Jagannath Bag, Member
The present appeal is directed against the Order, dated 28.08.14 , passed by the Ld. District Consumer Disputes Redressal Forum, Unit -I, Kolkata, in CDF/Unit-1/Case No. 425/2012, whereby the complaint was dismissed on contest without cost against the OPs.
The complaint case, in brief, was as follows:
The Complainant, being influenced and allured by an advertisement ‘showing statement and promises of the OP’, signed on 03.10.2002 a ‘Bronze Type’ contract agreement with the OP at their Kolkata Branch Office by paying a sum of Rs. 30,000/-. The Branch Manager of the OP’s Kolkata Office assured that everything would be done in 12-18 months’ time. Again, on 11.10.2002, he went to the office of the OPs and paid a sum of USD 700 as professional fees. Finding no advancement in regard to his case , he asked for closure of the case and refund of the money by his letter dated 04.07.2003. However, his case was filed before Canadian High Commissioner on 25.11.2003 for which a sum of Rs. 82,440/- was paid through the OP Company. The Complainant was attracted by the terms of Gold Package as presented by the OP . He converted the Bronze Package to Gold Package on 18.11.2009 and paid a sum of Rs. 25,000/- and USD 1000 at the Kolkata office of the OP. As he had to go to Canada with immigration VISA he was compelled to voluntarily retire from service for which he was deprived from various benefits. During his stay at Toronto, he did not even get any offer of odd job though the office of the OP told him that odd jobs are always available there. No placement was arranged by the OP and no tangible assistance was provided to him . He desperately tried to make contact with the OP and their agents but nothing positive took place . He was compelled to return to India with a history of harassment and mental agony and extensive financial loss . In the said circumstances , the consumer complaint was filed before the Ld. Forum below praying for direction upon the OP for return of his total investment sum of Rs. 3,50,000/- apart from compensation of Rs. 5,00,000/- for harassment and mental agony and also for compensation of Rs. 5,00,000/- for deficiency in service under Section 2(1) (g) of C.P. Act 1986, and payment of Rs. 6,00,000/- as compensation for unfair trade practice and cost of Rs. 5,000 /-.
The complaint was contested by the OPs who in their W.V. submitted that the complaint was not within the jurisdiction of the Ld. Forum below as according to the contract, an Arbitrator who is the Chief Executive Officer of the OP Company at Chandigarh, would have to be approached. Denying all material allegations as brought up in the petition of complaint, it was stated that the terms and conditions of the contract would have to be strictly followed. It was asserted that the OPs performed their part of the contract by getting the Complainant Permanent VISA from the Canadian High Commission. The Complainant had retained the services of the Company for the preparation and submission of Canadian Permanent Resident VISA . The Complainant went to Canada / Toronto on 24.10.2010 as admitted by the Complainant in his letter dated 21.12.11. The moment the Complainant got the Permanent Resident VISA , the terms and conditions of the contract were fulfilled. Further, the Complainant had entered into a separate contract of engagement with M/s. Global Strategic Business Consultancy to avail the post landing services. Any dispute arising out of the said contract should have been referred to the arbitrator , being the Chief Executive Officer of the Company. Further, the complaint was barred by limitation, as a claim for refund of money paid on 03.10.2002 and 11.10.2002 was much beyond the period of limitation of 2 years. For all such reasons the complaint was liable to be dismissed.
Ld. Forum below having gone through the pleadings of the parties, evidence and documents, in particular, observed that the Complainant paid some amount in Indian currency and some in US Dollar to OPs, but some of the receipts of such payment have not been annexed with the petition of complaint . Further it was observed that the Complainant did not pray for return of the total investment made with the OPs though in respect of compensation for mental harassment and delay in the prayer portion of the petition of complaint, he prayed for specific amount. The complaint was dismissed by the Ld. Forum below.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the Complainant-turned-Appellant has come up before this Commission with prayer for direction , inter alia, to allow the appeal by decreeing the complaint case or to send back the same on remand to the Ld. Forum below with direction to dispose of the complaint in accordance with law.
The memorandum of appeal has been filed together with copies of the impugned order , the petition of complaint , the W.V. filed by the OPs , the evidence on behalf of the Complainant , the correspondences between the parties and other documents including copies of the questionnaire filed by the Complainant, Contract of Engagement Bronze with OP / Global Strategic Business Consultancy Corporation, the e-mail message dated 26.04.2010 addressed by the OP to the Appellant /Complainant and the letter of the State Bank of India conveying permission to the Respondent/Complainant to retire voluntarily subject to some stipulations contained therein.
Ld. Advocates appearing for the Appellant and the Respondents have been heard.
Ld. Advocate appearing for the Appellant / Complainant submitted that the Respondent / OP assured about providing their professional service in getting the immigration papers by an agreement of Bronze Type on payment of retainer fee of Rs. 30,000/- and also a sum of US Dollar 700. Though it was promised that the VISA would be cleared within 12 to 18 months, it took a long period of several years, i.e., about 90 months to get his landing papers on 02.04.2010 which caused undue delay and harassment . The Complainant had to resign from his service on 31.07.2010 to proceed to Toronto for getting a job in Canada as assured by the OP Respondents. By such voluntary retirement the Complainant /Appellant had to lose about Rs. 20 lakh as he had 42 months span of service left at the time of retirement. So, he had to suffer a huge financial loss on account of his premature retirement inspired by the OP/ Respondents. There was serious unfair trade practice and deficiency in service on the part of the OPs which were not appreciated by the Ld. Forum below. Ld. Forum below failed to appreciate the facts as stated in the petition of complaint and also the evidence produced by the Appellant / Complainant. The impugned order deserves to be set aside.
Ld. Advocate appearing for the Respondent /OP submitted that they were responsible only for arranging the landing papers in favour of the Appellant / Complainant. It was the duty and responsibility of Global Strategic Business Consultancy Corporation to provide post landing services including placement of the Complainant/Appellant, if any, while in Canada. It was none of the Responsibilities of the OP/Respondent to get the Appellant/Complainant any job and there was no deficiency in service or unfair trade practice on their part. Ld. Forum below has rightly rejected the complaint and the impugned order deserves to be upheld .
The point for consideration is whether the impugned order suffers from material irregularity or legal infirmity.
Decision with Reasons :
It is a fact that the Appellant/Complainant entered into an Agreement Bronze Type and it was assured by the OP officials that everything would be done within 12 to 18 months . He paid professional fees amounting to Rs. 30,000/- and US Dollar 700 to the OPs apart from payment of Rs. 82,440/- to Canadian High Commission through the office of the OP. It is also on record that the Bronze Type contract was converted to Gold Package as confirmed by the OP through their e-mail dated 26.04.2010 for which the OP received Rs. 25,000/- vide their Receipt No. 1010 09-153 dated 18.11.2009 as retainer fee and also received US Dollar 1000 vide Receipt No. GSBC 2824 -09 dated 27th November 2009. It is, therefore, apparent that the OP Respondent was responsible for providing post landing services to the Complainant /Appellant. It is also on record that the GSBCC is an Associate of the Respondent Company. Though the Appellant/Complainant filed a questionnaire , no reply was submitted and there is no reflection in the impugned order as to whether Ld. Forum below framed their opinion in the absence of any reply . It can be reasonably presumed that the OP / Respondent did not have materials to controvert the assertions made in the questionnaire .
It appears from record, as evident from clauses 7,8,10 (e) and 11 of the Contract of Engagement-Bronze, that the OP Company and their Associate Companies are virtually the same entity though different in name only. If the OP/ Respondent company can receive consideration money for their associate (s) , they can not disown their responsibility for any failure on the part of their Associate (s) .
The OP / Respondent by their e-mail massage addressed to the Complainant/Appellant stated as follows:
'You are our Gold Package Client and you are eligible for all our Post Landing Services in Canada'.
In spite of unambiguous assurance conveyed in writing the OP / Respondents neglected to carry out their responsibility by taking the plea that another agency was responsible for providing post landing services to the Complainant. In fact the OP/Respondent was equally responsible for post landing services as they also received the retainer fee of Rs. 25,000/- under receipt No. 1010009 /153 dated 18.11.2009 . By not providing any post landing services to the Complainant/Appellant , the OP Respondent exposed unfair trade practice which the Ld. Forum below did not consider.
Ld. Advocate appearing for the Appellant invited our attention to the order of the Hon’ble National Consumer Disputes Redressal Commission as reported in III (2015) CPJ 544 (NC) emphasizing that as the OPs did not discharge their duties properly , the OPs were guilty of inaction and passivity .
The decision of the Hon’ble State Consumer Disputes Redressal Commission, Punjab as cited by the Respondent/OP does not help as the facts in that case are quite different from those as in the present case.
The contention of the OP/Respondent that the Complainant / Appellant should have approached the arbitrator in terms of the
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agreement is not tenable in so far as filing a consumer complaint , despite arbitration clause in an agreement, can not be challenged as under Section 3 of the Consumer Protection Act, the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Going by the foregoing discussion we are inclined to hold that the impugned order suffers from material irregularity and legal infirmity. The appeal succeeds . Hence, Ordered That the appeal be and the same is allowed. The Respondent / OP shall refund the sum of Rs. 25,000/- and INR equivalent of USD 1000 ( as on 27.11.2009 , being the date of receipt issued ) . The Respondent shall also pay a sum of Rs. 3,00,000/- as compensation for harassment and mental agony as well as for deficiency in service and unfair trade practice, apart from payment of cost of Rs. 5000/- . The entire amount shall be paid by the Respondent within a period of 40 days from the date of this order , failing which interest @ 10 % p.a. shall accrue on the entire amount till full realization. The impugned order is set aside and the complaint stands allowed in part.