Chandigarh

StateCommission

A/81/2015

M/s Worldwide Immigration Consultancy Services Ltd., - Complainant(s)

Versus

Rina Kumari Dhawan - Opp.Party(s)

Raman Walia, Adv.

04 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

First Appeal No.	81 of 2015
Date of Institution	09.04.2015
Date of Decision	04.06.2015

 

M/s Worldwide Immigration Consultancy Services Ltd. (WWICS), SCO No.2415-16, Sector 22-C, Chandigarh through its Director.

                                        …..Appellant/Opposite Party.

                                Versus

Rina Kumari Dhawan W/o Deepak Dhawan, r/o House No.1499, Phase 3B2, Mohali.

                                        …..Respondent/Complainant.

BEFORE:    SH. DEV RAJ, PRESIDING MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh.Raman Walia, Advocate for the appellant.

Sh.Pankaj Chandgothia, Advocate for the respondent.

 

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 02.03.2015, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed Consumer Complaint bearing No.557 of 2014, filed by the complainant, with the following directions:-

“12.     In view of the above discussion, we are of the opinion that the present complaint should succeed. The same is accordingly, allowed. The Opposite Party is directed to:-

 

[a]  To refund Rs.43,000/- to the Complainant after deducting Rs.20,000/- as its processing fee out of Rs.63,000/- paid by her towards the fee.

 

[b]  To pay Rs.20,000/- on account of deficiency in service and causing mental and physical harassment to the Complainant; 

 

[c] To pay Rs.10,000/- as costs of litigation;

 

13.      The above said order shall be complied within 30 days of its receipt by the Opposite Party; thereafter, they shall be liable for an interest @9% per annum on the amount mentioned in per sub-para [a] & [b] above, apart from paying costs of litigation of Rs.10,000/-, from the date of institution of this complaint, till it is paid. “

2.             The facts, in brief, are that the complainant entered into a contract with the Opposite Party expressing willingness for receiving its professional services with respect to preparation and submission of her immigration case under Skilled Independent category for Canada. Copy of the contract is Annexure C-1. It was stated that the Opposite Party caused the complainant to enter into another contract with one M/s Global Strategic Business Consultancy (a front body created by the Opposite Party), in order to charge double from her (complainant). It was further stated that the complainant applied through the Chandigarh Branch in the month of January, 2007 (File No. 40258) under the Bronze package offered by the Opposite Party and a total payment of Rs.63,000/- was paid in three installments. In addition, Rs.22,000/- (in Dollar rate existing at that time) were paid to the Canadian High Commission, New Delhi, as application fees. Copies of the receipts are Annexure C-2 to C-5. It was further stated that the Opposite Party never informed the complainant about the status of her application for over six years. The complainant also visited the office of the Opposite Party at Chandigarh several times, but she was put off on one pretext or the other by the Opposite Party, saying that her application was under process by the Canadian Embassy and that she would soon be successful but all these promises turned out to be false, when she received an e-mail from the Canadian Embassy saying that the Canadian Government had decided not to process her application and refunded the fee of Cnd $550 through Cheque/DD on 18.11.2013 and the same had been collected on 13.12.2013 (Annexure C-6). It was further stated that the complainant sent an e-mail on 16.12.2013 to the Opposite Party to refund the amount of Rs.63,000/-, as the Canadian Embassy had already returned the entire amount (Annexure C-7) but the Opposite Party disapproved it through e-mail dated 30.12.2013 (Annexure C-8).  It was further stated that the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.              In its written statement, the Opposite Party, admitted the factual matrix of the case. It was stated that no deficiency could be attributed towards the Opposite Party, as the case of the complainant was terminated on account of change in law by the Canadian High Commission and it (Opposite Party) played its part by preparing, filing and submitting her application before the Canadian High Commission. It was further stated that the complainant had entered into a separate Contract of Engagement dated 19.01.2007 with M/s Global Strategic Business Consultancy Dubai (in short M/s GSBC), to whom, she paid an amount of US$400 against receipt Annexure R-5. It was further stated that the said amount of US$400 could not be claimed by the complainant from the Opposite Party, as the said Company was a separate independent Company having a separate legal entity and, accordingly, the Opposite Party was not liable with regard to the same nor liable for refund of the professional fee paid to M/s GSBC and, as such, the complaint was liable to be dismissed on account of non-joinder of necessary party. It was further stated that the complainant was not entitled to any refund, in view of Clause 8 & 9 of the Contract of Agreement, which was signed by her, wherein, it was specifically agreed that the time shall not be the essence of the contract. It was further stated that the case of the complainant was duly prepared and filed in the best possible manner with the Canadian High Commission and the same was acknowledged by the Canadian High Commission vide their letter dated 08.03.2007 (Annexure R-8), stating that they received the application of the complainant for permanent residence and created a file number and further no processing was to occur on the file for approximately 48-54 months. Thus, the Opposite Party had rendered all the services, which the complainant was entitled to so as to get her case processed by the Canadian High Commission. However, as a bad luck of the complainant, the Canadian Government introduced a new Act namely Jobs, Growth and Long Term Prosperity Act, which became a law on 29.06.2012, under which, all the applications made before 27.02.2008 were terminated by the operation of law. Copy of the letter dated 24.05.2013 informing the complainant through the Opposite Party about the change in the law is Annexure R-9. It was further stated that since the application of the complainant was received by the Canadian High Commission on 27.02.2007 vide Annexure R-7, her case was also terminated by the operation of law.  It was further stated that the replying Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

4.             The parties led evidence, in support of their case.

5.             After hearing the Counsel for the complainant, Counsel for the Opposite Party, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above. 

6.             Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.

7.             We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

8.             The Counsel for the appellant/Opposite Party submitted that complainant had agreed that no refund would be applicable but the District Forum ignoring this provision in the Contract of Engagement, erroneously allowed the complaint, even though the case of the complainant had duly been processed by the Company, and, it was due to sudden change in the legislation by the Canadian Government, that the case of the complainant was returned by the Immigration Authorities and, as such, the appellant had duly performed its part of the Contract. He further submitted that as per the Refund Clause contained in the Contract of Engagement, it was clearly mentioned that the refund of professional fee paid by the complainant would not be applicable in case of changes in the Immigration Rules and Regulations, due to which, she would no longer qualify under the program for visa to the destination country and in such cases, the entire professional fee paid by the client was non-refundable. He further submitted that the Canadian Government, Ministry of Citizenship and Immigration Canada had enacted a law i.e. the Jobs, Growth and Long Term Prosperity Act, which became operative from 29.06.2012. Under this legislation Federal Skilled Worker (FSW) applications made before 27.02.2008 were terminated by operation of law, if a selection decision has not been made by an Immigration Officer before 29.03.2012. He further submitted that the case of the complainant was also effected by aforesaid provisions and her application was terminated by law and intimation whereof was sent to her (complainant) by the Canadian High Commission, thus, the appellant had no control over it. He further submitted that the District Forum while allowing the complaint, the same has been done on the basis of assumption and presumption and wrongly gave a finding that the Contract of Engagement had not been signed by the complainant but a perusal of the said contract reveals that, the same was duly signed by her.  He prayed for allowing the appeal and setting aside the impugned order.  

9.             The Counsel for the appellant/Opposite Party submitted that the complainant had entered into contract with the Opposite Party with respect to preparation and submission of her immigration case under Skilled Independent category for Canada (Annexure C-1) and the Opposite Party caused her to enter into another contract with one M/s Global Strategic Business Consultancy (a front body created by the Opposite Party), in order to charge double from her. He further submitted that the complainant applied through the Chandigarh Branch in the month of January, 2007 (File No. 40258) under the Bronze package offered by the Opposite Party and a total amount of approximately Rs.63,000/- was paid in three instalments and in addition, Rs.22,000/- (in Dollar rate existing at that time) were paid to the Canadian High Commission, New Delhi, as application fees. He further submitted that the Opposite Party never informed the complainant about the status of her application for over six years and she was promised that her case would soon be successful but all these promises turned out to be false, when she received an e-mail from the Canadian Embassy saying that the Canadian Government had decided not to process her application and refunded the fee of Cnd $550 through Cheque/DD on 18.11.2013 and the same had been collected on 13.12.2013 (Annexure C-6). He further submitted that the complainant sent an e-mail on 16.12.2013 to the Opposite Party to refund the amount of Rs.63,000/- but it refused to refund the same vide e-mail dated 30.12.2013 (Annexure C-8).  He further submitted that the District Forum rightly passed the impugned order and prayed that the impugned order may kindly be upheld.

10.            After giving our thoughtful consideration, to the submissions, raised by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed,  for the reasons, to be recorded, hereinafter.

11.            The core question, that falls for consideration, is, as to whether, the Opposite Party was liable to refund the amount to the complainant. The answer, to this, is in the affirmative. Admittedly, the complainant took the services of the Opposite Party for processing her case for permanent residency for Canada, for which, Contract of Engagement was executed between the complainant and the Opposite Party on 19.01.2007 (Annexure C-1) and on the same date i.e. 19.01.2007, another Contract of Engagement was executed between the complainant and Global Strategic Business Consultancy (page No.16 of the District Forum file). It is also an admitted fact that the complainant paid the amount vide receipts (Annexure C-2 to C-5). Annexure C-6 is a copy of the cheque of the refund of fee of Cnd $550 sent by Canadian High Commission on 18.11.2013, which was collected by the complainant on 13.12.2013., It is also evident that the complainant sent an email dated 16.12.2013 to the Opposite Party for refund of an amount of fee of Rs.63,000/-, which was rejected by the Opposite Party vide email dated 30.12.2013 (Annexure C-8). The contention of the Opposite Party that it was not liable to refund the professional fee,  as the complainant had not impleaded Global Strategic Business Consultancy as a party, is not on sound footing.  The plea of the appellant/Opposite Party that its role was limited to preparing, filing and submitting the application of the complainant before the Canadian High Commission, which was duly prepared and submitted by it (Opposite Party) before the Canadian High Commission and her case was terminated by the Canadian High Commission, due to change in law and relevant fee was already refunded to her by the Canadian High Commission is not logical. It is, no doubt, true that Global Strategic Business Consultancy was a separate independent Company and the complainant had not made the same as a party but apparently money was sent to the Company in Dubai through intervention of appellant/Opposite Party. We are, therefore, of the considered opinion that the District Forum rightly held that the complainant did not go to Dubai herself for getting the Contract entered into with the said Global Strategic Business Consultancy. The District Forum also rightly held that if fee was received by the Opposite Party for Global Strategic Business Consultancy then onus to explain the same was on the part of the appellant/Opposite Party only  as to how it received the said fee on behalf of the said Consultancy. The appellant/Opposite Party further took a plea that as the complainant had signed the Contract of Engagement, which was executed between the complainant and the Opposite Party and as per the said contract, she was not entitled to refund of the amount. Clause 10 ‘Refund’ of the Contract of Engagement (Annexure C-1) reads as under :-

“The services provided by the Company being professional in nature, the entire fee is non-refundable. However, Partial refund of the fee would be considered if the client is declared disqualified in skill assessment for Australia.

Accordingly, The Client shall be entitled to a refund of 50% of the total fee paid or an amount of Rs.25,000/- whichever is less, if the Client is declared disqualified in skill assessment for Australia.”

 

The afore-extracted refund clause made it clear that when the application of the complainant was for Canada and not for Australia then why it executed the contract with irrelevant/wrong contents. Though as per afore-extracted refund clause,the entire fee was non-refundable but since the said clause at page No.12 of the Contract of Engagement, was not signed by the respondent/complainant, the same was not binding upon the complainant. It is important to note that a bare perusal of both the contracts showed that the column ‘Client’s Signature’ are blank and the Opposite Party failed to get it signed from her on each and every page of both the contracts. The plea of the appellant/Opposite Party that both the Contracts of Engagements were signed by the complainant and to prove this, it had filed both the copies of contract (Annexure R-3 and R-7).  The District Forum rightly held that if the Opposite Party itself was not competent enough to process the case of the complainant to the Canadian High Commission, then there was no reason for it to get into any kind of contract/ agreement with the complainant and this act of involving its innocent clients unnecessarily into Agreement with unknown parties for its own selfish motive, by extorting exorbitant amount clearly amounted to deficiency in service and indulgence into unfair trade practice. Virtually, no effective service was rendered by the appellant/opposite Party. ,We are, therefore, of the considered opinion that the District Forum rightly directed the Opposite Party to refund Rs.43,000/- to the complainant after deducting Rs.20,000/- as its processing fee out of Rs.63,000/- paid by her towards the fee, an amount of Rs.20,000/- on account of deficiency in service and causing mental and physical harassment and also litigation expenses of Rs.10,000/-. The impugned order is, therefore, liable to be upheld.  

12.            Keeping in view the facts and circumstances of the case, we are of the considered view that the District Forum was right, in allowing the complaint, as stated above.   Hence, the order passed by the District Forum, being based on correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

13.            For the reasons recorded above, the appeal, filed by the appellant/Opposite Party, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs. The order of the District Forum is upheld.

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

15.            The file be consigned to Record Room, after completion.

Pronounced.

4.06.2015                                                                 Sd/-

(DEV RAJ)

 PRESIDING MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER