DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR.

Complaint No.374 of 2020 Date of Instt. 23.10.2020 Date of Decision: 10.08.2021

Neha Verma aged around 26 years d/o Sh. Rajinder Kumar r/o SN-9, Shastri Nagar, Nakodar Road, Jalandhar.

….. Complainant

Versus

1. WWICS Pvt. Ltd. Opp. Kings Hotel, Midland Finance Centre, Ground Floor, Jalandhar through its Branch Manager/Incharge.

2. WWICS Pvt. Ltd. Industrial Area, Phase-6, Mohali through its Managing Director, Mr.P.S. Sandhu.

..…Opposite Parties

Complaint Under the Consumer Protection Act.

Before:           Sh. Kuljit Singh (President)                                                                                                                                                           Smt. Jyotsna (Member)

Present: Sh. Jatinder Sharma, Adv. Counsel for Complainant.                                                                                                               Sh. Sunny Sehgal, Adv. Counsel for OPs No.1 & 2.

ORDER

Kuljit Singh (President)

1. The present complaint has been filed by the complainant against the OPs on the averments that complainant desirous of going abroad and came to know about immigration services being rendered by OP-1 at Jalandhar. Complainant contacted OP-1 and had formal discussion with OP-1 about the service being provided by them for going abroad. OP-1 assured and convinced the complainant that she would be sent abroad on PR basis to Canada and further told that first of all she will have to clear IELTS with 6 Band. OP-1 detailed the list of documents required for the process of her case. OPs demanded initial amount of Rs.59,000/- and told the complainant that she will have to pay further amounts from time to time. OPs continued calling the complainant from time to time and assured that the process work will be completed after clearance of IELTS. Complainant made to deposit a sum of Rs.59,000/- on 26.08.2017. Complainant appeared in IELTS and secured 7 bands and handed over the necessary certificate to OPs. OPs confirmed that all the formalities/documents are now completed and her file will be clearly very shortly. Complainant kept on waiting for any response from OPs, but OPs did not intimate any result/status to complainant. After waiting for a period of about two years, they started telling about the requirement of 7.5 bands instead of 6 bands, as earlier told and she will have to appear for IELTS exam. Believing them for the requirement of 7.5 bands and as per suggestion of OPs, the complainant again appeared in IELTS examination and could secured bands. Necessary certificate was submitted to OPs. OPs again demanded a sum of Rs.1,45,140/- from the complainant which was paid by the complainant on 29.09.2018 which complainant paid on 29.09.2018. OPs as per their email message of 17.09.2020 advised the complainant submit IQAS application form alongwith payment of $275.00 as application invoice amount, which requirement was also met with by complainant. Ops have demanded money from complainant on one pretext or the other and they received total amount of Rs.2,24,140/- from complainant. Complainant has visited the office of OP-1 for last two years, but OPs failed to arrange PR-VISA for complainant. Lastly prayer has made that OPs be directed to refund Rs.2,24,140/- and claimed interest of Rs.30,000/-, Rs.50,000/- as damages for harassment and Rs.22,000/- as litigation expenses.

2. Notice of the complaint was given to the OPs, who filed reply and contested the complaint of the complainant by raising preliminary objections that complainant retained the services of OPs and complainant vide authorization letter authorized her father to sign the contract dated 28.08.2017 on her behalf. The complainant paid an amount of Rs.50,000/- (excluding service tax of Rs.9000/- which is non- refundable) vide receipt dated 26.08.2017 as professional fee. The complainant was duly provided with all information for submitted the complete documents for getting her education credentials assessed by World Education Service (designated Education Credential Assessment (ECA in short), authority, Canada in short WES). Complainant was provided checklists for processing her immigration case. In response, the answering OPs received the ECA documents of complainant, which were assessed and after processing and completing all formalities, the same were forwarded to WES on 22.09.2017 for getting the same assessed and on the basis of said documents, the positive WES result was received by complainant. The answering OPs had duly performed their part of contract to obtain WES result of complainant. After receiving her WES result, the complainant retained the services of OPs for further process of her immigration case of complainant. Complainant had paid an amount of Rs.1,23,000/- (Excluding service tax of Rs.22,140/- which is non-refundable) vide receipt dated 29.09.2018 as professional fee. Complainant was duly provided with all the information for submitting the complete documents and was provided checklists for processing of her immigration case. In response, the complainant submitted her resume with the answering OPs which was assessed by OPs and vide email dated 18.12.2018 discrepancies were sent to the complainant. As per documents and information submitted by complainant National Occupation Certificate (in short NOC) NOC 2173 – Software Engineers and Designers” and NOC – “Computer Programmer and Interactive Media Developer” was allotted to her. Thereafter, the complainant vide email dated 09.01.2019 finalized her NOC. Thereafter, the provided documents of complainant were assessed and vide email dated 05.07.2019 details of pending documents were sent to complainant. After receiving required documents, the OPs again assessed the documents of complainant prepared the immigration case of complainant. The complete immigration case of complainant was thereafter submitted under Express Entry to the authorities with the CRS score of 429 on 20.07.2019. However, the application of complainant for express entry was not picked by the authorities as the CRS score of complainant was lower than the cut off of 459. The cut of points are totally the discretion of authorities on which the respondents have no domain. The said CRS score varies from time to time on the applications received from all over the world. It was for high CRS score set up by the Canadian Authorities that her immigration case could not be processed further on which the OPs have no domain. Simultaneously, for better chances for getting permanent immigration by getting nomination from province, the Ops as per contact applied the case of complainant for the province Prince Edward Island to Canada as per the rules of the authorities which could have fetched the complainant 600 points more and thus the CRS score of the complainant would have been enhanced beyond cut off CRS score of Canadian Authorities. Accordingly, the immigration case/profile of the complainant was lodged online with Prince Edward Island Authority on 22.07.2019 which was intimated to complainant vide email dated 23.07.2019. The invitation to apply and expression of interest from Prince Edward Island is still awaited. Thereafter, vide letter dated 20.07.2020 the Canadian Authorities informed that express entry profile of complainant has expired on competition of one year which the complainant was required to re-upload, the same was informed to complainant vide email dated 30.07.2020. However, the complainant without waiting further for ITA and EOI and despite being reminded on several occasions, the complainant without re-uploading her profile the complainant became disinterested and after knowing the whole process the complainant had herself re-uploaded her Express entry profile on 13.12.2020 to the authorities. Thus, it is the complainant who became disinterested inspite of regular follow-ups of OPs Company and is herself at fault. As per clause 2(ag), 11(I), (iii), 12() (1), (2), (5) of the contract dated 01.10.2018, the complainant is not entitled to any refund. An amount of Rs.22,140/- out of Rs.1,45,140/- has been paid as service tax by complainant and is non-refundable as the same has gone into Government account as is clear from the receipt dated 29.09.2018 wherein the details of service tax have been mentioned. Thus as per clause 11(iii) of contract dated 01.10.2018 this amount cannot be claimed from answering OPs. Once the complainant had retained the services, the company started providing services from day one, even before the case was filed. On merits, the answering Ops have reproduced all submission as detailed in preliminary objections. Other averments of complaint are denied and prayed for dismissal of complaint.

3. In order to prove their respective versions, both the parties produced on the file their respective evidence.

4. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied those of the written statement.

5. We have heard the learned counsel for the respective parties and have also gone through the written arguments submitted by counsel for parties as well as case file very carefully.

6. It is the admitted case of the parties that the complainant entered into a Contract of Engagement with OP No.1 for receiving professional services with respect to preparation and submission of immigration case for Canada. It is also admitted that the complainant had paid an amount of Rs.50,000/- to OP No.1, which was accepted vide receipts dated 26.08.2017. The copy of the letter dated 20.07.2019 Annexure R-9 shows that OPs sent the immigration case of the complainant to Canadian authority regarding express entry profile. The copy of letter Ex.OP-10 shows the CRS cutoff in a 2019. The Ops have sent letter Ex.OP-11 regarding clarification qua lodging her case with Prince Edward Island PNP Program. Vide letter dated 20.07.2020, Ex.OP-12, the Ops intimated the complainant about expiration of her Express Entry profile.

7. As far as the allegations of the complainant that Contract of Engagement was a standard form contract, unilateral in nature with one sided terms and conditions and the OPs obtained her signatures with trickery and also obtained signatures on other blank papers including blank cheques with trickery in a clever and clandestine manner are concerned. The copy of the Contract of Engagement Annexure R-2 between the complainant and OP No.1 shows that it is duly signed by the complainant. The complainant is an educated lady and since she affixed her signatures on the agreements with open eyes, it is not believable that OP No.1 obtained her signatures from her in a clever and clandestine manner on the contract of engagements as well as on other blank papers/cheques. The Hon’ble Supreme Court of India has held in case titled “Grasim Industries Ltd. Vs. Agarwal Steel”, (2010) 1 SCC 83, that when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In the instant case, there is no proof of force or fraud, therefore, we feel that the complainant affixed her signatures on the above said documents voluntarily and with her free will. Otherwise also, the allegations regarding forgery, cheating and fraud are beyond the purview of summary proceedings before this Forum/Commission and the same are to be decided by the Civil Court by examining the detailed evidence. It is important to note that the complainant herself as per Clause No.23 of the Contract of Engagement Annexure has given the following consent :-

“Both the parties have properly read and understood the contents of the contract of Engagement and append the respective signature of their free will and without any misrepresentation, coercion, undue influence or importunity on the part of either party. The parties further render their consent and undertake to abide by the terms of the contract in its totality.”

8. We are of the opinion that the Contracts of Engagement Annexure R-2 were voluntarily signed by the complainant and the same are binding upon her and now she cannot wriggle out of their terms and conditions.

9. It is the admitted case of the complainant that her application for Express Entry draw was not allowed because of less CRS points from cutoff However, the complainant in the present case has also made a prayer for the refund of the amount of Rs.59,000/- and Rs.1,45,140, $275 as deposited as per demand of OPs vide receipts, copies of which are Ex.C-1, Ex.C-4 and Ex.C-5.So, the next question for determination is whether the complainant is entitled to the refund of this fee or not.

10. As we have already observed, the terms and conditions of the Contracts of Engagement are binding upon the complainant. Clause 11 relating to the refund of fee in Annexure R-2 clearly shows that the services provided by the company being professional in nature the entire fee is non-refundable; since visa processing fee and education credentials assessment (eca) fee is being paid to the Immigration authorities and the designated education credentials assessment (eca) organization/organizations, refund of same shall not be claimed from the company; taxes (if any) paid shall not be refundable; in case the client is not able to meet the selection criteria due to lower equivalency given by the educational credentials assessment report issued by the education credentials assessment organization/organizations and further the client is unable to cover the shortfall to meet the selection criteria by enhancing his/her point score in any of the other factor in the selection gid then company undertakes to refund the full amount paid less Rs.50,000/- (fifty thousand only), if paid by the client as per this fee agreement, this refund is applicable only if the complete documents for educational credentials assessment were submitted by the client within 15 days of signing this agreement, else the entire fee for the services provided is non-refundable; In case company has already completed his/her online express entry profile/expression of interest (eoi) and client did not receive the invitation to apply (ita) for permanent residence and also he/she is not selected by the province for nomination in 24 months from the date of filing express entry profile, then company undertakes to refund the full amount paid less Rs.1,00,000/- (Rs.One Lakh only) if paid by the client as per this fee agreement; in case invitation to apply (ita)/nomination from province is received, then nothing is refundable; 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. As we have already observed, the complainant had signed the Contract of Engagement and given her consent and undertook to abide by the terms and conditions of the contract in its totality. The OPs have submitted that the case of complainant for express entry was not picked up by the authorities as the CRS score of complainant was lower than the cut off score lower than the cut off score of 459.

11. As professional consultants, the opposite parties should have known Instructions for Express Entry of Canada and the complainant should have been examined by them on these instructions and the correct advice should have been given to the complainant.  It is seen that the opposite parties have failed in this regard as well.  Thus, the professional services provided by opposite parties were not really professional and they were only in the name sake. The opposite parties have breached the agreement by not providing timely efficient professional services to the complainant.  In fact, the Ops required re-examined all thing of when application should have been processed by the opposite parties for sending it to the Canadian Embassy, but the opposite parties have not done the same. Consequently, the application was sent to the Canadian authority is not taken up. Even if the application of the complainant has been rejected, for which the opposite parties are clearly responsible.  The opposite parties are also responsible for not providing correct information and for not providing correct professional services in accordance with the instructions for express entry. 

12. Based on the above discussion, we find that there was deficiency in service on the part of the opposite parties in providing efficient professional services timely to the complainant.  

13. In view of above discussion, the present complaint is partly allowed and the OPs are directed to refund amount as received from complainant, on account of professional charges/fee after minus tax amount already deducted. Further, the OPs are directed to pay Rs.5000/- as compensation and Rs.3000/- as litigation expenses.

14. This order shall be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the above said awarded amount to the complainant along with interest @ 6% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.

15. Copies of the order be sent to the parties, as permissible, under the rules. This complaint could not be decided within stipulated time frame due to rush of work.

16. File be indexed and consigned to the record room after due compliance.

Announced in open Commission

10^th of August 2021

Kuljit Singh

(President)

Jyotsna

(Member)