Chandigarh

StateCommission

A/47/2016

Genesis Immigration - Complainant(s)

Versus

Sarita Kinger - Opp.Party(s)

Vertika H Singh, Adv.

08 Feb 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	47 of 2016
Date of Institution	04.02.2016
Date of Decision	08.02.2016

1.        Genesis Immigration and Education, S.C.O. 21, Level-2 Sector 17-E, Chandigarh 160017, through its Managing Director.

2.        Deepak Joshi, R/o H. No. 235, Sector 11/A, Chandigarh, U.T., (Director of Genesis Immigration and Education).

3.        Vikas Mahajan as an appointed employee of Genesis Immigration and Education, S.C.O. 21, Level-2, Sector 17-E, Chandigarh 160017.

                                …..Appellants/Opposite Parties.

                                Versus

1. Sarita Kinger w/o Tarun Kinger, Permanent resident of House No.1184, Sector 67, Tehsil and District Mohali, Punjab -160062.
2. Tarun Kinger S/o Devi Dayal Kinger, Permanent resident of House No.1184, Sector 67, Tehsil and District Mohali, Punjab-160062.

.…..Respondents/Complainants.

 

BEFORE:    JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

 

Argued by:

 

Mrs. Vertika H.Singh, Advocate for the appellants

 

PER PADMA PANDEY, MEMBER

              This appeal has been filed by the Opposite Parties, against the order dated 28.12.2015, rendered by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short the Forum only), vide which, it partly allowed Consumer Complaint No.252 of 2015, filed by the complainants, with the following directions: -

“11.     In view of the above discussion, we are of the opinion that the present complaint should succeed. The same is accordingly, partly allowed. The Opposite Parties are, jointly and severally, directed:-

[a]    To refund 810$(equivalent value in rupees, on the date of filing of the complaint) to the Complainants paid towards processing fee to VETASSES.

 [b]    To pay Rs.25,000/- on account of deficiency in service and causing mental and physical harassment to the Complainants;

 [c]    To pay Rs.10,000/- as costs of litigation;

 12.     The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @12% per annum on the amount mentioned in per sub-para [a] and [b] above, apart from paying costs of litigation of Rs.10,000/-, from the date of institution of this complaint, till it is paid.”

2.             The facts, in brief, are that the complainants had applied for Canadian – PR under skilled worker category for better future in Canada through the Opposite Parties. It was stated that the Opposite Parties also  processed their applications for permanent residency for Australia and Canada under different categories like Skilled Workers and Trade Persons. The Opposite Parties entertained complainant No.2 for the first time on 27.01.2014 for Australia immigration and received the application processing fee of Rs.12,500/- excluding IELTS test coaching charges of Rs.6500/- by wrongfully assessing his profile vide receipts Exhibit A-1 and A-2.  The Opposite Parties before filing the immigration to Australia for the complainants had got positive result from VETASSES for complainant No.2 on 12.06.2014. The Opposite Parties had also charged Rs.48,300/- as a fee of VETASSES body from the complainants. Thereafter, when the Opposite Parties were not successful to proceed the application of complainant No.2 for the Australian immigration, they then assessed profile of wife of complainant No.2 as principal applicant under skilled worker category for Canada and started to proceed their application under skilled worker category.  Complainant No.1 had spent Rs.17,300/- on her credential authentication for Canadian PR, which was the first step to apply for Canadian PR. It was further stated that complainant No.1 spent a sum of Rs.7000/- for IELTS test coaching excluding application processing fee of Rs.12,500/-. Copy of paid fee slip for IELTS coaching is Exhibit A-4. Complainant No.1 (Sarita Kinger), who was the main applicant for CANADA PR met the eligibility factors needed for Canadian PR. It was averred that both the complainants had taken the IELTS test and deposited their IELTS test fee @Rs.9800/- per candidate.  Copy of IELTS results are annexed as Exhibits A-5 and A-6. It was further averred that as per requirement of the Opposite Parties, the complainants submitted all the documents. Document Checklist is annexed as Exhibit A-7.  After satisfying with the documents submitted by the complainants, the Opposite Parties processed and prepared application under skilled worker category for Canada and sent it through DTDC courier on 24.09.2014 and the packet was delivered at Canada on 01.10.2014. Copy of courier receipt and delivery report are Exhibits A-8 and A-9. Thereafter, the Opposite Parties assured the complainants that within 60-90 days from filing the application, they would get the unique application number, which would be issued by the Canadian Embassy.  By the assurance of the Opposite Parties, the complainants started to wait for file number and also enquired number of times after 90 days, after which, the Opposite Parties received their incomplete file alongwith rejection letter from Canada but they (Opposite Parties) were always lingering on the matter and commented ‘wait’. It was further stated that the complainants had enquired a number of times for the status of their file from the Opposite Parties from January, 2015 to March, 2015 but they were never told the exact status of their application. On 01.04.2015, the Opposite Parties intimated the complainants that their application had been returned by the Canadian embassy due to non-attachment of Birth Certificate of the spouse. Copy of the rejection letter issued by Centralized Intake Office Sydney, Canada dated 26.11.2014 is Exhibit A-10. It was further stated that the Opposite Parties had hidden the information of rejection of their application, which was received in the month of December, 2014 and almost after 3 months of rejection, the Opposite Parties informed the complainants about their application status. Had they informed the same in time, the complainants could have refilled the application after attaching the required document.  It was further stated that though the complainants provided Birth Certificate, yet the Opposite Parties did not attach the Birth Certificate of complainant No.2 along with other documents. It was further averred that the complainants spent an amount of Rs.6,48,700/- at different stages for the aforesaid purpose but the Opposite Parties failed to perform their duties.  Thereafter, the complainants sought refund from the Opposite Parties but to no avail. Therefore, the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (in short the “Act” only), was filed.

3.             In their written statement, the Opposite Parties, stated that complainant No.1 had never availed the services of the Opposite Parties, whereas, complainant No.2 who had availed the services of Opposite Parties paid the charges of Rs.12,500/- for immigration to Australia, which were eventually refunded on the request of complainant No.2 on compassionate grounds which, however, they were never bound to do so.  It was pleaded that no charges were ever paid by the complainants for processing their application for immigration to Canada.  It was further stated that complainant No.2 was working as Insurance Agent with LIC of India and the Opposite Parties had procured positive outcome of the profile of complainant No.2 from VETASSES, which is an Australian body for assessing the profile of the applicants, before final approval by the Australian Embassy. It was further stated that complainant No.2 supplied his work experience certificate from LIC of India and therefore, the assessment of complainant was correct and positive and he was eligible for immigration, subject to the condition of passing IELTS exam, but he failed to clear the IELTS test.  It was further stated that even the fee claimed to be paid to the Opposite Parties were not charged by them, except Rs.12,500/-, which was also refunded later on compassionate ground.  It was further stated that the complainant(s) paid R$810 as processing fee directly to the Australian Govt. Body VETASSES using his credit card and not to Opposite Parties, as claimed by them.  Complainant No.1 had paid the fees of Rs.12,500/- as test fees to the IELTS test conducting body and not to the Opposite Parties.  It was further averred that as per rules, if the case of any applicant is rejected, then eventuality the fees paid as application money is never returned to the applicant. As per the case of the complainants, the applications money was returned by the Canadian Embassy, as the case file of the complainants was returned with the objection that Birth Certificate of complainant No.2 was not supplied. Even Complainant No.2 was informed before sending the documents that his name in the birth certificate was mentioned as Mr.Tarun Kumar, rather than Mr.Tarun Kinger, as mentioned on passport and he was advised to rectify the same before finally applying to the embassy, but he himself insisted that he has no time to do so and requested that his Matriculation Certificate be used as birth proof. It was denied that the Opposite Parties did not intimate the complainant(s) regarding return of the case. The complainants were duly informed about the reason for return of their case file and complainant No.2 was advised to rectify his birth certificate. Therefore, the Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.

4.             The complainants, filed rejoinder to the written statement filed by the Opposite Parties, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

5.             The parties led evidence, in support of their case.

6.              After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the Forum, partly allowed the complaint, vide the impugned order, as stated above.

7.             Feeling aggrieved, the Opposite Parties, filed the application for leading additional evidence alongwith the instant appeal.

8.             We have heard the Counsel for the appellants,  on the application, aforesaid, and have gone through the evidence and record of the case, carefully.

9.             The Counsel for the appellants/Opposite Parties submitted that respondent No.2 concealed before the Forum that he was not able to meet the required English language threshold in the form of IELTS test course as per the requirements of Australian Embassy. She further submitted that the fee of 810$ claimed to be paid to the appellants was not charged by them at any point but rather paid to VETASSESS, an Australian Government body (Annexure R-4). She further submitted that respondent No.2 made payment of service charges amounting to Rs.12,500/- using his credit card, for which,  proper receipt was issued and refunded later, on compassionate grounds on 03.04.2015 as per Annexure A-12. She further submitted that respondent No.1 was advised to get the name of her spouse rectified in his birth certificate before finally applying to the embassy but complainant No.1 insisted that he did not have time to get the birth certificate corrected and hence, his matric certificate may be used as a proof of date of birth and it was only on the insistence of complainant No.1 that the certificate of matriculation was annexed instead of birth certificate so as to avoid any objection from the Canadian Embassy with respect to the name of Mr.Tarun Kinger. She further submitted that the respondents were informed about the return of their case file but they themselves were callous regarding their case file and came to the office of the Opposite Parties in the month of March, 2015. She prayed for allowing the appeal and setting aside the impugned order.  

10.            After giving our thoughtful consideration, to the submissions, raised by the Counsel for the appellants, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded, hereinafter.

11.            The first question, that falls for consideration is, as to whether, the Forum rightly granted relief to the complainants. The answer, to this question, is in the affirmative. Admittedly, complainant No.2 availed the services of the Opposite Parties for Australian Immigration and for this purpose he paid the processing fee of Rs.12,500/-. According to the complainants, before the Forum, they paid another fee of 810$ to VETASSES for the processing of his application under Skilled Worker Category and even the VETASSES cleared the case of complainant No.2 and, still the Opposite Parties forced to prepare his case for Canada and not to Australia, for which, he agreed. Thereafter, complainant No.2 submitted all the necessary documents, as required by the Opposite Parties for Canada. However, his case was rejected due to non-submission of Birth Certificate to the Canadian Embassy by the Opposite Parties. The grouse of complainant No.2, before the Forum, was that the rejection of his application by Canadian Embassy was concealed by the Opposite Parties. It is also the admitted fact that the Opposite Parties refunded the fee of Rs.12,500/- on compassionate grounds. The allegation of the appellants/Opposite Parties  is that the complainant No.2 paid 810$ as processing fee directly to VETASSES (an Australian Body) using his credit card and not to the Opposite Parties. As per the appellants/Opposite Parties, even the case of complainant No.2 was rejected due to his own fault because he failed to submit the proper Birth Certificate before applying to the embassy. A perusal of Annexure A-10, before the Forum, clearly revealed that application of complainant No.2 was returned from Canada, without any positive results, due to non-enclosure of his Birth Certificate. The complainants also placed on record Document Checklist, Permanent Residence – Federal Skilled Worker Class  (Annexure A-7), in which, there is a ‘Note’, which was reproduced in para No.9 of the impugned order, clearly revealed that if any applicant is unable to provide any document, he/she has to give a written explanation for non-availability of that particular document, for which,  reasonable justification of the applicant is required. However, no written objection was raised by the Opposite Parties for the lack of any document. We are of the view that the Forum rightly stated that complainant No.2, who was spending huge amount out of his hard earned money and was doing all possible efforts for his settlement aboard must have given reasonable answer/solution for the objection, if any, in case the same was raised by the Opposite Parties. In the present case, there is no such authentic document on the file to show that the Opposite Parties at any stage objected to any of the documents filed by complainant No.2.  Regarding payment of processing fee of 810$ by complainant No.2 is concerned, the Forum rightly held that it is the responsibility of the Opposite Parties to prove that how complainant No.2 offered money to a Company in Australia. Moreover, complainant No.2 did not go to Australia for getting the contract entered into with the VETASSES at Australia, which shows that the Opposite Parties created another shield for their own benefit. We are of the view that the Forum rightly stated that this act of involving its innocent clients unnecessarily into Agreement with unknown parties for their own selfish motive proves deficiency in service on the part of the Opposite Parties. The Forum rightly held  that throughout the entire process of immigration, the Opposite Parties did not support the complainants nor performed their duties upto the level, as expected from them.  Thus, the order of the Forum, being legal and valid, is liable to be upheld.

12.            The order passed by the Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.

13. For the reasons recorded above, the appeal, filed by the appellants/Opposite Parties, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs and consequently, the application for leading additional evidence is also dismissed being rendered infructuous. The order of the Forum is upheld.

14.            Certified Copies of this order be sent to the parties, free of charge.

15.            The file be consigned to Record Room, after completion.

Pronounced.

08.02.2016                                                                

 

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

                                                                        (DEV RAJ)

MEMBER

 

       

(PADMA PANDEY)

        MEMBER

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