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Worldwide Immigration Consultancy Services Limited & Another v/s Paramjit Nigah

    Revision Petition No. 160 of 2013 & 243 of 2013
    Decided On, 13 March 2013
    At, National Consumer Disputes Redressal Commission NCDRC
    By, MEMBER
    For the Petitioners: Sunil Goyal, Advocate. For the Respondent: ------

Judgment Text
Vinay Kumar, Member

These two revision petitions are filed byWorldwide Immigration Consultancy Services Limited(referred to in this order as WWICS) against concurrent orders of the fora below. The District Consumer Forum, Jalandhar has allowed the complaint of the respondent, Paramjit Nigah and directed the WWICS to refund 50% of the total amount of Rs.137268/- with 9% interest from the date of receipt. The appeal of WWICS has been dismissed by the Punjab State Consumer Disputes Redressal Commission and it has confirmed the order of the District Forum.

2. The facts in brief are that the OP had entered into an agreement with the Complainant on 24.11.2000 to efficiently and diligently submit and pursue the application of the Complainant for his migration to Canada. His application was eventually rejected by the Canadian High Commission on 28.9.2006. As per the complaint petition of Paramjit Nigah before the District Forum:

'2. That the complainant was not told regarding I.L.E.T.S./TOFFEL examination requirement and the application of the complainant was declined by the Canadian High Commission, and the opposite party informed the complainant regarding the rejection vide letter dated 28-9-2006. (Photocopy of the same is enclosed for your kind perusal).

3. That surprisingly instead of proper efficient and diligent consultancy services in the above matter, the opposite parties and their officials acted in gross negligence and deficient consumer services and intentionally with malafide intention wrongly assessed the eligibility points of the complainant in order to receive heavy amounts as fee as such, are liable for refund of the above said amount paid and also damages/compensation for deficient and negligent consumer services and for harassment and inconvenience caused to the complainant to the tune of Rs.3,50,000/-.'

3. Per contra, the stand of the OP/WWICS in its written response before the District Forum was:

'2. That para No.2 is wrong and denied. The clearing of the ILETS test was clearly told to the complainant at the time of signing of the contracts dated 24.11.2000. Infact as per Clause 5 (J) of the Contract it was the duty of the client to attain sufficient knowledge of English language as laid down by the Canadian High Commission. Moreover vide letter dated 23.12.2003 the Canadian High Commission had also informed the complainant to give conclusive proof of proficiency in English or French by way of submission of ILETS test which is annexed as Annexure R-7 and vide letters dated 7.10.2003 and 22.1.2004 annexed herewith as Annexure R-8 and R-9 the complainant was clearly told by the answering respondents also to submit his ILETS result towards proof of his proficiency in English which the complainant failed to submit'.

4. Therefore, it is clear from the above that clearing of ILETS test was admittedly a requirement for successful consideration of the visa application. The WWICS was admittedly aware of this requirement when the agreement was signed with the Complainant.

5. The District Forum went into full consideration of the material on record before holding that the OPs have neither made a proper assessment nor rendered proper assistance to prepare the Complainant for the test. It has observed that:

'8. We have gone through the facts of the case and law on the point that, in case law cited by counsel for OP counsel and proved that they had given correct consultation and training to the complainant to clear the exam but in this case, the Ops have not fulfill their duty according to document Ex.C-3 as they have neither assess the plan Education Training and Skill Experience, nor they have assisted the preparation of the exam nor they had assessed him in respect of the preparation of interview nor they had represented his case with Canadian Embassy. Therefore, if the OP had done their preliminary investigation and work they have deducted the defects in complainant’s case and would not charged total amount of Rs.1,37,268/-.

10. As regards objection of the OP that Canadian Worldwide has not been as a party is concerned that objection is also not maintainable, as all the payment was made by the complainant at Jalandhar through office of the OP No.1 and 2 and agreement with Canadian Company was responsible of the OP No.1 and 2. Therefore, complainant was not bound to implead that Canadian Company as separate party. As such, that objection of the OP is also maintainable and same is rejected. According to Clause 10 of the agreement produced by OP Ex.R-2 relied upon by the OP.

11. Therefore, considering the totality of the case, complainant had failed to clear the test. Therefore, he is partly responsible to share the loss but the OPs have not provided necessary guidance and necessary checking before charging huge fee for sending him to Canada when he was not fit to qualify the ILETS Test nor the OP had waited for clearance of the test and they have charged huge amount from him as if it was case of the person with clearance of ILETS Test. As such, due to this deficiency of service as discussed above, we direct the Ops to return the 50% of the amount of Rs.1,37,268/- with 9% interest from the date of receipt till payment.'

6. While considering the appeal of WWICS, the State Commission has made a complete reassessment of the evidence before upholding the decision of the District Forum. It has been observed by the Commission that:-

'When the Visa officer rejected his case for immigration, the O.Ps sent him a letter Ex. C-11 to tell him that his case was very much fit for refilling and he stood very good chance of permanent residency. He was asked to cooperate with the O.Ps so that they provided required services in order to achieve the desired aim. It was never their case if he did not have the proficiency in English language or he was not competent enough to attain the requisite points for his immigration. They did not point out any deficiency much less lack of English language on the part of the complainant to get permanent residency in Canada. However the assessment made by them was proved to be a hollow one from Ex. C-2 which was the result of the interview conveyed by the Canadian Embassy who allotted him only two units out of 9 for knowledge of English under the Immigration Rules 1978, he got 7 points out of 24 under the IRP Regulations. It further shows that the complainant could not score more than 62 points out of 105 when 70 points were needed and he could not score 60 points out of 100 when 67 points were needed. The assessment of the complainant made by OP was totally inadequate and wrong. The contention of the learned counsel for the complainant is that in fact it was intentionally made wrong by the OPs to extract the fee from the complainant and push him for interview though he stood no chance of getting Canadian Visa. On the other hand, if they correctly assessed him and had told him that he could not get 70 points, the complainant would not have applied for immigration and in that case the OP would not have got their fee and other charges'.

7. We have considered the records submitted by the revision petitioner and heard Mr. Sunil Goyal, Advocate on behalf of the petitioner. In para 13 F of the revision petition, the main contention raised is that the requirement of English language was conveyed to the Complainant as per Clause 5 (j) of the Contract of Engagement with the WWICS. The respondent failed to appear before ILETS examination, which resulted in rejection of his visa application. This is nothing more than an attempt to detract from the categorical finding of the fora below. A perusal of Contract of Engagement signed between the parties on 24.11.2000 shows that Clause 5 (j) did not spell out passing of ILETS as a requirement. The Clause merely reads as follows:

'Attain sufficient knowledge of English language as laid down by Canadian High Commission, an assessment by the Visa Officer that applicant speaks, reads and writes fluently in English. Also, take up relevant Computer Courses to become computer literate in his/her own profession and also upgrade his/her skills and get academic and professional assessment done as suggested by the Company and its subsidiary WWICS Canda Inc., Global Placement Services (GPS)';

8. The other important ground agitated on behalf of the revision petitioner is that WWICS Canada is a separate agency but it has not been impleaded by the Complainant. The revision petitioner therefore claims that it cannot be held responsible for refund on behalf of WWICS Canada. In this behalf the revision petitioner has sought to rely upon the decision of this Commission in WWICS Vs. Surinder Kumar. No reference or citations have been given and therefore, we do not find ourselves in a position to comment on the applicability of this decision to the facts of the present case.

9. However, we may point out that in two revision petitions, RP No.3334 of 2010, [Worldwide Immigration Consultancy Services Ltd. (WWICS Ltd.) Vs. Manohar Singh Randhawa] and RP No.3335 of 2010, [Worldwide Immigration Consultancy Services Ltd. (WWICS Ltd.) Vs. Suresh Kumar], decided in a common order of 8.3.2011, this Commission had observed that as the payment of 1500 US $ was made directly by the Complainants to WWICS Canada, the fora below could not have directed the petitioner WWICS Chandigarh to refund the same.

10. In the matter before us, the District Forum and the State Commission have both held that all payments were made by the Complainant at Jalandhar. Therefore, it was not necessary for the Complainant to implead the Canadian Company as a separate party. The State Commission has also observed that there was no evidence to suggest with whom the document with WWICS Canada was signed. The Complainant had no intention to enter into any agreement with any agency in Canada. The State Commission has observed that-

'There is no evidence to suggest as to who was the representative of WWICS Canada who signed the said agreement on its behalf. One thing is clear that when this document was signed, the complainant had no intention to enter into an agreement with WWICS Canada nor did he go to Mississauga, Ontario, Canada to their office for signing the said agreement. Otherwise also, obtaining the signatures

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of the complainant on documents purported to be with some other company in Canada would not make it a valid contract between the parties firstly in the absence of the intention of the complainant to enter into an agreement with them and secondly in absence of their representative to settle the terms of contract with the complainant. The contention of the learned counsel for the appellant that WWICS Canada was a necessary party and the amount purported to have been paid to them could not be recovered from the appellant is therefore devoid of merit'. 11. In similar circumstances, this Commission has already held in WWICS Mohali & Anr. Vs. Gurjinder Singh Jabbal (RP No.2557 of 2012), decided on 07.2.2013 that when there was no evidence to show that the Complainant had intended to enter into a separate agreement with WWICS Canada, the question of non-joinder of necessary party would not arise at all. 12. In the result we hold that the revision petitioner has completely failed to make out any case against the impugned order. The two revision petitions are held to be devoid of any merit and are dismissed as such. No orders as to costs.