BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.256 of 2015
Date of institution: 01.06.2015
Date of Decision: 05.02.2016
Jagjit Singh Chahal son of Fauja Singh resident of H.No.2928, Phase VII, SAS Nagar (Mohali).
……..Complainant
Versus
Worldwide Immigration Consultancy Services Ltd. Head Office, Phase VI, SAS Nagar (Mohali) through its Managing Director.
……. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri H.S. Saini, counsel for the complainant.
Shri K.S. Rupal, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
(a) refund Rs.2,25,000/- taken from the complainant towards service charges.
(b) refund embassy fee/application fee of Rs.45,940/-.
(c) to pay him Rs.2,00,000/- towards mental pain, agony and harassment.
(d) to pay him Rs.25,000/- as litigation expenses.
The case of the complainant is that he is a retired Marine Engineer and for setting alongwith his son in Canada, approached the OP. The OP convinced the complainant to apply under Federal Business Category/Investment Category Program which was the faster way of getting visa to Canada. The complainant was informed that if he applies immediately he would get benefit under Lower Investment Program and the visa would be decided within a period of 8 to 10 months. Accordingly, the complainant submitted all the documents with the OP on 19.04.2010 and 20.04.2010 and paid a sum of Rs.2,25,000/- (Rs.50,000/- by cheques dated 19.04.2010 and 20.04.2010 and 2800 US Dollars i.e. Rs.1,75,000/- by way of draft dated 19.04.2010. The draft of US Dollars 2800 was made in the name of Global Strategic Business Consultancy on the instructions of the OP. The OP got signed some documents from the complainant on 20.04.2010 and the complainant also paid an amount of Rs.45,940/- vide demand draft to the OP towards Embassy Fee. As per the assurance of the OP, the case of the complainant was to be decided within a period of 8 to 10 months but the complainant did not get any information from the OP despite lapse of more than 44 months. The complainant read in the newspapers on 13.02.2014 that Canadian Govt. has dropped all the Federal Business Category/Investment Category Programs and he approached the OP but the OP kept on dilly dallying the matter. Thus vide letter dated 24.02.2014 the complainant sought refund of the amount. The complainant received letter dated 30.01.2015 from the Canadian Embassy informing that his visa has been terminated and he could receive back his application fee/embassy fee with interest. It was also intimated that since 2014 the Embassy has been contacting the Immigration Representative of the complainant i.e. the OP for return of the Embassy Fee/Application fee but no information was received till date and that is why the letter has been sent to the complainant. The complainant again approached the OP with letter dated 30.01.2015 but the OP could not reply to this. The complainant again vide letter dated 12.02.2015 sought refund of his amount followed by another letter dated 17.02.2015 but till date the OP has not refunded the amount to him. Thus, the complainant has suffered financial loss as well as mental agony, harassment etc. due to the acts of the OPs. With these allegations the complainant has filed the present complaint.
2. The OP in the preliminary objections of the written statement has pleaded that change in immigration rules by
Canadian authorities is beyond the control of the OP. The case of the complainant was duly prepared and filed in the best possible manner with the Canadian High Commission on 26.04.2010 and the complainant was allotted a file number vide letter dated 04.05.2010. Thus the OP had rendered all the services which the complainant was entitled to do as to get his case processed by the Canadian High Commission. However, the Canadian Govt. introduced a new Act namely the Economic Action Plan 2014 No.1 which became law on 19.06.2014 under which the Immigrant Investor Program (IIP) and Entrepreneur Program (EN) applications were terminated by operation of law. Since the application of the complainant for grant of Permanent Immigration was not decided by the Canadian High Commission by 19.06.2015 his case was also terminated by operation of law. Thus the OP has already performed all the duties which it was required to perform as per the contract. The complainant has also entered into another contract of engagement dated 20.04.2010 with Global Strategic Business Consultancy to whom the complainant had paid US $ 2800. The complaint is bad on account of non joinder of necessary parties. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1, and tendered in evidence documents Ex.C-1 to C-12.
4. Evidence of the OP consists of affidavit of Rajiv Bajaj, its authorised representative Ex.OP-1/1 and copies of documents Ex.OP-1 and Ex.OP-5.
5. We have heard learned counsel for the parties and have also gone through the written arguments filed by them.
6. The grievance of the complainant is that he has availed the services of the OP for immigration to Canada under the Federal Business Category/Investor category program. Upon the guidance of the OP the complainant applied immediately as he could get benefit under the lower invest program and a visa was assured within 8-10 months. The complainant submitted all the requisite documents to the OP on 19/20.04.2010 and paid a sum of Rs.2,25,000/- (Rs.50,000/- by way of two cheques alongwith 2800 US Dollars (equivalent value of Rs.1,75,000/-) and signed the contract of engagement Ex.OP-3. As per the contract the OP has following duties:
(a) Ascertain the eligibility of the client for the program on the basis of information provided by him/her;
(b) Assist the client in preparation of his/her immigration case;
(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 Processing Visa Office;.
(e) Assist the client in keeping his/her file upto date;
(f) Correspond with the High Commission and other concerned authorities with respect to the immigration case of the client.
7. As per the complainant even after expiry of 44 months i.e. more than 3 years the OP has not given any information or intimation regarding the status of the case of the complainant though he has been visiting the office of the OP on number of occasions. As per OP it has intimated to the complainant vide Ex.OP-1 letter dated 04.05.2010 about the filing of his case with the appropriate authorities and informed him about the status of his e-file online at Citizenship and Immigration Canada website using the “e client application status function’ i.e. found on the online services section of the website http://www.cic.gc.ca. The complainant has not denied the receipt of this document. However, as per the complainant no intimation thereafter has been received by him. On 13.02.2014 the complainant read in the newspaper that the Canadian Govt. has dropped the Federal Business Category/Invest Category program and thereafter getting this information, the complainant approached the OP on 24.02.2014 seeking refund of his amount. Instead of giving the refund, the OP has given false assurance that his case is still under process with the concerned authorities. The complainant was shocked when he had received one communication dated 30.01.2015 Ex.C-8 from the Citizen and Immigration Canada intimating him his entitlement to receive the return of fee paid by him for his terminated application. Since the complainant’s immigration representative i.e. the OP has failed to take any steps to get return the fee from the immigration authorities, as per the complainant the OP was well within its knowledge about the termination of his application by operation of law and it was the duty of the OP to get the refund from the concerned authorities. The OP has failed in its duty despite having full knowledge of the status of his case from the immigration authorities as well as intimation given by the complainant himself after learning the change of law from the newspaper. The OP has failed to refund his amount and, therefore, the complainant has sought refund of the amount.
8. The factum of duly executed agreement Ex.OP-3 i.e. contract of engagement dated 20.04.2010 is not disputed. The factum of payment of amount of Rs.2,25,000/- is not disputed. The intimation of filing of the case of the complainant vide Ex.OP-1 is not disputed. The dispute arises when the OP has failed to intimate the complainant about the termination of his application by operation of law and further failed to take steps to get the refund from the concerned authorities and further has been misleading the complainant all through till the filing of the present complaint. The OP has relied on Ex.OP-2 to show that the intimation regarding termination of application of the complainant by operation of law has been conveyed to the complainant. The perusal of Ex.OP-2 shows that this document is not addressed to the complainant rather it is a computer generated document issued by Citizenship and Immigration Canada common communication addressed to the immigration representative of the immigrants to submit for return of application fee for Federal IIP/EN once the immigration representative is able to locate his client. The OP has failed to show if such communication has been conveyed to the complainant and in furtherance thereof has submitted the application for refund on behalf of the complainant. The complainant on the other hand has relied on his communication dated 12.02.2015 Ex.C-9 duly received by the OP reiterating his request for refund of consultancy fee as well as Canadian Process fee. The OP even during the course of proceedings has failed to show having received the amount from Canadian Govt. Thus, it is ample clear that the OP has failed in its duty in keeping the complainant update about his case and further failed to take steps to correspond with the High Commission with respect to the immigration case of the complainant. There is nothing on record to show that in pursuance of Ex.OP-2 the OP has followed up with the Canadian Immigration Authority/Canadian High Commission for seeking refund of the fee upon the termination of the application of the complainant by operation of law. It was the onerous duty of the OP as per Clause 1 (2) of contract of engagement Ex.OP-3. Thus, the facts speak for themselves and on the principle of resipsa liquitor the complainant has proved his case of failure of duties on the part of the OP. As per the complainant he has paid a sum of 2800 US Dollars to M/s. GSBC Dubai vide contract of engagement Ex.OP-4. The said payment has been made by the complainant at the office of OP at Mohali and the payment receipt has also been issued by the OP. The said agreement with GSBC was for post landing services. Since the complainant has not availed any post landing services vide contract Ex.OP-4, therefore, the complainant is entitled to refund of the said amount 2800 US Dollars paid to the OP.
9. A bare perusal of both the contract shows that the these have been executed by the OP at its office at Mohali and further by lifting the corporate veil it emerges that both WWICC and GSBC are inter connected in the business and though may be separate legal entities are working in hand in glove in providing pre landing and post landing consultancy services under single window operation from Mohali office of WWICS. Once the OP has failed to discharge its own obligation arising out of the contract Ex.OP-3, the OP has unnecessarily got another agreement executed from the complainant with its own sister concern for its own selfish motive by extorting exorbitant amount of 2800 US Dollars. Once it is established that the Canadian High Commission had rejected the case of the complainant by operation of law, then there was no occasion for the complainant to get post landing services. The Canadian Embassy, being a Govt. agency if, has already refunded the amount charged by them to the OP, the OP has no right whatsoever to retain the amount with it. Under the circumstances, we are of the opinion that the complainant has been unnecessarily to made to cough up 2800 US Dollars by signing agreement with third party GSBC Ex.OP-4 and the same, therefore, without having availed any post landing services, the complainant is entitled to refund of the deposited amount of 2800 US Dollars. In support of his contention in this regard, the complainant has relied upon the decision of Hon’ble UT State Commission rendered in WWICS Vs. Karnail Singh Saini, First Appeal No.164 of 2015 decided on 14.08.2015. We are in full agreement with the contention and reliance of the complainant on the decision which has been rendered by the Hon’ble UT State Commission having identical facts at that of the complaint in hand. Thus, the OP has by not fulfilling its obligation as per contract has indulged into unfair trade practice and deficiency in service. Thus the complaint deserves to be allowed and the complainant deserves to be compensated.
15. In view of above discussion, the complaint deserves to be allowed and the complaint deserves to be compensated. Hence, the complaint is hereby allowed against with the following directions to the OP;
(a) to refund to the complainant the total amount of Rs.2,25,000/- (Rs. Two lacs twenty five thousand only) with interest @ 9% per annum from the respective dates of receipt till actual refund.
(b) to refund Rs.45,940/- (Rs. Forty five thousand nine hundred forty only) with interest thereon @ 9% per annum w.e.f. 19.04.2010 till actual refund.
(c) to pay to the complainant a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
February 05, 2016.
Sd/-
(Mrs. Madhu P. Singh)
President
I don’t agree and give dissent view
Sd/-
(Amrinder Singh Sidhu)
Member
Dissent view
Sd/-
(Mrs. R.K. Aulakh)
Member
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.256 of 2015
Date of institution: 01.06.2015
Date of Decision: 05.02.2016
Jagjit Singh Chahal son of Fauja Singh resident of H.No.2928, Phase VII, SAS Nagar (Mohali).
……..Complainant
Versus
Worldwide Immigration Consultancy Services Ltd. Head Office, Phase VI, SAS Nagar (Mohali) through its Managing Director.
……. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri H.S. Saini, counsel for the complainant.
Shri K.S. Rupal, counsel for the OP.
Dissent view of Members
We don’t agree with the order of the Ld. President of this Forum vide which the Ld. President has held that the OP has indulged into unfair trade practice and deficiency in service on the point that the OP has relied upon orders of Hon’ble State Consumer Disputes Redressal Commission, UT, Chandigarh in First Appeal No.192 of 2014 dated 03.07.2014 titled as Parwinder Singh vs. Worldwide Immigration Consultancy Services Ltd. (WWICS)& Ors and First Appeal No.193 of 2014 dated 03.07.2014 titled as Kamaljit Kaur vs. Worldwide Immigration Consultancy Services Ltd. (WWICS)& Ors where Hon’ble State Commission, UT, Chandigarh held in Para No.17 that ‘Her/his (complainant) application was terminated on account of change in law. Therefore, there is no deficiency, whatsoever could be attached to Opposite Party No.4”.
Similarly, in the present complaint, the High Commission of Canada has terminated complainant’s application on account of change in Law as per Ex.OP-2. Govt. of Canada introduced a new Act namely the Economic Action Plan 2014 No.1 which became Law on 19.06.2014 under which Immigrant Investor Program (IIP) and Entrepreneur Program (EN) applications were terminated by the operation of law. The application of the complainant for grant of Permanent Immigration was not decided by an Immigration Officer before 19.06.2014 vide Ex.OP-1 until the new Act i.e. the Economic Action Plan Act 2014 No.1 became law, therefore, complainant’s application was terminated by the operation of law and not on account of deficiency in service provided by the OPs. Thus from the above it is clear that the OPs are not deficient in service and have performed the duties which the OP was required to perform as per the contract dated 20.04.2010 executed between the complainant and the OP as Ex.OP-3. Thus the complainant is not entitled to any refund in view of Clause 11(a) of the Contract of Engagement dated 20.04.2014 as both parties are bound to honour the terms and conditions of the contract wherein it has been specifically mentioned as under:
“11.(a)The company will not refund any of the total fee and shall be entitled to full payment if:
“If it becomes impossible to meet the objectives of the agreement like client having medical problems, having civil charges, national security reasons of the destined country, changes in immigration rules and/or any other reasons.”
Similarly the complainant had also entered into another Contract of Engagement dated 20.04.2010 Ex.OP-4 with M/s. Global Strategic Business Consultancy, Dubai to whom the complainant had paid the total amount of US $ 2800. In this contract, the complainant had agreed vide Clause 9 (a) that:
“9.(a)The company will not refund any of the total fee and shall be entitled to full payment if:
“If it becomes impossible to meet the objectives of the agreement like client having medical problems, having civil charges, national security reasons of the destined country, changes in immigration rules and/or any other reasons.”
Thus, since the application of complainant is terminated due to change in immigration Law, which is beyond the control of the OP, so there is neither deficiency in service nor unfair trade practice on the part of the OP. Hence the present complaint is dismissed.
Pronounced.
February 05, 2016.
Sd/-
(Amrinder Singh Sidhu)
Member
Sd/-
(Mrs. R.K. Aulakh)
Member
