ROSHAN STUDIOS vs P.D.Sharma

THIS appeal has been filed under Section 15of the Consumer Protection Act, 1986 (for short the Act) against order dated 29.9.1992, passed by the District Forum, Shimla in complaint registered No. 257/91. Against the same order, Shri P.D. Sharma, the respondent in this appeal has also filed an appeal No. 48/92, seeking enhancement of compensation award from Rs. 2,000/- to Rs. 20,000/- and of the costs from Rs. 200/- to Rs. 5,000/-. THIS order disposes of both these appeals.

THE facts of the case, in so far as they are necessary for appreciating the contentions raised in the appeal may be shortly stated. THE respondent paid a sum of Rs. 60/- in advance to the appellant for passport size black & white photographs of his wife, son and himself @ Rs. 20/- per set of four. At the time of delivery, the following day when the respondent found that the photograph of his son was ''grossly un-satisfactory'' he asked for another photograph to be snapped. This was refused by the agent of the appellant which resulted in verbal altercation between the two. As relief the respondent claimed issue of directions to the appellant to the effect:- (a) that an amount of Rs. 20/- charged for the photograph set of his son be refunded to him; (b) that the total production cost being Rs. 5/- only per set of four photographs, as per his estimate, the amount charged extra for the photograph of his wife and self be refunded; (c) that the negatives of the photographs being his property may be returned to him; and (d) that a suitable compensation for misbehaviour by the agent of the respondent resulting in the lowering of his prestige in general public and amongst his students and patients etc. be paid to him because of mental agony he had to undergo.

Allowing the complaint, the learned District Forum issued the following directions, extracted in extenso, from the impugned order dated 29.9.1992:- "As a result of the above discussion we direct the respondent to refund Rs.20/- as the cost of unsatis factory snap of the complainant''s son to him and also refund Rs.20/-towardstheexcess amount charged for the photographs of the complainant and his wife and also deliver back the negatives of the snaps of the complainant, his wife and son taken on 19.8.1991 to the complainant and also pay Rs. 2,000/- (Rs. two thousand only) by way of compensation for respondent Geeta Ram''s misbehaviour towards the complainant as a result of which the complainant felt humiliated. Further direction is issued to the respondent Studio to exhibit at the counter or at any other conspicuous place of the Studio the rate list for every item/job it undertakes for the information of the consumers. The respondent shall also pay cost of this complaint to the complainant which are assessed at Rs. 200/- (Rupees two hundred only)."

HAVING stated the gist of the complaint and reproduced the operative part of the impugned order, we now proceed to discuss the points urged for and against. The first challenge that the learned Counsel for the appellant has put forth is respecting the types of orders that the Consumer Forum can pass under Section 14 of the Act. According to him, as decided and repeatedly confirmed by the National Commission such as in II (1991) CPJ 599 (NC), I (1992) CPJ-250 (NC) and II (1991) CPJ-346 (NC), the Redressal Forums constituted under the Act are competent to grant only such reliefs as are enumerated in Clauses (a) to (d) of Section 14(1) of the Act. The two reliefs allowed namely, refund of alleged excess amount of Rs. 20/- and delivery of negatives are, therefore, reliefs which are clearly outside the ambit and coverage of the above provisions of the law. On this point the learned Counsel for the respondent had no convincing argument in rebuttal. Even otherwise, the law as propounded by the National Commission from time to time is very clear. We have thus no ground to differ on the point that no such directions as mentioned above, could be issued by the District Forum. We are further inclined to agree with the appellant that it did not lie within the jurisdiction of the District Forum to determine the quantum of service charges, which in the instant case, the learned Forum had fixed at Rs. 10/- per set of four prints. In this connection, our attention has been drawn to I (1991) CPJ-641. In this case, the Karnataka State Commission has held that "the correctness or otherwise of fare fixed by the State Transport Authority cannot be questioned before the Forum and it cannot be decided by the State Commission. Charges in respect of service cannot be questioned under the Act" (emphasis supplied). Manifestly, the learned District Forum has erred in traversing a ground un-disputedly falling outside the scope of its jurisdiction. Likewise the Distt. Forum had obviously no jurisdiction to decide the question of title to the negatives. In elaboration of his argument to show that contrary is the position in law, the learned Counsel for the appellant referred us to Encyclopedia of American Photography as also to the British Journal Photographic Almanac 1958 and in particular read out para-13 of Chapter titled "Miscellaneous information "Copyright in photography" (P-476). It reads:- "Although not the subject of copyright law, the negatives which a photographer makes in executing an order, by common law and long trade custom, are his property, unless in the first instance he contracted to surrender them. But they cannot be used for any purpose except as the customer directs or permits."

We have seen that the position stated in American Photographic Encyclopedia is almost to the same effect.

ANOTHER ground of appeal dealt at some length relates to alleged deficiency in service, In this respect, our attention was drawn to the relevant para of the impugned order appearing at pages 6-7 thereof. Extracted it reads: "According to the complainant the snap of his son Sankalap was found unsatisfactory and showed distorted facial expression. He has deposed to that effect as AW-1. A copy of that photograph has been appended with the reply and a look at it leads to the conclusion that it is not a satisfactory result of the skill and technique of a photographer. The complainant has brought on record photographs taken earlier of the same child are five in number and have been appended as Annexure-IV to the affidavit of the complainant filed by way of evidence. Comparison of these photographs with the photograph taken by the respondent Studio definitely shows that the photograph taken by the respondent is not upto the mark. No doubt photographs Annexure-IV, are coloured and the snap taken by the respondent is black and white but that by itself is no ground that the snap taken should not be satisfactory. When a consumer hires the services of a photographer he expects the photograph to be free from any defect and the photographer who has charged the consumer for the same and is a skilled person in that art is required to have proper adjustment of the camera and that of the pose and posture of the person whose photograph is being taken before the camera is clicked and it does not lie in the mouth of the photographer to say that parents of the child who were present at the time the photograph was taken had prompted the child to smile and so that photograph turned out to be not good. That apart, when the photograph of the child was found to be not upto the mark and it showed some facial defect and the same was so stated by the complainant to Shri Geeta Ram who was at the counter and who had taken the snap, it was expected from him to have readily agreed to take another snap of the child or to refund the amount he had taken for the same but he did not do so. The complainant, therefore, had a reasonable grouse of deficiency in service of the respondent Studio and his prayer for the refund of Rs. 20/- charged for the snap of the child which was not upto the mark is justified and we have no hesitation in allowing the refund of that amount to the complainant."

Shri R.L. Sood''s argument is that the District Forum has failed to specify as to in what manner the photograph in question was defective. A photograph, according to him, would have been defective had it suffered from for one or more of the defects mentioned below rather than on the ground that the result failed to satisfy the respondent, for instance: (i) it was out of focus; (ii) it lacked clarity; (iii) it was defective in light and shade effect on account of defect in lighting; (iv) the subject had been photographed with eyes closed and (v) in it any other defect had surfaced because of the use of sub-standard film, chemical or paper etc.

It is true that none of these or any other similar defect has been complained of. No evidence other than the respondent''s own statement has been led to show how and in what manner the photograph in question is defective. Therefore, merely because the photograph, according to the respondent shows some distortion in facial expression, it cannot be held defective. Moreover, total reliance by the District Forum on the respondent''s statement of unsatisfactory result is uncalled for, in the circumstances of the case. It is to be noted that no expert had been examined on this point. Moreover, comparison of various photographs of the same subject taken on different occasions is no reliable and judicially accepted standard of pronouncing a judgment on the defectiveness or otherwise of any one of them. It was further urged that there being no material defect in the print, there was no deficiency in service on the part of the respondent. We see force in this argument and find ourselves in unenviable position to disagree with the reasoning and finding of the District Forum reproduced supra. In regard to compensation awarded, our attention was drawn to Section 14(1)(d) of the Act. According to it, the District Forum is empowered to award compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party. In nut-shell, according to the appellant, there being no deficiency in service, the question of negligence would not arise and hence no warrant in awarding compensation. In the same context, it was argued that the employee of the appellant never misbehaved with the respondent and that the appellant or any other employer for that matter cannot be held responsible for the alleged acts of misbehaviour on the part of his employee(s). In support I (1991) CPJ-316 was cited and our attention was drawn to headnote (iv). In this case, the State Commission, Delhi had declined to give any damages to the complainant on account of misbehaviour of employees of the respondent Company. In regard to the amount of Rs. 2,000/- awarded as compensation, the objection taken is that no reasoning has been given by the Forum to arrive at the above amount awarded as compensation and further there was no material or evidence on record of the case to support and warrant this amount by way of compensation. Dealing with these points, suffice to say that once we have come to the conclusion that no material defect in the photographs in question had been proved, we have no option but to conclude that there was no deficiency in service on the part of the appellant and in the absence of deficiency in service naturally no question of negligence in the performance of such service would arise. It is well settled that compensation can be awarded to a consumer for any loss or injury sustained by him due to the negligence of the opposite party. It is the essence of the above provision that the loss or injury for which compensation is to be adjudged and awarded should be found to have been caused by the negligence of the opposite party. Having decided that there was no negligence on the part of the appellant, there is no warrant in upholding the order of the District Forum awarding compensation of Rs.2,000/-.

IN the light of the above we see no purpose in discussing the law cited before us by the learned Counsel for the respondent in support of his claim lodged through Appeal No. 48/92 seeking enhancement of the amount of compensation to Rs.20,000/-.

THE learned District Forum has in addition allowed to the respondent cost of the proceedings before it quantified at Rs.200/-. In view of the above findings, we see no reason to sustain the above part of the impugned order much less to enhance it as prayed in Appeal No.48/92. In view of the aforesaid fIndIngs, we are constraIned to allow this appeal and set aside the order dated 29.9.1992, passed by the District Forum, Shimla In complaInt No.257/91 and also dismiss Cross Appeal No.48/92 of the respondent.

We leave the parties to bear their own costs. Appeal No. 44/92 allowed. Appeal No. 48/92 dismissed.