Overseas Education And Immigration Services vs AMANDEEP SINGH

THE present appeal has been filed against the order dated 27.9.2005 by District Consumer Disputes Redressal Forum -I, U.T., Chandigarh in Complaint Case No. 385 of 2005. The contextual facts in brief are as under.

THE respondent/complainant hired the services of appellant/OP for migrating to New Zealand. As per agreement entered into between the parties brought on record vide Annexure C -1, the appellant was to help in providing the work permit/conditional visa to New Zealand for getting a job and help to score five additional points to enable him to qualify for immigration. In consideration of aforesaid services, the respondent/complainant paid Rs. 50,000 in cash vide receipt No. 213 for work visa application charges, Rs. 36,500 for immigration processing fee and Rs. 21,550 as immigration fee for visa application. These amounts were received by the appellant/OP and receipts of the same have been brought on record vide Annexures C -2, C -3 and C -4 respectively totalling to the payment of Rs. 1,07,600. The respondent/complainant has averred that as per agreement, the OP was entitled to an amount of Rs. 40,000 as professional charges after getting the visa for the complainant. Due to change in immigration policy of New Zealand Government for general skilled category, the application of the complainant (filed through OP) lapsed. The respondent has averred that the Immigration Amendment Act, 2003 required that New Zealand Immigration Services Authorities would refund the fee to the person in the event of lapse of his application but the appellant/OP failed to apply to New Zealand Immigration Services for the refund of amount paid by him. Since the appellant/OP did not get visa for the complainant as per the agreement entered into between them, it was not entitled to get the professional charges of Rs. 40,000. The appellant did not refund the amount of Rs. 1,07,600 paid to them by the complainant consequent to which the complaint was instituted in the Forum with a prayer to compensate him for the deficient services rendered to him by the OP and a direction for refund of amount of Rs. 1,07,600 with interest @ 12% and compensation of Rs. 10,000 for the harassment caused and Rs. 550 as costs of litigation. Despite service, the appellant/OP refused to accept the summons and hence was proceeded against ex parte.

IN evidence the complainant i.e. Sh. Amandeep Singh filed his detailed affidavit along with Annexures C -1 to C -5.

THE District Forum allowed the complaint and directed the OPs to refund of Rs. 71,550 with interest @ 7% p.a w.e.f. December, 2001 till realisation. Litigation costs of Rs. 550 were also awarded. Aggrieved against the order of the District Forum, the OP M/s. Overseas Education and Immigration Services filed this appeal, pleading inter alia that at no point of time the summons were served upon and the report of the serving agency mentioning the word summons refused is incorrect, on the basis of which the appellant was proceeded against ex parte and deprived of the opportunity of presenting his defence before the Forum. A prayer has been made in the grounds of appeal to remand the case back to the Forum to allow the appellant present his case. The appellant has further contended that the complainant has not come to the Forum with the clean hands as he has concealed the factum of receipt of amount of Rs. 21,550 by way of cheque bearing No. 365088 dated 6.10.2003, copy of which has been brought on record of appeal vide Annexure P -3. On the merit of the case it has been contended by the appellant that the respondent/complainant had initially opted for a working visa for Australia and for processing fee Rs. 50,000 was paid by him and this amount was non -refundable. The respondent did not pursue his case for Australia but nevertheless since his application was processed, hence the claim for refund of Rs. 50,000 paid by him on 10.12.2001 has become time barred. It is further submitted by the appellant that respondent/complainant thereafter opted for permanent immigration in New Zealand for residence visa/permit under general skill category. The appellant has stated that due to distortion of facts by the complainant, the order was passed by the District Forum which has resulted in justice to him. The appellant has stated that he has been deprived from presenting certain facts due to non -service. The Consumer Protection Act, 1986 does not confer any right on a person who approaches it with unclean hands. On the basis of documents it could have demolished the case of the complainant/respondent if opportunity is given to him to present his case before the Forum. A prayer has been made to set aside the impugned order and remand the case back to the Forum.

ADVERTING to the prayer of appellant to remand the case back to Forum, perusal of the record of the case, grounds of the appeal and arguments of the learned Counsel for the appellant, we are unable to agree to this submission that the Forum was wrong in presuming service while he was not in the knowledge of any proceedings against him in the District Forum. The notice of complaint sent to him on 23.8.2005 has clear noting refused to take. Hence, this plea of not being served is noted to be rejected outrightly in the face of clear and due service effected on him.

COMING to the claims in appeal, we are of the considered opinion that the District Forum has rightly appreciated the deficiency in services rendered to the complainant by the appellant and out of total amount of Rs. 1,07,600 allowed the claim of Rs. 71,550 due to the fact that Rs. 36,050 were non -refundable on account of processing fee, etc. as is stated clearly on the receipt C -2. The balance amount of Rs. 71,550 awarded by the District Forum with interest @ 7% p.a was justified as the appellant has not provided any services as promised and also refused/failed to refund his amount after the lapse of his application before the immigration authorities. The litigation costs of Rs. 550 awarded by the Forum are upheld. On the record of the appeal at page No. 27 of the paper book, a photocopy of cheque No. 365088 dated 6th October, 2003 for Rs. 21,550 has been placed by the appellant. However, it is not supported by any certificate or photocopy of bank transaction showing or proving that this cheque has been paid by the appellant to the complainant or the same having been credited to the account of the complainant/respondent. The appellant is directed to produce the copy of bank transaction within 15 days to prove that amount has been credited to the complainants account. In the event of this amount having been received by the respondent/complainant, the appellant will be liable to pay an amount of Rs. 50,000 only with interest @ 7% p.a. w.e.f. December, 2001 otherwise the amount of Rs. 71,550 as awarded by the Forum shall be paid. The costs of litigation at Rs. 550 will also be payable. The appeal is dismissed. This order be complied with within one month from the date of receipt of copy of this order. Copies of this order be sent to the parties, free of charge. Appeal dismissed.