Shyamal Gupta, Member
Present Appeal is directed against the Order dated 31-05-2016, passed by the Ld. District Forum, Kolkata, Unit-II (Central) in CC/564/2015, whereof the complaint has been allowed.
Brief facts of the complaint case are that the Complainant No. 1 approached the OP for the purpose of securing an overseas job. In this regard, he entered into an agreement with the OP, who initially demanded a sum of Rs. 84,270/- (Rs. 75,000/- + service tax @ 12.36%) for the said purpose. Accordingly, the Complainant No. 1 paid the said sum. After clearance of the said cheque, the Complainant No. 1 was told by the OP that, in order to get the coveted job, he would be required to score minimum 6.5 band in an examination, namely, ‘International English Language Testing System’ (IELTS) and asked him to pay further sum of money to sit for the said examination. Since the sum of Rs. 84,270/- was at stake, left with no other choice, the Complainant No. 1 paid further sum of Rs. 90,000/- to the OP through two cheques. After the examination got over, the OP informed the Complainant No. 1 that he scored 5.0 band in the examination and hence not selected. As the OP refused to refund the money paid by the Complainant No. 1, the complaint was filed.
By filing a WV, the OP submitted that the Complainant, as per Clause 2(g) of the Contract of Engagement dated 12-09-2014, executed between the parties, was required to obtain high-proficiency in English by achieving the requisite Canadian Language Bench Marks in IELTS. The Complainant failed to secure requisite band in the said exam, wherein he achieved 5.0 band instead of minimum requirement of 6.5 band. Such assessment was done by WES (Assessment Authority, Canada) on payment of requisite fee of US$ 203.40 which was not refundable. Since the educational assessment of the Complainant was found recognized, his case was to be filed for permanent immigration along with IELTS result. However, the Complainant failed to clear his IELTS test with required band. Since the OP already got his educational credential done through WES and performed their part of the contract, therefore, the Complainant was not entitled to any refund as per Clause No. 11(a), 11(c), and 11(f) of the agreement. It is further stated that, out of the amount of Rs. 84,270/-, the service tax amount of Rs. 9,270/- has gone into government kitty. It is also stated that the Complainant entered into contract with another company, viz., Global Strategic Business Consultancy Corporation, Dubai (GSBC) and paid US$ 1,200 to the said company. The Complainant cannot claim refund of the said sum from the OP. It is also contended that the Complainant needed to refer the dispute to the sole Arbitrator to be appointed by the Company in terms of Clause no. 23 of the contract dated 12-09-2014. Thus, the OP questioned the jurisdiction of the Ld. District Forum to adjudicate the complaint.
Decision with reasons
Ld. Advocates for the parties were heard at length. We have also gone through the documents on record.
At the very outset, let us make it clear that incorporation of Arbitration clause in an agreement is no bar to adjudicate a complaint under the Consumer Protection Act, 1986. Following observation of the Hon’ble Supreme Court in the matter is worth mentioning.
In the case of Secretary, Thirumurugan Co-operative Agricultural Credit Society vs. M. Lalitha & Ors. (2004) 1 SCC 305, the Hon’ble Supreme Court held,
"11. From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non- compliance of their orders.
12. As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar.
13. The view we are taking is supported by the earlier decisions of this Court. In Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, this Court observed, thus: -
"We therefore come straight away to the legal issue involved in these appeals. But before doing so and examining the question of jurisdiction of the District Forum or State or National Commission to entertain a complaint under the Act, it, appears, appropriate to ascertain the purpose of the Act, the objective it seeks to achieve and the nature of social purpose it seeks to promote as it shall facilitate in comprehending the issue involved and assist in construing various provisions of the Act effectively. To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of the interest of consumers. Use of the word 'protection' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful, business, described as, 'a network of rackets' or a society in which, 'producers have secured power' to 'rob the rest' and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot."
14. In Fair Air Engineers Pvt. Ltd. And Anr. v. N.K. Modi, (1996) 6 SCC 385, this Court, after referring to Lucknow Development Authority case (supra), held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It went on to say that "It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions, of any other, law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the, provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of theArbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy." Further, dealing with the jurisdiction of the forums under the 1986 Act in paragraph 16 this Court has stated, thus: -
"16. It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the - Act does hot confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would he appropriate that, these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
Afore-mentioned views of the Hon’ble Supreme Court clearly blunt the contention of the Appellant as regards maintainability of the complaint case.
Coming to the merit of the Appeal, we do not come across any such prospectus/brochure/offer/proposal from the side of the Appellant to show that the Respondent was duly apprised of the necessity of cracking the IELTS test before signing the contract. It is alleged by the Respondent that the Appellant disclosed such fact only after taking the sum of Rs. 84,270/- from him. It is stated by the Respondent that had the Appellant disclosed such fact beforehand, he would not pay the sum of Rs. 84,270/- under any circumstances and since the Appellant threatened to forfeit the entire money paid in advance, he was left with no other alternative but to fork out further sum of Rs. 90,000/- giving in to the dictate of the Appellant.
The most basic rule of contract law is that a legal contract exists when one party makes an offer and the other party accepts it. It is essential that, while one party makes an offer, he discloses every single element of the terms and conditions to the other side to enable him take an informed/judicious decision. There can be no disagreement as to the fact that, it was obligatory on the part of the Appellant to duly spell out the pros and cons of service condition before accepting advance from the Respondent. As it transpires, all the dealings of the Appellant were not above board. Thus, we feel that the Appellant cannot avoid mitigating the loss suffered by the Respondent.
Having said that, it is also a fact that, if the Respondent lacked due confidence to secure the benchmark band as stipulated in the agreement which was a condition precedent to secure the overseas job, he ought to refrain from entering into any contract with the Appellant in the first place and claim refund of the advance money from the Appellant. In case the Appellant showed any reluctance to refund the advance money, he was free to take legal recourse to recover the money.
Notwithstanding the Respondent claimed refund of the entire money paid by him, it appears that the Appellant remitted a sum of US$ 203.40 to the World Education Services (WES), Canada for the purpose of assessment of the educational credential of the Res
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pondent and such fee was non-refundable. Accordingly, in our considered opinion, the Respondent does not deserve refund of this sum. It appears from the material on record that a sum of US$ 1,200 was payable to M/s GSBC, Dubai. However, no proof of payment is placed on record by the Appellant. Similarly, the Appellant has not furnished any proof towards deposit of the sum of Rs. 9,270/- being the service tax amount. In view of this, we cannot accord benefit of doubt to the Appellant. Taking into consideration the fact that there was some fault on the part of the Respondent too, we deem it fit and proper to relieve the Appellant from paying any other relief as stipulated in the impugned order. Considering all these aspects, we are inclined to modify the impugned order. The Appeal, thus, succeeds in part. Hence, ORDERED The Appeal stands allowed on contest in part. The impugned order is modified as under: Appellant shall refund, within 40 days hence, the entire money paid by the Respondent after deducting the sum spent for preparing the DD worth US$ 203.40. Non-refund of the aforesaid sum within the stipulated time frame shall entail payment of simple interest to the Respondent by the Appellant @ 8% p.a. over the entire money payable to the Respondent w.e.f. 27-11-2015 till full and final payment is made.