BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 06/11/2009

Date of Order : 30/06/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 597/2009

Between

And

Date of filing : 12/04/2010

Date of Order : 30/06/2012

C.C. No. 221/2010

Between

And

C.C. No. 222/2010

Between

And

C.C. No. 223/2010

Between

And

C.C. No. 225/2010

Between

And

C.C. No. 226/2010

Between

 

And

C.C. No. 229/2010

Between

And

C O M M O N O R D E R

A. Rajesh, President.

1. At the instance of the opposite parties vide order in I.A. No. 37/2010 dated 18-01-2011, this Forum allowed joint trial of the above cases treating C.C. No. 597/2009 as the leading case. In furtherance of the same, we are disposing off the above complaints by this common order.

2. The case of the complainant in C.C. No. 597/2009 is as follows :-

The complainant is a qualified nurse. The opposite parties are the office bearers of M/s. GISA International which is an agency for recruiting people to the foreign countries. The opposite parties made believe that the GEC, Canada has authorised GISA International as their agent in India. Lured by the assurances of the opposite parties on 05-07-2006, the complainant submitted her bio-data and Rs. 2,500/- to forward the documents to the foreign country. On 26-09-2006, the 1^st opposite party informed that an offer letter came from Netherlands and told the complainant to pay an amount of Rs. 50,000/-. The complainant collected the offer letter and paid Rs. 50,000/- and in turn the 1^st opposite party issued receipt for the like amount. The 1^st opposite party offered family visa and asked the complainant to send 4,300/- Euro (Rs. 2,79,500/-) to the account of GEC at Thailand. The complainant send the amount on 04-11-2006. On 11-12-2007, the 1^st opposite party demanded the complainant to send 2025 Euro (Rs. 1,31,625/-) for the purpose of remitting IDFMS fees. On 13-12-2007, the complainant sent the amount. Thereafter on 29-12-2007, on 06-08-2008 and on 10-12-2008, as per the direction of the 1^st opposite party, the complainant sent 470 Euro (Rs. 30,550/-), 1685 Euro (Rs. 1,09,525/-) and 1380 Euro (Rs. 89,700/-) respectively. Thus, the complainant remitted a total amount of 9860 Euro (Rs. 6,40,900/-) with the account of GEC and the opposite parties collected a sum of Rs. 52,500/-. The opposite parties failed to arrange visa to the complainant as promised by them. There is deficiency in service on their part. Thus, the complainant preferred this complaint seeking direction against the opposite parties to refund the above amounts and to pay a compensation of Rs. 5 lakhs.

3. The other complainants as well have raised similar contentions not verifying and the following respective amounts from the opposite parties :

C.C. Nos.	Amount claimed	Compensation
221/2010	Rs. 4,00,000/- with interest @ 12%	Rs. 5,00,000/-
222/2010	Rs. 4,81,470/- with interest @ 12%	“
223/2010	Rs. 3,36,200/- with interest @ 12%	“
225/2010	Rs. 4,00,000/- with interest @ 12%	“
226/2010	Rs. 4,34,780/- with interest @ 12%	“
229/2010	Rs. 3,04,100/- with interest @ 12%	“

4. The version of the opposite parties in C.C. No. 597/2009 is as follows :

The complaint is bad for non-joinder of necessary parties. The complainant paid the money directly to M/s. Global Employment Consultancy (GEC) Bangkok, Thailand and they are a necessary party to the complaint. The opposite parties did not offer any service as defined in Section 2 (1)(o) of the Consumer Protection Act. The relationship of the complainant and the opposite parties are only a contract for personal service which is beyond the jurisdiction of the Forum. The opposite parties had not offered placement for the complainant at Netherlands as staff nurse. The 1^st opposite party has introduced some candidates to GEC, Thailand and had accepted a sum of Rs. 50,000/- as service charges. The opposite parties never informed the complainant to deposit any amount to the account of GEC. The complainant deposited all the money as per the instruction of GEC and the same was transferred to the account of GEC. At the instance of the police, the 2^nd opposite party was compelled to issue signed blank cheque book to the police and other persons. On the same day, the 1^st opposite party handed over Rs 50,000/- to the complainant and she gave a receipt for the same. The complainant is not entitled to get any of the reliefs as claimed for.

5. The opposite parties filed separate versions in the other complaints raising the very same contentions in C.C. No. 597/2009.

6. The following documents were marked on the side of the complainants :

Serial No.	Complaint Nos.	Exhibits	Remarks
	C.C. No. 597/2009	A1 to A17
	C.C. No. 226/2010	A18 to A27
	C.C. No. 221/2010	A28 to A40
	C.C. No. 222/2010	A41 to A52
	C.C. No. 223/2010	A53 to A59
	C.C. No. 225/2010	A60 to A71
	C.C. No. 227/2010	A72 to A81	Counsel for the complainant chose not to press this complaint.
	C.C. No. 229/2010	A82 to A88

The power of attorney of the complainant in C.C. No. 597/2009 was examined as PW1. The complainant in C.C. No. 226/2010 was examined as PW2. The 1^st opposite party was examined as DW1 and Ext. B1 was marked on the side of the opposite parties. Heard the learned counsel for the parties.

7. The points that arose for consideration are as follows :-

1. Whether the complaints are maintainable in this Forum?

2. Whether the complainants are entitled to get the respective amounts claimed in the complaints refunded from the opposite parties?

3. Whether the opposite parties are liable to pay compensation to the complainants?

8. Point No. i. :- At the threshold, the learned counsel for the opposite parties vehemently contended that the opposite parties did not offer any service as defined under Section 2(1)(o) of the Consumer Protection Act and the relationship of the complainants with the opposite parties is only a contract for personal service, which is beyond the jurisdiction of this Forum.

9. Section 2(1)(o) of the Consumer Protection Act reads as follows :-

“Service” means service of any description which is made available to potential (users and includes, but not limited to, the provision of) facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

10. In Oxford Companion to Law (Page 1134) contract for services has been defined as follows :

“In Roman Law – Location operas faciendi, the contract whereby one party undertakes to render services, eg. Professional or technical services to or for another in the performance of which he is not subject to detailed direction and control but exercises professional or technical skill and uses his own knowledge and discretion there are two major groups of such services, professional services of lawyers accountants, surgeons and the like and technical services of building and engineering contractors, builders garages and many more.”

In Strouds Judicial Dictionary (Page 540, 5^th Ed.) it is mentioned :

“A contract to render services is not the same thing as a 'contract of service', semble the latter implies some relationship of master and servant and involves an obligation to obey orders in the work to be preformed and as to its mode and manner of performance.”

11. Personal service stems from a master and servant relationship which is totally different from a service provider-consumer relationship. The reason for excluding the rendering of service “under a contract of personal service” from the definition of service under the Consumer Protection Act is obvious. Such an employee can be turned out of service by the master at will, and therefore, no occasion can arise for the master to complain about the deficiency in the rendering of service by the employee.

12. From the forgoing discussions, we have no hesitation to hold that the law does not foreclose the authority of this Forum to entertain these complaints.

13. Point No. ii. :- The learned counsel for the complainants argued that the opposite parties are solely responsible for the deficiency in service on their part and they are liable to refund the amount together with compensation of Rs. 5 lakhs each.

14. On the contrary, the learned counsel for the opposite parties by relying on Section 230 of the Contract Act contended that the opposite parties disclosed the name and address of the principal and an agent contracting in the name of principal is not entitled to sue, not can be sued on such contracts. The counsel further contended that the duty of the 1^st opposite party was over when she referred the name of the complainants to GEC and the complainants themselves transferred the money to the bank account of the GEC. The counsel relied on the following decisions rendered by the Higher Judiciary :

1. Midland Overseas Vs. M.V. CMBT Tana and Others AIR 1999 Bombay 401.

2. James Machintosh & Co. Pvt. Ltd. Vs. Shree Yamuna Milk Co. Ltd. 1990 (2) KLT 237.

3. Marine Container Services South Pvt. Ltd. Vs. Go Go Garments (1998) 3 SCC 247.

15. Admittedly, at the threshold, the 1^st opposite party received a sum of Rs. 50,000/- each from the complainants towards service charges evidenced by Exhibits. A2, A18, A28, A41, A54, A61 and A82. It is not in dispute that the remaining amounts were forwarded by the complainants to the bank account of M/s. Global Employment Consultancy Bangkok, Thailand only, according to the complainants as per the direction of the 1^st opposite party and according to the opposite parties, the complainants directly dealt with GEC and forwarded the money.

16. Section 230 of the Indian contract Act reads as follows :-

“230. In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.

Such a contract shall be presumed to exist in the following cases :-

Presumption of contract to contrary :

(1) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;

(2) Where the agent does not disclose the name of his principal;

(3) where the principal, though disclosed, cannot be sued.”

17. A plain reading to Section 230 will show that in a case, where the contract is made by an agent for the sale or purchase of goods for a merchant residing abroad, there is a presumption of existence of a contract to the effect that the agent can personally enforce the contract or be personally bound to it. This provision is meant to deal with contracts for sale or purchase of goods. The instant case is one of hiring of services. The present case does not come within the ambit of this explanation to Section 230 of the Contract Act. How, the learned counsel for the opposite parties would have relied on such contention is seemingly unfounded, since the complainants had only hired services of the opposite parties and had to avail themselves of the agent. Therefore, neither is Section 230 of the Contract Act applicable in the instant cases, nor are the above decisions cited by the counsel for the opposite parties, which had been rendered by the Hon'ble Higher Judiciary by interpreting Section 230 of the Contract Act.

18. It is pertinent to note that in the preliminary confirmation of employment offer issued by the GEC to the complainants. (Exts. A4, A19, A29, A42, A55, A60, A83) reads as follows :

“Authorised person : Mrs. Sadhana Gilbert (For all the enquiries, documents and fees handling).”

Though the opposite parties contended that their relationship with the GEC is that of principal and agent, the same has not been substantiated. Per contra, the above documents go to show that the 1^st opposite party is the authorised person of GEC for all the enquiries, documents and fees handling. There is no explanation forthcoming on the part of the 1^st opposite party on the same. Moreover, there is no privity of contract between the complainants and the GEC instead the privity of contract lies more on the 1^st opposite party. The 1^st opposite party ought to have disclosed to the complainants, at the outset, that she has no responsibility to the complainants with regard to their employment abroad in which evidently she failed especially, eventhough she received a sum of Rs. 50,000/- each from the complainants and the reason for the receipt of the amount is not forthcoming from her.

19. In every respect, the 1^st opposite party has failed to prove her claimed innocence in exonerating herself from liability legally. In view of the above, the 1^st opposite party is legally liable to refund the following amounts to the complainants as per schedule below :

C.C. Nos.	Bill Date	Exhibits	Bill Amount
597/2009	26-09-2006	A2	Rs. 50,000/-
	04-11-2006	A5	Euro 4300
	14-12-2007	A7	Euro 2025
	29-12-2007	A9	Euro 470
	06-08-2008	A10	Euro 1685
	10-12-2008	A11	Euro 1380
226/2010	16-04-2007	A18	Rs. 50,000/-
	26-05-2007	A20	Euro 4300
	11-01-2008	A21	Euro 470
	07-10-2008	A22	Euro 1060
221/2010	03-11-2006	A28	Rs. 50,000/-
	30-01-2007	A30	Euro 4300
	08-01-2008	A31	Euro 1215
	11-01-2008	A32	Euro 470
	08-08-2008	A33	Euro 1310
	20-12-2008	A34	Euro 910
222/2010	25-04-2007	A41	Rs. 50,000/-
	19-05-2007	A43	Euro 4300
	09-01-2008	A44	Euro 1215
	10-01-2008	A45	Euro 470
	07-01-2008	A46	Euro 1310
223/2010	12-06-2006	A54	Rs. 50,000/-
	11-08-2006	A56	Euro 4300
225/2010	12-12-2006	A61	Euro 4300
	16-04-2008	A62	Euro 610
	16-04-2008	A64	Euro 470
	11-08-2008	A65	Euro 1310
	10-12-2008	A66	Euro 910
229/2010	04-07-2006	A82	Rs. 50,000/-
	27-07-2006	A84	Euro 3850

20. Point No. iii. :- The complainants had put their heart and sole and all their means and efforts available to obtain a visa for the job abroad for which they had longed life long and for which they had ambitions and dreams which had been shattered by the sole act of the 1^st opposite party. This necessarily calls in law for compensation, we fix it at Rs. 50,000/- each in each case.

21. In the result, we partly allow the complaints in part and direct as follows :-

1. In C.C. No. 597/2009, the 1^st opposite party shall pay the amounts as per Exts. A2, 5, 7, 9, 10 and 11 with interest @ 12% p.a. from the date of receipt till realisation.

2. In C.C. No. 221/2010, the 1^st opposite party shall pay the amounts as per Exts. A28, 30, 31, 32, 33 and 34 with interest @ 12% p.a. from the date of receipt till realisation.

3. In C.C. No. 222/2010, the 1^st opposite party shall pay the amounts as per Exts. A41, 43, 44, 45 and 46 with interest @ 12% p.a. from the date of receipt till realisation.

4. In C.C. No. 223/2010, the 1^st opposite party shall pay the amounts as per Exts. A54 and 56 with interest @ 12% p.a. from the date of receipt till realisation.

5. In C.C. No. 225/2010, the 1^st opposite party shall pay the amounts as per Exts. A61, 62, 64, 65 and 66 with interest @ 12% p.a. from the date of receipt till realisation.

6. In C.C. No. 226/2010, the 1^st opposite party shall pay the amounts as per Exts. A18, 20, 21 and 22 with interest @ 12% p.a. from the date of receipt till realisation.

7. In C.C. No. 229/2010, the 1^st opposite party shall pay the amounts as per Exts. A82 and 84 with interest @ 12% p.a. from the date of receipt till realisation.

8. In the above complaints, the 1^st opposite party shall also pay Rs. 50,000/- each to each of the complainant.

The above orders shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 30^th day of June 2012

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

In C.C. No. 597/2009 :

Complainant's Exhibits :-

Opposite party's Exhibits :-

In C.C. No. 226/2010 :

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

In C.C. No. 221/2010 :

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

In C.C. No. 222/2010 :

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

In C.C. No. 223/2010 :

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

In C.C. No. 225/2010 :

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

In C.C. No. 229/2010 :

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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