West Bengal
Darjeeling
CC/17/2022
Satyam Gurung - Complainant(s)
Versus
Samden Yolmo - Opp.Party(s)
13 Dec 2023
ORDER
F I N A L O R D E R
An application has been filed by the Complainant U/S 35 of the C.P. Act,2019
alleging deficiency in service against the O.P, who is a photographer by
profession, for not providing professional photographs and cinema of the
wedding of the complainant to him in terms of the agreement made by and
between the parties from the dates 09/04/2022 to 16/04/2022 and therefore the
complainant filed this case and prayed for compensation to the tune of Rs 30
lakhs for mental pain, sufferings, harassment, injury and damages caused to him.
The gist fact of the case of the Complainant is that the Complainant initiated
contact with the Opposite Party via Whatsapp on 15 th February, 2022 expressing
interest in photography and cinematography services for his upcoming wedding.
After reviewing the O.P provided brochure to the complainant and the
complainant agreed to a package deal of Rs. 1,20,000/-Rupees One Lakh Twenty
Thousand Only covering events on 9 th April,2022 at Gangtok and 16 th April,2022,
at Gymkhana Club, Darjeeling.
The O.P had further demanded additional charges to any wedding events
outside Siliguri, i.e travelling expenses and accommodation charges and the
complainant had accepted to bear such additional charges and the Complainant
booked rooms at Dzongkar Hotel , Gangtok at a cost of Rs. 15,000/-Rupees
Fifteen Thousand only for the Opposite Party and his team for the dates 8 th and
9 th April,2022.
The Complainant had made three payments, totaling Rs 1,00,000/- Rupees
One Lakh Only and it was agreed that the balance of Rs 20,000/- Rupees Twenty
Thousand Only would be paid at the time of final delivery of Photographs and
cinema as aforesaid.
Cont/Page -3
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Consumer Complaint No C.C- 17 of 2022
It is the allegation of the complainant that after the wedding the complainant
had enquired as to when the photographs and the cinema of the wedding would
be delivered and the Opposite Party had assured that it would be ready within a
month but on not hearing from the Opposite Party for a month and not receiving
the photographs and the cinema, the complainant enquired about the delay and
the Opposite Party informed that the hard disk where the data Photographs and
Video had been stored had crushed and that the Opposite Party would need
some more time to recover the data. Later, the Opposite Party informed the
Complainant over the phone that the hard disk had been sent for data recovery to
Delhi and from there they had sent it to Netherlands for the data to be recovered
but the same was in vain.
The complainant had been in constant contact with the Opposite Party and
trying to figure out ways to recover the data while being ever hopeful of getting
the photographs and cinema. However, on 5 th and 6 th July ,2022 without any prior
explanation or intimation the Opposite Party transferred an amount of Rs.
90,000/- Rupees Ninety Thousand Only by way of G- pay to the Complainant
leaving him puzzled. Later, on 29 th August, 2022 the Opposite Party further
transferred a sum of Rs 10,000/- Rupees Ten Thousand Only to the Complainant
as a result of which the Complainant came to the realization of the bitter truth
that the Opposite Party will not be able to deliver the photographs and cinema of
the wedding and reception and the Opposite Party transferring the aforesaid
amount of Rs. 1,00,000/- Rupees one lakh only was the death knell completely
quashing all hopes of ever receiving and seeing the photographs and cinema of
the wedding. The Complainant had sent legal notice to the O.P on 31.08.2022
asking him to deliver the wedding photographs and cinema, but in reply the O.P
admitted his inability to deliver the photographs and
Cont/Page-4
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Consumer Complaint No C.C- 17 of 2022
cinema to the Complainant. The Complainant further alleges negligence and
deficiency in service on the part of the O.P as all the memories of his wedding
have been lost forever. The Complainant further stated that he has faced the
burnt from his bride and harassed by friends and families on both ends for not
receiving the photographs and cinema. The incompetency and lackadaisical
attitude of the Opposite Party has caused immense mental stress and agony to
the Complainant and that is why he has filed the case for proper redressal.
The Complainant has filed the following documents by annexure in order to
prove his case:-
1. Photocopy of brochure of Samden Photography Annexure No 1
2. Photocopy of Legal notice sent on behalf of the Complainant through
Advocate Riwaz Rai, dated 31.08.2022.
3. Photography of reply to the Legal notice, dated 26.09.2022.
4. Photocopy of bill from Dzongkar Hotel, dated 10.04.2022.
Notice has been sent upon the O.P and the O.P had entered appearance in the
case on 21.12.2022 and subsequently filed Written Version on 06.02.2023.
In the Written Version, the O.P has inter-alia stated that the instant
application is not maintainable in its present form as well as on law and the
instant application is absolutely barred by the law of Limitation and the
Complainant has purposely suppressed/ concealed the material facts/ actual truth
before this Ld. Commission with an ill intension to mislead, misguide and
misdirect this Ld Commission and further stated that the instant application is
misconceived one and as such, the same is liable to be dismissed with
compensatory cost to the O.P.
Cont/Page-5
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Consumer Complaint No C.C- 17 of 2022
The O.P further denied all the allegations leveled by the Complainant in the
complaint and stated that all the averments are false, mala-fide, concocted,
vexatious, unfounded and cooked up only for the purpose of harassing the
complainant unnecessary and the Complainant is liable to put strict proof thereof.
It is submitted by the O.P that according to the brochure and the oral
agreement, the pictures and the videos were to be provided to the complainant
within a span of 3 to 4 months from the date of relevant occasion but on being
asked by the complainant that he needed the pictures and videos earlier than the
schedule date the O.P being unable to refuse the said request of the complainant
, the O.P assured the complainant that he will do everything in his power to
obliged with such request of the complainant.
It is submitted by the O.P that it was the O.P who at first contacted and
informed the Complainant about the unfortunate event of crashing down of the
hard disk and the O.P was able to only back-up the folder containing pictures and
videos of 16.04.2022 occasion and the O.P have already handed over total
number of 610 pictures and videos of 16.04.2022 occasion via sharing the links of
Google Drive without taking a single penny from the Complainant and completely
free of cost.
It is further submitted by the O.P that unfortunately while backing –up the
pictures and the videos from the hard disk to the computer in the end of
May,2022 due to sudden lightening strike in the locality of the O.P , the Hard Disk
got crashed and the O.P was only able to back-up the folder containing the
pictures and the videos of the 16.04.2022 occasion and immediately after such
accident the O.P contacted the Stellar Information and Technology Pvt. Ltd. The
O.P physically remitted the Hard Disk to their Gurgaon Office and also made
Cont/Page-6
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Consumer Complaint No C.C- 17 of 2022
ad-hoc payment of Rs 50,663/- Rupees Fifty Thousand Six Hundred Sixty
Three Only on 24.06.2022 through Union Payment Interface and such tragic
development was obviously informed to the Complainant and assured that any
updates would be time to time informed to the Complainant.
It is further stated by the O.P in his W.V that despite various efforts from the
side of the Stellar Information and Technology Pvt. Ltd. they failed to recover the
said data and the reason attributed was scratches on the upper side of the second
platter of the hard Disk and despite repeated head transplantation none of the
sectors of the Hard Drive could be cloned and as such the case was closed by the
Stellar Information and Technology Pvt. Ltd and the said sum of Rs. 50, 663/ was
refunded to the O.P and even after closing the case by the Stellar Information
and technology Pvt. Ltd, the O.P further requested the Steallar Information and
Technology Pvt. Ltd to send the said Hard Drive to Netherlands Team in order to
take advance help and Technology Support from them to review the scope of
recovery, if any, but Stellar Information and Technology Pvt. Ltd , did not send the
HDD to Netherlands as the chance of data recovery was almost NIL and
immediately the O.P informed about his inability to provide the pictures and
videos of 09.04.2022 occasion to the Complainant.
It is further stated by the O.P in his W.V that the O.P and his professional
team had/ have gave their level best to efforts to render theirs services to the
Complainant but unfortunately due forces beyond the control of O.P, the O.P
could not deliver the pictures and videos of 09.04.2022 occasion which definitely
fall within the ambit of force Majeure and / or Doctrine of Supervening
Impossibility and as such the O.P cannot be termed as negligent or deficient in
Cont/Page-7
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Consumer Complaint No C.C- 17 of 2022
providing service as alleged. Due to sudden lightening the hard disk had been
crushed and it was an Act of God and despite repeated efforts the data could
not be retrieved and there was no latches on the part of the O.P and as such the
O.P was not negligent or deficient in providing service towards the complainant in
any way and therefore prays for dismissal of the case and put the Complainant to
strict proof of the case. It is further stated by the O.P in his W.V that the O.P after
knowing from the Steallar Information and Technology Pvt. Ltd that the data
cannot be recovered and after that O.P immediately contacted the complainant
and informed about the same and O.P without any kind of request / pressure
from the side of the Complainant returned altogether a sum of Rs. 1,00,000/-
Rupees One lakh only as good gesture to the Complainant and such act of the
O.P was not to make the complainant puzzle but to respect the emotion and
value of the occasion and also to keep good relation with the complainant as well
as his good customers as the O.P is a reputed photographer of the Darjeeling
District working under the name and style of Samden Photography and the O.P
after transferring a sum of Rs 1,00,000/- Rupees One Lakh Only to the
Complainant, the O.P apologized for such unfortunate and unforeseen accident
and on good faith , the O.P, in addition to full refund of sum of Rs. 1,00,000/- also
proposed a full coverage of any future events of the complainant at free of cost
and therefore the O.P cannot be termed as adopted unfair trade practice also.
Further, it is stated by the O.P that the O.P had already handed over/
transferred total number of 610 pictures and videos of 16.04.2022 occasion via
sharing the links of Google Drive without taking a single penny from the
Complainant and completely free of cost and as such the O.P is not liable to pay
any compensation to the Complainant and the case must be dismissed due to
devoid of any merit.
Cont/Page-8
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Consumer Complaint No C.C- 17 of 2022
The Complainant has adduced evidence. O.P has fled questionnaire against the
evidence of the Complainant. Complainant has also filed reply with affidavit.
On the contrary, O.P has filed evidence. Complainant has filed questionnaire
against the evidence of the O.P. O.P has filed reply with affidavit.
Argument was heard in presence of both sides. Both sides filed B.N.A.
From the Complaint petition, W.V of the O.P, evidence of both the parties,
the following points are framed:-
a) Is the Complainant a Consumer under the O.P?
b) Is the O.P deficient in providing service towards the Complainant?
c) Has the O.P adopted unfair trade practice while dealing with the
Complainant?
d) Is the Complainant entitled to get any relief as prayed for?
DECISION WITH REASONS
All the points are taken together for the sake of brevity, avoidance of
repetition of facts and convenience for discussion.
It is evident from the evidence of the Complainant that the Complainant
initiated contact with the Opposite Party via Whatsapp on 15 th February, 2022
expressing interest in photography and cinematography services for his wedding
ceremony. The O.P provided brochure to the complainant and the complainant
Cont/Page-9
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Consumer Complaint No C.C- 17 of 2022
agreed to a package deal of Rs. 1,20,000/-( Rupees One Lakh Twenty Thousand
Only) covering events on 9 th April,2022 at Gangtok and 16 th April,2022, at
Gymkhana Club, Darjeeling.
Further, it is seen that the O.P had additionally demanded charges to any
wedding events outside Siliguri, i.e travelling expenses and accommodation
charges and the complainant had accepted to bear such additional charges and
he booked rooms at Dzongkar Hotel , Gangtok at a cost of Rs. 15,000/-( Rupees
Fifteen Thousand only) for the Opposite Party and his team for the dates 8 th and
9 th April,2022.
The Complainant had made three payments, totaling Rs 1,00,000/-( Rupees
One Lakh Only) and it was agreed that the balance of Rs 20,000/- ( Rupees Twenty
Thousand Only) would be paid at the time of final delivery of Photographs and
cinema as aforesaid. There is no dispute about such agreement by and between
the parties.
Therefore, in our view the Complainant is a consumer under the O.P in
terms of the definition of “Consumer” as defined U/S 2(7) of the C.P. Act, 2019
and the dispute involved in the case is a “Consumer Dispute” as per the
definition provided U/S 2(8) of the C.P.Act,2019.
Now, in order to ascertain whether the O.P is/was negligent or deficient in
service, we have to delve into the evidence of the parties once again.
It is seen from the evidence of the Complainant that he had made a contact
with the Opposite Party via Whatsapp on 15 th February, 2022 expressing interest
in photography and cinematography services for his wedding ceremony. The O.P
provided brochure to the complainant and the complainant agreed to a package
deal of Rs. 1,20,000/-( Rupees One Lakh Twenty Thousand Only) covering events
Cont/Page-10
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Consumer Complaint No C.C- 17 of 2022
on 9 th April,2022 at Gangtok and 16 th April,2022, at Gymkhana Club,
Darjeeling.
The O.P had further demanded additional charges for any wedding events
outside Siliguri, and the complainant had accepted to bear such additional
charges and he booked rooms at Dzongkar Hotel , Gangtok at a cost of Rs.
15,000/-( Rupees Fifteen Thousand only) for the Opposite Party and his team for
the dates 8 th and 9 th April,2022.The Complainant had made three payments,
totaling Rs 1,00,000/-( Rupees One Lakh Only) and it was agreed that the balance
of Rs 20,000/- ( Rupees Twenty Thousand Only) would be paid at the time of final
delivery of Photographs and cinema as aforesaid.
It is further seen from the evidence of the Complainant that after the wedding
the complainant had enquired as to when the photographs and the cinema of the
wedding would be delivered and the Opposite Party had assured that it would be
ready within a month and on not hearing from the Opposite Party for a month
and not receiving the photographs and the cinema, the complainant enquired
about the delay and the Opposite Party informed that the hard disk where the
data ( Photographs and Video) had been stored had crashed and that the
Opposite Party would need some more time to recover the data. Later, the
Opposite Party informed the Complainant over the phone that the hard disk had
been sent for data recovery to Delhi and from there they had to send it to
Netherlands for recovery of the data but the same was in vain.
However, the O.P as good gesture on 5 th and 6 th July ,2022 transferred an
amount of Rs. 90,000/- ( Rupees Ninety Thousand Only) by way of G- pay to the
Complainant and later on 29 th August, 2022 the O.P further transferred a sum of
Rs 10,000/- (Rupees Ten Thousand Only) to the Complainant, totaling Rs.
1,00,000/( Rupees One Lakh Only), i.e the entire amount which the O.P had
Cont/Page-11
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Consumer Complaint No C.C- 17 of 2022
received from the Complainant as part consideration when the O.P had
realized that there was no hope for repairing of the hard disc.
Further, it is evident from the evidence of the O.P that the O.P at first
contacted and informed the Complainant about the unfortunate event of crashing
down of the hard disk and the O.P was able to only back-up the folder containing
pictures and videos of 16.04.2022 occasion and the O.P have already handed over
total number of 610 pictures and videos of 16.04.2022 occasion via sharing the
links of Google Drive without taking a single penny from the Complainant and
completely free of cost.
It is further stated by the O.P that unfortunately while backing –up the
pictures and the videos from the hard disk to the computer in the end of
May,2022 due to sudden lightening strike in the locality of the O.P , the Hard Disk
got crashed and the O.P was only able to back-up the folder containing the
pictures and the videos of the 16.04.2022 occasion and immediately after such
accident the O.P contacted the Stellar Information and Technology Pvt. Ltd. The
O.P physically remitted the Hard Disk to their Gurgaon Office and also made ad-
hoc payment of Rs 50,663/- ( Rupees Fifty Thousand Six Hundred Sixty Three
Only) on 24.06.2022 through Union Payment Interface and such tragic
development was obviously informed to the Complainant and assured that any
updates would be time to time informed to the Complainant.
It is further stated by the O.P that despite various efforts from the side of the
Stellar Information and Technology Pvt. Ltd. they failed to recover the said data
and the reason attributed was scratches on the upper side of the second platter
of the hard Disk and despite repeated head transplantation none of the sectors of
the Hard Drive could be cloned and as such the case was closed by the Stellar
Information and Technology Pvt. Ltd and the said sum of Rs. 50, 663/ was
Cont/Page-12
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Consumer Complaint No C.C- 17 of 2022
refunded to the O.P and even after closing the case by the Stellar Information
and technology Pvt. Ltd, the O.P further requested the Steallar Information and
Technology Pvt. Ltd to send the said Hard Drive to Netherlands Team in order to
take advance help and Technology Support from them to review the scope of
recovery, if any, but Stellar Information and Technology Pvt. Ltd , did not send the
HDD to Netherlands as the chance of data recovery was almost NIL and
immediately the O.P informed about his inability to provide the pictures and
videos of 09.04.2022 occasion to the Complainant.
It is further stated by the O.P that the O.P and his professional team had/
have gave their level best efforts to render theirs services to the Complainant but
unfortunately due forces beyond the control of O.P, the O.P could not deliver the
pictures and videos of 09.04.2022 occasion which definitely fall within the ambit
of “ force Majeure and / or Doctrine of Supervening Impossibility’’ and as such the
O.P cannot be termed as negligent or deficient in providing service as alleged. Due
to sudden lightening the hard disk had been crushed and it was an “Act of God”
and despite repeated efforts the data could not be retrieved and there were no
latches on the part of the O.P and as such the O.P was not negligent or deficient
in providing service towards the complainant in any way.
After scrutinizing the evidence of the parties, we are of the view that the O.P
could not deliver the pictures and cinematographs of the entire episode of the
wedding ceremony of the complainant to him due to sudden lightening occurred
and the hard disc of the system was damaged and the data could not be retrieved
even after serious efforts done by the O.P. The O.P at first contacted and
informed the Complainant about the unfortunate event of crashing down of the
hard disk and the O.P was able to only back-up the folder containing pictures and
videos of 16.04.2022 occasion and the O.P have already handed over total
Cont/Page-13
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Consumer Complaint No C.C- 17 of 2022
number of 610 pictures and videos of 16.04.2022 occasion via sharing the links
of Google Drive without taking a single penny from the Complainant and
completely free of cost. Even the O.P had refunded the entire amount which he
had received from the Complainant. It is also seen by us that several
correspondences were made by and between the parties over whatsapp and the
O.P tried his level best to provide service to the Complainant. The O.P had an
intention to oblige the contract and provide service to the Complainant and
deliver the photographs and cinema of the wedding ceremony held on 09.04.2022
and 16.04.2022
Again, from the materials on record it transpires that the only reason for
which the O.P could not deliver the photographs and cinematograph of the entire
episode of the wedding ceremony of the Complainant was due to sudden and
unpredicted lightening which caused the hard disc damaged. The O.P had no
control over the said natural events or disasters, which is nothing but an “Act of
God.” The tragic happenings were beyond the control of the O.P and that is why
he could not honour the contract. However, he had party satisfied the
Complainant by providing 610 pictures and videos of 16.04.2022 occasion via
sharing the links of Google Drive without taking a single penny from the
Complainant and refunded the entire money received.
Now, one question arises whether on the fateful day/night, the lightening was
actually came down or not. On such point no specific evidence has been led by
the Complainant. However, we are convinced from the evidence of the O.P that
lightening came down at the vicinity of the O.P’s premises and due to such reason
the hard disc crushed, which resulted unsuccessful delivery of the photographs
and cinematograph of the wedding ceremony of the Complainant, which was
beyond the control of the O.P from the evidence of the parties.
Cont/Page-14
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Consumer Complaint No C.C- 17 of 2022
The things done or happenings were sudden, unexpected, unpredicted and
surprising and the O.P had made efforts to deliver the photographs with utmost
sincerity and for such the O.P cannot be blamed as the happenings were beyond
his control. In our view, if even after taking serious efforts the things went wrong,
the person concerned cannot be blemished for negligence or termed as deficient.
Here, we find no latches or negligence or even deficiency in service on the part
of the O.P.
Hence, we are of the view that the case of the Complainant is liable to be
dismissed.
Accordingly,
It is ordered that the Consumer Complaint, being No C.C- 17 of 2022 is
dismissed on contest, but without any cost.
Let, free copies of this order be provided to the parties concerned as per
C.P.R,2020.
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