BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complt.  Case No :1443 of  2009

Date of Institution:    17.11.2009

Date of Decision  :    15.10.2010

Dharam Singh, Resident of H.No.646/2, Sector 40-A, Chandigarh.

……Complainant

V E R S U S

West End Consultant through its Proprietor Aprajita Maini resident of H.No.1429/1, sector 40-B, Chandigarh (previously having office at SCO 230, Top Floor, Sector 40-D, Chandigarh, U.T. (India).

.…..Opposite Party

CORAM:        SH.LAKSHMAN SHARMA                     PRESIDENT

                SH.ASHOK RAJ BHANDARI          MEMBER

                MRS.MADHU MUTNEJA                    MEMBER

PRESENT:    Sh.Deepak Aggarwal, Adv. for the complainant.

Sh.Harsh Garg, Adv. for the OP.

PER MADHU MUTNEJA, MEMBER

                The instant complaint has been filed by Sh.Dharam Singh against West End Consultant under Section 12 of the Consumer Protection Act.

1]             The facts of the case are as under:-

                the complainant is a matriculate and holds Diploma in Refrigeration & Air-Conditioning Mechanic from Govt. Polytechnic, Mohali.  With a desire to settle permanently in Australia as a skilled worker under the Trade – Refrigeration & Air-Conditioning Mechanic, the complainant approached the OPs for guidance to achieve his goal. 

                When the complainant went to the office of OP, they took all details from him regarding his qualifications and work experience and also informed him about the complete process of immigration.  The complainant was impressed when he came to know that the OPs had successfully sent many people to Australia. 

                The complainant was told to submit various documents regarding his qualification and work experience so that his case could be processed for obtaining approval from TRA (Trades Recognition Australia) and Skills Assessor Trades Recognition Australia (Australian Government Department of Employment and Workplace Relations).  Copies of all documents submitted by the complainant to the OPs have been placed at annexures to the complaint. Before submitting the documents, the complainant made it clear to the OPs that he was weak in English and it would be difficult for him to clear the IELTS Examination.  The OPs assured him that they would help him in clearing the IELTS examination.  On this assurance, the complainant deposited Rs.10,000/- in cash on 14.12.2005 and further a sum of rs.3500/- through cheque on the same date with the OPs.  The second amount was charged towards IELTS coaching expenses.  From the very next day, the complainant started attending the IELTS classes arranged by the OPs. 

                The complainant was not able to understand even a single word in the classes and he felt that the teacher was incompetent.  He brought the fact of incompetence of the teacher to notice of the OPs but they did not take any steps to help the complainant and instead asked him to leave the classes and join any other institute of his choice.  Thereafter, the complainant joined Brain Wave Coaching Centre, Mohali where he alleged that he spent Rs.40,000/- for coaching.  The complainant appeared in the IELTS examination twice and for which he had to spend Rs.14,000/-.  The complainant was finally able to clear the said exam in March, 2007.  He then submitted his result with the OPs.  The OPs assured the complainant that his case would be  processed within the next 9 to 10 months.  They demanded the sums of Rs.12,000/- and AUD 300 (Australian Dollars) from the complainant.  The OPs acknowledged the demand draft of 300 Australian Dollars  but did not issue any receipt to the complainant  for Rs.12,000/-.  The OPs also further demanded Rs.45,000/- towards part payment of professional fee.  The complainant has alleged that this amount was paid to the OPs forthwith.  However, no receipt was ever issued by the OPs to the complainant for this payment.

                Thereafter, the complainant was called by the OP once again to prepare a Demand Draft (DD) for AUD 1990 for applying for permanent residency to Australia and also sign various documents including the agreement.

                The complainant came to know from his banker at the time of preparing the draft that the total fee for permanent residency to Australia was 2060 Australian Dollars and not 1990 Australian Dollars as demanded by the OP.  When he brought this fact to the notice of OP, they told him to prepare a draft of 2060 Australian Dollars in favour of Department of Immigration & Citizenship, Australia.  In the meanwhile the OP had shifted her office. This information had not been conveyed to the complainant.  The complainant was now telephonically called by the OP and asked to submit the above mentioned draft, original IELTS result and other relevant documents including experience certificates. These documents were deposited by the complainant with the OP on 29.3.2007.

                The OP then demanded a further sum of Rs.35,000/- as consultation fee, which was paid by the complainant to the OP in Nov., 2007.  No receipt was again issued for the same.  The complainant was informed that his file would take 6 months for processing.  After 6 months when the complainant visited the OP a further sum of Rs.30,000/- was demanded from him.  This amount was paid to the OP in May, 2008.  Thereafter the complainant tried to contact the OP a number of time but he never received any positive response.  Meanwhile, the validity of his IELTS exam certificate also lapsed but the OP never even provided him with his file number of his application submitted with the Australian Immigration Authorities.

                The complainant has submitted that by now he felt sufficiently harassed and well befooled & defrauded by the OP.  The complainant thus filed the instant complaint before this Forum for redressal of his grievance.  The complainant has prayed that the OP be directed to refund Rs.2,60,525/- taken by the OPs on various accounts for sending his to Australia along with compensation.

2]             After admission of the complaint, notice was sent to the OP.

                The OP in their reply has submitted that the total fee for processing the case of the complainant with the Australian High Commission was settled with him at Rs.45,000/- as per the following details:-

a)        Rs.10,000/- (Non-refundable) paid in signing.  

b)        Rs.10,000/- to be paid on receipt of success qualification assessment.

c)        Rs.10,000/- to be paid on receipt of medicals.

d)        Rs.15,000/- (balance full & final payment) to be paid on receipt of visa for the principal applicant.

                After receipt of Rs.10,000/- as per (a) above that the application of the complainant was duly sent to and accepted by the Trades Recognition Australia (TRA).  The complainant failed to pay the next amount of Rs.10,000/- at (b) above towards consultation charges thereafter, so the OP was not liable to process the case of the complainant any further.  The OP has further gone on to explain the position of the complainant for immigration.  The complainant was eligible as a skilled worker as Air-conditioning & Refrigeration Mechanic provided he passed the IELTS exam. and had proper work experience.  The skill of the person applying has to be assessed from the Assessment Authority of Australia out of which TRA is one. 

                The complainant was assessed under ‘Category-D’ by TRA.  He was asked to pay Rs.10,000/- as second installment of consultation charges, and fee of 2060 Australian Dollars payable at Australian Government towards Visa Fee to apply for immigration.  The complainant gave a DD for 2060 Australian Dollars but failed to pay Rs.10,000/- to the OP. The OP has submitted that they were in the process of preparing all documents of the complainant even though the complainant did not respond to their calls or even pay their consultation charges.            In the meantime, the Australian Government changed its legislation and the aforesaid ‘D category’ vide which the complainant had became eligible was suspended for an indefinite period from 4.9.2007.  Since the complainant was not eligible any more for immigration under this Category to Australia, the OP advised the complainant not to pursue his case any further as it would surely be rejected and the Visa fee of 2060 Australian Dollars would also be wasted.  The complainant then demanded all his money back (including IELTS coaching fee and exam. fee and all other incidental charges) which according to the OP was not even charged by them. 

                The OP then requested the complainant to take back the draft of 2060 Australian Dollars and as a goodwill gesture also agreed to refund Rs.10,000/- paid by him to them, which otherwise was not refundable since his application could not now be forwarded to the Australian Government for Immigration approval.  The complainant flatly refused to accept this offer. 

                The OP has submitted that the allegations of the complainant that the OP has demanded Rs.3.30 lacs to Rs.3.50 lacs as Visa charges and also taken Rs.45,000/-, Rs.35,000/- and Rs.30,000/- on different occasions are completely false.  No such amount has ever been received by the OP from the complainant. 

                On merits, the OP has admitted the receipt of Rs.10,000/- as processing charges towards professional fee and Rs.35,00/- for preparation for IELTS exam.  Rest of the payments, as alleged by the complainant, have all been denied.

                The OP has also admitted that the complainant paid 300 Australian Dollars in favour of TRA towards Skill Assessment Fee.  This amount was forwarded  to TRA by the OP.  With regard to the contradiction of the amount payable for permanent residency to Australia, the OP has submitted that the Visa Processing Fee in the meantime was raised from 1990 Australian Dollars to 2060 Australian Dollars by the Australian Government.  The complainant therefore paid the enhanced visa fee.  The OP had never demanded or received any other amount as alleged by the complainant.  In fact Rs.10,000/- due from the complainant after receiving positive assessment report from TRA has also yet not been paid.  The OP has submitted that no false promises was ever made by them to the complainant about his immigration case and the complainant was duly informed from time to time about the changing legislation by the Australian Government.  Keeping in view the above submissions, the OP has submitted that there is no deficiency in service on its part, rather, it is the complainant himself which is guilty for non-payment of professional charges as per the agreement.  They have therefore prayed for dismissal of the complaint with costs.

3]             We have heard the ld.Counsel for the parties and have also perused the evidence and documents led by the parties in support of their contentions.

4]             The complainant has placed on record his educational qualification and letters of appreciation from various parties with regard to his work experience.  He has also placed on record receipts of Rs.13,500/- paid to the OP, which has been admitted by the O,P and receipt of Rs.40,000/- paid to Brain Waves.  The complainant has also placed on record his IELTS result and agreement signed between the parties. 

5]             The OP has appended the rules & regulations for General Skilled Migration of the Australian Government. 

6]             The complainant is aggrieved because the OP has not been able to successfully process his case for immigration to Australia.  He has alleged in the prayer clause that the OP has charged him Rs.2,65,525/- on various accounts for sending him to Australia on Permanent Residency Visa, but has never actually submitted his case properly for processing to the Immigration Authorities of Australia. 

7]             The OP in their reply has submitted that they have only charged Rs.10,000/- towards processing fee and Rs.3500/- as IELTS exam. fee.  All other payments have been specifically denied.  The complainant does not have any receipt to prove these payments.  The drafts made for 300 Australian Dollars was for TRA, which has already been paid and the draft of 2060 Australian Dollars is still lying with the OP as unused as the complainant is not eligible for immigration to Australia under ‘Category-D’ for which he was assessed as eligible.  This category has since been suspended by the Australian Government.

8]             In this regard, we must examine the reasons for the delay of submission of the application.  The complainant approached the OP for help to process his case for immigration to Australia under skilled worker category in Dec., 2005.  it is important to mention here that the complainant was required to clear IELTS examination before his case could be submitted to the Australian Authorities.  It is pertinent to mention here that the complainant has himself admitted in the complaint that he was not able to understand even a single word of what the OP taught him and had to pay Rs.31,000/- to Brave Wave Academy before be could actually pass the IELTS exam.  The complainant cleared the IELTS exam in March, 2007 only.  The payment of 300 Australian Dollars in favour of TRA have been acknowledged by the OP.  This amount was paid for assessment of his case to allocate the category under which he was eligible for immigration to Australia.  The draft of 2060 Australian Dollars is still lying unused with the OP because the case of the complainant could not be process any further as by Sept., 2007 the Australian Authorities had discontinued ‘Cat.-D’ for immigration. 

9]             The OP was not in a position to submit the immigration case of the complainant to Australian Authorities without his clearing IELTS exam.  The delay if any was not on the part of OP, but because the complainant was not able to clear the IELTS exam well in time. Passing of this examination is a primarily  requirement for any person immigrating to a foreign country. The OP could not help the complainant in any way to pass this exam.

10]            The learned counsel for the complainant has also filed written arguments and rebuttal by way of affidavit before this Forum mentioning that they have even filed an FIR No.409 of 2009 against the OP for cheating and fraud with Police Station Sector 17, Chandigarh. 

11]            The complainant cleared IELTS examination in March, 2007 but submitted demand draft of 2060 Australian Dollars with OP only on 20.7.2007 (Ann.C-21) for submission to Australian Immigration Authorities.  The intervening period from 20.7.2007 to 4.9.2007 i.e. 45 days was too short and too tight a time frame for completing all formalities by the OP as well as getting approval  and grant of Visa from the Australian High Commission.  Even if the OP had submitted the file of the complainant before the Australian Authorities, it would probably not have been completely processed in that time frame and would have been rejected.  The OP has infact helped the complainant by not submitting his case and thereby saving the demand draft for 2060 Australian Dollars which would not be refundable. 

12]            In view of the above, we are of the opinion that there was no deficiency in service on the part of OP.  Delay if any is by the complainant alone. The complaint is therefore dismissed.  However, the OP shall return to the complainant the demand draft of 2060 Australian Dollars deposited with them by the complainant in connection with his immigration case.  They have also stated in the reply that they offered to return the non-refundable amount of Rs.10,000/- to the complainant.  This amount may now also be refunded to him. 

13]            Certified copies of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

15^th Oct., 2010                                                            Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                                                   Sd/-

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                                                                Sd/-

                                                    (MADHU MUTNEJA)

MEMBER

‘Om’