For the Complainant - Mr. S. Chatterjee, Advocate
For the OP - Mr. Aninda Bhattacharya, Advocate
FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is an application u/s12 of the C.P. Act,1986. The fact of the case in brief is that the complainant Mr. Debabrata Halder came in contact with the OP in the month of December, 2016 for availing immigration service for Canada for job or business purpose. One Mr. Subhadipta Das Munshi, Counsellor of WWICS from the side of OP explained the complainant that WWICS offers a full range of service to individuals who want to migrate in Canada for job purpose. The team of professionals along with support staff at WWICS have considerable experience in dealing with the complexities of the immigration process of Canada. They provide many other services for their clients who want to migrate in Canada including PR Visa and arrangement of suitable job through their placement cell.
Mr. Subhadipta assured that this entire immigration process would take around 2 years to complete. After hearing all the above facilities the complainant was interested to enroll himself for this process and for that he was told to register with WWICS tendering the registration fees. Mr. Subhadipta then calculated the primary eligibility score based on age, work experience and educational qualification which was come up at 48 marks. The minimum marks to be eligible for this Canada immigration process is 69. Hence, the complainant was advised to give an English test and to score at least 28 marks to reach at the eligible level. The name of the test is IELTS test which is organized by British Council and to appear for the test an examination fee of Rs.12,000/- is needed. Mr. Subhadipta told him specifically that minimum 28 marks is one of the mandatory and unavoidable condition for this Canada immigration process. Mr. Subhadipta further told that the registration fee is Rs.69,000/- which is required to be paid by cheque in favour of WWICS to obtain the immigration services and accordingly, a contract will be signed in between them where all the relevant clauses are written. The complainant asked Mr. Subhadipta that in case he does not qualify in IELTS English language test then what would be the fate of the registration fees. Mr. Subhadipta assured that, in that case WWICS will refund the service charges which was reconfirmed by Smt. Debanjan Basu, Assistant Manager of WWICS. After having convinced, the complainant paid Rs.69,000/- by cheque on 19.12.2016 in favour of WWICS and signed the contract on 20.12.2016. But in the contract paper the OP did not mention about the refund of the registration fees in the event of failure in IELTS test. After the registration the complainant had started for preparation for the said test and had taken admission in World Win Institution for training and continued for 3 months. But unfortunately, he could not do better in training period and not reached at the satisfactory level from where he could go for the said test. This English test demands more and more time to practice which is impossible for him to bear being a service man. During this training period, WWICS asked him to pay the professional fees of Rs.22095/- which was paid by the complainant on 21.01.2017 under compelling circumstances. Thereafter, again WWICS had asked him to pay Rs.13,100/- for Education Credential Assessment (ECA) which was also paid by the complainant by cheque on17.05.2017 in favour of WIEZMAN FOREX LTD. as per instruction. Afterwards, it seemed to the complainant that the test is too tough to him to qualify and decided not to appear in the said test. Accordingly, he sent an e-mail dated 09.09.2017 to Smt Debanjana Basu of WWICS asking to know what would be the refund amount if he appears in the said test since in the contract paper nothing is mentioned clearly. He also stated in the said mail that without knowing the refund amount he will not sit for the said test. Smt. Basu thereafter wrote him to contact at WWICS office for refund amount. Then he contacted WWICS at their Kolkata office and asked for the total refund of Rs.1,04,195/-. WWICS vide e-mail dated 25.11.2017 declined to refund the amount. Being aggrieved with the action of the OP, the complainant contacted Consumer Affairs Department for justice which was ultimately ended with no result since WWICS did not appear in the meeting arranged by the said department. Finding no other alternative the complainant approached this Forum for ends of justice with the prayer to refund him the paid amount of Rs.1,04,195/- with interest at the rate of1.5 percent per month along with compensation and litigation cost.
The OP has contested the case by filing written version contending inter-alia that the case is not maintainable before the Ld. Forum and it is extremely complicated in nature and is not suitable for adjudication under the summary trial proceeding. As per submission, the complainant entered into contract of engagement dated 20.12.2016 with the OP under Federal Skilled Worker Category (Express Entry), Canada and paid an amount of Rs.60,000/- excluding service tax of Rs.9,000/- vide receipt dated 20.12.2016 which is non refundable. The complainant was duly provided with all the information for submitting the documents for processing his permanent immigration case before the concerned authorities as per checklist. As per Clause 2(b) of the Contract dated 20.12.2016, the complainant was required to submit his complete case filing documents along with IELTS score card within 30 days of retaining the services with the OP dated 20.12.2016 i.e. till 19.01.2017 which was however not submitted by the complainant within the said period. Therefore, the OP was under no obligation to provide further services but as a goodwill gesture the OP kept on following with the complainant for the complete set of documents.
After several reminders dated 03.01.2017, 10.01.2017 & 16.01.2017, the complainant submitted incomplete set of documents on 23.05.2017 which were assessed and forwarded to World Education Services (designated Educational Credential Assessment Authority, Canada) on 25.05.2017 for assessment and positive result was received by the OP on 19.06.2017 and the same was accordingly intimated to the complainant . Meanwhile, the checklist for further processing of his immigration case was sent to the complainant vide e-mail dated 08.06.2017. In response, the OP received only resume of the complainant vide e-mail dated 23.06.2017 and the resume of the complainant was assessed and discrepancies were sent vide e-mail dated 29.06.2017. After numerous reminders and follow ups, the OP received final updated resume and finalized the resume of the complainant vide e-mail 15.07.2017. Despite being reminded on numerous occasions the complainant failed to submit his IELTS score card till date as the complainant failed to score requisite scores in his IELTS exam, due to which his immigration case could not be processed further. Later on, the complainant became disinterested and filed refund application on 24.11.2017. As per Clause 2(b)(c),11(i)(iii) and 12(a)(1)(5) of the contract, the complainant is not entitled to any refund. The OP is still ready and willing to perform their part of the contract as case of the complainant has not been rejected and can be still considered provided the complainant submits his required IELTS score card. Since the same has not been furnished the present complaint is liable to be dismissed on this ground alone. It is pertinent to mention that out of Rs.69,000/- paid by the complainant, Rs.9,000/- has been paid as service tax which has gone in the Government’s account and is non-refundable and as per Clause 11(i)(iii) of the contract dated 20.12.2016 this amount cannot be claimed from the answering OP. The OP has rendered servicing such as-
- Counseling and advising the client about the immigration category and the immigration procedure to be followed.
- Providing and counseling about immigration package and the checklist of documents.
- Advising and guiding the complainant in preparation of documents and forms.
Thus, the OP had duly been performing their part of contract right from the time when the complainant had written the services. The complainant deliberately did not appear in the IELTS examination knowing fully well that qualifying in the IELTS examination is a major and primary criteria for immigration to any foreign country which is totally the responsibility of the complainant where the OP has no domain. As such, there is no deficiency of service on the part of the OP.
Moreover, the Hon’ble DCDRF, Kolkata does not have the jurisdiction to entertain the present complaint since the complainant had agreed in Clause 20 of the Contract that all the differences and disputes arising between the parties shall be referred to the sole arbitrator appointed by the company.
Points for Determination
On the pleading of both the parties, the following points have necessarily come up for determination.
1) Whether the OP is deficient in rendering proper service to the complainant.
2) Whether the OP has adopted any unfair trade practice.
3) Whether the complainant is entitled to get relief or reliefs as prayed for.
Decision with Reasons
Point Nos. 1 to 3:-
All the points are taken up together for the sake of convenience and brevity in discussion.
Facts remain that the complainant Mr. Debabrata Halder being interested in the immigration services for Canada contacted the OP and was convinced after due discussion with Mr. Subhadipta Das Munshi of the OP in the said matter. It is admitted fact that the complainant is B.Com.,MBA and the complainant was aware of all the clauses of the contract including refund and was also aware of the fact that for international study, migration and work, qualifying English test is must and it is a pre-condition to the migration to Canada or Australia as envisaged from the reply of the complainant against the Questionnaire of the OP.
Now let us observe the dates of the different steps followed by both the parties in the said matter. The contract was signed by the complainant on 20.12.2016. Complete set of documents were submitted by the complainant on 15.07.2017. Documents were forwarded by OP to World Education Services (designated Educational Credential Assessment authority on 25.05.2017 for assessment and Positive result was received by the OP on 19.06.2017 and the same was duly intimated to the complainant .The application for refund of the complainant was received by the OP on 28.10.2017 which was disapproved by the OP vide mail dated 25.11.2017. The complainant took admission in World Win Institution, CK-122, Salt Lake City, Sector-II, Kolkata-700091 for IELTS training and paid Rs.9000/- as cost of the training for 3 months vide Receipt dated 07.01.2017.
The Complainant paid Rs.69,000/- by cheque dated 21.12.2016 in favour of WWICS for retention fee/registration fees and thereafter paid Rs.22095/- by cheque dated 04.01.2017 in favour Centrum Direct Ltd. for professional fees for Canada Express Entry System .Receipt was issued by S.DasMunshi of WWICS and thereafter paid Rs.13,100/- by cheque dated 17.05.2017 in favour of Wiezman Forex Ltd. for Educational Credential Assessment fees. As per submission of OP in their written version, the documents of the complainant were forwarded to World Education Services (designated Educational Credential Assessment Authority, Canada) on 25.05.2017 for assessment and positive result was received by the OP on 19.06.2017 which was duly forwarded to the complainant. This was not opposed by the complainant anywhere in his submission.
From the Refund Application dated 28.10.2017 it appears that the complainant was not interested for immigration to Canada/Australia. The registration with WWICS was done on 20.12.2016. WWICS was engaged in the said immigration process for almost one year and the complainant out of his own desired to come out from the process. WWICS received Rs.69000/- on 21.12.16 and Rs.22095/- on 04.01.2017. Rs.13,100/- received on 17.05.2017 has been spent on account of ECA Fees.. As such, he cannot claim the full amount .
.
The Forum has however gone through the clauses of the Contract of Engagement specially the Refund Clause No.11 (IV) where there is a mention of refund in case the candidate genuinely disqualifies the selection criteria. Since the complainant was mentally disqualified in the matter of his success in the written test he could not be successful thereafter even after primary selection. As such the principle of natural justice in favour of the complainant cannot be ignored by the Forum. Since the terms and conditions are framed exclusively by the Company and there is no scope of any bargaining power of the complainant where he has to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of contract the said terms and conditions may be interpreted otherwise as one sided. The Civil Appeal No. 12238 of 2018 & the Civil Appeal No. 1677 of 2019 of the Hon’ble Supreme Court of India in the matter of Pioneer Urban Land & Infrastructure Ltd. VS Gobindan Raghavan and Geeta Gidwani Verma & anr. are very much relevant. In view of the above, the Forum considers it justified to refund a portion of the amount to the tune of Rs.40,000/- to the complainant by the OP against his total payments of Rs.1,04,195/- purely on non standard basis.
Thus all the points under determination are disposed of.
In the result, the complaint case succeeds in part.
Hence,
Ordered
That the complaint case be and the same is allowed on contest in part against the OP with the following direction.
OP is directed to refund Rs.40,000/- to the complainant on non standard basis within a period of 45 days . In default the complainant is at liberty to put this order into execution as per rules.
