DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                  Consumer Complaint No. 614 of 2015

                                          Date of institution:  17.11.2015                                                   Date of decision:     04.10.2016

Upkar Singh S/o Sh. Veer Singh, R/o House No.47, Ajit Nagar, Sultanwind Road, Amritsar.

……..Complainant

Versus

Worldwide Immigration Consultancy Services Ltd.(WWICS), South East Asia Operations, A-12, Industrial Area, Phase-6, SAS Nagar (Mohali) through its authorized/legal representative.

…..Opposite Party

Complaint under Sections 12 to 14

of the Consumer Protection Act

Quorum

Shri Ajit Pal Singh Rajput, President 

Mrs. R.K. Aulakh, Member.

Present :   Sh. Tejinder Singh Sidhu, counsel for the complainant.               Sh. K.S.Rupal, counsel for the OP.

ORDER

By Ajit Pal Singh Rajput, President.

                Complainant Upkar Singh S/o Sh. Veer Singh, R/o House No.47, Ajit Nagar, Sultanwind Road, Amritsar, has filed this complaint against the Opposite party (hereinafter referred to as “the OP”) under Sections 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.            The complainant read an advertisement in the Newspaper Jagbani dated 10.05.2013, according to which permanent immigration could be secured in Canada, Australia, America etc. within 9-12 months from the date of applying for the immigration. On the basis of the said advertisement, the complainant approached the OP on 01.06.2013 and submitted the documents for the permanent residency to SASCATCHEWAN Immigrant Nominee Program (SINP). The complainant deposited a sum of Rs.33,708/-, vide receipt dated 01.06.2013 and sum of Rs. 1,68,540/- vide receipt dated 01.06.2013. The complainant regularly followed up the case with the OP when suddenly he was told that the scheme SINP was no more active. He was also shocked as to why the OP did not inform him regarding the inactive and invalid scheme. On the advice of the OP the complainant was shifted to another scheme British Colombia Provincial Nominee Program (BCPNP) and the complainant was assured that he would get permanent residence in 8-10 months under the BCPNP program and further demanded a sum of Rs. 33,708/- and Rs. 1,68,540/- which was duly deposited vide the receipts dated 22.08.2013. The complainant was also required to pay a sum $ 4500 which was also deposited vide draft dated 30.09.2013. The complainant regularly followed up his case but the OP had been prolonging the matter on one pretext or the other. The OP again demanded a sum of $ 7000/- vide letter dated 06.05.2014.

        The complainant after suffering a lot, came to know that his case had not been forwarded to any Embassy/Competent Authority and the OP merely wasted the time of the complainant. The complainant applied for refund on 01.10.2014 and made several requests thereafter but the amount was not refunded. The complainant suffered a lot due to deficiency in service and unfair trade practice on the part of the OP.  Hence this complaint for seeking direction to the OP to refund the total amount of Rs.4,04,496/- and $4500 paid vide Bank Draft No. 314537 dated 30.09.2013 issued by HDFC Bank, Amritsar alongwith interest @ 12% per  annum from the date of receipt of money till the payment is made; Rs. 2,50,000/- as compensation for suffering financial loss harassment, physical and mental agony due to deficiency in service and unfair trade practice and Rs. 50,000/- as litigation costs.

3.            On notice to the OP, the complaint was contested by it and a plea was taken that the complainant voluntarily changed his mind due to family circumstances and withdrew his case, as such, complaint may be dismissed. The OP stated that the case of the complainant was duly prepared and the file under British Colombia Regional Entrepreneur Program (BCREP) was forwarded vide letter dated 09.12.2013. The complainant did not provide the documents as required and rather withdrew his application on 14.06.2014 sent directly to the VISA Officer. On 04.09.2014 the case of the complainant was closed and the letter received back alongwith documents. The OP had already performed its part of the contract and there is no deficiency in service. The OP provided full service from day one till the case was withdrawn. It is further stated that out of the amount of Rs.1,68,540/- a sum of Rs.18,540/- and out of amount of Rs.33,708/- an amount of Rs.3,708/- and further out of amount of Rs.1,68,540/- an amount of Rs. 18,540/- and out of amount of Rs.33,708/- and an amount of Rs.3708/- a total amount of Rs.44,496/- was paid as service tax, which is not refundable. The complainant was not entitled to any refund as per the contract dated 22.08.2013, but  still an amount of Rs. One Lac and the complete $ 4500 was being refunded to the complainant during the pendency of the case. This Forum has no jurisdiction to deal with the complaint because the parties agreed to refer the matter to the sole Arbitrator.

                It is further stated that the complainant was informed about the closure of the scheme for which he applied initially and was advised to shift to another scheme namely BCPNP and the payment made by the complainant was adjusted in that program. The complainant was again given the option of applying in a new program where the payment of US $ 7000 was to be made. The case of complainant was forwarded to the competent authority. Since, the complainant became disinterested himself, therefore, he wrote to the Visa Officer, BCPNP to withdraw his case. It was admitted that the complainant applied for refund on 01.10.2014 and as a measure of good gesture he was offered a sum of Rs. One Lac  and the complete amount of  US $4500. The complainant was himself at fault so he withdrew his case. The complainant is not entitled to any interest or compensation or costs of litigation.

4.            In order to prove the case, the complainant tendered in evidence his affidavit Ex. CW-1/1; copies of newspaper cutting Mark-A; computer generated receipts Ex.C-1 to C-4; demand draft dated 30.09.2015 Ex.C-5; credit card authorization form Ex.C-6 downloaded from the net; letters dated 06.05.2014; 21.09.2015 and 01.10.2014 Ex.C-7 to C-9. In rebuttal the OP tendered in evidence affidavit of Rajiv Bajaj their authorised representative Ex.OP-1/1; copies of letter dated 09.12.2013 Ex.OP-1; e-mail date 13.05.2014 Ex.OP-2; letter dated 14.06.2014 Ex.OP-3; letter dated 04.09.2014 Ex.OP-4; computerized  receipts Ex.OP-5 to Ex.OP-8; contract of engagement Ex.OP-9 and Ex.OP-10 and contract of engagement with GSBC Ex.OP-11.

5.             The Ld. Counsel for the complainant had submitted that originally the complainant applied for permanent residency under the scheme SINP. On the assurance of the OP that the complainant would get the permanent residency within 12-15 months, the complainant deposited cash amount of Rs.33,708/- vide receipt dated 01.06.2013 and cash amount of Rs. 1,68,540/- vide receipt dated 01.06.2013. The OP did not take any action on the application of the complainant and it was not forwarded to any Authority or the Government of Canada. The complainant was shocked to know when the complainant was informed orally that the said scheme had been closed and the complainant should apply for another scheme known as BCPNP. Again the amounts were deposited as asked for by the OP on 22.08.2013 the receipts of which are Ex.C-4 and Ex.C-5. Again the complainant found that no action was taken on his application and the OPs framed some false documents to commit unfair trade practice.  The complainant suffered harassment and mental agony for which he is entitled for the compensation. He is also entitled to interest and for costs of litigation. He has also submitted that the amount of Rs. One Lac and $4500 was accepted under protest in the month of July, 2016 during the pendency of the case under protest.

6.             On the other hand the Ld. Counsel for the OP has submitted that the complainant himself was guilty of committing a default and withdrawing his application. As per the terms of the contract the complainant is not entitled to any refund of the amount or payment of compensation, interest or costs. Whatever was possible has been done by the OP and refunded the amount of Rs. One Lac and $ 4500. The complainant is also not entitled to the refund of the service tax amounting to Rs. 44,496/-. The complaint may be dismissed.

7.             After hearing the Ld. Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments and written submissions, we find that there is force in the submissions of the Ld. Counsel for the complainant. Firstly, we find that there is no dispute regarding the fact that the complainant deposited a sum of Rs.4,04,496/- on two different occasions i.e. on 01.06.2013 (Ex. C/1 and C/2) and 22.08.2013 (Ex. C/3 & C/4). The OP has not produced any evidence by way of any document to prove that the application dated 01.06.2013 was processed and forwarded to any Competent Authority of the Government of Canada. This clearly amounts to deficiency in service and the complainant is held entitled to refund of the total amount of Rs.33,708/- and Rs.1,68,540/-. No evidence has been produced by the OP that the alleged amount of service tax was deposited with the Government. In the absence of that evidence, it has to be held that the service tax was retained by the OP and it has to refund the same to the complainant.

8.             So far as the payment of amounts under the second scheme is concerned, the complainant has proved by producing receipts dated 22.08.2013 (Ex. C/3 & C/4) that the payment of Rs.33,708/- and Rs.1,68,540 was paid to the OP. Again no satisfactory evidence has been produced by the OP that the second application was forwarded to the concerned authorities of the Government of Canada for the grant of permanent residence. If the alleged letter dated 14.06.2014 (Ex. OP/3) was written by the complainant then how the letter could come in possession of the OP. Moreover, the letter is not addressed to any competent authority and response from the alleged competent authority has not been placed on record. This all shows that no action was taken whatsoever on the applications of the complainant and thereby the OP committed gross deficiency of service and unfair trade practice. So the OPs are bound to refund the total amount received from the complainant which comes to Rs.4,04,496/-. Out of the said amount a sum of Rs. One Lac has been paid only in the month of July, 2016 so the complainant will be entitled to interest @ 8% per annum from the date of payment of amount till the amount is fully paid.

9.             The plea of the OP that complainant is not entitled to refund of the amount is not tenable because the terms and conditions of the contract of engagements relied upon as Ex. OP/9 and OP/10 show that the document was not acted upon by OP itself. So it cannot take advantage of his own wrong. Since, the OP himself is guilty of committing a breach of the terms and conditions of the contracts, therefore, it is not entitled to claim equity and enforcement of the terms of the alleged contract deed.

10.           In our opinion because of the deficiency of service on the part of the OP the complainant suffered great harassment, mental agony and financial loss.

                Accordingly, in view of our aforesaid discussion, We direct the OP to refund a sum of Rs.4,04,496/- (Rs. Four Lacs four thousand four hundred ninety six only) less Rs. One Lac and $4500/-  paid during the pendency of the complaint on 11.07.2016.  The OP is also directed to pay interest @ 8% per annum from the  respective dates of deposit of  the payment by  complainant. The complainant is also held entitled to a sum of Rs.25,000/-(Rs. Twenty five thousand only) on account of compensation for harassment and mental agony alongwith litigation cost of  Rs.5,000/-  (Rs. Five thousand only).  

11.           The arguments on the complaint were heard on 26.09.2016 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: 04.10.2016    

                                            (A.P.S.Rajput)                                                President

(Mrs. R.K. Aulakh)

Member