BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.270 of 2015
Date of Instt. 18.06.2015
Date of Decision :19.11.2015
Kanwaldeep aged about 32 years wife of Ravi Dutt D/o Naval Kishore Sharma R/o Near Thakar Dwara, VPO Allawalpur, Tehsil & District Jalandhar.
..........Complainant Versus
1. The Branch Manager, The Worldwide Immigration Consultancy Services (WWICS Ltd) A-31/A, 3rd Floor, Near Raja Garden Flyover above Yamaha Showroom, Ring Road, Rajouri Garden, New Delhi, India.
2. The Branch Manager, The Worldwide Immigration Consultancy Services (WWICS Ltd) 21-22, 3rd Floor, Midland Financial Centre, near ICICI Bank, Opp.Hotel Kings, GT Road, Jalandhar.
3. The Worldwide Immigration Consultancy Services Ltd, Corporate Office:- A-12, Industrial Area, Phase-6, Mohali.
.........Opposite parties.
Complaint Under Section 12 of the Consumer Protection Act.
Before: S. Jaspal Singh Bhatia (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.Karan Kalia Adv., counsel for complainant.
Sh.GPS Rana Adv., counsel for opposite parties.
Order
J.S.Bhatia (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant is BSc BEd and employed as teacher at SD School, Adampur. The complainant alongwith her family members i.e her husband namely Ravi Dutt, minor daughter namely Nirvi aged about 1-½ years were interested to settle in permanent residency in Canada under UpFront package for skilled worker category for total fee of Rs.1,40,000/- and on 8.5.2014, a contract of engagement was signed by the complainant and Ritu Sahota also signed the said contract being authorized signatory of the opposite parties and opposite party No.2 further told that if the complainant and her husband would not be able to get the PR, then the entire amount of the complainant shall be refunded to her. The complainant also deposited Rs.84,270/- by way of cheque bearing No.090730 dated 8.5.2014 drawn on The Citizen Urban Co-Op Bank Ltd., Kishanpura Branch, Jalandhar which was duly encashed vide receipt No.1022141176 dated 8.5.2014 on account of Retainer Fees of the company as per agreement on the same date. The complainant was told by the representatives of the opposite parties, that her case will be filed soon, after completing all the formalities and requirements as per law. On the demand of the opposite party No.2, the complainant further on 28.5.2014, deposited Rs.73,034/- as Spot Payment vide cheque bearing No.15136 of Capital Local Area bank Ltd., in favour of opposite party No.2. The complainant also deposited a sum of $204 through pay order bearing No.029867 of HDFC Bank Ltd payable to the Bank of Nova Scotia Global Wholesale Services, 44 King Street West Toronto on M5H 1H1 for providing better facilities on the arrival of the complainant and her family members in Canada on the demand of the opposite party No.2. Thereafter the opposite parties asked the complainant to complete the formality by getting six bands in IELTS, for this purpose the complainant and her husband joined the coaching classes for obtaining the required six bands and the complainant and her husband appeared three times to clear the test of IELTS but the complainant and her husband could not complete the requirement of six bands in the test of IELTS and the complainant informed to the opposite parties as they have not fulfilled the said requirements, so to refund the amount paid by her to the opposite parties. The complainant has not fulfilled the requirement of six band in IELTS, otherwise the complainant has submitted all the other documents of the complainant and her family members. Thereafter the complainant made numerous visits to the office of the opposite parties No.2 and asked them to refund her entire amount i.e Rs.84,270/-, Rs.73034/- i.e total Rs.1,57,304/- alongwith $204 Canadian dollar and every time the officials of the opposite parties made numerous excuses as, the complainant has to wait for more time. However, till today the aforesaid amount Rs.1,57,304/- alongwith $204 Canadian Dollar has not been refunded despite repeated requests and visits by the complainant. On such like averments, the complainant has prayed for refund of above said amount. She has also claimed compensation and litigation expenses.
2. Upon notice, opposite parties appeared and filed a written reply, inter-alia, pleading that the present case is a case of non-clearance of IELTS with requisite bands. The complainant as per clause 2(q) of the contract executed between the complainant and the opposite parties was required to obtain high-proficiency in English by achieving the requisite Canadian Language Bench Marks in IELTS which the complainant inspite of three attempts has failed to get. The complainant had retained the services for immigration to Canada in Skilled Worker Category on 19.5.2014 and has paid an amount of Rs.1,40,000/- (excluding service tax which is non-refundable). She had retained the services for filing her case under 50-Priority Occupation List under NOC 4214 (Early Childhood Educators and Assistants). Her case was duly processed and filed on 19.6.2014 for getting her Educational Credential Assessment done from WES (Assessment Authority, Canada) alongwith the requisite fee of US $204, vide draft dated 12.6.2014 which is non-refundable. Her assessment was got done on 15.7.2014 in which her education was recognized, the copy of the assessment report is attached herewith. Since, her education assessment was found to be recognized, her case was to be filed for permanent immigration alongwith IELTS result, however inspite of the three attempts, the complainant failed to clear her IELTS test, therefore her case could not be filed and vide her refund letter dated 17.12.2014, the complainant applied for refund. Since, opposite parties had already got her educational credential done from WES and had performed part of the contract, therefore the complainant was not entitled to any refund since as per clause 11, the services provided by the company are professional in nature, the entire fee for the services is non-refundable, thus the present complaint is liable to be dismissed, since it is the complainant herself who failed to clear her IELTS despite of three attempts inspite of giving undertaking vide clause 2(q) of the contract. It is pertinent to mention that as per clause 11(f) of the contract, out of the amount of Rs.84270/- an amount of Rs.9270/- and out of the amount of Rs.73034/- an amount of Rs.8034/- has been paid as service tax by the complainant which is totally non-refundable as the same has gone into government account as is clear from the receipt dated 8.5.2014 and 24.5.2014 which are attached. Inspite of the fact that the complainant is not entitled to any refund, still as a special case and as a goodwill gesture an amount of Rs.40,000/- is being paid to the complainant vide cheque No.464200 dated 21.7.2015 drawn on ICICI Bank, copy of which is attached. They denied other material averments of the complainant.
3. In support of her complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C5 and closed evidence.
4. On the other hand, learned counsel for the opposite parties has tendered affidavits Ex.OP-A alongwith copies of documents Ex.OP-1 to Ex.OP-9 and evidence of the opposite parties was closed by order.
5. We have carefully gone through the record and also heard the learned counsels for the parties.
6. Counsel for the complainant contended that the complainant and her husband could not pass ILETS test and as such opposite party did not send their case to Canadian Embassy, as such they are entitled to refund of the amount deposited by them. On the other hand, it has been contended by learned counsel for the opposite parties that complainant has paid 204 US Dollars vide draft dated 12.6.2014 to WES for getting Educational Credentials Assessed and this amount is non-refundable having gone into the account of WES as their fee. He further contended that since the complainant and her husband are themselves at fault in not clearing the IELTS which is pre-requisite for going abroad, as such opposite parties could not be blamed and they are not entitled to any amount. He further contended that however, as gesture of goodwill, the opposite parties are ready to refund Rs.40,000/-. In support of above contention regarding non-clearing of IELTS, learned counsel for the opposite parties has relied upon Avtar Singh Randhawa Vs. The Branch Manager, World Wide Immigration Consultancy Services Ltd and other, First Appeal No.995 of 2006 decided on 20.9.2006 and Worldwide Immigration Consultancy Services Ltd Vs. Joginder Singh, Appeal No.1576 of 2005 decided on 10.5.2006 by our own Hon'ble State Commission. We have carefully considered the contentions advanced by learned counsels for both the parties. There is no dispute regarding the law laid down in the above cited authorities. It is also not disputed that the complainant and her husband failed to clear IETLS which is necessary for going abroad. However, due to non clearing of IELTS by them, the opposite parties have also not filed their case with the Canadian Embassy. The amount of 204 US Dollars paid by the complainant vide draft went to WES (Assessment Authority, Canada) and as such the same are non-refundable. Out of the amount of Rs.84274/-, Rs.9270/- were service tax and out of the amount of Rs.73034, Rs.8034/- was service tax which also went to the government account and as such is non-refundable. After excluding the service tax, the remaining amount comes to Rs.1,40,000/- and out of this amount the opposite parties are ready to refund of Rs.40,000/- to the complainant. This fact has been pleaded by them in their written reply. No doubt the complainant is also at fault in non-clearing IELTS but at same time opposite parties have also not filed their case due to non-clearing of IELTS. The opposite parties can not be allowed unjust entrenchment due to failure of the complainant and her husband to clear the IELTS. So in these circumstances, we feel that the end of justice shall be full met if the opposite parties are directed to refund of Rs.70,000/- i.e 50% of the above said amount to the complainant.
7. In view of above discussion, the present complaint is party accepted and opposite parties are directed to pay Rs.70,000/- to the complainant within one month from the date of receipt of copy of this order failing which they shall be liable to pay interest @ 9% per annum after expiry of said period of one month till the date of payment. However, there shall be no order as to cost or compensation. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia
19.11.2015 Member Member President
