BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complaint  Case No:  1372 of 2009

Date of Institution :  09.10.2009

Date of  Decision   :  18.03.2010

Hardev Singh s/o Late Sh. Hari Singh r/o VPO Sheikhpur Bagh, District Nawanshahr, Punjab.

 ……Complainant

V E R S U S

(1)     Rimwea Carrier Forum Limited, SCO No. 23-25, 3^rd Floor, Sector 34-A, Chandigarh.

(2)  Dr. Kapil Kumar Garg, Managing Director, Rimwea Carrier Forum Ltd., SCO No. 23-25, 3^rd Floor, Sector 34-A, Chandigarh.

.…..Opposite Parties

CORAM:     SH.LAKSHMAN SHARMA              PRESIDENT

          SH.ASHOK RAJ BHANDARI       MEMBER

          MRS.MADHU MUTNEJA             MEMBER

PRESENT: Sh.Arun Dogra, Adv. for Complainant.

         Sh.R.K. Dogra, Adv. for OPs.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, allured by the flashy advertisements of the OPs and the high claims made by them to provide consultation and documentation for the purpose, the Complainant, who was interested in seeking immigration to Canada as a Skilled Worker, approached them along with all the required documents. After checking his eligibility, the Complainant was told to apply for immigration, as he fulfilled the requirement of embassy of Canada and was also told that his case would be processed within 04 months. Believing their words, the Complainant applied for the immigration. A total fee of Rs.60,000/- was to be charged from him and an initial amount of Rs.20,000/- was deposited by him in the office of OPs on 18.3.2009, against proper receipt (Annexure C-2) on account of processing documents and consultation charges. It was averred that the Complainant arranged all the desired documents and had also paid 550 Canadian Dollars (valuing Rs.23,100/- in Indian Rupees), after borrowing the same for the said purpose. It was alleged that despite repeated requests, representations, reminders and personal visits, the OPs failed to process his file within the requisite time of 120 days (04 months). However, in the month of May, 2009, Complainant received his File No. B055317312 directly from embassy of Canada, without ever receiving any intimation from the OP. The period of 04 months elapsed on 4.9.2009, but nothing was done by the OP to get immigration for the Complainant. So much so, that the original certificates and other documents of the Complainant were in the possession of OPs. Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed for the following reliefs:-

a)  To refund the sum of rs.20,000/- charged by them illegally along with the sum of Rs.23,100/- deposited by the Complainant along with application, along with interest @18% p.a.

b)  To pay Rs.10,000/- towards extra charges suffered by the Complainant on account of arranging documents etc.

c)  To pay Rs.1.00 lakh as compensation for the mental tension, agony and indulging in unfair trade practice.

d)  To pay Rs.15,000/- as cost of litigation.

2]      Notice of the complaint was sent to OPs seeking their version of the case. 

3]      OPs No.1 & 2 in their joint reply/written statement, while admitting the factual matrix of the case/reply, pleaded that the Complainant himself approached them for getting immigration to Canada as Federal Skilled Worker and had agreed to all the terms and conditions told to him and made the payment after being fully satisfied (Annexure R-2). Visa was to be granted by the Embassy and the OP – Company was to only give proper guidance to the Complainant, which it had provided and if the Complainant did not appear in ILETS Exam. or secured less marks, then the Company cannot be held liable for the same. It was admitted that it had charged fee of Rs.20,000/- against receipt (Annexure C-3) and the assessment fee of 550 Canadian Dollar was to be paid to respective agency directly and not to the answering OP and which was not refundable. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

4]      Parties led evidence in support of their contentions.

5]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OP No.1 & 2. We also heard the arguments put forth by the learned counsels for the Complainant and OP No. 1 & 2. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having paid a sum of Rs.20,000/- to the OPs as Retainer Fee on signing the agreement and also subsequently, Canadian $550 (Indian Rupees: 23,100/-) to the Canadian Embassy, in connection with his proposed  immigration as Federal Skilled Worker, have all been admitted. The only grievance of the Complainant against the OPs is that the OPs even after receiving a sum of Rs.20,000/- to provide expert Consultation and documentation for the purpose of immigration did not do their duty and kept him in the dark all through, resulting in the rejection of his immigration application by the Canadian Embassy. As per the Complainant, at no stage, he was advised to clear the IELTS Examination with 07 bands score, with a view to establish his proficiency in English language and because of this lack of knowledge and proper communication, he could not appear and qualify the said test, which resulted in the withdrawal of his application and the final closure of the file by the Canadian Embassy.

ii] The OPs in their written statement/ reply have denied all the allegations/charges made by the Complainant against them, by saying that they had provided full guidance and consideration to the Complainant. They had also received the complete set of documents from him and sent the same to the Canadian Embassy for processing his application for immigration as Federal Skilled Worker.  But, finally, the visa was to be granted by the Canadian Embassy and not by the OPs. Since the Complainant, on his own, did not appear in IELTS Examination, he could not qualify himself for getting immigration to Canada. Thus, there is no fault or deficiency in service on the part of the OPs and, therefore, the present complaint needs dismissal. Further, the Complainant paid CAN $550 to the Canadian Embassy directly and not to OP and the said fee was non-refundable. Therefore, the OPs cannot be asked to refund this amount to the Complainant, on account of the non-grant of visa to him for Canada.

iii] A close study of the entire case shows that the OPs even after receiving the sum of Rs.20,000/- from the Complainant have neither pursued the case properly with the Canadian Embassy, nor monitored its progress from time to time. It was the duty of the OPs to thoroughly scrutinize the papers submitted by the Complainant appraise his application in respect of his eligibility in detail before sending the same to the Canadian Embassy, they should have pointed out the discrepancies or wanting documents to the Complainant. As a matter of fact, the OPs should not have forwarded the case of the Complainant to the Canadian Embassy at all, so long as he was not fulfilling all the terms and conditions, including the requirement of appearing in IELTS Examination and securing a minimum of 07 Bands, as per needs of the Canadian Embassy for initial assessment of the case. At the time when the Complainant submitted all the required documents to the OPs, it was well known to them that he had neither appeared in IELTS Examination, nor secured any other equivalent qualification, indicating his proficiency in English language. Even, as per their own admission, the OPs say that the sum of Rs.20,000/- was paid to them by the Complainant to receive proper/ expert consultation and documentation for the purpose of proposed immigration. In the present case, neither proper consultation was provided, nor documentation was got done correctly by the OPs. It appears, that whatever documents were given by the Complainant to the OPs, they just forwarded the same to the Canadian Embassy as such, without any scrutiny or appraisal at all, acting merely as “Post Office”. This was not expected of the OPs, as they claimed to be “experts” in providing guidance, consultation and in preparation of documentation for the purpose of immigration. If the OPs had to do only this job of sending the documents as received from the Complainant without proper checking, verification and scrutiny, the same could have been done by the Complainant himself, without paying any amount to anyone and without wasting his Rs.20,000/- as paid by him to the OPs. The reason why the Complainant had gone to the OPs was that he was not aware of the total procedure and rigmarole including submission of application, preparation of documents and transmission of the same to the Canadian Embassy and he needed some expert to guide and counsel him, so that his application for immigration could succeed and that he could get Canadian immigration, as a Federal Skilled Worker. This unfortunately, did not happen, because of the aforesaid serious lapses and negligence on the part of the OPs. Even after submission of documents by the OPs to the Canadian Embassy, there is not a single letter or communication on record which the OPs might have sent either to the Canadian Embassy or to the Complainant, intimating him about the progress of the case or pointing out the discrepancies or defects in the application of the Complainant and also advising him to make corrections wherever required.

iv]  In view of the improper conduct and acts of negligence on the part of the OPs, the Complainant not only lost Rs.20,000/- as Retainer Fee/ Initial Charges paid by him to the OPs, but also another sum of Rs.23,100/-, which he deposited directly with the Canadian Embassy on the asking of the OPs, as the Case Assessment Fee. Thus, the total loss of the Complainant has been to the tune of Rs.43,100/-.

v]   The only defence taken up by the OPs in their written statement/ reply, as well as during the course of arguments is that the Complainant had signed an agreement with them, which contains the detailed terms and conditions, which are binding on the Complainant. Under the heading ‘Duties and Responsibilities of the Client’ at Sr. No. 5.5 of the Agreement, it is written that the Principal applicant must clear IELTS Examination with minimum of 07 bands as per requirement of the Canadian Embassy as per initial assessment. Further, that the applicant has to ensure that he can listen, speak, read and write fluently in English. There is no evidence on record that a copy of the agreement was ever provided to the Complainant. Even presuming that the Complainant did have a copy of the agreement with him, still it was the prime duty of the OPs to inform him in writing, as to what were the detailed requirements of getting immigration to Canada. Even the letter addressed by the Embassy to the Complainant [Annexure R-4] is addressed to the Complainant through OPs only and not directly to him.   But, presuming that this letter was also received by the Complainant directly from the Embassy and also another copy through the OPs, there was no mention, even in this letter that the Complainant is required to appear and pass the IELTS Examination, securing a minimum of 07 bands in the score obtained. Therefore, at no stage, either in writing or orally, the Complainant was informed by the OPs to take up the IELTS Examination and pass the same with at least 7 bands.   

6]      In view of the foregoings, it is well established that the OPs have not performed their duty properly and have been found wanting, as well as negligent in discharging their duties. There is, thus, clear cut deficiency of service on their part, as they failed to give proper and expert guidance and consultation to the Complainant and also did not get the documentation completed from the Complainant as per requirements of the Canadian Embassy. By not refunding the sum paid by the Complainant, they have also indulged in an unfair trade practice, hence, as they have rendered practically no service to the Complainant, but still retained his money and thereby, had unearned profit to themselves. Therefore, in our opinion, the present complaint has a lot of weight, merit and substance and hence, it must succeed. We, therefore, allow the complaint in favour of the Complainant and against OP No. 2. We pass the following order. 

7]      The OPs shall, jointly and severally, make the following payments to the Complainant:-

(i) To pay a sum of Rs.20,000/- charged by them as Retainer Fee/ Initial Charges.

(ii) To pay a sum of Rs.23,100/- which the Complainant had deposited with the Canadian Embassy on the advice of the OPs as Initial Assessment Fee.

(iii) To pay compensation of Rs.15,000/- for causing physical harassment, mental agony and pain to the Complainant on account of refusal of Canadian Visa to him due to the gross negligence of the OPs.

(iv) To pay a sum of Rs.5,000/- as litigation cost.

8]      The aforesaid order be complied with by the OPs, jointly and severally, within a period of 06 weeks from the receipt of its certified copy, failing which they shall pay the sum of Rs.58,100/-, along with interest @18% per annum calculated from the date of filing the present complaint i.e. 09.10.2009, till the date of realization, besides paying the cost of litigation as Rs.5,000/-.

13]    Certified copy of this order be communicated to the parties, free of charge. After compliance, file be consigned to record room.

Announced

18.03.2010                                       Sd/-                                   

(LAKSHMAN SHARMA)

PRESIDENT

                                                     Sd/-

(ASHOK RAJ BHANDARI)

MEMBER

                                                 Sd/-

(MADHU MUTNEJA)

MEMBER

‘Dutt’