Mr Dasari Venkateshwarrao v. Akshit Jaiswal

claiming compensation for deficiency of services rendered by the photographer to the complainant.

2. Complainant who is resident of Aurangabad had scheduled marriage of his daughter on 27^thAugust 2021. Opposite party is professional photographer engaged in the business of photography and video shooting etc in marriage functions and other social programs. Complainant approached the opposite party to avail the professional services for photography and video shooting for the marriage ceremony of his daughter. Opposite party gave the estimate of the cost and also the detailed list of the activities which are to be carried on by the opposite party for video shooting and the Photography for Pre-wedding and wedding ceremony of the daughter of the Complainant on 26^thand 27^thAugust of

2021.

3. The opposite party assured the Complainant that the opposite party is having latest cameras and other latest equipments required for photography and video shooting and also have the trained staff to perform the activities of photography and video shooting. Believing up on the Representation made opposite party, the Complainant gave the work of photography and video shooting to the opposite party for covering the pre-wedding and the wedding marriage ceremony for wedding of his daughter on 26^thand 27^thAugust 2021 to cover all the ceremonies like mehandi, engagement, haldi, mangala snanam, pellikuture etc. for the total consideration of Rs. 2,40,000/-. The opposite party was required to photograph and video shoot for Mehndi on 26th August in morning at 10:00 a.m. and for engagement at 7:00 p.m. On 27th opposite party was required to photograph and video shoot in morning for haldi mangal snanam, pellikuthuru and for wedding in the evening. Opposite party was also engaged for Candid photography and cinematography in Mehndi engagement and haldi function and also for Candid photography and

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cinematography, traditional photography, traditional videography and live streaming for the wedding ceremony. Opposite party was also engaged for Pre- wedding and Candid photography and Candid edited 60 to 70 photos for Pre wedding. All these terms and conditions were agreed upon by via e-mail dt. 12^th July 2021.

Complainant submits that it was further agreed by the opposite party to deliver the candid edited 300 to 400 photos, also candid unedited photos all traditional photos one album of 46 videos within 90 days from the date of the event. Therefore the opposite party had also agreed to hand over traditional video of wedding of 40 to 45 minutes to the Complainant. Complainant submits that Complainant head paid entire agreed amount of consideration to the opposite party which amounts to Rs. 2, 40,000/-.

Complainant submits that, on the schedule dates the opposite party captured photos and also covered all the functions on both days through video shooting. Opposite party ensured to the Complainant that as per the agreed schedule, opposite party will deliver photographs, videos etc. after the mixing and editing of them is complete.

However, after some days of marriage when Complainant demanded the photographs and CD's of video shooting, the opposite party represented that the work of mixing and editing is ongoing and very soon he will complete the same and hand over the photographs and CD to the Complainant within time. Complainant submits that time and again repeatedly and continuously follow up was made with the opposite party for the photographs and CD of the marriage. After great persuasion opposite party handed over only photographs and requested for more time for CD of video shooting and album etc. However opposite party never gave the CD that is the video shooting and album of the photos to the Complainant. Complainant says that the opposite party has failed to provide CD of video shooting and Candid edited photos, photo album and traditional photo album of Pre-wedding and wedding shooting of his daughters

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marriage ceremony to the Complainant in spite of receiving the entire advance amount and properly shooting during the ceremony and in spite of continuous repeated follow up made by the complainant. Therefore Complainant has filed this consumer Complainant for the refund of the consideration paid by the Complainant to the opposite party together with the compensation from the opposite party and expenses of this complaint.

In support of his claim complainant produced on record standard form of contract dt. 12^thJuly 2001, payment messages regarding payment made to the opposite party, whatsApp messages, notice sent opposite party dated 14/6/2022, reply given by opposite party, account statement of complainant's A/c. maintained at ICICI, Union Bank of India and Axis Bank.

3. After the Complaint is filed notice was issued to the opposite party but the opposite party did not appeared in the matter and therefore Commission passed an "ex -parte" order against the opposite party. Therefore, present complaint is proceeded against the opposite party "ex-parte".

4. After perusing the Complainant, documents produced on record and evidence affidavit filed by the Complainant, this commission has set up few points for discussion to arrive at the conclusion. Those points and their respective answers are as under...

Point ....... Answers

1. Whether the Complainant is the consumer of the opposite party? .... Yes.

2. Whether the opposite party has rendered deficient services to the Complainant? … Yes

3. What is the order? ........... As per final order.

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Reasoning Point No. 1 Photography contract dated 12^thJuly 2021 is produced on the record by the Complainant. After perusing the said contract, it appears that services of the opposite party regarding candid photography and cinematography traditional photography traditional videography, live streaming were hired by the complainant for the marriage ceremony of the complainant's daughter. Also for Pre-wedding candid photography with 60 to 70 photos was agreed to be delivered by the opposite party. It also appears that candid edited photos in 300 to 400 Nos, all candid unedited photos, traditional photos and one album of 40 shades prints by canvera agreed to be supplied by the opposite party. Also cinematic film of 25 minutes together with one teaser of one or two minutes was also agreed to be given by the opposite party together with the traditional video of wedding of 40 to 45 minutes.

It also appears that on perusal of the photography agreement pre wedding, mehndi, engagement, haldi, mangal snanam, wedding were the ceremony were to be covered by the opposite party for the purpose of photography and video shooting of complainant's daughters' marriage.

On perusal of contract on record it shows that, there is a one clause in the copyright section which says that," this contract does not require a written signature or digital signature" therefore we can safely presume the deemed signature of both the parties to this agreement. Hence, this commission has arrived at the conclusion that there exists contract between the parties. Further, we are relying upon contents of para No. 21 of the evidence affidavit on record of the complainant which says that," I say that mobile No. of the opposite party is 9010437726 and on the same number there are several communications with the daughter of complainant namely Geethika have taken place. "

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On perusal of the payment intimation dt 10^thJuly it appears that there are messages saying that, " advance for Geethika wedding Rs. 10, 000/-' another message dated 20^thJuly says that, "50,000/- geetu wedding adv"; 22nd August notes that," advance 40000/- Rs."; 6^thSeptember's message records that," Rs. 35,000/- githika photos" ; message dated 5^thOctober notes that" Rs. 20,000/- balance amount for photos"; message dated 5^thSeptember is that," payment to Akshit Jaiswal photography Rs. 50000/- last message 14 September notes that,"

payment to Akshit Jaiswal photography Rs. 35000/-.

All these messages show that payment for photography was made for Complainant's daughter's marriage to the opposite party. Therefore a conclusion can be drawn that there exists a professional contract for payment of consideration for wedding ceremony of the Complainant's daughter by which opposite party had agreed to cover photography and video shooting for the ceremonies as mentioned above for the Complainant. Contents of para No. 21 of the evidence affidavit of the Complainant reveals that email communication and all the WhatsApp communication with the opposite party is made via mobile phone of complainants daughter namely Geetika bearing No. 90782088. That's it shows that all above referred email and WhatsApp conversation is made by the complainant through the mobile of daughter of the Complainant. This commission is of the opinion that it is but natural that parents at many times seems to be not aware of the new technology and therefore they rely upon their children for the use of Technology and same thing can be seen in the present case. This commission has arrived at the conclusion that there exist contact between the Complainant and opposite party for the photography and video shooting of the wedding and Pre wedding ceremonies of the daughter of a Complainant. Consideration of contract was agreed upon by both the parties to the contract and terms of the contract were accepted by both the parties, payment in accordance with it is made by the Complainant which is accepted by the

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opposite party and as a result of it opposite party remain present on both the days of marriage ceremonies and rendered his services on his part. Complainant has made the payment to the opposite party which is evident on the perusal of the account statement of the complainant's bank on record of ICICI Bank, Union Bank of India and Axis Bank.. This proves that Complainant is the consumer of the opposite party. Hence, point No. 1 is answered in "affirmative" by this Commission.

Point No. 2

Complainant has produced on record whatsApp message conversation. In the said conversation dt. 7^thDecember 2021 a question is asked by the complainant," Hey Akshit any update on the hard disk", which is answered as,

" as of now no update, struggle hard on it" by the opposite party and another conversation dt. 9^thDecember 2021, is as " hi Akshit any update?" which is replied by the opposite party on 10^thDecember 2021, as " hello, we are not able to recover the data".

These conversations clearly show that opposite party was trying for recovery of the hard disk and data. The contention of the complainant that opposite party was not able to provide the photographs and video shooting of the marriage ceremony as alleged in the complaint is supported by these conversations produced on record in this complaint and the same is also supported by evidence affidavit.

Further there is one more message of complainant to the opposite party which reads as," Hi Akshit, it's been more than 3 weeks after the 90 days from the wedding date. You haven't shared videos of the events both raw and edited. We are trying to reach you on phone but there was no response from your end. You mentioned the wedding footage corrupted and rest all was available. If yes share the footage of all the events. Also do provide the update on reviving the

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wedding footage". This message clearly shows that the photographs and video footage which opposite party had shooted was corrupted by the opposite party and opposite party was unable to recover the data from the hard disk. This all conversation proves that, opposite party had taken photographs and video shooting but due to the negligence and/or inefficiency or for any other reason opposite party was unable to protect and preserve and also recover the wedding footage i.e. photographs and all the video shooting of the Complainants daughter's marriage. This failure to deliver the photography and video shooting footage etc. on the part of opposite party clearly amounts to deficiency in services on the part of opposite party. And therefore the opposite party is certainly liable for the loss of the marriage photographs and videos of the marriage ceremonies of daughter of the Complainant. As Complainant submits it is a sweat and lifetime memory for the bride and bridegroom and also for the whole family. The event of a marriage is single happening event in the lifetime. Also it cannot be recreated therefore complainant's contention that it was shocking to the Complainant and to his entire family members more particularly to his daughter and wife. There is immense and uncountable loss all the memories, photographs and video shooting of their important event of life of his beloved daughter has resulted due to negligence and inefficient acts of opposite party which cannot be compensated by any volume of money. And therefore, this Commission has arrived at the conclusion that although opposite party took the photographs and video shoot of all the marriage and pre marriage ceremony yet the opposite party has failed to take proper care and caution to preserve those photographs and video shoot and to recover it and handover as per the terms of the contract to the complainant in spite of the receipt of the entire consideration from the complainant. Hence, this commission has arrived at the conclusion that, the Opposite party has rendered negligent and deficient services to the complainant which resulted in irrecoverable and irreparable loss to the Complainant. Therefore this commission has answered point No. 2 in 'affirmative'.

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Point No. 3 Above mentioned discussion reveals that opposite party has rendered deficient services to the complainant and therefore complainant is entitle for the refund of the consideration paid by the Complainant to the opposite party and also compensation and expenses for this complaint from the opposite party. Therefore this commission is passing the following order..... O r d e r

1. The complaint is partly allowed in following terms.

2. The opposite party is directed to refund the amount of consideration of Rs. 2,30,000/- (Rupees Two Lacs Thirty Thousands Only) together with the interest there upon @ 9% p.a. from the date of filing of this complaint i.e. 27/10/2022 till it's realization to the complainant.

3. The opposite party is directed to pay compensation of Rs. 1,00,000/- (Rupees One Lac Only) to the complainant.

4. The opposite party is directed to pay Rs. 15,000/- (Rupees Fifty Thousands Only) to the complainant towards the cost of complaint.

5. The opposite party is directed to comply this order within 45 days from the date of this order, failing which the opposite party shall be liable to pay an additional interest @2% p.a. upon all the ordered amount.

6. Certified copies of this order be given to the parties with free of cost. Smt. Janhavi A. Bhide Shri. Ganeshkumar R. Selukar Smt. Shilpa S. Dolharkar, Member Member President

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