BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 39/2005 Filed on 23.01.2005 Dated : 31.03.2009 Complainant:
V. Vijayakumar, Vidya Bhavan, Paruthipalli, Kuttichal Panchayat, Nedumangadu Taluk, Thiruvananthapuram.
(By adv. S. Ranganathan) Opposite parties:
The Joint Director, Thiruvananthapuram District Animal Husbandry Office, Thiruvananthapuram. The District Animal Husbandry Officer, Thiruvananthapuram District Animal Husbandry Office, Thiruvananthapuram. Ajith Kumar, Veterinary Surgeon, Kuttichal Panchayat, Nedumangadu Taluk, Thiruvananthapuram.
(By adv. K. Sreekumaran Nair)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 18.12.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 10.02.2009, the Forum on 31.03.2009 delivered the following:
ORDER
SMT. BEENAKUMARI.A: MEMBER
The facts of the case are as follows: On 11.02.2004 the she buffalo owned by the complainant which was valued at Rs. 30,000/- was subjected to artificial insemination by the 3rd opposite party. The said buffalo which became pregnant was subjected to vaccination for foot disease on 14.06.2004 by the 3rd opposite party and it resulted in abortion. As a result of the above said vaccination the complainant's buffalo ceased to lactate. The incident of miscarriage was immediately informed to the 3rd opposite party and the 3rd opposite party removed the dead foetus from the she buffalo. As per the direction of the 3rd opposite party the complainant's she buffalo was subjected to artificial insemination on two occasions. But the artificial insemination adversely affected the health of the buffalo and it became completely sterile. As per the complainant it is due to the inadvertent and incorrect treatment procedure of the 3rd opposite party. The complainant received a notice from the 3rd opposite party requesting him to accept Rs. 2000/- entitled to him from the government as compensation. The complainant was ready to accept the amount on protest. But the opposite party refused to hand over the cheque. He compelled the complainant to give him a written endorsement that he will not proceed with this case any further. But the complainant refused to do so as he suffered damage over and above the said amount. Hence this complaint. All the three opposite parties entered appearance. The 1st opposite party has not filed version. Opposite parties 2 and 3 filed separate versions.
The main contention raised by the opposite parties are that this forum has no jurisdiction to entertain this complaint and the complainant is not a consumer under the Consumer Protection Act. They alleged that the vaccination for foot disease is part of Government policy and the complainant cannot claim compensation for the side effects caused due to the vaccination.
The points that would arise for consideration are:- Whether the complainant is a consumer under the Consumer Protection Act? Whether there is deficiency in service from the side of opposite parties? Whether the complainant is entitled to get the reliefs?
Points (i) to (iii):- The complainant was examined as PW1 and he has produced 7 documents. The documents were marked as Exts. P1 to P7. Ext. P1 and P1(a) are the receipts in connection with the vaccination. As per Ext. P1(a) the opposite parties charged Rs. 10/- from the complainant as administrative charges of FMD vaccination. Ext. P2 series are the receipts issued from the office ICDP, Kuttichal for artificial insemination. Ext. P3 is the copy of advocate notice. Ext. P4 is the reply notice. Ext. P5 is the copy of reply letter issued by the 2nd opposite party to the complainant. Ext. P6 is the copy of notice issued by the 3rd opposite party to the complainant informing the matter that the Government sanctioned Rs. 2,000/- to the complainant for the loss of vaccination and instructed to accept the cheque for an amount of Rs. 2,000/- from the office of the 3rd opposite party. Ext. P7 is the copy of letter sent by the complainant to the 3rd opposite party intimating that he is ready to accept the cheque on protest. In this case from the side of opposite parties Dr. A.P. Somasekharan Nair, Senior Veterinary Surgeon was examined as an expert. He was examined as DW1. The opposite parties produced 9 documents which were marked as Exts. D1 to D9. Ext. D1 is the copy of G.O(Rt) 789/2004/AD dated 29.06.2004. Ext. D2 is the copy of attendance certificate issued by District Animal Husbandry Officer that the 3rd opposite party attended the meeting on 23.06.2004 at Veterinarians Building, Thiruvananthapuram. Ext. D4 is the copy of petition sent by the complainant to the 3rd opposite party. Ext. D5 is the copy of order sanctioning Rs. 2000/- to the petitioner regarding the abortion of his buffalo after vaccination. Ext. D8 is the copy of letter sent by the complainant to the opposite parties informing that he can accept the amount with protest. Ext. D9 is the copy of reply informed that such procedure cannot be done.
It is admitted fact that the she buffalo owned by the complainant was vaccinated. At that time the buffalo was four months pregnant. As per the scheme pregnant cattle and buffalo upto seven months of pregnancy should be vaccinated. This is also mentioned in the manual of Animal Husbandry Department of 1966 page 128, Packages of Practices, Recommendations-vaccination schedule published by the Kerala Agricultural University. The 3rd opposite party produced the manual before this Forum. Therefore the 3rd opposite party has done the vaccination as per the direction of the Authorities and the complainant has not produced any evidence against it. In this case Government sanctioned Rs. 2,000/- to the petitioner as compensation in connection with the loss due to the vaccination which he denied to accept. Another contention raised by the opposite parties are that there is no consideration for the service rendered by the opposite parties. Hence the complainant is not a consumer. They collected registration fee of Rs. 10/- only from the complainant for the vaccination. They produced the ruling [(1)1996 CPJ 135 (NC)]. As per this decision of the National Commission collection of registration fee is not by way of consideration for service or hiring of service. And also the opposite parties submitted that a policy decision of a State Government cannot be a subject matter of consumer disputes (CPJ(1997) 11188 NC). Hence in this aspect the complainant is not a consumer as per Sec. 2(d)(ii). The complainant submitted that he had made payment for the vaccination and Ext. P2 series are the receipts for the payment. That contention is not correct. Ext. P2 receipts are not the payment for vaccination, but for the payment of artificial insemination. As per Ext. P1(a) document, the complainant had paid Rs. 10/- as administration charges of FMD vaccination and the payment was not for the vaccination charge . It is considered as registration charge. From the above said decision, the said payment cannot be treated as consideration and the complainant has not availed any service as enunciated in the Consumer Protection Act. In this case the opposite parties argued that the vaccination programme is a Central Government sponsored scheme and is a government policy. The project aims at an animal disease control zone in Kerala by controlling foot and mouth disease by vaccination. The complainant alleged that due to the vaccination his she buffalo was aborted. He informed the matter to the opposite parties and the opposite parties sanctioned Rs. 2,000/- to the complainant which he denied to accept. The complainant has the right to receive the amount from the opposite parties at any time. In this case there is no deficient service or negligence from the side of opposite parties. The complainant also alleged that due to the incorrect treatment procedure and lack of timely medical intervention on the part of 3rd opposite party the animal's health was affected and it became completely sterile. In this case the artificial insemination was given from the ICDP centre, Kuttichal and not from the 3rd opposite party's office. Ext. P2 series receipts produced by the complainant proves it. Hence the allegation levelled against the 3rd opposite party is not maintainable.
From the deposition of DW1, the expert, we can find that there is no way any deficient service or negligent act from the side of opposite parties. He stated that “7മാസം വരെ ചെനയുളള എരുമകള്ക്ക് കുത്തി വയ്ക്കാം. ഏത് പ്രതിരോധ നടപടി എടുത്താലും 2-3 days കറവ കുറവായിരിക്കും. അതു കഴിഞ്ഞാല് സാധാരണ പോലെ തന്നെയായിരിക്കും”.
From the documents, pleadings and evidences adduced by the complainant and opposite parties, we have concluded that the complainant is not a consumer and the allegations levelled against the opposite parties by the complainant are baseless and false. Hence the complaint is dismissed. No costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 31st March 2009.
BEENAKUMARI. A : MEMBER
G. SIVAPRASAD : PRESIDENT S.K. SREELA : MEMBER
O.P. No. 39/2005 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Vijaya Kumar II COMPLAINANT'S DOCUMENTS : P1 - Copy of vaccination card with census date 04.06.2004. P1(a) - Copy of vaccination date P2(a) - Copy of acknowledgement for receipt of money dated 11.02.2004. P2(b) - Photocopy of acknowledgement card. P2(c) - Photocopy of acknowledgement card dated 03.09.2004. P2(d) - Photocopy of acknowledgement card dated 27.04.2004. P2(e) - Photocopy of acknowledgement card dated 29.09.2004. P2(f) - Photocopy of acknowledgement card dated 28.09.2004. P3 - Copy of advocate notice dated 26.10.2004. P4 - Copy of reply notice dated 21.11.2004. P5 - Copy of letter dated 10.11.2004 issued by opposite party. P6 - Copy of letter dated 04.12.2004 issued by opposite party. P7 - Letter dated 24.12.2004. P8 - Malayala Manorama daily newspaper dated 19.05.2005. III OPPOSITE PARTY'S WITNESS : DW1 - Dr. A.P. Somasekharan Nair IV OPPOSITE PARTY'S DOCUMENTS : D1 - Copy of Govt. Order No. G.O(Rt) 789/2004/AD. D2 - Copy of Govt. Order No. G.O(MS) 126/2003/AD. D3 - Copy of attendance certificate dated 07.09.2005. D4 - Copy of letter dated 28.06.2004. D5 - Copy of Proceedings of the Director of Animal Husbandry. D6(a) - Copy of list of details of deaths associated with FMD. D6 - Copy of Abstract G.O.(MS) No. 5/05/AD. D7 - Copy of rate of NABARD. D8 - Copy of letter dated 14.01.2005 issued to the 3rd opposite party. D9 - Copy of letter issued to the complainant by the 3rd opposite party. PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
