By. Sri. Ananthakrishnan. P. S, President:
This is a complaint filed under section 12 of the Consumer Protection Act 1986.
2. The complainant’s case in brief is as follows:-
The complainant is a vendor of eggs and depending upon the income derived from this for his livelihood. On 30.03.2019, he purchased 30 female chicks and 10 male chicks from the opposite party for Rs.900/-. But, when they
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grown up, he came to know that Opposite Party had sold 20 male chicks to him instead of 10 male chicks. Therefore opposite party cheated him. He had incurred much expenses to foster the additional 10 male chicks. He is a small vendor without having a farm. Therefore he filed this complaint against the Opposite Party to get Rs.10,000/- as the expense to foster the additional 10 male chicks and Rs.20,000/- as compensation for mental agony and for cheating.
3. The opposite party filed version which is in short as follows:-
The Opposite Party, Kerala Veterinary and Animal Sciences University was established under K.V.A.S.U. Act, 2010 for the purpose of development of Veterinary and Animal Science. College of Veterinary and Animal Science at Pookode, Wayanad is under this University. The Instructional Livestock Farm Complex under the University used to sell eggs and chicks to public for a reasonable price. This is not a commercial business. So, the Complainant is not a consumer and thus the grievance of the complainant will not come under Section 2(c), (f) and (g) of the Consumer Protection Act. They admitted that they have sold 30 female chicks and 10 male chicks of one day old to the complainant for Rs.900/-. The sexing of one day old chicks is very difficult. 19 farmers purchased
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1915 chicks on 30.03.2019 from the Opposite Party. They, except the complainant, did not raise any complaint. Even an expert can identify the sex of chicks only at 98% accuracy. Only 5 to 10 persons became experts in this field even if they complete the course for sexing. So, there is chance of 10% to 15% mistakes in sexing the chicks. The Complainant has not contacted the Opposite Party even if, he got a complaint. Therefore the Opposite Party has not obtained any chance to explain the reason to the Complainant for this mistake. Hence this complaint is liable to be dismissed with cost of the Opposite Party.
4. On the above contentions, the points raised for consideration are:-
1. Whether the Complainant is a consumer or not ?
2. Whether there is any unfair trade practice from the part of
Opposite Party. If so, whether the Complainant is entitled to get
anything as claimed?.
3. Reliefs and Cost.
5. The evidence in this case consists of oral testimonies of PW1, PW2, Ext.A1 and A2 from the side of complainant. Opposite Party has no oral or documentary evidence. Heard both sides.
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6. Point No.1:- The Opposite party took a stand that though they used to sell eggs and chicks to public, it is not a commercial business. So according to them, the Complainant is not a Consumer under Section 2(d) of the Consumer Protection Act and his grievance is not coming under Section 2(c), (f) and (g) of the Act. As per Section 2(d) of the Act, a consumer means any person who buys any goods for a consideration. It is evident that Opposite Party used to sell chicks for money and the Complainant purchased chicks from there. Whether the Opposite Party doing this as a commercial business or not is immaterial here. Since, the Complainant purchased chicks from the Opposite Party for money, definitely, he is a consumer under Section 2 (d) of the Act. The Complainant alleged that the Opposite Party gave 20 male chicks to him instead of giving 10 male chicks. This is, if true, is a defect or unfair trade practice from the Opposite Party. So, the grievance of the Complainant will come under Section 2(c), (f) and (g) of the Act. So this point is answered in favor of the Complainant.
7. Point No.2:- It is an admitted fact that the Complainant had purchased 40 chicks from the Opposite Party expecting 30 are females and 10 are males. Ext.A2 is the Bill issued by the Opposite Party to the Complainant when he
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purchased the chicks. Now the Complainant came before this Forum alleging that the Opposite Party cheated him by giving 20 male chicks and 20 female chicks instead of giving 30 female chicks and 10 male chicks. The Opposite Party admitted that the Complainant had purchased 40 chicks from them among which 30 are females and 10 are males. They contended that there is no accuracy in classifying the chicks according to their sex for age group of one day and even among experts only 5 to 10 % can identify male and female chicks among a group of them. Therefore according to them, there may be mistakes of 10 to 20 % in identify the sex of chicks.
8. PW1 is the Complainant. He deposed that he is a small vendor and depending upon the income derived from selling of eggs. According to him, he purchased 40 chicks from the Opposite Party. He further deposed that the Opposite Party cheated him by giving 20 male chicks and 20 female chicks when he asked for 30 female chicks and 10 male chicks. It is an admitted fact the Opposite Party had given 30 female chicks and 10 male chicks to the Complainant. The case of Opposite Party is that the identification of chicks according to sex is very difficult and there is chance for 10% to 20% mistakes. I do admit that there
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may be such mistakes. But, according to me, then the Opposite Party should not obtained different rates for male chicks and female chicks. It is evident from Ext.A2 that the Opposite party obtained Rs.27/- each for female chicks and Rs.9/- each for male chicks from the Complainant. Suppose they have obtained equal price for male and female chicks, then this type of complaint can be ignored by them pointing possibility of mistakes in identify the sex. Instead, they used to obtain Rs.27/- each for female chicks, when they obtain Rs.9/- each for male chicks. They obtained Rs.270/- from the Complainant for the disputed 10 male chicks instead of getting only Rs.90/-.
9. The counsel appearing for the Opposite Party contented that even though the Complaint purchased chicks from Opposite Party on 30.03.2019, he came with this complaint only on 15.07.2019. So according to them, there is inordinate delay in filing this complaint. There is no foundation in this argument because the Complainant can file the complaint at any day within two years.
10. Then, the counsel appearing for Opposite Party contented that the Complainant has not contacted them when he realised about the mistake and he
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has not filed any complaint before them. It is true that the Complainant has not filed any complaint before the Opposite Party. It does not mean that he is not entitled to file this complaint. The counsel for Opposite Party contented that the Complainant waited for more than three months for filing this complaint even if one can identify the sex of the chicks when they grown up to three and half months. They also contented that the Complainant has not obtained the opinion of any experts to confirm the sex of the chicks he purchased. They pointed out that the Complainant approached PW2 alone to get a certificate showing the sex of the chicks he purchased. But it is to be noted that when the chicks attained their growth for three and half months, no need of experts to know their sex. A child can easily identify the sex of the chicks at this stage. PW2 is a Panchayath President who has given Ext.A1 Certificate which shows that the chicks of the Complainant contains 20 males and 10 females. Admittedly, the complainant has purchased 40 chicks. But, PW2 identified only 30 chicks. The case of the Complainant is that the Opposite Party has given 20 male chicks to him instead of 10 male chicks. He has no complaints against the remaining chicks. His complaint is that Opposite Party has given 10 male chicks instead of giving 10 female chicks. PW1 deposed at the time examination that at the time of filing this complaint he
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got 30 female chicks and 10 male chicks, even though, PW2 identified the sex of 30 chicks alone. But on perusing entire evidence adduced from the side of PW1, it can be seen that this is only a slip of tongue. PW2 categorically deposed that he verified 30 chicks of the Complainant and among them 20 chicks are male.
11. As. I already stated, the counsel for opposite party contented that PW2 is not an expert in identifying the sex of the chicks and the Complainant has not obtained any expert opinion to come into a conclusion that Opposite Party has given 20 male chicks to him instead of 10 male chicks. But, when the chick grows up to three and half months, even a child can identify the sex of the chicks because males and females are having well established differences. The male chick, when grows, is called as cock or rooster and female chick at this age group is called as hen. Cocks/roosters can be distinguished from hens by well established characters. Cocks/roosters have distinguished hackle or neck feathers and saddle or back feathers. In cocks/roosters, these feathers are often pointed where as on hens these feathers are rounded. Cocks/roosters often have thicker legs than hens and have pointed sharp spurs. Cocks/roosters usually have tall, upright and larger combs than hens. If the rooster is young, it will have more pronounced comb than female chicks of same age. The colours of roosters are
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often bright and vibrant comparing to the hens. Roosters tend to have redder forms of combs and wattles at an earlier age than those hens of same age. So these characteristics of cocks/roosters and hens are visible characters and thus those can be easily indentified even by an ordinary man and without any doubt, he can say the disputed one is cock/rooster or hen. So, there is no reason to reject the identification made by PW2 for the reason that he is not an expert in the field. Therefore without any hesitation, we can hold that there is unfair trade practice from the opposite party. So the Complainant has succeeded in proving his case and therefore he is entitled to get monetary relief from opposite party.
12. The Complainant wants Rs.10,000/- as compensation towards the expenses incurred for fostering the disputed chicks and Rs.20,000/- towards mental agony and cheating. No doubt, the claim of the Complainant is exorbitant. It is evident that the Complainant fostered 10 male chicks in addition up to three and half months at the time of filing this complainant. Therefore, according to me, he is entitled to get Rs.2,000/- towards this expense and Rs.3,000/-for the mental agony. Hence the point is answered accordingly.
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13. Point No.3:- Since I found Point No.2 in favour of Complainant, he is entitled to get the relief in part.
In the result, the complaint is partly allowed. The Opposite Party is directed to pay Rs.2,000/- (Rupees Two Thousand) towards expenses and Rs.3,000/- (Rupees Three Thousand) as compensation for mental agony to the Complainant within 30 days from the date of receipt of this Order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 29th day of February 2020.
Date of Filing: 15.07.2019.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Antony. Coolie.
PW2. Kuriakose. P. A. Internal Auditor.
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Witness for the Opposite Party:-
Nil.
Exhibits for the complainant:
A1. Certificate given by Thondernad Grama Panchyath President.
Dt:30.08.2019.
A2. Acknowledgment for Receipt of Money. Dt:30.03.2019.
Exhibits for the opposite party:-
Nil.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
SENIOR SUPERINTENDENT,
CDRF, WAYANAD.
