By Sri. K. Gheevarghese, President:
 

The complaint filed under section 12 of the Consumer Protection Act 1986.
 

The sum up of the complaint is as follows:- The Complainant purchased a cow from the Opposite Party at the price of Rs.20,000/- availing loan of Rs.20,000/- from the North Malabar Gramine Bank. The cow was also insured by United India Insurance Company for the purpose of the insuring the cow a “ Alacheet” was also obtained.

2. At the time of purchase the Opposite Party assured the Complainant that the cow gives 14 liters of milk in lactation per day. More over the expected calving of cow was not in accordance with the assurance of the Complainant. Later after calving the cow was given only 6 ½ liters of milk per day. The Opposite Party was informed of the lesser quantity of the milk obtained in lactation. The demand of the Complainant for the return of the price of the cow was not responded positively and in effect of that the Complainant took the cow to the house of the Opposite Party and demanded the return of money entrusting the cow to him. The Opposite Party was not ready to refund the price of the cow of accepting the cow instead the Complainant was scolded and threatened. In short the Complainant became the loser of milking cow and the amount already spent for the purchase. The Complainant is in a difficult situation the amount of loan already received could not be repaid. There may be an order directing the Opposite Party to refund the price of Rs.20,000/- along with interest. The Opposite Party is also liable to give the Complainant Rs.10,000/- which was availed as a loan from “Swasraya Sangam”. The Complainant is also entitled to get cost of Rs.2,500/- from the Opposite Party.

3. The Opposite Party filed version in brief it is as follows. The Opposite Party has not entered in to the sale of a cow to the Complainant. One Kurikattil Mathai approached this Opposite Party for a loan of Rs.10,000/- and for which a security of the cow was assured. The Opposite Party was not in a position to lend the amount as demanded by this Mathai. The case filed against the Opposite Party is in collusion with the Complainant and Mathai, it was heard that this Mathai sold the cow to the Complainant for the price of Rs.15,000/-. The complaint filed is not having any bonafied reasons. The Opposite Party has not assured any date of calving or there was no assurance on the quantity of milk. Since the cow was not sold by this Opposite Party.

4. The Opposite Party is a cardiac patient and had not brought up the cow after February 2008. The allegation of the Complainant that the cow and calf was given back to the Opposite Party and the price of the cow was not paid back are nothing but false. The Opposite Party has no knowledge of the loan amount taken from the financial institution by the Complainant. There was no transaction between the Complainant and Opposite Party there by no liability remains in between them. The complaint filed is ill motivated hence to be dismissed with cost.

5. The points in consideration are:-

1. Is there any unfair trade practice on the part of the Opposite Parties?

2. Relief and cost.

6. Points No.1 and 2:- The evidence in this case consists of oral testimony of the Complainant and Opposite Parties. Exts. A1 to A7 are the documents produced and two witnesses for the Complainant's side are examined as PW2 and PW3. The Opposite Party is examined as OPW1. The case of the Complainant is that the cow purchased from the Opposite

Party was not giving the quantity of milk assured at the time of sale. Anticipating the refund of the price given to the Opposite Party the cow was taken to the Opposite Party and it was entrusted to him. The Opposite Party has not paid back the cost already paid and above all the cow which was entrusted with the Opposite party was sold. The Complainant lost the cow and the cost already paid. The Opposite Party contented that no cow was sold by him to the Complainant. The allegation against the Opposite Party is only the product of the enmity and it is the result of an act in collusion of the Complainant with the witnesses. PW2 and PW3 are the witnesses who reiterated the sale of the cow to the Complainant and later it was entrusted to the Opposite Party for the shortage of milk in lactation. Ext.A5 is the certificate issued by North Malabar Gramine Bank to the Complainant. The purchase of the cow was effected by the loan of the North Malabar Gramine Bank, Branch at Kallody. The Opposite Party sold milk to the Kallody Milk Society up to 31.3.2008 which is envisaged in Ext.A4. According to the complainant the cow was purchased in the 1^st week of September 2008. The calving effected one month later the period of assurance of the Opposite Party. The Opposite Party also admitted that he belongs to the self supporting group named Angel at Kallody. The cow was insured for an amount of Rs.20,000/-, it is to be presumed that a cow of value Rs.20,000/- was possession of the Complainant. The witnesses PW2 and PW3 reiterated that the cow purchased was given back to the Opposite Party due to the shortage of milk in lactation. The Opposite Party's contention is that the allegation against him is inherent with the main reason of enmity. The Opposite Party has not produced any substantial evidence to establish that the allegation of the Complainant is in pursuance of the enmity. Above all according to the Opposite Party he was not in the habit of farming cows after 2007. Ext.A4 shows that the Opposite Party had given milk in the society till 31.3.2008. The cow purchased by the Complainant was carrying. Basing on the circumstances and probability we are in the opinion that cow which was sold to the Complainant by the Opposite Party was given back to the Opposite Party in anticipation of the refund of the price. Ext.A7 series are the bills issued to the Complainant's with respect to the quantity of the milk supplied. The measurement shown in this exhibit does not tally with the assurance given by the Opposite Party on the quantity of milk. It is deemed to consider that the cow was retained to the earlier owner the Complainant. The Opposite Party in shortage of milk would have assured the refund of the price of the cow was Rs.20,000/- nothing in contrary is proved by the Opposite Party. We are in the opinion that the Opposite Party was given back the cow and the amount of Rs.20,000/-. The value of the cow which was already accepted at the time of sale is not refunded. This is nothing but an unfair trade practice on the part of the Opposite Party and the points are found accordingly.

In the result, the complaint is partly allowed. The Opposite Party is directed to refund the Complainant Rs.20,000/- (Rupees Twenty thousand only), the price of the cow which was accepted as the sale consideration with interest at the rate of 12% from the date of this complaint till payment. The Opposite Party is also directed to comply with this within one month from the date of receiving this order. There will be no order upon cost and compensation.

Pronounced in open Forum on this the day of 30^th December 2009.

PRESIDENT: Sd/-

MEMBER- I: Sd/-

MEMBER-II: Sd/-

A P P E N D I X

Witnesses for the Complainant:

PW1. Santha Ravi Complainant.

PW2. Mathai Agriculture.

PW3. Josephs Agriculture.

Witnesses for the Opposite Party:

OPW1. Antony Antony.

Exhibits for the Complainant:

A1. Copy of Cattle Insurance Proposal Form.

A2. Copy of Pass Book.
 

A3. Certificate.

A4. Letter. dt:10.11.2009.

A5. Certificate. dt:3.11.2009.

A6. Notice.

A7 series (3 numbers) Milk Bill.

Exhibits for the Opposite Party:

Nil.