V.B. Gupta, Presiding Member
1. In the present revision petition filed under Section 21(b) of Consumer Protection Act,1986 (for short, ‘Act’) by the Petitioners/Opposite Parties, there is challenge to order dated 27.3.2013 passed by State Consumer Disputes Redressal Commission, Kerala (for short, ‘Act’), vide which Appeal No.641 of 2012 filed by the petitioners against order dated 29.3.2012 passed by District Consumer Disputes Redressal Forum, Ernakulam (for short, ‘District Forum’) was dismissed.
2. Brief facts are that Petitioner No.1 is the Immigration Consultancy Services and Petitioner No.2 is its branch office at Kochi. It is stated that Respondent/Complainant entered into an agreement with the Petitioners on 29-01-2009 for immigration to Canada. Petitioners agreed to render the services to the respondent. As per the terms of agreement, respondent has to pay a total fee of Rs.50,000/-. Out of the said sum, an amount of Rs.30,000/- was payable at the time of signing of the agreement and balance sum of Rs.20,000/- within thirty days from the date of signing the agreement. Over and above, the professional charges, it was also agreed to pay a sum of 1700 US $ as visa processing fee and for meeting the initial expenses on arrival of the respondent at Canada. It was also agreed to refund 50% of the total fee collected or Rs.25,000/- whichever is less in case the respondent was declared disqualified. Respondent paid the entire amounts as agreed upon and submitted all the certificates. The certificate for job experience was obtained from the present employer of the respondent on the lines of advice given by the petitioners. The application submitted by the respondent was rejected by the High Commissioner of Canada vide letter dated 19-11-2009 stating that the job experience as per the experience certificate, was not sufficient for processing the application. After that, respondent requested the petitioners for refund of 50% of the professional charges paid and the Visa Processing Fee collected from him. But petitioners did not care to reimburse the amount. According to the respondent, she is entitled for the refund of 50% of the amount paid by her for professional services of Rs.50,000/- and full amount of visa processing fee collected from her of 1,700 US $ together with interest, compensation and costs.
3. Petitioner in its reply took the plea that respondent has not impleaded M/s. Global Strategic Business Consultancy, Dubai to whom respondent had paid a sum of US $ 1,700. They are necessary parties to the proceedings.
4. It is further stated that petitioners only to assist the candidates in the process which includes the preparation of his or her immigration file, verify their credentials, supply with required documents, communicate the case with Canadian authorities, doing the entire correspondence with the High Commission etc. and will not cover a 100% guarantee of migration to Canada, since sanction for migration is to be granted by the Canadian authorities. Respondent as per Clause 2 (a) of the contract was required to submit the complete documents within 30 days from the date of signing the agreement. However, respondent in spite of the repeated requests failed to submit the complete documents along with experience certificates which resulted in rejection of her case by the Canadian high commission. In this case, petitioners have properly carried out their responsibilities efficiently and effectively. The last day for submitting the documents was, 20th of September, 2009. The respondent submitted only incomplete documents, mainly the experience certificate which does not contain detailed job duties. Further, petitioners never agreed to refund 50% of the fees. Moreover, as per Clause 10 of the contract it is clear that the services provided by the petitioner company being professional in nature, the entire fee is non-refundable. Respondent’s case was rejected not due to deficiency on the part of the petitioners but on the respondent’s failure. Hence, the complaint is to be dismissed with cost.
5. District Forum allowed the complaint in part and directed the petitioners jointly and severally to refund 50% of the amount of Rs.50,000/- as per Ext.A-2 and A-3 receipts and to pay Rs.84,230/- (1700 US $) as per Ext.A-4 together with 12% interest p.a. from the date of complaint till realization.
6. Being aggrieved, petitioners filed an appeal before the State Commission which dismissed their appeal and upheld the order of the District Forum.
7. Hence, the present revision petition.
8. We have heard the learned counsel for the petitioners and gone through the record.
9. It has been contended by learned counsel for the petitioners that M/s. Global Strategic Business Consultancy, Dubai was a necessary party as sum of US $ 1,700 was received by that company. Thus, the petitioners are not liable to pay that amount.
10. Other submission of learned counsel is, that as per the terms of the agreement, petitioners had already performed their duties and filed the case for permanent migration, but the same was rejected on the ground of lack of experience. Thus, no deficiency of services can be fastened on the petitioners.
11. District Forum in its order held;
'7. As per Exts. A2 and A3 receipts it is evident that the opposite parties have received a sum of Rs.50,000/- from the complainant. The opposite parties vehemently objected the receipt of 1700 US $ towards visa processing fee from the complainant. It was paid to M/s. Global Strategic Business Consultancy, Dubai vide D.D by the complainant. On a perusal of Ext. A4 copy of D.D and the receipt of Thomas Cook India Ltd. revealed that the D.D was taken in favour of WWICS Ltd. and in the foreign exchange application it is noted that the name of the complainant and C/o. WWICS. No evidence is before us to show that the said transaction of the complainant was directly with M/s. Global Strategic Business Consultancy, Dubai. Clause 2 in Ext. A1 agreement deals with the duties of the client and in which sub-Clause 2 (v) reads as follows
[['The client agrees that he/she shall correspond with the respective Visa Post/High Commission through the Company only and that he/she shall not change the correspondence address without seeking prior approval of the Company. A penalty of Rs. 25,000.00 (Rupees Twenty Five Thousand only) shall be charged if the Client is found to be dealing directly or through any other representative (other than WWICS Ltd.) at any address other than that of the Company. Besides, the Company shall be at liberty to take appropriate legal action against the Client to recover any unpaid amount if any out of the total fee. In the event of rejection of the application as a result of discrepancies caused due to direct dealing by the client, client shall be solely responsible for that and shall not be entitled to any refund thereafter.'
In the aforementioned reasons, there is no question for non-joinder of necessary party. In the above circumstances, the complainant is entitled to get 1700 US $ with interest from the opposite parties. Clause 1 in Ext. A1 discuss the duties of the opposite parties. Sub-Clause (h) it is stated that 'Advice the client about any subsequent changes in the immigration laws and any subsequent conditions applicable to meet the selection criteria.' At the outset, the opposite parties ought to have verified the documents submitted by the complainant along with her application. It was the duty of the opposite parties to verify the same and reject the same then and there if the complainant is not qualified enough to submit an application for Visa in the concerned category. Had the opposite parties applied their mind at the threshold, this complaint would not have arisen. Instead of that the opposite parties a service provider processed the application and the Canadian High Commission had to reject the same based on their own rules and to cover up the lacunae the opposite party issued Ext. B1 belatedly.
8. The Canadian High Commissioner rejected the application of the complainant due to the above stated deficiency on the part of the opposite parties. Therefore, the complainant is entitled to get the entire amount with interest from the opposite parties, however, we are not to order refund of the entire amount, since the complainant has claimed only the 50% of the amount paid to the opposite parties as per Exts. A2 and A3 receipts. We are not ordering any compensation and costs, since we have already ordered interest for the amount collected by the opposite parties.'
12. The State Commission while dismissing the appeal of the petitioner, in its impugned order observed;
'We have heard both the counsels in detail and perused the documents and are of the considered view that as per the agreement entered into between the parties, the respondent is entitled for 50% of the professional charges. The visa processing charges of 1700 US $ accepted from the respondent towards post entry expenses which was not utilized at all, the appellant is liable to refund the visa processing charges also. We find force in the argument put forth by the respondent who had already submitted the documents in time and assistance given by the appellant was not fruitful. The Canadian authorities rejected the application form on the sole reason of lack of details of job duties in the experience certificate and we find deficiency in service on the part of the appellants.'
13. It is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. Under Section 21 of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
14. Hon'ble Supreme Court in Mrs. Rubi(Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654 has observed;
'Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.'
15. As per the Contract of Engagement which is dated 29.1.2009 executed between the parties, amongst others the duties of the petitioner company are as under;
'1. Duties of the Company:
In consultation with its associates at various locations the Company shall provide the following services to its clients;
a) Assess the client according to the information provided by the client in the assessment form.
b) Assist the client in preparation of his/her immigration case;
c) Review and identify submission of required documents and supporting evidences;
d) Submit the complete case with supporting documentation and evidence alongwith the submission report to the processing visa office on the receipt of all requisite documents from the client at WWICS Ltd., Head Office.
e) Handle all correspondence with the respective High Commission pertaining to client’s case.
f) Intimate the requirements sent by Processing Visa office during the progress of the Immigration case.
g) Assist the client in keeping his/her file up to date;
h) Advice the client about any subsequent changes in the immigration laws and any subsequent conditions applicable to meet the selection criteria.'
16. It is an admitted fact that High Commission of Canada, vide its letter dated 19.11.2009 has rejected the applica
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tion form of the respondent on the ground that the job experience certificate was not sufficient. 17. Thus, it is manifestly clear that petitioners did not perform their above duties diligently and that is why the application form of the respondent was rejected. Under these circumstances, deficiency on the part of the petitioners is writ large in this case. 18. Consequently, we hold that both the fora below have rightly allowed the complaint of the respondent. Under these circumstances, the present revision petition being without any legal basis has no merit and has been filed just to waste the time of this Commission and to deprive the respondent the fruits of the award passed more than two years ago. Therefore, we dismiss the present petition with cost of Rs.10,000/- (Rupees Ten Thousand only). Out of the above costs, Rs.5,000/- be paid to the respondent by way of demand draft in her name and the remaining cost be deposited by way of demand draft in the name of 'Consumer Legal Aid Account' of this Commission, within six weeks. 19. In case, petitioners fail to pay/deposit the aforesaid costs within the prescribed period, then they shall be liable to pay interest @ 9% p.a., till realization. 20. Costs awarded to the respondent be paid only, after expiry of the period of appeal or revision preferred, if any. 21.List for compliance on 11.7.2014.