R.Venkata Krishnan vs Taanya Tours Travels

THE present revision petition has been filed against the order dated 30th September 2009 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai ( ''the State Commission '') in First Appeal no. 682 of 2003. The facts of the case as per the petitioner/complainant are that the respondents/ opposite parties are engaged in the business of extending professional services to people in countries including India, Singapore etc., to migrate to other countries by securing for them visas and other employment opportunities. The petitioner states that he wished to migrate to Australia. Pursuant to this desire, in response to a newspaper advertisement, the petitioner applied for a family visa through respondent no. 2 first opposite party (Todd International Australia Pvt., Ltd.) through a letter dated 21.02.1994, the first opposite party rejected the application of the petitioner as he did not have enough points. However, the communication also stated that if the points were reduced, the petitioner would be informed through the agents of the first opposite party.

THE petitioner states that he later received a communication dated 15.07.1994 from the first opposite party stating that he met the points for migration to Australia. Pursuant to this letter on 01.08.1994, the consultants of the first opposite party advised the petitioner to contact respondent no. 1/ the second opposite party (Taanya Tours Travels) their local agent in Chennai and pay US $ 3000 in three instalments to get the visa to migrate to Australia. Subsequently, on 07.09.1994, the petitioner paid the first instalment of Rs.30,000/- by demand draft in favour of the second opposite party. The petitioner received a communication dated 23.09.1994 about the services that would be provided by the first opposite party. On 24.09.1994, an agreement was entered into between the petitioner on the one hand and the first and second opposite parties on the other hand for migration to Australia. As per clause 11 of the agreement, the first opposite party, agreed to refund 80% of the professional charges in case VISA is not issued. On 25.10.1994, the petitioner paid the second instalment of Rs.30,000/- by a demand draft in favour of the second opposite party. The respondents acknowledged the receipt of the two instalments vide their receipt bearing no. 0974 and 0919 dated 01.11.1994 and 15.11.1994 respectively.

ON 11.01.1995 the petitioner made a third payment of US $ 600 being the third and final instalment by demand draft in favour of the first opposite party. The opposite parties acknowledged the receipt of the same vide their receipt bearing no. 0986 dated 24.01.1995. On 25.11.1995 visa fees amounting to Rs.9,577/- was paid to the Australian High Commission, New Delhi by sending it along with all the original certificates relating to educational qualifications and experience of the petitioner. Pursuant to the same, the petitioner received a reply from the High Commission five months later, i.e., 21.04.1996 stating that his documents had been referred to the Australian Agencies for processing. Meanwhile, the petitioner received lucrative offers of employment in Singapore and New Zealand. However, as he was assured by the respondents that his migration to Australia was imminent the petitioner did not actively pursue the offers from Singapore and New Zealand.

THE petitioner waited for almost three years during which period the visa to Australia did not materialise. Ultimately the first opposite party sent a communication dated 20.08.1998 stating that it was difficult to get the petitioner a job in Australia. Thereafter, there was no further communication from the respondent to the petitioner. In their written statement before the District Forum respondent no. 1 who were the opposite party no. 2 submitted that the complaint was not maintainable against this respondent since respondent no. 1 are only an agents of disclosed principal. The respondent no. 2 was engaged in the service of providing assistance to Indians who wish to immigrate to Australia / New Zealand. The respondent no. 2 had entered into an agreement with the petitioner on 24.09.1994 to which this respondent no. 1 was only a formal party with no rights, duties or obligations to perform. It is submitted that as per this agreement the function of this respondent no. 1 was to transmit documents and materials submitted by the petitioner to the respondent no. 2. According to this agreement there were no duties beyond the aforementioned to be performed by respondent no. 1 in so far as the petitioner was concerned. Therefore, it was for the respondent no. 2 to aid and assist the petitioner in obtaining a visa for immigrating to Australia and not respondent no. 1. Therefore the complaint is not maintainable against respondent no. 1 for the acts or omissions of the respondent no. 2. It is also submitted that there was no privity of contract between the respondent no. 1 and the petitioner and as such the contract does not bind respondent no. 1 and hence not maintainable. It is also submitted that the petitioner has not paid any consideration nor has respondent no. 1 rendered any services towards the petitioner. In the circumstances, the petitioner cannot allege deficiency of service against respondent no. 1. It is submitted that the respondent no. 1 being an agent of disclosed principal there was no obligation on the part of the respondent no. 1 to make refund of the amounts in case visa being not granted to the petitioner. It is submitted that the function of respondent no. 1 was that of a courier service, i.e., to forward the material received from the petitioner to the respondent no. 2. As a matter of fact in the various correspondence exchanged between the parties it has always been the case of the petitioner that refund is due and payable only by the respondent no. 2. In view of the above also, the complaint will not lie against this respondent no. 1.

RESPONDENT no. 1 has learnt from respondent no. 2 that respondent no. 2 has done its level best and without any delay to obtain a visa for the petitioner but for reasons beyond the control of the respondent no. 2, the Australia High Commission in New Delhi turned down the application of the petitioner for immigration and visa. It is respectfully submitted that respondent no. 1 cannot be in any way held responsible for the act of the Australia High Commission in New Delhi. Therefore, this complaint will not lie against respondent no. 1. Respondent no. 1 learnt that the complainant ''s application was also forwarded to High Commission by respondent no. 2. It was communicated to respondent no. 1 by respondent no. 2 that they were using its good offices with the High Commission Australia to see if the processing time could be reduced. It is also learnt from respondent no. 2 that the Australia High Commission had rejected the application of the petitioner. On learning about the rejection of his application the petitioner did not want to proceed any further on immigration and hence opted to withdraw. Therefore, the whole transaction involved the respondent no.2 being the one who called for the application, the petitioner and the Australia High Commission. Respondent no. 1 submits that being an agent of disclosed principal of respondent no. 2 it is not liable for any of the acts or omissions committed by respondent no. 2. This was also communicated to the petitioner.

THE District Consumer Disputes Redressal Commission, Mylapore Chennai ( ''the District Forum '') while disposing of the complaint no. 354 of 2000 on 9th September 2003 directed that the "opposite parties are directed to refund Rs.80,400/- and also to pay a sum of Rs.1,00,000/- for the loss of employment and Rs.2,00,000/- towards compensation for mental agony and inconvenience with cost of Rs.1,000/-. Time for payment one month, failing which the complainant is at liberty to take proceedings for arrest of the opposite parties under section 27 of the Act ". Aggrieved by the order of the District Forum, the respondent no. 1 filed an appeal before the State Commission. The State Commission observed that "the evaluation of the above materials prompt us to say that the lower forum is not justified, in granting an order against, the appellant, who was only an agent, facilitating the transactions in between the complainant and the 1st opposite party. As seen from the records, major portion of the amounts were directly paid by the respondent, to the 1st opposite party, except one payment or two, that too paid for want of clearance by the Reserve Bank of India, which was in turn paid to the 1st opposite party. Therefore, for the amount received by the 1st opposite party, for the assurance given by the 1st opposite party and accepted by the complainant, to secure a job or a visa, we are unable to see how the agent can be held responsible as if he has also committed deficiency in service. Ex.A6 is the agreement dt.24.9.94, wherein there is a clause for refund which reads "Refunds are not applicable for Medical or Police Clearance problems. The Company hereby agrees to refund 80% of charges, excluding immigration fees paid to the Australia High Commission, should your Visa not be issued. Excluded in this refund is failure due to Medicals, Police Clearances, or failure to pass professional examinations relating to your qualification. " The very fact refund of the amount is contemplated under the agreement would suggest that there is possibility of refusing visa. Therefore, for not securing the job, as if there was loss of opportunity of employment, claim made appears to be untenable, and unwarranted. However, the 1st opposite party has not contested and therefore, we are not going to consider the amount awarded against the 1st opposite party. Nowhere, it is stated that the agent is also responsible for the refund of money or in case unable to get visa for migration, the agent is responsible. It cannot be called as tripartite agreement also, as submitted, though the appellant also signed in the agreement, being an agent. In Ex.A6, it is specifically stated, that the appellant is only an agent; otherwise he has nothing to do. Therefore, on the basis of Ex.A6, the appellant cannot be held responsible, for the non-performance of the agreement, branding the same as deficiency in service, as incorrectly done by the lower forum.

UNDER Ex.B8, the complainant informed the 1st opposite party, that the complainant is having problem with the bank in getting the draft in favour of 1st opposite party, and that he has sent a Demand Draft for Rs.30000/- drawn in favour of the agent viz. M/s.Tanya Tours Travels and Freight Forwarders, Madras, the 2nd opposite party herein. Thereafter, all the amounts were drawn in favour of the 1st opposite party and the 2nd opposite party/ appellant has nothing to do with the transaction. At no point of time, the 2nd opposite party/ appellant has assured or promised to get any job for the 1st respondent/complainant. As seen from the letter dt.12.8.98, when the 1st opposite party approached the college, they have informed that they are unable to consider the complainant, stating that they are in need for someone with considerable experience. Thus, from the correspondence also, it is seen that there is no deficiency in service on the part of the opposite parties, and despite the fact the 1st opposite party is unable to get the employment opportunity, resulting non-obtaining of visa, for which, at any stretch of imagination, the agent of the 1st opposite party, who acted more or less as post box, not assuring anything, to the complainant, cannot be held responsible. The District Forum, without analyzing the role of the appellant, under the agreement or otherwise, has erroneously, without any basis, committed an error in ordering the payment, more or less jointly and severally, which should be set aside ".

THE State Commission directed as under: "In the result, the appeal is allowed, setting aside the order of the District Forum in C.C.No.354/2000 dt.9.9.2003, so far as the appellant is concerned. In this appeal, the 1st respondent/ complainant is directed to pay cost of Rs.5000/- to the appellant ".

Hence, this present revision petition. The main grounds for the revision petition are: · The State Commission erred in holding that the District Forum committed an error in ordering payments, jointly and severally without analysing the role of the respondent no. 1 under the agreement or otherwise. · The State Commission erred in ignoring that the respondent no. 1 and respondent o. 2 had jointly entered into an agreement with the petitioner on 24.09.1994. The respondent no. 1 was acting along with the respondent no. 2 and had even received payments towards instalments given by the petitioner. · The State Commission failed to appreciate that both respondent no. 1 and respondent no. 2 were guilty of deficiency in service and were jointly liable to refund the money and pay compensation to the petitioner. · The State Commission erred in holding that the agreement dated 24.09.1994 is not a tripartite agreement when the same has admittedly been signed by both the respondents and the petitioner. · Because without prejudice to the above submissions, section 230 of the Indian Contract Act, 1872 clearly states that in case a principal is abroad, the agent is personally liable. It is submitted that the order passed by the State Commission is contrary to the law laid down by the Hon ''ble Supreme Court of India in Cochin Frozen Food Exports (P) Ltd., vs Vanchinad Agencies reported in (2004) 13 SCC 434.

WE have heard the learned counsel for the petitioner and have gone through the records. Learned counsel for the petitioner drew our attention to the agreement which was entered into between the petitioner and the respondents. However, we find that as per the agreement dated 24.09.1994 the entire burden of performance is on the ''company '' which is Todd International Australia Pvt., Ltd./ respondent no. 2 having its registered office at Suite 399 A Albany Highway, Victoria Park, Perth, in the State of Western Australia 6100. This is supported by a letter dated 23.09.1994 from the Todd International Australia Pvt., Ltd. wherein they have enclosed a document of settlement package which they would be extending to the petitioner, which reads as under: · Accommodation for 1 week - paid · Suggested transport · Name, address and phone number of IRN · Average payment of Social Security and where to go. How to claim and who to see. · Name and address of support groups for new migrants · Tax file information · Medicate information · Resumes sent to employment groups · What to bring · Shipping arrangements · Education · Rental

IT is also seen from the petitioner ''s letter dated 26.10.1994 to respondent no. 2 that a demand draft for Rs.30,000/- was being drawn in favour of M/s Tanya Tours Travels and Freight Forwarders, Madras because ''the bankers are refusing to issue demand draft in favour of you without the clearance of Reserve Bank of India, I took DD in favour of your agents at Madras ". The receipts enclosed also shows that even for the payments made through respondent no. 1, the final receipts were given by respondent no. 2 - M/s Todd International Australia, Pvt. Ltd. Hence, it is apparent that all the payments made were either to respondent no. 2 or to the Australian High Commission at New Delhi. No payments were made to respondent no. 1 - M/s Tanya Tours travels and Freight Forwarders, Madras, for any service the petitioner obtained from them. On the contrary in a letter dated 11.01.1995 addressed to respondent no. 1 forwarding an envelope containing the demand draft for US $ 680 drawn by UCO Bank, Puducherry Main, India drawn on Bank of California International, USA in favour of National Australia Bank, account M/s Todd International Australia Pvt, Ltd., Western Australia, the petitioner has wrote that "I request you to take notice of the same and . sic. this piece of the letter in your courier bag to Todd, Australia feel very bad to disturbing you frequently. But due to safety of the documents I need your help ". Learned counsel for the petitioner had drawn our attention to section 230 of the India Contract Act, 1872 which reads as under: Agent cannot personally enforce, nor be bound by contracts on behalf of principal - In the absence of any contact to that effect an agent cannot personally enforce contracts entered into by him on behalf of this principal, nor is he personally bound by them. Presumption of contract to contrary - such a contract shall be presumed to exist in the following cases :- (i) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad; (ii) Where the agent does not disclose the name of his principal; (iii) Where the principal, though disclosed, cannot be sued.

THIS section is not applicable to the case on hand because the contract was not for sale or purchase of goods. The principal in the contract was disclosed as M/s Todd International Pvt. Ltd. Thus, learned counsel for the petitioner has been able to establish any deficiency in service against respondent no. 1. In the above circumstances, we find that the State Commission has given a well-reasoned order and gave cogent reasons why the District Forum ''s order was erroneous and was without any basis and had committed an error in ordering the payment, more or less jointly or severally.

IN view of the foregoing reasons, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with cost of Rs.5,000/- (Rupees five thousand only). Petitioner is directed to deposit an amount of Rs.5,000/- by way of demand draft in the name of ''Consumer Legal Aid Account '' of this Commission, within four weeks from today. In case the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation. List on 27th September 2013 for compliance.