Bangalore Urban 3rd Addl. District Consumer Disputes Redressal Forum
No.8, 6th Floor, Sahakara Bhavan, Cunningham Road, Bangalore-560 052.
Complaint Case No. CC/10/1900
1. Vivek Vishnukumar Joshi
No.446, II Floor-S1, 9th Cross, Telecom Layout, Jakkur Post, Bangalore-560 064.
BEFORE:
HONORABLE T. Rajashekharaiah PRESIDENT
HONORABLE Dr. Subhashini Member
HONORABLE H.M.SHIVALINGAPPA Member
PRESENT:
ORDER
BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE – 560 052.
DATED THIS THE 30th DAY OF MARCH 2011
CONSUMER COMPLAINT NO.1900/2010
PRESENT:
Sri T. Rajashekharaiah, B.A. L.L.B.,
PRESIDENT
Sri. H.M.Shivalingappa, B.Sc., LL.B.,
MEMBER
Smt. Dr. Subhashini, M.B.B.S.,
MEMBER
COMPLAINANT -
Vivek Vishnukumar Joshi,
No.446, II Floor-S1, 9th Cross,
Telecom Layout, Jakkur Post,
Bangalore-560 064.
V/S
OPPOSITE PARTY -
Branch Manager,
WWICS Ltd.,
“Krishvi”, No.2, 1st Floor, Domlur,
Airport Road, Bangalore-560 071.
ORDER
1. This Complaint was filed on 13.08.2010 under the provisions of the Consumer Protection Act, 1986. The Complaint in brief is as hereunder: The Complainant is an IT professional and working with IBM India Private Limited under designation of Senior System Engineer. The Complainant submits he availed immigration service for Canada from WWICS on 21.08.2008 and they were supposed to do the complete procedure for his immigration to Canada including post landing services i.e. pick up from Airport in Canada provide accommodation at subsidized rate and search for a job. The Complainant had availed gold upfront package from them. The Complainant submits that he had paid WWICS the following amount as Professional Fee Rs.50,000/- and US$ 1300 and Demand Draft for Rs.22,340/- for Canadian High Commission (refunded by Canadian High Commission). The total amount paid to WWICS Rs.1,33,450/-.
2. The Complainant submits that the Opposite Party had promised him that the Canadian Immigration procedure will happen within 6 to 12 months, but the Complainant is still in Bangalore. The Complainant submits that it has been around 23 months now and he has also got information from WWICS in the month of July/August 2009 that the Canadian High Commission rules have changed and that the Complainant is not eligible for immigration to Canada. The Opposite Party has been forcing the Complainant to apply for immigration to Australia by paying additional fee of Rs.30,000/-. The Complainant submits since he was not interested in applying for Australian immigration, he asked for the refund of the money paid. But so far, the Opposite Party has not refunded the money paid by him.
3. The Complainant submits that he received refund from Canadian High Commission fee on 14.2.2010, but the Opposite Party has not refunded the fee paid by the Complainant.
4. The Complainant further submits he has suffered both physical and mental harassment because the Opposite Party has cheated him. The Complainant prays that the Opposite Party be ordered to pay him the total amount of Rs.3,55,827.01/- of which the principal amount is Rs.1,10,019.86/- and the interest at 18% p.a. is Rs.39,607.15/-, transport charges of Rs.6,000/-, Consumer Complaint fee of Rs.200 and compensation of Rs.2,00,000/-. Together with the Complaint, the Complainant has filed several photocopies of documents.
5. The Opposite Party has filed their version on 25.10.2010. The Opposite Party submits that the Complaint is not maintainable in view of the Clause-11 (a) of the Contract of Engagement. As per that Clause, it was agreed between the parties that the Opposite Party will not refund any fee incase there is change in immigration rules. Clause-11 (a) reads as follows:
“The company will not refund any of the total fees and shall be entitled for full payment if :-
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 country, changes in Immigration Rules and/or any other reasons.”
The Opposite Party submits that the Canadian Immigration Authorities on 28.11.2008 changed the immigration rules from a back date i.e.27.2.2008 and introduced a Priority Occupation List which specified that only applicants who have an arranged employment or who are legally residing in Canada for at least one year as a temporary foreign worker or an international student or who have work experience in the listed occupations are eligible to be processed in the Federal skilled worker class. Since the Complainant falls under the same time frame and the occupation of the Complainant on the basis of which his immigration case filed was also not in the 38 priority occupation list, his case was returned back by the Canadian High Commission along with cheque. This cheque has been encashed by the Complainant. The Opposite Party submits that they have performed their part of the contract by filing the case of the Complainant before the Canadian High Commission.
6. The Opposite Party further submits that the Complainant had entered into another contract of Engagement with M/s Global Strategic Business Consultancy (GSBC), Dubai. The Complainant has paid an amount of US $ 500 to M/s GSBC. Under Clause 10 (a) of the contract entered by the Complainant with M/s GSBC, there will be no refund of any fee incase there is change in immigration rules. The Opposite Party submits that the present Complaint is liable to be dismissed on the ground of non-joinder of necessary parties as the Complainant has not impleaded M/s GSBC, Dubai.
7. The Opposite Party contends that this Complaint is not maintainable for want of jurisdiction. The Clause 17 of the contract states that the Complainant will forgo his right to initiate any legal proceedings against the company except at Chandigarh. The Opposite Party submits that this Hon’ble Forum at Bangalore does not have the jurisdiction to deal with the present Complaint. The Clause-17 of the agreements states that all the differences and disputes arising between the parties shall be referred to the sole Arbitration of Vice President (Finance) of the company.
8. The Opposite Party submits that there is no deficiency in service, nor any undue harassment has been caused to the Complainant. The Complainant is not entitled to recover any amount as mentioned. Hence, this Complaint is liable to be dismissed.
9. Both the parties have filed their affidavit by way of evidence. At the end, this Forum heard on merits.
10. In the circumstances, the following points do arise for our consideration and decision and they are:
(i) Whether the Complaint is bad for non-joinder of necessary party?
(ii) Whether there is jurisdiction to maintain this Complaint?
(iii) Whether the Complainant has established the alleged deficiency of service by the Opposite Party?
(iv) If so, to what relief the Complainant is entitled?
11. Our Findings to these points are as hereunder:
i) Negative
ii) Affirmative
iii) Affirmative
iv) As per final order.
R E A S O N S
12. POINT NO.1:- The Opposite Party has contended that this case be dismissed for non-joinder of necessary party. According to the Opposite Party, the Complainant has paid US $ 500 to M/s GSBC, Dubai, but the Complainant has not made M/s GSBC, Dubai as a party and now he cannot ask for refund of US $ 500 from the Opposite Party. The Complainant has submitted that M/s GSBC is a branch of the Opposite Party situated in Dubai and hence, he does not have to make a separate Complaint against the Dubai Branch. The money was collected by WWICS Ltd., situated in Bangalore, India on behalf of the Dubai Branch. From receipt produced by the Complainant, it is seen that the payments have been done by the Complainant through the Opposite Party. Hence, the question of non-joinder of M/s GSBC as a party does not arise.
13. POINT NO.2: The Opposite Party has taken the contention that according to the Clause-17 of the contract, all the differences and disputes arising between the parties shall be referred to the sole Arbitration of Vice President (Finance) of the company and that this Hon’ble Forum at Bangalore does not have jurisdiction to deal with the present Complaint. This contention of the Opposite Party is not acceptable because section 3 of the Consumer Protection Act, 1986 will have over riding effect and it will be in addition to the provisions of any other law for the time being in force. Hence even though there is an arbitration clause, still the provisions of the Consumer Protection Act, 1986 will be applicable as it is special statute intended to protect the consumers. This act is in addition to any other law for the time being in force. Hence, just because there is provision under the arbitration Act, that does not deprive the Complainant’s rights under the Consumer Protection Act, 1986. Hence, this contention is not acceptable. Admittedly, the transaction has taken place at Bangalore and the amount has been paid to the Opposite Party at Bangalore where he has got his branch office. Hence, the courts at Bangalore will have jurisdiction to try the dispute and section 3 of the Arbitration Act protects the right of the consumer and permits the consumer to file the dispute before the Consumer Forums at Bangalore. There is no merit in the contention that this Forum has no jurisdiction. Hence, this point is held against the Opposite Party.
14. POINT NO.3 & 4: It is an admitted fact that the Complainant has approached the Opposite Party to arrange for immigration to Canada and the Opposite Party has agreed for the same and he has also received the amount which the Complainant alleged to have been paid. The main contention of the Opposite Party is that he has performed his part of the contract by filing the case of the Complainant before the Canadian High Commission and subsequently, the Canadian Immigration Authorities changed the Immigration Rules on 28.11.2008, with effect from 27.2.2008 and introduced a Priority Occupation List. Because of it, the Complainant was not qualified and his case could not be considered for immigration to Canada and because of it, the concerned authorities have returned the immigration fee. In this way, the Opposite Party has performed his part of the agreement and the failure of the purpose was due to change in the immigration laws and he could not be held liable for it. In our opinion, this contention is not acceptable for the reason that under Annexure-R1, there is reference about the availability of alternative means to immigrate to Canada. Ex-R1 is the letter produced by the Opposite Party wherein the Centralized Intake Office of Sydney has informed the Complainant that his present case is not considered for immigration. However it further states as follows:
There are many ways to immigrate to Canada. Although you have not satisfied the requirements to apply under the Federal Skilled Worker Class, you may qualify under another category. To learn more http://www.cic.gc.ca/english/immigrate/index.asp.
The contents of the above letter go to show that there are many ways to immigrate to Canada. Hence, if the case of the Complainant was not satisfying the requirements under the particular group, he may qualify under any another category. Hence, it was for the Opposite Party to verify from the immigration office or through the above website and find out what was the alternate means to file the case of the Complainant before Canadian High Commission for consideration to immigrate to Canada. It is not the case of the Opposite Party that the case of the Complainant could not be filed under any other alternative category. It is not his case that the Complainant tried to put the case of the Complainant under any alternative category and for that also, the immigration authorities did not agree. In this way, there were several options open to the Opposite Party to suggest the name of the Complainant for being considered for immigration to Canada and the Opposite Party has not made any such effort. It is seen that a sum of Rs.50,000/- has been paid as professional fee to the Opposite Party to assists the Complainant in getting immigration to Canada. Hence, it was for the Opposite Party to find out all the options available to the Complainant and assist him in meeting this object. But the Opposite Party has failed in making any such sincere and serious effort. Hence, the latches are on the side of the Opposite Party and because of it, his service to the Complainant is deficient.
15. The Opposite Party contends that under the agreement he is not liable to refund the amount, if it becomes impossible to meet the object due to changes in the immigration rules. In our opinion, this contention is not acceptable. Merely because there was change in the immigration rules, it is not impossible to meet the object of the agreement as alternative methods will be available to meet that object as discussed above. When the Opposite Party has not availed of availability of such alternative methods, he cannot take protection under the said clause stating that it has become impossible to meet the object. Hence, this contention is prime-facie not acceptable.
16. The Complainant has paid US $ 1300 as professional fee (post landing fee). It is seen that the Opposite Party himself agreed to refund part of this amount as pleaded in Para 10 of the Version. At Para 10, he had stated that as the Complainant was asking for refunding of the fee paid by him, as a goodwill gesture, the Opposite Party agreed to refund US $ 900. This shows that the Opposite Party himself was agreeable to refund part of the amount and even that was not done. In the E-mail correspondence between the parties also, there is reference about his offer by the Opposite Party to refund US$ 900. In this way, the Opposite Party himself was ready to repay US$ 900 and even for that, he is opposing in this petition and in our opinion, that is not called for. When the Opposite Party has under taken to complete the procedure for immigration of the Complainant to Canada and when he has failed to do so, it ought to be held that there is deficiency in service. It may be that he made effort partly, but he has failed. But for that, the Complainant cannot be blamed. The professional fee of Rs.50,000/- is paid for meeting the object of securing immigration to the Complainant. When that is not done by the Opposite Party, even though it was possible, as observed above, we are of the opinion that there is deficiency in service and the Opposite Party is liable to refund this professional fee in full. As he himself has agreed to refund part of the post landing fee of US$900, there is no reason to refuse to refund the balance amount of US$400 relating to it. The question of providing service of post landing will arise after the Complainant is permitted to immigrate to Canada and after he actually lands at Canada. When the Complainant could not reach Canada, the Opposite Party has not spent anything for making any post landing arrangements. Hence, there is no good reason for the Opposite Party not to agree to refund the full post landing fee of US$ 1300. Hence, we are of the opinion that the Opposite Party is liable to refund this amount also. Hence, we hold that there is deficiency in service and the Opposite Party is liable to refund the amount paid by the Complainant i.e.Rs.1,10,019/-. Hence, we proceed to pass the following:
O R D E R
The Complaint is allowed. It is held that there is deficiency in service. The Opposite Party is directed to refund Rs.1,10,000/- (Rupees one lakh ten thousand only) to the Complainant with interest at 12% p.a. from 21.08.2008, until actual payment. The Opposite Party shall be liable to pay Rs.5,000/- (Rupees five thousand only) to the Complainant as costs of this litigation. The Opposite Party is granted 30 days time from this date to comply this Order.
This Order is pronounced on this the 30th day of March 2011.
Dr. SUBHASHINI H.M.SHIVALINGAPPA T. RAJASHEKHARAIAH
MEMBER MEMBER PRESIDENT
[HONORABLE T. Rajashekharaiah]
PRESIDENT
[HONORABLE Dr. Subhashini]
Member
[HONORABLE H.M.SHIVALINGAPPA]
Member