Date of Filing:03/01/2017

Date of Order:28/06/2022

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated:28^th DAY OF JUNE 2022

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI. Y.S. THAMMANNA, B.Sc, LL.B., MEMBER

SMT.SHARAVATHI S.M, B.A, LL.B., MEMBER

COMPLAINT NO.17/2017

Vs

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT.

1.     This Complaint is filed by the Complainant under Section 12 of Consumer Protection Act 1986, against the Opposite Party  (herein referred in short as OP) alleging the deficiency in service in not providing sufficient opportunity for him to seek suitable job and for refund of the amount paid with interest, travelling expenses, damages compensation for mental agony, cheating, misrepresenting and litigation expenses in all Rs.11,60,588/- from OP and for such other reliefs as this Hon’ble Forum deems fit. 

2.      The brief facts of the complaint are that: the Complainant is an engineer / medical engineer and also done his M.Sc in applied physics – instrumentation engineering and also a post graduate in medical instrumentation technology under the given condition he would get a job fetching him a salary of Rs.1,05,000/- per month. Op is a job placement company. The members of the OP made desperate efforts to influence the complaint to become a member of the OP to get the services. OP is a business cum recruitment model.  During July 2014 he visited the office of OP and after deliberation and persuasion from OP he was induced and incited and induced beyond reasonable rational decision making power by the overwhelming  advertisements and promotional skills and hence he paid Rs.1,64,399/- and became obtained membership plan cum contract for guaranteed placement in a well reputed MNC.  One Mr Kumar of OP who is the recruitment head also induced him to become the member so that he can get a job placement in reputed MNC such as APPLE INC. Though the complainant expressed his inability to afford such a huge amount OP induced and influenced him to take bank loan so that it could be paid in one or two months salary from his new job. He was mentally forced to make the payment and signup the documents, on the assurance of job placement in well-known reputed MNS with lucrative salary.  He arranged the funds and also obtained loan by paying interest at 11.5% per annum to pay the fee to the OP. 

3.     It is further contended that just to prepare CV (Curriculum Vitae) OP took 7 months. Though Op had no experience in medical field he tried to conduct trial interviews unsuccessfully with him. OP also misrepresented on many occasions that he attended many interviews on his behalf in his name. When the same was confronted regarding misrepresentation OP demanded to go through the agreement signed by him only to cover their mistakes. 

4.     OP has falsely claimed to be well known recruiter in the field of medical engineering whereas they bought him some job interviews  from the companies which were not at all related to the complainant’s field of education and expertise. 

5.     It is further contended that, there were several falsified interviews to the complainant.   He waited patiently till April 26 and an ultimately he approached the Op as to the updates but OP threshold them for to referring to the agreements so as to suppress the complainant from questioning the irregularities and incompetence and deficiency of service on the part of OP. They used to divert his attention and threatened to take action to recover penalty of Rs.25 lakhs if the complainant goes against the company rules and regulations in order to cover up their inefficiencies and incompetency in providing and arranging for suitable job opportunities. 

6.     The said Mr.Kumar ensured placement in a good company and advised him to resign the job which he was doing earlier which was getting him Rs.1,45,000/- p/m as salary. Since then he is running from pillar to post in search of a new job.   He waited for 21 months after getting enrolled as a membership plan cum contract with OP with a fond hope of getting a great job.  He has to face all sorts of financial problems as he left the job which was in hand and the OP did not provide him a suitable job. Several email correspondences were made and further OP is a fraudulent company who sends email to different job seekers and in the habit of attending interviews on their behalf by impersonating them and attending interview over phone. OP did not have any knowledge about the qualification of the complainant. OP’s client to which requirement of job is req1uired were not matching to the qualification and experience of the complainant. He has been put to lot of mental agony and his reputation has been spoiled  and he has to blame himself and at self-pity for choosing a wrong job placement company such as OP. He served notice on 22.11.2016 to the OP which was not claimed and sent to the sender. The cause of action for the complaint arose on July 2014 when he became the member of OP for seeking job opportunities by paying Rs.1,64,399/- through his credit card on 21.11.2016, and when he issued a legal notice which was neither complied nor complied.

7.     Upon the service of notice, OP appeared before the forum and filed detailed statement of objection/version and contended that the complaint is frivolous arbitrary in contravention of the agreement entered to with the complainant and hence liable to be dismissed.  OP is a proprietor ship company involved in research and development in field of human resource management. 

8.     It is not a recruitment agency or job placement company as claimed by the complainant, whereas, it caters to exclusively senior management level job aspirants. Depending upon the potential and market demands and it assists the member candidate to reach the best possible company suited to their skill and work experience. They process right from orientation till placement is transparent and done with atmost care with the approval of the candidate to ensure them the possible opportunities. 

9.     It has denied the allegations made in each and every para of the complaint. Further it has admitted the payment of the amount and the complainant’s education qualification and also becoming member, under membership plan cum contract. Complainant only paid the amount of Rs.1,64,399/- towards life time membership and processing fee which was not refundable. They were in the process of taking premises 182 to ground floor, 16^th cross, Hongasandra, MICO layout, Begur to which the complainant sent a legal notice. Since they had not occupied the said premises in full, as on the date of notice, complainant could not have sent the notice to the said address. It is contended that there is no cause of action to file this complaint and the complaint filed is hopelessly barred by limitation as admitted by complainant himself which is violation of 24A of the Consumer Protection Act and the limitation already expires on 29.07.2016. It has denied the allegation that they induced and cheated the complainant to become a membership plan cum contract.  So far the complainant did not take any legal action against it in case he had been cheated, induced and misrepresented. He is not an ordinary uneducated man. Out of frustration due to unemployment and to outburst his frustration, he has made false and frivolous allegation. There is no deficiency in service or unfair trade practice on their behalf.

10.   It is further contended that without prejudice to the above the complainant himself impressed by their service got admitted as a member of OP seeking placement opportunities after he visited the office premises and after going for a short demonstration cum orient session. He was also told to think over the same several time.  Complainant himself was very keen to become member and also informed the details of procedure and practice agreeing to terms and conditions rules and regulation and upon going through the literature of the op and accepted the same made payment towards the same i.e. a sum of Rs.1,42,398.54 and Rs.17,600/- as service tax by way of credit card and Rs.4,400/- as card swiping charges in all Rs.164,399/- on 30.07.2014. At no point of time the complainant was subjected to any sort of coercion undue influence, misrepresentation and threat. Out of his free will became the member of the OP. 

11.   They have not given any guarantee that he will get a placement.  Only their job is to guide properly regarding the employment opportunities and provide him placement assistance and at no point of time they assured and guaranteed placement in reputed MNC’s. It is further contended that at the time of enrolment itself, complainant was informed and the complainant understood the working of the OP regarding the process of preliminary screening, development of CV and its modification, company branding leading up to actual interview and as to how the candidate involvement in the interview. Complainant was fully aware of these activities and OP used to consult the complainant every now and then regarding this profile and after getting his approval only, they moved for recommending for an interview.

12.   It is further contended that they notified complainant the availability of an opening in the company namely UBQ and only after getting approval of the complainant and satisfying itself as to the suitability of the complainant to the said job profile they moved for an interview in the said company which was well within the knowledge of the complainant. Whereas complainant’s started behave adamantly with OP and started confusion and also resorted to abusive language in threatening language and making false and baseless allegations. Hence OP could not materialize an opportunity in favour of the complainant in the said interview.

13.   Further it is contended that, the fee received from the complainant is a one time fee for life membership and also to maintain his data base and further it is a nonrefundable amount.  He was also informed that he shall not indulge in any detrimental activities to malign  the name of the OP and if found engaged in such an activity, he will be black listed, and liable to pay Rs.25,00,000/- as deterrent in engaging such activities.  Due to the slanderous accusation made by the complainant, the OP company warned the complainant to impose penalty and black list him if he continues the same. 

14.   It has denied the allegation that it has misrepresented and impersonated the complainant in many interviews as contended in the compliant which is only with an intention to malign the image of the OP.  Only to cover-up the in adequacy   for the job and to seek compensation from the OP, complainant has built up a story of false allegations against OP and further by denying all the other allegations made in the complaint against it, prayed to dismiss the complaint.

15.   In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

16.   Our answers to the above points are:-

POINT NO.1 & 2 :    PARTLY IN THE AFFIRMATIVE.

                                For the following.

REASONS

POINT No.1:-

17.   On perusal of the complaint, version, documents and evidences of both side  it is undisputed that complaint has done  medical engineering and master degree in applied physics and instrumentation Engineering and also has  post graduate diploma in medical instrumentation Technology.  He was  searching for job and approached the OP as the OP company is a job placement company.  Further OP assured that it will arrange a job for  complainant which would be fetching 1.5 lakhs salary per month. Accordingly complainant paid Rs.1,64,399/- towards fee for enrollment of his name with the OP company. Despite receiving  such huge amount from the complainant  OP company did not make any effort in providing job to the complainant and also OP does not seem to have any experience  or knowledge of employments in the medical field as such he tried to conduct trial interview unsuccessfully with the complainant. Further, complainant submits that OP brought job interviews from companies which were not at all related to the complainant’s field of expertise which was a deviation from the actual given description. 

18.   On the contrary, OP has denied all the allegations of Complainant and contended that if really the complainant found that the OP had intention to defraud him  from the beginning of the contract,  the complainant  must   explain as to he did not pursue for legal remedy against the OP at the earliest stage.

19.   It is contended by OP that, since 2014 complainant has attended several  interviews arranged by the OP’s  institution. But only after 2017, he felt that he has  attended several falsified interviews after being enrolled  with membership plan-cum-contract with the OP company with a hope of  great job.  Being  a student with a master’s degree has taken   such long 3 years to realize that the interviews which he was faced arranged that OP did  not fit for  his educational qualification and expertise. Education qualification alone cannot be the criteria for selection in an interview, it is just a tool to qualify for the interview.

20.   Further complainant has alleged that in one instance one employee of the OP party by name Kumar had impersonated the complainant by attending the interview on phone, the interviewing company when contacted the complainant confronted him for the OP’s impersonation causing him a lot of embarrassment and blacklisting the complainant. To substantiate this statement, complainant has not filed any proof  for the same  and  it also not specified the date on which the incident occurred, if complainant is actually embarrassed  due to impersonation, the complainant could have filed a criminal complaint against OP on the ground of impersonation.  But complainant did not do so,  mere giving statement does  not make any effect on the case.

21.   Complainant has alleged that the OP employees put influence on the complainant to take up recourses such as to obtain bank loan and also  forced to make the demanded payment to become member of OP company and got  signed a bunch of  papers  from the complainant deeming it  necessary to move the process with great assurances.  But  even after lapse of 7 months OP did not complete the process of preparing complainant‘s CV., Since then he is running from pillar to post in search of a new job and has patiently waited for a month and on April 26 complainant through email has approached OP as to updates, but OP neither made any arrangements for new job nor processed the CV to the  high profiled companies.

22.   Further OP’s have a practice of replying to the complainant as to refer back the agreement he signed so as to threaten the complainant from questioning about OP’s irregularity and incompetency  in the field of  medical engineering.  On the other hand OP denies afore said all allegations of complainant and in return, he submits that complaint being impressed by the services offered by OP and after demonstration/orientation session complainant  got himself  enrolled immediately as a member despite being told by the OP to take his time to think over the same. Further, complainant studied the  terms and conditions, rules  and regulations and other literature of the OP and acknowledge the same and agreeing to abide by their procedures, thereafter complainant paid Rs.1,42,398.54 along with service Tax of Rs.17,600.46 by way of credit card  and also incurred credit card swiping charges of Rs.4,400/-  for which, OP issued an invoice for the amount of Rs.1,64,399/- on 30.7.2017.

23.   It is the specific case of the complaint that when he demanded for refund from OP, he was always diverted to look in to the SLA agreements and was threatened that they would put his profile on hold from submitting to different companies and also threatened to blacklist him in their company  and would penalize him for Rs.25,00,000/- for going against the company rules and regulations, OP has given reply that at the time of enrollment itself, it was made abundantly clear to the complainant that the fee paid by him is a one- time fee for life membership and database maintenance, and that this fee is non-refundable.  Further, it was also explained to the complainant that once he has enrolled, the complainant shall not indulge in any activities detrimental to the public image or maligning the name of the OP and if found to be engaged in any such activities, he shall be  liable to be blacklisted by the OP and shall also be liable to penalty to the tune of Rs.25,00,000/-as detrimental to engage in such activities.  However due to the slanderous accusations made by the complainant, he was warned by the OP that he may be imposed with penalty and be blacklisted if he continues to use such threatening language and make false allegation against the OP .

24.   As could be seen form allegations and counter claims of both parties, that some dispute arosen between the parties, it is clear that, OP received Rs.1,64,399/- towards one time fee for life membership and database maintenance and with an assurance of providing service for life time and also there is a condition that fee once paid is non-refundable. If this is taken in to consideration,  the OP is ready to provide service for life time and at the same time complainant do not want to continue with the service of OP.

25.   In the email correspondences dated 07.05.2016 the complainant has raised many questions for which on 16.05.2016 OP has replied with other information that “please note that CH-ACP intends to extend complete support and is confident to provide with a stable satisfying job provided the agreement and expectations mutual signed is honoured and any deviation and the same will leave us with no option then to consider the same as breach of contract.”

26.   When this is taken into consideration along with other email correspondences it becomes clear that one way or the other OP has coerced a threat that they will take action against him for breach of contract.   It is to be noted here that the complainant was made to put a signature on the dotted lines to the agreement prepared by the OP. The Hon’ble Supreme Court of India has time and again has held that the person who is in the upper hand has always an advantage to put the terms and condition in the agreement to his favour.  In view of this the agreement cannot be held as a balanced one whereas it is one sided one. Inspite of it, the complainant has used the services of OP for about 3 years and afterwards not satisfied with the same wanted to discontinue the services.

27.   It is the duty of the OP to provide an opportunity to get interviews or leads befitting to her educational qualification and job need of the complainant or the seekers of the job.  Merely providing some useless leads or making arrangements for an interview where the requirement of the job was not at all suitable to the complainant or the job seeker qualification and expertise definitely amounts to deficiency in service.

28.   Inspite of it, the complainant attended many interviews but could not get selected for the reasons best known to him and to the interviewer. In view of this since the complainant has availed services for about 3 years and do not want to proceed with the further services for life time as membership is for life time member, we deem it proper to order the OP to refund 50% out of the amount i.e. Rs.1,64,399/-, it has received from the complainant i.e a sum of Rs.82,199/- along with interest at 12% per annum from the date of filing of this complaint i.e. 03.01.2017 till payment of the entire amount. OP has contended that the complaint filed is barred by limitation under Section 27-A of Consumer Protection Act. To that effect has also filed many citations. We have gone through the same.  The same is not applicable to the present facts and circumstances of the case. As per the contention of the OP, the membership is for life time and it has to store the data base of complaint for ever and hence complaint has a continuous cause of action to file the complaint as long as he continue to be the member of the OP. Hence the contention that the complaint suffers from limitation cannot be accepted. Hence we answer POINT NO.1 AND 2 PARTLY IN THE AFFIRMATIVE and we are not intending to award any compensation for mental agony or hardship and also in respect of the litigation expenses and we pass the following:

ORDER

1. The complaint is allowed in part.
2. OP  i.e. Caliber Hunt A Candidate Portal represented authorized signatory is hereby directed to pay a sum of Rs.82,199/- along with interest at 12% per annum from the date of filing of this complaint i.e. 03.01.2017 till payment of the entire amount.
3. OP is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.

4. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 28^TH DAY OF JUNE 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Payment Invoice.

Ex P2: Copy of the Acceptance of terms and conditions, Rules and Regulations, legal proceedings.

Ex P3: Copy of the Introduction to CHACP Interaction support system.

Ex P4: Copy of the Work pattern followed by CH-ACP.

Ex P5: Copy of the CH-ACP Features work overview.

Ex P6: Copy of the CH-ACP client understanding approval.

Ex P7: Copy of the Citi bank transaction payment made towards OP.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Githu Marin Varghese @ Anju, Proprietor/Head of operations of OP

Copies of Documents produced on behalf of Opposite Party/s

-Nil-

MEMBER         MEMBER       PRESIDENT

RAK*