DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.262 of 2016
Date of institution: 10.05.2016 Date of decision : 09.10.2017
Ms. Shabnam Malik d/o Mohd. Salim, resident of 126, Tribune Colony, Zirakpur, Punjab.
……..Complainant
Versus
Worldwide Immigration Consultancy Services Ltd. Corporate Office, A-12, Industrial Area, Phase-VI, Mohali through its Director/Authorised representative.
………. Opposite Party
Complaint under Sections 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
.
Present: Shri Sandeep Bhardwaj, counsel for the complainant.
Shri K.S. Rupal, counsel for the Opposite Party.
ORDER
By Amrinder Singh Sidhu, Member.
The complainant filed the present complaint pleading that she came across with the alluring advertisements of the Opposite Party (hereinafter referred to as ‘the OP’ in short for the Opposite Party) and in response to that the complainant approached the office of the OP. The complainant met one of the representatives of the OP namely Kajal Koshi, who informed that the complainant is well qualified to get the Permanent Resident Visa for abroad. As the complainant has completed B-Tech in Information Technology, so she was told about getting the job according to her qualifications and she will get a job of Business Analyst or Business Development Manager which comes under the Information system Analyst. The OP received an amount of Rs.84,269.92 from the complainant on 12.07.2014 towards the retainer ship fee. The OP also entered into one agreement with the complainant and the OP handed over unsigned copy of agreement to the complainant. The OP told the complainant to pay another amount of US $1300 towards embassy fee. The complainant paid amount of Rs.80,000/- to the OP through cheque bearing No.227502 dated 23.07.2014. The complainant performed her part of the agreement and all the documents were provided to the OP. The OP assured for a positive response to her assessment within a period of 45 days but after making the payment, the complainant heard nothing from the OP and she kept on asking about the status of her case. Thereafter, the OP processed with the immigration case of the complainant and as per the documents and the eligibility, she acquired 66 points and the required points to get the Visa were 67 points. The complainant was required only one point for permanent visa of Federal Skilled Worker. The complainant informed the OP as the relatives of the complainant i.e. the mother and aunt are already residing at Canada so she is eligible for 5 points on account of residence of relatives in Canada. The OP told the complainant to provide the documents of her mother and aunt (Massi) and the complainant provided the documents to the OP through e-mail dated 30.09.2014. In response to the same, the OP informed that the names of the relatives and spouse is different in many documents though E-mail dated 04.10.2014. The complainant immediately replied the e-mail and clarified the query raised by the OP vide her e-mail dated 07.10.2014. Thereafter, no response of any kind was received from the OP and in the meantime the complainant came to know that the category i.e. FSW (Federal Skilled Worker) has been withdrawn and her case cannot be processed. The complainant approached the OP and verified from the OP. The OP admitted it. The OP agreed to refund the entire amount deposited by the complainant and informed that the refund of US $ 1300 has been processed from abroad and the retainer ship fee will be refunded by them. The OP sent an e-mail dated 08.07.2015 to the complainant, wherein the refund of US $ 1300 was agreed and told the complainant to submit a consent letter. The OP received consent letter dated 23.09.2015 from the complainant towards US $ 1300 and agreed to refund the amount. The miserable story of the complainant did not end here. The OP did not intent to refund the amount as such they sent an e-mail dated 23.03.2016 and told to receive the amount @ Rs.60/-. The experience and callous attitude of the OP is proven from the fact that while receiving the documents from the complainant of her relatives at abroad, they read the documents of her mother and aunt (Massi) jointly by mixing the names of spouse and issued wrong e-mail dated 04.10.2014. The OP failed to perform its duties as per the agreement which is clearly proven from the callous attitude of the OP in perusing the documents of the complainant and if the same would have been perused then the case would have been processed as the complainant would have got 71 points against 67 points required for grant of Visa. As such the complainant has not only suffered a huge loss to her bright future but also suffered monetary loss alongwith mental agony and harassment. The OP failed to disclose the stage and status of the case to the complainant. The OP failed to perform their part of agreement. As such they are not entitled to retain the amount received from the complainant and the OP is liable to refund the amount received alongwith interest and compensation which it agreed but has not paid to the complainant till date.
The act and conduct of the OP and the facts and circumstances of the case proves the deficiency in services and unfair trade practice due to which, the complainant has not only suffered the monetary loss but also suffered mental agony and physical harassment for which the OP is liable to pay the interest and compensation to the complainant.
Lastly the complainant prayed that complaint may be allowed and the OP be directed:
i) to refund an amount of Rs.1,64,269.92 alongwith interest @ 18% from the date of deposit till realisation;
ii) to pay an amount of Rs.5,00,000/- for mental agony and harassment.
iii) to pay litigation expenses of Rs.50,000/-
And/or
iv) any other relief as the Hon’ble Court deems fit.
2. After service of notice upon the OP, the OP appeared through counsel and filed reply taking preliminary objections that the present case is a case of non submission of required case filing documents for processing immigration case of the complainant; the present case is a case of disinterest, voluntarily withdrawal of application and as such, the present case is liable to be dismissed, the complainant had entered into a contract with M/s. Global Strategic Business Consultancy, Dubai for availing the post landing services and paid an amount of USD 1300 to the said company vide receipt dated 04.08.2014. It is pertinent to mention here that since the complainant could not avail the post landing services of the company, so it had agreed to refund the entire amount of USD 1300 paid by the complainant and accordingly M/s. GSBC had approved refund of an amount of USD 1300 to the complainant vide an e-mail dated 08.07.2015 which the complainant had refused to accept and, therefore, present case being devoid of any merits, deserves dismissal. The said amount of USD 1300 will be paid to the complainant before this Hon’ble Court as and when received by the respondent from M/s. GSBC, Dubai. The complainant had retained the services from the OP and there is no deficiency at any point of time, the entire fee for the services provided is non refundable. This Forum does not have the jurisdiction to entertain the present complaint since the complainant had agreed in Clause 23 of the contract dated 12.07.2014 that all the differences and disputes arising between the parties shall be referred to the Sole Arbitration of the Arbitrator appointed by the Company. Thus, the complaint is liable to be dismissed and the matter needs to be referred to the arbitration.
On merits, the OP denied that the complainant’s case fell short of one point in her eligibility under Federal Skilled Worker Category. According to the point assessment sheet dated 11.07.2014, the complainant was fully eligible to process her case under Federal Skilled Worker Category as the complainant had scored 68 points in her assessment form. Although, the complainant did not need any more points to be eligible under the chosen category, the complainant informed the OP about her relatives residing at Canada and accordingly, the respondents guided the complainant regarding the points which could be scored by the complainant on the basis of such information. The respondents asked the complainant to provide the information such as Utility bills, Credit card details, PR card, SIN card, Citizenship card, Health Card, Notice of assessment etc. of her relatives but the complainant provided just a copy of their passport and not the complete documents due to which her case could not be processed further. Hence, there is no deficiency in service on the part of the respondents and, therefore, the present case deserves on outright dismissal. As far as refund of USD 1300 is concerned M/s. GSBC is ready and willing to refund an amount of USD 1300 to the complainant, which even the complainant had agreed to accept earlier vide a consent letter dated 23.09.2015. M/s. GSBC had offered to refund USD 1300 @ 60 INR which was the actual exchange rate in July, 2014 i.e. at the time of entering the contract dated 12.07.2014.
3. In order to prove the case, the counsel tendered in evidence affidavit of the complainant Ex. CW-1/1; copies of receipts dated 12.07.2014 Ex.C-1 and C-2; agreement dated 12.07.2014 Ex.C-3; cheque dated 23.07.2014 Ex.C-4; credential evaluation report dated 02.09.2014 Ex.C-5; emails Ex.C-6 to C-9 and Ex.C-11; consent letter dated 23.09.2015 Ex.C-10; PR card Ex.C-12; passports Ex.C-13 and C-16; accounts statement Ex.C-14 and Matriculation certificate dated 16.06.1975 Ex.C-15. In rebuttal counsel for the OP tendered in evidence affidavit of Rajiv Bajaj, its authorised representative Ex.OP-1/1; copies of contract of engagement with WWICS Ex.OP-1; assessment result Ex.OP-2; demand draft Ex.OP-3; letter dated 19.07.2014 Ex.OP-4; letter Ex.OP-5; letter Ex.OP-6; assessment application Ex.OP7; e-mail Ex.OP-8; payment receipt Ex.OP-9; contract of engagement with GSBC Ex.OP-10; payment receipt Ex.OP-11; refund application Ex.OP-12; actual exchange rate Ex.OP-13 and Ex.OP-14.
5. After hearing the Ld. Counsels for the parties and going through the pleadings, evidence produced by the parties, written arguments filed by the parties and oral arguments, we find that the preliminary objections taken by the OP that this Forum has no jurisdiction to entertain the present complaint in view of Arbitration Clause and thus the present complaint is liable to be dismissed is without any substance in view of Section 3 of Consumer Protection Act, 1986. This preliminary objection as well as the same objection taken in Para No.1 of the reply on merits are not sustainable in the eyes of law because as per Section 3 of the Consumer Protection Act, 1986 (as amended upto date), the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. So, it can safely be concluded that this Forum has jurisdiction to entertain the complaint and adjudicate upon the matter. As the complainant has availed the services from the OP for consideration of Rs.1,64,262.92 so the complainant is consumer of the OP and, therefore, entitled to invoke the jurisdiction of this Forum to seek redressal from it. Further the OP’s office is situated at Sahibzada Ajit Singh Nagar (Mohali). It is admitted fact that the consideration is received at Sahibzada Ajit Singh Nagar (Mohali). Thus, this Forum has territorial jurisdiction to entertain and adjudicate upon the present complaint. Further this Forum has pecuniary jurisdiction to entertain the present complaint as the relief claimed by the complainant is less than Rs.Twenty lakhs. The complaint is filled within period of limitation of two years from the cause of action arose to the complainant. The cause of action arose to the complainant after 07.10.2014 when the OP remained deficient in providing services to the complainant despite the fact that the complainant clarified the query raised by the OP on 07.10.2014 which is Ex.C-8 and, thereafter on 08.07.2015 when the OP agreed to refund US $ 1300 and asked the complainant to submit a consent letter Ex.C-10.
6. The complainant has proved payment of Rs.64,270/- through cheque No.000004 dated 14.07.2014 of HDFC Bank to the OP vide Retainer Fee Receipt dated 12.07.2014 which is Ex.C-1 and Rs.20,000/- (Rs.Twenty thousand only) vide Retainer Fee Receipt dated 12.07.2014 which is Ex.C-2. Further the complainant has proved payment of Rs.80,000/- through cheque dated 23.07.2014 of SBI which is Ex.C-4. On the copy of this cheque it is written “received payment (US $1300) which proves the allegation of the complainant that she made payment of Rs.80,000/- to the OP through cheque bearing No.227502 dated 23.07.2014 and the OP got prepared the draft at its own. Surprisingly, the OP received the after landing service charges from the complainant at very initial stage. The complainant never landed in Canada and never availed “after landing service” from the OP. Thus, charging “after landing service charges: from the complainant without providing any service amounts to unfair trade practice. It also amounts to an unfair trade practice on the part of the OP to receive cheques from the complainant and later deny it.
7. The OP denied the allegations taking preliminary objections as well as objections on merits in its reply that it is case of non submission of documents by the complainant. The OP stated that due to non submission of required documents her case could not be processed. The OP took a stand that complainant did not submit the documents. This stand of the OP is not sustainable as e-mail dated 10th November, 2014 by agent of the OP Ex.OP-8 clearly states that ‘Dear Mam, the documents provided are correct but you are advised to provide the following documents of your maternal aunt:
1. Current dated utility bill i.e. Electricity bill, water bill etc.
2. Current dated Credit Card Statement.
3. SIN CAR, Medical card etc.
. So Ex.OP-8 which is OP’s own document and which is placed on record by the OP proves the complainant not only provided the documents but also proves that the documents provided by complainant are also correct. In further e-mail dated 11.11.2014 the OP demanded 5 more documents from the complainant which are related to her sister. Complainant immediately responded to it by stating that her real sister also got PR. Can you tell, I can give her documents? But the OP did not respond to it. Firstly, the OP did not assess the points of the complainant rightly as she scored 66 points whereas the required points are 67 then she gave details of her mother and aunt who are permanent residents of Canada and by adding their points her score of points came at 71 points against the required 67 points. The OP did not read the documents carefully and carelessly mixed the spouses names of her mother and aunt despite getting clarification from the complainant. Lastly, the OP did not respond to the query of the complainant about the need of her real sister’s documents who is PR of Canada in order to get benefit of it. So the OP not only remained deficient in providing service to the complainant but also remained negligent by their careless attitude in filing her case for PR. The OP did not only caused harassment and mental agony to the complainant but also spoiled a very good case of the complainant for PR of Canada due to its careless attitude.
9. The aim and object of the complainant in hiring the services of the OP is to settle abroad and she has paid heavy amount to the OP as consideration of availing services of the OP. The complainant has not only paid Rs.1,64,269/- (in total) to the OP as proved by retainer fee receipts dated 12.07.2014 Ex.C-1 and Ex.C-2 and cheque dated 23.7.2014 of SBI Bank Ex.C-4 but also proved that she has submitted documents to the OP vide Ex.C-6 which includes 9 attachments. The OP themselves placed on record Ex.OP-8 which proves the complainant has not only submitted documents but also proves that documents submitted are correct. So not providing services to the complainant after receiving the whole consideration amount from the complainant by the OP not only amounts to deficiency in service on the part of the OP but also amounts to unfair trade practice by the OP.
Further when complainant gave her consent to refund dated 08.07.2015 which is Ex.C-10 on the assurance of the OP to refund the amount, then the OP cannot withdraw from it. The OP in their reply theoretically is saying that they are ready and willing to refund the amount but practically did not refund a penny to the complainant since 08.07.2015. This is also an unfair trade practice on the part of the OP. If the OP had refunded the consented amount to the complainant without dragging her into litigation immediately after the consent was given on OP assurance then the matter would have come to an end but now after such a long period of time when complainant is forced to bear the present litigation for seeking redressal from this Forum causing her harassment and mental agony then she is definitely entitled to compensation and litigation amount. The complaint is partly allowed. The OP is directed to :
i) refund an amount of Rs.1,64,269/- (Rs. One Lakh Sixty Four Thousand Two Hundred Sixty Nine only) alongwith interest @ 9% per annum from the date of deposits till its actual realisation, to the complainant.
ii) pay an amount of Rs.25,000/- (Rs. Twenty Five thousand only) as compensation for mental agony and harassment to the complainant.
iii) pay litigation expenses of Rs.10,000/- (Rs. Ten Thousand only) to the complainant.
The OP is further directed to comply with the order of this Forum within 30 days from the date of receipt of this order, failing which the amount of compensation awarded shall carry interest at the rate of 9% per annum from the date of this order till realisation.
The arguments on the complaint were heard and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 09.10.2017
(Ajit Pal Singh Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
