By Sri. A.S. Subhagan, Member:

            This is a Complaint preferred under Section 12 of the Consumer Protection Act 1986.

            2. Facts of the case:- 

            The Complainant is an Agriculturist and concentrating on animal husbandry for the livelihood. On 24-04-2019, the Complainant purchased a CBHF cow having black and white colour, on payment of consideration of Rs.95,000/-  from the first Opposite Party. The second Opposite Party was a broker to the transaction and he had accepted Rs.2000/- towards his service charge from the Complainant. At the time of transaction, the cow was in an advanced stage of Pregnancy. The first and second Opposite Parties assured the Complainant that 32 liters of milk would fetch from the cow after its delivery. Therefore, the consideration fixed per litter as Rs.3,000/- and finally total consideration fixed as Rs.95,000/-. The cow delivered after one week. The cow was properly maintained by the Complainant, but the Complainant got only 6 liters of milk in the morning and 5 liters in the evening. Hence, considering the availability of Milk, the actual value of the cow is Rs.33,000/-.  The Complainant approached the Opposite Parties and narrated the facts regarding the non-availability of the assured milk from the cow. But the Opposite Parties had not settled the matter. Later, the Complainant sent a Lawyer notice to the Opposite Parties on 06-06-2019. Though they have accepted the notice, instead of settling the matter, the Complainant spent Rs.2,000/- for the delivery maintenance of cow, Rs.15,780/- towards subsequent maintenance and estimates Rs.50,000/- as compensation for mental agony suffered by the Complainant and efforts made to maintain the cow. And the Complainant is entitled to get back the sum of Rs.62,000/- out of total consideration of Rs.95,000/- after deducting the actual value of Rs.33,000/- from the first Opposite Party or take back the cow after repaying Rs.95,000/- with compensation and the second Opposite Party is liable to return Rs.2,000/- received from the Complainant towards broker fee and Rs.25,000/- towards compensation for the damage caused to the Complainant due to deficiency in service on the part of 2^ndOpposite Party.  Hence this complaint with prayers:-

1. To pay a sum of Rs.79,780/- with 12% interest from 24.04.2019 or take    back the cow and return the consideration of Rs.95,000/- to the Complainant with 12% interest
2. To pay a sum of Rs.50,000/-
3. To direct the second Opposite Party to return Rs.2,000/- received from    the Complainant as broker fee and pay a sum of Rs.25,000/- towards compensation with 12% interest from 24.04.2019 and
4. To grant other relief as deems fit and proper for the disposal of this

            case.

            3.  The Complaint was admitted and notices were served on the Opposite Parties.  The Opposite Parties appeared before the Commission and filed version.

            4.  Contents of version filed by the first Opposite Party:-

            The Complainant had not purchased the cow from the first Opposite Party but he had purchased a cow from one Ratheesan Kollappally.  As the cow purchased by the Complainant from Ratheesan was not drinking water, they had agreed to replace the cow for which they approached the first Opposite Party enquiring whether there is any cow for sale and consequently the first Opposite Party sold a cow to Ratheesan.  After deciding to sell the cow, Ratheesan and other three persons and the Complainant visited the first Opposite Party and saw the cow, and the first Opposite Party sold the cow to Ratheesan accepting the consideration.  The first Opposite Party had no direct transaction with the Complainant.  As there has been no direct transaction for sale of cow to the Complainant, the first Opposite Party is not liable to pay any amount as prayed in the complaint.  Hence, it is prayed to dismiss the complaint with compensatory cost.

            5.  Contentions of version in brief, filed by the second Opposite Party:-

            The second Opposite Party had not been as broker in the sale of cow to the Complainant nor received any service charge as narrated in the complaint.  A cow purchased by the Complainant from Ratheesan was not drinking water and hence, after four days, the cow was returned to Ratheesan for replacing it.  On this terms between Ratheesan and Complainant, the cow purchased by the Complainant was replaced by Ratheesan, purchasing a cow of the same price from first Opposite Party.  The second Opposite Party was the broker in the deal of the first cow purchased by the Complainant.  The second Opposite Party has no involvement in the deal of the cow directly done by Ratheesan and the Complainant.  The second Opposite Party has not received any amount from the Complainant in relation to the transaction of cow referred in the complaint.  So the second Opposite Party is not liable to pay any amount to the Complainant.  Hence it is prayed to dismiss the complaint with compensatory cost of the second Opposite Party.

            6.  Proof affidavit was filed by the Complainant, Ext.A1 to A5 series were marked from his side and he was examined as PW1.   One Varghese was examined as PW2 and Dr. Yogesh, Veterinary Surgeon was examined as PW3.  First Opposite Party and second Opposite Party had no oral evidence.  One Ratheesan was examined as OPW1.

            7.  On scrutiny of the complaint, versions, documents marked and the oral evidences adduced by PW1, PW2, PW3 and OPW1 and the arguments of the counsels in hearing, we raised the following points for consideration:-

1. Whether there has been any deficiency in service from the part of

                      the Opposite Parties?

2. If so, whether the Complainant is entitled (a) to get refund of

     Rs.79,780/- with interest from 24.04.2019 or take back the cow and

    return the consideration of Rs.95,000/- with 12% interest? (b) to get

    Rs.50,000/- (c ) to get refund of Rs.2,000/- paid as brokerage to the

   second Opposite Party and to get Rs.25,000/- towards compensation

   with 12% interest from 24.04.2019 and

3. Whether the Complainant is entitled to get any other relief as deems fit and proper for the disposal of this case?.

            8.  Point No.1 to 3:- For convenience and brevity, all the points are considered together:-

            The allegation of the Complainant is that the cow which was purchased by him from the first Opposite Party had not fetching 32 litres of milk as convinced by the first Opposite Party, instead it had only an yield of 11 litres of milk (6+5 litres, morning + evening).  Hence the Complainant forwarded a lawyer’s notice to the first Opposite Party as per Ext.A1(a), seeking remedy as stated in Ext.A1(a) for which the first Opposite Party forwarded a reply lawyer’s notice as per Ext.A2 denying the sale of the cow to the Complainant and all other allegations in the notice.  The contention of the first Opposite Party is that he had not sold the cow mentioned in the complaint to the Complainant.  According to the first Opposite Party, the said cow was purchased from him by one Ratheesan who had exchanged that cow to the Complainant with another cow which was already sold by Ratheesan to the Complainant as it was not drinking water.  The averment of the first Opposite Party is that he had no direct transaction with the Complainant, instead he had only sold his cow to Ratheesan and Ratheesan exchanged it to the Complainant for which the first Opposite Party had no direct involvement and as such he is not responsible and liable to the Complainant.  PW2 who was brought by the Complainant before the Commission in chief examination has deposed that the Complainant had purchased a cow for Rs.95,000/- from the first Opposite Party.  PW2 was not a broker in this transaction.  PW2 has also stated that he had visited the residence of the Complainant together with the Panchayath President but the Panchayath President was not examined to prove the credibility of the statement of PW2.  The Complainant in oral examination has also stated that he was not examining Ratheesan.  But Ratheesan was examined as OPW1 who has stated that as the cow which was sold by him to the Complainant was not drinking water, Ratheesan had exchanged the cow bought from the first Opposite Party to the Complainant.  In cross-examination, Ratheesan has stated that he had seen about 8-10 cows including HF and Jersey in the cattle shed of the Complainant.  The retired Veterinary Surgeon Dr. Yogesh was examined as PW3 who has issued Ext.A3 Certificate.  While considering the dispute between the Complainant and the first Opposite Party it is seen that PW2 is in favour of the Complainant but he was not a broker or a party having any involvement in the cow transaction between the Complainant and the first Opposite Party.  It is also seen that OPW1 is in favour of the first Opposite Party who contents that he was the person who had exchanged the cow purchased from the first Opposite Party to the Complainant.  Here, no evidence is available before the Commission to ensure the credibility of the Complainant, first Opposite Party PW2 and OPW1 so as to prove that who says the truth.  Therefore, discarding the oral allegations, contentions and the oral depositions in evidence, the only option available before the Commission to decide the case is to depend on the documentary evidences produced before us.  Ext.A1 to A5 documents were produced before us by the Complainant in support of his case of which Ext.A1(a) to A1(d) are the lawyer’s notice issued by the Complainant to the first Opposite Party and the receipt and postal acknowledgment issued by the postal department.  Ext.A2 is the reply lawyer notice issued by the first Opposite Party.  Ext.A3 is the Certificate issued by retired Veterinary Surgeon Dr. Yogesh.  Ext.A4 is the Certificate issued by Pulpally Ksheerolpadaka Sahakarana Sangam in which the Complainant was used to sell milk and Ext.A5 is the monthly bill issued from the society to show the quantity and price of the milk sold by the Complainant to the society.  Neither of these documents Ext.A1 to A5 is seen sufficient to prove that the cow referred in the complaint was purchased by the Complainant from the first Opposite Party as the Complainant had 8-10 cows including HF and Jersey.  So, as there is no material/evidence to prove that the cow referred in the complaint was the cow purchased by the Complainant from the first Opposite Party, we are not in a position to find any deficiency in service/unfair trade practice from the part of the first and second Opposite Parties.  And as there is no deficiency in service/unfair trade practice is seen proved against the first Opposite Party and the second Opposite Party, Point No.1 to 3 are against the Complainant and therefore the complaint is liable to be dismissed.

            In the result, the complaint is dismissed but without cost.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 30^th day of December 2022.

Date of Filing:-01.08.2019.

PRESIDENT(I/C)      :Sd/-

MEMBER                   :Sd/-

APPENDIX.

Witness for the complainant:-

PW1.              Poulose. T. K.                                               Agriculture.

PW2.              Varghese.                                                     Agriculture.

PW3.              Dr. Yogesh. K. P.                                         Veterinary Surgeon.

Witness for the Opposite Parties:-

OPW1.          Ratheesan.                                                   Business.

Exhibits for the complainant:

A1(a).                        Lawyer Notice.                                                        Dt:06.06.2019.

A1(b).                        Acknowledgment Card.

A1(c).             Acknowledgment Card.

A1(d).                        Postal Receipt.                                                        Dt:11.06.2019.

A2.                  Lawyer Notice.                                                        Dt:18.06.2019.

A3.                  Certificate issue by Veterinary Surgeon.         Dt:25.05.2019.

A4.                  Certificate issued by Secretary Pulpally Ksheerolpadaka

                        Sahakarana Sangam Limited.                             Dt:11.07.2019.

A5(a).                        Monthly Bill.                                                           

A5(b).                        Monthly Bill.

A5(c).             Monthly Bill.

A5(d).                        Monthly Bill.

A5(e).                        Monthly Bill.

A5(f).             Monthly Bill.

Exhibits for the Opposite Parties:-

                        Nil.

PRESIDENT(I/C)      :Sd/-

MEMBER       :Sd/-

/True Copy/

Sd/-

ASSISTANT REGISTRAR,

    CDRC, WAYANAD.