BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.517 of 2015
Date of Instt. 09.12.2015
Date of Decision: 21.02.2018
Manpreet Kaur Kandola wife of Sh. Tarvinder Singh, age about 25 years, resident of Village Bainapur, Tehsil Phillaur, District Jalandhar.
..........Complainant Versus
1. Worldwide Immigration Consultancy Services Ltd., 3rd Floor, Midland Financial Centre, 21-22, Near ICICI Bank, Opposite Kings Hotel, Jalandhar Through its Chairman/Principal Officer/Director.
2. Vivek Prashar, Regional Manager, Worldwide Immigration Consultancy Services Ltd., 3rd Floor, Midland Financial Centre, 21-22, Near ICICI Bank, Opposite Kings Hotel, Jalandhar.
3. Mandeep Chauhan, Councilor, Worldwide Immigration Consultancy Services Ltd., 3rd Floor, Midland Financial Centre, 21-22, Near ICICI Bank, Opposite Kings Hotel, Jalandhar.
4. Ashim Dodhi, Branch Manager, Worldwide Immigration Consultancy Services Ltd., 3rd Floor, Midland Financial Centre, 21-22, Near ICICI Bank, Opposite Kings Hotel, Jalandhar.
5. Madam Rittu, T. M., Worldwide Immigration Consultancy Services Ltd., 3rd Floor, Midland Financial Centre, 21-22, Near ICICI Bank, Opposite Kings Hotel, Jalandhar.
6. Worldwide Immigration Consultancy Services Ltd., South East Asia Operations, A-12, Industrial Area, Phase 6, Mohali.
..….…Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. RK Nanda, Adv Counsel for the Complainant.
Sh. GPS Rana, Adv Counsel for the OP No.1 to 6.
Order
Karnail Singh (President)
1. This complaint is presented by the complainant, wherein alleged that the OPs are doing the business of the immigration consultant and provided services for the purpose of immigration. The complainant retain and engage the professional services of the OPs and as per instructions of the OPs, the complainant had paid Rs.84,270/- as fee as per demand of the OP and complainant had also provided all necessary documents to the OPs as demanded from the complainant. The OPs called the complainant and told that case of the complainant has been submitted and took 304 $ another charges for ECI from complainant. The complainant has also deposited 1300 $ through bank as per demand of OPs. At that time, the OPs assured the complainant that the case of the complainant has been submitted and now no other document is required. It is necessary to mention here that an agreement to this effect was also executed. At that time, the OPs told to the complainant that the OPs will contact to the complainant shortly. The complainant numbers of times called to the OPs and visited in the office of OPs and the OPs told the complainant that her case is in processing. In the month of November, 2014, the complainant visited in the office of the OPs and the OPs disclosed the complainant that the OPs could not applied for her Permanent Resident for Canada under Skilled Worker Category. Then the complainant called her father in law. Her father in law came to the office of the OPs and the OPs admitted their fault and promised to the complainant and her father in law that the OPs will apply case of the complainant for Nova Scotia and the OPs have no need of any document and money for Nova Scotia. As the complainant has already paid huge amount to the OPs due to that the complainant and her father in law are agreed for new filling for Nova Scotia. The OPs at that time took signature of the complainant on a new agreement and also some other blank documents.
2. That the complainant always remained in touch with the OPs and the OPs told to the complainant that the case of the complainant will be sent to the appropriate authority and the OPs informed to the complainant about this shortly, then complainant on 14.12.2014, received a call from the office of the OPs and who told the complainant to immediately deposit an other amount of Rs.1,68,540/-, then the complainant and her father in law has been shocked and told to the OPs that at the time of new agreement you assured the complainant, there is no need of any amount, then why you are demanding money from us, then the OPs told the complainant that if the complainant did not pay this amount, then her file will be closed and all earlier paid will not return. The complainant immediately as per instruction of the OPs, deposited Rs.1,68,540/- by cheque. After that the complainant and her father in law has been visited the office of OPs number of times to enquire file of the complainant, but the OPs put the complainant on one pretext or to the other. The OPs never contacted to the complainant and never assisted the complainant for that purpose, the complainant engage services of the OPs. The complainant always remained in touch with the OPs, but the OPs even after lapse of months time did not response to the complainant. In the month of February, 2015 husband of the complainant came to India on asking of the OPs to sign the documents. On 10 February, 2015, the complainant alongwith her husband visited in the office of the OPs to inquire about her case, and then the OPs did not give any satisfactory answer to the complainant, then complainant came to know that the OPs did not submit file of the complainant for Nova Scotia. When the complainant asked to the OPs for reason for not applying of her file, then the OPs instead of disclosing the reason misbehaved with the complainant and her husband and threatened them. It is necessary to mention here that on the asking of the OPs, husband of the complainant, who was working at Italy, especially two times came to India for signing the papers of the complainant. It is necessary that the OPs took the writing from the complainant to refund the amount from one file and assured that the OPs refund the remaining amount and amount of second file later on after meeting, but till date the OPs did not refund a single penny to the complainant and as such, the act and conduct of the OP caused mental harassment to the complainant rather it is clear cut deficiency in service on the part of the OP and thus, the instant complaint is filed with the prayer that the complaint of the complainant may be accepted and OPs may be directed to pay Rs.2,52,810/- and 1300 $ paid by the complainant to the OP and also directed to pay professional fee of Rs.25,000/- incurred by the complainant just for visiting the office of OPs and further, OPs be directed to pay compensation for harassment to the complainant, to the tune of Rs.2,00,000/- and be also directed to pay litigation expenses of Rs.11,000/- and further sought a direction to the OP to pay interest @ 18% per annum for the aforesaid amount.
3. Notice of the complaint was given to the OPs and accordingly, all the OPs appeared through their counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the instant complaint of the complainant is not maintainable because the complainant has suppressed the material facts from the Forum, to the effect that the complainant has consented to receive Rs.90,000/- towards his full and final refund, vide Consent Letter dated 19.05.2015 in respect to her case and that the complainant will not file any legal case and raise any claim against the answering OPs, after receipt of Rs.90,000/- and accordingly, the OP prepared a cheque bearing No.481367 dated 15.12.2015 for amounting to Rs.90,000/-, but the complainant refused to accept the said cheque and then the same was cancelled and thereafter, again a cheque bearing No.485345 dated 15.01.2016 for an amount of Rs.90,000/- was prepared, however, again complainant had refused to accept the said cheque. It is further averred that the present complaint is not maintainable because the complainant herself could not able to clear IELTS with requisite bands and also failed to submit the requisite documents for processing of immigration case of the complainant and as such, the complaint is liable to be dismissed on this ground. The complainant was required to obtain high-proficiency in English by achieving the requisite Candian Language Bench Marks in IELTS, which the complainant failed to secure, thus, the OP is not at fault and there is no deficiency in service on the part of the OP. It is admitted that as per contract, the complainant had engaged the services of the OPs for getting her Educational Credential Assessment done from World Education Services and has paid an amount of Rs.75,000/-, vide receipt dated 13.06.2014. She had further engaged the services of M/s Global Strategic Business Consultancy, Dubai and has paid an amount of US $ 1300, vide receipt dated 23.07.2014 for assisting in getting the Educational Credential Assessment done. The case of the complainant was duly prepared and sent to WES for assessment along with the fee of US $ 204 (non-refundable). On the basis of the case prepared, the WES vide their assessment dated 14.08.2014 has assessed her credentials as “Recognized”. Thus, the OPs have duly performed their part of the Contract by getting her assessment done and as such, the fee of Rs.75,000/- i.e. US $ 1300 is non-refundable as per Clause-11 of the Contract Act. The complainant after the positive assessment of her credential, failed to provide her IELTS score with requisite bands, due to which her case could not be filed under the Federal Skilled Worker under the category General Nursing and Midwifery. Thus, the present complaint is liable to be dismissed on this ground alone. Further, since the complainant was unable to obtain 6.0 bands in her case for Federal Skilled Worker therefore, she was advised to switch over to Nova Scotia Program, wherein there was low requirement of bands in IELTS at the relevant time. The complainant engaged the services for Nova Scotia Program and paid an amount of Rs.1,50,000/-, vide receipt dated 16.12.2014 towards the fee for the said program and also entered into agreement dated 16.12.2014, however, as a bad luck of the complainant, the Canadian Immigration Authorities, who had earlier given the requirement of 5.0 bands in IELTS for this program, enhanced the same to 6.0 bands and again the complainant could not achieve the said IELTS bands and filed a refund application, which was duly processed and accordingly, as a goodwill gesture, an amount of Rs.90,000/- was approved and even consent was obtained from the complainant and even the cheque was prepared, but the complainant refused to receive the cheque. It is further alleged that as per Clause 11(f) of the Contract, out of the amount of Rs.84,270/- an amount of Rs.9270/- and out of the amount of Rs.1,68,540/- an amount of Rs.18,540/- has been paid as Service Tax, Educational Cess and Secondary and Higher Education Cess etc by the complainant, which is totally non-refundable as the same has gone into Government account as it is clear from the Receipts, wherein the details of service tax have been mentioned, thus, this amount cannot be claimed from the OPs. The complainant in actual has paid an amount of Rs.2,25,000/- to the OPs and further alleged that this Forum does not have the jurisdiction to deal with the present because the complainant has agreed in Clause 24 of Contract Act dated 13.06.2014 and that all the differences and disputes arising between the parties shall be referred to the Sole Arbitrator appointed by the company. Thus, since District Consumer Disputes Redressal Forum does not have the jurisdiction to deal with the present complaint in view of Arbitration Clause and therefore, this complaint is liable to be dismissed on this ground alone. On merits, the factum in regard to engagement of the services of the OP is admitted and even it is also admitted that the complainant has deposited some amount for that purpose, but 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.
4. In order to prove the case of the complainant, the complainant herself tendered into evidence her own affidavit Ex.C-1 and documents Ex.C-2 to Ex.C-10 and some other documents Mark C-11 to Mark C-20 and closed the evidence.
5. Similarly, counsel for the OPs tendered into evidence affidavit Ex.OP-A alongwith some documents Ex.OP1/1 to Ex.OP1/15 and closed the evidence.
6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
7. The case of the complainant, in regard to getting services of the OPs for preparation and submission of the application for permanent resident for Canada through Skilled Worker Category as well as making payment of Rs.84,270/- and 1300 US $ in regard to aforesaid services, has been admitted and further, the OP has also admitted that the case for Federal Skilled Worker is not approved for the complainant for want of getting sufficient 6.0 bands and as such, the complainant was advised to switch over to Nova Scotia Program and accordingly, for that Nova Scotia Program, the complainant deposited further a sum of Rs.1,68,540/-, is also not denied by the OP rather the OPs categorically submitted in Para No.4 of preliminary objection that out of the amount Rs.84,270/- an amount of Rs.9270/- and out of amount Rs.1,68,540/- and amount Rs.18,540/- has been paid as services tax, educational cess etc. by the complainant, which is totally non-refundable as the same has got in the government account as it is clear from the receipts Ex.OP1/6 and Ex.OP1/10 respectively.
8. Further, the OP took a plea that the complainant was not having sufficient band i.e. above 6 band and as such, the case of the complainant for permanent resident of Skilled Worker Category was not succeeded and further as per previous policy, 5 bands were required for the Nova Scotia Program, which was later on offered to the complainant and at the time of the offering the said program, the complainant was having 5.0 bands in IELTS for that program, but unfortunately, the said requirement of the bands has been enhanced by the Canadian Immigration Authority from 5 bands to 6 bands and thus, the complainant was not having 6 bands. Therefore, her case cannot be succeeded and further alleged that as per agreements in both the schemes i.e. Ex.OP1/5 and Ex.OP1/11, the amount deposited by the complainant for getting services from the OP is non-refundable as per clause 11-(A) (C) & (F) and therefore, the complainant is not entitled for the refund of any amount deposited by the complainant, but due to good well gesture, the OPs agreed to refund an amount of Rs.90,000/- to the complainant on the Consent Letter of the complainant Ex.C-16, the said amount of Rs.90,000/- have been already paid to the complainant in the Forum, which was received by the complainant through her advocate on 15.03.2016 by suffering a statement in the Forum that he received a cheque bearing No.485345 dated 15.01.2016 for Rs.90,000/- and if the complainant has already settled the claim in full and final with the OP as per consent letter and whereby also gave under taking that she had made the full and final settlement for all times and she will not file any legal case or raise any claim against the company for refund/damages ever in future and when claim is settled amicable with the consent of the parties, then the complainant is not entitled to file such like complaint before the Consumer Forum, in view of the judgment of the Hon'ble National Commission and copy of the judgment is placed on the file by the OP Ex.OP1/4 and further submitted that the complaint of the complainant is liable to be dismissed.
9. We have sympathetically considered the version of the OP as well as the case of the complainant and find that the OP has charged twicely from the complainant for providing the services in two different type of services for sending the complainant to Canada under the category of Skilled Worker as well as Nova Scotia Program and in the first scheme, the OP charged a sum of Rs.84,270/- as well as 1300 US $ and in the second scheme, the OP charged a sum of Rs.1,68,540/- and these amount have been admitted by the OP in para No.4 of the preliminary objection of the written reply, though the OP alleged that out of that amount some amount to the effect that Rs.9270/- as well as Rs.18,540/- have been paid as services tax, educational cess etc., but the OP has not brought on the file any receipt, whereby the said amount of services tax, educational cess deposited in the government treasury, simply mentioning in the receipt Ex.OP1/6 and Ex.OP1/10 that the said amount is charged as services tax, educational cess is not sufficient to deny the refund of the said amount.
10. Further, it is established on the file that the case of the complainant has not been processed by the OP on both the occasions i.e. firstly for permanent resident as a Skilled Worker Category and then on Nova Scotia Program, if so then, the OPs are not entitled to get any service charges from the complainant, if the case of the complainant was processed and the same was declined or rejected by the Canadian Immigration, then situation may be different, at that eventuality, the Clause-11 (A), (B) and (C) as referred by the OP of the Contract Ex.OP1/5 and Ex.OP1/11 are attracted only if the case of the complainant for immigration of the Canada had been processed, but if the case had not been processed by the OP, then obviously there is a negligence on the part of the OPs and they retained the amount of the complainant without any justification and as such, we are of the opinion that the complainant is entitled for the refund of the amount from the OP.
11. From the above discussion, it reveals that the OP has allegedly make a payment of Rs.90,000/- out of the total fee deposited by the complainant under the Consent Letter Ex.C-16, but that amount is in regard to providing services in one file bearing No.85573 and the said number is very well mentioned on the Consent Letter Ex.C-16 and further this number is also mentioned on the agreement Ex.OP1/11 and as per agreement Ex.OP1/11, the said amount is in regard to the scheme of Nova Scotia Program, for that the complainant had admittedly deposited Rs.1,68,540/- and out of that amount of Rs.1,68,540/-, the OP has admittedly returned the amount of Rs.90,000/- and that claim is not liable to agitate by the complainant again and again in view of the judgment referred by the OP i.e. Ex.OP1/4.
12. But, so for the concern of other services obtained by the complainant under the Skilled Worker Category and for that purpose, the complainant had admittedly paid a sum of Rs.84,270/- and also deposited 1300 US $, out of these amounts, the OP has to provide for preparation and submission of the application for permanent resident for candidate under the Skilled Worker Category, but admittedly, the OP miserably failed to bring on the file any document, where from we can construe that the OP had ever processed the Visa file of the complainant, if so then, there is a negligence and deficiency in service on the part of the OP and if the case of the complainant was not put in motion by the OP, then Clause 11 of the agreement Ex.OP1/5 is not applicable upon this case and as such, we come to conclusion that the OPs are liable to pay the charges amount of Rs.84,270/- as well as charges of foreign currency 1300 US $, to the complainant.
13. There is an other legal aspect raised by the counsel for the complainant that as per both the agreements i.e. Ex.OP1/5 and Ex.OP1/11, there is a Clause 23 and according to that clause, if any dispute arising between the parties in regard to providing services to the complainant, then the matter should be referred to the Arbitrator and in view of the said Clause, this Forum has no jurisdiction. We do not agree with this submission of the learned counsel for the OP because the said clause of the agreement will not oust the jurisdiction of this Forum, being reason there is a specific Section-3 in the 'Consumer Protection Act', 1986, which gave an additional remedy to the complainant to file a complaint before the Consumer Forum and as such, the argument of the learned counsel for the OP to this effect is devoid of merits.
14. In the light of above detailed discussion, we are of the opinion that the complainant is able to prove his case and accordingly, the complaint of the complainant is partly accepted and OPs are directed to return the amount of Rs.84,270/-, paid by the complainant as well as 1300 US $, paid by the complainant, the aforesaid amount be paid to the complainant with interest @ 9% per annum from the date of filing complaint, till realization. (we like to make it clear that the interest @ 9% per annum will be incurred upon the aforesaid US $ by converting the same into the Indian Currency, the rate of the $ will be considered in Indian Currency on the day of filing this complaint i.e. 09.12.2015). The OPs are further directed to pay a compensation of Rs.20,000/- for mental harassment and wastage of value of the time of the complainant and OPs are also directed to pay litigation expenses, to the tune of Rs.6000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
10. 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
21.02.2018 Member President
