(S. Karnail Singh, President)
1. This complaint has been filed by complainant - Mukal Arora, wherein alleged that the opposite parties are working as registered Migration Agents at Jalandhar as well as having their offices at Ludhiana and Delhi and at some other places also and send the people abroad after taking huge amount from them. For this purpose, the opposite parties are alluring the people by publishing advertisements in the newspapers from time to time.
2. That both the elder sisters, one younger brother and mother of the complainant are permanently settled in Australia. The education qualification of the complainant is BA. LL.B. The complainant wanted to settle in Australia alongwith his family consisting his wife and three minor children and to join the company of his Sisters and brother in Australia. After going through the advertisement in newspaper the complainant made a telephonic call to the opposite parties at Jalandhar in the first week of August,2015 upon which the opposite parties visited the house of the complainant #332, Moti Bagh Colony, Kapurthala and thereafter perusing the qualification certificates and other aspects told the complainant that it is a fit case for the grant of Permanent Residency (hereinafter called as PR) Visa for Australia to the complainant and his family and assured the complainant that PR for Australia will be granted to the complainant and his family within a period of 8 to 10 months. The opposite parties demanded Rs.2,00,000/- from the complainant out of which the opposite parties received Rs.28,500/- as processing fee on 18.08.2015 in cash from the complainant and issued a receipt in this respect. The complainant handed over a copy of his Passport, l4 Passport Size Photographs and all the other required documents to the opposite parties. On 09.10.2015, the opposite parties further received a sum of Rs.40,000/- in cash from the complainant for the purpose of getting prepared a Bank Draft in favour of VETASSESS Australia for the purpose of fee of assessment of documents. After that, the assessment was done by VETASSESS in the month of December, 2015 and the opposite parties further received Rs.80,150/- (i.e Rs 30,000/- for main applicant/ complainant and Rs. 10,000/- each for 4 dependents + 14% Tax = Rs. 80,150/-) from the complainant as second installment which was paid by the complainant through Cheque in favour of Caan Wings, Jalandhar on 23.12.2015 which was later on got encashed by the opposite parties.
3. Thereafter, the opposite parties asked the complainant to appear in PTE (Person Test of English) exam and asked the complainant to get 6 Bands in each module i.e.Speaking, Listening, Reading & Writing. The complainant appeared in the said test for six times and at-last, he was able to get 6 Bands in each module for which the complainant paid a fee of Rs.65,400/- and Rs.20,000/- as tuition fee for preparing for the said English test. Then, in the month of April 2016, the complainant along with his family visited the office of the opposite parties at Jalandhar and inquired about his case of PR to Australia, upon which the opposite parties told the complainant that the VETASSESS agency has not given any points to the complainant in assessment and due to shortage of points, his case was not eligible for Australian PR. The opposite parties told this fact of shortage of points after four months i.e. in April, 2016 to the complainant whereas, the assessment result was out in December 2015 and this fact was in full knowledge of the opposite parties that the assessment agency has not given any points to the complainant, but still the opposite parties received Rs.80,150/- from the complainant as second installment by concealing this fact and thus, the opposite parties have cheated the complainant by playing a fraud and by hatching a conspiracy with each other.
4. Thereafter, the complainant several times personally approached the opposite parties, but each and every time, the opposite parties went on saying that they have sent Email to VETASSESS agency for calculating the experience of the complainant and to grant 10 Points and in this way the opposite parties kept on dilly-delaying the matter and putting the matter on one pretext or the other. The complainant has suffered mental agony and harassment at the hands of opposite parties and is still suffering. There is deficiency in service and unfair trade practices on the part of the opposite parties for which they are also liable to pay Rs.One lakh separately as damages to the complainant. Due to the act and conduct of the opposite parties complainant got served legal notice dated 01.08.2016, but all in vain. Thus, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and opposite parties may be directed to refund the amount of Rs.2,34,050/- and further directed to pay Rs.1,80,000/- to the complainant for loss of work for six months @ Rs. 30,000/- per month. Also further to direct opposite parties to pay Rs.1,00,000/- on account of physical and mental pain, agony, harassment, due to deficiency in service and unfair trade practices and also to pay Rs. 20,000/- as Litigation expenses.
5. Notice of the complaint was given to the opposite parties, and opposite parties appeared through their counsel and filed joint written reply whereby took preliminary objections that the instant complaint is not maintainable in its form and intent; Further averred that this Forum has no jurisdiction to try and entertain the present complaint. Opposite party no.1 is doing its business in regular course at Jalandhar and entire dealings between complainant and opposite parties took place at Jalandhar, entire paper work regarding documentation and entire payment for the same was made by complainant at Jalandhar, as such, the present complaint is not maintainable in this Forum. Further took a plea that the complainant has concealed true and material facts from this Forum. As a matter of fact complainant had approached opposite party no.1 for applying of PR Visa for Australia for which a contract of engagement was executed between complainant and opposite party no.1 dated 18.08.2015. As per clause 9 (f) of the said contract, complainant is not entitled to refund any of the fee in case the complainant does not attain competent English/required minimum IELTS test and as a result his/her case gets rejected. As in the case of the complainant also, complainant had not attained competent English/required minimum IELTS Test bands and failed in the same. It is clearly told to the complainant that opposite parties have no role to play for assurance for grant of Visa as it is granted by the Department of Immigration and Border Protection, Australia. On merits, it is admitted that the complainant approached to the opposite parties for providing services to get a Visa for Australia on the points basis and it is also admitted that the complainant had paid amount as and when demanded. All other allegations made in the complaint were categorically denied and lastly prayed for the dismissal of the complaint being without merits.
6. Complainant filed rejoinder after filing of written reply of opposite parties no.1 & 2 whereby reiterated all the facts as made in the complaint and denied those of the written statement.
7. Both the parties also placed on the file relevant documents in support of their version alongwith respective pleadings i.e. complaint, written reply and rejoinder.
8. We bestowed our thoughtful consideration to the arguments submitted by the ld.counsel for the respective parties and also gone through the written arguments filed by ld.counsel for the opposite parties, apart from that we have also scanned the file as well as documents very minutely.
9. We have analyzed the respective contentions of both the parties and reach to the conclusion that the factum in regard to approaching by the complainant to the opposite parties for PR of Australia on the basis of points and further making the payment of the amount of Rs.28,500/-, Rs.80,150/- and Rs.40,000/- is not in dispute and question remains only whether opposite parties have committed any negligence or there is any deficiency in service on the part of opposite parties for providing service to the complainant and these are the main points which are to be considered and decided.
10. Before imparting with the main issue in dispute we like to take legal aspect raised by the counsel for the opposite parties that this Forum has got no jurisdiction because the opposite parties are running a business at Jalandhar and even there is no branch office at Kapaurthala. Even, the entire payment and talk took between the complainant and opposite parties at Jalandhar and thus, this Forum has no jurisdiction to entertain and try the present complaint. In support of these allegations, the counsel for the opposite parties made reliance upon the judgments of Hon'ble Supreme Court in 2009 (4) CPJ 40(SC) titled as Soni Surgical vs National Insurance Company Ltd. Further referred to judgment of Hon'ble National Commission in 2018(4)CLT 513 titled as M/s.Gati Kausar India Ltd., vs Oriental Insurance Co. Ltd., and also referred another pronouncement of District Consumer Forum, Jalandhar having complaint No.76 of 2014 decided on 03.01.2018 titled as Tanpreet Singh Bedi vs Kuoni Sotc Tour and Travels. We have gone through the aforesaid judgments submitted by ld.counsel for the opposite parties and reach to the conclusion that if we assume that the payments were not made by the complainant at Kapurthala as alleged by the opposite parties and further no talk took place at Kapurthala, even then it is admitted fact that the complainant was first allured from the advertisement given in the newspaper by the opposite parties, published in the newspaper and copy of the same is available on the file Ex.C14. Admittedly, the opposite parties have given vide publication by publishing their advertisement in the newspaper for consultation on the PR in Australia on the basis of points and required points are 60 and after the advertisement first read by the complainant at Kapurthala then obviously part of cause of action occurred to the complainant at Kapurthala and as per requirement of the section 11 (2) (c) of the Consumer Protection Act under the headnote : Jurisdiction of the District Forum says that the cause of action, wholly or in part, arises. Thus, the complainant has right to file the complaint, so accordingly, we reach to the conclusion that the judgments referred by the ld.counsel for the opposite parties having no effect in this case because the facts are not identical facts to the case in hand. Ultimately, we reach to the conclusion that this Forum has jurisdiction to entertain the instant complaint.
11. Next legal question raised by the opposite parties is that the complaint of the complainant is time barred? Though this plea has not been taken by them in the written reply but the same has been taken for the first time in its written arguments. It being a legal question we have to accept the same for its verdict and accordingly consider the arguments of ld.counsel for opposite parties and find out that the opposite parties entered into agreement on 18.08.2015 copy of contract of engagement is Annexure-A on the file and as per the said engagement there is no time limit to get a Visa for the complainant in Australia. So first of all we are of the considered opinion that there is a recurring cause to the complainant until he has not sent to the Australia on PR basis or in alternative till the opposite parties has not denied to complainant for sending him abroad. But both the facts are not answered or alleged by the opposite parties in its written reply, if so, cause of action is recurring and there is no limitation. The ld counsel for ops referred some rulings on this point are: IV (2011) CPJ 63 (SC) titled as Anshul Aggarwal versus New Okhla Industrial Development Authority; Another judgment in 2007 (3) CLT 374 (NC) Punjab State Electricity Board and Other Versus Saini Rice & General Mills and also referred 2008(3) CPC 268 (NC) titled as V.K.Verma vs Vikram Kumar.
12. If we go through the aforesaid judgments of the Hon'ble Apex Court as well as Hon'ble National Commission, then we can say without any hesitation that the aforesaid judgments are helpful to the complainant and not to the opposite parties in any manner.
13. Reverting back to the main issue in dispute between the parties. Complainant gave more stress on the point that the opposite parties gave assurance to him. After perusing the qualification certificates and other aspects opposite parties assured that his case is fit for the grant of PR Visa for Australia which will be granted to the complainant and his family within a period of 8 to 10 months and also calculated '10' points as experience for employment of the complainant to the extent which are required in the PR of Australia and accordingly opposite parties demanded amount which was paid by the complainant on different dates ie., on 18.08.2015 Rs.28,500/-, 23.12.2015 Rs.80,150/- and Rs.40,000/- which comes to approximately Rs.1,48,650/- and thereafter the opposite parties got the assessment from VETASSES in the month of December, 2015 thereafter got Rs.40,000/- from the complainant as assessment fee. Also the complainant got cleared PTE examination by required points of 6 bands from each module. Then in the month of April, 2016 opposite parties told to the complainant that 'VETASSESS' has not given any points to the complainant of assessment and due to shortage of points his case was not eligible for PR in Australia. Opposite parties told this fact of shortage of points in April, 2016 to the complainant whereas the assessment result was out in 12/2015, despite that the opposite parties received 2nd Installment of Rs.80,150/- even after the declaration of the assessment result which is clear cut deficiency and concealment of the facts and as such the complainant alleged that he is entitled for the refund and compensation.
14. On the otherhand, the opposite parties alleged that no assurance was given for getting PR of Australia for the complainant and his family. Rather the opposite parties doing business of assisting the people for preparing the case for getting Visa on the points basis and thus the complainant himself could not get required points in the English Test of PTE, then how he can get the Visa for Australia and further alleged that the opposite parties have done their job in a very professional manner, as the complainant was not able to attain the minimum required score applicable in his case. Further granting or rejecting of PR Visa is not the discretion of the opposite parties, but it is of the concerned authority which is not even control of opposite parties, and as such, the case of the complainant is without merits and the same may be dismissed.
15. We have sympathetically considered the version of both the parties and find that the entire case is erected on the important documents ie., contract dated 18.08.2015 and the same is Annexure 'A' and all the terms and conditions are very well enumerated in the said agreement. It is pertinent to mention here that the said contract of engagement i.e. Annexure-A is signed by both the parties on 18.08.2015 and therein in para no.3 deals with Duties of the Company wherein recorded that the opposite parties shall provide following services: a. Assess the client's education (academic and professional), professional skills/training and experience for general skilled migrant visa for Australia and advise the client about the Australian immigration laws. Before referring to the further clause, we like to glance aforesaid clause (a) firstly, as per this clause it is the duty of opposite party no.1 to assess academic and professional skills including experience for general skilled migrant visa for Australia and advice the consumer about the Australian immigration laws. In the instant case, the opposite parties had to firstly assess the education, academic and professional as well as professional skills of the complainant and then ask to the complainant to deposit the fees. It is necessary for the opposite parties to verify the skills of the complainant and to assess the qualification of any customer and also duty of the opposite parties to know about the Australian Immigration Laws if they are not well aware about these things then they are not able to provide this service and similarly in the present case, the opposite parties have not assessed the required qualification, academic and professional of the complainant which is clear from the letter of VETASSESS letter dated 16.12.2015 submitted by the opposite parties as Annexure-E, and the same is placed on the file by the complainant as Ex.C11. In this letter the complainant was advised, that he Required Skill Level and in addition applicants must have at least one year of post- qualification employment at an appropriate skill level, in addition to this complainant must have one year of post-qualification employment at an appropriate skill level completed in the last five years in a field which is highly relevant to the nominated occupation, If employment is not post-qualification, then three additional years of highly relevant employment are required. This letter shows that the opposite parties have not assessed the qualification of the complainant at the first instance when the complainant had approached opposite parties for discussion of his case and as such, the opposite parties have not complied its own duty as per above clause 'a'. b. Assist the client in preparation of his/her case for Australian immigration: We further find that it is the duty of the opposite parties, at the very first instance to assist the complainant in preparing of his case for Australian immigration, but there is no iota of evidence coming in reply, that assistance was provided by the opposite parties to the complainant for preparing his case for Australian immigration. d. Submit the complete case with supporting documentation and evidence alongwith the submission report to the processing visa office. Wherein, the opposite parties was required to submit the officials, complete in all respects case of the complainant, but the opposite parties have not alleged or pleaded in the written reply that they have ever submitted to the processing visa office the report of the complainant for PR of Australia. g. Clause 'G' which says that : Monitor the client's case throughout the processing period so as to ensure the issuance of a visa in a hassle free manner : Opposite parties agreed to issue Visa hassle free manner and for that purpose opposite parties should disclose and describe in the written reply, but there is nothing to that effect in the written reply.
16. Further referred to the Duties of the client ie., the complainant, we will discuss the preliminary jurisdiction which is to be complied by the complainant that he has to Attain sufficient knowledge of English in Reading, Writing, Listening and Speaking and take the IELTS test. Admittedly, in this case the complainant has cleared IELTS test by getting six bands in each module and so far the concern of PTE the same has been also cleared by the complainant and since this fact has not been controverted by the opposite parties by placing on the file any evidence, so it is admitted that the complainant has fully complied with the duty as enumerated in para no.5 of the agreement.
17. In the light of the above discussion, We find that there is a deficiency in service on the part of the opposite parties and also the clause 'a' of the agreement is not followed in any manner.
18. Further the duty and role of the complainant also comes under suspicious scan, because the allegations of the complainant as alleged in para no.5 of the complaint are that the VETASSESS agency declared the assessment result in 12/2015 but regarding that result i.e., complainant failed to get requisite points, and this fact was disclosed to the complainant in April, 2016. In reply to para no.5, the opposite parties alleged that regarding shortage of points have been explained to the complainant in 12/2015 but there is no mode of communication produced on the file by the opposite parties, so in the absence of any evidence we cannot accept that the intimation was given to the complainant or not? Rather there is a document available on the file that the result of assessment of point was declared on 16.12.2015 and copy of this letter is placed on the file by the opposite parties as Annexure 'E' alongwith this letter on the 2nd page having heading Skilled Migration Assessment shows that the complainant got 0.8 point in the year 01/2015 despite the fact that the complainant was not able to acquire points in the year 2015 and the opposite parties admittedly further got 2nd installment from the complainant on 23.12.2015 in the same month in which the result was declared. So intention and act of the opposite parties is not obedient towards the complainant rather it tantamount to negligence, deficiency in service and thus, we reach to the conclusion that opposite parties have miserably failed to provide agreed services to the complainant and thus, we reach to the conclusion that the complainant is entitled for the relief claimed.
19. As an upshot, the complaint of the complainant is partly accepted and opposite parties are directed to refund the payment of Rs.1,48,650/- to the complainant with interest @ 12% p.a. from the date of filing the complaint till its realization and further opposite parties are directed to pay compensation to the complainant for causing mental tension and harassment to the tune of Rs.10,000/- and litigation expenses of Rs.5,000/-. Compliance of the order be made within 30 days from the date of receipt of copy of this order Copies of the order be supplied to the parties free of cost as per Rules. Complaint could not be decided within stipulated period due to rush of work. File be indexed and consigned to the record room. Announced 08.03.2019 Harvimal Dogra Rajita Sareen Karnail Singh Member Member President