Chandigarh

StateCommission

A/126/2015

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

Versus

Vinay Kumar Bhagat - Opp.Party(s)

Raman Walia, Adv.

04 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

First Appeal No.	126 of 2015
Date of Institution	02.06.2015
Date of Decision	04.06.2015

 

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

                                        …..Appellant/Opposite Party.

                                Versus

Vinay Kumar Bhagat (In fact Vinay Kumari Bhagat) W/o Sh.Baljinder Kumar, r/o House No.3327, 2^nd floor, Sector 23-D, Chandigarh.

                                        …..Respondent/Complainant.

BEFORE:    SH. DEV RAJ, PRESIDING MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh.Raman Walia, Advocate for the appellant.

 

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 24.04.2015, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it partly allowed Consumer Complaint bearing No.636 of 2014, filed by the complainant, with the following directions:-

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

 [a] To pay Rs.50,000/- on account of deficiency in service and causing mental and physical harassment to the Complainant; 

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

15.   The above said order shall be complied within 30 days of its receipt by the Opposite Party; thereafter, Opposite Party shall be liable for an interest @12% per annum on the amount mentioned in sub-para [a] 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 engaged the services of the Opposite Party, for processing her case for permanent residency for Australia, on 19.12.2013, by paying an amount Rs.61,798/- (Rs.40,000/- + Rs.21,798/-) through her credit card vide receipt Annexure C-2. It was stated that the complainant further paid an amount of Rs.43,534/- (796$) to Vetassess towards processing fee on 21.01.2014 vide Annexure C-3. The Opposite Party assured that the whole process would be completed in 8/12 months but after waiting for 8/12 months, when there was no positive response from the Opposite Party, the complainant made a number of visits to the office of the Opposite Party and even exchanged a number of e-mails regarding the status of her case, but no fruitful result came out. It was further stated that the complainant was fed up with the attitude of the Opposite Party and, as such, she made a request to refund the whole amount paid by her, but it refused to refund the same.  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 the complainant had engaged the services of the Opposite Party by entering into a Contract of Engagement dated 19.12.2013 for immigration to Australia under Skilled Worker Category – Skills Assessment (Annexure R-1) and paid a total professional fee of Rs.55,000/-, against which, two receipts were issued to her (Annexure R-2 & R-3). It was further stated that the amount of Rs.6,798/- was paid as taxes. It was further stated that an amount of Australian Dollar 796 was paid as fee to respective Skill Assessment Body (Annexure R-4), which was non-refundable, as per Clause 7 of the Contract of Engagement dated 19.12.2013. It was further stated that the Opposite Party was to prepare, submit and file the case of the complainant before the respective Skill Assessment Body, as per Clause 1 of the Contract of Engagement. It was further stated that the Opposite Party was nowhere at fault and no deficiency in service could be attributed towards it (Opposite Party), as it performed its part. It was further stated that the complainant was not entitled to any refund, as per Clause 11 of the Contract of Engagement.  It was further stated that as result of the assessment was declared negative by the respective body and further an explanation was given to its effect by the respective body itself,  the Opposite Party was nowhere at fault, as it duly prepared, filed and submitted the case of the complainant before the respective authorities.     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 complainant in person, Counsel for the Opposite Party, and, on going through the evidence, and record of the case, the District Forum, partly 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 appellant/Opposite Party, and have gone through the evidence and record of the case, carefully. 

8.             The Counsel for the appellant/Opposite Party submitted that as per Contract of Engagement no refund was permissible. He further submitted that the District Forum erroneously partly allowed the complaint, even though the case of the complainant had duly been processed by the Opposite Party for getting skill assessment from the respective Skill Assessment body under the requisite category and was acknowledged by the respective skill assessment body. However, the result on the application of the complainant was declared negative by the skill assessment body by stating that the qualifications and/or employment experience of the complainant, as described did not meet the requirements for the nominated occupation of customer service. He further submitted that the role of the Opposite Party was only to compile, prepare and submit a case for skill assessment from the respective assessing authority in Australia and, as such, the Opposite Party had duly performed its part of contract. He further submitted that as per the refund clause, as contained in the Contract of Engagement, it was clearly mentioned that the entire professional fee paid by the complainant shall be non-refundable, accordingly, there was no reason to file the complaint, when he was signatory to the contract. He prayed for allowing the appeal and setting aside the impugned order.  

9.             After giving our thoughtful consideration, to the submissions, raised by the Counsel for the appellant/Opposite Party, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded, hereinafter.

10.            The core question, that falls for consideration, is, as to whether, the District Forum rightly granted compensation and litigation expenses to the complainant. The answer, to this, is in the affirmative. Admittedly, the complainant availed the services of the Opposite Party for processing her case for permanent residency for Australia, for which, she paid an amount of Rs.61798/- vide receipt dated 19.12.2013 (Annexure C-2). In addition, an amount of Rs.43,534/- (796$) towards processing fee was paid to Vetassess (Annexure C-3). Annexure C-4 are the copies of emails/communications exchanged between the complainant and the Opposite Party and Vetassess. It is also evident that the complainant sent an application dated 14.07.2014 (Annexure C-1) to the Opposite Party regarding refund of the deposited amount, as her case was not considered positively due to wrong nominated occupation and the same was rejected by the Opposite Party vide email (Annexure C-6). It is, no doubt, true that Vetassess is a separate independent Company at Australia, whose services were taken by the Opposite Party for skill assessment. According to Opposite Party, its role was for preparing, filing and submitting the application of the complainant before the Vetassess Australia (Skill Assessment Body) but she did not make Vetassess as a party and, as such, the Opposite Party was not liable for refund of the fee to her because the same was paid to Vetassess. The appellant/Opposite Party further took a plea that there being no provision in the Contract of Engagement (Annexure R-1) signed by the complainant, she was not entitled to refund of the fee. In our opinion, the District Forum rightly held that the complainant did not go to Australia herself to get into contact with Vetassess and to pay the required fee to it. In so far as plea of the Opposite Party regarding the jurisdiction is concerned, a bare perusal of Annexure C-2 clearly revealed that the fee of Rs.61,798/- was paid by the complainant at Chandigarh, we are, therefore, of the considered view that the District Forum had territorial jurisdiction to entrain and decide the case. The complainant had placed on record Annexure C-5, Application for Skills Assessment, before the District Forum, which clearly shows that columns No.1.1 ‘Title of occupation’ and 1.2 ‘ANZSCO code’ were blank and the complainant during arguments, before the District Forum, stated that these columns were told to be left blank by the Opposite Party itself with an assurance that the same were to be filled by it only. The email message (Annexure C-4) highlighting the error of the complainant with managerial position made it clear that the same was conveyed wrongly and so the relevant code was mentioned wrongly, which was the reason for the negative outcome of the skill assessment of the complainant.  The Opposite Party despite charging hefty amount of fee, even did not get the application form filled in completely and was, thus, deficient in rendering service. The Counsel for the appellant/Opposite Party had drawn our attention to Clause 7 & 11 of the Contract of Engagement (Annexure R-1) signed by the complainant, perusal of which showed that there was no scope of refund of fee. In the instant case, the appellant/Opposite Party before entering into contract with the complainant neither got the application filled in properly and completely nor did it ensure that the complainant fulfilled the eligibility criteria under Skilled Worker Category. Therefore, if facts were conveyed by the appellant/Opposite Party to the Skill Assessment Body wrongly and incorrectly, no fault is attributable to the complainant. Rather it speaks volumes of the unfair trade practice and deficiency in service by the appellant/Opposite Party. It is clearly proved from the record of the District Forum that the complainant by paying huge amount to the appellant struggled for permanent residency in Australia but the Opposite Party despite taking a huge amount left her helpless. It was the duty of the Opposite Party to direct the complainant to get the columns 1.1 & 1.2 of Annexure C-5 filled herself, so that there was no chance of mistake during the processing of her case. The plea taken by the appellant/Opposite Party, in its appeal, that the complainant annexed Annexure C-5, which was incomplete form and the District Forum wrongly relied upon the same and it duly annexed the same alongwith the appeal as Annexure A-10, which was duly signed by her. However, a perusal of the file shows that no such evidence has been led by the appellant/Opposite Party, before the District Forum, and, as such, at the appellate stage, the Opposite Party cannot be allowed to place on record such a document, and same cannot be read into evidence. Moreover, no such application for placing on record the complete copy of application for Skills Assessment (Annexure A-10) has been moved by the appellant/Opposite Party. Furthermore, the appellant/Opposite Party cannot be allowed to fill up the lacunae at the appellate stage because such a document was very well in possession of the Opposite Party, at the time of leading evidence, before the District Forum. We are, therefore, of the considered opinion that the District Forum rightly held that the careless act of the Opposite Party proved deficiency, in service, on its part, which certainly caused tremendous mental agony and harassment to the complainant, for which, the District Forum rightly awarded an amount of Rs.50,000/- on account of deficiency in service and causing mental and physical harassment and also litigation expenses of Rs.10,000/- to the complainant.  

11.            Keeping in view the facts and circumstances of the case, we are of the considered view that the District Forum was right, in partly 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.

12.            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.

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

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

Pronounced.

04.06.2015                                                               Sd/-

(DEV RAJ)

 PRESIDING MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER