BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 17 of 2016
Date of institution: 08.01.2016
Date of Decision: 25.07.2016
Ms. Shilpi daughter of Ms. Dhan Devi resident of House No.1241, Sector 20-B, Chandigarh.
……..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.
Mrs. R.K. Aulakh, Member
Present: Shri Sandeep Bhardwaj, counsel for the complainant.
Shri K.S. Rupal, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
(a) refund her Rs.60,798/- alongwith interest @ 18% from the date of deposit till realization.
(b) to refund her Australian $ 756 at the INR on 14.03.2014 alongwith interest @ 18% from the date of deposit till realization.
(c) pay her Rs.5,00,000/- as compensation for mental agony and harassment.
(d) pay her Rs.50,000/- as litigation expenses.
The case of the complainant is that on going through the alluring advertisement of the OP, in January, 2014 she met the representative of the OP who informed her that she qualifies for getting visa for abroad. At that time the complainant was working with Hotel Industry, as such she was informed by the OP that in abroad she would get job of Bread and Breakfast Operator. The OP received from the complainant an amount of Rs.61,798/- vide receipt dated 18.01.2014 Ex.C-1 and contract of engagement Ex.C-2 was also entered into between the parties. The OP also told the complainant to pay another amount of Australian $ 756 towards embassy fee. The OP assured the complainant of positive response of her assessment within a period of 45 days. Thereafter the complainant kept on asking the OP about her case and the OP informed that she will be informed about her case on or before 15.08.2014. The complainant got information that her case was processed in July 2014 whereas the complainant was under impression that her case was processed in March, 2014. In September 2014 the OP stopped responding to the e-mails of the complainant and even stopped taking her phone calls. On 21.10.2014 the complainant received a phone call from one Mr. Mandeep from Sector 22, Chandigarh Branch of the OP that they are forwarding the assessment received by them. But when no mail of assessment was received, the complainant visited Mr. Mandeep of Sector 22, Chandigarh Branch who gave him her a print out of the report, which showed the OP had received the assessment report on 26.09.2014 but she was informed about the same. The complainant received a negative skill assessment. The negative assessment was result of deficiency in service on the part of the OP as it has processed her case without properly analyzing the educational qualification required for the post. Hence, the complainant has filed the present complaint.
2. Upon notice, the OP appeared and filed reply in which it took preliminary objections that the complaint is liable to be dismissed in view of Clause 11 of the Contract of Engagement dated 18.01.2014. The complainant had paid Rs.55,000/- excluding Rs.6798/- as service tax which is non refundable for receiving professional service with regard to her immigration to Australia as Bed and Breakfast Operator. The complainant filled free assessment form dated 18.01.2014 wherein she mentioned her last designation as Bed and Breakfast Operator. After receipt of documents from the complainant the same were sent to Skill Assessment under ANZSCO Code 141911 to Vetassess, Australia which is the concerned department for getting skill assessment done before filing of the immigration. Before sending the documents to Vetassess, the complainant had given her consent vide e-mail dated 25.03.2014. However, a negative skill assessment dated 26.09.2014 was received by the OP on 09.10.2014. Thereafter, a review request was filed before the Vetassess with a request to give explanation on issuing negative skill assessment. The Vetassess gave detailed reasons vide e-mail dated 20.10.2014 for negative outcome and also advised for re-assessment with changed nominated occupation. However, the complainant rather than getting re-assessment done, filed the present complaint. The OP had performed its part of the contract by filing the case of the complainant before Vetasses. Further, it even filed a review application but again negative skill was received. Thus, there is no deficiency in service on the part of the OP. The complainant had paid amount of AUD 756 towards fee of Vetassess which is non refundable and cannot be claimed from the OP. The complainant vide her declaration dated 28.03.2014 has admitted that application fee of AUD 756 is non refundable and cannot be claimed by the complainant. Out of amount of Rs.61798/- an amount of Rs.6798/- has been paid as service tax which has gone into Government account. The complainant in actual has paid Rs.55,000/- to the OP. This Forum does not have the jurisdiction to deal with the present complaint in view of the arbitration clause in the agreement. On merits, the OP has denied that the complainant was informed that she would get a job as Bed and Breakfast Operator abroad. It is also denied that the OP assured the complainant of a positive response within a period of 45 days. Denying and deficiency in services on its, the OP has sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-5/28.
4. Evidence of the OP consists of affidavit of Rajeev Bajaj, its authorised representative Ex.OP-1/1 and copies of documents Ex.OP-1 to OP-8.
5. We have heard learned counsel for the parties and have also gone through written arguments filed by the OP.
6. Availing of services by payment of Rs.61798/- and further payment of 756 AUD as embassy fee for getting visa abroad by the complainant is not a matter of dispute between the parties. The complainant being qualified in the hospitality industry submitted her documents for job of Bread and Breakfast Operator in Australia. As per the OP, it has got her assessment done from Australia Authority and the Australian Authority has given negative skill assessment and, therefore, it has applied for review by the Australian authority and even in the review the case of the complainant could not be cleared because the qualification required for Bread and Breakfast Operator should be comparable to the education level of an Australian Framework Diploma in the field is highly relevant to the nominated occupation. Further the applicant must have atleast one year post qualification at an appropriate skill level completed in the last five years in the field which is highly relevant to the nominated occupation. If the employment is not post qualification, then three additional years of highly relevant employment are required. Thus, the complainant does not fulfill both the qualifications and employment experience for a positive skill assessment. Therefore, as per the Op there is no deficiency in service on its part, as it has processed the case of the complainant and sent to the authorities for skill assessment and even filed the review of the orders of Skill Assessment Authority.
7. The grievance of the complainant is that she has deposited the amount on 18.01.2014 and filled up the desired information in the application form No.1010775 wherein the complainant has provided her post secondary educational qualifications and experience details. Thereafter the complainant has signed the Contract of Engagement Ex.OP-1 dated 18.01.2014. The OP has all the details and document in its possession for processing her case and submission of the same to the Skill Assessment Authority i.e. Vetassess. The OP did not inform her about the outcome of her skill assessment status till 21.10.2014 whereas the OP has already received the skill assessment result vide letter dated 26.09.2014 Ex.OP-4 addressed by the Vetassess Authorities to the complainant c/o the OP. The OP has withheld this information from her almost for a month. The grievances of the complainant is that once all the documents and information about the employment and experience of the complainant was in possession of the OP, the OP was under an obligation as per terms of contract of engagement to assess the complainant according to that information and then submit the complete with supporting documentation and evidence alongwith the submission report to the respective skill assessment body. The OP has failed in its obligation to this effect as without assessing the information it has mechanically forwarded the same to the skill assessment authorities and further did not keep the complainant updated about her case, so much so even withheld the negative skill assessment report from her for almost a month. Thus, as per the complainant when the OP has failed in discharging its duties as per contract of engagement, this act of the OP is an act of unfair trade practice and deficiency in service.
8. In order to answer the grievances/allegations of the complainant, it will be appropriate to go through the duly signed contents of contract of engagement dated 18.01.2014. Para No.1 of the contract of engagement clearly lays down the duties of the company which read below:
(a) Assess the client according to the information provided by the client in his assessment form.
(b) Assist the client in preparation of his/her case for skill assessment.
(c) Review and identify submission of required documents and supporting evidence.
(d) Submit the complete case with supporting documentation and evidence alongwith the submission report to the respective Skill Assessment Body on the receipt of all requisite documents from the client.
(e) Handle all correspondence with the respective skill assessment body pertaining to client’s case.
(f) Intimate the requirements sent by Skill Assessment Body during the progress of the case.
(g) Assist the client in keeping his/her file upto date.
(h) Advice the client about any subsequent changes in the skill assessment process and policies and any subsequent conditions applicable to meet the selection criteria.
9. Further the perusal of negative skill assessment report Ex.OP-4 clearly shows that the complainant has submitted her educational qualification and experience as detailed in Ex.OP-2, it was the duty of the OP to scrutinize and analyze the information so provided by the complainant in order to satisfy whether the complainant fulfills the requisite qualifications equivalent to the Australia qualification and experience for the post of Bread and Breakfast Operator before sending the case of the complainant for assessment. The OP being a consultancy services for immigration purposes should have been fully equipped with the all necessary tools and techniques to assess the qualifications and experience which a complainant possesses before submitting her case to the concerned authorities for skill assessment certification. There is nothing on record to show what method, tools and techniques the OP has followed and adopted for pre-assessment of the case of the complainant before sending it to the concerned authorities. The final document of rejection/negative skill assessment Ex.OP-4 clearly shows that no steps whatsoever were required by the OP at pre assessment stage have been adopted, otherwise the complainant’s case would not have met with the fate as described in Ex.OP-4. Therefore, the act of the OP contrary to the contractual obligation as narrated and further misleading act of sending her case for skill assessment by charging 756 AUD is an act of unfair trade practice. The act of unfair trade practice is further aggravated by the OP when it has withheld the information received by them from the authorities vide Ex.OP-4 and conveyed the same to the complainant on 26.10.2014 and that too after rigorous follow up by the complainant as is evident from exchange of e-mails Ex.C-5/1 to C-5/28. The complainant has successfully proved her case. The complaint, therefore, deserves to be allowed with the direction to refund the retainership fee as per Ex.C-1 as well as skill assessment fee of 756 AUD as per Ex.C-3. Though the complainant in the prayer clause has sought refund of Rs.60,798/- which seems to be typographical mistake as it is abundant clear from Ex.C-1 that the complainant has paid Rs.61,798/- to the OP and is entitled to seek refund of the said amount.
10. The complaint, therefore, is allowed with the following directions to the OP:
(a) to refund to the complainant Rs.61,798/- (Rs. Sixty one thousand seven hundred ninety eight only) alongwith interest @ 12% per annum w.e.f. 18.01.2014 till realization as per retainership receipt Ex.C-1.
(b) to refund to the complainant the amount equivalent to $ 756 AUD alongwith interest @ 12% per annum w.e.f. 18.03.2014, as per Ex.C-3, till realization.
(c) to pay to the complainant 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 25, 2016.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
