IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA

Dated this the 20^th day of April, 2010.

Present : Sri. Jacob Stephen (President)

Smt. C. Lathika Bhai (Member)

Sri. N. Premkumar (Member)

C.C.No.174/06 (Filed on 19.10.2006)

Between:

Soman,

S/o. Sukumaran,

Chempakasseril,

Kochalummoodu,

Vallikodu Village,

Kozhencherry Taluk.

(By Adv. K.J. Manu)                                                                                    .....       Complainant

And:

1. Purushothaman Pillai,

Veterinary Sub Centre,

Vallikodu.

2. Swapna. S. Paul,

Veterinary Doctor,

Kaippattoor.

Addl.3. State of Kerala,

  Rep. by the Dist. Collector,

  Pathanamthitta.

(By Adv. Sham Kuruvilla)                                                              .....       Opposite parties.

O R D E R

Sri. N. Premkumar (Member):

                        Complainant filed this complaint for getting a relief from the Forum.

                        2. Fact of the case in brief is as follows:-  Complainant has a 1.5 year old goat having an expected price of Rs.2,000/-, a three month old goat having expected price of Rs.1,000/-, two 1 ¾ old pregnant goats having expected price of Rs.5,000/- each.  2^nd opposite party is the Veterinary Doctor, Kaipattoor.  1^st opposite party is the subordinate officer of 2^nd opposite party.  3^rd opposite party is the State of Kerala represented by District Collector, Pathanamthitta.

                        3. As per the direction of 2^nd opposite party, Vallikodu Panchayat informed the complainant by notice to vaccinate against FMD to animals.  As per the direction of 2^nd opposite party, 1^st opposite party vaccinated the complainant’s goat on 31.8.2006 at his residence.  After the vaccination, complainant’s 1.5 year old goat died on 1.9.2006.  On 4.9.06 his three month old goat and on 18.9.06 his 1 ¾ year old two pregnant goats died.  As a result of the death of the said goats complainant has a loss of Rs.13,000/- as price and other loss including mental agony and sufferings.

                        4. The body of the goat was inspected by three doctors of the Avian Disease Diagnostic Lab, Thiruvalla.  The death of the goat is due to the negligence and inaction of 1^st and 2^nd opposite parties by their vaccination.  Complainant lodged complaint before the higher authorities regarding the death of the goat.  As a result the complainant got Rs. 2,000/- from 2^nd opposite party’s office.

                        5. Therefore this complaint is filed to get Rs.11,000/- as price of the goats by deducting Rs.2,000/- from the total price of 13,000/- with compensation for mental agony and loss.

                        6. Opposite parties 1 and 2 entered appearance and filed version stating that complaint is not maintainable either in law or on facts.  Opposite parties 1 and 2 admits that complainant took 6 goats voluntarily for vaccination and all of them are vaccinated against FMD (Food and Mouth Disease) on 31.8.2006.  If the death is out of any allergic reactions out of the said vaccination, it should have developed within one day.  One of the goats died on 1.9.2006 and after the postmortem the cause of death is revealed as ‘allergic reactions’.  For that, complainant has given Rs.2,000/- as compensation.

                        7. Opposite parties 1 and 2 denied that the subsequent three deaths of goats were not due to the allergic reactions out of the said vaccination.  The allegation of one goat died on 4.9.06 is to be proved with reliable and cogent evidence.  No postmortem is conducted.  Hence the cause of death is not known.  The subsequent 2 death were on 18.9.06.  No postmortem is conducted on them also.  So the age, health or any of the whereabouts of these animals cannot be inferred.  The blood smears of these animals were collected on 18.9.06 before death and examined in Avian Disease Diagnostic lab, Thiruvalla and both the samples revealed severe Neutrophilia.  There is absolutely no chance to develop Neutrophilia as a complication of the said vaccination, that too after 18 days.  Hence these three alleged death of goats have absolutely no connection with the said vaccination.  The death of the goat on 1.9.06 is already compensated.

                        8. There is no negligence or deficiency in service on the part of the 1^st and 2^nd opposite parties.  They were discharging their official duties, as government employees, with due care and caution as per direction of 3^rd opposite party.  Therefore 1^st and 2^nd opposite party are not personally liable.  Hence opposite parties 1 and 2 canvassed for the dismissal of the complaint against them with their cost.

                        9. The 3^rd opposite party has not yet appeared.  Hence they were declared as exparte.

                        10. From the above pleadings, the following points are raised for consideration:

(1)   Whether the complaint is maintainable before the Forum?

(2)   Whether the relief sought for the complaint are allowable?

(3)   Relief and Costs?

           11.  Evidence of the complainant consists of the proof affidavit filed by the complainant.  He was examined as PW1 and the documents produced were marked as Ext.A1 to A5.  Evidence of opposite parties 1 and 2 consists of the proof affidavit filed by the 2^nd opposite party.  She was examined as DW1.  After the closure of evidence, both parties were heard.

                        12. Point Nos. 1 to 3:-   In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents.  He was examined as PW1 and the documents produced were marked as Ext.A1 to A5.  Ext.A1 is the notice issued by the Grama Panchayat, Vallikodu for the vaccination against Food and Mouth Disease.  Ext.A2 is the copy of investigation report of mortality among goats in Kaipattoor, Pathanamthitta, prepared by Avian Disease Diagnostic Lab, Thiruvalla.  Ext.A3 is the Certificate of vaccination of six goats issued by Veterinary Surgeon, Kaipattoor dated 13.10.2006.  Ext.A4 series is the six photographs of four dead goats.  Ext.A5 is the report from Desabhimani Daily dated 25.10.2006.

                        13. In order to prove the opposite parties contention, 2^nd opposite party filed proof affidavit.  She was examined as DW1.  Apart from oral evidence opposite parties 1 and 2 did not adduce any documents to prove the case.

                        14. On the basis of the contention and averment of the parties, we have perused the entire material on record.  It is not disputed that complainant’s six goats were vaccinated.  Complainant’s averment is that his four goats were died due to the vaccination and got only Rs.2,000/- as compensation of one goat.  But according to opposite parties 1 and 2, complainant’s one goat died on 1.9.06 and postmortem also conducted and revealed that the cause of death is allergic reaction due to vaccination and Rs.2,000/- also given as compensation.  After that on 4.9.2006, complainant’s one goat and on 18.9.06 his two goats were also died.  But no postmortem has conducted.  Blood smears examined by Avian Disease Diagnostic Lab and reported that the cause of death is due to severe Neutrophilia.  There is no chance to develop such a complication due to vaccination.  Therefore complainant is not entitled to get any compensation for the death of the remaining three goats. 

                        15. On a perusal of Ext.A1, it is revealed that the vaccination had done as a Government scheme for the improvement and protection of cattle.  Ext.A3 shows that complainant’s six goats were vaccinated.  Ext.A4 shows that complainant’s four goats were died.

                        16. On going through the case, available evidence shows that complainant’s goats did not have any disease either before the vaccination or at the time of vaccination.  This fact is clear from DW1’s deposition which is as follows: “Vaccination FSp¯ kab¯v N¯v BSn\v AkpJw DÅXmbn a\em¡nbn«nÓ. 

                        17. On a perusal of Ext.A2, it is revealed that sample of complainant’s two sick goats blood smear had examined by a panel of three experts as per the instruction of the Deputy Director, Avian Disease Diagnostic Lab, Thiruvalla.  The said laboratory finding is that the goats died is suggestive of progressive bacterial secticemia.  Ext.A2 also disclosed that 2^nd opposite party reported the death of four goats of the complainant. 

                        18. 1^st and 2^nd opposite parties contention is that there is absolutely no chance to develop Neutrophilia as a complication of the vaccination after 9 days or 18 days.  Therefore the death of three goats of complainant after the vaccination is not due to any reaction.  But in Ext.A2, nowhere stated the said contention.  Ext.A2 is only the findings of Laboratory analysis and suggestion for preventive measures.  It is the burden of opposite parties to prove that the death of three goats were not due to the after effect of the vaccination.  In this context by applying the principle of “Res lpso liquator”, the burden shifted to opposite parties to prove the cuase of death of three goats, which were not due to vaccination.

                        19. Ext.A2 also revealed that complainant’s two goats were died showing pyrexia, respiratory distress and bloat.  But opposite parties 1 and 2 would not have made out a case that the symptoms of illness of other two goats were different to that of one goat, which died within two days after the vaccination.  It is also pertinent to note that opposite parties 1 and 2 already admitted the after effect of vaccination of one goat and compensated.  Therefore they are estopped from denying compensation for death of other three goats, which were died after a few days.  There is no nexus with the number of days and cause of death.  Moreover Ext.A5 disclosed that a large number of cattles were died due to the vaccination even after three days.  Even though Ext.A5 is a news report from Daily, the contention is not objected by opposite parties.  Ext.A5 also revealed that the death as a result of vaccination is not confined to a particular period.  From the overall facts and circumstances of this case, it is presumed that the death of complainant’s four goats were due to the after effect of vaccination.

                        20. Moreover, 3^rd opposite party has neither appeared nor filed version.  Therefore they were set exparte.  Hence complainant’s claim proved unchallenged as against the 3^rd opposite party.  It is seen that opposite parties 1 and 2 are officials of 3^rd opposite party.  Their role in cattle improvement programme is to discharge the duties as per the direction and control of superior officials 3^rd opposite party.  It is the primary duty of 3^rd opposite party to ensure the quality of vaccine before administering to cattles.  They failed to adduce any evidence relating to the quality of vaccine, caution of reaction to the knowledge of the public.  Opposite parties 1 and 2 are only act as a scapegoat in the hands of 3^rd opposite party.  Their vigilent, best and timely effort is seen in forwarding the smears of sick goats for the examination of Avion Disease Diagnostic Lab for proper finding and advice, for their emergency treatment which is admirable.  Therefore there is no negligence, laches or inaction is seen in their duty.  Hence Opposite parties 1 and 2 are exonerated from the liability.

                        21. From the above discussion, based on the available evidence on record we are of the view that the death of complainant’s four goats were a clear deficiency of service on the part of 3^rd opposite party.  It is the moral as well as the boundan duty of 3^rd opposite party to compensate the complainant, who is a farmer rearing cattles for livelihood.  Therefore complaint is maintainable and partly allowable.  The death of one goat is already compensated therefore no further compensation is allowable.  The remaining three months old goat, complainant is entitled to get Rs.1,000/- and two pregnant goats Rs.3,000/- for each.  Apart from the said amount, interest and cost are also allowable.  Since interest is allowed, no separate compensation is allowable.

                        22. In the result, complaint is partly allowed, thereby complainant is allowed to realise Rs.7,000/- (Rupees Seven Thousand only) with 8% interest from the date of filing of this complaint till this date with a cost of Rs.1,000/- (Rupees One Thousand only) from 3^rd opposite party.  The amount so awarded is to be given to the complainant within one month from the date of receipt of this order, failing which the whole amount will follow interest at the rate of 10% per annum from this date till the realisation of the whole amount. 

                        Declared in the Open Forum on this the 20^th day of April, 2010.

                                                                                                                                   (Sd/-)

                                                                                                                          N. Premkumar,

                                                                                                                               (Member) 

Sri. Jacob Stephen (President)                    :           (Sd/-)

Smt. C. Lathika Bhai (Member)                  :           (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1    :  Soman

Exhibits marked on the side of the complainant:

A1       :  Notice issued by the Grama Panchayat, Vallikodu for the vaccination against 

               Food and Mouth Disease. 

A2       :  Copy of investigation report of mortality among goats in Kaipattoor, 

               Pathanamthitta, prepared by Avian Disease Diagnostic Lab, Thiruvalla. 

A3       :  Certificate of vaccination of six goats dated 13.10.06 issued by Veterinary 

               Surgeon, Kaipattoor. 

A4 series        :  Photographs of four dead goats (6 Nos.). 

A5       :  Report from Desabhimani Daily dated 25.10.2006.

Witness examined on the side of the opposite parties:

DW1   :  Dr. Swapna. S. Paul

Exhibits marked on the side of the opposite parties:   Nil.

                                                                                                                (By Order)

                                                                                                       Senior Superintendent.

Copy to:- (1) Soman, Chempakasseril, Kochalummoodu, Vallikodu Village,

                      Kozhencherry Taluk.

(2)   Purushothaman Pillai, Veterinary Sub Centre, Vallikodu.

(3)   Swapna. S. Paul, Veterinary Doctor, Kaippattoor.

(4)   The Dist. Collector, Pathanamthitta.

(5)   The Stock File.