MRS. NEENA SANDHU, PRESIDING MEMBER

1.       This is an appeal filed by OP against order dated 11.8.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 310 of 2010.

2.       Briefly stated, the facts of the case are, that the OP published an advertisement in Punjab Kesri Newspaper, for the post of Plumber and other posts, for Afghanistan, for a salary of 600 Dollars. The complainant approached the OP on 1.10.2010 for the post of Plumber, for Afghanistan for work visa and the OP asked him to come for an interview on 3.10.2009. On 3.10.2009 the complainant went to the OP and they charged Rs.5,000/- for medical and also charged him Rs.15,000/- vide receipt No.377 dated 22.1.2010. The complainant signed an agreement with the OP for gong to Afghanistan. On 17.3.2010 the OP again took a sum of Rs.25,000/- from the complainant and told the complainant that a flight has been booked for him for Dubai on 19.3.2010. The complainant was also told that he was going to Dubai instead of Afghanistan for labour work on visitor’s visa for one month but the complainant refused to go to Dubai on visitor’s visa due to dangerous place and due to lower wages. The complainant requested the OP many times to return his  passport as  well as  the amount, which the OP received from him but the OP refused to return the passport as well as amount paid by the complainant to the OP.  The aforesaid acts of OP amounts to deficiency in service and hence, the complaint was filed.

3.       Notice was sent to the OP and as per the report of the Process Server, OP refused to accept the service. Hence, OP was proceeded against exparte.

4.       The complainant led his evidence in support of his contentions.

5.       The learned District Forum allowed the complaint with the following directions that

i)                   The OP shall refund Rs.40,000/- which they received from the complainant on the pretext or sending him to Afghanistan on work visa.

ii)                 The OP shall pay Rs.50,000/- as compensation to the complainant for harassment and mental agony suffered by him due to its deficient service.

iii)               The OP shall returned the passport of the complainant immediately. 

          The aforesaid amount of Rs.90,000/- be paid by the OP within 30 days from the date of receipt of certified copy of order, failing which the OP shall pay the amount to the complainant along with interest @ 18% p.a. from the date of filing of the complaint i.e. 19.5.2010 till its actual payment. The passport will also be returned immediately.

6.          Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OP.  Sh.Ajit Singh, Advocate has appeared on behalf of appellant and Sh.Gunjan Rishi, Advocate has appeared on behalf of respondent.

7.       In appeal, it is submitted that the complainant was provided transit visa upto Afghanistan route via Dubai along with other 33 persons with the confirm ticket No.Q034597 was allotted to the complainant with date of journey 21.3.2010. Copy of the same is attached herewith as Annexure R-1 along with copy of visa as Annexure R-2. As per Annexure R-1, it is specifically mentioned that all the passengers on arrival in Dubai will be transferred to a connected flight No. ESJ-039 i.e. schedule to depart and 10.00 local to Kabul International Airport. The complainant very cleverly concealed this material documents from the learned District Forum and here it is pertinent to mention that all the persons mentioned in the list reached Afghanistan except the complainant. It is submitted that the company recovered all the expenditure from the appellant due to the act and conduct of the complainant. The complainant also received his original passport, copy of Dubai Visa, electronic ticket, Recon International Agreement, declaration form, charter plane ticket from Dubai to Afghanistan and other forms send by the company from Afghanistan, after signing the same at serial No. 22. The copy of the same upon which the complainant received all the original documents is annexed as Annexure R-4. The complainant also concealed this material facts from the learned District Forum and managed to get the exparte order. It is further submitted that the law has already been settled that if a person approaches the court after concealing the facts from the court that person is not entitled for any relief claimed by him and in the present case, the complainant admittedly did not disclose all the material facts as well as did not submit the relevant documents with the learned District Forum and wrongly got the orders in his favour. The appellant never received any summons with regard to the present proceedings before the learned District Forum. It is next submitted that in the present facts and circumstances of the case, no complaint in favour of the complainant and against the appellant is made out, rather it is the appellant who is entitled for compensation from the complainant for harassment and filing the false and frivolous complaint against the appellant after concealing the material facts from the learned District Forum and getting the orders dated 11.8.2010 in his favour, which is liable to be set aside and prayed that the appeal may kindly be allowed.

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

9.          During the course of arguments, the learned counsel for the appellant/OP argued that the complainant had misled the learned District Forum by concealing the facts and the learned District Forum passed an exparte order against the appellant/OP and he draw our attention to some documents which were placed on record along with the memorandum of appeal and pleaded that a transit visa Annexure R-2 upto Afghanistan route via Dubai along with other 33 persons was handed over to the complainant along with a confirm ticket Annexure R-1. It was further pleaded that the complainant was also provided with pre-paid service voucher Annexure R-3. As per Annexure R-1 it was specifically mentioned that all the passengers upon arrival to Dubai will be transferred to a connected flight No. ESJ-039 on Sunday 21^st March, 2010. All passengers upon arrival to Dubai will be transferred to a connecting flight ESJ-039 that is scheduled to depart at 10.00 local to Kabul International Airport. It was next averred that the original passport, copy of Dubai Visa, Electronics Ticket, Recon International Agreement, Declaration Form, Chartered Plane Ticket from Dubai to Afghanistan and other forms send by the company from Afghanistan have been received by the complainant and signed by the complainant at serial No. 22 of the list placed on record by the appellant/OP Annexure R-4 and prayed for that the exparte order passed by the learned District Forum may kindly be set aside and the appeal may kindly be allowed in the interest of justice. 

10.     It is argued by the learned counsel for the respondent/complainant that as per the advertisement published by the OP, for the post of Plumber and other posts, for Afghanistan, for a salary of 600 Dollars. The complainant had approached the OP on 1.10.2010 for the post of Plumber, for Afghanistan for work visa. For this, the complainant had paid a sum of Rs.40,000/- with the OP. But the complainant was told by the OP that he was going to Dubai instead of Afghanistan for labour work on visitor’s visa for one month, so the complainant refused to go to Dubai on visitor’s visa and requested the OP many times to return his passport as well as the amount paid by him but OP refused to return the passport as well as amount paid by the complainant.  At last, the complainant filed a complaint with the learned District Forum where the OP intentionally did not appear and the learned District Forum after giving him a ample opportunity passed an exparte order on merits due to the non appearance of the OP. The order passed by the learned District Forum is just, fair and proper and prayed for the dismissal of the appeal.

11.     As per the appellant/OP that the complainant was provided transit visa upto Afghanistan route via Dubai along with other 33 persons, whereas as per the advertisement published in Punjab Kesri Newspaper the complainant applied for work permit in Afghanistan as a Plumber. As per our knowledge for getting a job in any foreign country, work visa is required for the same whereas in the present case a transit visa was granted to the complainant instead of work visa. Not only this, as per the averment made by the OP that the OP has duly informed the complainant regarding the route of the flight for Afghanistan via Dubai whereas as per Annexure R-1 there is nothing to prove that this information was conveyed to the complainant whereas it is the duty of the OP to inform the complainant regarding the route of the flight before hand at his address. As per the submissions made the learned counsel for the OP for the return of the passport to the complainant, the perusal of Annexure R-4 shows that the complainant whose name is at serial No. 22 in the list which is duly signed by the complainant in the column of signature shows that the complainant has received the original passport whereas in the absence of any document regarding the return of the original passport to the complainant, the learned District Forum has directed the OP to return the original passport to the complainant. In this situation, the order passed by the learned District Forum regarding the return of the original passport is liable to be quashed as it has been proved on file that the complainant had received the original passport. It is pertinent to mention here that the OP has not produced on record any employment letter from any company in Afghanistan who has given an employment to the complainant as a Plumber and with what salary.  Even in the memorandum of appeal no mention has been made about the establishment in which the employment was to be given nor is any mention of the salary. In this situation, the complainant has rightly refused to go to Afghanistan via Dubai and has rightly requested the OP for the refund of the amount paid by him. While considering all these facts, even we are of the view that there is a deficiency in service and unfair trade practice on the part of OP and OP is liable to refund the amount. The OP is not entitled to retain the fee as he has not rendered the service. Therefore, we don’t find any infirmity in the directions given by the learned District Forum for the refund of the amount and the learned District Forum has rightly passed the exparte order on merits due to the non-appearance of the OP. Therefore, with this observation, the appeal filed by the OP is partly allowed and quash the direction given by the learned District Forum regarding return of the original passport to the complainant as the complainant has already received the original passport. Rest of the order passed by the learned District Forum is upheld. Parties are left to bear their own costs.

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

Pronounced.                                                                        

2^nd February, 2011.