BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD                                        :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 207/2009 Filed on 11.08.2009

Dated: 15.01.2014

Complainant:

Shaji. B, S/o Bahuleyan, residing at Thekkevila Veedu, Kottoor, Kulathoor P.O, Thiruvananthapuram now residing at Cheenivila Veedu, Thrippadapuram, Kulathoor P.O, Thiruvananthapuram.

                                       (By adv. C.A. Nandakumar)

Opposite parties:

1. M/s World Wide Immigration Consultancy Services Ltd., Head office SCO 2415-16, Sector 22 C, Chandigarh-160 022.

1. The Branch Manager, Branch Office, World Wide Immigration Consultancy Services Ltd., Cyber House, Kuravankonam Junction, Kowdiar P.O, Thiruvananthapuram-695 003.

(By adv.  Vettoor S. Prakash)

This C.C having been heard on 27.12.2013, the Forum on 15.01.2014 delivered the following:

ORDER

SMT. LIJU B. NAIR : MEMBER

The 1^st opposite party is conducting immigration consultancy service preparation and submission of immigration case for permanent resident visa for their clients and their dependent family members to various countries.  The 2^nd opposite party is the branch office of the 1^st opposite party.  The complainant has executed a contract agreement with the 1^st opposite party for getting immigration service to Canada on 14.06.2004 vide file No. C03/314437/26681 under ‘gold special spot package’ at branch office at Pattom, Thiruvananthapuram and also entrusted all necessary documents for preparation and submission of papers for getting immigration to Canada as requested by the 1^st and 2^nd opposite parties.  As per the request of the 1^st and 2^nd opposite parties the complainant had remitted Rs. 25,000/- on 14.06.2004.  Again on 03.09.2004, the complainant has remitted Rs. 38,000/- as Visa processing.  Again on 21.08.2007 complainant had remitted Rs. 98,000/-vide receipt No. 213.  Thereafter complainant had enquired the progress of his immigration application vide file No. 26681.  Then on 26.05.2009, the Assistant Branch Manager of Thiruvananthapuram branch of the 1^st opposite party by name Anooj Mathai sent an e-mail to the complainant’s e-mail address informing that the money remitted on 21.08.2008 at the office of the 2^nd opposite party is not accounted in the company’s account and again demanded to pay an amount of Rs. 10,000/- 1600 US dollar.  It is against the principle of natural justice and specific violation of service agreement executed between the 1^st opposite party and the complainant.  The complainant has remitted Rs. 98,000/- (Rs. 12,250/- as Indian Money + 1960 U.S dollars) to the authorized signatory at the branch office, Thiruvananthapuram.  On 29.05.2009 the complainant has sent an advocate notice to the 1^st and 2^nd opposite parties.  The 2^nd opposite party has received the notice on 30.05.2009.  The 1^st opposite party has also received the notice on 02.06.2009.  Both of them neither accounted the amount in the company’s account nor sent any reply to the notice till this date.  The act of the 1^st and 2^nd opposite parties amounts to deficiency in service and unfair trade practice which caused huge damage and untold sufferings to the complainant.  The 1^st and 2^nd opposite parties are liable to repay Rs. 98,000/- and 18% interest.  They are also liable to pay compensation for the damages and difficulties suffered by the complainant also liable to pay cost of this complaint.

Opposite parties filed joint version as follows:  This Forum does not have the jurisdiction to deal with the present complaint because the complainant has agreed in clause 14 of agreement dated 14.06.2004 in which all the differences and disputes arising between the parties shall be referred to the Sole Arbitration of the Chief Executive Officer of the company at Chandigarh.  Thus, since this Forum does not have jurisdiction to deal with this complaint, the complaint is liable to be dismissed on this ground alone.  The case of the complainant was duly filed by the opposite parties and on 15.01.2005 the Canadian High Commission has allotted the complainant his file number.  Opposite parties have already performed their part of the contract by filing the case of the complainant before the Canadian High Commission which is being processed.  So much so the opposite parties have received a mail dated 07.11.2008 from the Canadian High Commission regarding submission of some more documents by the complainant which the complainant has failed to provide till date which can jeopardize the case of the complainant.  This opposite parties have forwarded the documents which were received by them from the complainant vide letter dated 02.02.2009 to the Canadian High Commission.  The present case is a case of non-payment of fee of the opposite parties by the complainant.  The complainant as per clause 4 of the contract was to pay Rs. 30,000/- as retainer fee and Rs. 10,000/- and US $ 1600 on the receipt of File No. from the Canadian High Commission after the filing of his case.  It has been alleged by the complainant that he has paid the entire fee to the Branch manager, Thiruvananthapuram namely Mr. Manoj Kumar in cash however no amount was deposited by Mr. Manoj Kumar in the account of the company and the amount paid by the complainant was misappropriated by Mr. Manoj Kumar regarding which a complaint was filed by the company against him.  The said complaint pending investigation before Senior Superintendent of Police, Mohali.  This opposite parties cannot be asked to pay an amount which was never received by them.  However this opposite parties are still providing the services to the complainant in spite of non- receipt of fees.    

Points for consideration are:-

1. Whether there is any deficiency in service on the part of the opposite party?
2. Reliefs and costs if any?

Complainant filed affidavit along with 10 documents which were marked as Exts. P1 to P10.  Opposite parties also filed affidavit and Exts. D1 to D6 were marked from their side.  Complainant was examined as PW1 and opposite party was examined as DW1.

Points (i) & (ii):- Complainant filed this complaint claiming refund of fees remitted by him which has not been credited to the account of the opposite parties.  Opposite parties also admits the transaction.  Their contention is that the complainant failed to provide certain documents requested by them.  But complainant challenges this statement by saying all the documents sought by the opposite parties are furnished before them.  They have not demanded any other document as alleged by them.  To substantiate their argument on this point, opposite parties failed to produce any documentary evidence.  So we can assume that all the relevant documents are filed before the opposite parties.

Another contention raised by the opposite party is that complainant failed to remit the fees in full.  So prove that he remitted the fees, complainant produced Ext. P1 original receipt dated 14.06.2004, Ext. P3 original receipt dated 21.08.2007.  His case is that after remitting all these amounts, he was again asked to remit Rs. 10,000/- Indian Money + 1600 US dollars as fees, which he paid vide Ext. P4.  Opposite parties’ contention is that this amount was misappropriated by 2^nd opposite party’s Branch Manager one Mr. Manoj Kumar at that time.  So that amount was not credited to the account of the company.  So they asked for further payment.  In the deposition of PW1, complainant clearly stays that he paid the entire amount as requested by the opposite party before the 2^nd opposite party.  To substantiate this argument he produced Exts. P1, P3 and P4.  These documents were not challenged by the opposite parties.  Likewise in the deposition of DW1 also he admits that there was misappropriation of money by the Branch Manager at that time in 2^nd opposite party’s office and they have filed a police complaint before the Senior Superintendent of Police, Mohali seeking investigation.  This point was challenged by the complainant by saying that if they intended to have a genuine investigation in this regard, then that petition was to be filed before the Museum police station, Thiruvananthapuram since this action took place here.  As per Ext. D5 dated 13.11.2009 that police complaint is seen filed before Senior Superintendent of Police, Mohali.  But what action is taken on that complaint is not mentioned anywhere by the opposite party.  So the veracity of that police complaint is to be doubted.  Moreover the said Manoj Kumar was an employee of the opposite parties.  He has been appointed by them and for the error committed by its employees, appointing authority is also liable.  Whatsoever be the fate of the police complaint, opposite parties cannot escape from their liability.  So they are bound to refund Rs. 98,000/- to the complainant.  The very purpose for which he remitted this amount was not fulfilled by the opposite parties.  So he is eligible for compensation also which we fix as Rs. 10,000/-.  Had it been with the complainant for these years and be in a bank, he might have getting interest.  So the complainant is eligible for interest also.

In the result, complaint is allowed.  Opposite parties are jointly and severally directed to pay the complainant Rs. 98,000/- with 6% interest from the date of filing this complaint along with Rs. 10,000/- as compensation and Rs. 5,000/- is ordered as costs.  This order is to be complied within a month of receipt of the same.  After this period, 12% interest is ordered on Rs. 98,000/- till the date of realization.          

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of January 2014.

Sd/-

LIJU B. NAIR                : MEMBER

                                                                   Sd/-

G. SIVAPRASAD                   : PRESIDENT

Sd/-

R. SATHI                      : MEMBER

jb     

C.C. No. 207/2009

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - Shaji. B

 II      COMPLAINANT’S DOCUMENTS:

P1     - Contract of Engagement.

P2     - Temporary fee receipt dated 14.06.2004 for Rs. 25,000/-.

P3     - Acknowledgement for the receipt of DD for Rs. 38,000/-.

P4     - Receipt dated 21.08.2007 issued by 1^st opposite party.

P5     - Copy of e-mail messages.

P6     - Copy of advocate notice dated 29.05.2009.

P7     - Postal receipts

P8     - Acknowledgement card.

P9     - Letter dated 23.07.2009 issued to Sri. Nandakumar, advocate.

P10   - Reply legal notice issued to complainant by opposite party.

III      OPPOSITE PARTY’S WITNESS:

          DW1 - K.K. Jitheesh

 IV     OPPOSITE PARTY’S DOCUMENTS:

          D1     - Copy of contract of engagement.

          D2     - Copy of letter dated 15.01.2005  issued Canadian High Commission

          D3     - Copy of e-mail message dated 07.11.2008.

          D4     - Copy of letter dated 02.02.09 issued to Canadian High Commission

          D5     - Copy of letter dated 13.11.2009 issued to S.S.P Mohali.

          D6     - Copy of reply legal notice issued to complainant by opposite party.

                                                                                                           Sd/-

PRESIDENT

jb