IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 11th day of January, 2023.
Filed on : 11.04.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. C.K.Lekhamma, B.A.L,LLB (Member)
In
CC/No.85/2022
between
Complainant:- Opposite party:-
Sri.Krishnakumar, 1. The Chairman,
Panikka House, Shanti Feeds Pvt.Ltd.,
Kutamberoor P.O., 6/15, Main Road,
Mannar, Chengannur Taluk, Pappampati P.O.,
Alappuzha. Ondipur(via), Coimbatore-641016.
(Rep.by Adv.Sri.Jayan C.Das) 2. The Managing Director,
Shanti Feeds Pvt.Ltd.,
6/15, Main Road,
Pappampati P.O.,
Ondipur(via), Coimbatore-641016.
( 1st O.P. Ex pare, 2nd OP.Rep.by
Adv.Sri. P.V.Thomas)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
1. Material averments recapitulated are as follows:-
Complainant is running a diary farm in the name and style as ‘Karthika’ dairy farm from the year 2014. There are 100 cows and 40 calves aged below 1 year and 10 calves aged between 1 and 3 years in the said farm. The farm produces 1000 litres of milk per day. The income from this farm is the livelihood of the complainant.
2. Complainant has been purchasing cattle feed namely ‘Ultima plus’ from the opposite parties for the past 20 months. On 27.09.2020 complainant purchased 100 sacks containing 50 kilograms each of cattle feed priced at Rs.1,17,000/- from the agent of opposite party namely M/s Mira stores at Mannar. The cows at the dairy farm belonging to the complainant were fed with this cattle feed purchased from the opposite parties. Complainant is having relevant bills to prove the purchase of cattle feeds for the continuous period of 20 months. The cattle feed purchased from the opposite parties were fed to the cows and calves at the complainant’s farm and in due course the lactation of milk from these cows had drastically came down. Moreover, the cows started suffering liver disease and swelling in the neck which resulted in loose motion and high fever for the cows and calves. The cows and calves could not intake feed anymore. Thus two cows and 4 calves died towards the end of October 2020.
3. There after complainant contacted the veterinary surgeon at Veterinary policlinic at Mavelikkara. As per his direction complainant had sent an intact and unbroken sack of cattle feed to the centre for Advance Studies functioning in the Keral Veterinary and Animal Sciences University on 30.09.2020, for carrying out analysis. On 05.10.2020 complainant received a report. From the report it is revealed that the feed was of substandard quality and having poisonous substance in it.
4. Other than the death of cows and calves the remaining cows productivity had come down to 200 liters caused by the food poisoning from the cattle feed. The cows which were pregnant underwent miscarriage. Complainant had to spend lakhs of rupees for providing medical treatment to the cows. Out of the 100 cows 60 are lactating. These lactating cows used to produce 1000 liters of milk per day. The milk from the farm are sold at Rs.55/- per liter. Accordingly the income from milk was Rs.55,000/- per day. Owing to the food poisoning caused by the contaminated cattle feed the milk production had come down to 200 liters and thus per day income had come down drastically to Rs.11,000/-. The income from milk obtained earlier at the rate of Rs.55,000/- per day makes the monthly income of Rs.16,50,000/-. However the income had fallen to Rs.3,30,000/- and the loss incurred was Rs.13,20,000/- per month. The expenses incurred in purchasing cattle feed for the cows is Rs.6 lakhs per month. The other expenses are salary to 10 employees at farm amounting Rs.2,50,000/-, electricity charges Rs.20,000/- and pasture grass Rs.3,00,000/- and medicine worth Rs.50,000/-. The total expenses incurred for running the farm is Rs.12,20,000/- per month. The net income after meeting expenses comes to Rs.4,30,000/- per month. Thus the loss sustained to the complainant due to the food poisoning from cattle feed bought from the opposite parties for 10 months is Rs.43,00,000/-.
5. The loss sustained due to the death of 2 cows at the rate of Rs.90,000/- per cow is Rs.1,80,000/-. The remaining cows also affected by the food poisoning and their productivity has come down badly and therefore it has become impossible to continue with these cows. Thus the valuation of the cows in this state of unproductivity is to be fixed at meat price obtained in market at the rate of Rs.30,000/- per cow and thus the total cost may be fixed at Rs.60 lakhs.
6. The fall in milk production had occurred from August 8, 2020. By August 10, the milk production had come down to 200 liters. The acts of the opposite party amounts to deficiency in service and so the complainant is entitled for compensation from the opposite parties for the loss and mental agony caused to him. Hence the complaint is filed for realizing an amount of Rs.60,00,000/- along with future interest @ 18% till realization and for Rs.25 lakhs as compensation on account of mental agony and severe hardships sustained by the complainant.
1st opposite party remained exparte.
7. 2nd opposite party filed a version mainly contenting as follows:-
The complaint is not maintainable and there is no merit in the allegations in the complaint. The complaint is bad for nonjoinder of necessary parties. The company has no person named as Chairman as stated in the complaint. The allegations are vague and unclear.
8. M/s Shanthi feeds Pvt.Ltd.is a food product company headquartered in Coimbatore. The company was started in 1988 and is involved in broiler farming, hatcheries, feed mills for poultry and cattle, farming of soya, corn and wind energy projects. M/s Shanthi feeds Pvt. Ltd. manufactures compound livestock and poultry feed and supply to different livestock and poultry farms in Tamilnadu, Kerala, Karnataka and Andrapradesh. Opposite party is making average 55,000 to 60,000 metric ton of livestock feeds per month in which 13,000 to 15,000 MT is of cattle feeds. Opposite party has got BIS certification for type 1 feed for dairy cattle. This opposite party is always careful and vigilant in manufacturing best quality feeds and there is no compromise in the quality of feeds manufactured by it.
9. Aflatoxin is the metabolic end product of molds of Aspergillus species. The U.N’s food and agriculture organization (FAO) estimated that worldwide about 25% of crops are affected annually with mycotoxins. Molds are present throughout the environment and therefore, mycotoxins can be formed on crops in the field, during harvest or during storage, processing or feeding. Spores are in the soil and in plant debris and lie ready to infect the growth plant in the field. Fungal field disease are characterized by yield loss, quality loss and mycotoxin contamination. Mold growth and the production of mycotoxins are usually associated with extremes in weather conditions leading to plant stress or hydration of feed stuffs, insect damage, poor storage particles, low feedstuffs quality and inadequate feeding conditions. Aspergillus, fusarium and penicilium molds are among the most important producing mycotoxins determined to cattle. Ruminants (dairy cattle) are more resistant to mycotoxins than non ruminants because the rumen micro biota is capable of degenerating toxins. Aflatoxins level between 100-1000 ppb within the diet cause a reduction in rumen function. In lactating cows a nominal reduction in milk yield may happen. Normally in compound cattle feed, the aflatoxin contamination is mainly due to the addition of oil cakes especially groundnut cake DOC and cereals (maize etc.). But this opposite party uses oil cakes like cotton seen DOC, copra DOC, de-oiled rice bran, rice polish, maize, molasses, DCP, LSP and feed additives like vitamins, trace mineral, toxin binders in its type-1 (Ultima plus).
10. In India due to usage of various varieties of seeds, stress during agricultural practices leads to contamination mycotoxin especially aflatoxin in cereals and oil cakes might happen. To prevent the mycotoxicosis this opposite party adds toxin binders and liver tonics in its diet and addition of toxic binder usage in compound feeds prevents the illness. The feed manufactured and supplied by this opposite party in the market is of very good quality and there is no possibility of aflatoxin of higher dosage in the opposite party’s cattle feed. Being a manufacturing company with BIS certification, this opposite party is very particular in keeping quality of the products. The product manufactured by this opposite party is being regularly examined in labs and ensures the quality of its product. No complaint has been received so far in respect of the feed manufactured by this opposite party and the same is reliable, safe and credible.
11. The complainant has not purchased any feed directly from this opposite party and there is no privity of contract between the complainant and this opposite party. The averment that the complainant at last on 27.09.2020 purchased 100 sacks containing 50 Kgs each of cattle feed priced at Rs.1,17,000/- from M/s Meera stores at Mannar is not fully correct. The opposite party started to supply cattle feeds to M/s Meera stores by 2007 onwards. During August and September 2020, opposite party have sold 1250 bags and 780 bags respectively to M/s Meera stores. But in the lab report and veterinary doctor’s statement nowhere mentioned the batch number of the complaint feed. The complainant had suppressed many material facts from this Commission and filed this complaint. Usually dairy farmers are giving 350-400 gms of concentrate feed per liter of milk per head of animal along with they may add minimum of 3-5 kgs of green, 10-15 kgs of dry fodder and locally available oil cakes. It is evident from the quantity of feed manufactured by the opposite party and allegedly purchased from its dealer by the complainant that the complainant had been using other feeds and / or locally available dry fodder/ oil cakes to his cows. The use of such additional unhygienic foods would be the reason for the alleged reduction in milk production as well as the diseases. The sources of contamination may be due to the inferior quality of those additional which were fed to animals. The nature of storing the feed in the farm or other places can also be another cause for contamination. The averments that the cattle feed procured from the opposite parties were fed to the cows and calves at the complainant’s farm and in due course the lactation of milk from these cows had drastically come down is absolutely false. That the cows started suffering from liver disease and swelling in the neck and that 2 cows and 4 calves were died are cooked up stories for the purpose of this case.
12. It appears that complainant has colluded with the so called veterinary surgeon and created documents to suit his case. The statement of the complainant that he had sent the feed to the university and the receipt of a report cannot be seen without a doubt and hence the authenticity is to be put to strict proof. The averment that the productivity of the remaining cows came down to 200 liters due to the food poisoning is incorrect. Substantial reduction in milk production is possible in case of diseases like hoof diseases for cattle. Even continuous consumption of feed with aflatoxin @ 100-125 bbp will not cause for reduction of milk production to the extent of 75% as alleged.
13. The calculations regarding income are imaginary. The averment that complainant was getting an income for Rs.55,000/- per day and that it was reduced to Rs.11,000/- due to food poisoning is false. The further averment that complainant sustained loss of Rs.43 lakhs for 10 months due to food poisoning is absolutely wrong and unfounded. This opposite party manufactures average 8000 bags of feed in each lot and sells to different states. 715 bags of feed out of 4939 bags produced to Kerala where sold to its dealer at Mannar. Feeds were sold by the dealer M/s Meera stores to other persons also and there was no complaint. This would prove that the feed manufactured by this opposite party was of good quality and safe. There is no deficiency of service on the part of this opposite party. Complainant is not entitled for any amount averred in the complaint and hence the complaint may be dismissed with cost.
14. On the above pleadings following points were raised for consideration:-
- Whether the complaint is maintainable?
- Whether the complainant is a consumer as defined under Sec.2 (7) of the Consumer Protection Act,2019?
- Whether the transaction is commercial ?
- Whether there is any deficiency of service from the part of opposite parties as alleged?
- Whether the cattle feed manufactured by the opposite parties and sold to the complainant through M/s Meera stores was having aflatoxin than the permissible limit?
- Whether the reduction of lactation of milk and the death of cows and calves was due to intake of contaminated cattle feed manufactured by the opposite parties as alleged?
- Whether the complainant is entitled to realise an amount of Rs.60,00,000/- along with interest from the opposite parties as alleged?
- Whether the complainant is entitled to realise an amount of Rs.25,00,000/- as compensation from the opposite party as alleged?
- Reliefs and costs?
15. Evidence in this case consists of the oral evidence of PW1 to PW5 and Ext.A1 to A4 from the side of the complainant and the oral evidence of RW1 to RW4 from the side of the opposite party. Ext.X1 and X2 were produced by PW3.
16. Point No.1 to 8:-
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A3.
17. PW2 is working as lab technician attached to veterinary polyclinic Mavelikkara. Ext.A3 was issued by Dr.Harikumar from their clinic. He is familiar with handwriting and signature of Dr.Harikumar. Now Dr.Harikumar is working abroad and he is on leave for 5 years.
18. PW3 is working as Assistant Professor at Poultry Science Department of veterinary university Mannuthi. The authorization given by the director to give evidence is marked as Ext.X1. Ext.A2 is the report issued by them on 05.10.2020 after analyzing 2 samples. It is signed by the director. One sample contained 124 ppb of aflatoxin B1 and the other sample contained 118 ppb of aflatoxin B1. As per BIS standard the allowable limit is 20 ppb. The document showing BIS specification is marked as Ext.X2. Excess quantity of aflatoxin B will affect the liver. The amount of aflatoxin will increase when the article is kept for a long time. They received the sample on 30.09.2020 and analysis was done on 01.10.2020 and the result was issued on 05.10.2020. Consumption of cattle feed containing these levels of aflatoxin is fatal and it will affect the production of milk also.
19. PW4 is the proprietor of M/s Meera stores, Mannar. He is familiar with the complainant. They are selling provisions and cattle feed. Ultima plus cattle feed is the product of M/s Shanthi feeds and they used to sell the same. Complainant used to purchase ultima plus from their shop for the last 5 years. As per Ext.A1 bill on 27.09.2020 they sold 100 bags of each containing 50 kgs of ultima plus cattle feed to the complainant. The product shown in Ext.A1 was directly delivered to the complainant. Complainant had made some complaint regarding the product and that the production of milk was reduced considerably. After 2 days it was informed that 3 cows died. There was similar complaints from others also. The company had taken back the feeds of the said batch. Representative of the company had inspected the stock. He had taken the sample and sent to Trissur for analysis. Doctor was also present at the time of sampling.
20. PW5 is working as veterinary surgeon attached to veterinary policlinic, Mavelikkara. Dr.Harikumar was her predecessor in office . Ext.A3 was issued by Dr.Harikumar. Now Dr.Harikumar is working abroad. The signature in Ext.A3 belongs to Dr.Harikumar. In Ext.A3 it is stated that the production of milk was reduced from 800 liters to 200 liters and that the animals had diarrhea. The sample was sent to check the quantity of aflatoxin to Mannuthi. The aflatoxin level in the product was morethan 100 ppb. Complainant sustained a loss of Rs.40,000/- per day. The permitted level of aflatoxin is 20 ppb and if it is morethan that it will affect the health of the animal and it may be fatal.
21. RW1 is the General Manager (marketing) of 2nd opposite party. He filed an affidavit in tune with the version.
22. RW2 is the Deputy General Manager in feed section of 2nd opposite party. He filed an affidavit stating that he is a veterinary doctor by profession. The company was started in 1988 and they are manufacturing various types of cattle and poultry feeds. The average production is 55,000- 60,000 MT of livestock feeds and they are selling the same in Tamilnadu, Kerala, Karnataka and Andra Pradesh. Aflatoxin is the metabolic end product of molds of aspergillus species. 25% crops are affected annually with micotoxins. Aflatoxin lever between 100-1000 ppb within the diet cause a reduction in rumen function. In lactating cows nominal reduction in milk yield may happen. Due to usage of various varieties of seeds stress during agricultural practices leads to contamination micotoxin especially aflatoxin in cereals and oil cakes might happen. The cattle feed manufactured by the company is having very good quality and they adds toxin binders and liver tonics. Even continuous consumption of feed with aflatoxin @ 100 – 125 ppb will not cause for reduction of milk production to the extent of 75% as alleged. The product manufactured by the opposite party is being regularly examined and in labs and ensures the quality of its product.
23. RW3 is the area sales manager of the 2nd opposite party for Southern Kerala. He filed an affidavit stating that as per the direction of general manager marketing he visited the farm and godown of the complainant on 03.10.2020. It was found that large quantity of KS feeds, cotton seed, ground nut cake, fodder and beer waste along with Shanthi feeds were stored in the godown. The surroundings of the godown were the feeds were stored was not hygienic and susceptible to moisture. The cow bathing shed/ place was very near to the godown which may cause weting of food. Since complainant doubted the quality of the product he agreed to take back the product and he had taken back 50 bags. They had supplied to other dealers also and there was no complaint.
24. RW4 is working as a senior consultant in veterinary medicine at Prem’s vet clinic, Pattanakkad. He retired as Assistant director from the department of Animal Husbandry, Kerala. He had got 29 years of field practice experience. He had treated and cured so many afflotoxicosis conditions. Dairy cattle experience in appetence and ruminants may have decreased ruminal contractions at high concentrations above 1000 ppb of afflotoxine. Liver damage can lead to reduce the clotting factor synthesis with acute to chronic hemorrhages. If there is any complaint about feed in field conditions as per BIS the following criteria must be followed to collect feed samples.
1. In the presence of feed company representative, concerned farmer, local veterinary surgeon.
2. Sample should be collected in sealed cover and send to feed analytical lab.
25. The case of PW1, the complainant is that he is running a dairy farm where there are 100 cows and 10 calves. The farm produces 1000 liters of milk per day. On 27.09.2020 he purchased 100 sacks containing 50 kgm each of cattle feed for Rs.1,17,000/-. It was manufactured by the opposite party M/s Shanthi feeds Pvt.Ltd. When the cattle feed were fed to the cows and calves the lactation of milk was drastically reduced and certain cows and calves became ill and some of them died. It is alleged that the cattle feed contained aflatoxin than the permissible limit which resulted illness to the cows and calves. Hence the complaint is filed for realizing an amount of Rs.60,00,000/- along with interest and Rs.25,00,000/- as compensation. Elaborate evidences were adduced by both sides in support of the respective contentions. At the time of hearing the learned counsel appearing for the opposite party pointed out that the complaint is not maintainable before this Commission since the complainant is not a consumer and that the transaction between the parties is commercial. It was pointed out that PW1, the complainant is conducting a large dairy farm in which several employees are employed and that the daily production is about 1000 liters of milk. Even as per the averments in the complaint the income per day was Rs.55,000/- and the monthly income is Rs.16,50,000/-. Hence it was pointed out that the complaint is not maintainable. Per contra the learned counsel appearing for the complainant pointed out that complainant is eking his livelihood from the income derived from the farm and even if it is admitted that it was for commercial purpose since it is exclusively for the purpose earning his livelihood by means of self employment, complainant can take shelter under the explanation of the definition. Consumer is defined under Sec.2 (7) of the Consumer Protection Act, 2019 which reads as follows:- 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 payments, 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 service 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 service 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 service for any commercial purpose.
Explanation: For the purposes of this clause, -
(a) the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.
(b) the expressions “buys any goods” and “hires or avails any services” includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing.
26. The definition of consumer in 1986 Act and 2019 Act are almost similar. Only difference in the explanation. In 1986Act services availed by him is available where as it is seen omitted in the 2019 Act. The word commercial is not defined either in the 1986 Act or in the 2019 Act. However the law in this regard is settled by various judicial pronouncements. It was held by the Hon’ble Supreme Court in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers and Ors.( AIR 2020 SC 3580).
“ To summarize from the above discussion, though a straight- jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose’:
(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose’ is under stood to include manufacturing/ industrial activity or business – to – business transactions between commercial entities.
(ii) The purchase of the goods or service should have a close and direct nexus with a profit- generating activity.
(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and /or their beneficiary.
(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and /or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self-employment’ need not be looked into.”
It was held by the Hon’ble Supreme Court in Laxmi Engineering Works Vs. P.S.G Industrial Institute ( AIR 1995 SC 1428)
“Now coming back to the definition of the expression ‘consumer’ in Section.2(d) a consumer means in so far as is relevant for the purpose of this appeal,(i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration (iii) but does not includes a person who buys such goods for resale or for any commercial purpose. The expression “resale” is clear enough. Controversy has, however, arisen with respect to meaning of the expression “commercial purpose”. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning “Commercial” denotes “pertaining to commerce” (Chamber’s Twentieth Century Dictionary); it means connected with, or engaged in commerce; mercantile; having profit as the main aim”(Collies English Dictionary) whereas the word “commerce” means “financial transactions especially buying and selling of merchandise, on a large scale”(Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purposes of earning profit” he will not be a “consumer” within the meaning of Section 2(d) (i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion - the expression “large – scale” is not a very precise expression – the Parliament stepped in and added the explanation to Section 2 (d) (i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose” – a case of exception to an exception. Let us elaborate a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others’ work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression “consumer.” If the commercial use is by the purchase himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a “ consumer”. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, ie, by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., “ uses them by himself’, “exclusively for the purpose of earning his livelihood” and by means of self-employment” make the intention of Parliament abundantly clear that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say a person who purchases an auto- rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly a purchaser of a truck who purchases if for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. ( In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions “used by him” and “by means of self-employment” in the explanation. The ambiguity in the meaning of the words “for the purpose of earning his livelihood”, is explained and clarified by the other two sets of words.
“It is thus obvious that Parliament wanted to exclude from the scope of the definition not merely persons who obtain goods for resale but also those who purchase goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit. On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit making activity will not be ‘consumers’ entitled to protection under the act.”
It was held by the Hon’ble Supreme Court in Shrikant G. Mantri Vs. Punjab National Bank. ( CIVIL APPEAL No. 11397 of 2016 dtd. 22/2/2022) “ In the present matter, it is not in dispute that the appellant was already engaged in the profession of stock broker, much before he availed of service of the overdraft facility from the respondent-Bank”
The relations between the appellant and the respondent is purely “business to business” relationship. As such, the transactions would clearly come within the ambit of ‘commercial purpose’. It cannot be said that the services were availed “exclusively for the purpose of earning his livelihood” “by means of self employment”. If the interpretation as sought to be placed by the appellant is to be accepted, then the ‘ business to business disputes would also have to be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes.”
27. Here in this case in the 1st para of the complaint it is stated that there are 100 cows and 50 calves in the farm and the farm produces 1000 liters of milk per day. In para 7 of the complaint and in para 8 of the proof affidavit it is stated that out of 100 cows 60 are lactating and the daily production is 1000 liters. PW1 is selling milk @ 55 per liter and the daily income is Rs.55000/- and the monthly income is Rs.16,50,000/-. In para 8 of the complaint and in para 9 of the proof affidavit it is stated that he is purchasing cattle feed for Rs.6 lakhs per month. The salary of 10 employees amounts to Rs.2,50,000/- per month and Rs.20,000/- is paid as electricity charges. The total expenses per month for running the farm is Rs.12,20,000/-. After deducting the expenses complainant is getting an amount of Rs.4,30,000/- per month as profit. Thus he has calculated the loss of income as Rs.43 lakhs for 10 months. Besides that during cross examination PW1 stated that now there are 200 cows in the farm. He requires only Rs.10,000/- per month for household expenses. He is an income tax payee also. So from the complaint and from the proof affidavit it is pellucid that it is a large scale farm. There are 10 persons working under complainant for the upkeep of the dairy farm. After expenses he is getting a monthly income of Rs.4,30,000/-. In such circumstances applying the principles laid down by the Hon’ble Supreme Court we are of the opinion that complainant cannot take shelter under the explanation that he is conducting the farm for the purpose of earning his livelihood by means of self employment. Here only a bald statement in the 1st para of the complainant and the 2nd para of the proof affidavit is stated that the income from this farm is the livelihood of the complainant. We are of the opinion that such a bald statement is not at all sufficient to get the benefit of the explanation that the purchase of commercial purpose was for the purpose of earning his livelihood by means of self employment.
It was held by the Hon’ble Madhyapradesh State Consumer Disputes Redressal Commission in Narendra Hammad Vs. Dodia Dryotech and Ors ( IV (2017) CPJ 41 SS).
“The explanation attached to Section 2(1) (d) of the Consumer Protection Act clearly states that for the purpose of this clause, ‘commercial purpose’ does not include use by person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. The reading of explanation makes it clear that the benefit of explanation is only available to the person who avails the services exclusively for the purpose of earning livelihood by way of self-employment. The onus of proving that the complainant is covered by the explanation is upon him. From the record adduced in the case it is apparent that about 10 employees are working in the Firm of the complainant. Though the complainant averred that being an unemployed person he started business for the purpose of earning livelihood, but merely by making this bald statement, it cannot be concluded that the purpose of establishing the plant by him is not commercial. The span of activities undertaken by the complainant clearly indicate that he intended to generate the profits which is the main indicator of the commercial purpose. It seems that in view of the fact that the project of the complainant involved employment of about 10 persons, he deliberately omitted to plead that he wished to earn his livelihood by means of self-employment. Even if a bald statement has been made that complainant wished to establish the dehydration plant for earning his livelihood, it cannot be accepted in view of the fact that turnover of the complainant had been worth lacs of rupees and he employed or needed employment of about 10 persons in the establishment.”
28. It is seen that the decision of the Hon’ble Madhyapradesh State Consumer Disputes Redressal Commission is squarely applicable in this case. Here also complainant has employed 10 persons and the monthly turnover is Rs.16,50,000/-. There is only a bald statement in the complaint and the proof affidavit that the income of this farm is the livelihood of the complainant. The discussions made above will show that there are 100 cows and 50 calves in the farm and the daily production is 1000 liters of milk. PW1 was selling the milk at Rs.55/- per liter and so the daily income is Rs.55,000/- and the monthly income is Rs.16,50,000/-. Hence it can be seen that complainant will not come under the explanation of the definition for the consumer. Hence we find that the complainant is not a consumer and that the transaction is of commercial and so the complaint is not maintainable before this Commission.
In view of finding of point Nos.1 to 3 against the complainant, point Nos.4 to 8 does not arise for consideration.
29. Point No.9:-
In the result complaint is dismissed as not maintainable with cost of Rs.2,000/- to the contesting opposite party.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 11th day of January, 2023. Sd/- Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Krishnakumar S. (Complainant)
PW2 - B.Vijayakumar (Lab technician, Vet.Poly clinic)
PW3 - Dr.Vimal Antony Muttathettu
PW4 - Mohammed Kani (Proprietor, Meera Stores0)
PW5 - Dr.Fthima Rahim(Veterinary doctor)
Ext.A1 - Cash Bill
Ext.A2 - Cattle Feed Analysis report
Ext.A3 - Certificate of Veterinary Surgeon
Ext.A4 & A4(a) - Disclosure to promote the Right to Information.
Ext.X1 - Copy of letter to the President, CDRC from the Director,KVASU.
Ext.X2 - Compounded Feeds for cattle – Specification.
Evidence of the opposite parties:
RW1 - Vijayan Nair P.K., (Ops General Manager)
RW2 - Dr.S.Mohanavel (Ops Deputy General Manager)
RW3 - Renjish P.S.(OPs.employee)
RW4 - Dr.C.K.Premakumar (Veterinary Doctor)
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:
