State Consumer Disputes Redressal Commission
Sh. Ravinder Kumar. vs Lucky Photo Studio. on 26 February, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 130/2017
Date of Presentation: 16.05.2017
Order Reserved On : 15.09.2017
Date of Order : 26.02.2018
......
Ravinder Kumar s/o Shri Sohan Lal r/o Village and Post Office
Kothi Tehsil Ghumarwin District Bilaspur H.P.
...... Appellant/Complainant
Versus
Lucky Photo Studio Gandhi Chowk Ghumarwin Post Office and
Tehsil Ghumarwin District Bilaspur H.P.
......Respondent /Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Naresh K. Sharma Advocate.
For Respondent : Mr. Dheeraj K. Vashisht Advocate.
JUSTICE P.S. RANA (R) PRESIDENT :
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 25.03.2017 passed by Learned District Forum in consumer complaint No.87/2016 title Ravinder Kumar Versus Lucky Photo Studio.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) Brief facts of Consumer Complaint:
2. Complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that complainant engaged opposite in his marriage. It is pleaded that marriage of complainant was performed on dated 20/21.10.2015. It is further pleaded that complainant engaged opposite party for preparation of photo album of marriage and marriage ceremony movie in consideration amount of Rs.18500/- (Eighteen thousand five hundred). It is further pleaded that complainant paid consideration amount to the tune of Rs.5000/- (Five thousand) as advance to the opposite party on dated 21.10.2015 and it is further pleaded that remaining amount was to be paid after supplying photo album of marriage and marriage ceremony movie. It is further pleaded that complainant visited more than fifteen times in the business premises of opposite party but opposite party did not supply the movie of marriage. It is further pleaded that opposite party received remaining consideration amount of Rs.13500/-
(Thirteen thousand five hundred) from the complainant on dated 04.05.2016. It is pleaded that opposite party committed deficiency in service. Complainant sought relief of payment of Rs.50000/- (Fifty thousand) as compensation. Prayer for acceptance of complaint sought.
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Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017)
3. Per contra version filed on behalf of opposite party pleaded therein that there is no contract to prepare marriage ceremony movie but contract was only for preparation of photo album of marriage. It is further pleaded that complainant is estopped to file present complaint due to his own act, conduct, omission and commission. It is further pleaded that complainant has not paid remaining consideration amount of Rs.13500/- (Thirteen thousand five hundred) on dated 04.05.2016. It is pleaded that complainant has no cause of action against the opposite party. Prayer for dismissal of complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
5. Learned District Forum dismissed the complaint filed by complainant. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
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Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017)
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant Ravinder Kumar filed his affidavit Ex.CW-1/A in evidence. There is recital in the affidavit that marriage of deponent was performed on dated 20/21.10.2015 at Village and Post Office Kothi Tehsil Ghumarwin District Bilaspur H.P. There is further recital in the affidavit that deponent was engaged by opposite party for preparation of photo album of marriage and marriage ceremony movie in consideration amount of Rs.18500/- (Eighteen thousand five hundred). There is further recital in the affidavit that Rs.5000/- (Five thousand) was paid in advance on dated 21.10.2015 and it was agreed that remaining amount would be paid after supplying of photo album of marriage and marriage ceremony movie. There is further recital in the affidavit that deponent visited more than fifteen times in the business premises of opposite party for obtaining photo album of marriage and marriage ceremony movie but opposite party did not accept the request of complainant. There is further recital in the affidavit that opposite party received remaining consideration amount to the tune of Rs.13500/- 4
Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) (Thirteen thousand five hundred) from complainant dated 04.05.2016. There is further recital in the affidavit that deponent is entitled for compensation to the tune of Rs.50000/- (Fifty thousand) for mental agony and harassment.
9. Complainant also filed affidavit of Sonika Ex.CW- 2/A in evidence. There is recital in the affidavit that deponent is legally wedded wife of complainant and their marriage was solemnized on dated 20/21.10.2015 at her parental house. There is further recital in the affidavit that opposite party was engaged by the complainant for preparation of photo album of marriage and marriage ceremony movie. There is further recital in the affidavit that two persons were preparing marriage ceremony movie and three persons were preparing photo album of marriage. There is further recital in the affidavit that complainant visited several times in the business premises of the opposite party for obtaining photo album of marriage and marriage ceremony movie. There is further recital in the affidavit that opposite party in the month of May 2016 supplied photo album of marriage after obtaining Rs.13500/- (Thirteen thousand five hundred) and there is further recital in the affidavit that opposite party told the complainant that marriage ceremony movie would be supplied shortly.
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Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017)
10. Complainant also filed affidavit of Krishan Lal cook Ex. CW-3/A in evidence. There is recital in the affidavit that deponent is Up-Pradhan of Gram Panchayat Kothi. There is further recital in the affidavit that complainant engaged deponent for cooking purpose in the marriage. There is further recital in the affidavit that deponent remained for two days in the marriage ceremony of complainant for cooking. There is further recital in the affidavit that complainant engaged opposite party for preparation of photo album of marriage and marriage ceremony movie. There is further recital in the affidavit that opposite party was preparing photo album of marriage and marriage ceremony movie in the marriage of complainant. There is further recital in the affidavit that opposite party came in the marriage alongwith camera and other equipments which were necessary for preparation of photo album of marriage and marriage ceremony movie.
11. Complainant also filed affidavit of Dinesh Kumar priest Ex.CW-4/A in evidence. There is recital in the affidavit that deponent is Bramin (Priest) by profession. There is recital in the affidavit that complainant has engaged the deponent for performing marriage ceremony. There is further recital in the affidavit that deponent has performed marriage ceremony of the complainant. There is further recital in the affidavit 6 Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) that deponent remained for two days in the marriage ceremony of complainant. There is further recital in the affidavit that complainant also engaged opposite party for preparation of photo album of marriage and marriage ceremony movie. There is further recital in the affidavit that opposite party was preparing photo album of marriage and marriage ceremony movie. There is further recital in the affidavit that opposite party remained for two days in the marriage ceremony of the complainant and prepared photo album of marriage and marriage ceremony movie.
12. Complainant also filed affidavit of Raman Ex. CW- 5/A in evidence. There is recital in the affidavit that deponent is brother-in-law of complainant. There is further recital in the affidavit that marriage ceremony of complainant was solemnized on dated 20/21.10.2015 at complainant's house and in the house of deponent. There is further recital in the affidavit that opposite party was engaged by complainant for preparation of photo album of marriage and marriage ceremony movie.
13. Complainant also filed affidavit of Sandeep Kumar Ex. CW-8/A in evidence. There is recital in the affidavit that deponent is working as Photo Editor near Gandhi Chowk Ghumarwin District Bilaspur H.P. There is further recital in the affidavit that opposite party has sent photo album of 7 Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) marriage ceremony of complainant for editing of photos. There is further recital in the affidavit that complainant had paid amount to the tune of Rs.13500/- (Thirteen thousand five hundred) to the opposite party for preparation of photo album of marriage and marriage ceremony movie in his presence.
14. Opposite party filed affidavit in evidence. There is recital in the affidavit that complaint filed by complainant is not maintainable and complainant has no cause of action to file the consumer complaint. There is recital in the affidavit that there was no contract of preparation of marriage ceremony movie with the complainant. There is further recital in the affidavit that there was contract for preparation of photo album of marriage only. There is further recital in the affidavit that deponent did not commit any deficiency in service. There is further recital in the affidavit that complainant has paid only Rs.5000/- (Five thousand) and did not pay the remaining amount of Rs.13500/-(Thirteen thousand five hundred).
15. Opposite party also filed affidavit of Parkash Chand in evidence. There is recital in the affidavit that complainant engaged opposite party for marriage ceremony. There is further recital in the affidavit that opposite party was engaged for preparation of photo album of marriage. There is further recital in the affidavit that parties are known to 8 Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) deponent. There is further recital in the affidavit that in the marriage only photo snaps were taken. There is further recital in the affidavit that complainant has paid only Rs.5000/- (Five thousand) in advance to the opposite party for preparation of photo album of marriage and did not pay remaining amount of Rs.13500/- (Thirteen thousand five hundred) and filed false complaint.
16. Submission of learned advocate appearing on behalf of complainant that learned District Forum has not properly appreciated the evidence filed by complainant by way of affidavits and on this ground appeal be allowed is decided accordingly. Complainant has filed affidavits of (i) Ravinder Kumar (Complainant) (ii) Sonika (iii) Krishan Lal (iv) Dinesh Kumar (v) Raman (vi) Sandeep Kumar in evidence relating to controversial facts as per section 13(4) of Consumer Protection Act 1986.
17. Ravinder Kumar complainant has specifically stated in the affidavit in positive manner that service of opposite party was engaged for preparation of photo album of marriage and marriage ceremony movie in consideration amount of Rs.18500/- (Eighteen thousand five hundred). There is positive recital in the affidavit that consideration amount of Rs.5000/- (Five thousand) was paid in advance to the opposite party and remaining amount to the tune of 9 Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) Rs.13500/- (Thirteen thousand five hundred) was paid on dated 04.05.2016 to the opposite party for preparation of photo album of marriage and marriage ceremony movie. There is further recital in the affidavit that opposite party did not prepare marriage ceremony movie.
18. Evidence of complainant by way of affidavit is supported by Sonika wife of complainant. There is recital in the affidavit that service of opposite party was engaged by complainant in marriage ceremony for preparation of photo album of marriage and marriage ceremony movie but opposite party did not prepare marriage ceremony movie despite receiving entire consideration amount. There is no evidence on record in order to prove that Sonika has hostile animus against opposite party at any point of time.
19. Affidavit filed by complainant is also supported by Krishan Lal who was engaged as cook in the marriage ceremony of complainant. There is positive recital in the affidavit filed by Krishan Lal that opposite party prepared photo album of marriage and marriage ceremony movie in the marriage of complainant in his presence. Krishan Lal is eye- witness of incident. Affidavit filed by Krishan Lal is trustworthy, reliable and inspires confidence of State Commission. There is no reason to disbelieve the affidavit filed by Krishan Lal. Even there is no evidence on record in 10 Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) order to prove that Krishan Lal has hostile animus against opposite party at any point of time.
20. Complainant also filed affidavit of Dinesh Kumar priest in evidence who solemnized marriage of complainant. Dinesh Kumar has specifically stated in the affidavit in positive manner that marriage was solemnized in his presence. Dinesh Kumar is eye-witness of incident. Affidavit filed by Dinesh Kumar is trustworthy, reliable and inspires confidence of State Commission. There is no reason to disbelieve the affidavit filed by Dinesh Kumar. Even there is no evidence on record in order to prove that Dinesh Kumar has hostile animus against opposite party at any point of time.
21. Complainant also filed affidavit of Raman in evidence. Raman is eye-witness of incident. Raman has specifically stated in affidavit in positive manner that opposite party has prepared photo album of marriage and marriage ceremony movie in the marriage of complainant. Affidavit filed by Raman is trustworthy, reliable and inspires confidence of State Commission. There is no reason to disbelieve the affidavit filed by Raman. Even there is no evidence on record in order to prove that Raman has hostile animus against opposite party at any point of time.
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Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017)
22. Complainant also filed affidavit of Sandeep Kumar in evidence. Sandeep Kumar has specifically stated in the affidavit that opposite party received amount to the tune of Rs.13500/- (Thirteen thousand five hundred) on dated 04.05.2016 in his presence from complainant as remaining consideration amount for preparation of photo album of marriage and marriage ceremony movie. Affidavit filed by Sandeep Kumar is trustworthy, reliable and inspires confidence of State Commission. There is no reason to disbelieve the affidavit filed by Saneep Kumar. Even there is no evidence on record in order to prove that Sandeep Kumar has hostile animus against opposite party at any point of time.
23. It is well settled law that facts could be proved under Consumer Protection Act 1986 by way of filing affidavits. As per section 13(4) of Consumer Protection Act 1986 complainant has proved the fact that service of opposite party was engaged for preparation of photo album of marriage and marriage ceremony movie. Fact that complainant has paid amount of Rs.5000/- (Five thousand) to the opposite party is proved by way of bill dated 04.05.2016 placed on record by opposite party. Opposite party has admitted that opposite party has received advance amount to the tune of 12 Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) Rs.5000/- (Five thousand) from the complainant. Bill annexure CW-6/A remained unrebutted on record.
24. Factum of payment of remaining consideration amount of Rs.13500/- (Thirteen thousand five hundred) is proved by way of affidavit of Sandeep Kumar eye-witness. Sandeep Kumar eye-witness has specifically stated in positive manner that opposite party received amount of Rs.13500/- (Thirteen thousand five hundred) in his presence on dated 04.05.2016. There is no reason to disbelieve the affidavit filed Sandeep Kumar relating to payment of remaining amount of Rs.13500/- (Thirteen thousand five hundred) to the opposite party by complainant in the presence of Sandeep Kumar.
25. Submission of learned advocate appearing on behalf of opposite party that there was no privity of contract between the complainant and opposite party relating to preparation of marriage ceremony movie and on this ground appeal be dismissed is decided accordingly. (i) Ravinder Kumar (ii) Sonika (iii) Krishan Lal (iv) Dinesh Kumar (v) Raman have specifically stated that they were present in the marriage and they are eye witnesses of marriage. They have specifically stated in the affidavits in positive manner that opposite party was also preparing marriage ceremony movie. Fact that opposite party was preparing marriage ceremony movie in marriage is proved by way of affidavits filed by (i) Ravinder Kumar (ii) Sonika (iii) Krishan Lal (iv) Dinesh Kumar 13 Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017)
(v) Raman. No plausible reason assigned by opposite party as to why opposite party was preparing marriage ceremony movie in the marriage of complainant when there was no privity of contract executed between the parties for preparation of marriage ceremony movie.
26. Submission of learned advocate appearing on behalf of opposite party that complainant has not paid remaining amount to the tune of Rs.13500/-(Thirteen thousand five hundred) is not accepted because eye witness namely Sandeep Kumar has specifically stated in positive manner in the affidavit that remaining amount to the tune of Rs.13500/-(Thirteen thousand five hundred) was paid to the opposite party by complainant on dated 04.05.2016 in his presence. Affidavit filed by Parkash Chand is not sufficient to rebut testimony of Sandeep Kumar because Sandeep Kumar has stated in positive manner in the affidavit that he personally counted amount to the tune of Rs.13500/- (Thirteen thousand five hundred) before supplying to the opposite party and amount was paid to the opposite party by complainant in his presence. There is no evidence on record in order to prove that Parkash Chand was present when amount of Rs.13500/- (Thirteen thousand five hundred) was paid to the opposite party by complainant on dated 04.05.2016 in the presence of Sandeep Kumar. Bill dated 04.05.2016 relied by learned District Forum is rebutted by 14 Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) way of affidavits of independent witnesses namely Krishan Lal, Dinesh Kumar and Sandeep Kumar. Krishan Lal, Dinesh Kumar and Sandeep Kumar are independent witnesses and are not interested witnesses. There is no reason to disbelieve the testimonies of independent witnesses namely Krishan Lal, Dinesh Kumar and Sandeep Kumar. There is no evidence on record in order to prove that independent witnesses namely Krishan Lal, Dinesh Kumar and Sandeep Kumar have hostile animus against opposite party at any point of time. Bill dated 04.05.2016 relied by learned District Forum is not sufficient to rebut affidavits filed by independent witnesses Krishan Lal, Dinesh Kumar and Sandeep Kumar because bill dated 04.05.2016 is not signed by complainant but is unilaterally signed by opposite party only. It is well settled law that when any document is unilaterally signed by party then same could not be used against adverse party who had not signed the document. Contents of bill dated 04.05.2016 have been written by opposite party in his own hand and not signed by complainant and could not be used against complainant as per Consumer Protection Act 1986. It is well settled law that contents of document could be used against adverse party only when contents of document are signed by adverse party. Bill dated 04.05.2016 has not been signed by complainant hence contents of document could not be used against complainant. Even in the document dated 04.05.2016 no 15 Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) name of any marginal witness is mentioned. Even in the document dated 04.05.2016 there is cutting in the column of name and cutting has not been signed by the opposite party and document dated 04.05.2016 has been written and signed by opposite party only and in the present consumer complaint opposite party is interested person and State Commission is of the opinion that positive corroborative evidence was required in order to rebut affidavits filed by Krishan Lal, Dinesh Kumar and Sandeep Kumar independent witnesses. Even Opposite party did not file any application for interrogatories of Krishan Lal, Dinesh Kumar and Sandeep Kumar hence affidavits filed by Krishan Lal, Dinesh Kumar and Sandeep Kumar remained unrebutted on record. In view of above stated facts it is held that learned District Forum has not properly appreciated evidence of independent witnesses namely Krishan Lal, Dinesh Kumar and Sandeep Kumar filed by way of affidavits and committed illegality.
27. Marriage of complainant was solemnized on dated 20/21.10.2015. Opposite party did not issue any proforma bill prior to 20/21.10.2015. Bill was issued unilaterally on dated 04.05.2016 after expiry of more than 6 months of marriage of complainant. State Commission is of the opinion that opposite party did not issue proforma bill prior to marriage qua his prospective services. No reason assigned by opposite party as to why opposite party did not issue any 16 Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) proforma bill to the complainant prior to marriage qua his prospective services in marriage. Non-issuance of proforma bill by opposite party prior to marriage qua his prospective services amounts to deficiency in service on the part of opposite party under Consumer Protection Act 1986. In view of above stated facts it is expedient in the ends of justice and on the principles of natural justice to interfere in the order passed by learned District Forum. Point No.1 is decided accordingly.
Point No.2: Final Order
28. In view of findings upon point No.1 above appeal is allowed and order of learned District Forum is set aside and complaint filed by complainant is allowed. It is ordered that opposite party would supply marriage ceremony movie to the complainant within one month after the receipt of certified copy of order of State Commission. In alternative opposite party would pay sum of Rs.18500/- (Eighteen thousand five hundred) to complainant alongwith interest @ 9% per annum from the date of institution of complaint till realization within one month after receipt of certified copy of order of State Commission. It is further ordered that in addition opposite party would pay a sum of Rs.10000/- (Ten thousand) alongwith interest @ 9% per annum from the date of institution of complainant till realization to the complainant 17 Ravinder Kumar Versus Lucky Photo Studio (F.A. No.130/2017) as compensation for mental agony and harassment within one month after the receipt of certified copy of order of State Commission. It is further ordered that in addition opposite party would also pay a sum of Rs.5000/- (Five thousand) alongwith interest @ 9% per annum from the date of institution of complainant till realization to the complainant as litigation costs within one month after the receipt of certified copy of order of State Commission. Affidavits filed by Krishan Lal (Cook), Dinesh Kumar (Priest) and Sandeep Kumar will form part and parcel of order. Post marriage receipt issued by opposite party dated 04.05.2016 will also form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 26.02.2018.
*GUPTA* 18