The brief facts of the complainant case, is that, the complainant had contacted with the O.P through whatsapp for purchase of a German Sheppard Male Puppy. The O.P is involved in the business of breeding of pets and selling the same. Later the complainant had purchased one German Sheppard Male Puppy from the O.P on 07/08/2023 amounting to Rs. 34,800/- (through multiple online payments) only including of vaccination charges. O.P delivered the same German Sheppard Male Puppy to the complainant from Kolkata to Alipurduar via train. The complainant received the said puppy at Alipurduar on 19/08/2023. Within few days of the delivery the complainant noticed some illness in the male puppy and subsequently took it to a veterinary medical who diagnosed it with viral infection due to no vaccination and prescribed some medicines for the time being.
After that the complainant informed the O.P about the illness who claimed that it was due to travelling. The complainant also sought for the vaccination card for which had already paid Rs. 1,000/- to the O.P but the O.P did not provide the complainant with it.
After two days when the health condition of the puppy deteriorated he took it to veterinary officer at Block Animal Health Centre, Kumargram where the puppy was under the treatment for the period of 21/08/2023 to 24/08/2023. On 24/08/2023 the puppy succumbed to death.
The office of the Block Livestock Development has issued one death certificate in favour of the puppy and stated “The puppy was suffering from severe parvo virus infection. The complainant had complained the O.P of sending him a virus infected puppy but the O.P denied the charge and gave lame excuses. Finding no other alternatives the complainant lodged a complaint with the Office of the Assistant Director, C.A. & F.B.P., Alipurduar where a tripartite meeting was organized by the said office on 16/10/2023.
On 17/10/2023 from the Office of the Assistant Director, C.A. & F.B.P., Alipurduar a report was sent to the complainant stating “the complaint has been disposed of as dropped from this end on 16/10/2023.”
After that the complainant found no alternative and came before this Commission for seeking relief. The complainant claiming an amount of Rs. 34,800/- (Principal claim amount with interest) + Rs. 50,000/- for mental agony and harassment and Rs. 20,000/- as cost of litigation.
In support of the case the complainant has filed evidence-on-affidavit, written argument and some documents to prove his case which is given bellow.
- Photocopy of Whatsapp chat (Annexure – 1).
- Photocopy of online payment and bank statement (Annexure – 2, 2a).
- Photocopy of prescription dated – 19/08/2023 (Annexure – 3).
- Photocopy of death certificate dated – 24/08/2023 (Annexure – 4).
- Photocopy of complaint dated – 01/09/2023 (Annexure – 5).
- Photocopy of Notice dated – 04/10/2023 (Annexure – 6).
- Photocopy of Report dated – 17/10/2023 (Annexure – 7).
It appears from the case record dated – 20/03/2024 vide order No. 5 that the notice has been returned with postal endorsement is “refused” on 18/12/2023. So it is a good service according to Section – 27 of the General Clauses Act, which constitutes proper service. After refusing the notice the O.P did not turn up subsequently and did not filed any w/v in order to contest the case. So, the case has been proceeded ex-parte against the O.P.
We have gone through the materials on record very carefully and also perused the documents which are lying on record and heard argument from the Ld. Advocates of the complainant.
In this context the following issues are necessarily come up for the proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019 ?
- Has this Commission jurisdiction to try the instant case?
- Is there any deficiency in service on the part of the O.Ps?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
Considering the nature and character of the case all these points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience.
It is seen from the case record that the complainant purchased one German Shepherd Dog (Male Puppy) from the O.P under the consideration of Rs. 34,800/- including of vaccination charges of the male puppy. The O.P delivered the said puppy to the complainant from Kolkata to Alipurduar via train and the said male puppy reached to the complainant at Alipurduar on 19th August, 2023. So, this Commission has territorial and pecuniary jurisdiction to try this instant case.
Now, the question is, is the complainant a consumer u/s. 2(7)(i) and is there any deficiency in service on the part of the O.Ps? Is the complainant entitled to get any relief / reliefs as prayed for?
According to Section – 2(7)(i) consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment, when such use is made with the approval of such person, but does not such goods for resale or for any commercial purpose.
The material fact in this consumer complainant revolves around the sale of a dog by a breeder to the complainant for domestication at his home. One of the issues is whether the sale of a dog falls within the scope of the Consumer Protection Act, 2019.
To address this, it is essential to examine the definition of ‘goods’ under this Consumer Protection Act, 2019. According to Section – 2(21) of C.P. Act, 2019 goods means every kind of movable property and includes food as defined in clause (j) of Sub-section (1) of Section – 3 of the Food Safety and Standards Act, 2006.
A pertinent question that arises is whether a dog purchased for domestication qualifies as movable property? In this context, it is important to note that under Indian Law, a domesticated dog is considered property. We have seen from the jurisprudence, transfer of property Act, General Clauses Act, 1897 and also Indian Penal Code – all these acts reiterate that “animals are considered movable property. This means that the animals can be bought, can be sold, destroyed or transferred and are subject to theft.” So, the animals come within the scope of definition of goods which is mentioned in section – 2(21) of C.P. Act, 2019, and as per the provision of this Act the complainant is a consumer and he is entitled to file this case for relief.
Furthermore, the prevention of cruelty to animals (Dog breeding and marketing) Rules, 2017 contains provisions related to the conditions of the sale of dogs frequently using the term sale of dog.
Now, the question is, is there any deficiency in service on the part of the O.P or whether the dog sale to the complainant was defective? and is the complainant is entitled to get any relief / reliefs as prayed for?
We have seen from the case record that after delivery of the said male puppy the complainant had noticed that it was not behaving well. As a result the complainant took the male puppy to a veterinary medical officer who diagnosed that the male puppy was suffering from parvo virus infection. The doctor also prescribed some medicine but the said puppy’s condition did not improve and it died on 24/08/2023. The office of the Block Livestock Development Officer also issued one death certificate in respect of the same stating inter alia. The puppy was suffering from severe parvo virus infection.
We have also seen form the case record that O.P also took Rs. 1,000/- from the complainant for the vaccination of the said male puppy but neither any vaccination was given nor vaccination card was sent to the complainant.
It is clear from the evidence and others documents and the death certificate issued by the Veterinary Officer of the Block Livestock Development Office that the puppy was suffering from severe parvo virus infection. It is clear from the above that the O.P suppressed the fact that the puppy was suffering from the said deceased while selling the puppy to the complainant.
There is also another aspect in this case it is seen from the case record inspite of the request made by the complainant O.P did not send the vaccination card to the complainant.
The second issue is whether the dog sold to the complainant was defective? Here again, reference can be made to the prevention of cruelty to animals (dog breeding and marketing rules, 2017), Section – 8 of these rules sets out valid conditions for the sale of dogs, including a requirement that “only dogs of good health, provided with necessary vaccinations are to be sold”. This provision implies that a dog must be properly vaccinated before it is sold. The evidence presented by the complainant shows that the dog was not properly vaccinated while it was sold to the complainant.
Thus, the finding of the Commission is that the complainant proved his case and it is proved that there is clearly deficiency in service on the part of the O.P. Due to the negligent Act / deficiency in service of the O.P the complainant is entitled to get the reliefs. Therefore the O.P is directed to return the price of the male puppy to the complainant of Rs. 34,800/- for claim amount with an interest @ 6% from the date filing till realization of the amount and the complainant is also do get an award amounting to Rs. 10,000/- for his harassment and mental agony and also Rs. 5,000/- as his litigation costs.
Thus all the points are disposed of accordingly.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and the same is allowed ex-parte against O.P. The complainant do get an award amounting to Rs. 34,800/- (Thirty Four Thousand Eight Hundred) which was paid by the complainant to the O.P for buying his male puppy dog along with interest of 6% Per annum from the date of claim to till the realization of the amount. The complainant is also do get an award amounting to Rs. 10,000/- (Ten Thousand) as compensation for his harassment, mental agony and sufferings and also Rs. 5,000/- (Five Thousands) as his litigation costs; total decreetal amount of Rs. 49,800/- (Forty-Nine Thousand Eight Hundred) excluding interest. O.P is hereby directed to comply this order within 30 days from this day, failing which legal action will be taken against him.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
