BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

  Complaint No.493 of 2018

       Date of Instt. 29.11.2018

       Date of Decision:22.06.2022

Narinder Singh son of S. Kawaljit Singh, resident of House No.11/A, New Gautam Nagar, Basti Bawa Khel, Jalandhar.

..........Complainant

Versus

1.       Sh. Harpreet Singh, Proprietor of Born Star Records & Productions, 391-B, Surya Enclave, Jalandhar.

2.       Born Star Records & Productions, 391-B, Surya Enclave,        Jalandhar through its Proprietor Sh. Harpreet Singh.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. R. K. Kashyap, Adv. Counsel for the Complainant.

                   Sh. Sohit Talwar, Adv. Counsel for OPs No.1 and 2.

Order

                   Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein he has alleged that the complainant is having desire to promote himself in singing profession for livelihood purpose. In order to try his luck in singing profession, the complainant desired to record the songs in his own voice as such, the complainant availed the services of OPs. The OP No.1 came into contact with the complainant through one known person. The OP No.1 disclosed that the OP No.1 is the sole proprietor of the OP No.2, firm namely Born Star Records & Productions, which deals in providing services for video recording of songs after satisfactory editing, DOP, DI and CC processing. After considering the goodwill and reputation prevailing in the market as disclosed by the OP No.1, the complainant decided to get recording of songs in his own voice. The total deal for recording of the songs in his own voice. The total deal for recording of the songs and providing video thereof after editing, D.O.P., D.I. and CC processing to the satisfaction of the complainant, was struck at Rs.80,000/-. The OP No.1 initially has received a sum of Rs.30,000/- from the complainant vide cheque No.000031 dated 14.05.2018 drawn on HDFC Bank Branch Basti Bawa Khel, Jalandhar and on 21.05.2018 a sum of Rs.50,000/- was paid in cash to the OP No.1. Thereafter terms and conditions agreed upon by the OP No.1, were reduced into writing on 21.06.2018 vide contact/agreement executed by the OP No.1, with the complainant on 21.06.2018 in the presence of witness, vide which the OPs agreed that the shooting process of the songs would be completed within 20 days from the day of shoot. It is worth mentioning that the first shooting process of the songs was commenced on 21.05.2018 and the same was not satisfactory, as such, the second shoot of the songs was again done on 22.06.2018. The OP No.1 has not provided the final video containing recorded songs in the voice of the complainant after editing the perfect manner even on the lapse of agreed 20 day’s time till date. The complainant has spent approximate a sum of Rs.60,000/- towards clothing especially required for the recording and shooting purpose of the songs. The inordinate delay for not completing and processing the video of the songs recorded in the voice of the complainant after editing, DOP, DI and CC processing to the satisfaction of the complainant, has caused a great embarrassment, loss of goodwill among the close friends and society and the complainant could not also approach to the Music Company of repute for promoting/labeling of the recorded songs. The complainant also served a legal notice upon the OP No.1 through his Counsel on 24.08.2018, but all in vain and the OPs sent a vague reply. Under the circumstances as stated above, there is a deficiency in service on the part of the OPs and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the sum of Rs.80,000/- alongwith interest @ 12% per annum thereon and further, OPs be directed to refund additional sum of Rs.10,000/- received from the complainant and to refund the sum of Rs.45,000/- towards specially designed and stitched clothes with dress materials for recording and shooting of the songs. Further, OPs be directed to pay a compensation of Rs.1,50,000/- on account of mental agony and harassment suffered by the complainant at the hands of the OPs and Rs.11,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs, who filed joint written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable as it does not come under the ambit of the Consumer Court. The complainant does not fall under the definition of Consumer, because as per his own version, the services availed by the complainant from the OPs are for use of his songs for the commercial purposes. As such, the complaint is not maintainable before the Hon’ble Commission. It is further averred that the complainant has no cause of action to file the present complaint against the answering OPs. The true facts of the case are that as per the requirements of the complainant on the first occasion, the OPs provided services for Video Recording of Song etc. and the CD of the said Video Recording was duly sent to the complainant by the OPs through mobile app v-transfer as well as whatsapp. The copy of the said video recording is still kept with the OPs for record. Thereafter, the complainant required some modifications in the video and again, as per the requirements of the complainant again prepared the video recording of the song. The earlier amount settled by the complainant was duly received by the OPs but later on, for the second time, when the complainant instructed for some modifications in the video recording, an amount of Rs.50,000/- was settled for the work, but the complainant did not pay a single penny to the OPs. The complaint is false and is liable to be dismissed. It is further averred that the complainant has not come to the court with clean hands and has suppressed the material facts. The present complaint is sheer abuse of process of law and has been filed to extort money in the shape of compensation with false allegations. It is further averred that there is no alleged deficiency in service on the part of the OPs. On merits, the factum with regard to availing the services of the OPs by the complainant is admitted and it is also admitted that the OPs received a sum of Rs.30,000/- and a sum of Rs.50,000/- from the complainant for the work done by the OPs, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder not filed by the complainant.

4.                In order to prove their respective versions, both the parties have produced on file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by both the parties very minutely.

6.                It is admitted case of the parties that both the parties entered into a contract for completing the video-graphy and recording of song within agreed 20 days for total consideration of Rs.80,000/-. The OP has also admitted the receipt of Rs.80,000/- from the complainant, Rs.30,000/- in cheque and Rs.50,000/- in cash. From the contention and pleadings of both the parties, it is proved that the complainant availed the services of OPs for recording his songs. Ex.C-1 is the agreement executed between the complainant and the OP for recording the video song of the complainant.

7.                The contention of the complainant is that after receiving the full amount of Rs.80,000/- and as per the terms and conditions of the contract Ex.C-1, the OP has not completed the work within 20 days as agreed. The complainant has relied upon the conversation between the complainant and the OP to show that the complainant remained in touch with the OP right from 15.06.2018 till 06.08.2018, but the OPs did not complete the work till 23.06.2018 as per the conversation rather demanded Rs.10,000/- from the complainant, which were paid to the OP. He has alleged that there is a deficiency of service on the part of the OP for not completing the work and has demanded the refund of Rs.80,000/- given in advance to the OP for the completion of his video song recording and Rs.10,000/- has given in cash as per the demand raised by the OP and further demanded the cost of the costumes.

8.                The contention of the OP is that the present complaint is not maintainable as the services availed by the complainant from the OPs are for commercial purposes. It has been alleged by the OP that the video recording of the song of the complainant was duly supplied by the OP to the complainant. Since the complainant required some modifications, the OP again prepared the video by making modifications and the same was again sent to the complainant. He has produced on record the two pen drives Ex.OP-1 & Ex.OP-2 to show the video recording of the song of the complainant. It has been alleged by the complainant that it was the complainant who opted to get the second shoot as he wanted some modifications and because of his own willingness of second shoot the delay was caused. He has denied the receipt of Rs.10,000/- as alleged by the complainant and he has also denied the chattings relied upon by the complainant and has alleged that the same are forged and fabricated document. He has alleged that Rs.50,000/- demanded by the OP has not been given by the complainant so far and requests to dismiss the complaint.

9.                Section-2 (1) (d) of Consumer Protection Act, 1986 deals with the meaning of consumer, which is as under:-

          (d) “consumer” means any person who,—

          (i)  buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

          (ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who  [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];

10.              The contention of the counsel for the OPs that the complaint is not maintainable as the complainant wanted to promote his songs for commercial purposes is not tenable as in para No.1 of the complaint and in his written arguments, the complainant has specifically alleged that he wanted to promote himself in singing profession for his livelihood purposes. Once as per the provisions of Consumer Protection Act, a person availed the services of the OPs for his livelihood, it is not meant for commercial purposes. So, the complaint is maintainable.

11.              As discussed above, the contract between the complainant and the OP has been admitted. Ex.C-1 is the photocopy of the agreement relied upon by the complainant, bearing the signatures of Harpreet Singh/OP No.1, but the signature of the complainant are not there on the copy of agreement. The signatures appended by complainant are not photocopy of the original signatures. Though the agreement has been admitted by the OP, but from the perusal of this document, it is clear that the original document was not bearing the signatures of Narinder Singh. In Para No.4 of the written statement, the OP has categorically alleged that the complainant is guilty of making some additions and alterations in the terms and conditions of the agreement and further put the forged and fabricated signature of the OP at some places.

12.              As discussed above the original of Ex.C-1 has not been produced and the copy of the original clearly shows it was not bearing the signatures of the Narinder Singh i.e. the complainant and as such, from this document, it cannot be said that the contract was completed with the terms and conditions mentioned in Ex.C-1.

13.              The complainant has relied upon the chattings between the complainant and the OP. This chatting is on the whatsapp and the same are Ex.C-5 to Ex.C-18, which shows this is the copy of the screen shot taken from the mobile phone. The name mentioned is of Harry Paji Bomstar Bosns, but no phone number has been mentioned in these documents. The OP has specifically denied the chattings alleged by the complainant i.e. Ex.C-5 to Ex.C-18. Since the OP has denied this chatting, then it was incumbent upon the complainant to prove that the conversation in Ex.C-5 to Ex.C-18 is between the complainant and the OP. No certificate under Section 65 (b) of Indian Evidence Act has been proved by the complainant to prove the chatting and its admissibility. He has not examined any expert to prove this chatting. Therefore, this document cannot be relied upon.

14.              The complainant has further tendered the affidavit of the Akashdeep Singh Sohal, Proprietor of AD Fashion Point as Ex.C-4 to prove that the complainant got stitched dresses for shooting and recording of his songs and the deponent i.e. Akashdeep Singh Sohal had charged and received a sum of Rs.45,000/- from the complainant for materials, designing and stitching of 14 pairs of dresses. Mere filing of affidavit does not prove that these dresses were got stitched by the complainant. Moreso, if the same were stitched for shooting purposes, then it was for the promotion of songs by the complainant only. These dresses were never got stitched for any benefit of the OP rather this amount was spent for his own self by the complainant. The complainant has also examined Narayan Sharma who has tendered his affidavit Ex.C-19 who is allegedly a proprietor of Sur Studio and has performed as Music Director when the song was shoot and recorded in the voice of Narinder Singh by Harpreet Singh. This fact has been admitted by this witness that the song was shoot and recorded in the voice of the complainant. Though, the proceedings under the Consumer Protection Act is a summary trial and it does not require formal proof of anything, but to prove his case, the complainant is to prove prima-facie his allegations and his case. This witness i.e. Narayan Sharma has not produced on record any document to show that he is working as a Music Director or has qualification to act and perform as a Music Director. Even otherwise, if it is presumed for the sake of argument that this witness acted and performed as a Music Director, then as per his own evidence, the song was shoot and recorded by the OP.

15.              The contention of the complainant is that he was not satisfied with the work and the work was not completed timely by the OP. In his arguments, he has simply alleged that the work was not completed within 20 days as per the terms and conditions of the agreement Ex.C-1, but he has nowhere mentioned as to when the work was completed and how much delay was there by the OP and as to whether the delay was intentional. In his complaint in Para No.5, he has alleged that first shooting process of the song was commenced on 21.05.2018 and the same was not satisfactory, as such, the second shoot of the song was again done on 22.06.2018, meaning thereby that there were two shoots of the song got done by the complainant.

16.              The OP has alleged that the complete video song was prepared and was given to the complainant and the delay, if any, was due to the fault of the complainant as he sent the videos again and again for modifications. The video was again prepared and sent to the complainant with modifications and the reshoot was the choice of the complainant only. He has produced on record the two videos of the songs of the complainant. The Commission has played the videos and the complainant has failed to show as to where the fault lies and why the videos are not satisfactory as per his own allegations. No expert has been examined by him to prove that the work done by the OP is not satisfactory and is full of faults of the OP and deficient in services. As per the allegations of the OPs, the modifications were done as per the demand of the complainant and even this fact has been admitted by the complainant that there was a reshoot of his song. This shows that he got reshoot of his own will and he has failed to explain the extent of satisfaction what he wanted from the OP and where the OP was lacking.

17.              The complainant has alleged that Rs.10,000/- as demanded by the OP were given to the OP by him, but no document has been produced on record by the complainant to prove that Rs.10,000/- were ever given by him to the OPs in cash. So, from all the angles the complainant has failed to prove his case and as such, the complaint of the complainant is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

18.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj 22.06.2022         Member                        Member           President