MRS. NEENA SANDHU, MEMBER

1.       This is an appeal filed by OP against order dated 8.4.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 684 of 2009.

2.       Briefly stated the facts of the case are that after reading some advertisement in the newspapers, the complainant contacted the OP company in the month of September, 2002 and expressed his desire for immigration to Canada. The complainant was assured by the OP that his case for immigration to Canada as permanent resident was OK and the OP advised the complainant to submit list of documents and pay fee for their professional services. The complainant was told to clear the ILETS test also. It was submitted that on 17.11.2002 an agreement was entered into between the complainant and the OP and the complainant deposited a sum of Rs.25,000/- as fee. As per the advice given by the OP, the complainant completed the documents and submitted his application to the OP at Chandigarh in May, 2003 along with three demand drafts to the tune of Rs.37,500/- as immigration fee in favour of Canadian High Commission payable at New Delhi. The OP without properly verifying the documents of the complainant, forwarded his case to the Canadian High Commission for immigration on 10.7.2003 and thereafter on 10.9.2003 the OP demanded the first installment of their professional fee ($700) for releasing the file number which they received from Canadian High Commission. The complainant paid this amount by demand draft in favour of Global Strategic Business Consultancy Corporation as per advice of the OP on 7.10.2003 to the OP. On 25.3.2008 the OP sent the list of documents, which the Canadian High Commission had required for processing the case of the complainant and accordingly, the complainant sent the said documents in May, 2008 to the office of OP at Chandigarh. On 6^th February, 2009, the OP demanded a sum of Rs.6100/- as the immigration processing fee for the younger son of the complainant. The complainant sent this amount vide demand draft to the OP. On 1.5.2009 the complainant received a letter dated 25.4.2009 from the OP along with a letter dated 16.1.2009 from Canadian High Commission informing the complainant about the rejection of his case for immigration to Canada as his experience did not match with the National Occupational Classification matrix. It was submitted by the complainant that the Canadian High Commission had issued the above said letter on 16.1.2009 whereas the OP informed about this to the complainant only on 1.5.2009 after a long delay of almost four months. The OP at no stage ever told the complainant that his case for immigration to Canada is not fit. The letter of rejection had been issued on 16.1.2009 whereas the OP demanded immigration processing fee for the younger son of the complainant on 6.2.2009, which was accordingly paid. If the case of the complainant had already been rejected then the OP has no business to ask for it and receive this processing fee. The above said act of OP amounts to deficiency in service and unfair trade practice. Hence, the complaint was filed.

3.       Reply was filed by the OP and pleaded that the complainant approached the OP company with regard to receiving professional services with respect to preparation and submission of his immigration case for Canadian Permanent Resident Visa and in pursuant to the same, the complainant had entered into two separate contracts of engagement, one with the OP company and the second contract with M/s GSBC Sharjah UAE. As per the clause (2) of the Contract of Engagement (Annexure R-1) the complainant was to provide all the supporting documentation and other evidence as required by the company, which include educational qualifications and experience certificates. As per the information provided by the complainant in the assessment form, the complainant was fully eligible for filing the case for immigration to Canada. It was pleaded that the complainant was to pay the OP company an amount of Rs.30,000/- as professional fee, however he had paid only Rs.25,000/-. As per the contract of Engagement the OP Company had already performed its part of duty as per the Contract of Engagement and the complainant opted for spot payment and instead of US $1500 paid 700 US $ to M/s GSBC. As per Clause (6) of the Contract of Engagement, the company was not to assist the client in procuring educational/experience certificates and the said documents were to be deposited by the complainant himself. The amount of Rs.35,500/- was paid as the visa fee charged by Canadian Immigration Authority and the said amount was the VPF for the complainant his wife and dependent children. Three drafts for Rs.27,500/- were made in the name of Canadian High Commission and the said Visa Processing Fee was non-refundable as per Clause (5) of the Contract of Engagement. The complainant had entered into two separate contracts and the amount of 700 US $ was paid by the complainant to M/s GSBC Sharjah, UAE, however the said company not impleaded as a party in the present case. It was further pleaded that the case of the complainant was duly submitted by the OP to the Canadian High Commission, New Delhi and letter with regard to receipt of the same was received on 30.7.2003. The Visa Processing Fee was forwarded to the Canadian High Commission then, later on the complainant informed the OP that he had been blessed with a baby boy on 19.5.2004. Accordingly the complainant was duly informed that the Visa Processing Fee of the second son (newly born) of the complainant was not paid at the time of filing of the immigration case in 2003 upon which the complainant sent a draft of Rs.6100/- dated 6.2.2009 in favour of Canadian High Commission, New Delhi as a processing fee for the new born baby. It was further pleaded that the rejection letter dated 16.1.2009 was received by the OP on 16.3.2009 and after analyzing the reasons for rejection of the case of the complainant, the complainant was informed about the decision taken by the Visa Officer of the Canadian High Commission vide letter dated 25.4.2009. The OP company had forwarded the draft of Rs.6100/- as VPF to the complainant but the complainant refused to receive the same on the ground that he had already filed the complaint. All other allegations leveled by the complainant in the complaint were denied and prayed that there was no deficiency in service on its part and prayed for dismissal of the complaint with exemplary costs.

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

5.       The learned District Forum allowed the complaint and directed the OP to make the following payments to the complainant. :-

i)        To refund a sum of Rs.25,000/- paid by the complainant as initial fee.

ii)       To pay back a sum of Rs.43,600/- (Rs.37,500/- + Rs.6100/-), which the complainant had paid as professional fee for obtaining the Visa to Canada at the instance of OP.

iii)      To pay a compensation of Rs.20,000/- for causing physical harassment, mental pain and agony to the complainant for a long period of six years, without his achieving any positive result and finally, leading to the rejection of his application for visa/for immigration to Canada.

iv)      To pay a sum of Rs5,000/- as litigation costs.

          The aforesaid order was directed to be complied with by the OP within a period of 6 weeks from the receipt of its certified copy, failing which the OP shall pay the said amount of Rs.88,600/- along with interest @18% p.a. from the date of rejection of the visa application by the Canadian High Commission i.e. 16.1.2009, till the date of realization, besides paying the costs of litigation as Rs.5,000/- to the complainant.

6.          Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OP.  Sh.K.S.Rupal, Advocate has appeared on behalf of appellant and Sh.Ranbir Singh Bhatia, respondent in person.

7.       In appeal, it is contended by the appellant/OP that the complainant and the appellant have entered into a Contract of Engagement and are governed as such by the said Contract of Engagement dated 17.11.2002. It is submitted that the appellant had already submitted the Immigration case of the complainant for Canada and the reason for rejection of the same by the Canadian High Commission is not attributable to the appellant company. As per clause 6 of the Contract of Engagement that the company shall not assist the client in the work i.e. in passport work, in procuring educational/experience certificates, other documents and evidence required for immigration case. The allegation as regard the delay in informing the decision of rejection of the immigration case of the complainant, it is stated that the decision was conveyed to the appellant company on 16.3.2009 which was further conveyed to the complainant on 25.4.2009 and as such there was no delay. The appellant company has received an amount of Rs.25,000/- as a Professional Fee, however vide impugned order, the learned District Forum has also directed to refund an amount of Rs.43,600/- which in fact is the Visa Processing Fee paid to the Canadian High Commission and the said fee has wrongly been treated as the professional fee paid to the appellant company. As per the Contract of Engagement, it is clearly mention that the Visa Processing Fee is non-refundable. The learned District Forum has wrongly ordered to refund of professional fee of Rs.25,000/- along with the Visa Processing Fee of Rs.43,600/- paid to the Canadian High Commission, which was non-refundable as per the Contract of Engagement. The compensation and costs of litigation with interest @ 18% has been awarded even though no deficiency in service is attributable to the appellant company. The appellant company could not have procured any experience certificate on behalf of complainant and it was the complainant himself only was required to provide the necessary documents as called upon by the Canadian High Commission. 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.       The respondent/complainant argued that with a dream to immigrate to Canada, the complainant approached the OP and on 17.11.2002 an agreement was entered into between the complainant and the OP and he deposited Rs.25,000/- as fee. After completing all the documents, the complainant submitted his application to the OP at Chandigarh in May, 2003 along with three demand drafts to the tune of Rs.37,500/- as immigration fee in favour of Canadian High Commission. The OP without properly verifying the documents, forwarded his case to the Canadian High Commission for immigration on 10.7.2003. Thereafter on 10.9.2003 the OP demanded the first installment of their professional fee i.e. Rs.37,500/- (US $ 700) for releasing the file which they received from the Canadian High Commission and the complainant paid this amount to the OP by way of demand draft in favour of Global Strategic Business Consultancy Corporation as per the advice of OP on 7.10.2003. As per letter dated 25.3.2008 received from OP, the complainant sent the documents required by the Canadian High Commission for the purpose of immigration which were duly sent by the complainant in May, 2008 to the OP. In February, 2009, the complainant was informed by the OP to send Rs.6100/- as the processing fee for his younger son and this amount was also sent by the complainant vide demand draft. On 1.5.2009 the complainant received a letter dated 25.4.2009 from the OP about the rejection of his case as his experience did not match with the National Occupational Classification Matrix. It was argued that the Canadian High Commission had issued the above said letter on 16.1.2009 whereas the OP informed about this to the complainant on 1.5.2009 after a long delay of almost four months. During this period on 6.2.2009 the OP demanded immigration processing fee for the younger son of the complainant, which was accordingly paid by the complainant, which the OP had no business to receive it, if the case of the complainant had been rejected. Hence, this act of the OP amounts to deficiency in service as well as unfair trade practice. 

9.       We have heard the arguments put forth by the learned counsel for the appellant as well as the arguments of the respondent/complainant, who appeared in person. We have also gone through the written arguments placed on record by the learned counsel for the appellant.

10.     The issues for consideration before us are

I)           Whether it is the duty of the OP to check/verify all the documents thoroughly submitted by the complainant before forwarded the case of the complainant to the Canadian High Commission.

2)           Whether there is delay on the part of OP in informing the complainant regarding the refusal for grant of visa by the Canadian High Commission.   

11.          Admittedly, the complainant had hired the professional services of the OP for preparing and submission of the immigration case for Canadian Permanent Resident Visa and for this, both the parties entered into a contract of engagement Annexure R-1 on dated 17.11.2002 at Chandigarh. After entering into the contract, the complainant had deposited a sum of Rs.25,000/- as fee for hiring the professional services of the OP. It is also established on file that on 7.10.2003 the complainant had also paid the first installment of professional fee of Rs.37,500/- (US $ 700) as per the advice of the OP to the OP by way of demand draft in favour of Global Strategic Business Consultancy Corporation. From the perusal of the Clause (a) to (d) of the Condition No.1 of the Contract of Engagement, it is clear that it is the duty of the OP to assess the client’s education (academic and professional) skills/training and experience for permanent residence in Canada and advise the client about the Canadian immigration laws. Not only this, this is also the duty of the OP to assist the client in preparation his/her case for immigration to Canadian. As per the agreement, it is the duty of the OP to check/verify all the documents furnished by the complainant before forwarding it to the Canadian High Commission. As in this case, the OP has failed to advice the complainant as to what type of experience certificate is needed for getting the immigration to Canada. Whether the experience certificate submitted by the complainant is as per the National Occupational Classification Matrix. Not only this, the OP without verifying/checking the experience certificate submitted by the complainant has just forwarded as it is to the Canadian High Commission. Therefore, the OP has failed to perform his duty as per the agreement entered between the parties. Thus there is a deficiency in service on the part of OP by not advising and guiding the complainant properly. 

12.     As regard to the second issue, we have perused Annexure A-13. From this, it is clear that the OP received the rejection letter dated 16.1.2009 from Canadian High Commission on 16.3.2009, as the same was sent by the Canadian High Commission on 12.3.2009. The OP informed the complainant about the decision taken by the Visa Officer of the Canadian High Commission vide letter dated 25.4.2009. Thus there is a delay of almost for a month in informing the complainant regarding the rejection of the Visa and not of four months as alleged by the complainant. According to us, the OP should have informed the complainant immediately after receiving the letter of rejection from the Canadian High Commission i.e. on 16.3.2009. Hence, definitely there is a delay in conveying to the complainant regarding the rejection of the visa.

13.     It is also proved on file that the complainant had paid a sum of Rs.37,500/- (US $ 700) as a professional fee to the OP, at the instance of OP by way of demand draft in favour of Global Strategic Business Consultancy Corporation and the learned District Forum has rightly ordered to the OP for the refund of this amount because the complainant had an agreement with the OP only and he had paid the aforesaid amount to the OP.   In our opinion while refunding this amount, the learned District Forum has ordered to refund this amount @ 18% p.a. which seems to be on a higher side. Thus we will prefer it to reduce it to @ 9% p.a. from the date of deposit till its actual realization. 

14.     In view of the foregoing discussion, we have come to the conclusion that there is a deficiency in service as well as unfair trade practice on the part of OP. Therefore, we dismiss the appeal and uphold the order passed by the learned District Forum with the modification in the rate of interest from @ 18% p.a. to @ 9% p.a. for the refund of Rs.43,600/- (Rs.37,500/- + Rs.6100/-) from the date of deposit till its actual realization, which the complainant had paid as professional fee for obtaining the visa to the Canada at the instance of OP. The parties are left to bear their own costs.   

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

Pronounced.                                                                        

21^st December, 2010.