| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER Tuesday 28th day of November 2023 CC.447/2014 Complainant Arun Manohar.U, Puthiyotil house, Kovoor, Medical College (PO), Kozhikode- 673008. (By Adv.Smt. Rajani.C.K) Opposite Parties - Joy.P.V,
47C(7/556), Pandarathikkudiyil (HO), Chottanikkara,(PO), Kuriakad, Eranakulam. - George Vadakkel,
United Tours & Travels, 1610/R, KJS Complex, Opp. Tagore Centenary Hall, RC Road, Kozhikode -32 (By Adv. Sri.Manjeri S Sunder Raj and Adv. Sri. Harindran.P) - Ruben.K.Mathew,
S/o Mathew, Manakkat House, Kalamboor, Piravom(PO), Ernakulam dist. ORDER By Sri. P.C. PAULACHEN – PRESIDENT This is a complaint filed under Section 12 of the Consumer Protection Act, 1986. - The case of the complainant, in brief, is as follows:
The complainant is a B tech graduate. The first opposite party was running a travel agency by name M/s Lord’s Investment at Ravipuram, Kochi during the year 2012. The second opposite party was conducting a job consultancy cum recruiting centre at Kozhikode. - On seeing the advertisement made by the second opposite party that he was arranging employment visa to Canada, the complainant along with his father-in-law Mr. Janardhanan approached the second opposite party at his office at Kozhikode for getting arranged a visa to Canada to the complainant. At that time, the first and third opposite parties were also present in that office. The second opposite party introduced the first and third opposite parties to the complainant and told that all document works for arranging the visa were being done by the first and third opposite parties.
- An agreement was executed on 26/09/2012 between the first opposite party and the complainant. As per the agreement, the complainant had to pay a total sum of Rs. 5,50,000/- for arranging the visa. The said amount was to be paid in 3 instalments. The first instalment of Rs. 1,50,000/- to be paid at the time of selection after the interview, Rs. 1,50,000/- after getting the call letter and the balance Rs. 2,75,000/- after emigration approval/visa/work permit. On the date of the agreement, an amount of Rs. 1,50,000/- was paid to the first opposite party as the first instalment by way of demand draft for Rs. 1,40,000/- and cheque for Rs.10,000/-.
- When the complainant appeared before the opposite parties for interview, they directed him to do IELTS course and medical check-up. The complainant appeared for the IELTS examination and successfully completed the same. Medical examination was also conducted at the expense of the complainant. Later, the first opposite party informed the complainant that he has got a job offer from Ford Motor Company of Canada Ltd and asked to make payment of the second instalment. The first opposite party informed that he had incurred some extra expenses and demanded Rs. 1,82,000/- instead of Rs. 1,50,000/- towards the second instalment. So the father-in-law of the complainant paid Rs. 1,82,000/- in cash to the first opposite party. Thus a total amount of Rs. 3,32,000/- was paid.
- But after receiving the second instalment, the first opposite party started slipping from the agreement and did not respond to the phone calls of the complainant as well as his father-in-law. When they directly approached the first opposite party, he asked them to wait for some more time and promised that he would arrange visa or would refund the full amount. Finally on failure to arrange the visa, the first opposite party issued a cheque dated 23/04/2014 for Rs. 1,50,000/- in favour of the complainant. Another cheque dated 24/2/2014 for Rs. 1,82,000/- was issued in favour of Sri. Janardhanan. However, on presentation, the cheques were dishonoured and returned due to insufficiency of funds in the account maintained by the first opposite party whereupon Sri. Janardhanan has filed a complaint against the first opposite party under section 138 of the NI Act before the Additional Chief Judicial Magistrate’s (Economic Offences) Court, Ernakulam.
- The failure on the part of the opposite parties in arranging the visa amounts to deficiency of service. It is understood that the opposite parties have cheated several other persons also in the like manner. The complainant has suffered huge loss due to the deficiency of service of the opposite parties. Hence the complaint to direct the opposite parties to refund Rs. 1,50,000/- with interest and to pay compensation of Rs. 2,00,000/- for the mental agony and hard ship caused, Rs. 50,000/- spent by him for undergoing IELTS Course and medical check-up and Rs.20,000/- being the cost of the proceedings.
- The first and second opposite parties filed written version. The third opposite party was set ex-parte.
- The contentions of the first opposite party, in brief, is as follows; He was working in a travel agency at Eranakulam from 1993 to 2005. He is having acquaintance with the second opposite party, who is also running a travel agency at Kozhikode. From July 2005 onwards the first opposite party started a sub agency at Ernakulam. His sub agency was engaged in arranging air ticket, passport, visit visa stamping, attestation and emigration. His agency was not engaged in arranging job visa and he has no knowledge about arranging job visa. The third opposite party joined the nearby office in the year 2012 which is engaged in arranging job visa. The third opposite party decided to start an office of his own. The third opposite party made use of the office of the first opposite party for sending the first batch stating that he would start a new office soon. The first opposite party then informed the second opposite party about the arrangement of job visa by the third opposite party. The complainant, who has acquaintance with the second opposite party, came to know about the same and he contacted the complainant. The first opposite party asked the complainant to contact the third opposite party and if he was convinced, to come to his office. Accordingly, the complainant and his wife came to the office and discussed with the third opposite party and they were convinced. The agreement and the receipt of the amount paid were in the name of his office. As a security, a cheque for Rs. 1,50,000/- was also obtained from him. The cheque was issued on 26/09/2012 and not on 23/04/2014. Since the visa could not be arranged, the third opposite party told that he would refund the amount before 30/03/2013. In the meanwhile, another vacancy was reported to the complainant, for which, the complainant paid Rs. 46,000/- to the first opposite party. That amount was also lost. He refunded a sum of Rs. 14,000/- to the complainant in 2 instalments. The complainant had a loss of Rs. 1,82,000/-. The third opposite party absconded before 31/03/2013. On realising that the amount could not be realised from the third opposite party, the wife of the complainant contacted him and asked him to issue a fresh cheque for Rs. 1,82,000/-. Hence, he happened to issue a cheque for Rs. 1,82,000/-. Thus, the complainant came to be in possession of 2 cheques issued by him. They misused the cheques and filed criminal complaint. The allegation that the total amount involved is Rs. 3,32,000/- is not correct. He had no intention to cheat the complainant. His sub agency was closed in May 2014. He is in financial crisis. It is, therefore, prayed to dismiss the complaint.
- According to the second opposite party, no consumer dispute has arisen in the matter. It is true that he is carrying on a business in travel and tourism. He has no connection with the first and third opposite parties. As revealed from the complaint, all the transactions had been between the complainant and the first and third opposite parties directly. The second opposite party had not been paid anything by the complainant as consideration and he had not availed of any service of the second opposite party for any consideration. The second opposite party is an unnecessary party to the proceedings and he has not committed by himself or along with the other opposite parties any defective or deficient service. He is not a party to any act of cheating as alleged. The money claims raised are not maintainable as against the second opposite party. There is no cause of action for the complaint. None of the prayers is allowable. With the above contentions, the second opposite party prays for dismissal of the complaint.
- The points that arise for determination in this complaint are;
(1). Whether there was any unfair trade practice or deficiency of service on the part of the opposite parties, as alleged? (2). Reliefs and costs - The evidence in this case was recorded by our learned predecessors-in-office. The complainant filed affidavit and Ext A1 to A4 were marked. The first opposite party filed counter affidavit.
- No arguments were advanced before us in spite of granting ample opportunity and both the parties remained continuously absent.
- Point No. 1: The complainant has approached this Commission alleging unfair trade practice and deficiency of service on the part of the opposite parties as they failed to arrange job visa to the complainant to Canada or to refund the amount collected from him.
- The complainant has filed affidavit in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the agreement dated 26/09/2012 executed between the complainant and the first opposite party, Ext A2 is the copy of the cheque dated 23/04/2014, Ext A3 is the copy of the cheque return memo dated 14/05/2014 and Ext A4 is the copy of the confirmation receipt received from British Council for IELTS Course.
- On going by the written version of the first opposite party, it can be seen that he has admitted the receipt of Rs. 1,50,000/- from the complainant and also execution of Ext A1 and issuance of Ext A2 cheque for Rs. 1,50,000/- in favour of the complainant. But his only contention is that the actual culprit is the third opposite party who is now absconding and who has made use of his office for his fraudulent activities. But it may be noted that apart from the vague allegations made in the written version, there is absolutely nothing to indicate that either the second opposite party or the third opposite party has any connection with the transaction. There is absolutely nothing to indicate that the complainant had discussion with the second and third opposite parties regarding the payment of money and arrangement of visa. The payment was received by none other than the first opposite party. Nothing has been produced either by the complainant or by the first opposite party to show that the complainant had availed the service of the second and third opposite parties for arranging the job visa, for any consideration. On the other hand, from the admission of the first opposite party and the documents produced by the complainant, which are admitted by the first opposite party, would reveal that the transaction was between the complainant and the first opposite party.
- Admittedly, the job visa could not be arranged for the complainant. The money received from the complainant was not returned by the first opposite party. Ext A2 cheque on presentation was dishonoured and returned due to insufficiency of funds in the account maintained by the first opposite party. The act of the first opposite party in not arranging the visa after receiving the payment and his further conduct in not refunding the money amounts to unfair trade practice and deficiency of service. Undoubtedly, the complainant was put to huge monetary loss and mental agony due to the act of the first opposite party. The complainant is entitled to get refund of Rs. 1,50,000/- paid to the first opposite party. He is also entitled to get a reasonable amount as compensation for the mental agony and hardship suffered. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 1,00,000/- would be reasonable compensation in this regard. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings from the first opposite party. The second and third opposite parties are entitled to be exonerated.
- Point No. 2 :- In the light of the finding on the above point, the complaint is disposed of as follows;
a) CC.447/2014 is allowed in part. b) The first opposite party is hereby directed to refund Rs. 1,50,000/- to the complainant (Rupees one lakh fifty thousand only) with interest @ 6% per annum from the date of the complaint ie. 10/09/2014 till actual payment. c) The first opposite party is directed to pay a sum of Rs. 1,00,000/- (Rupees One lakh only) to the complainant as compensation for the mental agony and hardship suffered. d) The first opposite party is directed to pay a sum of Rs. 5,000/- (Rupees Five Thousand only) as cost of the proceedings to the complainant. e) The order shall be complied with within 30 days of the receipt of copy of this order. d) The opposite parties 2 and 3 are exonerated. Pronounced in open Commission on this, the 28th day of November, 2023. Date of Filing: 10/09/2014 Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER APPENDIX Exhibits for the Complainant : Ext A1 - Copy of the agreement dated 26/09/2012 executed between the complainant and the first opposite party. Ext A2 - Copy of the cheque dated 23/04/2014. Ext A3 - Copy of the cheque return memo dated 14/05/2014 Ext A4 - Copy of the confirmation receipt received from British Council for IELTS Course. Exhibits for the Opposite Party NIL Witnesses for the Complainant NIL Witnesses for the opposite parties NIL Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER True Copy, Sd/- Assistant Registrar. | |
