BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 01/03/2011

Date of Order : 31/10/2012

Present :-

Shri. A. Rajesh, President.

Smt. C.K. Lekhamma, Member.

C.C. No. 125/2011

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the complainant's case are as follows :-

The complainant is a fitter by profession. He has been working in Merchant Navy, since 2003. Lured by the assurance of the opposite parties, the complainant registered his name for immigration to Australia with them under 'gold' category. On 11-04-2008, the complainant paid Rs. 30,000/- to the opposite parties as professional charges. Thereafter, the opposite parties collected demand draft for 300 Australian dollars which is equivalent to Rs. 12,835/-. On 29-08-2008, the opposite parties informed that the complainant had passed the skill assessment for the trade fitter assessed by Trade Recognition Australia. As instructed by the opposite parties, the complainant passed IELTS test with overall band score of 5.5. Thereafter, the opposite parties demanded Rs. 20,000/- and handing over $ demand draft for 1,700/- equivalent to Rs. 81,915/- as professional charges. The complainant paid the amount on 02-06-2009. Again on 23-06-2009, the complainant handed over a demand draft for 2105 AUD equivalent to Rs. 83,653/- along with the required documents. On 03-07-2009 , the complainant came to know that the 2^nd opposite party has not forwarded the AUD draft for 2105 and immigration papers to the Department of Immigration. Further, it was learnt that the rules regarding immigration had been changed with effect from 01-07-2009. At that juncture, the complainant demanded to refund the entire amount from the opposite parties. Accordingly, the opposite parties returned the demand draft for 2105 AUD, the complainant had cancelled the demand draft and he could get only Rs. 78,910/-. Despite repeated demands, the opposite parties failed to refund the balance amount of Rs. 1,49,493/-. The complainant is also entitled to get a compensation of Rs. 1,00,000/- for the mental agony suffered and Rs. 10,000/- towards costs of the proceedings. This complaint hence.

2. The version of the opposite parties :-

The complainant has not impleaded M/s. Global Strategic Business Consultancy, Dubai to whom the complainant had deposited the sum of US $ 1700. They are necessary party to the proceedings. The complaint is barred for non-joinder of necessary parties. The opposite parties only assist the candidates in the process of immigration, which includes the preparation of immigration file, verify their credentials, supply with required documents, communicate the case with the Australian Authority doing the entire communications with the High Commission etc. As per Clause 2 (a) of the contract, the complainant was required to submit the complete documents within 30 days from the date of agreement in which the complainant failed, which resulted in rejection of his file. The application of the complainant was processed and sent to Trade Recognition Australia and the result of the skill assessment test was communicated to the complainant. The complainant was also informed that he has to submit required documents expeditiously, since the rules regarding immigration is likely to change. Meanwhile, the complainant went for job from 30-08-2008 to 20-06-2009. On 27-06-2009, only the complainant sent the documents to the opposite parties. But on 01-07-2009, the Department of Immigration increased IELTS requirement to grade 6. The complainant was not willing to secure grade 6 to enable his file to be forwarded to DIAC. Instead, he demanded refund of the amounts which was not acceptable to the opposite parties. As per the agreement, the entire fee is non-refundable. There is no deficiency in service on the part of the opposite parties. The complaint deserves dismissal.

3. The complainant was examined as PW1 and Exts. A1 to A9 were marked. No oral evidence was adduced by the opposite parties. Ext. B1 was marked on their side. Heard the counsel for the parties.

4. The points that emanated for consideration are :-

1. Whether the complainant is entitled to get refund of the balance fee of Rs. 1,49,493/-?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- Admittedly, the complainant entered into Ext. B1 contract of engagement with the opposite parties on 11-04-2008 for submitting application for immigration to Australia under the 'gold' package. It is not in dispute that the complainant paid the following amounts in connection with the immigration application :-

Sl. No.	Date	Exhibit	Purpose	Amount in Rs.
	11-04-2008	A2	Retainer fees	30,000/-
	Nil	A3	-	12,835 (AUD 300)
	02-06-2009	A6	Retainer fees	20,000/-
	02-06-2009	A7	-	81,915/- (USD 1700)
	03-07-2009	A9	-	78,910 (AUD 2105)
Total				2,23,660/-

6. It is also not in dispute that the opposite parties refunded the amount as per Ext. A7 to the complainant. The complainant submitted the IELTS score with band score of 5.5 on 27-06-2009, since admittedly, he was out of station in connection with his job in Merchant Navy. By the time on 01-07-2009, the department of immigration Australia increased the required IELTS score from 5 to 6. so evidently, there was laches on the part of the complainant in submitting the necessary documents for the processing of the immigration application in time. We do not find any deficiency in service on the part of the opposite parties in processing the application of the complainant at the same time, the complainant had bonafidely not in the know of the change in the bands of IELTS.

7. Now the question would arise, whether the opposite parties are liable to refund the balance fees to the complainant clause 10 in Ext. B1 reads as follows :-

1. “The services provided by the Company being professional in nature, the entire fee is non-refundable.

    

2. However, Partial refund of the fee would be considered if the client is declared disqualified it skill assessment for Australia. Accordingly, the Client shall be entitled to a refund of 50% of the total fee paid or an amount of Rs. 25,000/- whichever is less and full professional fee (if paid by the client), in case the Client is declared disqualified in skill assessment for Australia.

    

3. Since VPF is being paid to the processing Visa Office, refund of same shall not be claimed from the Company.”

As per Clause 10 (ii) in Ext. B1, the complainant is entitled to get refund of the balance fees after deducting Rs. 25,000/- towards their professional fees. The opposite party contended that the complainant directly forwarded the amount as per Ext. A9 to the Global Strategic Business Consultancy, Dubai. However, the same was forwarded to them in furtherance of Ext. B1 agreement and the privity of contract is between the complainant and the opposite parties. So, the contention of the opposite parties that the said company is a necessary party to the complaint goes. The maxim “nemo debet locupletari ex aliena jactura” (unjust enrichment) squarely applies in this case. It is in favour of the complainant alone.

8. In the above circumstances, we are of the considered view that the complainant is entitled to get refund of the fee amounts as per Exts. A2, A3, A6 and A9 from the opposite parties not to mention after deducting Rs. 25,000/- towards their service charges.

9. Point No. ii. :- Since this Forum does not find any deficiency in service on the part of the opposite parties, we refrain from awarding compensation for mental agony and costs of the proceedings as claimed by the complainant. The quantum of money involved and the justification of the rule of law being sustained, we are not to grand the said reliefs.

10. In the result, we partly allow the complaint and direct that the opposite parties shall refund the balance fee as per Exts. A2, A3, A6 and A9 after deducting Rs. 25,000/- for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amounts shall carry interest @ 12% p.a. till payment.

Pronounced in the open Forum on this the 31^st day of October 2012

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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