DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.104/01.08.2008 Decided on : 11.02.2009 Sh.Gurjant Singh S/o Sh.Bachan Singh, resident of village Bhadurpur, Tehsil Budhlada, District Mansa. ..... Complainant. VERSUS Veterinary Doctor Des Raj, Government Livestock Dispensary, Village Bhadurpur, Tehsil Budhlada, District Mansa. ..... Opposite Party . Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.K.C.Garg, Advocate counsel for the complainant. Sh.B.D.Jindal, Advocate counsel for the Opposite Party. Quorum: Sh.P.S. Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S.Dhanoa, President: This complaint has been filed, by Sh.Gurjant Singh son of Sh.Bachan Singh, resident of village Bhadurpur, Tehsil Budhlada, District Mansa, against Veterinary Doctor Des Raj, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), for giving compensation, in the sum of Rs.50,000/-, on account of birth given by his buffalo to a still born calf and Rs.20,000/-, on account of mental and physical harassment. As per allegations made in the complaint, the case of the complainant may be briefly described as under: 2. That the complainant, took his buffalo for medical check up to the veterinary dispensary situated at Village Bhadurpur, where the Contd.......2 : 2 : opposite party is stated to be employed as a Veterinary Doctor. The opposite party, after checking the buffalo of the complainant, he told him that its uterus is lying empty, although the complainant told him that his buffalo had earlier conceived. The opposite party then gave artificial insemination injection to the buffalo of the complainant for the purpose of conception and made entry in his register at Sr.No.16 on 7.6.2008. The opposite party charged a sum of Rs.120/- on account of fee, as such, the complainant is consumer, under the opposite party. After the artificial insemination injection was given by the opposite party, abortion of the buffalo of the complainant took place and it gave birth to a still born calf, because of which complainant, has suffered financial loss, in the sum of Rs.50,000/-, because he was deprived of milk, because of injection given by the opposite party to his buffalo. As such, there is deficiency in service on the part of the opposite party and complainant is entitled to receive the compensation from him, as prayed for. 3. On being put to notice, Opposite parties filed written version, resisting the complaint, by taking preliminary objections; that the complainant, is not the 'consumer' within the purview of its definition given in the Act, because he has merely deposited a sum of Rs.120/- on account of legal fee payable as per rules, issued by the Government; that the complaint, is not maintainable; that complainant, has no cause of action, and locus standi, to file the complaint; that there is no deficiency in service on the part of the opposite party and that the opposite party is not a doctor by profession, but is employed, as Incharge Pharmacist, in Veterinary Dispensary, at village Bhadurpur and is performing his duty as per his competence and qualification. It is admitted that there is no facility in the said dispensary, for conducting blood, urine and ultra sound tests of livestock, brought there, by the owners for medical aid, as such, in case of need they take their cattle to different hospitals where these facilities are available. It is contended that the complainant deals in sale and purchase Contd.......3 : 3 : of livestock and owns several buffaloes. He approached the opposite party for the artificial insemination of his buffalo and not for medical check up. After the complainant told the opposite party that his buffalo is giving calls for conception and is discharging liquid from the uterus through its vagina. Since these are the symptoms of the demand of his buffalo for conception, therefore, the opposite party gave artificial insemination injection to the buffalo at the asking of the complainant and demanded a sum of Rs.120/- for the above said service as per the rules of the Government, on the subject. The complainant got annoyed and left with his buffalo by throwing the currency note in the front of the opposite party and leaving the threat behind that he shall teach him a lesson for raising demand of said money. It is also submitted that opposite party made entries in the register maintained by him regarding the amount charged from the complainant on account of fees, injection etc. It is further contended that buffalo cannot abort foetus carried in its womb because of above said injection and complainant has also failed to produce positive evidence to connect the still born calf, shown in the photograph, with his buffalo. It is alleged that there is no deficiency in service on the part of the opposite party and as such, he is not liable to make any payment to the complainant on that score. Rest of the averments, made in the complaint, have been denied, and a prayer, has been made, for dismissal, of the same with costs. 4. Both the parties led oral and documentary evidence before their counsel closed their evidence. 5. Learned counsel for the complainant, Sh.K.C.Garg, Advocate, has submitted, at the out set, that employment of the opposite party as Pharmacist, in the dispensary and factum of injection, given by him to the buffalo of the complainant, after checking the same, is admitted and complainant has produced photograph of still born calf of his buffalo. Learned counsel argued that abortion of the buffalo of the complainant, has Contd.......4 : 4 : taken place because opposite party gave the injection for conception without subjecting the buffalo to chemical test. The learned counsel argued that complainant, has paid the requisite fee, as such, he is consumer under the opposite party and there is deficiency in service on its part for which the complainant had suffered huge financial loss and has been subjected to mental and physical harassment and opposite party is entitled to pay him compensation and costs incurred by him for filing the complaint 6. On the other hand, Sh.B.D.Jindal, Advocate, learned counsel for the opposite party, has contended that, in the dispensary, where the opposite party, is employed as a Pharmacist, no doctor is posted and there is no facility for conducting the requisite tests and artificial insemination injection is given on the basis of the symptoms disclosed by the owner of the animal. Learned counsel also submitted that the opposite party, has tendered in evidence, affidavits of two independent persons, who are natives of the complainant, and were present at the time complainant approached the opposite party for artificial insemination of his buffalo and got annoyed after he was asked to deposit the charges, prescribed by the Government. Learned counsel also submitted that the opposite party, has also produced on record resolution passed by the Sports and Arts Club of the village of the complainant wherein it is submitted that after enquiry done by the institution, it was found that there is no truth in the allegations made by the complainant and he has filed the complaint by concocting the false version. Learned counsel also submitted that complainant, has failed to connect the photograph of the still born calf with his buffalo treated by the opposite party and has not produced on record any medical proof to prove that abortion took place due to injection given by the opposite party, as such, there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed with costs. 7. We find merit in the argument advanced by the learned counsel for the opposite party, because the complainant, has failed to Contd.......5 : 5 : disclose as to whether his buffalo had been suffering from any gynae problem or any other disease for which he approached the opposite party, in the dispensary where he is employed as a Pharmacist. In order to controvert his plea that he approached the opposite party for check up of his buffalo, the opposite party has produced the affidavits of Sh.Puran Singh and Sh. Balwant Singh, Ext.OP-5 and OP-6, both co-villagers of the complainant. They have stated on solemn affirmation in their affidavits that complainant approached in their presence to the opposite party in his dispensary for artificial insemination stating that the buffalo is giving calls for conception and is discharging liquid from its uterus. They have also stated on solemn affirmation that after artificial insemination injection was given to the buffalo of the complainant by the opposite party, the complainant refused to make the payment of Rs.120/- on account of fee prescribed by the Government and started quarreling with him before he left the dispensary with his buffalo leaving the threat behind that demand of Rs.120/- would prove him costly. The complainant has not alleged any enmity towards these witnesses. As per the entry made at Sr.No.8 of the relevant page of copy of the register Ext.OP-7 maintained in the dispensary of the opposite party, Balwant Singh had also gone there on 7.6.2008 with his buffalo for treatment. As such, his presence at the time injection was given to the buffalo of the complainant and his behaviour with the opposite party, cannot be suspected by us. The contents of the affidavits of Balwant Singh and Puran Singh, examined by the opposite party, are corroborated by the contents of the affidavit of the complainant Ext.C-1. The complainant, has also not disclosed the dates when his buffalo, had earlier conceived and the date when abortion took place, to enable us, to appreciate the controversy properly. He has also not brought on record any medical evidence, to establish that injection given to his buffalo by the opposite party, was harmful and was capable of causing abortion. It is a matter of common knowledge that artificial insemination is given to the Contd.......6 : 6 : livestock on the basis of the symptoms disclosed by the owner. The complainant has not disputed the fact that the dispensary in which injection to his buffalo was given by the opposite party, some doctor is also posted or there is some arrangement for carrying out urine, blood and ultra sound tests etc. The contents of his affidavit that he has taken his buffalo for medical check up are not corroborated by any oral or documentary evidence. Even if his plea may be accepted, then he has taken his calculated risk of getting his buffalo artificially inseminated from a dispensary where no doctor is posted and no laboratory test is being carried out to determine the previous pregnancy. As per notification dated 27.12.1982 issued by the Director, Animal Husbandry, Punjab, Chandigarh, Veterinary Pharmacists have been granted permission to issue prescription slips and issue fitness certificate in the dispensary and hospitals where no veterinary Assistant Surgeons has been posted. The complainant has also not produced any evidence, except his own affidavit Ext.C-1, to establish that abortion of his buffalo took place due to the artificial insemination injection given by the opposite party and aborted still born calf is shown in the photograph Ext.C-2. He has also not examined any photographer to connect the snap of the still born calf with his buffalo. In the absence of any cogent and convincing evidence, the snap of the still born calf Ext.C-2 cannot be connected with the buffalo of the complainant, to which artificial insemination injection was given by the opposite party. The plea of the opposite party, has been consistent to the effect that complainant deals in sale and purchase of animals and owns several buffaloes. The opposite party, has also produced on record original resolution Ext.OP-2 passed by the Gram Panchayat and other residents of the village of the complainant, to the effect that in the inquiry conducted by them it was revealed that complainant, has filed the instant complaint by concocting false version against the opposite party, who is efficient and honest Pharmacist employed in the veterinary dispensary in their village. Contd.......7 : 7 : They have also produced copy of another resolution Ext.OP-8 passed by the Young Sports and Arts Club of village of the complainant to the same effect. These resolutions bears the signatures of numerous persons belonging to the village of the complainant. All of them cannot be said to be inimical towards the complainant or interested in saving the opposite party. 8. The initial onus to prove the case was on the complainant, but he has failed to discharge the said onus by producing positive evidence. As such, we are unable to accept his plea in the absence of any medical evidence that abortion of his buffalo took place due to artificial insemination injection given by the opposite party and he has suffered financial loss and mental and physical harassment due to any rash and negligent act done by the opposite party. In 2002(2) CLT NC 314 Indira Kartha and others versus Dr.Mathew Samuel Kalarickal & Anr., it has been held by the Hon'ble National Commission that burden of proof that the doctor or the opposite party was negligent, rests with the complainant and it is not for the doctor to show that he was not negligent. Reliance may also be placed on 2002 (1)CLT NC 173 Ms. Rohini Devi versus H.S. Chudavat & Anr. wherein it was held by the Hon'ble National Commission that it was for the complainant to prove negligence by examing expert witness, challenging the procedure adopted by the opposite party, who is a doctor claiming specialisation and he could prove the said fact either by oral evidence or through a standard medical literature or by examination of the doctor, but he has failed to produce any such evidence to contradict the evidence of the opposite party, as such, he has failed to prove negligence on his part. In 2002 (2) CLT Supreme Court 52 Vinitha Ashok versus Lakshmi Hospital and others, wherein it has been held by the Apex Cout that removal of uterus consequent upon an ectopic pregnancy in the cervical canal when there is no complaint of any kind of cancer nor there was any visible proof of the same. It was further held by the Apex Court Contd.......8 : 8 : that failure to send the uterus and the product of conception after surgery for histopathological examination does not amount to negligence on the part of the opposite party. In 2000(1) CLT NC 55 Tarachand Jain versus Sri Ganga Ram Hospital & anr. wherein no cogent, convincing and reliable evidence was produced by the complainant in support of his complaint. It was held by the Hon'ble National Commission that as the complainant did not produce the expert evidence in support and has not substantiated the charges of negligence and deficiency in service on the part of the opposite party, therefore, he is not entitled to the relief. 9. In the light of our above discussion and being fortified by the ratio of judgments relied upon by the learned counsel for the opposite party, we have come to the irresistible conclusion that complainant, has failed to prove any deficiency, in service on the part of the opposite party. As such, no ground is made out for grant of compensation for financial loss stated to have been suffered by the complainant or mental and physical harassment and costs of filing of the complaint . 10. For what has been discussed above by us, we dismiss the complaint, leaving the parties to bear their own costs. 11. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 11.02.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
