FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.758 of 2012 Date of Institution: 06.06.2012. Date of Decision: 05.10.2015. Worldwide Immigration Consultancy Services Ltd., (WWICS), Midland Financial Centre, 3 Floor, 21-22, G.T. Road, Near ICICI Bank, Opp. Hotel Kings, Jalandhar through its Branch Manager and another. ..Appellant/opposite party Versus Veena wife of Sh. Pawan, Resident of 93-A, Tower Enclave, Phase- I, P.O. Khurla Kingra, Jalandhar. ..Respondent/complainant First appeal against order dated 17.04.2012 passed by the District Consumer Disputes Redressal Forum, Jalandhar. Quorum:- Shri J. S. Klar, Presiding Judicial Member. Shri H.S. Guram, Member. Present:- For the appellant : Sh. Raman Walia, Advocate. For the respondent : None. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. S. KLAR, PRESIDING JUDICIAL MEMBER:- The appellant of this appeal (the opposite party in the complaint) has directed this appeal against the respondent herein (the complainant in the complaint), assailing order dated 17.04.2012 of District Consumer Disputes Redressal Forum Jalandhar (in short, the District Forum), vide which, the complaint of the complainant First Appeal No.758 of 2012 was accepted by directing the OP no.1 and 2 to refund Rs.50,000/- to the complainant and further the amount equivalent to 500 US$, if already not paid to her within one month from the date of receipt of copy of order, failing which, it shall be liable to pay interest at the rate of 12% per annum from the date of order till payment, besides Rs.5000/- on account of compensation and costs of litigation.
2. Complainant Veena has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that OP are engaged in the business of providing services for immigration and publishing themselves as the world's largest Global Resettlement Solutions Company. The complainant approached the office of OP no.1 on 25.04.2008 and agreed to retain the services of the OPs for the purpose of receiving professional services with respect to preparation and submission of her immigration case for Canadian permanent resident visa under the Federal Skilled Worker Class. The complainant paid a sum of Rs.30,000/- to the OPs, vide cheque no.195199 dated 25.04.2008 drawn on UTI Bank, Jalandhar for retaining the services of the OPs and the OPs issued receipt no.102208 198 dated 25.04.2008 thereof. The OPs further demanded the amount of Rs.20,000/- from complainant and the same was paid to them, vide cheque no.515092 dated 05.08.2008 drawn on ICICI Bank Limited, Jalandhar and OPs issued receipt no.202208 323 dated 05.08.2008 thereof. The complainant paid 500 US$ in favour of Global Strategic Business Consultant, OP no.3 on First Appeal No.758 of 2012 the same day and OP no.1 got the signature of the complainant on various blank papers and stamp papers which are still lying in the custody of OP nos.1 and 2. OP no.3 is associated company of OP nos.1 and 2. It was further averred by the complainant that the OP told him that the consultation would be provided to him by the OPs and they would also assist him in applying for immigration to Canada. The OPs were to assess the case of complainant on merits and assist in the preparation of her case. The OPs told the complainant that her case is fit for application for immigration to Canada under the National Occupational Classification (NOC) Code 4142 i.e. ETT Teacher. The complainant has provided all the necessary documents and proofs, as demanded by the OPs from time to time, for preparing her case. The complainant deposited Visa Fee of Rs.22,340/- vide DD no.398564 dated 04.08.2008, as per direction of the OPs. The OPs further told the complainant that she possessed the requisite experience to apply under the NOC Code 4142 and her work experience as ETT Teacher is covered under the category of NOC Code 4142. Accordingly, the application for permanent residence in Canada in the Federal Skilled Worker Class has been moved on 02.09.2008. The OPs assured the complainant that her case would be processed and finalized shortly. Thereafter, the complainant kept on enquiring from the office of the OP about the status of her application, but every time she was told that her application was under process and would be decided soon. On 15.02.2010, the complainant was told by the OPs that her application First Appeal No.758 of 2012 has been rejected by Canadian Authorities in the month of February, 2010 for the reasons that her application did not meet the requirements of the Ministerial instructions and was not eligible for processing. The Immigration Authorities have made changes to the provisions of immigration and Refugee Protection Act, which affected the application submitted on or after 27.02.2008 and the OP got applied her case on 02.09.2008, due to which her application for immigration was rejected which meant the date on which the application of the complainant was moved under the category, the same was already removed by the Immigration Authorities. This act of the OPs amounted to unfair trade practice and deficient service. The complainant made many requests to OPs to refund the entire amount paid by her to them, as they failed to render the services as promised by them, but they lingered the matter on one pretext or the other. The complainant again moved an application dated 25.03.2010 to OP no.1 for refund of entire money. After receiving the said letter, the OP agreed to refund the sum of 500 US$, but they refused to refund the balance amount of Rs.50,000/-. The complainant prayed that OPs be directed to pay her Rs.1 lakh as compensation for mental harassment alongwith 500 US$ and to refund Rs.50,000/- charged by them from her, besides litigation expenses of Rs.11,000/.
3. Upon notice, OP nos.1 and 2 appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections by the answering OPs that First Appeal No.758 of 2012 complaint is not maintainable, as she suppressed the material facts from this Forum to the effect that she has consented to receive US $
500 towards full and final refund, vide consent letter dated 13.12.2010 and agreed that she will not file any legal case nor raise any claim against the OPs after receipt of US $ 500 from OP. The US $ 500 was refunded to the complainant vide DD dated 30.12.2010 of The Royal Bank of Scotland N.V., which has been encashed by her and the matter was settled once for all. The doctrine of "Promissory Estoppal" is fully applicable in the present case as the answering OPs acting upon the assurance/consent letter given to them had refunded the amount of US $ 500 towards the full and final settlement of her claim and as such the present complaint is not maintainable and is liable to be dismissed on this score. The Contract of Engagement was executed between the complainant and OPs and as per Clause 11(a) of Contract of Engagement, it was agreed between the parties that the answering OPs would not refund any fee in case there is change in Immigration Rules. It was further averred by the answering OPs that application of complainant for immigration and permanent residence for Canada was forwarded to Canadian High Commission, New Delhi and the Canadian High Commission, vide letter dated 07.10.2008 acknowledged the receipt of the same, which was received by them on 05.09.2008. It was further averred by the answering OPs that complainant was informed about the receipt of her file number, vide letter dated 15.10.2008. However, before processing the case of the complainant by the First Appeal No.758 of 2012 Canadian High Commission New Delhi, the Canadian Immigration Authorities changed the Immigration Rules from back dated i.e. 27.02.2008 on 28.11.2008 and introduced a priority occupation list (POL) in which 38 occupations were listed, which were high in demand in Canada and the Canadian High Commission only started entertaining those applications, which were filed out of the 38 occupations and the remaining cases were returned by the Canadian High Commission. This change in rules was with retrospective effect from 27.02.2008 meaning thereby that those cases which were filed between 27.02.2008 and 28.11.2008 and were not in 38 occupations list and were returned. Unfortunately, the case of the complainant also fell under the same time frame and the occupation of the complainant "ETT teacher" on the basis of which her Immigration case was filed and it was also not in 38 POL list, therefore, her case was also returned by the Canadian High Commission, vide their letter dated 15.02.2010. The Visa Processing fee was also returned by way of DD of Rs.24,320/- dated 07.03.2010, which has since already been encashed by the complainant. Any deficiency in service or unfair trade practice was vehemently denied by the answering OPs on their part, as they performed their part of the contract by filing the case of the complainant before the Canadian High Commission, but there was a change in the Immigration Rules, after the filing of her case. The answering OPs controverted the other averments of the complainant. OP nos.1 and 2 prayed for the dismissal of the complaint. First Appeal No.758 of 2012
4. The complainant tendered in evidence her affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-14 and closed the evidence. As against it, OP tendered in evidence the affidavit of Aseem Dhody Branch Manager of OPs Ex.R-A alongwith documents Ex.R-1 and R-13 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant, as referred to above. Aggrieved by the order of the District Forum OP nos.1 and 2, now appellant has carried this appeal against the same.
5. We have heard the learned counsel for the appellant, as nobody appeared on behalf of respondent in this appeal since after 21.01.2014. Consequently, we proceed to decide this appeal on the basis of evidence available on the record. Ex.C-1 is the contract of engagement between the complainant and OPs. This document has been placed on record by the complainant herself. It has been governing the relationship between the parties. The counsel for the appellant contended that as per Clause 11(a) of the contract Ex.C-1, the OP company now appellant will not refund any of the total fees and shall be entitled to full payment of it in the circumstances, as enumerated therein. Ex.C-2 is the copy of retainer receipt dated 25.04.2008 in the name of Veena complainant of Rs.30,000/-. Ex.C-3 is the copy of cheque no.515092 dated 05.08.2008 issued by the complainant in favour of OP. Ex.C-4 is copy of receipt for professional fee dated 05.08.2008 of Rs.20,000/-. Ex.C-5 is the copy of DD no.00010638 dated 04.08.2008 of 500 US$. Similarly, we First Appeal No.758 of 2012 have examined Ex.C-6, the DD no.398564 dated 04.08.2008 of Rs.22,340/-. Ex.C-7 is copy of application for permanent residence of complainant. Ex.C-8 is the copy of email dated 15.02.2010 to complainant regarding the changes in Immigration and Refugee Protection Act which affected applications submitted on or after February 27, 2008. Since, the application was received on or after this date and hence the application is subject to these amendments. Ex.C-9 is the copy of letter from husband of the complainant to the OP for refund of application fee of file no.48052. Ex.C-10 is the copy of legal notice dated 18.12.2010 served upon OPs by the complainant and Ex.C-11 to C-13 are the postal receipts thereof. Ex.C-14 is the A.D. The OP relied upon affidavit of Aseem Dhody Branch Manager of OP company Ex.R-A. Ex.R-1 is the copy of consent letter dated 13.12.2010 duly signed by the complainant, vide which, she expressed her readiness and willingness to receive 500 US$ and also for rejection of immigration application. Ex.R-2 is the copy letter dated 10.01.2011 for refund of retainer fee alongwith cheque of 500 US$. Ex.R-3 is the copy of contract of engagement. Ex.R-4 is the copy of letter address to the complainant. Ex.R-5 is copy of letter dated 15.10.2008 for dispatch of CHC documents. Ex.R-6 is the copy of news release regarding Minister Kenney announces immigration levels for 2009; Issues instructions on processing federal skilled workers. Ex.R-7 is the copy of email dated 15.02.2010 to complainant regarding the changes in Immigration and First Appeal No.758 of 2012 Refugee Protection Act, which affected applications submitted on or after February 27, 2008.
6. From examination of above referred evidence on the record, we find that complainant submitted her application to OPs in this case and paid the amount of Rs.30,000/- to OP vide cheque no.195199 dated 25.04.2008 drawn on UTI Bank Jalandhar, which was received by the OPs. The complainant paid another amount of Rs.20,000/- vide cheque no.515092 dated 05.08.2008 drawn on ICICI Bank Limited Jalandhar to OPs, as demanded by them. The complainant also remitted another sum of 500 US$ in favour of Global Strategic Business Consultancy OP no.3. The grievance of the complainant is that her application for immigration was not sent in time and in the meantime Rules were changed and resultantly she stood deprived of her permanent immigration to Canada. We find that as per email dated 15.02.2010 Ex.R-7, the changes were made to the Immigration and Refugee Protection Act by the Canadian Authorities with effect from 27.02.2008. The complainant applied for immigration to OPs, thereafter the main ground for rejection of her application was that her case did not fall into the category of the skilled persons, which was demanded by the Canadian Authorities. The Contract of Engagement is Ex.C-1 on the record and Clause 11 of the contract is to the effect that the company would not refund any of the total fees. If it becomes impossible to meet the objective of the agreement due to reasons like client having medical problems, having Civil charges, national security reasons of the destined First Appeal No.758 of 2012 country, change in Immigration Rules and/or any other reasons. We find that the main cause of rejection of the permanent immigration application is not the delayed submission by the OPs, but it is on account of change in Immigration Rules by the destined Country. Clause 11 of the Contract Ex.C-1 discharges the liability of the OPs, in case the application for permanent immigration was rejected on account of change of Immigration Rules by the destined Country. The District Forum relied upon law laid down in "Overseas Education and Immigration Services Vs. Amandeep Singh" 2006(1) CPJ-585 by the Union Territory Consumer Disputes Redressal Commission Chandigarh, wherein it has been held that where application lapsed due to change in immigration policy of the destined country- The District Forum rightly directed OP to pay the amount of Rs.71,500/- with 7% interest. The cited authority is, thus, attracted to the fact situation of this case and is fully applicable to this case. The contention of the appellant is that it is justified to retain the entire Visa charges and other fees, as per clause 11 of the contract. In our view, this Contract of Engagement Ex.C-1 is not tenable on the basis of law laid down in the above referred authority. The District Forum rightly appreciated the controversy in this case. The order of the District Forum cannot be faulted in this appeal on the basis of law laid down in above referred authority and we hereby affirm the order of the District Forum.
7. As a result of our above discussions, we find no merit in the appeal and the same is hereby dismissed. First Appeal No.758 of 2012
8. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, which accrued thereupon, if any, be remitted by the registry to the complainant/respondent by way of a crossed cheque/demand draft after the expiry of 45 days. The remaining amount shall be paid by the OPs to the complainant, as per order of District Forum Jalandhar.
9. Arguments in this appeal were heard on 21.09.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases. (J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER October 5, 2015. (MM)