Order dictated by:
Ms.Rachna Arora, Presiding Member
1. Present complaint is filed by complainant Prabhjeet Kaur against the opposite parties WWICS Ltd u/s 12 & 13 of the Consumer Protection Act, 1986. As the complainant has gone to Abroad and as such has given special power of attorney to her parental uncle Sahib Singh S/o Gurnam Singh to appear in the proceedings of the case on her before .
Facts of the case:-
2. The brief facts of the case are that the complainant had hired the services of the opposite parties for preparation , submission and processing of her immigration case to Canada under Quebac Skilled Worker category Canada. For the abovesaid services, opposite parties and the complainant entered into a contract of agreement dated 24.12.2013 at the office of opposite party No.3 at Amritsr and the contract was duly signed by the complainant and the authorized signatory of the opposite parties . The application number of the complainant is W-0670030184/C13-1004313. The complainant paid the opposite parties Rs. 1,17,978/- in total vide two receipts No. 1003132127 dated 24.12.2013 for Rs. 84,270/- and receipt No. 1003132128 dated 24.12.2013 for Rs. 33,708/-. However, the application of the complainant could not be presented to the concerned authorities of Canada Government. As such after the lapse of about six months the complainant approached the opposite party No.3 where the representative of the opposite parties told the complainant that her application could not be moved because of some technical reasons . When the complainant requested for refund of her money, the representative of the opposite party replied that she would sent request to high office for the refund of money and asked the complainant to come after one month i.e. August 2014. Thereafter in the first week of August 2014 complainant visited the opposite party No.3 and asked for the return of her money, but she was turned empty handed by the representative of the opposite party. Thereafter till date the complainant paid several visits to the opposite party No.3, but her hard earned money has never been refunded by the opposite parties. As the application of the complainant has not been presented by the opposite party and now the opposite parties have not been refunding the money of the complainant which she is legally entitled for, the opposite parties are negligent in their services towards the complainant. The complainant also served legal notice upon the opposite parties on 28.7.2017 with respect to refund her amount due towards the opposite parties, but inspite of receipt of legal notice, the opposite parties remained silent and did not make any payment. The act of the opposite parties tantamount to deficiency in service, unfair trade practice which has caused lot of mental tension, agony, harassment, inconvenience besides financial loss to the complainant. The cause of action has arisen to the complainant when the opposite party could not succeed to get Quebac Skilled Worker category Canada and failed to refund the amount as agreed as per Contract of Engagement to the complainant .Vide instant complaint, complainant has sought for the following reliefs:-
(a) Opposite parties be directed to refund amount of Rs. 1,17,978/- alongwith 12% interest from December 2013 till realization of the amount ;
(b) Compensation to the tune of Rs. 50000/- alongwith litigation expenses to the tune of Rs. 10000/- may also be awarded to the complainant.
Hence, this complaint.
Defence of the opposite parties:
3. Upon notice, opposite parties appeared and filed a joint written version taking certain preliminary objections therein inter alia that the present complaint is hopelessly barred by limited as the complainant had engaged the services of the opposite parties on 24.12.2013 and entered into a contract of engagement dated 24.12.2013. The amount of Rs. 75000/- (excluding service tax of Rs. 9270/- which is non refundable) was paid vide receipt dated 2/1/2014 and the amount of Rs. 30000/- (excluding services tax of Rs. 3708/- which is non refundable) was paid vide receipt dated 3.1.2014 by the complainant. The complainant had failed to submit the complete case filing documents inspite of numerous reminders due to which her case could not be filed before the Canadian High Commission. Ultimately vide e-mail dated 22.4.2014 the complainant was sent a final reminder towards deactivation of her case and claim of any refund, thus the limitation to file the present complaint was only till 22.4.2016 and the present complaint has been filed on 30.10.2017 which is hopelessly barred by limitation and is liable to be dismissed on this ground alone ; that the present case is a case of non submission of complete required immigration case filing documents within given time frame and the complainant could not even complete the first step for filing her immigration case. As per clause 2(a) (d) & (f) of the contract of engagement dated 24.12.2013 under Quebec Skilled Worker Category, Canada executed between the complainant and the opposite parties, the complainant was required to submit her complete case filing documents within 30 days of retaining the services with the respondents for which the complainant paid an amount of Rs. 75000/- (excluding service tax of Rs. 9270/- which is non refundable) vide receipt dated 2.1.2014 to the opposite parties . The complainant inspite of being properly guided/advised by the opposite parties to provide mandatory documents as per checklist has failed to provide the said documents to the opposite parties and thus the case could not be filed . Later on the complainant became disinterested and sent a legal notice dated 28.7.2017 claiming refund of Rs. 1,17,978/- and thus voluntarily withdrew immigration case. The said refund request vide legal notice dated 28.7.2017 was not maintainable as per the contract and now the complainant has filed the present complaint ; that there is no deficiency in service nor there is any unfair trade practice as the complainant after retaining the services submitted partial documents dated 28.1.2014 and after reviewing the said documents, the opposite party vide e-mail dated 31.1.2014 specifically informed the complainant that on the basis of the documents received from her side, her case has been given for preparation. She was specifically informed vide email dated 31.1.2014 . Even her case was also prepared and an e-mail dated 5.2.2014 was sent to her for verifying any discrepancy in her case and again the detail of pending documents was also sent to her to enable the respondents to file her case without any further delay. The complainant failed to submit the pending documents despite repeatedly reminded to provide the pending documents vide e-mails dated 18.2.2014, 21.2.2014, 3.3.2014, 28.3.2014, 14.4.2014, 15.4.2014 and final reminder was sent to the complainant on 22.4.2014. Had the complainant filed the mandatory documents to the respondents, the respondents would have filed her immigration case before the concerned authorities ; that it is pertinent to mention here that out of the amount of Rs. 84270/- an amount of Rs. 9270/- has been paid as service tax and the same is non refundable as the same has gone into the Government account as is clear from the receipt dated 2.1.2014. Further out of the amount of Rs. 33708/- an amount of Rs. 3708/- has been paid as service tax by the complainant which is totally non refundable as the same has gone into Government account as is clear from the receipt dated 3.1.2014. As such the complainant in actual has paid an amount of Rs. 1,05,000/- only to the opposite parties ; that once the complainant had retained the services, the company started providing services from day one, even before the case was filed. Services such as :-
- Getting the educational credentials assessed from World Education Services, Canada
- Counselling and advising the client about the immigration category in which he retained the services and the immigration procedure to be followed
- Providing and counseling the client about immigration pacakage and the check list of documents. Explaining the client in detail about the documents and the forms that are necessary for filling immigration application
- Advising and guiding the client in preparation of documents and forms for herself , her spouse and children in proper format as per the requirement of immigration authorities etc. Documents such as Experience documents, Education documents etc
Thus the answering opposite parties had duly performed their part of contract and it is the complainant who has failed to supply the requisite documents as demanded through various emails, as such the file of the complainant could not be processed and as such there is no deficiency in service on the part of the opposite parties . While denying and controverting other allegations, dismissal of complaint was prayed.
4. Sh. Sahib Singh, special power of attorney holder tendered into evidence affidavit of the complainant Parbhjeet Kaur Ex.CW1/A, special power of attorney Ex.C-1, copy of contract of engagement Ex.C-2, copy of aadhar card of Sahib Singh Ex.C-2/A, copy of retainer fee receipt Ex.C-3 and Ex.C-4, copy of legal notice Ex.C-5, postal receipts Ex.C-6 to Ex.C-8 and closed the evidence on behalf of the complainant.
5. To rebut the aforesaid evidence Sh.Sunny Sehgal,Adv.counsel for the opposite parties tendered into evidence copy of contract of engagement Ex.OP1, copy of retainer fee receipt Ex.OP2 & Ex.OP3, copy of final reminder Ex.OP4, copy of checklist for quebec Ex.OP5, copy of e-mail Ex.OP6 and Ex.OP7, copy of reminder I Ex.OP8 and closed the evidence on behalf of the opposite parties.
Contentions of the parties
6. Ld.counsel for the complainant has vehemently contended that complainant had hired the services of the opposite parties for preparation , submission and processing of her immigration case to Canada under Quebac Skilled Worker category Canada and for the said purpose entered into a contract of agreement dated 24.12.2013 . The complainant paid the opposite parties Rs. 1,17,978/- in total vide two receipts No. 1003132127 dated 24.12.2013 for Rs. 84,270/- and receipt No. 1003132128 dated 24.12.2013 for Rs. 33,708/-. However, the application of the complainant could not be presented to the concerned authorities of Canada Government. When after six months, the complainant approached the opposite party No.3 the representative of the opposite parties told the complainant that her application could not be moved because of some technical reasons . As such the complainant requested the opposite parties to refund her hard earned money, but till date the complainant paid several visits to the opposite party No.3, but her hard earned money has never been refunded by the opposite parties.
7. On the other hand Ld.counsel for the opposite parties has repelled the aforesaid contentions of the Ld.counsel for the complainant on the ground that that the present complaint is hopelessly barred by limitation as the complainant had engaged the services of the opposite parties on 24.12.2013 and the amount of Rs. 75000/- (excluding service tax of Rs. 9270/- which is non refundable) was paid vide receipt dated 2/1/2014 and the amount of Rs. 30000/- (excluding services tax of Rs. 3708/- which is non refundable) was paid vide receipt dated 3.1.2014 by the complainant. The complainant failed to submit the pending documents despite repeatedly reminded to provide the pending documents vide e-mails dated 18.2.2014, 21.2.2014, 3.3.2014, 28.3.2014, 14.4.2014, 15.4.2014 and final reminder was sent to the complainant on 22.4.2014 and the complainant had failed to submit the complete case filing documents as such her case could not be filed before the Canadian High Commission. It was submitted that as per clause 2(a) (d) & (f) of the contract of engagement dated 24.12.2013 under Quebec Skilled Worker Category, Canada executed between the complainant and the opposite parties, the complainant was required to submit her complete case filing documents within 30 days of retaining the services with the respondents to which the complainant had failed to provide the said documents to the opposite parties and thus the case could not be filed . It was further submitted that later on the complainant became disinterested and sent a legal notice dated 28.7.2017 claiming refund of Rs. 1,17,978/- and thus voluntarily withdrew immigration case. The said refund request vide legal notice dated 28.7.2017 was not maintainable as per the contract and now the complainant has filed the present complaint . It is pertinent to mention here that out of the amount of Rs. 84270/- an amount of Rs. 9270/- has been paid as service tax and the same is non refundable as the same has gone into the Government account as is clear from the receipt dated 2.1.2014. Further out of the amount of Rs. 33708/- an amount of Rs. 3708/- has been paid as service tax by the complainant which is totally non refundable as the same has gone into Government account as is clear from the receipt dated 3.1.2014. As such the complainant in actual has paid an amount of Rs. 1,05,000/- only to the opposite parties.
Consideration of contentions:-
8. We have given our thoughtful consideration to the contentins raised by the Ld.counsel for the parties.
9. There is no dispute regarding the contract dated 24.12.2013 between the parties. There is also no dispute regarding payment of Rs. 1,17,978/-. The only point of consideration between the parties is that whether the opposite party has processed the file of the complainant with the Canadian Embassy. In this regard the plea of the opposite parties is that the required documents which are mandatory for the processing of the file , were not supplied by the complainant inspite of several reminders sent to the complainant through e-mails, so they were unable to process the file. But we are not agreed with this plea of the opposite parties as proper address with mobile number of the complainant is mentioned in the agreement and once the complainant is not responding to the e-mails the opposite parties should have sent the reminders through post or by making telephonic calls to the complainant and should apprised her about the requirement of various documents . The opposite parties have not placed on record any other mode of communication to the complainant except copies of e-mails. Moreover the complainant also served legal notice upon the opposite parties and if the opposite parties are not having malafide intention then why the opposite party could not give the answer to that legal notice sent by the complainant. As such it stands proved on record that the opposite parties have not processed the file of the complainant .
10. The other plea of the opposite parties is that the complaint is barred by limitation as the complainant was served final reminder through e-mail dated 22.4.2014 towards deactivation of her case and claim of any refund and as such limitation to file the present complaint was only till 2.4.2016, whereas the present complaint has been filed on 30.10.2017 which is hopelessly barred by limitation. But again we are not agreed with this plea of the opposite parties as the opposite parties themselves admitted that they could not process the file the complainant with the Canadian High Commission and the opposite parties have failed to prove on record that except the e-mails complainant was apprised at any point of time through any other mode of communication regarding requirement of certain documents , as such the cause of action continuous as the opposite parties have failed to provide the services for which they have charged a huge amount to the tune of Rs. 1,17,978/- from the complainant.
11. Regarding the quantum of compensation, the opposite parties in their written version have stated that the complainant has actually paid an amount of Rs. 1,05,000/- as out of Rs. 84270/- an amount of Rs. 9270/- has been paid as service tax which has gone into the Government Account and out of Rs. 33708/- an amount of Rs. 3708/- has been paid as service tax which has gone into the Government Account . The said plea of the opposite parties is genuine as the opposite parties have paid Rs. 9270/- + Rs. 3708/- towards service tax which has gone into the Government Account , as such the same are not refundable.
12. In view of the above discussion, we partly allow the complaint with costs and the opposite parties are directed to refund Rs. 1,05,000/- to the complainant . The opposite parties are also directed to pay compensation to the tune of Rs. 5000/- while litigation expenses are assessed at Rs. 3000/-. Compliance of the order be made within 30 days from the date of receipt of copy of this order ; failing which complainant shall be entitled to get the order executed through the indulgence of this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
