BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P.No. 137/2003 Filed on 28/03/2003 Dated : 31..08..2009 Complainant: Krishna Radha Shambu, TC-15/1191, “Mudra”, KLRA 116, Kukkiliya Road, Thycaud, Thiruvananthapuram – 14. (By Adv. A. Subramonian) Opposite parties: M/s. World Wide Immigration Consultancy Service, Regd.Office SCO 2415/16, Sector 22.C., Chandigarh-160 022. Lt. Col.B.S.Sandhu (Rtd), Managing Director, WWICS, Regd.Office SCO 2415/16, Sector 22.C., Chandigarh-160 022. Lt.Col.Lakhvir Singh (Rtd) Branch Manager, World Wide Immigration Consultancy Service, Kuravankonam Jn., Kowdiar-P.O., Thiruvananthapuram – 695 003.
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 01..01..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 09..07..2009, the Forum on 31..08..2009 delivered the following:
ORDER SMT. S.K.SREELA, MEMBER: The brief facts of the case are the following: Attracted by the promises made, the complainant had paid Rs.30,000/- to opposite parties and requested them to make available their services for preparation and submission of immigration case for Canadian Permanent Visa. That the 1st opposite party is an institution giving professional services with respect to preparation and submission of Immigration case for Canadian Permanent Resident Visa on behalf of the clients and other professional services to enable the clients to get a job abroad. But the opposite parties failed to provide the services agreed upon causing financial loss and mental agony to the complainant. On repeated request to refund the amount paid to them, the opposite parties in their letter dated 21/12/2002 promised to return Rs.15,000/- only, this amount has not been accepted. Hence this complaint against the opposite parties for deficiency in service claiming refund of the amount along with other reliefs. 2. The opposite parties have filed their version contending as follows: The complaint is not maintainable before this Forum, that as per the fee agreement dated 4/3/2002 signed by the complainant and the authorized signatory of the opposite parties company, in case of any deficiencies and dispute between the parties the same would be referred to the sole Arbitrator of the opposite parties company whose award shall be final and binding on both the parties. Accordingly the complainant has not gone in for arbitration, or any modifications re-enactment thereof for the time being in force. The venue of Arbitration proceedings shall be at Chandigarh. The complaint filed before this Forum is without jurisdiction as by the agreement entered into between the complainant and the opposite parties company, the proceedings were to be conducted at Chandigarh only, that the complainant had made a payment of Rs.30,000/- which was payable by him as Retainership-Fee. However, the complainant has miserably failed to provide the documents required for filing of his case and due to non-submission of these complete documents, the opposite parties company could not process his application form. Moreover he was contacted several times to provide the necessary documents so that his form for permanent immigration to Canada could be processed and could be filed with the Canadian High Commission. It was the responsibility of the complainant to provide all documents without which his case could not be processed any further. That the case for refund of complainant's retainership fee amounting to Rs.30,000/- is not covered under the refund clause. In fact, after his assessment by the opposite parties company, he was told to learn French. However, till the date the complainant has not provided any proof with regard to learning of French which was necessary for clearance of his case by the Canadian High Commission, New Delhi. Thus the complainant himself is to be blamed for the lapse committed by him. Hence pray for dismissal of the complaint. 3. Both parties have filed their affidavits and Exts.P1 to P6 were marked on behalf of the complainant and Ext.D1 has been marked on the opposite parties' side.
4. The issues that would arise for consideration are: Whether the complaint is maintainable before this Forum? Whether there is any deficiency in service on the part of the opposite parties? Whether the complainant is entitled for any of the reliefs claimed in the complaint?
5. Point No.(i): The complainant has alleged that there is deficiency in service on the part of the opposite parties and has claimed refund of the amount paid towards the service. One of the main contention of the opposite parties is that as per agreement entered into between the complainant and the opposite parties it has been agreed that all differences and disputes between the parties hereto on any clause or matter herein contained, their respective rights, claims, liabilities howsoever in relation to or arising out of his agreement shall be referred to the sole arbitration of the Chief Executive Officer of the company whose award shall be final and binding on both the parties. Such arbitration shall be governed by the Arbitration and Conciliation Act 1996 or any modifications, re-enactment there of for the time being in force. The venue of Arbitration proceedings shall be at Chandigarh. Hence the opposite parties contend that the complaint is not maintainable before this Forum. By now it is a settled position that the arbitration clause in an agreement would not come in the way of prosecution of remedy under Consumer Protection Act. The existence of remedy by way of arbitration does not preclude a consumer from seeking redressal before the forums constituted under Consumer Protection Act which is a special statute enacted by Parliament for the specific purpose of providing a speedy, cheap and efficacious remedy to consumers before the Special Forums created for that purpose. Mere existence of arbitration clause does not oust the jurisdiction of this Forum which is a settled position. The opposite parties have further contended that as per the agreement entered into between the complainant and the opposite parties, the proceedings were to be conducted at Chandigarh only. It is well known and well settled by now that the parties by mutual consent cannot confer jurisdiction upon a particular court when such court lacks inherent jurisdiction. The agreement, P5, has been executed at Thiruvananthapuram, so far as part of the cause of action having been arisen within the territorial jurisdiction of District Forum, Thiruvananthapuram, it will not make any difference when the parties had agreed to exclusively confer jurisdiction on the courts at Chandigarh. In view of the above settled position, we find that this Forum has jurisdiction to entertain the complaint.
6. Points (ii) & (iii) : The opposite parties have contended that the complainant has not provided the required documents for filing his case and due to non submission of these complete documents, the opposite parties could not process his application form. Though the opposite parties have contended as above, there is no document on record to substantiate their contention regarding the same. No scrap of paper has been produced by the opposite parties to prove as to which are the required documents to process the complainant's application.
7. The opposite parties have further contended that the complainant has not provided any proof with regard to learning of French which was necessary for clearance of his case by the Canadian High Commission. But as per the letter dated 14/11/2003, sent to the complainant by the opposite parties, regarding latest development in Canadian Immigration it has been mentioned that with effect from 18/9/2003, the qualifying points for eligibility has been brought down to 67 from 75 which means that the complainant is not required to learn French and pass T & F. From the above, the proof regarding learning of French is not necessary.
8. Ext.P6, proves that the opposite parties were willing to refund Rs.15,000/-. But the opposite parties have not explained on what basis they are refunding the said amount when according to the opposite parties they were not bound to refund the amount at all. Any how the complainant has sworn that he has not received the said amount also which stands uncontroverted. In view of the above discussion we find that the complainant is found entitled for refund of the amount as the opposite parties have failed to enlighten this Forum, with regard to the contention in their version that the complainant has failed to submit sufficient required documents.
9. In view of the above discussions, we conclude that the complainant is entitled for refund of the amount along with Rs.1,500/- towards compensation and Rs1,000/- as costs.
In the result, the complaint is allowed. The opposite parties shall refund the amount of Rs.30,000/- along with a compensation of Rs.1,500/- and costs Rs.1,000/- to the complainant within a period of 2 months from the date of receipt of the order, failing which the above mentioned entire amount shall carry interest @ 12%. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 31st day of August, 2009.
S.K.SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P.No.137/2003 APPENDIX
I. Complainant's witness: NIL II. Complainant's documents: P1 : Brochure issued by opposite parties P2 : Brochure issued by opposite parties P3 : Brochure issued by opposite parties P4 : Photocopy of receipt No.4031 dated 14/3/2002 issued by opposite parties. P5 : Photocopy of contract Engagement Gold dated 4/3/2002 P6 : Copy of E-mail letter dated 21/12/2002
Opposite parties' witness : NIL
Opposite parties' documents : NIL
PRESIDENT
ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P.No. 137/2003 Filed on 28/03/2003 Dated : 31..08..2009 Complainant: Krishna Radha Shambu, TC-15/1191, “Mudra”, KLRA 116, Kukkiliya Road, Thycaud, Thiruvananthapuram – 14. (By Adv. A. Subramonian) Opposite parties: M/s. World Wide Immigration Consultancy Service, Regd.Office SCO 2415/16, Sector 22.C., Chandigarh-160 022. Lt. Col.B.S.Sandhu (Rtd), Managing Director, WWICS, Regd.Office SCO 2415/16, Sector 22.C., Chandigarh-160 022. Lt.Col.Lakhvir Singh (Rtd) Branch Manager, World Wide Immigration Consultancy Service, Kuravankonam Jn., Kowdiar-P.O., Thiruvananthapuram – 695 003.
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 01..01..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 09..07..2009, the Forum on 31..08..2009 delivered the following:
ORDER SMT. S.K.SREELA, MEMBER: The brief facts of the case are the following: Attracted by the promises made, the complainant had paid Rs.30,000/- to opposite parties and requested them to make available their services for preparation and submission of immigration case for Canadian Permanent Visa. That the 1st opposite party is an institution giving professional services with respect to preparation and submission of Immigration case for Canadian Permanent Resident Visa on behalf of the clients and other professional services to enable the clients to get a job abroad. But the opposite parties failed to provide the services agreed upon causing financial loss and mental agony to the complainant. On repeated request to refund the amount paid to them, the opposite parties in their letter dated 21/12/2002 promised to return Rs.15,000/- only, this amount has not been accepted. Hence this complaint against the opposite parties for deficiency in service claiming refund of the amount along with other reliefs. 2. The opposite parties have filed their version contending as follows: The complaint is not maintainable before this Forum, that as per the fee agreement dated 4/3/2002 signed by the complainant and the authorized signatory of the opposite parties company, in case of any deficiencies and dispute between the parties the same would be referred to the sole Arbitrator of the opposite parties company whose award shall be final and binding on both the parties. Accordingly the complainant has not gone in for arbitration, or any modifications re-enactment thereof for the time being in force. The venue of Arbitration proceedings shall be at Chandigarh. The complaint filed before this Forum is without jurisdiction as by the agreement entered into between the complainant and the opposite parties company, the proceedings were to be conducted at Chandigarh only, that the complainant had made a payment of Rs.30,000/- which was payable by him as Retainership-Fee. However, the complainant has miserably failed to provide the documents required for filing of his case and due to non-submission of these complete documents, the opposite parties company could not process his application form. Moreover he was contacted several times to provide the necessary documents so that his form for permanent immigration to Canada could be processed and could be filed with the Canadian High Commission. It was the responsibility of the complainant to provide all documents without which his case could not be processed any further. That the case for refund of complainant's retainership fee amounting to Rs.30,000/- is not covered under the refund clause. In fact, after his assessment by the opposite parties company, he was told to learn French. However, till the date the complainant has not provided any proof with regard to learning of French which was necessary for clearance of his case by the Canadian High Commission, New Delhi. Thus the complainant himself is to be blamed for the lapse committed by him. Hence pray for dismissal of the complaint. 3. Both parties have filed their affidavits and Exts.P1 to P6 were marked on behalf of the complainant and Ext.D1 has been marked on the opposite parties' side.
4. The issues that would arise for consideration are: Whether the complaint is maintainable before this Forum? Whether there is any deficiency in service on the part of the opposite parties? Whether the complainant is entitled for any of the reliefs claimed in the complaint?
5. Point No.(i): The complainant has alleged that there is deficiency in service on the part of the opposite parties and has claimed refund of the amount paid towards the service. One of the main contention of the opposite parties is that as per agreement entered into between the complainant and the opposite parties it has been agreed that all differences and disputes between the parties hereto on any clause or matter herein contained, their respective rights, claims, liabilities howsoever in relation to or arising out of his agreement shall be referred to the sole arbitration of the Chief Executive Officer of the company whose award shall be final and binding on both the parties. Such arbitration shall be governed by the Arbitration and Conciliation Act 1996 or any modifications, re-enactment there of for the time being in force. The venue of Arbitration proceedings shall be at Chandigarh. Hence the opposite parties contend that the complaint is not maintainable before this Forum. By now it is a settled position that the arbitration clause in an agreement would not come in the way of prosecution of remedy under Consumer Protection Act. The existence of remedy by way of arbitration does not preclude a consumer from seeking redressal before the forums constituted under Consumer Protection Act which is a special statute enacted by Parliament for the specific purpose of providing a speedy, cheap and efficacious remedy to consumers before the Special Forums created for that purpose. Mere existence of arbitration clause does not oust the jurisdiction of this Forum which is a settled position. The opposite parties have further contended that as per the agreement entered into between the complainant and the opposite parties, the proceedings were to be conducted at Chandigarh only. It is well known and well settled by now that the parties by mutual consent cannot confer jurisdiction upon a particular court when such court lacks inherent jurisdiction. The agreement, P5, has been executed at Thiruvananthapuram, so far as part of the cause of action having been arisen within the territorial jurisdiction of District Forum, Thiruvananthapuram, it will not make any difference when the parties had agreed to exclusively confer jurisdiction on the courts at Chandigarh. In view of the above settled position, we find that this Forum has jurisdiction to entertain the complaint.
6. Points (ii) & (iii) : The opposite parties have contended that the complainant has not provided the required documents for filing his case and due to non submission of these complete documents, the opposite parties could not process his application form. Though the opposite parties have contended as above, there is no document on record to substantiate their contention regarding the same. No scrap of paper has been produced by the opposite parties to prove as to which are the required documents to process the complainant's application.
7. The opposite parties have further contended that the complainant has not provided any proof with regard to learning of French which was necessary for clearance of his case by the Canadian High Commission. But as per the letter dated 14/11/2003, sent to the complainant by the opposite parties, regarding latest development in Canadian Immigration it has been mentioned that with effect from 18/9/2003, the qualifying points for eligibility has been brought down to 67 from 75 which means that the complainant is not required to learn French and pass T & F. From the above, the proof regarding learning of French is not necessary.
8. Ext.P6, proves that the opposite parties were willing to refund Rs.15,000/-. But the opposite parties have not explained on what basis they are refunding the said amount when according to the opposite parties they were not bound to refund the amount at all. Any how the complainant has sworn that he has not received the said amount also which stands uncontroverted. In view of the above discussion we find that the complainant is found entitled for refund of the amount as the opposite parties have failed to enlighten this Forum, with regard to the contention in their version that the complainant has failed to submit sufficient required documents.
9. In view of the above discussions, we conclude that the complainant is entitled for refund of the amount along with Rs.1,500/- towards compensation and Rs1,000/- as costs.
In the result, the complaint is allowed. The opposite parties shall refund the amount of Rs.30,000/- along with a compensation of Rs.1,500/- and costs Rs.1,000/- to the complainant within a period of 2 months from the date of receipt of the order, failing which the above mentioned entire amount shall carry interest @ 12%. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 31st day of August, 2009.
S.K.SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P.No.137/2003 APPENDIX
I. Complainant's witness: NIL II. Complainant's documents: P1 : Brochure issued by opposite parties P2 : Brochure issued by opposite parties P3 : Brochure issued by opposite parties P4 : Photocopy of receipt No.4031 dated 14/3/2002 issued by opposite parties. P5 : Photocopy of contract Engagement Gold dated 4/3/2002 P6 : Copy of E-mail letter dated 21/12/2002
Opposite parties' witness : NIL
Opposite parties' documents : NIL
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | |
