its website. Thus, no lapse cannot be attributed on the part of the complainant in her failure to provide six years referral letter in lieu of her experience. In our considered opinion, she proceeded further by way of depositing the aforesaid amount with the OP only on the basis of information provided by the OP on its website in the shape of Annexure C-7.

12.            Now, we proceed to go through the acknowledgment receipt (Annexure C-3), which shows that the claimed amount i.e. Rs.82,600/- was deposited by the complainant with the OP. The said acknowledgment receipt (Annexure C-3) contains various terms and conditions relating to refund policy and payment terms. As per term no.14 of terms and conditions of acknowledgment receipt (Annexure C-3) it was the duty of the Op to process the visa application of the applicant. In the present case, admittedly, no significant step was taken by the OP towards the processing of the visa application of the complainant so as to forward the same in the concerned embassy. Undisputedly, the complainant has sought the refund of her deposited amount at the very initial stage when nothing substantial/significant work was done by the OP towards the processing of her visa application. Therefore, the denial by the OP to refund the deposited sum of Rs.82,600/- is neither reasonable nor justifiable. Therefore, we have no hesitation to conclude that there has been lapse and deficiency on the part of OP while delivering the services to the complainant; hence, the complainant is entitled to relief.

13.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OP:-

1. To pay a sum of Rs.82,600/- to the complainant along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization.
2.     To pay an amount of Rs.10,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- to the complainant on account litigation charges.

9.             The OP shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:03.11.2021

        Dr. Pawan Kumar Saini                              Satpal          

                            Member                                 President

Note: Each and every page of this order has been duly signed by me.

                                     Satpal                              

President