At, Delhi State Consumer Disputes Redressal Commission New Delhi
By, THE HONOURABLE JUSTICE ANIL SRIVASTAVA
By, PRESIDING MEMBER
For the Appellant: Sunil Goyal, Counsel. For the Respondent: Rajesh Sharma, Counsel.
1. Short question for adjudication in this appeal filed before this Commission under Section 15 of the Consumer Protection Act 1986 the Act, by WWICS Limited, for short appellant assailing orders dated 23.06.2014 passed by the District Consumer Disputes Redressal Forum (East) in CC-188/14 in the matter of Sh. V. Vijayan versus WWICS, directing the appellant to refund to the complainant before the forum and respondent in this appeal, a sum of US $ 1200 as also compensation of Rs. 25,000/- they having been found to be deficient in the discharge of their duty qua the respondents, suffers from any infirmity. Prayer has been made for setting aside the order and for dismissal of the complaint.
2. Facts of the case necessary for the disposal of the appeal are these.
3. The respondent desirous of obtaining immigration to Canada, sought for the services of the appellant for the preparation and submission of his case to the concerned authorities. Contract of Engagement was done between the complainant/respondent and the OP/appellant on 01.07.2005 on certain specific terms and conditions. The respondents had also entered into a contract of engagement with Global Strategic Business Consultancy, Dubai on 01.07.2005 at Greater Kailash Office at New Delhi for which the respondent had also paid US $ 1200 vide pay order no. 049099 dated 03.08.2005 in favour of GSBC payable at New York. Professional fee of Rs. 50,000/- was also paid to the appellant. The OP was supposed to provide in furtherance to the contract preparation of the case for immigration, submission of case to the processing Visa Office, advise client€™s of any requirements by the visa office with respect to the case for saving time and money by taking pre mptive measures for crossing unexpected hurdles.
4. The respondent had furnished the documents as required and as sought for by the appellant company for the purpose of immigration and thereafter the papers were filed before the Canadian High Commission which papers were accepted on 05.09.2006 with the file number B-044092005. It appears that no action was done on that application abnormally for a long time for about six years or so. On the contrary a decision was taken at the level of Canadian High Commission to process the new cases and to give cold shoulder to the older cases.
5. In these circumstances the appellant company instead of taking up the matter with the appropriate authority for processing the cases registered earlier, advised the respondents for representing the case before the authority for which additional demand of CAD $ 700 was made. Being frustrated with the delay done, the complainant showing dis-interest to pursue his desire to immigrate to Canada there being abnormal delay, sought for the refund of the fee paid, which refund having not been done a consumer complaint was filed for the redressal of the grievances and the complaint having been allowed, this appeal has been filed on the ground that the impugned order is bad in law and on the facts inasmuch as there was no deficiency of service on the part of the appellant as the service of the appellant were restricted to what was agreed upon between the parties. Secondly, the ld. District Forum has failed to appreciate that the respondent has not impleaded GSBC as a party inasmuch as the 1200 US$ was paid to the said company. Besides separate contract of engagement was entered into between the respondent and GSBC. Dubai and thus the appellant is not liable to refund the amount received. Hence the order is liable to be set aside. Thirdly the ld. District Forum erred in holding that no other service has been rendered by the appellant except submission of papers for immigration. The said finding according to the appellant is perverse and against the matter of record. Fourth, the District Forum failed to appreciate that the respondent had withdrawn his request unilaterally and under no pressure or compulsion. Fifth, as per clause 9 (c) of the contract, the respondent was not entitled for any refund. The impugned order of the District Forum is thus bad on facts and is liable to be set aside.
6. The respondents were noticed and in response thereto they have filed their reply resisting the appeal both on technical ground and on merit stating that the appeal being devoid of merit is liable to be dismissed as there exists no infirmity in the orders passed. The District Forum have rightly held that the appellants have been deficient in rendering service to the respondent.
7. The matter was listed before this Commission for final hearing on 06.01.2021 when the counsel for both sides appeared and advanced their argument in support of their pleadings the appellant for setting aside the order as according to them there exists no deficiency of service on their part, they having processed the case with Canada High Commission for immigration of the respondents and the respondents, on the other hand alleging deficiency on the part of the appellant they having taken not adequate steps for the immigration and, secondly, keeping silent for or period of six years, the period abnormally a long time. I have perused the records and given a careful consideration to the subject matter.
8. Short question for adjudication in this appeal is whether the appellant have been deficient in the discharge of service keeping in view the terms of contract they had arrived at.
9. The ld. Counsel for the appellant drawing my attention to clause 9(c) of the agreement between the parties, has argued that they are under no obligation to refund the fee received if the respondent had withdrawn at any stage. Relevant clause of the agreement is as under:-
€œThe company will not refund any of the total fees and shall be entitled to full payment if:
(c) The case is withdrawn by the client at any stage€.
10. The appellant further argued that the respondent retained the services of the company and paid Rs. 50,000. He had executed another contract with Ms. GSBC and paid their fee. The respondent was thoroughly advised and guided by the appellant company at all levels since the beginning by investing its precious time and effort. These services include:
a. Counselling and advising the client about the product and the immigration procedure.
b. Providing immigration package and the check list of documents to the client.
c. Advising and guiding the client in preparation of documents/forms in proper format as per the requirement of immigration authorities etc.
Thereafter once all the above mentioned activities were fulfilled, the case of the respondent was duly prepared and filed in the best possible manner on 30th July 2005 under intimation to the respondent and simultaneously the respondent was also intimated about the pending documents required to be filed. However processing of all the case filed prior to 27th Feb, 2008 were since processed at a very low pace, the respondent was advised to participate in a law suit for timely disposition of his immigration case.However the respondent at this stage decided to withdraw his application and moved an application seeking refund on 6th Sep, 2011. But in the process the appellant has alleged that they are not all deficient in rendering services.
11. Having regard to these facts the appellant strongly arguing that there exists no deficiency of service on their part stated relying on the clause 9 (c) of the agreement that the respondents are not entitled for the refund of the fee.
12. I may now advert to the terms of agreement and duties of the company in this behalf.
Duties of the company:
In consultation with Global Strategic Business Consultancy, UAE and its associate companies, the company shall provide services under the following heads:-
A. Immigration Consultancy Service
a. Assist the client in preparation of his/her case for permanent residency for immigration.
b. Review and identify for submission of all required documents and supporting evidence.
c. Submit the complete case with supporting documentation and evidence along with the submission report to the processing visa office.
d. Assist in keeping the file up to date and in interview preparation.
B. Ensure rendering services of GSBC and its associates
a. Assistance in assessment of educational and professional qualifications from educational and professional bodies.
b. Advise the client about immigration laws of that country.
c. Endorsement and final approval of the case from overseas bodies.
13. On perusal, among others, one of the duties is endorsements and final approval of the case from overseas bodies. This being the position the duties are to get the approval from the overseas bodies. If that be the case the appellant were required under the agreement to ensure approval from the overseas body. But the appellant took no step after submitting of the papers. Filing or submission of paper with the authority concerned for the purpose is only one part of the duty but obtaining approval is the next part of the duty which not having been done
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deficiency of service is apparent. Besides the appellants made no effort for six years to find out the progress of the case. 14. The argument of the appellant that the respondent is not entitled for the refund he having withdrawn from the case cannot be accepted since withdrawal was owing to the abnormal delay done in the process and besides during that period no steps as per records were taken by them to see the progress made. 15. Having regard to the discussion done I am of the considered view that there is no infirmity in the orders passed by the District Forum holding appellant deficient and directing the refund and thus it is accordingly upheld. 16. Ordered accordingly leaving the parties to bear the cost. 17. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information. 18. File be consigned to records. The FDR be released in favour of the respondents.