CONSUMER DISPUTES REDRESSAL FORUM

Palakkad, Kerala

Dated this the 30^th day of April 2014

  CC/69/2013

PRESENT : SMT. SEENA. H, PRESIDENT                              Date of filing: 05/04/2013

             : SMT. SHINY.P.R ,MEMBER

   : SMT.SUMA K.P, MEMBER

Muhammedkutty,

S/o. Moidu,

Chembottuthodi House

Mulayamkavu P.O, Ottapalam Taluk,

Palakkad – 679 337.                                                            : Complainant

(By Adv.K. Dhananjayan & By Adv. C.V. Suresh kumar)                                                         

                                                                          Vs

1. Kunjumani, S/o. Muhammed,

Nellissery House,

Choorakkode (P.O),

Vallapuzha, Ottapalam Taluk.

1. Ibrahim S/o. Muhammed,

Nellissery House,

Choorakkode (P.O),

Vallappuzha, Ottapalam Taluk.                                             : Opposite parties

(By Adv.T.V. Pradeesh)

                                                                      O R D E R

By Smt. Suma. K.P, Member

          The case of complainant is that he is an agriculturist who is also engaged in milk trading in small scale manner. He had purchased a cow from the opposite parties 1 and 2 on 25/08/2012.  At the time of purchase the opposite parties had assured that the cow will milch 13 liters of milk per day.  Total price demanded by the opposite parties was Rs.65,000/- ( Rupees Sixty Five Thousand only). Then the complainant had paid an amount of Rs. 50,000/- (Rupees Fifty Thousand only) by cash and for the balance amount of Rs.15,000/- he had given one of his cow to the opposite parties and opposite parties accepted it.  There after, within few days the complainant had lactated the cow it had given only 7 liters of milk.  Thereafter the cow had been affected with chronic acute pneumonia and the cow had died on 09/10/2012.  The cow was treated by Veterinary Surgeon of Kulukkallur Veterinary Dispensary.  Thereafter the cow died within six days of its treatment. The complainant doubts that the opposite parties had sold a cow, which was having lot of physical ailments and diseases and there by the opposite parties had committed deficiency of service by wilfully suppressing the material fact that the cow was having lot of diseases.  The veterinary surgeon had conducted postmortem on the carcass of the cow and a report to that effect has been registered in the register kept in the Kulukkallur Veterinary Dispensary.  Thus the complainant approach before the forum seeking a compensation of Rs.95,000/- from the opposite parties with interest and cost for mental agony suffered due to the death of the  cow.

          The complaint was admitted and notice was issued to the opposite parties for appearance. The opposite parties entered appearance through counsel and filed version stating the following contentions. The opposite parties contented that the complainant had approached the opposite parties on 21/07/2012 for purchasing the cow and not on 25/08/2012 as stated in the complaint.  Complainant was satisfied after examining the cow and the opposite parties assured that the cow will milch 8 liters per day.  The opposite parties demanded Rs. 40,000/-( Rupees  Four Thousand only) as price for the cow for which the complainant agreed, and they decided to exchange one of the cow of the complainant for Rs.10,000/- to the opposite parties on 21/07/2012. The  complainant had paid Rs.15,000/- to the opposite parties and for the balance amount of Rs.15,000/- he sought 15 days time and the cow was taken home on the same day. Opposite party had never promised to the complainant that the yield of the cow is 13 liters per day nor demanded Rs. 65,000/- as consideration.  Even after 15 days of purchase the complainant failed to pay the balance amount hence 1^st opposite party demanded for the balance amount.  But the complainant evaded balance amount stating  lame excuses. At last  on  12/09/2012 the 1^st opposite party demanded the balance amount and warned the complainant that if he failed to pay the balance amount within 4 days he will take back the cow. Thereafter the complainant had issued a lawyer notice to the opposite parties stating false reasons so as to escape  the liability.  The 2^nd opposite party had met with  an accident and is laid up for several months and he had no connection with the  transaction and he is an unnecessary party. Cow was handed over to the complainant on 21/07/12 immediately after the delivery and was having good health. At the time of purchasing complainant was having another four cows, and the opposite party suspects that if at all any of the cow had died, it might be one of the complainant’s cow itself.  The opposite party is not liable if the cow had developed any diseases due to the carelessness or lack of food nutrients provided by the complainant. The complainant had no complaint regarding the cow till 14/09/12. The complaint is lack of bonafides and is filed on experimental basis. There is no deficiency of service on the part of opposite party and  the complaint has to be dismissed.

           Both parties filed their respective  chief examination affidavits.  Complainant had also filed chief examination affidavits of two witnesses and also examined Dr. Aneesh Raj, Veterinary  Surgeon Kulukkallur Veterinary Dispensary. The relevant pages of the register was marked Ext C1. Complainant had also produce document and photographs of carcass of the cow.

 Issues that arise for consideration

          1.    where there is any deficiency of service on the part of opposite party? .

          2. If so, what are the reliefs ?

1.   It has been stated by the complainant that the cow was  having chronic disease of Pneumonia and it had died.  At the time of filing, the complainant stated that  the death  of the cow was on 24/10/2012. There after complainant filed an application for changing the date death as 9/10/2012. During the  time of examination the Veterinary Surgeons deposed that he had examined the complainant’s cow and he was not sure whether that particular cow was sold by  the opposite party to complainant.   He had also deposed that after the incident another cow of the complainant also died and he could not exactly remember the date of death.  Witness also added that he could not ascertain at what time the cow had developed Pneumonia.   He had conducted postmortem of the death of the 2^nd cow. The yield  of  the  cow  depends  upon  so  many  factors  such  as  climate,  food  and change

 of shelter etc. The normal lactation period of cow is 305 days and he had not noticed that the particular cow had lactation. He had  also added that the complainant is an experienced person in handling the cow and he had the capability of understanding the yield by observation of udder.  The opposite party had filed a suit before the Munsiff court, Pattambi for the realization of balance amount  due from the complainant. There is no evidence to the effect that on which date the complainant had purchased the cow. Admittedly the cow had given the yield of 7 liters at the time of purchase and the cow had developed ailment just before a week of its death as per the evidence adduced by the Veterinary Surgeon. The complainant had  not produce sufficient evidence to establish  that the cow died was the one  that was supplied by the opposite party .  The colour of the cow is also not clearly stated in the complaint or in the postmortem report.  Hence there is reasonable doubt with regard to the identity of cow which had died.   More over cow had developed diseases at the custody of the complainant according to evidence on record before the forum . Since the complainant is an experienced person in handling the cow he could have ascertained the diseases of cow at time of  purchase itself.  There is a lot of discrepancies  with regard to the identity of the cow for which the complainant had no proper clarification. In this context the opposite parties cannot be held responsible for the death of the cow. The case of the complainant cannot be swallowed blindly without a pinch of salt.  Hence we are not in a position to attribute deficiency of service on the part of opposite party. Point 1 is answered accordingly.

          Point No. 2  :- In view of  the above  discussions we are the view that complainant had  failed to prove his contentions  beyond  reasonable doubt.   Hence complaint is dismissed with no  order as to cost.

          Pronounced in the open court on this the 30^th day of April 2014.

                                                                                          Sd/-

                                                                                   Smt. Seena. H

                                                       President

                                                         Sd/-

                                                         Smt. Shiny. P.R

                                                       Member

                                                           Sd/-

                                                         Smt. Suma. K.P

                                                         Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 series  - Photographs of diseased cow.

Ext.C1 series – Copy of relevant page register produced by  Dr. Aneesh Raj.

Exhibits marked on the side of the opposite party

Nil

Witness examined on the side of complainant

PW1  -   Dr. Aneesh Raj

 Witness examined on the side of opposite parties

Nil

Cost allowed

Nil