Punjab

Ludhiana

CC/15/259

Samuel Sandeep chandra - Complainant(s)

Versus

Worldwide Immigration - Opp.Party(s)

Aman Khullar

29 Mar 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.259 of 20.04.2015

Date of Decision          :   29.03.2017

 

Samuel Sudeep Chandra son of Sh.Subhash Kumar Chandra resident of Flat No.601/1, Housefed Complex, Pakhowal Road, Ludhiana.

….. Complainant

Versus 

1.Worldwide Immigration Consultancy Service Limited, A-12, Industrial Area, Phase-IV, Mohali, through its authorized representative.

2.Jotanpreet Singh, Branch Manager, Worldwide Immigration Consultancy Limited, A-12, Industrial Area, Phase-IV, Mohali.

3.Vandana Dhiman, Sr.Counselor (Skilled & BI), Worldwide Immigration Consultancy Limited, A-12, Industrial Area, Phase-IV, Mohali.

 

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.Aman Khullar, Advocate      

For OPs                         :         Sh.G.S.Sandher, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant availed services of OPs, an immigration company for settling abroad. Op2 is managing the business of OP1, who is providing consultancy and other services to the clients aspiring to migrate abroad. OP3 claims herself skilled senior counselor employed in the office of OP1. Complainant approached OPs for immigration Visa and there he met  OP2.      OP2 called upon OP3 and they altogether heard the case of complainant thoroughly. Requisite documents for evaluation of probabilities for immigration Visa from Australian Embassy were handed over to OP2 and OP3. They also noted the required particulars and thereafter, assured the complainant that he would get an Australian Immigration Visa from Australian Embassy with the assistance of OPs. Even they disclosed as if there was no deficiency in service in the documents of complainant. After believing the strong representation of OPs, complainant availed skilled services of OPs for getting Australian immigration Visa. Complainant paid Rs.45,000/- to OPs through cheque, but paid 866 Australian Dollars i.e. Rs.47,725.32P on 17.12.2013 through HDFC Credit Card in favour of Vetassess for assessment qua migration. After evaluating the documents submitted by the complainant, they assured the complainant as if he is eligible for the occupation of Customer Service Manager in Australia. Requisite documents were prepared by OPs and thereafter, they were sent for skilled migration assessment at Vetassess in Australia. After considering the application, Vetassess replied vide assessment report dated 17.4.2014 as if the complainant is not eligible for the occupation applied for. Complainant had been attending the office of OP since long with false hope of getting immigration Visa with assistance of OPs and as such, he had to spent lot of money and time. By pleading deficiency in service on the part of Ops and claiming that after service of legal notice dated 27.11.22014, this complaint filed with the prayer for directing OPs to refund the amount of Rs.45,000/- charged for given consultancy services. Even prayer made for directing OPs to refund the amount of Rs.47,725.32 i.e. 866 Australian Dollars, which were paid on 17.12.2013 through HDFC Credit Card to Vetassess for migration assessment. Compensation for mental harassment of Rs.50,000/- even claimed.

2.                In joint written statement filed by Ops, it is pleaded interalia as if the complaint is not maintainable in view of clause 11 of the Contract of Engagement dated 10.7.2013. Amount of Rs.45,000/- was received from the complainant for the availed professional services with respect to his immigration to Australia as Customer Service Manager. Complainant filled up the free assessment application at his own and he himself disclosed his designation as Customer Service Manager. OPs were retained for skill assessment of the complainant to Australia as a Customer Service Manager. Documents received from the complainant were duly sent to Vetassess, Australia, which is concerned department for getting the skill assessment done before filing of the immigration case. However, a negative skill assessment report was received from Vetassess on 17.4.2014. In the opinion of OPs as well as the complainant, the negative skill assessment report is wrong and as such, review request was filed before the Vetassess by offering explanation. On the basis of review request, Vetassess vide email dated 14.5.2014 provided detailed reasons for giving the negative outcome report. Complainant is not entitled to refund of any of the amount because Ops have already performed their part of the contract by filing the case of complainant before the Vetassess and by further filing the review application before the Vetassess etc. There is no deficiency in service on the part of OPs and nor any unfair trade practice adopted by the OPs from the day one, even after the case was filed. Services of counseling, advising, explaining the client and guiding the client in matter of preparation of documents were duly provided by the OPs to the complainant. The skill assessment fee of Rs.866 Australia Dollars is non refundable and cannot be claimed back. Besides, it is claimed that in view of clause 17 of the Contract of Engagement dated 10.7.2013, this Forum at Ludhiana has no jurisdiction because as per that clause, all the differences and disputes between the parties liable to be referred to the sole arbitration of the Arbitrator appointed by the company. OP2 and OP3, the employees of OP1 have been wrongly impleaded in the complaint. No assurance was ever given to the complainant that he would get Australian Permanent Immigration Visa because grant of Visa is only within the domain of Australian Embassy. Admittedly, Vetassess vide assessment dated 17.4.2014 submitted negative assessment report. Each and every other averment of the complaint denied by claiming that legal notice never received by OPs from the complainant.

3                 Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C8 and thereafter, he along with his counsel closed the evidence.

4.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Sh.Rajiv Bajaj, Authorized Representative of OP1 along with documents Ex.R1 to Ex.R4 and then closed the evidence.

5.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

6.                 There is no dispute regarding the fact that amount of Rs.45,000/- was deposited by the complainant with OP1 through receipt Ex.C1, whereas, 866 Australia Dollars i.e.Rs.47,725.32P paid by the complainant through receipt Ex.C2. Record regarding these payments of Platinum Plus Master Credit Card Statements Ex.C3 and Ex.C4 has also been produced. It is vehemently contended by counsel for complainant that despite these payments, complainant failed to get the assured desired results from the OPs and there is deficiency in service on the part of OPs. It is vehemently contended that had assurance of settling the complainant in Australia been not given by the OPs, then complainant would not have shelled out above referred hefty amounts. That assurance given by OPs turned as a farce and as such, it is vehemently contended that OPs adopted unfair trade practice in accepting the above referred amounts and then not refunding the same. However, all these submissions controverted by counsel for OPs by vehemently contending that fee of Rs.45,000/- regarding services of consultancy, counseling and guiding are non refundable, particularly when due services have already been provided by the OPs. Besides, it is contended that 866 Australian Dollars fee is payable to Vetassess for getting skill assessment done and that fee not retained by OPs or any of them. It is also contended that no assurance was ever given by the OPs to the complainant that his case for settlement in Australia will go through in any eventuality. After considering the pros and cons of contract arrived at between the parties in the light of the produced documentary evidence by OPs, it is made out that OPs provided due services of counseling, guiding, preparing the documents, submitting the same to Vetassess and as such, there was no deficiency in service on the part of OPs. As the function of grant or non grant of immigration Visa is of the authority concerned, which is Australian authority and as such, if negative report of skill assessment given by Vetassess, then no fault in that respect can be found of OPs. Laws and regulations in matter of grant of Visa of the country concerned  to prevail. There is nothing on record to suggest that any fault was             committed by OPs in submitting erroneous documents or erroneous information. Rather, the information supplied by the complainant along with the requisite documents was forwarded by the Ops to Australian Authorities and as such, no fault attributable to OPs. Being so, it is not a case of deficiency in services on the part of Ops and nor it is a case, in which, they adopted any unfair trade practice.

7.                After going through page no.3 of Contract of Engagement Ex.R1, it is made out that the duties of the company as envisaged by Ex.R1 are as under:-

a)Assess the client according to the information provided by the client in his assessment form.

b)Assist the client in preparation of his/her case for Skill Assessment.

c)Review and identify submission of required documents and supporting evidences.

d)Submit the complete case with supporting documentation and evidence along with the submission report to the respective Skill Assessment Body on the receipt of all requisite documents from the client.

e)Handle all the correspondence with the respective skill assessment body pertaining to client’s case,

f)Intimate the requirements sent by Skill Assessment Body during the progress of the case.

g)Assist the client in keeping his/her file up to date.

h)Advise the client about any subsequent changes in the Skill Assessment process and policies and any subsequent conditions applicable to meet the selection criteria.

8.                So,from this, it is made out that function of OP1 is to assess the client according to the provided information; assist the client in preparation of his case for Skill Assessment, review and identify submission of required documents, submit the complete case with supporting documents to concerned; handle          all the correspondence with concerned skill assessment body; Intimate the requirements sent by Skill Assessment Body, advise the client and assist him in keeping the file up to date. All these things were done by OP company as required by the contents of produced documents is made out from the contents of    complaint and submitted affidavit.

9.                Perusal of application form for free assessment Ex.R2 submitted by the complainant along with assessment form annexed there with shows that documents as per provided information by the complainant were duly prepared. Letter Ex.R3 is supported by skilled immigration assessment outcome of Vetassess. Perusal of same reveals as if negative report of Skill assessment outcome  was received and the same was conveyed to the complainant.     Vetassess through this letter dated 17.4.2014 informed as if based on the evidence provided, the qualifications and/or employment described by the complainant do not meet the skill assessment requirements of nominated occupation by the complainant. Function of assessment to be performed by the company and not by the OPs or any of them and as such, certainly they have no role in negative skill assessment outcome report received from the Vetassess. Rather, these documents enough to establish as if due process of submission of documents along with requisite information and collected material was forwarded by the OPs for getting the case of the complainant assessed from the concerned Australian Authorities namely Vetassess. In the enclosed letter dated 17.4.2014, it has been specifically mentioned that evidence considered for assessment was the qualification certificate, transcript, statutory declaration, appointment letter/transfer letters, payment summaries for taxation, appointment letter, promotion letter/bank statement etc. An ordinary individual cannot send such documents and as such, due consultancy, counseling and guiding services virtually were provided by OPs to the complainant. So, Ops performed their duties in accordance with clause 1 of Contract of Engagement Ex.R1.

10.              Perusal of Ex.R4 dated 14.5.2014 reveals that after receipt of negative outcome report, explanation reference  was submitted on behalf of the  complainant to the authorities concerned and as such, virtually Ops performed due role of getting the negative assessment outcome report reviewed. The detailed information contained in Ex.R4 was sent through email and same was scanned by the Vetassess mailfilter is a fact borne from the documents annexed with Ex.R4. Being so, Ops duly performed their role of not only providing the consultancy and guidance services, but even of sending the documents; required material    handling of correspondence and of intimating the complainant about the requirements of skill assessment. Due advise even was given to the complainant about subsequent changes in skill assessment process. So, certainly there is no deficiency in service on the part of OPs.

11.              Provisions for refund of fee made in clause 11 of Ex.R1. That clause 11 provides as under:-

I)The services provided by the company being professional in nature, the entire fee is non-refundable.

II)Even if the client is declared disqualified in skill assessment for Australia by the respective Skill Assessment Body, the retainer fee of Rs.50,000/-(Rs.Fifty thousand only) is totally non-refundable.

III)No refund will be given if client fails to submit the documents, including IELTS with desired score, as demanded by Skill Assessment Body.

IV)Since Skill Assessment fee is being paid to the processing Skill Assessment Body, refund of the same shall not be claimed from the company.

V)Taxes (if any) paid shall not be refundable.

VI)In case the client has been given any discount on the fee payable to the company, the same would be deducted from any amount refunded to the client.

12.              From perusal of this clause I of Ex.R1, it is obvious that services provided by OPs are professional in nature and entire fee of Rs.45,000/- received from the complainant is non refundable, even if the client like complainant declared disqualified in skill assessment for Australia by the Skill Assessment Body. Rs.45,000/- were charged as retainer fee and as such, the same is non refundable as per sub clause II of clause 11 of Ex.R1 referred above. 866 Australian Dollars got by the OPs from the complainant as skill assessment fee with respect to which, the processing got done from Vetassess, the Skill Assessment Body and as such, in view of sub clause IV of clause 11 of Ex.R11, the said fee is non refundable. It is vehemently contended by counsel for complainant that sub clause VI of clause 11 provides as if the discount on the payable fee alone refundable and as such, the same is a harsh condition because the same will enable OPs to refund so much of the amount as is desired by them. However, the terms of contract arrived at between the parties has to be given effect to and nothing can be added or subtracted thereto. Being so, in view of absence of any discount given by the OPs in the payable fee, certainly the complainant not entitled for refund of any of the deposited amount, particularly when due services of consultancy, guidance, submission of documents etc have been provided by the OPs to the complainant and the skill assessment fee is not retained by the OPs, but forwarded to Skill Assessment Body. The skill assessment to be done by the Australian Authorities i.e. Vetassess and it is in their exclusive domain to give the positive or negative report and as such OPs have not committed any act of unfair trade practice. Neither it is a case of deficiency in service and nor it is a case of adoption of unfair trade practice on the part of OPs and as such, complaint deserves to be dismissed.

13.              Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                        (G.K.Dhir)

                                  Member                                        President

Announced in Open Forum

Dated:29.03.2017

Gurpreet Sharma.