SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 35 of Consumer Protection Act 2019, seeking to get an order directing opposite party to refund the amount of Rs.70,000/- to the complainant together with Rs.50,000/- towards compensation and cost of proceedings.
The brief facts of the case of the complainant are the complainant had purchased a mulched cow from the OP for an amount of Rs.70,000/- on 16/08/2018 at the time of the same the OP promised that the mulched cow was high barred one having yield of 24 litter milk per day and it was a cow having a tender calf of only 6 days age and the complainant here in being a milk farmer leading her life solely depending upon the diary business. Being a high yielding genes of cow believing the words of the OP, after giving the entire amount of Rs. 70,000/- brought the cow to her house and maintain with much care and proper attention but within a few days the cow was seen bleeding from the nose and when consulted with veterinary doctor, he opined that the cow was an ill effected one and hence the complainant herein approached the OP to give back the cow and receive the amount, as requested by the OP the cow was given back to the OP with the calf but he did not turned up to give the amount which was received from the complainant. The complainant herein sent a lawyer notice to the OP through her counsel on 18/09/2018 demanding to return the purchase amount of Rs.70,000+ compensation of Rs.50,000/-. Even though the notice was received by the OP he did not give any priority to comply the request in the notice. Hence the complaint.
After receiving notice OP entered appearance and filed written version through counsel. OP totally denied the allegations of the complainant even purchase of the cow by the complainant. According to OP, he has no relation with the complainant in purchasing he cow and he doesn’t know anything about the value of the cow and did not receive any amount from the complainant. OP further submitted that he came to know about the sale transaction of the cow between one of the senior members of his house and one relative the complainant. He denied the allegation of the complainant that OP promised that the said cow is one having yield of 24 liters of milk per day etc. Further denied the allegation the cow in question is a diseased one and was under treatment for a long time. OP further submitted that the complainant along with one broker came to the home and after ascertaining the quantity of the milk and physical appearance of the cow and then purchased the cow. OP submitted that he had not concealed any fact from the complainant about the cow. According to OP there was no deficiency in service on his part and prayed for the dismissal of complainant.
Complainant has filed his chief affidavit and documents. Examined as Pw1 and marked Exts.A1 to A4. Ext.A1 is the lawyer notice, A2 is treatment history of the cow issued by Assistant Veterinary officer, Vellad, Kannur dated 23/08/2018. Ext. A3 is lab result and Ext.A4 is the legal notice issued by OP to the complainant. On the side of OP, 3 witnesses were examined. Dw1 is the OP himself, Dw2 is veterinary doctor Dr. Bijoy Varghese, who issued certificate. Ext.B1 stating that the cow is healthy and free from disease, for submitting before Insurance Company. Dw3 is the veterinary doctor who issued Ext.B2 Inspection report of the cow dated 23/08/2018 stating that the animal was free from any disease condition. Bleeding from nostrils was noticed and occurred due to hit of head on hard object. After that the learned counsel for the complainant and OP filed argument notes.
With regard to the 1st point about pending of criminal case between parties about the same fact, it is well settled that the pendency of the criminal case is no ground of dismissal of the complaint filed before consumer commission under the Act, as according to sec. 100 of Act 2019, remedy provided under the Act is in addition to and not in derogation of any other provision of law.
It has been alleged by the complainant that she had purchased the mulched cow in this case for her livelihood from the OP after paying Rs.70,000/- but within a few days the cow was seen bleeding from the nose and when consulted with veterinary doctor, opined that the cow was suffering from unilateral epistaxis, which is not subsiding after the treatment. So the complainant was forced to take the cow to the OP requested to give back the amount he had paid.
On the other hand OP totally denied the allegations of the complainant even the purchase of cow from him. He further submitted that one of his members in the family sold the cow to the husband of the complainant through a broker. OP further denied about the price money of the cow and other allegations of the complainant. But as stated by the complainant in Ext.A4 the legal notice sent by OP to the complainant through Advocate T P Lakshman, dated 05/04/2019, it is clearly admitted the facts that he was the owner of the cow and he received Rs.70,000/- from the complainant and admitted that the cow and the calf is in his custody. From Ext A4, the contention of OP in the version about the denial of the fact of sale the cow and about not entrusting the cow in back, cannot be believed. From Ext.A4 it is evident that the cow and the calf in this case, was returned to him and he had not given back the amount of Rs.70,000/- (sale value of the cow) to the complainant.
With regard to the alleged disease of the cow, complainant produced Ext.A2 certificate dated 23/08/2018 issued by a veterinary surgeon. OP has not raised any objection is marking Ext.A2 certificate. Hence it can be presumed as a genuine document. From that document it is evident that the cow in question is having a history of some disease as mentioned in Ext.A2. OP has produced Ext.B1 certificate issued by veterinary surgeon on 14/04/2018 for submitting before Insurance Company for taking Insurance that the cow does not have disease and it is healthy. OP has examined the said doctor as Dw2. During cross-examination Dw2 deposed that there was no claim submitted for getting Insurance benefit for accident. Further OP has examined Dw3 veterinary Surgeon who issued Ext.B2 report. The inspection report of the cow. In Ext.B2 the doctor reported that the animal was apparently healthy and bleeding from the nostril was due to hit of head on hard object. Dw3 during examination deposed in tune of Ext.B2.
From the documentary evidence we can see that there are three certificates issued by three responsible Government officers Veterinary surgeons. So we cannot ignore these certificates. From the evidence of Dw1 (OP No.1), and from Ext.A4 it is clear that, there was sale transaction between the complainant and OP and complainant purchased the cow and calf for Rs.70,000/- from OP. Further it is evident that within one week, complainant taken back the cow and left in OP’s premises. It is also a fact that at the said time, there was bleeding from the nostrils of the cow. There after OP has treated the cow by veterinary surgeon and sold it again to another person. So it is clear that OP has got money again in the second sale also. Then he has to return the amount to the complainant after deducting the treatment expense. From the evidence it is understood that he had to spent about Rs.15,000/- for treatment expense. Hence we are of the considered opinion that OP will have to return the rest amount from Rs.70,000/-.
In the result, complaint is allowed in part. Opposite party is directed to pay Rs.55,000/-(Rs.70,000-Rs.15,000) to the complainant. Opposite party is also directed to pay Rs.7,500/- towards compensation and Rs.2500/- towards cost of proceedings of this case. OP shall comply the order within one month from the date of receipt of the certified copy of this order. Failing which the amount Rs.55,000+7500 carries interest @ 9% per annum from the date of complaint till realization. Complainant can execute the order as per provision in Consumer Protection act 2019.
Exts.
A1-Copy of lawyer notice
A2-Treatment history of the cow issued by Veterinary Officer dated 23/08/2018
A3-Lab result
A4- Legal notice issued by OP to the complainant
Pw1-Complainant
B1- Certificate of Insurance (with objection)
B2-Inspection report (with objection)
B3-Receipt of premium (with objection)
Pw1-Complainant
Dw1-OP
Dw2- Dr. Bijoy Varghese-Witness of OP
Dw3-CD Jose-Witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
