MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
Instant Appeal under Section 15 of the Consumer Protection Act, 1986 has been filed challenging the judgment and order No. 36 dated 08.12.2016 passed by the Ld. District Forum, Kolkata, Unit – I in Complaint Case No. CC/11/292 allowing the complaint on contest with the direction as under:-
“that the CC No.292/2011 is allowed on contest with cost against the o.p. The o.p. is directed to refund the complainant a sum of Rs.50,000/- (Rupees fifty thousand) only along with compensation of Rs.20,000/- (Rupees twenty thousand) only harassment and mental agony and litigation cost of Rs.2,000/- (Rupees two thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization”.
The fact, in brief, having relevance with the instant complaint was that the Respondent/Complainant had entered into an Agreement with the Appellant/O.P. Company for Green Card Scheme for Denmark paying an amount of Rs.50,000/-. The Appellant/O.P., allegedly presented two packages of the Danish Green Card Visa namely, Gold and Bronze, providing pre-landing and post landing and only pre-landing services respectively in such a way as if the lucrative services, as above, were likely to be available at the door step and convinced him that all formalities on papers, whatever rigid apparently it might be, were not so sacrosanct to be very religiously observed.
As regards, International English Language Test System (for short, ‘IELTS’), which the Respondent/Complainant heard from elsewhere earlier, the Appellant/O.P. had assured that such tests were of no necessity for him. The Respondent/Complainant was made to understand in addition that the Appellant/Complainant would shoulder the responsibility for successful implementation of his scheme.
The Respondent/Complainant allegedly submitted all notarized documents as advanced by the Appellant/O.P. The Respondent/Complainant subsequently, after payment of fees to the tune of Rs.50,000/- was made to the Appellant/O.P., was once again asked to handover a list of 17 items, one of which was two coloured photocopies of his original Bachelor Degree, duly attested by Ministry of Foreign Affairs, Nepal, which was seemingly not feasible and attainable by the Respondent/Complainant.
The Respondent/Complainant, in spite of vigorous persuasion thereafter, could not get the Visa clearance or any indication thereof which made him demand his hard-earned money back through physical persuasion with the Appellant/O.P and formal communication made to him. All his persuasions including lodging of FIR with the Bhawanipur Police Station since had gone in vain, the Respondent/Complainant resorted to the legal path filing the complaint petition. The disposal order of the said complaint case was the order impugned in the instant appeal.
Heard the case ex-parte against the Respondent/Complainant.
Ld. Advocate appearing on behalf of the Appellant/O.P. submitted that the visa application was cancelled due to fault on the part of the Respondent/Complainant. As she continued, the Respondent/Complainant did not submit the requisite documents for processing the visa claim in spite of repeated reminders. What was more, the Respondent/Complainant could clear the IELTS which was a mandatory requirement for clearing the visa proposal. The entire claim, as she continued to submit, was adequately explained to the Respondent/Complainant and the Respondent/Complainant without playing the role on his part, now trying to shift the entire blame upon the Appellant/O.P. with a designed motive of a financial gain which he was never entitled to. She concluded her precise submission with the prayer for allowing the appeal setting aside the impugned judgment and order.
Perused the papers on record and considered the submission of the Learned Advocate appearing on behalf of the Appellant/O.P. The record revealed that the notice was duly served upon the Respondent/Complainant who preferred to withdraw himself from taking part in the hearing of the appeal resulting in a compulsive ex-parte hearing of the appeal against him.
It appeared that the Respondent/Complainant brought allegation primarily on the following points against Appellant/O.P.
- He was put to a situation for signing the papers in haste without the policy clause being adequately explained to him.
- He was not explained in details about the documents he was supposed to furnish for processing the proposal.
The record however, revealed that the Respondent/Complainant paid the amount of Rs.50,000/- and signed the agreement papers which were sufficiently explicit about the “dos and don’ts” in respect of the aspiring applicants. The guidelines for refund of the advance amount appeared to have been sufficiently explained in the Agreement terms. The Respondent/Complainant appeared to have signed the agreement and presumably, after being satisfied with the policy document, he had accepted the scheme.
We did not find in the claim of the Respondent/Complainant any deviation from what the Bench had experienced many a times earlier. It was the same pleading of signing an agreement without being read and its terms and conditions interpreted and assimilated being, as alleged, wrongly convinced by the O.Ps.
There were plethora of decisions where the Hon’ble Apex Court held that the parties were bound by the terms of the agreement and any deviation from the same by the participating sides should be treated as a breach of conditions not acceptable by any legal Forum. In this context, we may rely on the decision passed by the Hon’ble Apex Court in (1996) 4 Supreme Court Cases 704 [Bharathi Knitting Company – vs. – DHL Worldwide Express Courier Division of Airfreight Ltd] wherein the Hon’ble Supreme Court has held “When a person signs a document which contains certain contractural terms, normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. Although in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy, but each case depends upon its own facts. In an appropriate case where there is an acute dispute of the facts necessarily the tribunal has to refer the parties to original civil court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract”.
In the light of the above, the pleading of the Respondent/Complainant about his signing the agreement papers in haste without going through those and thereby his ignorance about the terms of agreement did not attract any consideration in his favour.
Further, the Respondent/Complainant was supposed to establish his competence in speaking, reading and writing in English through clearing IELTS, which appeared to be a mandatory requirement as per the terms delineated in the guidelines. The plea that such clearance of IELTS was never emphasized upon before entering the agreement, therefore, remained unacceptable.
As regards allegation of non-specifying the documents to be furnished, the Respondent/Complainant confessed to the facts that the Appellant/O.P. had asked him to furnish 17 documents of which one was two coloured photocopies of original Bachelor degree, duly attested by Ministry of Foreign Affairs, Nepal, which, as per pleading in the complaint petition, was seemingly not feasible and attainable by the Respondent/Complainant. The complaint, at para No. 13 was revealing that the documents were asked to be furnished after the agreement was entered into by and between the parties and the fees amounting to Rs.50,000/- was advanced. This only went to indicate that the Respondent/Complainant was not properly explained about the documents to be furnished prior to entering into the agreement by the Appellant/O.P. which was a lapse on his part.
We, however, are not convinced that the initiative to explain the matter was the liability of the Appellant/O.P. only. Clauses 8 and 9 of the Agreement were found to be explanatory about the documents needed to be submitted. Since the Respondent/Complainant was an educated person, expectedly, he should have signed the documents after perusing the same and after being sufficiently explained about the grey areas of the terms of the guidelines. So, it was felt unreasonable to shift liabilities of not explaining the terms entirely upon the Appellant/O.P. In this field, we find contributory negligence on the part of both sides where the negligence of the Appellant/O.P. had outweighed the same on the part of the Respondent/Complainant.
Given to the facts and circumstances narrated above, we are of the considered view that the appeal should be allowed in part. The Appellant/O.P. is hereby directed to pay back the Respondent/Complainant the amount paid in advance after deducting from the same 25% as processing charge. We are also of the view that the cost and compensation should be suitably reduced since those were assessed at a higher side.
It is further directed to pay a cost and compensation to the tune of Rs.3,000/- and 5,000/- respectively to the Respondent/Complainant. The directions are to be carried out within 45 days from the date of this order, failing which, simple interest @ 9% shall accrue to the decretal amount excepting the cost component from the date of default till the entire amount is fully realized.
The impugned judgment and order stands modified accordingly.
