DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.92/04.07.2008 Decided on : 03.11.2008 Harinder Pal Singh Chahal, House No.598, Ward No.6, Street No.9, Raman Cinema Road, Mansa, District Mansa. ..... Complainant. VERSUS Worldwide Immigration Consultancy Service Limited, SCO No.2415-16, Sector 22C, Chandigarh. ..... Opposite Party. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.S.P.Gupta, counsel for the complainant. Sh.Rakesh Kundal, counsel for the opposite party. Before: Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER: Harinder Pal Singh (hereinafter called as the complainant) has filed the present complaint against the Worldwide Immigration Consultancy Service Limited, Chandigarh (hereinafter called as the opposite party) for payment of Rs.1,88,500/- with interest @ 12% and also pay Rs.1,00,000/- as compensation and Rs.11,000/- as counsel fee. Admitted facts of this complaint are that the opposite party had contacted the complainant in connection with his immigration and work permit at Canada and in this respect the complainant had sent a demand draft bearing No.0019880 in the sum of Rs.25,000/- on 5.12.2000 and a receipt was duly issued to him in lieu of the amount received by the OP, as such the complainant is the consumer of the OP. The complainant had deposited a total sum of Rs.1,88,500 with the OP in this respect. The Contd........2 : 2 : OP had been assuring the complainant time and again for arranging a job to him at Canada and a letter in this regard was given to the complainant that only visa processing fee is non-refundable. On 15.2.2006 the OP had written a letter to the complainant vide which the application of the complainant for permanent residency at Canada was rejected and advised him to refile his application and ultimately in the month of November, 2006 the case of the complainant was rejected and even did not refund any amount to him. The complainant had been contacting the Opposite Party telephonically and through his mobile either for the refund of the amounts deposited by him or for accepting his case for immigration to Canada but the OP failed to response. The OP is thus negligent in rendering service towards the complainant by rejecting his case of sending him to Canada. The complainant has thus suffered mental as well as physical harassment at the hands of the OP. The contract was executed at Mansa and the complainant is the resident of Mansa, as such, this Forum has got jurisdiction to entertain and try this complaint. Hence this complaint. In its reply, the OP has taken certain legal objections regarding non joinder of necessary parties i.e M/s Worldwide Immigration Consultancy Service, Canada with whom the complainant had entered into an agreement and had deposited US $1600. The complainant cannot demand this amount from the answering OP. The answering OP had already performed their part of the contract by getting the complainant an interview letter dated 5.9.2006 from the Canadian High Commission which the complainant had attended but could not convince the Visa Officer with regard to his proficiency in English and was awarded only 8 marks out of the maximum 24. The complainant had at the time of filling his initial assessment form had conveyed that he could speak, read, write English fluently, however, at the interview stage the complainant could not satisfy the Visa Officer which resulted in rejection of his case. It was further contended that this Forum has got no jurisdiction to entertain and try this Contd........3 : 3 : complaint as per Clause 15 of the Contract of engagement dated 5.12.2000 executed by the complainant with the OP wherein it has been specifically agreed by him that the legal jurisdiction shall only be of Chandigarh Courts . The complainant has paid a sum of Rs.35,000/- to the OP at Chandigarh and receipt was also issued from Chandigarh office. The complainant is not entitled to any refund as per clause 9(iv) of the contract and also in accordance with clause 9(xi) of the contract vide which the complainant was required to file Judicial Review against the rejection letter, which he failed to do so. The complainant had further failed to submit his IELTS result with required bands. The complainant was advised to pass the IELTS with at least 7 bands, but instead he had intimated vide his letter dated 9.3.2004 that he is not prepared for the exam due to job responsibilities and prayed for extension. Instead of submitting the IELTS result, the complainant proceeded for interview wherein he failed to convince the Visa Officer regarding his English and his case was rejected. The complainant has misstated and concealed the material facts. The complaint is frivolous, malicious, baseless and scandalous and has thus filed to harass the OP. On merits, it was contended that the complainant had paid them Rs.35,000/- in installments. Complainant had further Paid Rs.15,000/- by way of bank draft dated 16.1.2001 directly in favour of Canadian High Commission towards visa processing fee and paid US $ 1600 to M/s Worldwide Immigration Consultancy Service, Canada, which amounts he cannot demand from the replying OP. The OP had advised the complainant vide their letter dated 15.11.2006 to file judicial review however instead of filing this, he had filed the present complaint. All other allegations were denied and a prayer for dismissal of the complaint was made. Both the parties have led their respective evidence in the shape of affidavits and documents. Contd........4 : 4 : On the basis of the statement on affidavits, various documents produced by either side and after hearing the parties and after evaluation, we find that there is deficiency in service on the part of opposite party for these reasons. The counsel for the OP has strongly disputed the complaint on the ground of non joinder of necessary parties and on the point of jurisdiction. He has further argued that the complainant had failed to attain fluency in reading, writing, speaking in English and instead of submitting his IELTS results, he proceeded for interview wherein he failed to convince the visa Officer and thus his case was rejected. The counsel for the OP has vehemently argued that jurisdiction is at Chandigarh and cause of action may be at Mansa. The complainant had signed the contract (Ext.OP1 and OP2) after reading the terms and conditions. The complainant was duly informed by Canada Embassy time to time through their letters (Ext.OP3 and OP4). The OP has drawn our attention to Para 9 of Ext.OP-2 the clause containing the terms and conditions regarding the non-refund of any of the total fee by the company. In support of his submissions the OP has placed reliance upon various case laws viz Sanjeev Kumar vs Rockland Leasing Ltd and others CPC 1993 435 (State Commission); Shimla Development Authority, Kasumpati, Shimla versus Shri Yash Paul Dass & others CPC 1992, 344 (State Commission); Worldwide Immigration consultancy Services Ltd. Versus Joginder Singh Appeal No.1576 of 2005 (state Commission) and Satbir Singh versus Worldwide Immigration consultancy Services Ltd., 107 of 2006 (DCF Gurdaspur). The documents relied upon by both the parties are not disputable by either of the parties. The complainant has placed reliance upon Ext.C-3, C-4 and C-5. Ext.C-3 is the Regulatory amendments whereby general public including the complainant was urged to apply urgently as soon as possible in order to alleviate the difficulty of possible Contd........5 : 5 : inadmissibility in future. The document no where mentions about the pre-conditions to be cleared by any of the four categories of skilled workers including professional, technical, skilled trades and skilled administrative) under which the case of the complainant is also covered. Ext.C-4 the publicity document of WWICS is regarding their (OP's) credibility, achievement and services. At point No.9 of this document it is very clearly mentioned very high success rate with money back guarantee .The possibility of the complainant to be allured by this commitment made by the OP through this document at the very initial stage cannot be ruled out . Exhibit C-5 is details of fee to be paid by the complainant and in the refund clause at point (a) it has been very clearly mentioned that WWICS fee is refundable in totality within 30 days in case of rejection and at Point (b) it has been mentioned that no refund is allowed if the client withdraws his/her case at any time on his own. The OP has failed to act firstly, according to Clause (a) as it is their own case that the case of the complainant was rejected by the OP itself vide letter dated 2.11.2006 (Ext.OP-4). Secondly, as per clause (b) of Ext.C-5 because it is not the case of the OP that the complainant had any time withdrawn his case on his own. As such the OP was bound to refund the total fee to the complainant according to these two clauses which were put before the complainant at the very first stage at the time of introducing the OP with the complainant. Contract Ext.C-19 has been executed between the complainant and Worldwide Immigration Consultancy Services Canada on 5.12.2000, simultaneously there is another contract Ext.C-18 between the OP and the complainant which is also dated 5.12.2000. There is another letter dated 30.1.2003 (Ext.C-7) vide which the complainant was informed that each client has to pass the examination with minimum bands in each part of the IELTS test, this being a mandatory requirement under the New Act. It was further mentioned that the cases filed prior to 31.12.2001 would be Contd........6 : 6 : governed under the old rules subject to their cases being considered by 31.3.2003. It is a very sorry state of affair that the complainant was required to suffer from the very beginning i.e since 5.12.2000 (the date of signing the contract between the parties) and was thus subjected to the IELTS test in accordance with this letter (Ext.C-7) which was not at all the part and parcel of the regulatory amendments (Ext.C-3) conveyed to the complainant at the initial stage. The complainant has further placed reliance upon Ext.C-14, letter dated 23.7.2001 addressed to the Canadian High Commission, New Delhi vide which the favorable result of informal assessment of professional qualifications of the complainant was conveyed by the Counsellor, Global Placement Services (India) , which is a division of WWICS Canada as envisaged in Ext.C-4 at point No.5 . It can be well judged that as on July, 2001 the results of the complainant were favorable, but the OP kept on lingering on the matter and it was only on 15.11.2006 that the complainant was informed at his Mansa address that his case has been rejected. The complainant has further placed reliance upon receipts regarding payment of different amounts to the OP which are Ext.22 for Rs.5000/-, Ext.C-23 for Rs.25,000/-, Ext.C-26 for Rs.5,000/-, Ext.C-28 US $ 1600. Ext.C-29 is the document showing Financial Requirements which also find mention of a Refund Clause that WWICS fee is refundable in totality within 30 days in case of rejection in the interview. This point also find mention at Sr.No.10 of the contract (Ext.OP1) entered into between the complainant and the WWICS, Canada. The OP was thus required to act according to the terms and conditions of their own contract vide which it has been clearly mentioned that the Company undertakes to provide full refund to the client of all fee paid by the client to the Company excluding processing fee levied by the processing Visa office. The complainant has paid Rs.15,000/-( Rs.5000/- each) as embassy fee (Ext.C21,C23, C25) in January, 2001 which as per Contd........7 : 7 : the OP is non refundable. The complainant has further paid Rs.30,000/- as consultation fee (Ex.C23 & Ex.C26)in December, 2000 . Ext.C28 and Ext.C-27 are the receipts of the payment regarding payment of Rs.75,580 (US$ 1600) on 13.2.2001. It can be seen that the complainant had made all the payments in December, 2000 and January, 2001. Obviously, the OP has deprived the complainant of the use of his hard earned money and is enriching itself at their costs. It is the admitted case of OP that they had already performed their part of the contract by getting the complainant an interview letter dated 5.9.2006 from the Canadian High Commission. It is surprising to note that after a period of five years of the depositing of the huge amount by the complainant that the OP had proved their credibility, achievement and services (as mentioned in Ext.C4, Why through WWICS) by getting the complainant an interview letter dated 5.9.2006. The counsel for the complainant has placed reliance upon a case law viz Worldwide Immigration vs American Express 2003(1)CPC, 475 vide which it has been held that a part of cause of action where arises under Section 11(2)(c) of the Act, the complaint is maintainable and preliminary objection in this regard has no merit and is rejected. He has further placed reliance upon Headway Finance investment Co. Ltd. Versus Sarla Devi III(1995) CPJ 110 vide which it has been held that Indian Contract Act, 1872-Sections 23 & 28-Term in agreement that in case of dispute the same shall be settled at Agra-ousting the jurisdiction of District Forum-whether bad in law-YES. He has also placed reliance upon Pradeep Kumar Khurana vs Wheel World, Ambala Cantt, CLT 1997(1) 568 vide which it has been held that Courts can always take subsequent events into consideration in the interest of justice and can mould relief accordingly. The complainant was duly informed by the OP at his Mansa address and as such this Forum has jurisdiction to entertain and try the present complaint. By no stretch of imagination, it can be said that through exhibits C3, C4 and C5 the OP had firstly promoted and called upon Contd........8 : 8 : the complainant alluring him for a better future and later on after collecting huge amounts rejected his case on flimsy grounds. The OP was bound to disclose their detailed formalities before accepting huge amount from the complainant, but they did not adopt this practice and rather resorted to unfair trade practice. Being allured by the promises made by the OP vide Exts. C3,C4 and C5, the complainant was required to deposit his hard earned money initially hoping for better prospects. In such circumstances, the opposite party is liable to compensate the complainant by refunding the amount of Rs.75,580 (US$ 1600) only which had been paid by the complainant and duly admitted by the OP in their reply. The complainant had come into contact with Worldwide Immigration Consultancy Services Canada only through the present OP and as such the OP is legally liable to refund the above amounts to him. Apart from the above, on account of the unpardonable behavior of the OP towards the complainant, the complainant is also awarded with some compensation for suffering at the hands of the OP. Accordingly, in the light of what is discussed above, we allow the complaint and direct the opposite party to refund only the amount of Rs.75,580 (US$ 1600) paid by the complainant vide separate receipts. The OP is also burdened with Rs.20,000/- as compensation and Rs.5000/- as costs of litigation. Compliance of the order be made within two months from the date of receipt of the copy of the order which shall be supplied to the parties free of cost under the rules. File be arranged, indexed and consigned to record. Pronounced 03.11.2008 Neena Rani Gupta, Sarat Chander, Member. Member.
