STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 175 of 2013 |
Date of Institution | : | 23.04.2013 |
Date of Decision | : | 25.07.2013 |
Honey Garg s/o Sh. Ram Sarup, R/o H.No.1007, Sector 9, Panchkula.
……Appellant/Complainant.
Versus
1] M/s. Worldwide Immigration Consultancy Services Ltd., having its Corporate Office at A-12, Industrial Area, Phase-VI, Mohali, through its Managing Director.
2] M/s. Worldwide Immigration Consultancy Services Ltd., having its Branch Office at SCO No.2415-16, Sector 22-C, Near Hotel Aroma, Chandigarh, through its Branch Manager.
3] Yuvraj Sobti C/o M/s. Worldwide Immigration Consultancy Services Ltd., SCO No.2415-16, Sector 22-C, Near Hotel Aroma, Chandigarh
4] M/s Global Strategic Business Consultancy having its head Office at FZCO, Office No.315-316, West Wing-3, Dubai Airport Free Zone, Dubai (UAE) through M/s Worldwide Immigration Consultancy Services Ltd., having its Corporate Office at A-12, Industrial Area, Phase-VI, Mohali, through its Managing Director.
....Respondents/Opposite Parties.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
Argued by: Sh. Arun Dogra, Advocate for the appellant.
Sh. Raman Walia, Advocate for the respondents.
PER DEV RAJ, MEMBER
This appeal is directed against the order dated 06.03.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant), being premature.
2. The facts, in brief, are that the complainant is working as a scrap dealer at Panchkula. He studied up-to 10+2. He appeared in IELTS on 26.9.2009. He completed the IELTS (General Training) Course with 6.5 Bands (Annexure C-1). He visited Opposite Party No.1, in its Chandigarh office in response to an advertisement in May, 2011 and, as such, hired their services for Permanent Immigration to Canada under the Job Offer from a Canadian Employer. It was stated that Opposite Party No.3 demanded a sum of Rs.1.00 lakh for arranging Offer letter from Canadian Employer and Rs.75,000/- as consultation charges for providing Immigration services to the complainant. It was further stated that in addition to this, the Opposite Parties demanded fee of $13,000/- in favour of Opposite Party No.4 on account of arranging job offer from Canadian Employer. It was further stated that out of the said amount, the Opposite Parties demanded a sum of Rs.1,30,000/- + $5000/- in advance and advised the complainant that once the job offer letter was received from the prospective employer from Canada, he had to pay an additional amount of Rs.45,000/- + $8000/- to them (Opposite Parties). It was further stated that the Opposite Parties had promised to complete the whole process within 6 to 8 months. It was further stated that the complainant made payment vide Annexure C-2 and signed three agreements (Annexure C-3). It was further stated that thereafter nothing was heard from the Opposite Parties, for one year, and on making enquiries from them, they always used to inform that the job letter was yet to be obtained from the employer. It was further stated that when the complainant asked the Opposite Parties to supply the information about the name of the Company from where the offer letter was to be obtained and other particulars, Opposite Party No.3 could not give any satisfactory reply. It was further stated that since there was no positive response from the Opposite Parties, and seeing no progress in the immigration case as well as being fed up with their delaying tactics, the complainant chose not to pursue the visa application and, as such, requested the Opposite Parties to refund the fee vide Annexure C-4 but the same was not refunded.
3. It was further stated that the Opposite Parties misrepresented the complainant and made him to pursue for a visa Programme, for which, he was not eligible. It was further stated that the stream, in which the Opposite Parties pursued the file of the complainant for Canada visa, was known as Skilled Workers and Professional Stream, under which, he (complainant) did not fall and qualify as per the criteria (Annexures C-6 and C-7). To be eligible under this category, a candidate had to score a minimum 67 points out of 100 whereas the complainant had only 44 points score. It was further stated that the Opposite Parties were fully aware about the fact that the complainant did not have the requisite qualification for the purpose of permanent immigration under the aforesaid category. It was further stated that it was also known to the Opposite Parties, that neither the complainant had the skill, which was required for the purpose nor qualified the point test, required for permanent immigration to Canada. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking directions to the Opposite Parties, to refund Rs.1,000,000 + $ 5000 charged in lieu of arranging offer letter; Rs.30,000/- charged on account of consultation/professional charges; pay interest @18% per annum; Rs.5,00,000/- as compensation for mental agony and physical harassment and Rs.30,000/- as cost of litigation, was filed.
4. The Opposite Parties, in their joint written version, admitted the factum regarding hiring of their services by the complainant; his qualification; deposit of amount and execution of Contract of Engagement between the parties. It was stated that the complainant and the Opposite Parties adhered to various clauses of the Contract of Engagement (Annexures R-1 and R-2). It was further stated that the Opposite Parties had already performed their part of the duty as per the contract and job offer was given to the complainant as per Annexure R-3. It was further stated that the complainant failed to cooperate with the Opposite Parties, and did not give his consent, after receipt of the job offer received from his employer, and accordingly his case for permanent immigration could not be processed due to his non-cooperation. It was further stated that the complainant had changed his mind to shift to Canada and, accordingly, he sent letter dated 19.6.2012 (Annexure R-4) for refund of the amount, even before the lapse of 2 years period as agreed to at the time of entering into Contract of Engagement with the Opposite Parties. It was further stated that no assurance was given to the complainant for grant of Visa, rather it was clearly told to him (complainant) at the time of signing of the Contract that the Company only provided professional services in respect to preparation and submission of Immigration case. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.
5. The parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant/complainant, submitted that the respondents/Opposite Parties, allured the appellant/complainant, by stating that he (complainant) fulfilled the eligibility criteria for going to Canada under Skilled Workers Category and consequently, the contract of engagement was entered into and a sum of Rs.1,30,000/- plus 5000 US Dollars were paid. It was further submitted that the appellant/complainant was duped by the respondents/Opposite Parties, as on the basis of his qualifications, he could not get the requisite points viz. 67 points whereas he was having only 44 points. It was further submitted that the Job letter dated 30.05.2012 (Annexure R-3) was never supplied to the appellant/complainant. It was further submitted that the District Forum failed to appreciate the fact that the respondents did not place on record any document i.e. postal receipt or courier receipt etc. to prove that the job offer letter was delivered/provided to the complainant. It was further submitted that the respondents/Opposite Parties also failed to place, on record, of the District Forum all the agreements entered into between the appellant/complainant and the respondents/Opposite Parties. The Counsel for the appellant/complainant, therefore, prayed that the appeal be accepted, the order of the District Forum be set aside and the complaint be remitted back to the District Forum, for decision afresh, according to law.
10. On the other hand, the Counsel for the respondents/Opposite Parties, submitted that they adhered to the clauses of Contract of Engagements, executed between the parties and had already performed their part of the duty. It was further submitted that the Job Offer (Annexure R-3) was given to the appellant/complainant, but he himself failed to cooperate with the Opposite Parties and did not give his consent for the same and, as such, his case for permanent immigration could not be processed. It was further argued that the complainant had changed his mind to shift to Canada and, as such, sought refund even before the lapse of 2 years period, as agreed to at the time of entering into Contract of Engagement. It was further submitted that the District Forum, appreciating all these facts, rightly dismissed the complaint of the appellant/complainant being premature. He, therefore, prayed that the appeal be also dismissed.
11. The facts and evidence, on record, reveal that the appellant/complainant was not eligible for Skilled Workers Category job in Canada. As per the parameters of Selection Factors, at Page No.5 of Annexure C-6 (Page 72 of the District Forum’s file), the pass marks were 67 points for all factors combined. The appellant/complainant never fulfilled this eligibility criterion. The District Forum appreciated this point but still dismissed the complaint on the ground that the Contract of Engagements was executed on 24.6.2011 and a period of 02 years was to lapse on 23.06.2013 and the complainant sought refund even before the expiry of one year. It (District Forum) termed the complaint to be premature and dismissed the same on this ground.
12. Since the appellant/complainant was not eligible for Skilled Worker Category, the Contract of Engagements executed between the appellant/complainant and the respondents/Opposite Parties, could never be accomplished. When the appellant/complainant was not at all eligible, under the Skilled Workers Category, the Opposite Parties were required to impart professional advice in a correct manner. Knowing fully well that the appellant/complainant was not eligible for the grant of visa under the Skilled Workers Category, they gave him wrong professional advice. Thus, the Opposite Parties, by misleading the complainant, indulged in unfair trade practice. Therefore, the time limit stipulated in the Contract of Engagement was not relevant. The complaint was, thus, not premature. The District Forum, thus, failed to appreciate this fact and, as such, the impugned order passed by it, suffers from perversarity and illegality, warranting the interference of the Commission.
13. For the reasons recorded above, the appeal is accepted with no order as to costs. The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to decide the same, on merits, in accordance with the provisions of the Act. The Parties are directed to appear, before the District Forum (I) on 12.08.2013 at 10.30 A.M., for further proceedings.
14. The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 12.08.2013 at 10.30 A.M.
15. Certified copies of this order, be sent to the parties, free of charge.
16. The appeal file be consigned to the Record Room, after due completion.
Pronounced.
25th July, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
Ad
STATE COMMISSION
(First Appeal No.175 of 2013)
Argued by: Sh. Arun Dogra, Advocate for the appellant.
Sh. Raman Walia, Advocate for the respondents.
Dated the 25th day of July 2013
ORDER
Vide our detailed order of the even date, recorded separately, the appeal has been accepted with no order as to costs. The order impugned has been set aside. The complaint has been remanded back to the District Forum, with a direction to decide the same, on merits, in accordance with the provisions of the Act.
The Parties have been directed to appear, before the District Forum (I) on 12.08.2013 at 10.30 A.M., for further proceedings.
(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT |
AD
