BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 16/03/2011

Date of Order : 29/03/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 149/2011

Between

And

O R D E R

C.K. Lekhamma, Member.

1. The brief facts of the complainant's case are as follows :

The 1^st opposite party is the Immigration Consultancy Services. The 2^nd opposite party is their branch office at Kochi. The complainant entered into a contract agreement with the opposite parties on 29-01-2009 for immigration to Canada. The opposite parties agreed to render the services to the complainant. As per the terms of agreement, the complainant has to pay a total fee of Rs. 50,000/-. Out of the said sum, an amount of Rs. 30,000/- was payable at the time of signing the agreement and the balance sum of Rs. 20,000/- within thirty days from the date of signing the agreement. Over and above, the professional charges, it was also agreed to pay a sum of 1700/- US $ as visa processing fee and for meeting the initial expenses on arrival of the complainant at Canada. It was agreed to refund 50% of the total fee collected or Rs. 25,000/- whichever is less in case the complainant was declared disqualified. The complainant has paid the entire amounts as agreed upon and submitted all the certificates. The certificate for job experience was obtained from the present employer of the complainant in the lines of advice given by the 2^nd opposite party. The application submitted by the complainant was rejected the High Commissioner of Canada vide letter dated 19-11-2009 stating the job experience as per the experience certificate was not sufficient for processing the application. After that, the complainant requested the opposite party for refund of 50% of the professional charges paid and the Visa Processing Fee collected from the complainant. The complainant also met the 2^nd opposite party personally. But the opposite parties did not care to reimburse the amount. According to the complainant, she is entitled for the refund of 50% of the amount paid by her for professional services of Rs. 50,000/- and full amount of visa processing fee collected from her of 1700 US $ together with interest, compensation and costs of this proceedings.

2. The version of the opposite parties is as follows :

The complainant has not impleaded M/s. Global Strategic Business Consultancy, Dubai to whom the complainant had deposited the sum of US $ 1700 vide receipt dated 17/07-2009. They are necessary parties to the proceedings. They have separate legal entity. Therefore, the complaint is bad for non-joinder of necessary parties. The opposite parties only to assist the candidates in the process which includes the preparation of his or her immigration file, verify their credentials, supply with required documents, communicate the case with the Canadian authorities, doing the entire correspondence with the high commission etc. and will not cover a 100% guarantee of migration to Canada since sanction for migration is to be granted bay the Canadian authorities. The complainant as per Clause 2 (a) of the contract was required to submit the complete documents within 30 days from the date of signing the agreement, however the complainant in spite of the repeated requests failed to submit the complete documents along with experience certificates which resulted in rejection of her case by the Canadian high commission. In this case, the opposite parties have properly carried out their responsibilities efficiently and effectively. The last day for submitting the documents was on 20^th of September 2009. The complainant submitted only incomplete documents, mainly the experience certificate produced by the complainant does not obtain detailed job duties. The opposite parties have never agreed to refund 50% of the fees. Moreover, as per Clause 10 of the contract it is clearly stated that the services provided by the Company being professional in nature, the entire fee is non-refundable. The complainant's case was rejected not due to deficiency on the part of the opposite parties but on the complainant's failure. Hence the complaint is to be dismissed with cost to the opposite parties.

3. The complainant and the opposite parties represented through counsel. The complainant was examined as PW1 and Exts. A1 to A10 were marked. The opposite parties adduced only documentary evidence. Exts. B1 and B2 were marked. The counsel for the complainant and the opposite parties filed argument notes. Heard the counsel for parties.

4. The points that arose for consideration are as follows :-

1. Whether the complainant is entitled to get refund of the amount from the opposite parties?

2. Compensation and costs, if any?

5. Point Nos. i. and ii. :- The case of the complainant is that as per the agreement between the complainant and the opposite parties for immigration to Canada, the complainant paid to the opposite parties a sum of Rs. 50,000/- plus 1700 US $ as professional charges. But the complainant's application was rejected by the Canadian High Commission due to the reason “insufficient job experience.” According to the complainant, it was happened due to the deficiency of service rendered by the opposite parties, if she was properly advised by the opposite parties, she would have obtained sufficient experience certificate.

6. The opposite parties contended that they were keen in processing the file of the complainant. In spite of the repeated requests, the complainant failed to submit the complete documents along with experience certificates which caused in rejection of the complainant's application.

7. As per Exts. A2 and A3 receipts it is evident that the opposite parties have received a sum of Rs. 50,000/- from the complainant. The opposite parties vehemently objected the receipt of 1700 US $ towards visa processing fee from the complainant. It was paid to M/s. Global Strategic Business Consultancy, Dubai vide D.D by the complainant. On a perusal of Ext. A4 copy of D.D and the receipt of Thomas Cook India Ltd. revealed that the D.D was taken in favour of WWICS Ltd. and in the foreign exchange application it is noted that the name of the complainant and C/o. WWICS. No evidence is before us to show that the said transaction of the complainant was directly with M/s. Global Strategic Business Consultancy, Dubai. Clause 2 in Ext. A1 agreement deals with the duties of the client and in which sub-Clause 2 (v) reads as follows :

“The client agrees that he/she shall correspond with the respective Visa Post/High Commission through the Company only and that he/she shall not change the correspondence address without seeking prior approval of the Company. A penalty of Rs. 25,000.00 (Rupees Twenty Five Thousand only) shall be charged if the Client is found to be dealing directly or through any other representative (other than WWICS Ltd.) at any address other than that of the Company. Besides, the Company shall be at liberty to take appropriate legal action against the Client to recover any unpaid amount if any out of the total fee. In the event of rejection of the application as a result of discrepancies caused due to direct dealing by the client, client shall be solely responsible for that and shall not be entitled to any refund thereafter.”

In the aforementioned reasons, there is no question for non-joinder of necessary party. In the above circumstances, the complainant is entitled to get 1700 US $ with interest from the opposite parties. Clause 1 in Ext. A1 discuss the duties of the opposite parties. Sub-Clause (h) it is stated that “Advice the client about any subsequent changes in the immigration laws and any subsequent conditions applicable to meet the selection criteria.” At the outset, the opposite parties ought to have verified the documents submitted by the complainant along with her application. It was the duty of the opposite parties to verify the same and reject the same then and there if the complainant is not qualified enough to submit an application for Visa in the concerned category. Had the opposite parties applied their mind at the threshold, this complaint would not have arisen. Instead of that the opposite parties a service provider processed the application and the Canadian High Commission had to reject the same based on their own rules. And to cover up the lacunae the opposite party issued Ext. B1 belatedly.

8. The Canadian High Commissioner rejected the application of the complainant due to the above stated deficiency on the part of the opposite parties. Therefore, the complainant is entitled to get the entire amount with interest from the opposite parties, however, we are not to order refund of the entire amount, since the complainant has claimed only the 50% of the amount paid to the opposite parties as per Exts. A2 and A3 receipts. We are not ordering any compensation and costs, since we have already ordered interest for the amount collected by the opposite parties.

9. For the foregoing reasons, we allow the complaint in part and direct that, the opposite parties jointly and severally shall refund 50% of the amount of Rs. 50,000/- as per Ext. A2 and A3 receipts and to pay Rs. 84,230/- (1700 US $) as per Ext. A4 together with 12% interest p.a. from the date of complaint till realisation.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 29^th day of March 2012.

Sd/- C.K. Lekhamma, Member.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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