Dev Raj, Member
1. This appeal has been filed by the Opposite Parties (now appellants), against the order dated 19.02.2016, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’), vide which, consumer complaint bearing No.403 of 2015 was allowed by the Forum in the following manner:-
'13. In view of the above discussion, we are of the opinion that the present complaint should succeed. The same is accordingly, allowed. The Opposite Party is directed:-
[a] To refund fee deposited by the Complainant after deducting 10% of the total fee deposited by the Complainant;
[b] To pay Rs.25,000/- on account of deficiency in service and causing mental and physical harassment to the Complainant;
[c] To pay Rs.12,500/- as costs of litigation;
14. The above said order shall be complied within 30 days of its receipt by the Opposite Party; thereafter, it shall be liable for an interest @12% per annum on the amount mentioned in per sub-para [a] and [b] above, apart from paying costs of litigation of Rs.12,500/-, from the date of institution of this complaint, till it is paid.'
2. The facts in brief are that the complainant in the month of July 2012 approached the Opposite Parties Chandigarh Branch regarding permanent immigration to Canada and on their assurances, the complainant in order to process his case under Saskatchewan Immigrant Nominee Programme (SINP) for immigration to Canada, paid a sum of Rs.1,01,124/- on 18.7.2012 to Opposite Party No.1 at Chandigarh. The complainant was allotted File No.70172. The complainant submitted all required documents asked for by the Opposite Parties for the said SINP business category programme for immigration to Canada in the month of December, 2012. Thereafter the complainant was asked to deposit 8,500 US dollars i.e. Rs.4,73,110/- in favour of Global Strategic Business Consultancy, which he deposited on 14.12.2012. Subsequently, the complainant in the month of February, 2013 met the Manager of WWICS i.e. Opposite Party No.3 and asked about the progress of his case and the complainant was told to wait for 2-3 months. Thereafter, in July 2013 , the complainant again approached the Opposite Parties and he was told that due to heavy rush, it would take some more time. The complainant was asked to deposit 1600 U.S. dollar, which were accordingly paid by him vide receipt (Annexure C-4). Again in the month of November, 2013, the complainant approached the Opposite Parties but they gave the same lame excuses and again demanded 100 U.S. dollar from the complainant which he paid vide Annexure C-5. It was stated that despite waiting sufficiently and assurance given by the Opposite Parties regarding finalization of immigration case of the complainant within 9-12 months, and even after paying Rs.6,73,713/-, there was no response from the Opposite Parties. The complainant sought refund from the Opposite Parties vide letter (Annexure C-6) but they refused to do so on the ground that the deposited amount was non-refundable. Ultimately, the complainant sent legal notice to the Opposite Parties but to no avail. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed seeking various reliefs.
3. The Opposite Parties, in their written statement, admitted that the complainant approached them and entered into two separate contract i.e. Contract of Engagements dated 14.7.2012 with M/s WWICS Ltd. and another Contract of Engagement dated 14.7.2012 with M/s GSBC, Dubai for Saskatchewan immigrant programme. It was stated that the complainant paid an amount of Rs.90,000/- to M/s WWICS Ltd. as professional fee and US $8500 (Rs.4,73,110.00) to M/s GSBC, Dubai making a total of Rs.5,63,110/- and the application for Saskatchewan Immigrant Nominee programe was duly filed with the Canadian Immigrant authority. It was further stated that the complainant was informed by the Canadian Immigration Authority that third party verification would be required. It was further stated that the complainant accordingly gave undertaking regarding the same and his complete case for third party verification was sent to the concerned immigration authority vide letter dated 11.10.2013. It was further stated that the complainant also entered into a separate retainer agreement dated 11.6.2013 with the third party verification agency vide Annexure R-10. It was further stated that when the case of the complainant was at the final stage, due to personal difficulty of the complainant, the complainant wriggled out of the contract of Engagement for the reason that he could not arrange the required 72500 Canadian dollar as per clause 2(f) of the Engagement (R-1) and asked for refund vide application dated 10.6.2014. It was further stated that an amount of Rs.3,25,000/- was offered for payment before the Forum but same was not accepted by the Counsel for the complainant. The other amounts were paid by the complainant to third party verification agency namely MNPLLP, with which, he entered into contract of engagement, directly as per requirement of the Canadian Immigration Authorities. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
4. The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Parties.
5. The parties led evidence, in support of their case.
6. After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the Forum, allowed the complaint, vide the impugned order, as stated above.
7. Feeling aggrieved, the Opposite Parties have filed the instant appeal.
8. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. It is vehemently contended by Counsel for the appellants/Opposite Parties that the respondent/complainant was duly advised and guided about necessary documents for preparing and filing the case and there was no deficiency in service on the part of the appellants at any point of time. It was also the case of the appellants that the respondent was not entitled to any refund in view of Clause 11(I) of the Contract of engagement (Annexure R-1), which was duly signed by the respondent, where it was specifically stated that 'the services provided by the company being professional in nature, the entire fee is non-refundable.' It was argued that as a goodwill gesture, out of total amount of Rs.5,63,110/-, an amount of Rs.3,25,000/- was offered to the respondent before the Forum, but he refused to accept the same. It was contended that the appellanst filed immigration case on behalf of the respondent/complainant on 10.01.2013 and it was only on 23.05.2015 that the Government of Saskatchewan informed the appellants Company that third party verification would be required in all the applications, which was further informed to the respondent vide letter dated 29.05.2013. It was stated that it was the respondent who wriggled out of the contract of engagement as he could not arrange the required 72500 Canadian Dollar and sought refund vide application dated 10.06.2014.
10. Noting above arguments, and on perusal of documents on record, the Forum vide impugned order, rightly held that neither the Opposite Parties supported the complainant nor they performed their duties up to the level as enumerated in Clause No.1 of Contract of Engagement (Page 112 of Forum’s file) nor extended support to the complainant, as was required under Clause No.18 (Page 108 of Forum’s file), which are extracted hereunder:-
'1. Duties of the Company:
In consultation with its associates at various locations, the Company shall provide the following services:
a) Ascertain the eligibility of the client for the programme on the basis of information provided by him/her in the assessment form.
b) Prepare preliminary application of the client for onward submission with the Saskatchewan Provincial Nominee Authorities.
c) Prepare visitor visa application of the client to go on explanatory visit after receiving approval on preliminary application from Saskatchewan PNP Authorities.
d) After the Business Establishment Plan (BEP) is prepared, prepare formal application for nomination certificate.
e) After receipt of the nomination certificate from Saskatchewan PNP Authorities, prepare and submit application for work permit in case the client wants to go to Saskatchewan before getting the Permanent Resident Visa.
f) After received of nomination certificate from SINP authorities prepared and submit application for permanent residency before the concerned visa authorities.
g) Assist the client in keeping his/her file up to date.
h) Assist the client in preparing for the interview to be conducted by the Saskatchewan PNP Authorities and Visa post.
i) Correspond with the Federal & Provincial immigration authorities with respect to the case of the client.'
18. Support to the Client:
a) The Client would be provided with specialized services by a team of professionals having vast experience and exposure in their relevant fields, this includes processing, accumulation of relevant documents, vetting and ultimately filing of the case with the Canadian High Commission.
b) Client’s case for immigration would be prepared & submitted for processing under the supervision of Mr. Vishal Chaudhri who has been engaged by the Company to handle Canadian Immigration Matters. Mr. Vishal Chaudhri is a member in good standing with the Law Society of Upper Canada.'
11. The argument of the Counsel for the appellants that though they had filed immigration case on behalf of the respondent/complainant on 10.01.2013 but it was only on 23.05.2015 that the Government of Saskatchewan informed them that third party verification would be required in all the applications, cannot be accepted because being expert in handling the immigration matters to foreign countries, the appellants were required to be conversant with procedure and latest rules & regulations governing immigration. Had the appellants been vigilant/careful and conversant with the latest rules/regulations, they could have pursued third party verification at an early stage. Delay and non-pursual thereof would amount to providing deficient service.
12. Contention of Counsel for the appellants that the amount paid by the respondent, being non-refundable amount, cannot be refunded to the respondent was rightly negated by the Forum. It (Forum) in Paras 11 and 12, extracted hereunder, rightly held that since the Opposite Parties retained and used the huge amount paid by the complainant for a long period of time, at least a reasonable part of total fee must be refunded to him after deducting the processing fee:-
'11. After careful perusal of the file, we feel that no one can estimate the pain and agony of people who could not get the desired destination i.e. settlement in abroad, as in the present case, which was the ultimate dream of the Complainant. Further, even after spending huge amount, the Complainant had to face the failure of his attempt to settle abroad. Ultimately, after giving great harassment to the Complainant, the Opposite Party refunded some amount out of the total money to the Complainant, during the pendency of the case, without explaining the reason and extent of the deduction(s) which it has made on its own. Therefore, the act of the Opposite Party in retaining the money of the Complainant for a long period, forcing the Complainant to indulge into unnecessary litigation and then refunding some amount during the pendency of the case itself proves deficiency in service on its part.
12. Undoubtedly, the Complainant hired the services of the Opposite Party for processing his case to settle abroad, but it is a
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lso a matter of fact that the Opposite Party retained and used the huge amount deposited by the Complainant for a long period of time. We feel that at least a reasonable part of total fee must be refunded to the Complainant by the Opposite Party after deducting the processing fee at the most to the tune of 10% of the total fee deposited by the Complainant with the Opposite Party.' In view of above, we do not find any ground ot interfere in the order under challenge. 13. The Forum taking note of pain and sufferings undergone by the respondent has rightly granted compensation to the tune of Rs.25,000/-,and litigation costs to the tune of Rs.12,500/-, which, in our opinion, are justified. 14. No other point, was urged, by Counsel for the appellants. 15. In view of the above discussion, it is held that the order passed by the Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission. 16. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the Forum is upheld. 17. Certified copies of this order, be sent to the parties, free of charge. 18. The file be consigned to Record Room, after completion.