By Sri. K. Gheevarghese, President :
The complaint filed under section 12 of the Consumer Protection Act 1986.
The sum up of the complaint is as follows:- The Complainant is a purchaser of the milking cow towards the fag-end of the carrying. The purchase was on 19.10.2006 at the price of Rs.18,700/-. The assurance of the Opposite Party was that the cow in lactation gives 17 liters of milk. The Complainant maintained the cow well and good. After calving the yielding was only 9 liters of milk. It is an unfair trade Practice on the part of the Opposite Party. The assurance of the Opposite Party was not correct. The Complainant has to be given back the excess amount of Rs.8,800/- received by Opposite Party basing on the rate at that time. For the transport and other expenses the Complainant had to spent Rs.1,500/- for and broker charge Rs.300/-. There may be an order directing the Opposite Party to : (a) Refund Rs.10,300/- to the Complainant with interest at the rate of 10% from 19.10.2006. b) Pay an amount of compensation of Rs.5,000/- along with the cost Rs.1,000/-.
2. The Opposite Party filed version on their appearance the contention in brief is as follows:- The cow was sold to the Complainant on humanitarian grounds at the rate of Rs.16,000/. The allegation of the Complainant that the cow was at the price of 18,700/- is incorrect and the cow was carrying for the 3rd time and at the stage of nearing the calving. In the two delivery the cow had given 18 liters milk per day in lactation. The purchase of the cow by the Complainant was effected on the sole desire of the Complainant alone. In the drawing of milk if the quantity lessened the Opposite Party is not responsible for it. The yielding of milk is related to the nurturing of the cattle and other healthy conditions. The complaint filed is only on experimental basis and it is to be dismissed with cost. 3. The points in consideration are: Whether any unfair trade practice effected in the sale of the cow? Relief and cost.
4. The Complainant filed proof affidavit swearing the contentions Exts.A1 series to A3 are the documents marked for the Complainant. The Opposite Party filed affidavit interalia contenting the allegation of the Complainant, Exts. B1 to B3(a) are marked for the Opposite parties. The Complainant and Opposite Parties have also given oral testimony of the witnesses. 5. The case of the Complainant is that the cow in dispute purchased from the Opposite Party was on the assurance of giving 19 liters of milk in lactation. After delivery from the house of the Complainant the yielding was only around 9 liters of milk. It is absolutely an unfair trade practice on the part of the Opposite Parties. The excess amount collected by the Opposite Party are to be refunded along with cost and compensation. At the time of purchase of the cow from the Opposite Party apart from the Complainant and the Opposite Party the Manager of the Opposite Party concern and two other brokers were present. There is considerable differences in the cost of the cow according to the Complainant and the Opposite party. In the oral testimony of the Opposite Party it is admitted that the worker of the Opposite party who was in the role of maintaining the cow made the deal with the Complainant and the amount was given directly to the Opposite Party in presence of this worker named Cherian @ Baby who is examined as OPW2. The other witness said to be present at the time of sale was one Babu Cyriac who is examined as OPW4. No where in the version it is asserted that the OPW4 was present when the sale was confirmed. The Opposite Party is the director of the concern named Donbosco. In the oral testimony of this Opposite Party it is admitted that the price of the cow received by him was Rs.16,000/-. There is no certainty regarding the yielding of milk how ever according to the Opposite Party they have received 18 liters of milk. The cow was carrying the 3rd time it is also admitted that there may be difference in the yielding of milk after the 3rd calving. An another witness was examined for the Opposite Party is person who sold the cow to the Opposite Party and he is examined as OPW3. Ext.B3 is the Pass Book issued by Ksherolpadaka Sahakarana Sangam, Ambalavyal issued to the 1st owner of the cow named Varghese P.T (OPW3). According to him the cow was in possession of him from 2002 onwards till the disposal of the cow to the Opposite Party in 2004. Ext.B3 and Ext.B3(a) are not in conformity with the testimony of the evidence of the Opposite Party. According to this OPW3 after the disposal of the milk on the last date in Ext.B3(a) the cow was sold by OPW3 to the Opposite Party. According to this witness who purchased an another cow after 5 days and it was in the yield of 15 liters of milk. Ext.B2 shows that the averment of the witness is incorrect and this documents cannot be relied as the document which envisages the supply of milk of the disputed cow in the respective society. Apart from the oral testimony of witness on both sides nothing is produced as document arriving into a conclusive proof on the price of the cow. The Complainant had also sold the cow and the price at which the cow was sold by the complainant is also not brought in evidence by any document. Ext.A1 series are the monthly bills issued by Sulthan Bathery Co-operative Milk Supply Society to the Complainant therein the quantity of milk supplied by the Complainant is considerably less than the quantity admitted. Any how the Complainant admitted that he had received 9 liters of milk from the disputed cow. It is also admitted by the Complainant that there may be considerable variation in the yielding of milk which is related to nurturing of the cow and other circumstances in which the cow is maintained. Ext.A1 series shows that the quantity of milk supplied in the society reaches in between 5 to 10.8 liters. How ever assurance of Opposite Parties that the cow yielding 18 to 19 liters milk a day could not be seen from documents produced by the Complainants. The Opposite Party also admitted that at the time of sale standard rate of cow per liter of milk was Rs.1,000/-. It is further admitted by the Opposite Party that Rs.16,000/- was received from the Complainant towards the price of the cow he disposed. The Opposite Party collected excess amount from the Complainant which was against the prevailing rate of the cow at that time. The sale of the cow by the Opposite Party to the Complainant is absolutely an unfair trade practice and the point No.1 is found accordingly. Point No.2:- The Opposite Party admitted that towards the price of the cow Rs.16,000/- was received. The yielding of milk as per Ext.A1 series is entirely from the admitted quantity of milk ie 9 liters by the Complainant. It ranges in between 5 liters to 10.8 liters The document produced by the Opposite Party to substantiate the yielding of milk is also not considerable due to the difference in quantity of the milk yielded. Any how considering all these facts we are in the opinion that the cow was supplying an average of 10 liters of milk per day. The value of cow per liter is Rs.1,000/- as admitted by the Opposite Party and the price is estimated in this mode. The Opposite Party received an excess amount of Rs.6,000/- (the value of a cow received in excess) from the Complainant. The Complainant is to be refunded the excess amount received by the Opposite Party along with cost.
In the result, the complaint is partly allowed. The Opposite Party is directed to refund Rs.6,000/-( Rupees Six thousand only), the excess amount received from the Complainant along with cost of Rs.500/- (Rupees Five hundred only). The Opposite Party is directed to comply with this within one month from the receipt of this order.
Pronounced in open Forum on this the day of 30th May 2009
PRESIDENT: Sd/-
MEMBER- I: Sd/-
MEMBER-II: Sd/- A P P E N D I X
Witnesses for the Complainant : PW1. O.M.Jose. Complainant PW2. O.T. Varghese Driver Witnesses for the Opposite party : OPW1. Fr. Tom Priest. OPW2. Cheriyan @ Baby OPW3. Varghese P.T OPW4. Babu Cyriac Exhibits for the Complainant : A1 Series. Monthly Bills A2 Series. Copy of legal notice. dt. 2.01.2007 A3. Acknowledgement card dt. 9.01.2007 Exhibits for the Opposite Party : B1. Affidavit B2. Series Copy of lawyer notice acknowledgement card and dt. 15.01.2007 postal receipt .
B3. Passbook
B3(a). Relevant page of pass book.
......................K GHEEVARGHESE
......................P Raveendran
......................SAJI MATHEW | | 
