CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



FIRST APPEAL NO.1032 OF 2008 Date of filing : 25/07/2008

IN CONSUMER COMPLAINT NO.495/2004 Date of order : 04/03/2009

DISTRICT CONSUMER FORUM, MUMBAI SUBURBAN

@ MISC.APPLICATION NO.1430/2008



M/s.Sunrise Immigration Consultants (Pvt.) Ltd.

Sunrise Complex

S.C.O. 74-75, Sector 8C

Madhya marg, Chandigarh 160 018 ………..Appellant/org.O.P.no.2

v/s.

Mr.AnshvinderSingh

Represented by his father &

General power of Attorney

Mr.Jarnail Singh

301, Tondon apartments

Dr.Charat Singh Colony

Andheri Kurla Road, Andheri(E)

Mumbai 400 058 ………Respondent/org.complainant



Corum: Shri P.N.Kashalkar, Hon’ble Presiding Judicial Member

Smt.S.P.Lale, Hon’ble Member

Present : Ms.R.I.Bagdadi-Advocate for the appellant

Mr.U.B.Wavikar-Advocate for the Respondent.

O R D E R



Per Shri P.N.Kashalkar, Hon’ble Presiding Judicial Member

1. Aggrieved by the judgement and award passed by Mumbai Suburban District Consumer Forum, whereby while allowing the complaint partly, O.P.nos.1&2 have been jointly and severally directed to pay Rs.10,000/- and further pay compensation of Rs.50,000/- and cost of Rs.1000/- within one month, lest the said amount was to carry interest @ 12% p.a., the original O.P.no.2- M/s.Sunrise Immigration Consultants (Pvt.) Ltd. has filed this appeal challenging the said judgement and award. Facts to the extent material may be stated as under:-

2. One Mr.Anshvinder Singh resident of Andheri (East) alleged deficiency in service on the part of O.P.nos.1 & 2. According to complainant, he had hired services of O.P.no.1-M/s.Pearl Immigration Consultants to facilitate immigration to Australia for better prospect and employment. O.P.no.1 accordingly executed an Agreement on behalf of O.P.no.2- M/s.Sunrise Immigration Consultants (Pvt.) Ltd. with the complainant for total consideration of Rs.50,000/- and accepted Rs.10,000/- as an advance and balance was to be paid on delivery of visa. Complainant thereafter made requisite application with all the requirements and further deposited Rs.57,440/- equivalent to US dollars 1795 by demand draft dated 2/7/2003, but visa request was rejected on the ground that complainant was not possessing certificate of clear employment experience for about 18 months. Complainant’s grievance is that opponent did not make aware to him this condition and in spite of sufficient requisite employment experience, complainant lost opportunity and hence he claimed refund of Rs.9,21,240/- as detailed in the complaint along with interest @ 18% p.a. plus demanded compensation of Rs.1 lakhs for loss of future income, mental agony and stress and also demanded Rs.10,000/- as cost. Complainant filed affidavit and documents as per list.

3. O.Ps resisted the complaint by filing reply and challenged the maintainability of consumer dispute. It pleaded that Forum had no territorial jurisdiction and jurisdiction was restricted to Chandigadh as per contract entered into between the parties. Complainant had provided false and fabricated documents in respect of employment experience and therefore his visa request was turned down by Australian Emigration office. They pleaded that there is no deficiency in service on their part and prayed that complaint should be dismissed with cost. Reply was supported by an affidavit and documents.

4. Complainant filed rejoinder and on considering the affidavits and documents and on hearing rival Advocates, Forum below held that opponents failed to prove that the Forum had no territorial jurisdiction to entertain the present complaint. Forum below also held that complainant proved deficiency in service on the part of opponent and allowed the complaint passing impugned award. As such, original O.P.no.2 has filed this appeal.

5. We heard submissions of Ms.R.I.Bagdadi-Advocate for the appellant and Mr.U.B.Wavikar-Advocate for the Respondent.

6. We are finding that O.P.nos.1&2 had taken monies as Consultant to help respondent- Mr.Anshvinder Singh to procure visa from Australian Emigration office. Australian visa is not granted to any person unless such person is fit for employment in Australia. So naturally the Australian Government is giving visa to those persons, who have some past experience of the employment in India. Complainant had given certain documents and certain certificates and through M/s.Sunrise Immigration Consultants (Pvt.) Ltd.-O.P.no.2 had applied for employment and visa. Australian Government vide letter at page nos.46, 47 informed the complainant through M/s.Sunrise Immigration Consultants (Pvt.) Ltd. that Mr.Anshvinder Singh should provide certain information along with the application for visa, which naturally included copy of Skill Assessment Employment reference for the 4 years. Prior to filing of application for employment cum visa, police clearance certificate, etc. the complainant had given certain experience certificate, but it was found that complainant had not given, employment reference for the period of 4 years preceding the date of filing of the application and for this purpose, Australian Government held that his application was insufficient and could not be considered for visa as is clear from page nos.46 & 47 of the appeal paper book sent by Australian Government, Department of Immigration and Multicultural and Indigenous Affairs. Forum below placed blame on O.P.nos.1&2, because there was written contract entered into between complainant and O.P.no.1 on behalf of O.P.no.2 and Forum below found that the charges were taken by O.P.no.2 through O.P.no.1 from the complainant for making qualification assessment and Forum below found favour with the contention of the complainant that complainant was not told that immediately preceding 18 months from the date of application, applicant should have 12 months requisite employment or experience. Since this was not explained to the complainant and since this lacuna was not scrutinized or located by O.P.nos.1&2, Forum below held that O.Ps were guilty of deficiency in service and therefore, Forum below was pleased to allow the complaint and directed refund of Rs.10,000/- and awarded cost of Rs.50,000/- plus cost of Rs.1000/-.

7. We are finding that awarding of the compensation of Rs.50,000/- is something on the higher side. O.P.nos.1&2 were Consultants, whose job was to help complainant to procure visa from Australian Government. They had done everything, which was within their power. They had transmitted the application with certificates enclosed thereto to the Australian Government, but Australian Government found that the complainant was not having requisite experience for obtaining visa.

As per Agreement, duty of Attorney included …………

a) Assess the client’s qualifications for Australian permanent residence and advise the client accordingly;

b) Assist the client in the preparation of Australian Government application Form/s on the basis of genuine and authentic Certificates containing true, complete and correct information/details relating to Education, Experience, Age, etc. as supplied by the client,

c) Review and identify for submission, all required documents in support of the application supplied by the client, being genuine and authentic.

d) To complete Application and other Forms, from the information supplied in the Questionnaire and all documents as supplied by the client; to show the same to the client, get the these signed from the client/his or her spouse. Submit the application, duly completed and signed by the client/his or her spouse, and the supporting documentation along with the Attorney’s covering letter, to the processing Visa Office;

e) Prepare the client for the selection interview with the processing Visa Office;

f) Monitor the client’s application through out the processing so as to ensure the issuance of the appropriate permanent residence Visa in timely fashion;

g) Effect all additional written and/or verbal representations to the processing Visa Office and related Australia Government agencies as deemed necessary by the Attorney;

h) Faithfully advise the Client of the ongoing requirements by the Visa Office with respect to the Client’s application:



8. Term no.11 of the Contract clearly mentioned that in the event of client’s application being rejected by the Visa Office and the Attorney is unable to overturn such decision & save and except for a misrepresentation, fraud, medical or security inadmissibility, or the failure by the client to adhere to the terms and conditions of this Contract of Engagement, the Attorney undertakes to provide the full refund to the client of all fees paid by the client to the Attorney, excluding Rs.5000/- charged by the Attorney. Thus this term was clearly overlooked by the Forum below while awarding refund of Rs.10,000/- paid by the complainant and also imposing compensation of Rs.50,000/- besides cost of Rs.1000/-. The term is binding on both the parties and this term no.11 clearly covenanted that in the event of visa being rejected and attorney is unable to procure review of the said decision, the Attorney shall deduct Rs.5000/- as their fees and return whole of the amount paid by the client. Complainant in the instant case had paid only Rs.10,000/- to the O.P.nos.1&2. But Forum below directed refund of whole of the said amount contrary to the term mentioned in clause no.11 of the contract. Clause no.11 stipulated that except Rs.5000/- fees, rest of the amount shall be refunded in the event visa application is rejected by the Australian Government. Complainant admittedly paid only Rs.10,000/- and balance of Rs.40,000/- was payable on the delivery of visa. Since visa was rejected, complainant was entitled to get Rs.5000/- only out of the amount of Rs.10,000/- paid by the complainant to O.P.nos.1&2. Another Rs.5000/- was the fee of Attorney. It was in no case refundable, even if visa request was rejected. In the circumstances, Forum below clearly committed grave error of law in directing refund of Rs.10,000/- and compensation of Rs.50,000/- to the complainant on finding that visa application was rejected. Thus by allowing this appeal partly, refund of Rs.5000/- only will have to be directed quashing rest of the order. Hence the following order:-





ORDER

1. Appeal is partly allowed.

2. Impugned judgement and award passed by the District Consumer Forum is quashed and set aside and appellant is directed just to refund amount of Rs.5000/- to the complainant.

3. No order as to costs.

4. Misc. application stands disposed of.

5. Inform the parties accordingly.





(S.P.Lale) (P.N.Kashalkar)

Member Presiding Judicial Member