MRS. NEENA SANDHU, MEMBER

1.         By this order of ours we are disposing off 2 appeals arising out of the order dated 8.2.2010 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) in complaint case No. 817 of 2009.

2.         Brief facts of the case are that the OP gave an advertisement for the Master of Nursing Courses in Australia and in response to an advertisement of OP, the complainant approached the OP for admission in Master of Nursing in UNE, Australia for September, 2008 batch. The complainant paid Rs.10,000/- on 26.4.2008 for registration charges and subsequently paid Rs.2,90,000/- (7068AUD) on 28.6.2006 through OP to University of New England. The complainant also paid medical fee of Rs.1100/- on 4.7.2008, Rs.25,000/- on 30.7.2008 as processing fees and Rs.19,000/- more as visa fee on the same day (Annexure C-1 to C-4). The OP gave an assurance to the complainant that all the necessary formalities i.e. admission, visa etc. would be completed on or before 1.8.2008. The OP informed the complainant vide letter dated 20.5.2008 of UNE that the courses for admission in the Master of Nursing start from 11.8.2008 for a duration of one year upto 30.6.2009 and the complainant visited the office of the OP to arrange the visa papers etc but the OP put off the mater on one pretext or the other. The OP was able to arrange the visa paper only on 22.10.2008 despite of the repeated requests by the complainant and due to which the complainant could not get admission in M.N.Course in UNE.  After 11.8.2008 the complainant requested several times to the OP for the refund of the money deposited with the OP but the OP put off the mater on one pretext or the other. The complainant had to resign from her service as Clinical Instructor with Mata Sahib Kaur College of Nursing at Kharar Highway, Balongi, District Mohali in order to get admission in Master of Nursing in UNE, Australia. It was submitted by the complainant that due to the negligence on the part of OP, the complainant could not get the visa and other papers in time for the course which start w.e.f. 11.8.2008. After repeated requests and protests by the complainant, the OP refunded Rs.1,37,088/- on 31.1.2009 and obtained a letter under pressure from her.   The complainant sent a legal notice to the OP but to no avail. The above said act of OP amounts to deficiency in service and hence, the complaint was filed.

3.         Reply was filed by the OP and took objections regarding the maintainability of the complaint as the complainant had already received the full and final settlement amount from the OP after due deductions of the University Claim, Inscol claim and health Insurance Cover & Course. It was admitted by the OP that the complainant was handed over the offer letter dated 20.5.2008 as well as deposit of amount. It was further submitted by the OP that in the registration form signed by the complainant on 26.4.2008, it was mentioned that it was the responsibility of the candidate to meet other requirements of the foreign embassy for issue of visa but inspite of repeated follow ups, the complainant took more than 37 days to complete the visa documentation and as such the delay was on the part of complainant and not the OP. It was further submitted that the OP took only five working days to process the file and to submit the visa on 3.7.2008 and one the visa was filed, it is upto the Australian High Commission to grant the same or not. It was further pleaded that the OP arranged the new offer letter and COE for the complainant based on which her visa was granted only after her consent to join the next batch and the visa was granted on 21.10.2008 but the complainant was declined to join the course on 26.11.2008. All other allegations leveled by the complainant in the complaint were denied and prayed for dismissal of the complaint.

4.         The parties led their evidence in support of their contentions.

5.         The learned District Forum allowed the complaint and directed the OP to refund an amount of Rs.2,08,012/- and to pay Rs.63000/- and Rs.1,00,000/- as worked out above along with Rs.5,000/- as costs of litigation total Rs.3,76,012/-  to the complainant within 30 days from the date of receipt of copy of this order failing which the OP would be liable to pay the entire amount along with penal interest @ 12% p.a. since the filing of the present complaint i.e. 8.6.2009 till its payment to the complainant.

6.            Aggrieved by the order passed by the learned District Forum, the two appeals one filed by the OP i.e. Inscol Academy and the other filed by the complainant i.e. Ms.Bharti Sachdeva. Sh.Parmod Kumar & Sh.Rakesh Bhatia, Advocates appeared on behalf of Inscol Academy and Sh.Vivek Thakur, Advocate has appeared on behalf of Ms.Bharti Sachdeva.

7.         In appeal bearing No. 107 of 2010 filed by Inscol Academy, the appellant submitted that the impugned order passed by the learned District Forum is illegal without jurisdiction, non application of mind, arbitrary and improper as no ground has been made out for any deficiency in service on the part of appellant. The learned District Forum has ignored the fact that complainant has not been able to establish any deficiency in service provided to the complainant as defined under the CPA, 1986. The case of the respondent is that visa could not be granted before the batch started but the learned District Forum has ignored this fact that the respondent herself submitted her full file for visa on 27.6.2008 after a delay of 37 days and appellant filed the visa within a week and all formalities were completed on 3.7.2008 and medical was conducted on 4.7.2008. The file was submitted on 3.7.2008 i.e. 39 days prior to start date of the program and the learned District Forum has ignored this fact that after filing of the case, it was upto the visa officer handling the case to grant visa as per their processing times. The learned District Forum ignored this fact while passing the impugned order that the respondent consented to join the next intake i.e. 19.2.2009 and university accordingly issued a fresh offer letter dated 5.9.2008 and again new offer letter was submitted to the AHC for grant of visa and visa was granted on 21.10.2008 well in time before grant of the next intake in 19.2.2009 and for that she had not paid any visa fee again. The learned District Forum while giving the findings that the respondent had to give visa fees again, which is erroneous and suffers from infirmities, illegal and without any evidence. Annexure A-4 shows that the respondent paid $450 only one time and no more visa fee was even paid by her. First time the complainant declined to join the program i.e. 26.11.2008 much later than date of issue of the visa i.e. 21.10.2008. The respondent declined to join the program with the next batch due to her personal problem and hence no cause of action arose against appellant. The findings of the learned District Forum with regard to the leaving of the job by respondent is erroneous as the respondent herself and her own wish left the job and the appellant has not suggested her to leave the job, rather she could have left the job after getting the visa and some days before to go to Australia. The appellant refunded the fees only on compassionate grounds, only on the reason that her mother expired and refundd the money after due deductions, the payment which was given to appellant was only visa processing fees of Rs.25,000/- and other payments were the fee payable to university as university fees, visa fees to Australian High Commission and other medical fees to doctor by whom she was medically examined. It is pertinent to mention that it is upto the visa officer to give visa or not to the appellant, so even after getting the visa for next batch, she dropped idea that too after one month of getting visa. Hence, it is prayed that appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

8.         In the appeal bearing No. 244 of 2010 filed by Ms.Bharti Sachdeva (complainant) and submitted that the impugned order passed by the learned District Forum is against the law and facts on file, upto the extent that only Rs.3,76,012/- has been granted as compensation out of Rs.10,82,912/- as claimed by the appellant. The learned District Forum held that at the time of giving admission to the appellant, the respondent undertook and assured the complainant that she would get the visa on or before the start of the session but the respondent failed to do so. It has been submitted by the appellant that the plea taken by the respondent that the delay occurred was due to the late submission of the documents by the appellant is completely wrong and misleading, in fact the appellant submitted all the documents well in time even before the limitation letter was sent to her by the respondent regarding the commencement of the course, rather it was the respondent who delayed in submitting the documents to the Australian authorities. The respondent knew very well as to how much time does the Australian Authorities take to grant visa and the conduct of the respondent clearly depicts that they were intentionally trying to delay the matter, which resulted in huge financial loss and by their act they have ruined the career of the appellant. The appellant visited the respondent’s office on 31.1.2009 and she being a lady was compelled to sign on a document and was forced to accept the draft in full and final settlement of her claim. The respondents were not even giving this much amount to her earlier, even after her number of visits to their office, the appellant therefore had no other option rather than putting her signatures unwillingly on the document. The appellant was employed in Mata Sahib Kaur College of Nursing at Kharar Highway, Balongi, District Mohali and was getting Rs.9,000/- per month as salary. On 30.5.2008 on the advice of the respondent, she herself submitted her one month resignation notice to take up her studies in University of New England, Australia, however because of the negligent approach of the respondent, she did not get the visa till 20.10.2008 which resulted in a financial loss of Rs.9,000/- per month to the appellant but the learned District Forum has only awarded the amount of seven months. It is further submitted by the appellant that the amount of compensation is on lower side and the learned District Forum awarded the amount too less on account of mental agony and loss of career which is a result of negligent attitude of the respondent and also because of deficiency in service on the part of respondent. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be modified and awarded compensation may kindly be enhanced in the interest of justice.

9.         We have heard the learned counsel for the parties and perused the record.

10.       From the perusal of the record and the arguments put forth by the learned counsel for the parties, it is evident that the OPs have already refunded a sum of Rs.1,37,088/- to the complainant on 31.1.2009. Regarding this, the learned counsel for OP argued that as on the request of the complainant, the OP refunded an amount of Rs.1,37,088/- on 31.12.2009 as full and final settlement. Therefore, there is no cause left with the complainant to file a complaint as the complainant has already received the amount, as full and final settlement and an agreement was duly signed by the complainant.

11.     But on the other hand, the learned counsel for the complainant argued that the complainant had signed this full and final settlement agreement under pressure, rather the complainant was compelled to sign the letter Annexure OP/1 hence the same is not operatable against the complainant. As per the version of the complainant, which is supported by an affidavit that the OP had given assurance to the complainant that all the necessary formalities i.e. admission, visa etc. would be completed on or before 1.8.2008 i.e. before the start of the course which was due to start on 11.8.2008. It is further contended that the OP had paid only a sum of Rs.1,37,088/- to the complainant against the amount awarded by the learned District Forum. However the complainant is not satisfied with the quantum of compensation awarded by the learned District Forum, therefore, the complainant preferred to file appeal bearing No. 244 of 2010 and has also prayed for the enhancement of compensation.

12.       After going through the file, it appears that there is no dispute regarding that the complainant had approached the OP for getting admission in Masters of Nursing in UNE, Australia and the course was due to start from 11.8.2008 for a duration of one year upto 30.6.2009. For which, the complainant gave all the necessary documents to the OP well in time and the OP submitted these documents for the grant of visa on 30.7.2008, although the visa was granted to the complainant i.e. on 21.10.2008 and the classes for the course started much prior i.e. 11.8.2008. It has been observed by us that visa was not granted to the complainant well in time i.e. on or before 11.8.2008 as assured by the OP that is why the complainant requested the OP to withdraw her case and refund the amount which was deposited by the complainant. Regarding this, both the parties have amicably reached to settlement and the OP has already refunded a sum of Rs.1,37,088/- on 31.1.2009 to the complainant as full and final settlement of her claim.

13.            Regarding the second issue, it has also observed by us that as per Annexure-10 the complainant was employed in Mata Sahib Kaur College of Nursing at Kharar Highway, Balongi, District Mohali and was getting Rs.9,000/- per month as salary and on 30.5.2008, on the advise and assurance given by the OP, the complainant submitted her one month resignation notice to her employer with the reason to take up her studies in University of New England, Australia.

14.       In fact, from both the aforesaid issues as discussed above, it is apparent that the OP is deficient in providing services by not getting the visa in time as assured to the complainant before the start of the course i.e. 11.8.2008.  Moreover the OP is also guilty because the complainant had resigned from her job on 30.5.2008 on the assurance made by the OP that the OP will procure the visa on or before the start of the Nursing course for which she got admission in Australia.  In our opinion, the OP is also guilty by not submitting the documents well in time to the Australian embassy for grant of visa before the start of the course.

15.       As regards to the matter agitated by the OP in appeal regarding the quantum of compensation on higher side awarded by the learned District Forum to the tune of Rs.1,00,000/- along with the costs of litigation Rs.5,000/-. We are of the opinion that this is a clear cut case of deficiency in service on the part of OP because due to the negligence of the OP, the complainant could not pursue her studies abroad. In fact these days it is a dream of every student to study abroad and the complainant got a golden opportunity to study there but due to the act of the OP, the dream of the complainant could not be fulfilled. Not only this, the complainant had to leave her job and in this respect we are of the view the complainant had to go through a lot of mental, physical and social pressure for not pursuing her higher studies for better future. Therefore the learned District Forum has rightly awarded compensation and the order passed by the learned District Forum is just, fair and proper and no interference is called for.

16.       Hence, the appeal filed by Inscol i.e. OP is here by dismissed without any order as to costs and even we do not find any force in the appeal filed by the complainant for enhancement of compensation. Hence, the same is also dismissed without any order as to costs.

17.       Copies of this order be sent to the parties, free of charge.

Pronounced.

11^th October, 2010.