Punjab

Sangrur

CC/184/2016

Musarat Ali Khan - Complainant(s)

Versus

Mohd. Anwar - Opp.Party(s)

Shri Sumir Fatta

04 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

                                                               

 

                                                Complaint No.  184

                                                Instituted on:    22.01.2016

                                                Decided on:       04.08.2016

 

1.Musarat Ali Khan son of Nusrat Ali Khan 2. Junaid Ali Khan son of Shaukat Ali Khan, both residents of Afgan Chowk, Malerkotla, Tehsil Malerkotla, District Sangrur, both partners of Khan Poultry Farm, Village Mohamadgarh, Dhuri Road, Malerkotla, Tehsil Malerkotla, Distt. Sangrur.

                                                        ..Complainant

                               

                                        Versus

1.             Dr. Chicken Centre, Kamal Cinema Road, Malerkotla, District Sangrur through its proprietor Mohd. Anwar;

2.             India Nutrition Private Limited, Sahnewal Road, Village Kohar, District Ludhiana through its Managing Director.

                                                        ..Opposite parties

 

For the complainant  :       Shri Sumir Fatta, Advocate.

For OP No.1             :       Shri Ashi Goyal, Advocate.

For OP No.2             :       Shri Ashish Kumar, Advocate.

 

Quorum:   Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

 

Order by : Sukhpal Singh Gill, President.

 

1.             Sarvshri Musarat Ali Khan and Junail Ali Khan,  complainants (referred to as complainant in short) have preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that the complainant is running a poultry farm i.e. Khan Poultry Farm in order to earn their livelihood. It is further averred that the complainant purchased 5000 poultry birds of Cob 400Y Breed from OP number 1 @ Rs.17.50 per bid and paid Rs.87,500/- on 25.11.2015. Further case of the complainant is that he also purchased 96 bags of feed from OP number 1 which were manufactured by OP number 2 at the rate of Rs.1600/- per bag  for total amount Rs.1,53,600/-. It is further stated that the complainant paid an amount of Rs.50,000/- in cash to OP number 1 and for the remaining amount issued cheque number 380851 of OBC Malerkotla, but the OP number 1 did not issue any bill for the purchase of birds as well as for the feed. It is further averred that the complainant started to give feed to the chicks, but after 4/5 days the chicks started to die, as such, the complainant immediately approached the OP number 1, but nothing happened.  It is further averred that during next 10/11 days, more hundred chicks died and as such the complainant got the poultry birds checked from poultry disease diagnostic laboratory at Sangrur on 11.12.2015 and 15.12.2015 and after checking they advised the complainant to get the feed checked from the laboratory. As per their advice, the complainant immediately approached the Department of Veterinary Microbiology, COVS, GADVASU, Ludhiana on 18.12.2015 for checking of the feed, who after checking told that the feed was found positive for aflatoxin, which is kind of poison, as such, the complainant approached the OP number 1 and apprised whole of the story, but the OP number 1 flatly refused to do anything or to compensate the complainant.  It is stated further that during the period from 25.11.2015 to 21.12.2015 out of 5000 poultry birds, 3700 birds have died.  Thus, alleging deficiency in service on the part of the OPs, the complainant has prayed that the OP be directed to refund to the complainant an amount of Rs.64,750/- on account of death of poultry birds and further claimed compensation and litigation expenses.

 

2.             In reply filed by the OP number 1, it is denied that the complainant runs the poultry farm in order to earn his livelihood and it is further stated that the OP number 1 has no personal or any commercial transaction with the complainant. It is flatly denied by OP number 1 that the complainant purchased 5000 poultry birds of Cob 400Y breed from OP number 1 as stated above.  Further the OP number 1 has denied that on 25.11.2015, the complainant purchased alleged 36 bags of feed from the OP for Rs.1,53,600/- and receipt of payment of Rs.50000/- from the complainant is also denied and further issuance of any cheque to OP number 1 has been denied.   Further the other allegations levelled in the complaint have been denied by OP number 1 in toto. Lastly, the OP number 1 has prayed for dismissal of the complaint with special costs. Further additional objections have been taken up on the grounds that the OP is running the shop/business of selling meet at Kamal Cinema Road, Malerkotla,  Further it is stated that the alleged letter dated 3.1.2016 does not bear the signatures of the OP and the report dated 21.12.2015 issued by the Department of Veterinary Microbiology is also denied. The maintainability of the complaint has also been disputed as the complainant has not come to the Forum with clean hands.

 

3.             In reply filed by OP number 2, the allegations levelled in the complaint have been denied  in toto. It is stated that the complainant is running the poultry farm on a large scale for commercial purpose and also earning huge profits and that the complainant is not a consumer.  The other allegations levelled in the complaint have been denied in toto.

 

4.             The learned counsel for the complainant has produced Ex.C-1 to Ex.C-3 copies of lab reports, Ex.C-4 copy of prescription slip, Ex.C-5 copy of cash slip, Ex.C-6 copy of report, Ex.C-7 copy of letter, Ex.C-8 copy of report, Ex.C-9 copy of book, Ex.C-10 affidavit and closed evidence. On the other hand, the learned counsel for the OP number 1 has produced Ex.OP1/1 affidavit and closed evidence. The learned counsel for OP number 2 has produced , Ex.Op2/1 authorisation letter, Ex.OP2/2 affidavit, Ex.OP2/3 to Ex.OP2/10 copies of reports of feed and closed evidence.

 

5.             We have very carefully perused the pleadings of the parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits dismissal, for these reasons.

6.             A bare perusal of the complaint file reveals that the complainant has not produced even a single document that he purchased 5000 poultry birds of Cob 400Y from OP number 1 for Rs.87,500/- on 25.11.2015 and further there no document on record to show that the complainant ever purchased 96 bags of 50 KGs each of feed for Rs.1,53,600/-.    Further the complainant has not produced any documentary evidence on record much less receipt to show that he paid Rs.50,000/- in cash to Op number 1.  Even the date of payment has not been mentioned in the complaint. There is no justification/clarification from the side of the complainant that if he had paid the amount of Rs.50,000/- to the OP number 1, then why he did not produce the receipt showing the above said payment.  Further there is nothing produced on record that the complainant paid the remaining amount to OP number 1 vide cheque number 380851 of Oriental Bank of Commerce, Malerkotla nor he has produced any bank statement showing the payment made to the OP number 1.  There is nothing mentioned in the complaint by the complainant that what was the remaining amount.  As such, we feel that the complainant has miserably failed to establish his case by producing cogent, reliable and trustworthy evidence on record to show that he ever purchased any birds or feed from OP number 1 and he ever made any payment to the OP number 1.

 

7.             Further the learned counsel for the OP has contended vehemently that the complaint of the complainant should be dismissed on the ground that the complainant is running the large business of poultry farm in order to earn huge profits on commercial basis and thus it does not come under the definition of consumer.   To support such a contention, the learned counsel for the Op has cited Birla Technologies Limited versus Neutral Glass and Allied Industries Limited 2011(1) SCC 525 (Supreme Court), it has been held that where the goods have been purchased for commercial purpose, the complaint of the complainant filed by him in 2003 after 2002 is not maintainable and the complainant was given liberty to file suit for the relief claimed taking benefit of section 14 of the Limitation Act. Further the learned counsel for the Ops has cited Max Infra (India) Limited versus Ashok Leyland Limited and others 2014(2) CPR 691 (NC), held that where the vehicle was purchased for commercial purpose, the complainant cannot be said to be a consumer, however, with liberty to the complainant to approach proper Forum/Civil Court for redressal of its grievance.   As such, it is contended by the learned counsel for the OPs that the complainant is not a ‘consumer’ and the complaint is not maintainable before this Forum as the complainant is involved in the commercial activities as he is running the poultry farm with 5000 birds as alleged by him in the complaint itself.  In the circumstances, we find that the case of the complainant does not fall under the definition of consumer as mentioned under section 2(i)(d) of the Consumer Protection Act, 1986.

8.             So, keeping in view of the facts mentioned above and in view of the legal position explained above, we find no merit in the complaint and the same is accordingly dismissed. In the circumstances of the case, the parties are left to bear their own costs.   A copy of this order be supplied to the parties free of cost. File be consigned to records.

                Pronounced.

                August 4, 2016.

                                                        (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

 

                                                                (Sarita Garg)

                                                                   Member