BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.58 of 2016
Date of Instt. 01.02.2016
Date of Decision: 23.01.2018
Sh. Paramjit Singh Khaneja, aged 55 years s/o Sh. Darshan Singh r/o House No.79, Badri Dass Colony, Jalandhar City.
..........Complainant
Versus
1. Worldwide Immigration Consultancy Services Ltd., A-12, Industrial Area, Phase-6, Mohali through its Managing Director.
2. Worldwide Immigration Consultancy Services Ltd., 3rd Floor, Midland Tower, Opp. Kings Hotel, G.T. Road, Jalandhar through its Regional Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. IS Bhatia, Adv Counsel for the Complainant.
Sh. GPS Rana, Adv Counsel for the OP No.1 and 2.
Order
Karnail Singh (President)
1. The instant complaint filed by the complainant, wherein alleged that the OP No.1 is a Limited Company duly incorporated under 'The Companies Act', 1956. The OP No.1 is engaged in the Immigration Consultancy Services and has a branch office at Jalandhar, which is operating from the address mentioned in the head note of the complaint. The complainant wanted to permanently immigration to Canada with his family and approached the OP No.2. The complainant engaged the services of the OPs for Permanent Residency Family Visa for Canada and accordingly, deposited a sum of Rs.39,326/-, vide cheque No.108341, dated 31.08.2013 in Jalandhar, in favour of the OP No.1 on account of its professional retainer fee, services tax, educational cess and secondary and higher education cess in full and final as demanded by the OP No.2 and accordingly, the OP issued the receipt of the above said fee. The OP No.2 allotted application No.W-0120220103/C-13-974960 to the application for family upfront package submitted by the complainant and executed a Contract of Engagement dated 31.08.2013 with the complainant bearing Contract No.W-0120220103 and supplied a copy of the said contract to the complainant. The OP No.2 had undertaken to process the case of the complainant within the time frame, prescribed by the Canadian Immigration Authorities, the Checklist date for which was 1st September, 2013. Whatever documents were demanded by the OP No.2, the same were submitted by the complainant within time. The last date for submission of the documents with Canadian Immigration Authorities complete in all respect was 2nd November, 2013. The officials of the OPs did not handle the case of the complainant diligently and efficiently and there was unnecessary delay in submission of the file to the concerned authorities. The officials of the OPs were negligent in processing the case of the complainant and did not forward the requisite documents in time. Every time, the complainant approached the officials of the OPs at Jalandhar Branch to enquire about the state of his family upfront VISA application, he got the stock reply that it was the duty of WWICS to dispatch the documents in time and the complainant need not bother about the same.
2. That the processing of the Visa Application Form to be submitted to the Canadian Embassy was a time bound process and the application form complete in all respects had to be submitted within the time frame, prescribed by the Canadian Embassy. The officials of the OPs assured the complainant that the needful shall be done within the prescribed time frame and got signed the requisite forms from the complainant on 19.10.2013 and assured the complainant that the same would be dispatched by Courier on 21.10.2013 or maximum on 22.10.2013. The complainant repeatedly approached the officials of the OPs posted at Jalandhar Branch to enquire about the dispatch of the forms and requested for a copy of the Courier receipt. The complainant was put off with stock reply that the courier receipt shall be supplied shortly. The daughter of the complainant also approached Mrs. Meena posted at Jalandhar Branch of the OPs through email and cautioned her the deadline was approaching for submission of the forms duly filled in all respects and requested her to do the needful in time. The complainant was shocked to get the email on 25.10.2013 from Mrs. Babita Thakur requesting the complainant to apply for extension of time for submission of the application forms as the staff of the OPs could not process the same and had to seek clearance from their legal consultant before dispatching the same to the Canadian Immigration Authorities. Kimsy Pruthi daughter of the complainant sent reply dated 26.10.2013 to Ms. Babita Thakur. Ms. Vaneet Randhawa sent a reply dated 29.10.2013 to Kimsy Pruthi. Ms. Meena Dhiman acknowledged the delay caused by Ms. Babita Thakur, vide email dated 28.10.2013. The complainant immediately rushed to the Jalandhar Office of the OPs, but he was not attended to by the staff saying that it was half day and the next day was a holiday on account of Sunday. The complainant was told that the application form complete in all respects shall be dispatched on 28.10.2013 positively. However, the needful was again not done. The complainant visited Chandigarh office of the OP No.1 on 29.10.2013 and submitted a written complaint. Since, the file was not submitted by the OPs within the prescribed time, the daughter of the complainant based at Canada namely Kimsy Pruthi sought extension from the Canadian Embassy. The OPs again submitted the Visa file on behalf of the complainant. However, the same was again incomplete and was sent back to the complainant by the Canadian Embassy. The complainant sought another extension and the OPs again submitted the file for grant of VISA on behalf of the complainant. Vide letter dated 12.11.2014, the Canadian Case Processing Centre, Mississauga again rejected the file being incomplete. The complainant was highly disappointed with the casual, inefficient and negligent working of the staff of the OPs and suffered undue harassment and mental agony due to deficiency of service on their part.
3. That the complainant approached the OP No.2 in Jalandhar in the month of November, 2014 and informed them about the rejection of the file being incomplete for the second time on account of negligent and deficient services in handling and processing the contract assignment. The officials of the OP No.2 verbally informed the complainant that they could try for the third time, if the complainant so desired. The complainant did not want to take further chance and requested the OPs to refund the fee paid by him. Thereafter, the daughter of the complainant Kimsy Pruthi decided to engage another representative based in Canada to get the application reprocessed and accordingly, Kimsy Pruthi sent an e-mail dated 29.11.2014 to the complainant and informed the complainant that she had sought the extension for the third time. The daughter of the complainant took up the PR family Visa application on behalf of the complainant at her own end and got completed the formalities and resubmitted the application after removal of the short coming pointed out by the Canadian Authorities and got the application approved after strenuous efforts and by spending huge amount. The complainant repeatedly approached the OP No.2 for refund of the amount of Rs.39,326/-, paid by him to it. Besides, repeated personal visits in Jalandhar Office, the complainant also sent a number of emails communications for refund of the above said amount and even a legal notice was also given, but the OPs failed to refund the said amount, whereby caused undue harassment, mental tension, inconvenience and financial loss to the complainant and also OPs failed to provide proper service, which is clear cut deficiency in service on their part and accordingly, cause of action accrued to the complainant to file the complaint and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund a sum of Rs.39,326/- with interest @ 12% per annum w.e.f. 31.08.2013, till actual refund and further OPs be directed to pay compensation/damages for causing undue harassment, mental tension to the complainant and also be directed to pay a cost of litigation.
4. Notice of the complaint was given to the OPs and accordingly, both the OPs appeared and filed their joint written reply, whereby contested the complaint by taking preliminary objections that the present case is a case of wrong handling of the case by Case Processing Center-Mississauga, who inspite of having being informed by virtue of submission of Form (Use of Representative) by the OPs that the complainant has hired the OPs services as his representatives with respect to his application for Sponsorship for a member of family class, had been sending the requirement letter to the Sponsorer Ms. Kimsy Pruthi in Canada instead of sending the required letter directly to OPs, which has caused great prejudice to the complainant as the required documents could not be sent in time by the complainant through the OPs, due to which, the case of the complainant could not mature. The OPs are nowhere deficient in service rather it is the Case Processing Center-Mississauga, who inspite of fully knowing that the complainant is being represented by the OPs, had been sending the required letters to the Sponsorer rather than they representative i.e. OP, which resulted in delay and ultimately, the Sponsorship of the complainant could not mature. It is further averred that the OPs are nowhere deficient in service and the present complaint is liable to be dismissed as the Sponsorer (Mr. Kimsy Pruthi) has directly filed the application for sponsorship of the complainant under Parental Category in the year 2010 and even the acknowledgment receipt dated 12.02.2010 was also received directly by her. After the filing of the application, a requirement letter dated 02.08.2013 was also received directly by the sponsorer Ms. Kimsy Pruthi, for submission of fresh application with necessary documents within 90 days from the date of receipt of the letter. The complainant on 31.08.2013 after the receipt of required letter dated 02.08.2013, engaged the services of the OPs and entered into contract of engagement dated 31.08.2013 with the OPs. After reviewing all the documents, submitted by the sponsorer and noting the discrepancies along with few documents required, the complainant was asked to request CPC-Mississauga for an extension of 4 weeks for submission of the required documents, however, the sponsorer Ms. Kimsy Pruthi requested for the extension on 30.10.2013, however, the acknowledgment of the extension was received from CPC-Mississauga on the same date, vide email dated 30.10.2013. Thereafter, the complete application of the complainant was sent to CPC-Mississauga on 18.11.2013 alongwith the Form however, the said application was returned by CPC-Mississauga directly to Ms. Kimsy Pruthi sponsorer, instead of the OPs with a further requirement letter dated 28.02.2014. Since, the sponsorer Ms. Kimsy Pruthi was not in Canada, the said application package dated 28.02.2014 was received by her with a delay of one month, which was further forwarded by her after a one month delay to the OPs, which was received on 01.04.2014 by the OPs. Since, a lot of confusion was caused by CPC-Mississauga by sending the package directly to sponsorer instead of the OPs, being the representative of the complainant, therefore, an email dated 02.05.2014 was sent informing CPC-Mississauga that the complainant had assigned OPs as his representative and even the complete application alongwith the representative Form was sent by the OPs, then if there was any requirement then, CPC-Mississauga should have returned the application package to the OPs and not the sponsorer directly. Again, the complete application along with the required documents was sent to CPC- Mississauga, vide letter dated 08.05.2014, however, again the application package was returned directly to the sponsorer Ms. Kimsy Pruthi, vide letter dated 12.11.2014 instead of sending the required within 30 days from the date of this letter dated 12.11.2014. The complainant further informed about the receipt of the requirement letter dated 12.11.2014 on phone, on 17.12.2014, after the expiry of 30 days deadline and as even did not provide the required documents. Later on, the complainant applied for refund in January, 2015 and further, submitted that the retailer fee deposited by the complainant for the services provided by the OP is non-refunable as per agreement and as such, there is no deficiency in service on the part of the OPs. On merits, the OP has admitted that the case of the complainant was submitted by the OP twicely, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith documents i.e. Legal Notice and Postal Receipts as Ex.C-1, Photocopy of Letter dated 29.10.2013 as Ex.C-2, Photocopy of Receipt dated 31.08.2013 as Ex.C-3, Copy of Agreement as Ex.C-4, Letter dated 12.11.2014 as Ex.C-5, Copies of E-mails Ex.C-6 to Ex.C-19 and closed the evidence.
6. In order to rebut the evidence of the complainant, counsel for the OP No.1 and 2 tendered into evidence affidavit Ex.RW-A alongwith certain documents Ex.RW-1/1 to Ex.RW-1/14 and closed the evidence.
7. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
8. It is admitted case that the complainant approached the OP for providing the services to get permanently immigration to Canada with his family and also deposited a fee of Rs.39,326/-, vide receipt Ex.C-3 dated 31.08.2013. For providing services, the OP entered into contract of engagement dated 31.08.2013, which is available on the file Ex.C-4 and further allegations of the complainant are that the OP did not handle the Visa Processing Application Form of the complainant diligently and efficiently and due to that reason, there was un-necessarily delay in submission of the file to the concerned authority and even the officials of the OP were negligent in processing the case of the complainant and did not forward the requisite document in time, twicely and on both occasions, the application of the complainant was returned being incomplete and made allegations that there is a deficiency in service and negligence on the part of the OP and in support of this submission, the complainant has brought on the file his own affidavit Ex.CA, apart from the documents i.e. emails and letters which are Ex.C-6 to Ex.C-19.
9. On the other hand, the OP took a plea that there is no deficiency in service on the part of the OP, because the case of the complainant is not properly handled by the Case Processing Centre-Mississauga, who always send the required information for submitting of the further documents to the sponsorer Ms. Kimsy Pruthi in Canada, instead of sending the requirement letters directly to the OPs and moreover, the daughter of the complainant Ms. Kimsy Pruthi sponsorer herself applied for the said Visa and then get the letter for submitting of the required documents and thereafter, the OP was engaged on 31.08.2013, vide engagement/contract letter and further, alleged that as per contract Ex.C-4, Clause-11 under the heading 'Refund', the fee deposited by the complainant is non refundable and therefore, the complainant is not entitled for refund of the fee.
10. We have taken into consideration the rival contentions of both the parties and find that the processing fee, so paid by the complainant can be ordered to be refunded to the complainant, if there is any great negligence for processing the Visa case of the complainant by the OP, if not, then the complainant is not entitled and moreover, the clause-11 of the Contract Act is also to be taken into consideration, whether the same bound to the party or not, so, keeping in view the aforesaid points, we have gone through the file and find that the plea taken by the OP is apparently established that the daughter of the complainant Ms. Kimsy Pruthi sponsorer, directly filed an application for family Visa of her father in the year 2010 and acknowledgment receipt of the same dated 12.02.2010, which is Ex.RW1/2 was also received by her, directly and thereafter, she (Ms. Kimsy Pruthi) received a requirement letter dated 02.08.2013 Ex.RW1/3 for submission of fresh application with a necessary document within 90 days from the date of receipt of the letter and thereafter, the OP came to in picture, when the OP was engaged by the complainant on 31.08.2013 by way of contract of engagement Ex.RW1/4 and then OP asked the complainant to make a request to CPC-Mississauga for an extension of four weeks for submission of the required document, however, the sponsorer Ms. Kimsy Pruthi requested for extension accordingly and acknowledgment of the extension was received from CPC-Mississauga on 30.10.2013 and then OP sent a complete application alongwith document to CPC-Mississauga on 18.11.2013, vide letter EX.RW1/7, but the said application was returned by the CPC-Mississauga directly to Ms. Kimsy Pruthi sponsorer instead of OPs with a further requirement letter dated 28.02.2014, Ex.RW1/8. Since, the sponsorer Ms. Kimsy Pruthi was not in Canada and said application was received by her, after one month delay to which was sent to the OP on 01.04.2014, since, a lot of confusion was caused by CPC-Mississauga by sending a package directly to sponsorer, instead of the OPs being representative of the complainant and even an email dated 02.05.2014 Ex.RW1/10 was sent by the OP for informing the CPC-Mississauga that the complainant had assigned the OPs services as his representative and further requested that in future any requirement letter, if there be sent to the OP directly and not the sponsorer. Again the application alongwith the required documents was to sent to CPC-Mississauga vide letter dated 08.05.2014 Ex.RW1/11, but again the said application package was returned directly to the sponsorer Ms. Kimsy Pruthi, vide letter dated 12.11.2014 Ex.RW1/12, instead of sending the requirement letter to the OPs, for sending the required documents within 30 days from the date of this letter i.e. 12.11.2014. The complainant further informed about the receipt of the requirement letter dated 12.11.2014, on telephonically on 17.12.2014, i.e. after the expiry of 30 days deadline and as even did not provide the required document and later on, the complainant applied for refund in January, 2015, vide letter Ex.RW1/13.
11. We find from the above documents that there is no negligence on the part of the OPs rather all the correspondence were returned by the CPC-Mississauga to the sponsorer Ms Kimsy Pruthi in Canada, instead of sending back to the OPs and as such, there is no mishandling of the Visa case of the complainant on the part of the OPs and therefore, we are of the considered opinion that there is no negligence or deficiency in service on the part of the OPs.
12. Apart from above, there is a contract between the parties, which is available on the file Ex.C-4 and as per Clause-11 of the said contract, the fee so deposited by the complainant is non-refundable, the said contract is signed by both the parties and as such, both are bound by the terms and conditions as enumerated in the said contract, if there is a specific clause in the contract that the fee, so deposited by the complainant is non-refundable, then the complainant is not entitled for the refund of the said fee.
13. In the light of above detailed discussion, the complaint of the complainant is without merits 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.
14. 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
23.01.2018 Member President
