Punjab

Ludhiana

CC/15/280

Amanpreet Singh - Complainant(s)

Versus

WWICS - Opp.Party(s)

compl.in person

09 Dec 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                                                        C.C. NO. 280/24.4.2015

                                                                                        Decided on : 09.12.2015

Amanpreet Singh, aged about 28 years son of S. Ajmer Singh, resident of H.No. 2033, St. No. 11, Dashmesh Nagar, Amritsar Road, Moga, District Moga-142001.

                                                                                                             … Complainant

                                    Vs.

1. Tajinder Kaur, Sr. Executive,WWICS Noble Enclave 2^nd Floor, Opposite Hotel Park Plaza, Bhaiwala Chowk, Ferozepur Road, Ludhiana. (Mobile No. 98728-07001).
2. Jotan Preet Singh, Branch Manager, WWICS Noble Enclave 2^nd Floor, Opposite Hotel Park Plaza, Bhaiwala Chowk, Ferozepur Road, Ludhiana. (Mobie No. 82880-79413).
3. WWICS Brach Ludhiana, WWICS Noble Enclave 2^nd Floor, Opposite Hotel Park Plaza, Bhaiwala Chowk, Ferozepur Road, Ludhiana through its Branch Manager.

                                                                                             … Opposite Parties

 

Complaint u/S 12 of the Consumer Protection Act, 1986.

 

Quorum: Sh. G.K. Dhir, President,

                  Sh. S.P. Garg, Member.

 

Present: Sh. Amanpreet Singh, complainant in person.

                Sh. G.S. Sandher, counsel for the opposite parties.

 

•  

( Per G.K. Dhir, President)

 

1. Complaint, under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred as ‘the Act’) filed by claiming that complainant visited the office of OP3 and met  OP1 and OP2 there. Both OP1 and OP2 explained to complainant that he has to pay Rs. 3,12,140/- in advance to start process for Canada visa under Nova Scotia nominee programme. They further explained that in case, they remained unable   to submit application in Immigration office in Canada, then full amount will be refunded back to complainant within 15 days of rejection. However, as per them if the complainant  failed on telephone interview (from Canadian office) for assessment (within 3 months of applying), then only they will deduct Rs. 60,000/- and pay complainant back Rs. 2,52,140/- within 15 days of rejection of the application. Complainant claims to have not received any call for interview from Canadian Immigration office.  Believing the said statement, complainant paid Rs. 3,12,140/- on 7.3.2014 and handed over all documents to OP1.  OPs accepted all the documents handed over to OP1. Complainant was made to sign on many papers, which he did, but without going through the contents thereof, because OPs claimed that these papers have to be sent urgently,otherwise filing of the case will be delayed. OPs claimed that paper work was just a formality.  OPs promised to give photocopy of signed papers, but despite that those were not supplied to the complainant. After 7.3.2014, complainant called OPs many times, who claimed as if case is under process and no information regarding telephone interview available with them. OPs claimed that complainant will be called as soon as information will be got by them.  However, OPs never called the complainant.  In the end of February, 2015, complainant called on telephone No. 0172-6663600 (call centre of OP3 ) and got knowledge that file of complainant had been returned back without being registered with immigration office.  Thereafter, complainant called upon OP1 , who claimed that case of complainant is under process and information will be supplied as soon as the same is received. Complainant claims that OP1 and OP2 have cheated him by using his money  for  more   than   1   year.  On 17.3.2015,                  complainant sent email to OPs for requesting them to return the money by cheque at his home address, but despite that the same has not been returned till date.  Deficiency in service on the part of the opposite parties pleaded for claiming Rs. 4,33,325/- i.e., refund of Rs. 3,12,140/- plus interest of Rs. 56,185/- plus miscellaneous expenses of Rs. 15,000/- and compensation of Rs. 50,000/-.
2. Opposite Parties filed joint written statement by pleading that in view of Clause 11 of the Contract of Engagement dated 7.3.2014, 40% of the paid amount of Rs. 1,50,000/- has to be deducted, owing to which complainant is entitled to refund of Rs. 90,000/-.  As per that Clause No. 11 of the Contract of Engagement, in case the programme is closed/capped by the Nova Scotia Immigration Authorities, then fee paid by the client will be refunded to him after deduction of 40% of the total amount payable as per this agreement. It is claimed that complainant paid an amount of Rs. 1,50,000/- (excluding the service tax of Rs. 18,540/- which has gone into the State Exchequer Account).  Complainant retained the services of the company on 7.3.2014 for grant of Nomination Certificate under Regional Labour Market Demand Stream, Nova Scotia and completed his documents on 15.3.2014.  After submission of complete documents by complainant, the case was thoroughly studied and prepared in the best possible manner and thereafter, the same was sent through courier on 18.3.2014 to Canadian Immigration Authorities.  However, the case of the complainant was returned back on 27.2.2015 vide  letter received from office of Immigration, Nova Scotia due to capping of number of applications to be processed through Regional Labour Market Demand (RLMD) Stream on 28.4.2014. It is claimed that if once a case is filed by the OPs before the office of Immigration Nova Scotia, then it is purely within the domain of the Visa Officer as to when the case is to be taken up by the Visa Officer for assessment.  The Visa Officer has discretion either to assess the case immediately or after some time and in the meantime, the capping may be reached on account of large number of applications received by the Immigration Authorities.  As the case of the complainant was returned back on 27.2.2015, so after deducting 40% of the total paid amount, complainant entitled to refund of Rs. 90,000/- and the intimation for such refund was sent to complainant, but complainant vide e-mail dated 9.4.2015 refused to accept the said amount of Rs. 90,000/-. That amount claimed to be paid before the Forum by way of a cheque.  Besides, it is claimed that complainant had entered into another contract of engagement on 7.3.2014 with M/s. Global Strategic Business Consultancy, Dubai for grant of Nomination Certificate under Regional Labour Market Demand Stream, Nova Scotia by paying the amount of US $ 2200 to the said Company. Again, as per Clause 11 of the contract, in case of capping by Immigration Authorities, full amount was to be refunded to the complainant and accordingly, an amount of US $ 2200 was approved for refund, which is alleged to be   paid to the complainant          before the Forum. Out of the paid amount of Rs. 1,50,000/- by the complainant,  amounts of Rs. 16,500.6/-; Rs. 18,539.4/- and Rs. 2,039.4/- have been paid as service tax, educational cess & secondary and higher education cess by the complainant. All these amounts are non-refundable because those have gone into account of the Government. Receipts dated 7.3.2014 in this respect have been relied upon. O.Ps started providing services from day one, when complainant engaged them.  The services provided were of counseling and advising the complainant about the immigration category as well as about immigration package and the checklist of documents. Even complainant was explained in detail about the required documents and the necessary formalities required for filing immigration application. Even services of advising and guiding the complainant in preparation of documents and forms in proper format as per the requirement of Immigration Authorities,were provided. So, O.Ps had been duly performing their part of the contract and there is no deficiency in service on their part. No unfair trade practices adopted by the opposite parties.  Complainant entered into two contracts of agreement dated 7.3.2014, as referred  above.  Amount of US $ 2200 paid by the complainant was sent to M/s. GSBC, Dubai vide draft No. 129727 dated 10.3.2014.  Complainant was updated regarding his case by the opposite parties. Even a reminder e-mail dated 22.7.2014 was also sent  to the Immigration Office, Canada regarding the case of complainant.  As the capping took place on 28.4.2014, the case of the complainant was received back on 27.02.2015 qua which due intimation was sent to the complainant vide e-mail dated 4.3.2015.  The refund application of the complainant was duly processed as per   terms of the contract agreement and thereafter, intimation was sent to complainant qua his entitlement for refund of amount of Rs. 90,000/- in Indian currency and of US $ 2200.  However, complainant refused to accept the said amount.  The complaint alleged to be filed by misleading the Forum.  Each and every other allegation of the complaint denied by praying for dismissal of the complaint.
3. Complainant to prove his case, tendered in evidence his affidavit Ex.CA  along with documents Ex. C1 to Ex. C21, and thereafter closed the evidence.
4. On the other hand, counsel for the opposite parties tendered in evidence affidavit Ex. RA of Sh. Rajiv Bajaj, the authorized representative of M/s. Wrldwide Immigration Consultancy Services Ltd., along with documents Ex. R1 to Ex. R9 and thereafter closed the evidence.
5. Written arguments have not been submitted by any of the parties, but only oral arguments have been addressed.
6. Though in the affidavit Ex. RA, it is mentioned that complainant has accepted Rs. 90,000/-, the refund amount before this Forum as presented through cheque, but that assertion of Ex. RA is incorrect, because in Para No. 13 of this affidavit Ex. RA itself it has been mentioned that complainant entitled to refund of Rs. 90,000/- plus US $ 2200, but he has refused to accept the same.  Sh. Ajmer Singh, representative of the complainant vide his recorded statement on 7.9.2015  refused to accept DD No. 039253 dated 12.7.2015  offered for payment by counsel for opposite parties through his recorded statement of 7.9.2015 itself.That Demand Draft in fact was qua amount  of US $ 2200 and as such, only US $ 2200 were offered for payment through this Forum.  No other amount has been offered for payment by the opposite parties to complainant through this Forum and as such, virtually offer for return of Rs. 90,000/- though made through pleadings or affidavit Ex. RA is not made actually before this Forum. Deficiency in service on part of OPs to this extent is there.                The contents of para 13 of affidavit Ex. RA, as such itself establishes that complainant is entitled to get Rs. 90,000/- plus US $ 2200 back from the opposite parties.  However, complainant claims that he has paid Rs. 3,12,140/-, to the refund of which he is entitled.  It is vehemently contended by counsel for the complainant that there is deficiency in service on the part of the opposite parties, because opposite parties have not submitted the prepared documents with Canadian Immigration Authorities and that is why call for interview was not received by complainant at all.  Besides, it is contended that contents of Agreement Ex. R1 along with accompanying documents were never readover or explained by the opposite parties to complainant and as such, complainant was kept in dark.  Signatures of   complainant on the documents annexed with Ex. R1 as well as on Ex. R1 are at least on 22 places are there.Clause No. 11 is at Page No. 18 of Ex. R1.  That Clause No. 11 is in print and under this Clause signatures of complainant are there.  All the 22 signatures have been put by complainant in English and even the  Agreement Ex. R1 is in English and as such it has to be held that complainant was knowing language in which the document Ex. R1 was executed by him in favour of opposite parties. In view of the appearance of the signatures of complainant immediately below Clause No. 11 of Contract Agreement  Ex. R1, it has to be held that virtually complainant got knowledge of this Clause at the time of execution of the Agreement itself.     
7. Clause 11 of the Agreement Ex.R11 reads as under:-
8. :-

1.The services provided by the company being professional in nature, the entire fee for the services provided is non-refundable.2.Since visa processing fee and Educational Credentials Assessment(ECA) Fee is being paid to the processing organization/organizations, refund of same shall not be claimed from the company. 3.Taxes(if any) paid shall not be refundable. 4.In case this programme is closed/capped by the Nova Scotia Immigration Authorities, the fee paid by the client, will be refunded to the client after deduction of 40% of the total amount payable as per this agreement. 5 Once the case has been filed with the Nova Scotia immigration authorities, nothing is refundable even in case the nomination certificate is not issued by the Nova Scotia immigration authorities. 6. 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.

NOTE:-The refund clause mentioned above will be applicable subject to the client complying with all the terms of this agreement including but not limited to the clause with respect to the client submitting the documents within time as specified in this agreement.

8. It is specifically provided through this clause 11 of Ex.R11 that visa processing fee, educational credentials assessment and designated educational credentials assessment fee are non-refundable. Even the taxes, if any, paid will be non-refundable. Perusal of Ex.R3 reveals that the same pertains to tax description/tax break-up statement. Perusal of this document Ex.R3 reveals that out of the principal amount of Rs.16,500/-, service tax payable is Rs.1980/-, but education cess fee is Rs.39.6 and secondary & higher education cess fee is Rs.19.8. Net payable amount found as Rs.18,539.4P through this receipt Ex.R3. The amount of service tax, education cess is non- refundable and as such, claim in that respect certainly cannot be stacked  by the complainant. Besides perusal of Ex.R2, Retainer Fee Receipt dated 7.3.2014 shows that principal amount of Rs.1,33,500/- was received in addition to the service tax of amount of Rs.16,020/-; education cess fee of amount of Rs.320.4 and secondary & higher education cess fee of amount of Rs.160.2. In all Rs.1,50,000/- were received by the OPs through Ex.R2 on 7.3.2014. So virtually an amount of Rs.1,33,500/- + Rs.16,500/-, = Rs.1,50,000/- was     credited as the retainer fee by the OPs in the account of the complainant. That amount at the most can be said to be paid by the complainant to the Ops because refund for the paid taxes not claimable in view of the clause 11 of Ex.R11.
9. Ex.C1 is the document relied upon by the complainant for contending that Rs.3,12,140/- was paid by him to the OPs. However, receipt Ex.C1 does not bear the signature of anyone and nor it is shown as to by whom it was written. So, reliance on Ex.C1 cannot be placed for finding that actually the claimed amount of Rs.3,12,140/- was deposited by the complainant with OPs. Rather mention of Rs.1,50,000/- + US $ 2200 along with figures of Rs.1,68,540/- + Rs.3000/- is made and the receipt of amount of Rs.1,50,000/- + US $ 2200 admitted by the OPs through Ex.R6, Ex.R2 and Ex.R3. So in the absence   of    this,  it  cannot   be   held    that                                        Rs.3,12,140/- was actually paid by the complainant to the Ops. Rather, payment of Rs.1,50,000/- + US $ 2200 alone is proved by contents of Ex.C1 because of admission suffered by the Ops in that respect.
10.  Ex.C2 and Ex.C3 are the documents produced by the complainant himself to prove that Ops offered to refund of Rs.90,000/- and US $ 2200 and that fact has not been denied by the Ops in their written statement or produced evidence.  Entitlement  of  the complainant for refund of Rs.90,000/- + US $ 2200 acknowledged by the OPs. Intimation in that respect has been sent by the Ops to the complainant through Ex.C4. In Ex.C4 itself it has been mentioned that payments are made on month wise circle basis and that is why delay of 180 days took place in refunding the amount of Rs.90,000/- + US $ 2200. Even if this admission of delay of 180 days may be there, but despite that refund of above referred amount took place after deductions of the taxes referred in clause 11 of Ex.R1. As per sub clause 5 of Clause 11 of Ex.R1, if once the case has been filed with the Nova Scotia immigration authorities, then nothing is refundable even in case nomination certificate is not issued by the Nova Scotia immigration authorities. However, as per sub clause 4 of clause 11 of Ex.R1, in case this programme is closed/capped by the Nova Scotia immigration authorities, the fee paid by the client, will be refunded to the client after deduction of 40% of the total amount. It is contended by the counsel for the complainant that documents never submitted by the Ops with the Nova Scotia immigration authorities and as such, deduction of 40% out of the principal amount of Rs.1,50,000/- is not permissible. That contention vehemently controverted by the counsel for the OPs by contending that documents were submitted with the Nova Scotia office, but in view of the receipt of the number of applications, there was capping, due to which, case of the complainant remained pending with Visa officer/Nova Scotia immigration authority for long time.
11.   Ex.R8 is the document produced by the Ops to establish that complete case of the complainant was returned due to capping. This letter Ex.R8 was sent by Poonam Minhas to Tejinder Kaur qua the case of Amanpreet and as such, in view of this letter Ex.R8, case of the Ops fully believable that actually documents were submitted by the Ops for processing visa case of the complainant with the Nova Scotia immigration authorities,but later mentioned authority returned  the application due to capping. Same fact even is disclosed by contents of email letter Ex.R7 dated 22.7.2014. Capping on limit of 150 nominees has been placed is a fact disclosed by Ex.R7. So, it is not a case of complete deficiency in service. Rather, services were provided by the OPs to the complainant by submitting his papers with the Nova Scotia immigration authorities. After submission of such papers, fault did not lay with the Ops, if the application received returned due to capping on number of applications received. Intimation of placement under new RLMD stream w.e.f. January 2015 even had been sent by the Nova Scotia immigration authorities and as such, case of Ops fully believable that in view of capping of number of applications, the case of the complainant could not be fully gone through.
12.    Through letter Ex.R9, complainant claimed for interest on the money used by the Ops for 9 months by claiming that he has paid Rs.3,12,140/- in cash, but in fact receipt of Rs.3,12,140/- by the OPs not established. Rather, receipt of Rs.1,50,000/- along with US $ 2200 by the OPs from the complainant proved by contents of Ex.R2 and Ex.R3 referred above. Through Ex.C5, someone claimed as if after closing the programme by the Canadian Embassy, Rs.2,02,000/- had been taken from him on 5.5.2014 by the OPs, but claim qua payment of Rs.2,02,000/- by the complainant to Ops after 5.5.2014 is not stacked    and        as         such,                                                           virtually somewhat irrelevant pleas even seems to be taken through Ex.C5. Payment has been made by the complainant to Ops through cheques and not in cash as borne from contents of Ex.C10 and Ex.C11, Ex.R6, Ex.R2 and Ex.R3 and as such, even if protest raised by the complainant through emails Ex.C12 to Ex.C16 and Ex.C5 to Ex.C9, despite that complainant will be entitled to refund only of those amounts as is legally permissible as per terms of the contract agreement. Perusal of Ex.C21  reveals  as  if amount of      Rs.1,43,600/- and US$ 2200 were deposited through Axis bank Limited by the complainant on 7.3.2014 and 10.3.2014 respectively and as such, reliance on Ex.R2, Ex.R3 and Ex.R6 qua the payment received by the Ops from the complainant reasonably and justifiably can be placed.
13.    If intimation qua immigration not received by the complainant, then it was on account of non processing of the submitted applications by the Nova Scotia or by the regional labour market demand stream. So, it cannot be held that actually the received amount by the OPs was not forwarded as per rules. Even if Ex.R4 is undated, despite that it can’t be held that  Ex.R4 never came in existence. Contents of letters Ex.R4, Ex.R8 and Ex.R7 cannot be ignored because fraud has not been proved. Mere assertion of the complainant or his representative not enough to prove commission of fraud by OPs.If at all fraud committed by the OPs with the complainant, then remedy available with the complainant is to approach the Civil Courts or get FIR registered. That remedy not shown to be availed by the complainant and as such, inference of fraud or cheating cannot be drawn in these summary proceedings.
14.   Allegations of theft, forgery requires elaborate evidence and as such, those allegations cannot be decided by Consumer Fora because proceedings before it are summary in nature. For proving allegations of fraud or of forgery, complainant should be directed to approach the Civil Courts. Reliance for the purpose can be placed on law laid down in cases P.N.Khanna vs. Bank of India-II(2015)CPJ-54(N.C.); Bright Transport Company vs. Sangli Sehkari Bank Ltd.,II(2012)CPJ-151(N.C.); Oriental Insurance Company Limited vs. Mani Mahesh Patel-VI(2006)SLT-436=2006(2)CPC-668(S.C.); Reliance Industries Limited vs. United India Insurance Company Limited-I(1998)CPJ-13(N.C.); M/s Singhal Swaroop Ispat Limited vs. United Commercial Bank-III(1992)CPJ-50(N.C.); Sangli Ram vs. General Manager, United India Insurance Company Limited-II(1994)CPJ-444; Harbans and company vs. State Bank of India-II(1994)CPJ-456; Ranju Devi vs. Branch Manager, State Bank of India-2015(4)CLT-131(JHK).
15.   It is also contended by complainant with his representative that documents Ex.C10 and Ex.C11 are in the name of two parties and that reflects fraud. However, that submission of complainant has no force because document Ex.C21 relied upon by the complainant itself establishes that two cheques of US $ 2200 and Rs.1,43,600/- issued in the name of two different concerns/two different parties for and on behalf of complainant on 7.3.2014 and 10.3.2014. If the cheques were issued for and on behalf of complainant in the name of two companies, then those are bound to be credited in the accounts of two companies and as such, there is nothing wrong in mentioning of names of two different companies/parties in Ex.C10 and Ex.C11.
16.   It is contended by complainant with his representative that all payments were made in cash and even payment of Rs.1 lac made in cash, but receipt of US $ 2200 has been issued. In fact the cheque/demand draft Ex.R6 and Ex.C21 is of US $ 2200 and in the absence of due proof, it can’t be accepted that payment of Rs.1 lac in cash was made against the shown receipt of US $ 2200. Even if Ex.C5 may not be pertaining to the complainant, despite that the said document has been produced by the complainant and that is why, the same taken into consideration. In Ex.C18 and Ex.C19 each, fee of Rs.1,50,000/- has been mentioned to be received. Retainer fee paid through Ex.C18 and Ex.C19 payable at the time of retaining of services is a fact    borne from contents of Ex.C19. So virtually complainant retained Ops in his services for getting visa. In Ex.C2 itself it is mentioned that all government taxes will be charged extra and that is why split of the same given in Ex.R2 and Ex.R3 specifically. Through Ex.C15 and Ex.C18, concerned were intimated as if his request for refund has been forwarded to the management. So, intimation regarding start of process of refund was given to the complainant through Ex.C16 after receipt of communication through Ex.C13 and Ex.C14.
17.   Submission of Sh.G.S.Sandher, Advocate representing Ops has force  in so far allegations of fraud and cheating levelled by the   complainant can be formed the subject matter of civil or           criminal case only. The matter in this respect has been discussed above. It is contended by the counsel for the Ops that nomination certificate was prepared on 7.3.2014 and thereafter, documents completed on 15.2.2014 for sending the file to the Canadian authority on 18.3.2014, but the same was received back on 27.2.2015 through Ex.R4. On Ex.R4, stamp of received on 27.2.2015 is put and as such, contents of Ex.R4 shows as if the file of the complainant was received back by the OPs on 27.2.2015 due to capping on number of applications  to   be   processed.  After  receipt  of   the   file           back from the authorities, process of refund was started by the management and as such, deficiency in service to that extent on the part of OPs cannot be inferred. Complainant himself refused to accept the demand draft of US $ 2200 and as such, complainant virtually wants to dictate his own terms, due to which, he is not entitled    for the interest amount. As clause 11 of Ex.R1 provides that in case of closing   or capping up of the scheme by the Nova Scotia immigration authorities, fee paid by the client will be refunded after deduction of 40% of the total amount payable as per agreement and as such, OPs entitled to receive Rs.60,000/- on account of 40% deduction because application of the complainant though forwarded to the Nova Scotia immigration authorities, but the same could not be finally processed due to clause of capping. So, entitlement of the complainant is for refund of Rs.90,000/- in Indian currency + US $ 2200. Compensation of Rs.30,000/- also allowed in favour of the complainant for mental sufferings and harassment on account of deficiency in service to the extent indicated above. This higher amount of compensation allowed in lieu of interest also.
18.    Therefore, as a sequel of the above discussion, complaint partly allowed by directing OPs to refund Rs.90,000/- in India Currency + US $ 2200 within 30 days from the date of receipt of copies of the order. Compensation of Rs.30,000/- will be payable by the Ops to the complainant and in addition thereto litigation expenses of Rs.5000/- will also payable by them to the complainant within 30 days from the date of receipt of copies of the order. Liability of OPs held as joint and several. Copies of order be supplied to the parties free of costs.
19.                         File be indexed and consigned to record room.

 

                                    (S.P.Garg)                                        (G.K. Dhir)

            Member                                           President

Announced in Open Forum

Dated:09.12.2015

Gurpreet Sharma.