DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 123 of 2016 Date of institution: 04.03.2016 Date of decision : 17.10.2017
Smt. Shilpi Guleria wife of Sheetal Singh Guleria resident of 371, Anaj Mandi Road, Sector 10, Kharar, Tehsil Kharar, District SAS Nagar (Mohali).
……..Complainant
Versus
1. World Wide Immigration Consultancy Services Ltd., Corporate Office A-12, Industrial Area, Phase 6, Mohali.
Head Office:
A-31/A, 3rd Floor, Near Raja Garden Flyover, Above Yamha Showroom, Ring Road, Rajouri Garden, New Delhi.
2. Global Strategic Business Consultancy, Head Office, FZCO, Office No.315-316, West Wing-3, Dubai Airport Free Zone, Dubai (UAE).
3. World Wide Immigration Consultancy Services Ltd., Corporate Office A-12, Industrial Area, Phase-6, Mohali (Associated company of Global Strategic Business Consultancy).
………. Opposite Parties
Complaint under Section 12 of
Consumer Protection Act, 1986.
Quorum
Shri Ajit Pal Singh Rajput, President
Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Shri Jai Raghunandan, cl. for the complainant.
Shri K.S. Rupal, counsel for the OPs.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Shilpi Guleria has filed the present complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainant visited OP No.1 In January 2014, who after verifying her credentials advised and assured her to apply for federal processing – Post Provincial Selection and further assured that OP No.1 would be assisting the complainant in the process of securing a job from an employed in Canadian Province. On this assurance, the complainant executed a contract of engagement with OP No.1 on 30.01.2014 for preparation, submission and processing of immigration case of the complainant for Post Provincial Selection. On the advise of OP No.1 the complainant executed another contract of engagement on 30.01.2014 for submission of documents to OP No.2 as associated company for assisting the complainant in the process of securing a job offer from an employer in Canadian Province. The complainant also executed a contract of engagement with OP No.2 for provincial nominee program – job offer. At the time of executing these contracts the complainant paid Rs.2,02,248/- to OP No.1 by cheque dated 30.01.2014 and on the instructions of OP No.1, the complainant also paid US $ 3400 to OP No.1 by cheque dated 03.03.2014 for Rs.2,13,980/ in the name of Paul Merchants Ltd. On further demand of the OP No.2 the complainant paid US $ 3300 vide cheque dated 16.04.2014 for Rs.2,01,700/-. Thereafter the complainant contacted the OP No.1 several times regarding status of her application but every time OP No.1 gave one excuse or another. In October, 2014, OP No.1 advised the complainant to apply for grant of permanent visa for Canada under Skilled Worker Category and accordingly another contract of engagement was executed in favour of OP No.1 on 07.10.2014. At the time of executing this contract, an amount of Rs.70,000/- was also demanded from the complainant. Further amount of Rs.8,652/- towards various taxes was also demanded from the complainant. The complainant paid to OP No.1 Rs.78,652/- vide cheque dated 07.10.2014 and also paid Rs.11,800/- to OP No.1 vide cheque dated 09.10.2014. Husband of the complainant vide e-mail dated 24.03.2015 sought original signed contracts but OP No.1 flatly refused to provide the same. The OPs had charged total amount of Rs.7,08,380/- from the complainant for providing professional services but have failed to provide any kind of professional services. Hence, the complainant has sought direction to the OPs to refund her Rs.7,08,380/- alongwith interest @ 18% till its realisation; to pay her Rs.2,50,000/- as compensation for mental as well as physical harassment and litigation expenses of Rs.50,000/-.
3. The complaint has been contested by the OPs by filing joint reply. It is pleaded in the preliminary objections by the OPs that they are ready to refund the amount of Rs.1,12,500/- out of Rs.1,50,000/- excluding service tax of Rs.18,540/- as per clause 9 (III) of contract dated 30.01.2014. An amount of US $ 5700 can be refunded to the complainant as per Clause 9 (III) of contract dated 30.01.2014. An amount of Rs.30,000/- can also be refunded to the complainant. Thus, an amount of Rs.1,42,500/- can be refunded to the complainant. As regards contract dated 07.10.2014 for processing the case of the complainant under Skilled Worker Category, the case of the complainant was duly processed and the documents were sent to World Education Services, Canada (Assessing Authority of Canada) for Assessment of Educational Credentials of the complainant. Positive Skill Assessment was received from WES on 03.11.2014. The complainant was required to submit case filing documents within 15 days from the date of ECA result as per Clause 2 (a) of the contract. However, the complainant did not submit the documents and in the meantime the program got capped on 31.12.2014. Thus, as per Clause 11 (c) of contract the complainant is not entitled to any refund out of Rs.70,000/-. Further out of amount of Rs.1,68,540/- an amount of Rs.18,540-/, out of Rs.33,708/- an amount of Rs.3,708/- and out of Rs.78,652/- an amount of Rs.8,652/- has been paid as Service Tax, Education Cess etc. by the complainant which is totally non refundable as the same has gone to the Govt. account vide receipts dated 05.02.2014 and 07.10.2014. The OP has performed the services from the day the complainant retained the services of the OPs. On merits, the OPs have pleaded that out of Rs.2,02,248/- an amount of Rs.22,248/- has been paid towards service tax which is non refundable. On the request of the complainant her case was processed under Skilled Worker Category after getting her Educational Credential Assessed from World Education Services. However, after receipt of positive results, the complainant failed to submit the documents within time. The complainant has not paid Rs.7,08,380/- to the OPs, rather she has paid an amount of Rs.6,58,700/-. The complainant is calculating the amount of US $ 6700 @ Rs.66/- per dollar. When the complainant paid this amount to the OPs the prevailing rate was Rs.61/- per dollar and the amount comes to Rs.4,08,700/-. The amount equivalent of US $ 5700 is being refunded to the complainant at today’s prevailing conversion rate of Rs.67/- per dollar which comes to Rs.3,81,900/-. Inspite of advise by the OPs, the complainant of her own had filed her case under Express Entry without her spouse and consequently vide letter dated 05.06.2015 the complainant was found to be not legible for Express Entry. Thus, denying any deficiency in service on the part of the OPs, they have sought dismissal of the complaint.
4. In order to prove the case, the counsel tendered in evidence affidavit of the complainant Ex.CW-1/1 and copies of computer generated contract of engagement Ex.C-1; computer generated contract of engagement with GSBC Ex.C-2; computer generated contract of engagement Ex.C-3; Cheque Ex.C-4; e-mail Ex.C-5; receipt Ex.C-6; computer generated contract of engagement Ex.C-7; cheques Ex.C-8 and Ex.C-9; E-mails Ex.C-10 to C-13 and cheque Ex.C-14. In rebuttal, the evidence of the OPs consists of affidavit of Shri Rajeev Bajaj, their authorised representative Ex.OP-1/1; contracts of engagement with WWICS and GSBC Ex.OP-1 to Ex.OP-4; letter from WES Ex.OP-5; computer generated receipts Ex.OP-6 and Ex.OP-7; computer generated exchange rate chart Ex.OP-8 and fee of WES Ex.OP-9
5. Learned counsel for the complainant has argued that the OP No.1 had assured the complainant that she is eligible to apply for Federal Processing - Post Provincial Selection and on further assurance of OP No.1 that it would assist the complainant in the process of securing a job from an employer in Canadian Province, she executed contract of engagement with the OP No.1. Learned counsel has further argued that on failure of the OPs to get her job from an employer in Canadian Province, on advice of the OPs, she executed further contract with the OPs on 07.10.2014 for processing her case under skilled worker category. Learned counsel has further argued that as the OPs have failed to provide the services to the complainant, refund of the amount to the complainant after deduction of service tax and other charges is an act of deficiency in service and unfair trade practice. Learned counsel has then argued that the payment of 5700 US $ on 09.08.2016 should have been made to the complainant on the rate of dollar when she paid this amount to the OPs. Learned counsel has also argued that after receipt of assessment result of WES on 03.11.2014, the OPs have not sought the documents from the complainant and due to deficiency in service on the part of the OPs and the program got capped on 31.12.2014.
6. On the other hand learned counsel for the OPs has argued that the out of Rs.1,50,000/- initially deposited by the complainant, the OPs have already refunded Rs.1,12,500/- to the complainant on 09.08.2016 before this Forum. Out of Rs.1,50,000/-, an amount of Rs.18,540/- was paid by the OPs to the Govt. as service tax and remaining amount was deducted as per Clause 9 (iii) of the contract dated 30.01.2014. He has further submitted that amount of Rs.30,000/-, which was non refundable but as a goodwill gesture this amount was refunded to the complainant on 09.08.2016. Out of 6700 US $, 5700 US $ have been refunded to the complainant on 09.08.2016. 1000 US $ is not refundable as per Clause 9 (iii) of contract dated 30.01.2014. Learned counsel has argued that as regards amount of Rs.70,000/- the same was paid by the complainant for her credential assessment and is not refundable.
7. We have gone through the pleadings, evidence and written arguments of the parties as well as heard learned counsel for the parties. Out of Rs.1,50,000/- deposited by the complainant with the OPs on 30.01.2014, she has duly received Rs.1,12,500/- in this Forum on 09.08.2016. As per the OPs Rs,18,540/- was service tax which they have paid to the Govt. and the remaining amount has been deducted as 25% in terms of Clause 9 (iii) of the contract dated 30.01.2014. The contract is a bulky document and normally at the time of signing the bulky contracts, the consumer was not in a position to go through each and every clause of the contract. It the responsibility of the OPs to make aware of all the terms and conditions of the contract at the time of getting it signed from the complainant. There is no evidence that the complainant was thoroughly explained all the terms and conditions of the contract before signing the contract. Hence, deduction of 25% out of Rs.1,50,000/- is illegal and complainant is liable to refund of the same. As regards deduction of Rs.18,540/- on account of service tax, when no service has been provided to the complainant for processing her case, the OPs are liable to refund this amount to the complainant. The OPs have not produced any document to show that this amount has been deposited with the Govt. towards service tax. Hence the complainant is also entitled to refund of amount of Rs.18,540/- .
8. The next question for determination is whether the OPs are liable to refund amount of 5700 US # on the rate equivalent when the complainant deposited this amount. 6700 US $ were deposited by the complainant with the OPs in March and April, 2014 when the rate of US $ was Rs.61/- per US $. When 5700 US $ have been refunded to the complainant by the OPs on 09.08.2016 the rate is Rs.67/- per US $. As the complainant has received higher rate of US Dollars than the rate she deposited this amount with the OPs, so this contention of the complainant cannot be accepted. As regards nonpayment of 1000 US $, there is no justification to keep this amount by the OPs as they have failed to provide the services to the complainant for which they have obtained the amount from the complainant.
9. As regards non refund of Rs.70,000/- and service tax of Rs.8,652/- by the OPs is concerned, once the OPs have got credential assessment of the complainant conducted from World Education Services (WES), Canada, this amount is not refundable to complainant. Though after receipt of assessment report from WES the case of the complainant could not be processed for non submission of documents which is deficiency in service on the part of the OPs.
10. Accordingly, in view of our aforesaid discussion, we direct the OPs to refund to the complainant Rs.37,500/- (Rs. Thirty Seven Thousand Five Hundred only). The OPs should also refund to the complainant amount of 1000 US $. We also find that the complainant is entitled to a lump sum compensation of Rs.25,000/- (Rs. Twenty Five Thousand only) on account of mental agony, harassment and Rs.10,000/- (Rs. Ten Thousand only) towards litigation cost. The present complaint stands allowed.
The OPs are 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 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: 17.10.2017
(A.P.S.Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
