State Consumer Disputes Redressal Commission
Sakshi Kumar vs Rana Gurtej Singh on 29 November, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 33 of 2018 Date of Institution : 09.03.2018 Date of Decision : 29.11.2018 Sakshi Kumar d/o Sh. Parveen Kumar r/o H.No.655, Sector 6, Panchkula, Haryana through her father Sh. Parveen Kumar. .......Appellant/Opposite Party. Versus Rana Gurtej Singh son of Narinder Singh r/o H.No.901, Sector 11, Garden Colony, Kharar, District SAS Nagar (Punjab). ...Respondent/Complainant. Appeal under Section 15 of the Consumer Protection Act, 1986 against order dated 21.11.2017 passed by District Consumer Disputes Redressal Forum-II, U.T. Chandigarh in Consumer Complaint No.43 of 2017. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MRS. PADMA PANDEY, MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Argued by:
Dr. Parveen Kumar, father and attorney of the appellant alongwith appellant in person.
Sh. Rana Gurtej Singh (Advocate), respondent/complainant in person.
PER RAJESH K. ARYA, MEMBER The appellant/opposite party has filed this appeal against order dated 21.11.2017 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short 'the Forum' only), vide which, complaint bearing No.43 of 2017 filed by the respondent/complainant was allowed in the following manner:-
"13] Keeping in view the facts under consideration, the complaint is allowed with directions to the Opposite Party to pay back Rs.13,000/- along with compensatory cost of Rs.10,000/- and litigation expenses of Rs.5000/- to the complainant, within a period of 30 days from the date of receipt of certified copy of this order.
In case, the Opposite Party failed to comply with the order within the above stipulated period, then OP shall also be liable to pay additional compensatory cost of Rs.10,000/- to the complainant in addition to the above relief.."
2. Before the Forum, it was case of the complainant that he hired the services of the Opposite Party as professional candid photographer for the wedding function of his sister Ms. Navkiran. After discussing all the aspects relating to work to be done by the Opposite Party, a Contract dated 22.4.2015 was executed between the parties whereby the Opposite Party agreed to provide photography services for two days i.e. for Ladies Sangeet Ceremony and Wedding ceremony to be held on 10.6.2015 and 12.6.2015 respectively and total consideration was fixed at Rs.64,000/-. The services were to be performed in accordance with the agreed terms and undertaking given by the Opposite Party. The complainant paid Rs.30,000/- as booking amount. Sangeet and Wedding Ceremonies were successfully conducted on 10.6.2015 and 12.6.2015 and the Opposite Party performed all of her obligations but failed to bring lights, equipment etc. as promised. Thereafter, the complainant paid Rs.15,000/- more to the Opposite Party, who was to send all the photographs to the complainant by August, 2015. The Opposite Party sent only 26 photographs to the complainant via e-mail on 31.7.2015, which were appreciated by the complainant. Thereafter, the Opposite Party failed to send any photographs, as per the contract and promise made and kept on making one excuse or the other. The sister of the complainant also left for New Zealand but even then, the Opposite Party failed to deliver the photographs as promised. The Opposite Party every time made false assurances and promises and the complainant kept on requesting and reminding the Opposite Party to send the edited photographs time and again, however, she grossly failed to do so. It was further stated that the Opposite Party deliberately lingered on the matter and intentionally delaying the work. Hence, a consumer complaint was filed before the Forum.
3. The Opposite Party, in its reply, while admitting the factual matrix of the case, stated that it took the task of photography essentially because of personal relations and out of courtesy. It was stated that the Opposite Party and her co-photographer clicked almost 7000 pictures over two days but the complainant never bothered to provide a proper list of selected photographs to the Opposite Party even till 10.4.2016. It was further stated that the wedding was in June, 2015 and there was a delay of almost one year on the part of the complainant, who remained confused about the selection of pictures and never gave the final list even though the Opposite Party had delivered the entire edited works (more than 600 edited images), the entire raw files, which is the highest quality of a picture, to the complainant in a time bound manner and without any delay. It was further stated that the complainant cooked up a false story only to avoid the balance payment of Rs.19,000/-. It was further stated that the complainant is lawyer and in fact, purposely instituted this false complaint to harass the Opposite Party, who is residing in Gurgaon. It was further stated that the complainant emphasized on Whatsapp conversations without referring to the actual contract entered into between the parties. It was further stated that the complainant had to give the list of selected images, which he failed and the Opposite Party could not be expected to make it at her own level. Entering into a contract (Annexure C-3) and payment of Rs.45,000/- made to the Opposite Party was admitted. It was further stated that the Opposite Party had done her level best and had already delivered all the edited pictures, which were more than 600 images. It was further stated that the Opposite Party could not be expected to decide, which 600 pictures would be shortlisted out of entire 6000-7000 pictures clicked and 600 pictures were to be shortlisted by the complainant, but there was no such occasion from the side of the complainant. It was further stated that at present, the complainant has the entire lot of pictures, which are around 7000 in numbers and even the edited pictures. It was further stated that even the hard drive, which contained all the pictures, was with the complainant from 30.8.2015 till 11.9.2015 and even by then, the complainant did not shortlist the images which were to be edited/made part of the photo book. It was further stated that in fact, the Opposite Party gave all edited pictures as well as the raw images to the complainant before the Opposite Party left for work/her assignment abroad. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party nor she indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
4. The complainant filed replication, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.
5. The parties led evidence in support of their case.
6. After going through the evidence on record and submissions of Counsel for the parties, the Forum allowed the complaint, as referred to above.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
8. We have heard the Counsel for the parties and, have gone through the evidence, and record of the case, carefully.
9. Dr. Parveen Kumar, Father and Attorney of the appellant/opposite party submitted that the services given by the appellant were of high quality and out of total 7000 images given twice over to the respondent/complainant at different points of time, more than 600 edited images were given to the respondent, 163 in bits & pieces and more than 600 in final go. It was further submitted that firstly from the very outset, the respondent had his own understanding of the contract that he had an inherent right to an endless number of images, which he call RAW, without realizing that the word RAW in Photography is a type of Image Format and not something crude and not good enough as an edited image. It was further submitted that technically, RAW image is the most superior form of image available to the customer and it is never parted by the Photographer till the final payment is made. It was further submitted that it were only the proof images, which were to be supplied by the appellant as per the written contract and proof images are the non-printiable images of the lowest form and strength. It was further submitted that there was no provision of supply of RAW images. It was further submitted that the quality and the graphic and computer details like the size and resolution of the images are of highest professional photography standards and the entire episode is only about the quality and quantity of photography. It was further submitted that the respondent actually ignored his contractual obligation as clearly provided in the contract (Annexure A-1). It was further submitted that even after understanding the said obligation, the respondent took almost a year to give the complete set of shortlisted/chosen images. It was further submitted that the excellent and fully loaded images in the RAW Format were given in the first place on 31.08.2015 and the delivery of more than 600 edited images and total of about 7000 images (about 60 GB) did not satisfy the whimsical demands of the respondent, who kept on incessantly and immoderately pressing for more and more images for reasons best understood by himself. It was prayed that the appeal be allowed and the impugned order dated 21.11.2017 passed by the Forum be set aside.
10. On the other hand, Sh. Rana Gurtej Singh (Advocate), respondent/complainant submitted that on 15.06.2016, he asked the appellant/opposite party about the time of delivery of the edited photographs but she requested for a month and a half i.e. till 31.07.2015 to edit the pictures and deliver the same. It was argued that on 12.07.2015, complainant sought to know the tentative date of delivery of photographs as his sister was to leave for New Zealand. It was argued that on 31.07.2015, the opposite party sent 26 photographs via email dated 31.07.2015. It was further stated that when the photographs were not delivered, the complainant had to arrange the pickup of the same through his friend's mother, who was to come from Delhi/Gurgaon to Chandigarh on 31.08.2015. On receiving the hard drive, the complainant was shocked to find that there were only 163 photographs in the edited folder and the remaining was unedited data in raw format. It was argued that when the complainant confronted the opposite party about the said blatant deficiency in service, she shockingly informed him that he was supposed to choose 600 photos that were to be edited. It was argued that the respondent/complainant and his family faced tremendous mental stress, harassment and agony at the hands of the appellant. Arguing that the impugned order passed by the Forum is just and legal and needs no interference, the respondent/complainant prayed for dismissal of the appeal.
11. Undisputedly, as per Photography Contract, dated 22.04.2015 (Annexure C-3) entered into between the parties, the appellant/opposite party was to provide 2 days' service to the respondent/complainant with regard to candid photography and the charges for the said service plus labour were fixed at Rs.64,000/-. The respondent/complainant paid an amount of Rs.30,000/- in advance and later, Rs.15,000/- was paid to the appellant/opposite party on 18.06.2015 (Annexure C-5). The controversy, in this case, revolves around Clause 3 of the aforesaid Photography Contract, which reads thus:-
"3. The Proof Photographs will be delivered to the Client on a compact disk. The Client will then provide the Photographer a written list of proof images that final photographs shall be made and indicate the number along with format of the final photogrpahs to be delivered for each individual proof image. Please see the attached Price Schedule for all available final photographs and formats alongwith their respective prices."
12. In the impugned order, the Forum has taken care of the aforesaid admitted position in Para 6. Further, the Forum went on to record in para 7 of its order that the opposite party clicked 7000 photographs and made available the same to the complainant on 31.08.2015 in a Hard Drive, which included 164 edited (in fact 163) and the remaining raw images, for selection for final photo album. Taking note of the argument raised by the opposite party that due to several constraints/factors beyond her control such as fault in her Laptop and a fire incident in her house at Chatarpur, Delhi in which entire material was burnt and her involvement in other time bound assignments leading to delay in completion of work on her part, the Forum was of the opinion that though the time was not the essence of the Photography Contract yet the opposite party should have provided the photographs to the complainant within a reasonable time, at least before leaving of the bride for New Zealand in the end of August, 2015.
13. In our opinion, while making aforesaid opinion, the Forum failed to take into consideration the Whatsapp Chat (Annexure C-4), which took place between the appellant/opposite party and the respondent/complainant. Perusal of Whatsapp Chat clearly shows that before entering into the Photography Contract and hiring the services of the appellant/opposite party, the respondent/complainant on 31.03.2015 appreciated the work of the appellant/opposite party on Facebook Page. The said message reads thus:-
"31/03/2015, 7:27:27: Rana: I was just going through your Facebook page. I can see a lot of pre-post wedding shoots which are incredible. I could only find one weeding album. Are there more?"
14. It was after exhaustive chat, exchanged between the parties, qua other formalities and proposals etc., the Photography Contract was executed on 22.04.2015 (Annexure C-3), referred to above.
15. It may also be stated here that, before entering into Photography Contract, in one of her message dated 06.04.2015, the appellant/opposite party informed the respondent/complainant that he would get approx.. 300 edited images/day alongwith all the raw files for keepsafe.
16. On 15.06.2015, the following Chat was exchanged between the parties:-
"15/06/2015, 4:17:41: Rana: You'll take a month's time to edit right?
15/06/2015, 4:17:57: Sakshi Kumar: Month and a half.
15/06/2015, 4:18:24: Sakshi Kumar: You can take the raw from himanshu.
15/06/2015, 4:18:46: Sakshi Kumar: The ones he took.
15/06/2015, 4:18:49: Sakshi Kumar: Hes in Mohali.
15/06/2015, 4:19:06: Rana: No no. I'll see the edited ones first and then take the rest."
17. It may again be stated here that as per Clause 3 of the Photography Contract, referred to above, it was on receipt of proof photographs on a compact disk, that the respondent/complainant was to provide the appellant/opposite party a written list of proof images, of which, final photographs were to be made and also indicate the number along with format of the final photographs to be delivered for each individual proof image.
18. It is apparent from the aforesaid messages that instead of craving for proof photogrphs, the respondent/complainant insisted for edited ones first and only then, he was ready to take rest of the photographs, which was against the spirit of Photography Contract. The Forum, in Para 11 of its order, also took due notice of the aforesaid insistence on the part of the complainant for prior editing of all the photographs by the opposite party and termed it as illogical and whimsical.
19. On 31.07.2015, the appellant/opposite party uploaded 26 Photographs, which the respondent/complainant checked and appreciated the work done by texting as under:-
"31.07.2015: 2:03:04: Rana: Thanks. Got them.Didi looks really good."
20. The appellant/opposite party provided all the data i.e. 7000 raw images including 163 edited images to the respondent/complainant in a Hard Drive on 31.08.2015. However, the respondent/ complainant did not point out any shortcoming either in the 26 pictures or 163 edited pictures sent to him. Whatsapp chat further reveals that the Hard Drive remained with the respondent/complainant uptil 11.09.2015
21. Messages exchanged on 13.09.2015 between the parties reveal that the Laptop of the appellant/opposite party became out of order and further the factum of breaking of fire in her house could not be ignored, in which the Hard Drive was also burnt.
22. Depsite above, the appellant/opposite party took second initiative to provide Pen Drive to the respondent/complainant, through courier, on 02.02.2016 but it was the respondent/complainant, who failed to provide the complete list of photographs for editing to the appellant/opposite party till 10.04.2016. However, perusal of Annexures OP-1, OP-2 and OP-3 reveals that in a piecemeal manner, the respondent/complainant sent 80 pictures of mehandi on 05.02.2016, around 150 images of sangeet evening on 16.03.2016 and a hand written scribbled note i.e. wedding pcitures on 10.04.2016. Again a hard drive was made available to the respondent/complainant on 13/06/2016 but the position remained the same from the side of the respondent/ complainant.
23. The stand of the appellant/opposite party in Para 12 of her written statement that she did her level best in clicking more than 7000 pictures on the functions, shortlisting 163 images of her own, delivered her personal external hard drive of 2 T.B to the aunt of the complainant, which was not a part of the contract, edited all the pictures, not through an automated process, but by giving personal attention to each one, when the complainant failed to provide the list till 10.04.2016, stands corroborated from the evidence brought on record by way of Whatsapp messages (Annexure C-3), referred to above. By taking note of only one side of the coin, the Forum attributed delay and deficiency in rendering service solely on to the appellant/opposite party but the other side of it says otherwise. It was the respondent/complainant, who did not provide the list of selected images to be edited in one go and rather, in a piecemeal manner, continued to send the pictures. We endorse the view of the appellant/opposite party that the selection of photographs at a function is a very personal matter and the photographer cannot be expected to shortlist all pictures at his/her own level as he/she, in no manner, is aware about the affiliations and closeness of the invitees with the family. Rather than choosing pictures of his own, the respondent/ complainant asked the appellant/opposite party to select the pictures and edit those on her own, which showed his confidence and faith in the work of the appellant/opposite party. We appreciate the efforts made by the appellant/opposite party to send the Hard Drive to the respondent/complainant at Chandigarh and subsequently a pen drive also through courier. The respondent/complainant got more than enough in terms of all the phtographs/data twice including 163 edited pictures done at her own level of the appellant/opposite party. It was he, who, failed to make his choice of pictures for editing, which he did in a piecemeal manner, on three occasions, as referred to above. For failure on the part of the respondent/complainant himself, deficiency in rendering service and non-execution of Photography Contract, cannot be attributable to the appellant/opposite party.
24. Thus, the opinion expressed by the Forum that the opposite party performed her work in midway and as such, seemed to be entitled only for 50% of the contractual amount of Rs.64,000/- is not sustainable, in view of discussion made in the preceeding part of the judgment. It also erred in awarding compensation and litigation expenses to the tune of Rs.10,000/- and Rs.5,000/- respectively.
25. Hence, we are of the opinion that the impugned order dated 21.11.2017 passed by District Forum-II, U.T., Chandigarh suffers from illegality and perversity.
26. For the reasons recorded above, the appeal is allowed and the impugned order dated 21.11.2017 is set aside. Consequently, complaint case bearing No.43 of 2017 filed by the respondent/complainant, before District Forum-II, U.T., Chandigarh against the appellant/opposite party stands dismissed with no order as to costs. However, in the interest of equity, no further amount, apart from what has already been received by the appellant/opposite party, is to be paid by the respondent/ complainant to the appellant/opposite party.
27. Certified Copies of this order be sent to the parties, free of charge.
28. The file be consigned to Record Room, after completion.
Pronounced 29.11.2018.
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER Ad