Per Justice Sham Sunder , President This appeal is directed against the order dated 3.2.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T.Chandigarh (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint of the complainant. 2. The complainant(now appellant) availed of the services of the OPs(now respondents) for obtaining permanent residency in Canada. He opted for Gold package, under which the OPs were to provide not only pre-landing, but post-landing services also. He paid a total sum of Rs.69,645/- in instalments to the OPs, as and when asked for by them. He visited the office of OP-1 to know about his case, but they delayed the matter, on one pretext or the other, and did not disclose the actual position. In March 2010, the complainant again visited the office of OP-1, when he was informed by them that his case was rejected, on the ground, that he did not fall under the ‘skilled worker category’. It was further stated that in fact the case of the complainant was rejected and the file was returned in February, 2010, yet the OPs did not disclose this fact to him. It was further stated that the OPs failed to provide the correct and right information of Immigration Law, to the complainant. It was further stated that the aforesaid acts of the OPs, amounted to deficiency, in rendering service and unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only) was filed by him. 3. In their reply, the OPs did not dispute that the complainant contacted them for permanent residency, in Canada. They, however, stated that only an amount of Rs.45,000/- was paid to them, on account of professional fee. It was further stated that, in fact, the case of the complainant under the skilled category was duly filed with the Canadian High Commission. However, thereafter, the Minister of Citizenship Canada amended the Immigration Rules published on 28.11.2008, with retrospective effect i.e. from 27.2.2008 and, thus, the case of the complainant could not be processed further. It was further stated that the letter with regard to non- processing of the complainant’s case was received from the Canadian High Commission on 13.2.2010. Thereafter, he was duly informed about the same. It was further stated that the complainant was refunded the visa processing fee amounting to Rs.23,959/-. It was further stated that though as per the contract of engagement, the complainant was not entitled to the refund of professional fee, yet his application for refund was dealt with positively and he would be refunded the amount as applicable to his case. It was further stated that, under these circumstances, there was neither any deficiency, in rendering service on the part of the OPs, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum dismissed the complaint, on the ground, that the application of the complainant for permanent residency was rejected by the Canadian High Commission, on account of, change of Immigration Rules and, not on account of the fault of the OPs. It was further held by the District Forum, that though, as per the agreement annexure R-1, executed between the parties, the complainant was not entitled to any refund, yet as a goodwill gesture, an amount of Rs.62681/- was paid by the OPs, to him. 6. Feeling aggrieved, the instant appeal was filed, by the appellant/complainant. 7. We have heard the Counsel for the parties, and have gone through the record of the case, carefully. 8. The appellant, contended that he was not properly guided by the OPs/respondents, as a result whereof, his application for permanent residency was rejected. He further submitted that he faced a lot of physical and mental harassment, at the hands of the OPs, and, as such, he was entitled to the full refund of amount alongwith interest, compensation and costs of litigation, as the OPs were completely deficient, in rendering service. He further submitted that the District Forum did not apply its mind to the facts and circumstances, and evidence, on record, in its proper perspective, as a result whereof, it fell into en error in dismissing the complaint. He admitted that, during the pendency of the complaint, he received a cheque of Rs.62681/- as refund from the OPs. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 9. On the other hand, the Counsel for the respondents, submitted that, no doubt, the services of the respondents were availed of by the complainant for the purpose of permanent residency in Canada, and a contract of engagement was executed between the parties. He further submitted that the case of the complainant was properly processed and sent to the Canadian High Commission, but the same was rejected, on the ground of amendment in the Immigration law, published in the Canadian Gazette on 28.11.2008, with retrospective effect i.e. from 27.2.2008. He further submitted that, as per contract of engagement, on account of change in the Immigration law, the OPs were not liable to refund any amount to the complainant, yet, as a goodwill gesture, they refunded a sum of Rs.62681/- on 29.9.2010,during the pendency of the complaint in the District Forum, besides refunding the visa processing fee to the tune of Rs.23,959/-. He further submitted that there was no deficiency, in service on the part of the OPs, nor they indulged into unfair trade practice. He further submitted that, as such, the District Forum was right in dismissing the complaint. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the appellant and the Counsel for the OPs, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons, to be recorded hereinafter. There is, no dispute, with regard to the factum, that the complainant engaged the services of the OPs for permanent residency in Canada. At the time of availing of the services of the OPs, by the complainant, engagement agreement R-1 dated 11.6.2008 was executed between the parties, which was signed by the complainant, as also an authorized signatory of the respondents. Affidavit R-2 was submitted by the complainant, to the effect, that he signed the Contract of Engagement of his own free volition. It is further evident from R-3, that the case of the complainant was processed by the respondents and was sent to the Canadian High Commission, Immigration Section, New Delhi under “economic class federal skilled worker category visa’. It is further evident from R-4 and R-5 that the Minister of Citizenship, Immigration and Multiculturalism, amended the Immigration law published in the Canadian Gazette on 28.11.2008, retrospectively, with effect from 27.2.2008. The amendment in law was not in the hands of the OPs. If the amendment in law was made by the Canadian Government with retrospective effect, then the respondents could not do anything. Clause (11.a) of Annexure R-1 Contract of Engagement, reads as under ; “If it becomes impossible to meet the objective of the agreement due to reasons like client having medical problems, having/civil charges, national security reasons of the destined country, changes in immigration rules and/or any other reasons, the complainant will not be refunded any of the total fees.” 11. The perusal of clause (11.a) of the Contract of Engagement, the terms and conditions whereof are binding between the parties, clearly goes to show that on account of change in immigration rules, the complainant will not be entitled to refund of any of the total fee. Under these circumstances, the respondents were not at all liable to make refund of any amount of fee to the complainant, as neither they were at fault, with regard to the rejection of his application, for permanent residency, in Canada, nor they were deficient, in rendering service to him. The claim of the complainant, to the effect, that he was not told by the OPs, in time, about the rejection of his application, does not find support of any document, on record. The District Forum was, thus, right in holding that though the OPs were not liable to refund any amount, received by them, from the complainant, yet as a goodwill gesture, they returned him Rs.62681/-. The District Forum, was right, in holding that the OPs were neither deficient, in rendering service, nor they indulged into unfair trade practice. The findings of the District Forum, in this regard, are affirmed. 12. The order rendered by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission . 13. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. 14. Certified Copies of this order be sent to the parties, free of charge. 15. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
