D.O.F. 30.07.2010

                                        D.O.O.03.03 .2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

       Present:   Sri. K.Gopalan                 :    President

             Smt. K.P.Preethakumari  :     Member

             Smt. M.D.Jessy                :     Member

Dated this the  3^rd  day of March  2012

C.C.No.189/2010

P.P.Chithran,

Gouri Shankaram,

P.O.Cheruparamba,

Kolavallur                                                    Complainant

(Rep. by  Adv. M.K.Prakash ) 

1. K.Shahji,

    Avani Digital Studio,

    Nayanar Road, Ponniam West,

   Thalassery                                                 Opposite party

    (Rep. by Adv.C.M.Vijesh Babu)                                     

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay an amount of `50,000 as compensation together with costs of these proceedings to the complainant.

          The case of the complainant in brief is as follows: Complainant’s marriage was solemnized on 14.9.09. Opposite party was entrusted to video graph the function and provide still photographs. He agreed to cover the function on the marriage eve at the complainant’s house and the marriage function from the bride’s residence and few out door coverage and he agreed to provide the video CD and modern still photo albums to the complainant for a total sum of `15,000. Complainant paid `13,000 to the opposite party on the date of marriage. Few out door snaps were taken on two days after the marriage at Valiavelicham and Mambram. The opposite party delayed the supply of video CD and still photo album. The opposite party supplied a video CD after two months. On playing the CD it was found that the opposite party omitted to cover the marriage eve function and the exchange of bridal dress to the bride. The CD supplied by the opposite party was of inferior quality. He declined to give  still photo album saying that video CD is sufficient for `13,000.Complainant  lodged a complaint before the Kadirur Police against them. Subsequently opposite party filed a complaint before the DYSP Thalassery against complainant. Police directed opposite party to handover the stil photo album to complaint. But he did not handover the same. Subsequently complainant requested submitting complaint to All Kerala Photographers Association, Thalasery unit. The complainant was ready to pay the balance amount.  Immediately after the complaint opposite party sent a lawyer notice with false allegations demanding `50000 and the balance amount `2000. The contention that a separate big screen was produced by opposite party is not correct and for out door shooting, the  opposite party came for one day. Since the still photo album of the function had not been handed over complainant sustained  untold miseries and mental agony which cannot be measured in terms of money. Hence this complaint for compensation for an amount of  `50,000.

           Pursuant to the notice opposite party filed version denying the allegations of complainant and contended as follows: It is false to say that opposite party had agreed to provide the video CD and still photo albums of the marriage function for a sum of `15000. It is  also false to say  that the complainant paid `13000 to opposite party on the date of marriage and that few out door snaps were taken on  two days after the marriage at Valiyavelicham and Mambram and opposite party delayed  the supply of CD  and still photo album. The work entrusted to opposite party were taking video still photographs and providing projector for showing the stage program on a big screen on the marriage eve at Kolavallur for `15,000. The complainant did not ask for an album, because the cost of the album alone would have come to `10,000 and. There was no contract to provide an album to the complainant. The marriage eve functions took place at Kolavallur and marriage function was at Mayyil. In addition to the proceeding of these two functions, three days out door shooting at Valiyavelicham and IG Park at Mambram were also pictured by the opposite party, employing five staff along with him for five days. Immediately on completing the work, two sets of DVDs, CD containing the still photos and Master print of the video tape were given to the complainant as demanded by him but he paid only `13,000 in two installments. He did not give the balance amount. When opposite party asked for the balance amount, they approached Kadirur police station instead of settling the amount making false allegation. This opposite party was detained by the police on 24.2.2010 and the next day and this is done at the instance of the complainant, with a view to escape from the liability of settling the amount. It was under these circumstances that the opposite party was forced to file a complaint before the District Superintendent of Police, Thalassery. Opposite party caused a lawyer notice on 1.3.2010.The present complaint  is only a counter blast and to escape from the liability. Hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1.     Whether there is any deficiency in service on the part of

     opposite   Party?

2. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral testimony of  PW1,DW1 and Exts.A1 to A4 and the CD produced by the opposite party.

Issue Nos.1 to 3

          It can be seen that the case of the complainant is that he had entrusted opposite party to video graph the marriage functions and provide still photo album for `15,000. Opposite party delayed the video CD and still photo album. After two months of marriage he supplied a video CD to complainant. On playing the CD it was also found that the opposite party omitted to cover the marriage eve function and the exchange of bridal dress. It was also found the CD was of inferior quality. He did not give the photo album saying that, for the payment of `13,000 CD is sufficient. Opposite party on the other hand contended that the work entrusted to the opposite party were taking video still photographs and providing projector for showing that the stage program on big screen on the marriage eve for `15,000.

          Though the question of entrustment of work is in dispute. It is necessary to dig into the facts and evidence of the case to find what are the items agreed upon to do in connection with the marriage function so as to decide the crux of the matter. Any how the item No.1 taking video is admitted by the opposite party. Opposite party specifically contended that complainant did not ask for an album, because the cost of the album alone would  come to `10,000 and there was no contract to provide an album to the complainant. Complainant has the case that opposite party after much delay of 2 months time the CD delivered and according to him there is an omission of video coverage of certain important items of functions viz. the marriage eve function and the exchange of bridal dress etc. Complainant has also alleged that the CD supplied was of poor quality. Opposite party contended that immediately on completing the work, two sets of DVD’s CD containing the still photos and master print of the video tape were given to the complainant but he paid only `13,000. But opposite party did say anything about the delay of two months to deliver the CD and of its poor quality.

          Complainant adduced evidence by way of chief affidavit in tune with the pleadings. He has stated that opposite party agreed to provide the video CD and modern still photo album for a total amount of `15,000. Out of which `13,000 paid on the day of marriage and the balance `2000 promised to be paid at the time when CD and album was supposed to be given. In the cross examination answer to the question put to him by the counsel for the opposite party complainant deposed thus “ Fsâ  Ie-ym-W-¯n\p th­ Imc-y-§Ä-F-Xr-£nsb tFÂ]n-¨Xp A\p-P-\mWv .F\n¡v AXn-s\-]än H¶pT Ad-nbn-Ã.-F-Xr-I-£nsb  tF¸n¡p-t¼mÄ   dko-säm-¶pT X¶n-cp-¶n-Ã.-Fsâ hnhm-l-¯n-\p- C¶ C¶ Imc-y-§Ä sN¿m-\mWv tF¸n¨Xp F¶p ImWn-¡m³ tcJ-IÄ H¶pT lmP-cm-¡n-bn-«nÔ. This evidence in anyway does not help to ascertain what all items of work had been entrusted with opposite party to deal with. Opposite party by his affidavit evidence stated that: “BÂ_T skäp-sN-¿p-¶-Xn hnZ-Kv[-\mb ]cm-Xn-¡m-csâ ktlm-Z-c³ jT-Pn¯v tF¸n-¡p-¶-k-a-b¯v  hoUntbm Nn{Xo-I-c-W-hpT hnhm-l-¯nsâ  still t^mt«m FSp¯v Bb-Xnsâ C.D \ÂIp-hm-\p-amWv Ft¶mSv Bh-i-y-s¸-«n-cp-¶-Xp. BÂ_T At±-lT Xs¶ skäv sNbvXp-sIm-f-fm-sa-¶mWv Ft¶mSv ]d-ªn-cp-¶Xp”. When opposite party gives evidence by way of affidavit evidence in tune with his pleadings that the brother of complainant who is an expert in setting photo album had entrusted him to take video still – photos, the complainant deposes in cross examination that the work in connection with marriage function was entrusted to opposite party by his brother. He has also deposed that he was not aware of the details. It is also come out that no receipts were issued and he has not produced any evidence to show what all items were entrusted to perform. So the agreement of exact terms can only be brought to light on examination of the brother of the complainant who actually engaged the opposite party to take video. He was not examined. The documents produced by the complainant Ext.A1 to A4 is not sufficient to prove the terms of understanding between the parties.Ext.A1 is the request letter dt. Nil submitted to  All Kerala Photographer’s Association.Ext.A2 is the lawyer notice of opposite party  dated 1.3.10 to complainant wherein, he has contended that he has entrusted to take video and  still photographs of marriage function and of providing projector, on the marriage eve, for showing the stage program on a big screen on a total cost of `15,000. Ext.A3 is the reply letter dated 9.3.2010 given by Secretary, AKPA informing the complainant that the subject mater presented through Ext.A1 given on 27.2.2010. Ext.A4 is the rate card. Depending on these documents it is not possible to ascertain the terms of the agreement and what are the items entrusted with him. It is a fact that the brother of complainant is an expert in setting photo albums. He is being a photo setting expert when entrusting opposite party the video work of marriage function, there arose little bit doubt.  The contention of opposite party is that the setting of photo album had not been entrusted to him. Under such circumstances, no doubt, the brother of the complainant is the best person to give evidence in respect of this aspect. Non examination of him leads to assume that there is possibility of excluding these items of work viz. setting of photo album. Moreover opposite party also contended that the cost of photo album itself would come `10,000 .That was not denied. Moreover, this issue would have been an issue from the very beginning itself and it would not have been waited for such a long period of one year to raise that question if the photo album had not been given. Anyhow complainant could not succeed to prove beyond doubt with cogent evidence that the brother of the complaint had entrusted the opposite party to set up photo album especially on the reason of non examination of the complainant’s brother who allegedly entrusted the work with the opposite party. It is also adversely affect since he is the proper person to speak of the entrustment of work and its terms. In the light of the existing facts and circumstances of the case it is difficult to cast deficiency in service on the part of opposite party and hence issues 1 to 3 are found against complainant.

          In the result, the complaint is dismissed.

                             Sd/-                 Sd/-                     Sd/-                                       

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1. Copy of the letter sent to All Kerala Photographers Association,

      Thalasery Unit.

A2. Copy of the lawyer notice sent by Ops

A3. Reply given by AKPA, Thalasery Unit dt.9.3.2010

A4. Copy of the rate card issued by AKPA

 CD

Exhibits for the opposite party: Nil

Witness examined for the complainant

PW1.complainant

Witness examined for the opposite parties

DW1. K.Shaji

                                                  / forwarded by order/

                                                                                                                                           Senior Superintendent