Maj. Gen. S.P. Kapoor, Presiding Member:
1. This is an appeal filed against the order of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [hereinafter, for short, referred to as District Forum-II], dated 16.8.2004 in Complaint Case No. 199 of 2003 : Mrs. Gagandeep Kaur v. Worldwide Immigration Consultancy Service Limited.
2. Briefly the case of the complainant is that she had deposited Rs. 20,000/- with the O.P. on 13.12.2002 for processing her case with Canadian High Commission for immigration to Canada on being advised that as per assessment of the O.P. she was eligible for immigration to that country. On 13th December, 2002 itself the complainant had gained 75 points required for immigration to Canada as a result of verbal assessment done by the O.P. Accordingly an agreement was also signed on 13th December, 2002, copy of which has been placed on record. However, after depositing the application money and signing of agreement she was told that she was short on points and she will need to clear an examination known as TEF (Test in French language) and also learn French language to clear this examination. Since this was a time consuming and costly exercise she requested the O.P. to refund her application amount vide her letters dated 25.2.2003 and 11.3.2003. She also approached the O.P. through Consumer Association of Chandigarh but the O.P. did not refund the amount and hence this complaint seeking refund of Rs. 20,000/- along with interest @ 18% per annum from the date of deposit till payment as well as an additional sum of Rs. 10,000/- as compensation along with cost of litigation.
3. The version of the O.P. is that the complainant was eligible for immigration to Canada and the same was told to her in writing vide Annexure R-1 wherein it is clearly stated that she had secured 77 points against 75 required for immigration. It has also been stated that there was no need for her to learn French or appear in TEF examination. As per the O.P. the complainant has failed to perform her duties as envisaged in the contract and as per Clauses 9 and 10 of the Contract once the fee agreement is signed and the client does not wish to proceed any further for any reason whatsoever, the O.P. is not liable to refund any amount. It has also been stated by the O.P. that the complainant did not even file a formal application for immigration and she also did not pay balance amount of Rs. 10,000/- as the full fee of the O.P. is Rs. 30,000/-.
4. Learned District Forum has observed that the complainant has not demonstrated as to how she falls short of 75 points needed for immigration to Canada. It has also observed that the point system for Canadian Immigration is very well known to the general public and the complainant, who is young, well qualified Post Graduate would have known about it. The learned District Forum also examined the excuse put forward by the complainant for not filing an application to the Canadian High Commission but prima facie found it wanting. The learned District Forum thus held that the O.P. has not committed any deficiency in service or unfair trade practice, consequently, the complaint was dismissed.
5. Aggrieved by this order, the complainant has filed this appeal. The appeal having been taken on board, record of the complaint case was summoned from District Forum-II and notice was served to the O.P./respondent. Mr. Arunjeev Singh, Advocate appeared on behalf of the appellant/complainant whereas Mr. Raman Walia, Advocate represented the respondent/O.P.
6. Mr. Arunjeev Singh Walia, first submitted that the respondent/O.P. has failed to perform his duties as listed at Clause 1(d) of the Contract of Engagement vide which the respondent was supposed to submit the complete case with supporting documentation and evidence along with the submission report to the processing Visa Office. He emphasized that the complainant had filed the formal application and a copy of the same has been annexed as Annexure A-2 with the appeal. He also submitted that Authority to release information to Designated Individual was also given to respondent/O.P. vide page 39 of the appeal. He submitted that the learned District Forum was thus wrong in reaching the conclusion that the formal application for immigration was not filed. He also added that the O.P. never informed the complainant/appellant that she is required to come or forward any documents for further processing her case. He also clarified that before the learned District Forum the appellant/complainant has appeared in person and she had given no excuse or ground for non submission of the application, which according to the learned Counsel was already in the custody of the respondent/O.P. The next submission of the learned Counsel was that the respondent/O.P. did not reply letters of the complainant written on 25.2.2003 and 11.3.2003 and nor did he inform the complainant that she is eligible for immigration and that it is not necessary for her to learn French.
7. Mr. Raman Walia, Advocate in response, submitted that Annexure R-1 clearly, in writing-indicates that the appellant/complainant is qualified for immigration and that Para 8 of this annexures also clarifies that knowledge of French in this case is not applicable. He further submitted that the letter of the appellant/complainant dated 25.2.2003 clearly indicates that she had dropped the idea of going to Canada. He also added that in the letter dated 11.3.2003 the complainant has stated that she is unable to qualify for points required for immigration but in fact she is fully qualified and the learned Counsel offered that respondent/O.P. even now is ready to take up her case for immigration, if she so desires.
8. Responding again Mr. Arunjeev Singh Walia, Advocates submitted that the respondent/O.P. was under obligation to inform the appellant/complainant that her case had been closed as she was not interested in immigration but the same was not done.
9. We have gone through the record of the case with due care and have heard submission of both the parties. The appellant/complainant cannot blame the respondent/O.P. for not processing her case till she proves that she had submitted all the documents to the respondent/O.P. However, in this case even though a filled application has been annexed with the appeal as Annexure A-2, the same was not submitted at the time of the case hearing at District Forum-II and it is not part of the record of the complaint case. No plea that this application was duly filled and given to the respondent/O.P. has been taken in the complaint case. It is also not the case of the appellant/complainant that this fact was even verbally disclosed to the District Forum whereas it is the categoric case of the respondent/O.P. that the appellant/complainant did not file the formal application for immigration. The document attached with the appeal does not indicate that the original had been given to the respondent/O.P. Under these circumstances, learned District Forum cannot be faulted for concluding that the appellant/complainant did not file the formal application for immigration.
10. Coming to the issue of eligibility, it is evident from Annexure R-1 that the appellant/complainant is qualified for immigration to Canada having secured 77 points and that knowledge of French is not necessary in her case. On her part, the complainant has failed to prove by any evidence that she is not able to qualify for immigration on points’ basis. Even though in her letter dated 11.3.2003 she had alleged that an employee of the respondent/O.P. informed her that she is lacking in points but the identity of the said employee has not been disclosed. In the entire case of the appellant/complainant, there is no mention as to who in the office of the O.P. told her that she was required to learn French or pass TEF examination. Though this aspect has been vaguely mentioned in the complaint, there is no mention of it in both her letters i.e., dated 25.2.2003 and 11.3.2003. There is nothing on record as evidence to prove the verison of complainant regarding this apect in this case. We, therefore, unhesitatingly conclude that the complainant is qualified by points for immigration to Canada and that it is not necessary for the complainant to have knowledge of French or that she is required to pass TEF examination.
11. From the evidence on record, it is evidence that the complainant has failed to pr
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ove her case i.e., she has filed the application for immigration and that she is short on points for eligibility and that she was asked to learn French and pass TEF examination. It is apparent from the record that the appellant/complainant is not now interested in immigration for her own personal reasons and the respondent/O.P. is in no way responsible for her decision. 12. Analysis of Clauses 9 and 10 of the agreement dealing with refund, particularly the last sentence of Clause 9 and Sub-clauses 10(a) to (d) clearly indicates that under such a situation no refund is permissible as per the agreement. 13. In view of the foregoing discussion, we find that the appeal lacks merit and the impugned order is just, fair and legal. Consequently, the impugned order is upheld and the appeal is dismissed. Parties are left to bear their own cost of litigation. Copies of this order be sent to the parties free of charges.