BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.503 of 2014

                                 Date of institution:          08.08.2014

                                                Date of Decision:           14.07.2015

Harminder Singh son of Hari Singh, resident of village Dariawal, P.O. Thatta Nawan, Tehsil Sultanpur Lodhi, District Kapurthala.

    ……..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 Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh, Member.

Mrs. R.K. Aulakh, Member.

Present:    Shri Sandeep Bhardwaj, counsel for the complainant.

Shri Dinesh Verma, counsel for the OP.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Party (for short ‘the OP’):

(a)    to refund him Rs.3,80,650/- with interest @ 18% per annum from the date of deposit till realization.

(b)    to pay him Rs.5,00,000/- as compensation for harassment and mental agony.

(c)    to pay him Rs.50,000/- as costs of litigation.

                The complainant’s case is that after going through an advertisement of the OP, he approached the OP for going abroad.  The representative of the OP informed the complainant that there will be three level in processing visa application and the whole process will take one year. Level one pertains to job offer and level two pertains to labour market opinion. The time for level one was informed for three months as per the handwritten information Ex.C-1 provided by the OP.  The complainant paid Rs.1,68,540/- to the OP in cash as principal amount vide receipt Ex.C-2.  Thereafter an agreement Ex.C-3 was executed between the parties. On the demand of the OP, the complainant paid another amount of Rs.2,12,100/- through two cheques dated 11.03.2013 for preparation of draft of $ 3800. After that the complainant continued to approach the OP for no satisfactory reply was given to him by the OP. The OP failed to obtain offer letter in time and agreed to refund the amount to the complainant after signing of declaration form. The OP informed the complainant that its management had agreed to refund Rs.1,12,500/-  and 3800 $ to him. The complainant vide letter dated 05.06.2014 informed the OP that this offer is not acceptable to him.  Non refund of his amount is an act of deficiency in service and unfair trade practice on the part of the OP.

2.             The OP in the written statement has pleaded the OP has already refunded Rs.1,12,500/- out of Rs.1,50,000/- vide cheque dated 19.09.2014 and the amount of US $ 3800 is being refunded to him. The OP had been performing his part of the contract right from the time when the complainant had retained its services. There is arbitration clause in the Contract of Engagement dated 09.02.2013 and this Forum does not have jurisdiction to entertain this complaint. On merit, it is pleaded that out of the amount of Rs.1,68,540/- paid by the complainant Rs.18,540/- has been deducted as service tax which is non refundable as it has gone into the account of the Govt. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.

3.             Evidence of the complainant consists of his affidavit Ex.CW-1/1; copies of documents Ex.C-1 to C-6.

4.             Evidence of the OP consists of affidavit of Rajiv Bajaj, its authorized representative Ex.OP-1/1 and copies of documents Ex.OP-1 to OP-4.

5.             We have heard the learned counsel for the parties and have gone through the written arguments filed by the OP.

6.             The complainant approached the OP for arranging job offer for the complainant as well as labour market opinion. The complainant has paid a consideration of Rs.1,68,540/- vide receipt Ex.C-2 on 09.02.2013 and Rs.2,12,110/- on 11.03.2013 for preparation of draft of 3800 US Dollars. The OP has given hand written note to the complainant agreeing to provide promised services within a time frame of one year completing two levels i.e. level -1 job offer and level -2 labour market opinion, therefore, the complainant is a consumer and the of the OP is  a service provider. This fact is further established by the duly executed agreement Ex.C-3. Since the OP has failed to provide any of the promised service, therefore, the complainant has written a number of e-mails Ex.C-5 to C-5/41 starting from 25.05.2013 to 12.06.2014 and finally when did not get any satisfactory response has submitted hand written request dated 05.06.2014 Ex.C-6 to the OP seeking refund of the deposited amount. The said Ex.C-6 is duly received and acknowledged by the OP. Despite having received refund letter, the OP has not paid back the deposited amount, hence alleging deficiency in service the complainant has filed the present complaint.

7.             As stated above, the receipt of payment of. Rs.1,68,540/- and Rs.2,12,110/-  is admitted between the parties. Handwritten note as well as execution of the agreement is also admitted between the parties. There is nothing on record to show from the side of the OP any steps taken in furtherance of the obligation cast upon it under the duly executed agreement.

8.             During the course of proceedings, the OP has voluntarily refunded Rs.1,50,000/-  on  20.10.2014 and  a cheque of $ 3800 on 27.11.2014 which have been accepted by the complainant under protest.         The OP has deducted Rs.18,540/- as service tax having been paid to the State.  Thus, the refunded amount is deficient by Rs.18,540/-.

9.             As per prayer clause of the complaint, the complainant has sought refund of the deposited amount and has proved his request for refund from Ex.C-5 /1 to C-5/41 and Ex.C-6 and the act of the OP during course of proceedings i.e. refund of the deposited amount of Rs.1,50,000/-  and $ 3800, the grievance of the complainant, being well founded, stands proved.  Thus, the retention of deposited amount without providing any services by the OP, therefore, is an act of deficiency in service and unfair trade practice.

10.           Since the complainant has received the amount under protest, therefore, the other claims of the complainant i.e. the compensation for harassment and mental agony and costs of litigation etc. are left to be considered, whether the complainant is entitled to the same or not. 

11.           In this regard, our answer will be in affirmative. As the perusal of record shows that the complainant has deposited Rs.1,68,540/- on 09.02.2013 Ex.C-2 and Rs.2,12,110/- on 11.03.2013 vide Ex.C-4 and the said amount after retaining it for more than one and half year and refunded the same without interest and has definitely caused financial loss to the complainant as no money can remain idle.  Further the complainant’s valuable time has been wasted in pursuing with the OP for seeking refund of the deposited amount and he has been put to mental harassment and agony on this account. The OP has not advance any justifiable argument to counter the claim of the complainant on these accounts.  Therefore, the act of the OP in refunding the amount without interest and causing financial loss, mental agony and harassment to the complainant is an act of deficiency in service.

12.           The next question for determination is whether the OP is entitled to deduct Rs.18,540/- as service tax?  In this regard, since the OP has during the course of proceedings have refunded Rs.1,50,000/- and Rs.2,12,110/-  and retained Rs.18,540/- on the ground that the same has been paid as a service tax to the Govt.   Regarding payment of service tax to the state and deduction of the same from the deposited amount of the complainant, the OP has failed to produce any document showing the deposit of service tax with the Govt. In the absence of any evidence in this regard, the plea of the OP being a bald plea is not sustainable in the eyes and, therefore, the OP is not entitled to deduct that amount of Rs.18,540/- and the complainant is entitled to refund of the said amount as well.

13.           Thus, on all the counts i.e. illegal retention of the deposited amount, refund of deposited amount without interest and deduction of amount as service tax without evidence of having been paid to the State and causing mental agony and harassment to the complainant, the OP has been found to be rendering deficiency in service and resulting into unfair trade practice. Therefore, the complaint deserves to be allowed and the complainant deserves to be compensated.

14.           In view of the above discussion, the complaint is allowed with the following direction to the OP to:

(a)    pay interest @ 9% per annum on the deposited amount of Rs.1,68,540/-  (Rs. One lac sixty eight thousand five hundred forty only) w.e.f. 09.02.2013 to 20.10.2014 and on Rs.2,12,100/- (Rs. Two lacs twelve thousand one hundred only) w.e.f. 11.03.2013 to 27.11.2014.

(b)    refund the deficient amount of Rs.18,540/- (Rs. Eighteen thousand five hundred forty only) with interest thereon @ 9% per annum w.e.f. 21.10.2014 till actual payment.

(c)    pay a lump sum compensation  of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

July 14, 2015.     

                                                                   (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh)

Member

(Mrs. R.K. Aulakh)

Member