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Judgment
The complainant/respondent Sh. Amit Kumar Verma who was seeking to settle abroad engaged the services of the petitioner company and entered into a contract of engagement dated 17.08.2013 paying a sum of Rs. 50,000/- as registration fee alongwith applicable tax. Clause ''2P'' and ''7'' of the said agreement read as under:
p. Pay the Skill Assessment fees as levied by the processing Skill Assessment Body in accordance with the immigration laws of Australia. The Client shall solely be responsible for any adverse effect on the case due to delay/non-payment/short-payment of Skill Assessment fee to Skill Assessment Body. Any change in the Skill Assessment Fee, or any other fees levied by the Skill Assessment Body, from time to time, would be borne by the Client; Since the Skill Assessment fees is paid to the Skill Assessment Body, the client shall not seek refund of the said fee from the Company.
Fee charged by Skill Assessment Body
In addition to the fee of the Company, the Client agrees and undertakes to pay the Skill Assessment Fee in accordance with the current assessment requirements of the assessing authority in Australia. Since the Skill Assessment fees is paid to the assessment Authorities, the client shall not seek refund of the said fee from the Company.
The Client shall solely be responsible for any adverse effect on the case due to delay/non-payment/short payment of Skill Assessment fee to Skill Assessment Body. Any additional burden on account of change in the Skill Assessment Fee, or any other fees levied by the Skill Assessment Body, from time to time, would be borne by the Client. Further, the above said processing fee is non-refundable as per the current rules.
Pursuant to the aforesaid agreement, the complainant paid a sum of Australian Dollars 866 to the skill assessment agency namely Vetassess, through the petitioner company. The said agency made an assessment of the complainant in the light of requirements of the job of Customer Service Manager in Australia. It was opined by the said agency that the complainant did not meet the skill assessment requirements for the nominated occupation. The said assessment to the extent it is relevant reads as under:
The employment Senior Financial Services Manager, ICICI Prudential Life Insurance Co. Ltd. (11/2008 to 03/2010) does not meet the minimum requirements for this occupation as
the tasks undertaken are not highly relevant to the ANZSCO tasks for the nominated occupation.
The employment Assistant Manager - Sales, Indus Medinet Ventures Pvt. Ltd - Orange Cross (07/2010 to 03/2011) does not meet the minimum requirements for this occupation as
the tasks undertaken are not highly relevant to the ANZSCO tasks for the nominated occupation.
The employment Senior Travel Consultant - Customer Service, Isango India Private Limited (03/2011 to 09/2012) (07/2010 to 03/2011) does not meet the minimum requirements for this occupation as
the tasks undertaken are not highly relevant to the ANZSCO tasks for the nominated occupation.
The employment General Banking Officer, Bank of India (10/2012 to 09/2013) does not meet the minimum requirements for this occupation as
the tasks undertaken are not highly relevant to the ANZSCO tasks for the nominated occupation.
A positive assessment of both qualifications and employment is required for a positive Skills Assessment Outcome.
Skills Assessment Outcome : Negative
Based on the evidence provided, the qualifications and / or employment described above do not meet the Skills Assessment requirements of your nominated occupation.
As a result of said assessment, the complainant could not get the job of Customer Service Manager and consequently, could not migrate to Australia. Being aggrieved and alleging deficiency on the part of the petitioner company in rendering services to him, the complainant approached the concerned District Forum by way of a complaint seeking compensation etc. The complaint was resisted by the petitioner inter-alia on the ground that there was no deficiency on its part in rendering services to the complainant.
During the pendency of the complaint before the District Forum, the parties were referred to Lok Adalat for an amicable resolution of their disputes. A sum of Rs. 55,000/- was refunded by the petitioner to the complainant before Lok Adalat. The fee paid to the assessment agency however, was not reimbursed to the complainant. Vide its order dated 30.11.2015, the District Forum directed the petitioner to refund Rs. 53,000/- which is equivalent to Australian Dollars 866, to the complainant and also pay a sum of Rs. 25,000/- as compensation and Rs. 10,000/- as the cost of litigation. Being aggrieved from the order passed by the District Forum, the complainant approached the concerned State Commission by way of an appeal. The said appeal having been dismissed, the petitioner company is before us by way of this revision petition.
As would be seen from Clause ''2p'' and ''7'' extracted hereinabove, the skill assessment fee was levied by the assessment agency namely Vetassess and the same was not refundable by the petitioner company. The complainant expressly agreed, by way of the aforesaid two clauses that he will not be entitled to refund of the said fee from the petitioner company. This is not the case of the complainant that the aforesaid fee was pocketed by the petitioner company and was not passed on to the assessment agency. Therefore, considering the agreement between the parties, the petitioner company cannot be held liable to refund the said fee to the complainant. However, if any deficiency in part of the petitioner company is made out, in rendering services to the complainant, he will certainly be entitled to appropriate compensation from the petitioner company.
The contention of the learned counsel for the complainant is that though the complainant wanted to migrate to Canada, the petitioner company suggested to him to apply for a job in Australia and also informed him that he was suitable for the job of Customer Service Manager in Australia. Reliance is placed upon an email dated August 17, 2013 sent to the complainant. This is also the contention of the learned counsel for the complainant that the result of the assessment made by the petitioner company, after considering C.V. of the complainant, had been conveyed to the complainant on telephone before the said email was sent. The contention is that the result of the assessment made by the petitioner company was conveyed to the complainant before the registration fee of Rs. 50,000/- was taken from him. The fee for the assessment agency i.e. Australian Dollars 866 however, was paid after the email dated 17.08.2013 had been sent to the complainant, the said payment having been made on 19.11.2013.
The email sent to the complainant shows that the petitioner had found him to be a qualified applicant since the qualifying condition was that the applicant should be performing the duties of a Customer Service Manager for last three years on full time basis. The contention of the learned counsel for the complainant is that the complainant was not qualified applicant since he had not performed the duties of rendering Customer Service Manager for three years on full time basis. In his contention, though the complainant had been performing the duties of Customer Service, the same was not in the position of the Manager for more than three years. In our opinion, if the complainant had not performed the duties of Customer Service Manager for three years on full time basis, he should not have paid the assessment fee, since he knew from the email dated 17.08.2013 that one of the conditions for the job in Australia was that the applicant should be performing the duties of Customer Service Manager for last three years on full time basis. If the complainant chose to apply for the job for which he was not qualified despite knowing that he was not qualified for the said job, he is only himself to blame for his having lost the fee paid to the assessment agency.
A perusal of the assessment made by Vetassess would show that the complainant was found unsuitable primarily on the ground that the tasks which he had undertaken were not highly relevant to the employer ANZSCO. There is no evidence of the petitioner company having represented to the complainant, at any point of time, that his experience or the tasks undertaken by him were relevant to the ANZSCO tasks for the position of Customer Service Manager. Hence, it cannot be said that any misrepresentation was made or any false assurance was given to the complainant by the petitioner company. The complainant knew what was the experience required for the job for which he was applying and in which capacity that experience should have been obtained. If he was not having the requisite experience, he ought not to have applied and in case he was having a requisite experience, there was no misrepresentation to him by the petitioner company. In any case, as we have noted earlier, the complainant was found unsuitable only on the ground that his experience was not relevant to the tasks to be performed by Customer Service Manager for ANZSCO, and such assessment was to be made by Vetassess, not by the petitioner company.
For the reasons stated hereinabove, we are of the view that as far as the assessment fee paid to Vetassess is concerned, there was no deficiency on the part of the petitioner company in rendering services to the complainant. Consequently, there was no justification for directing refund of the assessment fee which the complainant had paid to the aforesaid agency through the petitioner. The impugned orders are therefore, set aside. The revision petition stands disposed of accordingly.