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                                     APPEAL  NO: 120/2010

JUDGMENT DATED: 30-11-2010

PRESENT

SMT.VALSALA SARANGADHARAN       : MEMBER

SHRI. M.V. VISWANATHAN                              : JUDICIAL MEMBER

Antony.P.M. S/o Mathai,

Paramundayil House,                                : APPELLANT

Edavaka.P.O,Kappumkunnu,

Mananthavadi, Wayanad District.

(By Adv. Sri.B.S.Prasad Gandhi & Gopinath)

          Vs.

Smt.Santha Devi, W/o Ravi,

Thekkungal House,

Pathirichal, Edavaka.P.O,                         : RESPONDENT

Mananthavadi, Wayanad District.

(By Adv. Sri.Kuriakose)

                                                JUDGMENT

SMT.VALSALA SARANGADHARAN : PRESIDENT

This appeal is preferred against the order dated:30/12/2009 of CDRF, Wayanad in CC.75/09.  The complaint was filed by the respondent herein as the complainant against the appellant as opposite party whereby the Forum below directed the opposite party to refund Rs.20,000/- the price of the cow which was accepted as sale consideration with 12% interest from the date of complaint till payment.

 2. The case of the complainant is that she purchased a cow from the opposite party for Rs.20,000/- by availing a loan from the North Malabar Gramine Bank.  The cow was insured and for that purpose an Alacheet was also obtained from one Mr.Joseph under the instruction of the opposite party at the time of purchase.  At the time of purchase the opposite party assured that the earlier yield of the cow was 14 liters of milk per day and that quantity of milk would get after calving.  The expected date of calving of the cow was also not in accordance with the assurance given by the opposite party.  The cow was yeilding only 6 ½ liters of milk per day.  The complainant informed the opposite party about the lesser quantity of milk obtained in lactation and demanded for the return of the price of the cow, by entrusting the cow to the opposite party.  But the opposite party did not pay the amount and so the complainant could not repay the loan.  Hence she filed complaint before the Forum claiming refund of the price of the cow with other reliefs.

3. The opposite party filed version and denied the sale of cow to the complainant.  According to the opposite party one Mr.Mathai approached him for a loan of Rs.10,000/- for which a cow was assured as security.  The opposite party could not lend money as demanded by him.  The opposite party submitted that this case was filed in collusion with the said Mathai and the complainant. Later it was heard that the said Mathai sold the cow to the complainant for a price of Rs.15,000/-.  The opposite party further submitted that he had not brought up any cow after February 2008.  The opposite party also denied the allegation of the complainant that he had received the cow and calf from the complainant.  Thus, he prayed for dismissal of the complaint with costs.

4. The evidence adduced consisted of the oral testimony of PW1 to 3, OPW1 and Exts.A1 to A7.

5. We heard the learned counsel for both sides.

6. Learned counsel for the appellant/opposite party submitted that there is no evidence connecting the complainant with the opposite party in the alleged transaction of the cow and the complainant is legally bound to obtain the signed vilacheet in a stamp paper from the seller.  This was also missing in this transaction and there is no evidence to show that there was a promise regarding the lactation of 14 litres of milk.  He also submitted that the opposite party is not in good terms with PW2 and 3 who are brothers and that they are interested witnesses.  Hence their deposition cannot be believed.  He also submitted that there is no service or consumer relationship between the appellant and the Respondent/complainant.  Pleading that there was no deficiency of service on the part of the appellant,  the learned counsel prayed for setting aside the impugned order passed by the Forum below.

7. On the other hand, the learned counsel for the respondent/complainant supported the findings and conclusions arrived at by the Forum below.  He argued for the position that the cow purchased from the opposite party was not giving the quantity of milk as assured by the opposite party and as per Ext.A6 it can be seen that the complainant obtained a loan from the bank and for obtaining that loan the complainant approached the opposite party for an Alacheet.  But the opposite party was going to hospital and as per his instruction one Joseph gave the Alacheet.  According to the complainant after calving the assured quantity of milk was also not obtained.  So he entrusted the cow and calf to the opposite party.  He further submitted that the opposite party did not pay the price of the cow and sold the cow which was entrusted to him.  Thus, the complainant lost the price of the cow as well as the cow.  Pleading that there was deficiency of service on the part of the appellant, he prayed for dismissal of the appeal.

8. On hearing the learned counsel for the appellant and the respondent and on perusing the records we find that the complainant has a case that she has purchased the cow from the opposite party for a sum of Rs.20,000/- which the opposite party has denied in toto.  It is highly necessary that when an allegation is raised by the complainant, it is her duty to establish her case by adducing clinching evidence.  In the instant case it is found that the complainant has not adduced any evidence to show that there was sale consideration.  That apart PW3 who has been examined on the side of the complainant has deposed that there was an Alacheet between himself and the complainant.  He has also deposed that he has not seen the handing over of the amount by the complainant to the opposite party.   The available evidence would make it clear that the witnesses, Joseph and Mathai cannot be believed.  They colluded with the complainant in forging the Alacheet to be produced for North Malabar Gramine Bank for obtaining a loan.  PW3 has categorically admitted that he executed an Alacheet stating that he himself has sold the cow to the complainant.  So, the complainant and his witnesses have got an entirely different case.  In effect there is no acceptable documents evidencing the transaction between the complainant and the opposite party.  The Lower Forum had passed the order on the presumption that the complainant had given back the cow in anticipation of refund of the price.  The Forum below directed the opposite party to refund the price of the cow but there is no order to return the cow.  The case of the complainant that she returned the cow cannot be believed, as there existed a dispute between the complainant and the opposite party with regard to the sale of the cow.   In such a situation nobody will give back the cow without getting the amount.  There is nothing on record to show that the so called return of the cow to the opposite party apart from the oral testimony of interested witnesses.  It is highly improbable to believe the case of the complainant that she returned the cow without obtaining the sale consideration which she is said to have been paid to the opposite party.  So, the case of the complainant that she returned the cow to the opposite party cannot be accepted.  In all respects the complainant miserably failed to establish the alleged transaction between the complainant and the opposite party.  On the other hand, the material available on record would show otherwise.

In the result the appeal is allowed.  The impugned order passed by the Forum below in CC.75/09 is set aside.  As far as the present appeal is concerned there shall be no order as to costs.

VALSALA SARANGADHARAN : MEMBER

M.V. VISWANATHAN  : JUDICIAL MEMBER

VL.