BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.399 of 2016
Date of Instt. 16.09.2016
Date of Decision: 01.08.2018
Kamaljit Kaur d/o Joga Singh r/o V.P.O. Ratainda Distt. SBS Nagar, Nawanshar.
..........Complainant
Versus
1. Worldwide Immigration Consultancy Services Ltd. (WWICS Ltd.), Head Office A-12, Phase-VI, Industrial Area, Mohali through its Principal/CMD.
2. Worldwide Immigration Consultancy Services Ltd. (WWICS Ltd.), 21-22, 3rd Floor, Midland Financial Center, near ICICI Bank, G. T. Road, Jalandhar City-144001 (Punjab) through its Branch Manager/Zonal Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. KC Malhotra, Adv Counsel for the Complainant.
Sh. GPS Rana, Adv Counsel for the OPs.
Order
Karnail Singh (President)
1. This complaint is filed by the complainant, wherein alleged that the complainant was allured by tempting advertisement circulated, published and advertised all over the country including Nawanshar and its surrounding area that OPs are providing immigration consultancy services for getting immigration visa for employment and profession in Canada, Australia and other countries came in contact with OP in the month of October 2014. The OPs for the promotion of their business and also to attract customers/general public for settlement in abroad used to float various attractive schemes in the daily newspapers and also telephonic and electronic media. The complainant met representative Mandeep Chauhan of OP No.2 in connection with rendering and availing of professional consultancy services for permanent immigration to Canada to the complainant. The complainant told the representative of OP No.2 regarding her academic qualification and work experience. The complainant gave the details that the complainant passed metric and +2 examination in the academic year 1993 and 1995 respectively and passed B. A. from GNDU in the year 1998. Thereafter, the complainant had also cleared the IELTS in the year 2013 and 2014 scouring 06 Bands in academics and 5.5 bands in general.
2. That after scrutiny and assessment of credential of the complainant and on discussing the matter in details, the complainant was informed by the representative of OP No.2 that she was eligible for Express Entry Visa and informed about program in Canada that the complainant is eligible and fit for immigration to Canada, was advised to apply for a programme in Manitoba in Canada and was informed that within three months would come to know of the result with respect to her application. They again and again assured the complainant that her file will be assessed within three months by the Government of Manitoba and then the further process will start. The complainant was assured that the complainant would surely get Visa for permanent immigration to Canada and the complainant need not worry on this score. The complainant on the assurance and believing OPs as gentlemen assurance availed the expertise and professional services on consideration of OPs for getting permanent immigration visa. The OPs had agreed to provide professional expertise immigration consultancy services to their customers clients, on payment of charges/fee was as under:-
a). Advise the client on immigration in respect of issuance of Visa.
b). Assist the client in preparation of his/her case for issuance of employment Visa.
c). Review and identity for admission all requirement documents and evidence/proof alongwith submission report to the Processing Visa Office;
d). Submit complete case/file with supporting documents and evidence alongwith submission report to the processing Visa Office;
e). Assisting the client in respect to preparation for interview through various counseling Session both at Branch and Head Office level;
f). Counseling the client at various stage of the processing of the case for interview and medical Visa papers in immigration matter as and when required and need be.
3. That on 15.10.2014, the complainant visited and met the OP No.2 with all the documents, which had been scribed on a paper for her along with the fee amount for Rs.2,02,248/-, vide cheque No.483987 was handed over to OP by the complainant. Initially, the OPs required documents relating to the educational qualification, work and work experience related documents, resume, finance funds proof, birth certificate, ID Proofs i.e. Passport, Voter Card, Documents related to IELTS as mentioned in Annexure A1. All the information asked for was provided by the complainant on the format as provided for by the OPs. Then the complainant was handed over a check list, which was also handed over to the OP No.2 within 4-5 days, notarized copies of all the documents were provided to the OP. The complainant on the assurance and believing expert sincere and gentleman professional advice of OPs, paid the amount of first installment and provided all the requisite documents and completed all the formalities whatsoever were asked for and further OP asked the complainant was informed that correspondence will be done vide email, but the OP has been wasting time by again and again asking for documents with slight changes here and there without any justification and then OP demanded second installment of amount $4000/- US Dollars, but the complainant showed her position not to pay such amount and ultimately, it was settled that the complainant will pay $2000/- US Dollars and accordingly, the same was paid, vide cheque No.483992 on 28.01.2015, but even thereafter the OPs on lingering the case of the complainant on one pretext or other harassed and bothered the complainant for piece of meal new/fresh document on the frivolous and lame excuse. Eventually, the case file of the complainant was forwarded and was given time period of 120 days for the processing of the case file. Thereafter, the complainant was informed that her case file had been forwarded, the complainant thereupon requested for the case file number time and again, but the same was not provided to her. On one occasion, when the complainant met Mr. Mandeep Chauhan for requesting him for her case file number, she was asked to contact the head office at Mohali. The complainant repeatedly requested OP No.1 also for her case file number, but the same was not given by OP No.1. Due to this act and conduct of the OPs, the complainant was unable to trace the status of her file and was left at the hands and mercy of the OPs being unable to track the status of her file. Every time she visited the office of OP No.2, she was put off by saying that the file was still under process. No proof was being provided in respect of forwarding of the case file by either of the OPs. The complainant thereafter had been regularly and continuously following up with OPs regarding the status of her immigration case file, besides emails to head office, but there was no response and all in vain and then finally in response to her email dated 17.07.2015 with the so called refusal letter.
4. The complainant paid total amount of Rs.3,28,482/- in two installments of Rs.2,02,248/- and Rs.1,26,234/- respectively on 15.10.2014 and 28.01.2015 to the OPs for rendering professional expertise services for immigration permanent visa for Canada after assessment of the case of the complainant, but no positive response was received from the OP and ultimately, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of Rs.3,28,482/- to the complainant along with interest @ 12% per annum from the date of respective installments of payment till actual realization and further OPs be directed to pay compensation of Rs.50,000/- and litigation expenses of Rs.10,000/-.
5. Notice of the complaint was given to the OPs and accordingly, both the OPs appeared through its counsel and filed its joint written reply and contested the complaint by taking the preliminary objections that the present case is liable to be dismissed as there is neither deficiency in service nor any unfair trade practice on part of the OPs as the case of the complainant was duly filed by OPs before Manitoba authorities under City of Modern Program in best possible manner. However, the same was rejected by concerned immigration authority, vide an email dated 23.07.2015. The said email dated 23.07.2015 clearly stated that only 5% applications, among large number of qualified applications, best suited for their employers are selected for further processing and unfortunately complainant's application was not chosen for further processing in Modern's Immigration Initiative, although the same was found to be in order. Evidently, the present case is a case of rejection by Manitoba Authority as complainant's application was not found to be among best suited applications and even the present case is a case of late submission of documents by the complainant and as such, the complainant herself is at fault, the complainant required to submit documents within 45 days from the date of signing of the agreement, but the complainant submitted her complete documents in April 2015 and thus, the OPs were neither deficient in services nor ever adopted any unfair trade practice and further submitted that as per refund clause i.e. Clause 9 (i) & (iii) of the contract dated 14.10.2014, the complainant was not entitled to get any refund. Therefore, the present complaint is liable to be dismissed and further submitted that this Forum at Jalandhar does not have the jurisdiction to deal the present complaint because as per agreement, there is an Arbitration Clause-17 and as such, the matter like this, should be referred to the Arbitrator and this complaint should be dismissed on this ground. On merits, it is admitted that the complainant availed the services of the OP and also paid the amount, but the said amount is not refundable. The other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
6. In order to prove the case of the complainant, the counsel for the complainant Smt. Harleen Kaur, Adv tendered into evidence two affidavits Ex.CA and Ex.CB alongwith some documents Ex.C-1 to Ex.C-6 and then also tendered an other affidavit Ex.CC and some documents Ex.C7 and Ex.C-8 and then closed the evidence.
7. Similarly, counsel for the OPs tendered into evidence affidavit Ex.OP/A and some documents Ex.OP1/1 to Ex.OP1/6 and then closed the evidence.
8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
9. Precisely, the case of the complainant is only that the complainant was allured by advertisement circulated/published and advertised by OPs, whereby calling the public for providing immigration consultancy services for getting immigration visa for employment and profession in Canada, Australia and other countries. The complainant came into contact of the OP in the month of October, 2014 and accordingly, she met the representative Mr. Mandeep Chauhan of OP No.2, who gave assurance for rendering and availing of professional consultancy services for permanent immigration to Canada and accordingly, the complainant explained her academic qualification and work experience to the said representative. She also informed that she is a graduate from Guru Nanak Dev University and also cleared IELTS by scouring 6 bands in Academics and 5.5 bands in General. After considering the experience as well as qualification and other documents of the complainant, the said representative told to the complainant that she is eligible for EXPRESS ENTRY VISA and informed about program in Canada that the complainant is eligible and fit for immigration to Canada and advised to apply for a programme in Manitoba in Canada and accordingly, the complainant again met to the representative of OP No.2 Mr. Mandeep Chauhan on 15.10.2014 and submitted her entire document along with a cheque bearing No.483987 for amounting to Rs.2,02,248/-. Apart from that she also furnished all the information whatsoever required to the said representative and thereafter, the OP demanded second installment of the amount of $4000 US Dollars, but the complainant was not in position to pay such a huge amount and accordingly, she made agree to the OP that she will pay only $ 2000/- US Dollars instead of $ 4000/- US Dollars and accordingly, she paid the said $ 2000/- US Dollars, vide cheque No.483992 dated 28.01.2015 drawn on Oriental Bank of Commerce and thereafter, the OP lingering on the matter on one pretext or the other for a long time, despite repeated request, visits and emails message of the complainant and as such, for delaying the immigration case of the complainant by the OPs and also not giving information regarding status of the case of the complainant, is absolutely unfair trade practice as well as deficiency in service on the part of the OP and as such, the complainant demanded refund of the entire payment made to the complainant i.e. Rs.3,28,482/- along with interest @ 12% per annum, compensation and litigation expenses.
10. The case of the complainant has been meeted out by the OP simply on the ground that the case of the complainant was duly filled by the OP before Manitoba Authority under City Of Modern Program in best possible manner, but the case of the complainant was rejected by the concerned immigration authority, vide email dated 23.07.2015 and regarding that a letter was sent to the complainant, the same is Ex.OP-5 dated 25.07.2015, the reason for rejection of the case of the complainant of immigration is very well mentioned in the said letter as well as email dated 23.07.2015 received from the Immigration Manitoba Authority and as such, there is no direct or indirect fault on the part of the OP, therefore, there is no deficiency in service on the part of the OP nor there is any unfair trade practice and further alleged that the delay for sending the case of the complainant is not due to negligence of the OP rather the complainant herself did not bother to furnish the required document within a stipulated period of 45 days from the date of sign the agreement, the complainant herself submitted her complete document in the month of April 2015 through e-mail Ex.OP/4 and accordingly, the OPs sent the case of the complainant on 08.04.2015 and issued the file No.84503 and as such, there is no delay on the part of the OP, therefore, as per agreement Ex.OP/2 Clause-9, the complainant is not entitled for refund of the fee because she was already agreed through aforesaid agreement regarding the condition for non-refund of the fee and as such, the complaint of the complainant is without merits.
11. We have sympathetically considered the entire circumstances as put before us by both the counsel for the parties. First of all, we analyzed that simply making allegation against the other party i.e. OP, is not sufficient to establish her case. It required to prove by way of cogent and convincing evidence, but obviously, in this case, the complainant has not brought on the file even iota of document to establish that how and under what circumstances any delay has been caused by the OP, the OP has taken a plea that the complainant lastly submitted a document in the month of April, 2015 and immediately the file of the complainant was submitted to the concerned immigration authority. But these pleas of the OP are not rebutted by the complainant in any manner and moreover, it is the case of the complainant that she paid the second installment in the month of January, 2015, which shows that the document seems to have been submitted by the complainant in the month of April, 2015 and therefore, we do not find any fault in regard to delay for sending the file of the complainant to Immigration Authority.
12. Second allegation of the complainant is that the complainant is entitled for refund of the entire deposited fee to the OP because the OP could not fulfill the assurance given to the complainant that her case will be cleared within three months, but there is no document available on the file, whereby OP gave any assurance to the complainant that her case will be cleared within three months, but we find that the OP is not an authority to directly sanctioned the visa to the complainant rather the OPs are only providing services of consultancy for getting immigration visa for employment and profession in Canada, Australia etc., if so, then there was no chance on the part of the OP to give guarantee for sanctioning of Visa to the complainant and even as per agreement Ex.OP/2, the complainant is not entitled for the refund of the fee because the refund of the fee can only be awarded to the complainant, if there is established negligence and fault on the part of the OP, but in this case, there is no negligence or fault on the part of the OP, is proved and thus, the complainant is not entitled for refund of the fee.
13. Furthermore, we have also considered the submission made by learned counsel for the OP that the complaint of the complainant is not maintainable because there is Arbitration Clause in the Agreement i.e. Clause No.17 and as per agreement, if any dispute arises between the parties, same is referred to the Arbitrator and thus, this complaint is liable to be dismissed on this score. We do not agree with the submission of the OP because the Arbitration Clause as referred in the agreement is not create any hindrance for invoking the jurisdiction of this Forum because as per Section 3 of the Consumer Protection Act, the complainant has an additional remedy to file a complaint before the Consumer Forum and therefore, this argument of the learned counsel for the OP having no force in the eyes of law.
14. From the over all circumstances as discussed above, we reach to the conclusion that the counsel for the complainant having no substances in his agreement and as such, the complaint of the complainant fails and the same is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.
15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
01.08.2018 Member President
