SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> This complaint is filed by the complainant for realization of compensation and the value of A cow and ITSmaintenance charges.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The opp.party had a cow which she intended to Sell. Getting information the complainant on 25.1.2001 went to the house of the opp.party The opp.party informed her that the prize of the cow Rs.8500/-, that the cow will deliver within 3 days and that it will give 10 liters of milk everyday. The complainant believing the words of the opp.party bought the cow paying Rs.8,500/-. But the cow did not deliver within 3 days and so she got the cow examined by a Veterinary Doctor who told her that it will deliver only after 3 more weeks. When the complainant told the opp.party about this she humiliated and abused the complaint. On26.2.2001 the cow delivered. But it did not give 10 liters of milk as told by the opp.party instead gave 3 litres in the morning and 1.5 in the evening. The complainant thereupon requested the opp.party to take back the cow and return her the prize of the cow. Since the opp.party did not take the cow the complainant took the cow to the house of the opp.party on 28.3.2001 and entrusted it with the opp.party who did not pay the prize of the cow. Even after several demands for the same the opp.party did not pay the amount. After 2 months the opp.party sold the cow to some other person for Rs.5,800/-. The complainant spent about Rs. 80/- per day for maintaining the cow. The complainant suffered mental agony because of the reduction in the quantity of milk and the conduct of the opp.party. Hence the complaint.<br /> <br /> The averments in the version filed by the opp.party can be briefly summarized as follows: The complaint has been filed without any bonafides and with the ulterior motive of harassing the opp.party. The complainant is not a consumer under the Consumer Protection Act and no service was provided by the opp.party to the complainant. The averments in para 1 of the complaint is false and hence denied.. The averments that the complainant approached the opp.party and after negotiation paid an amount of Rs.8500/- as consideration for the cow is false and denied . It was a pregnant cow. The averment that the opp.party told her that it will give 10 litres of milk every day is absolutely false. It is admitted that a Jersy breed cow was in the possession of the opp.party. But she never sold that cow to the complainant as alleged. The elder son of the opp.party who is a police constable approached some brokers for selling the cow and the complainant getting information approached the opp.party expressing her intention of purchasing the cow. The complainant agreed to sell the cow for Rs.8500/-. On 26.1.2001 the complainant again approached the opp.party with an amount of Rs.3500/- and informed the opp.party that the balance amount of Rs.5000/- will be paid within one month. The opp.party was not amenable for the same.. Thereafter the complainant again approached the opp.party on 29.1.2001 with an amount of Rs.5000/- in cash and offered a post dated cheque for Rs.3500/- . The opp.party was not ready to sell the cow on that condition also. On 3.2.2001 the opp.party sold the cow for Rs.8500/- one Vijaya Raghavan the complainant approached the opp.party after one month and made a demand for cow when the opp.party told her that the cow was already sold the complainant made an unpleasant scene and abused the opp.party and her family with filthy language and declared that she will teach the opp.party a lesson and due to that vengeance she filed this frivolous complaint against the opp.party. Even in the complaint there is no allegation of any unfair trade practice or deficiency in service. Hence the opp.party prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration ation:<br /> 1. Whether the complaint is maintainable<br /> 2. Whether there any deficiency in service on the part of the opp.party.<br /> 3. Reliefs and costs.<br /> For the complainant PW.1 and 2 are examined.<br /> For the opp.party DW.1 and 2 are examined.<br /> <br /> Points 1 <br /> <br /> The case of the complainant is that she bought a pregnant cow from the opp.party for Rs.8500/- on 25.1.2001 that the opp.party told her that the cow would deliver within a week and the cow would give 10 litres of milk every day that the cow delivered only after a month and it gave only 4½ litres of milk and so she returned the cow to the opp.party who did not return the price of the cow so far. Her prayer in the complaint are for refund of Rs.8500/- being the price of the cow, Rs.5100/- being the expenses incurred by her in keeping the cow in her house Rs.400/- towards transportation charges of the cow from her house to the house of the complainant and Rs.10,000/- towards compensation for mental agony. There is absolutely no averment in the complaint or in the relief portion regarding any deficiency in service or unfair trade practice. The learned counsel for the complaint would argue that there is no mention in the complaint regarding any service offered by the opp.party or any deficiency in service committed by her and when the complainants claim is not based upon deficiency of service but seeking to recover money the complaint is not cognizable by the Consumer Fora and in support of his contention he has relied on the decision of National Commission reported in CPR III 1994 [1] 459 wherein the National Commission has held that when the complainants claim is not based upon deficiency of service and they are seeking to recover money, the complaint is not cognizable by the Consumer Fora” Here as pointed out earlier there is no allegation of any deficiency in service or unfair trade practice and therefore in the light of the above decision this complaint is not maintainable before this Forum. Point found accordingly.<br /> <br /> Point 2:<br /> <br /> As a matter of fact there is no cogent materials evidencing the transaction between the complainant and the opp.party and both sides are relying on oral evidence. The complainant gave evidence as PW.1. She has stated that she bought a pregnant cow from the opp.party on 25.1.2001 paying Rs.8500/- and at the time of sale the opp.party had made her believe that the cow would deliver within a week and that the cow would give 10 litres of milk daily . But the cow deliverd after a month and it gave only 4½ litres of milk daily and so she returned the cow on 28.3.2001 to the complainant who agreed to repay the price of cow but did not pay the amount. Complainant has examined PW.2 to prove the transaction and according to PW.2 she acted as a mediator in the transaction.<br /> <br /> The opp.party gave evidence as DW.1. According to DW.1 PW.1 approached her for buying her cow and she agreed to sell the cow for Rs.8500/- but since PW.1 has failed to pay the price of the cow in lump she did not sell the cow to PW.1 but sold it to DW.2 who is a cow broker. According to DW.1 this complaint was filed by PW.1 because of the inimity in not selling the cow to PW.1. <br /> <br /> PW.1 has admitted in cross examination that there was no agreement between herself and DW.1 regarding the transaction. PW.1 has no case that DW.1 agreed to take back the cow if it failed to give 10 litres of milk per day. In the absence of such an agreement it is not known as to how PW.1 returned the cow to DW.1 when it failed to give 10 litres of milk. It is worth pointing out in this context that though PW.2 would state that she acted as a mediator to the transaction there is absolutely no mention regarding this aspect in the complaint. PW.1 has no case in the box also that PW.2 has acted as mediator to the transaction. Had PW.2 acted as a mediator the complainant would have stated so in the complaint or in the box. PW.2 has stated in cross examination that she clearly remember the day of transaction as it was the marriage day of her cousin. PW.2 further stated in cross examination that the amount was paid in her presence and she has also counted the currency notes. She has asserted that herself, the complainant and the opp.party alone were present when the payment was made. To use her own words “.tsRy clr\rjP\pUf\fjH Bb\bX aor\rkSegkA alYfA Kxxe\SelX Opp.party uksm iJJ}JH iv\vlnk\ complainant gke opp.party u\]k sdlmkf\ffk”<br /> But PW.1 has stated in chief examination itself that her son Sabu was also present. The inconsistent versions would lead to an inference that PW.2 has been hired by PW.1 as contended by the opp.party. It is also pertinent to note that no complaint before police or any other authority was filed before filing this complaint. The normal human conduct in such circumstances would be to file a complaint before police and the absence of such a complaint also would lead to an inference that the case put forward by the complainant is not true or even probable.<br /> <br /> Even assuming that such a transaction has taken place other than the oral assertions of PW.1 and 2 there is no material, worth believable, to show that the cow gave only 4½ liters of milk per day which prompted her to return the cow. PW.2 has no case that she was present when the opp.party told PW.1 that the cow would give 10 litres of milk daily or at the time of milking the cow and was satisfied that it gave only 4½ liters of milk. It is also to be noted that even if the cow gave 10 liters on earlier occasion nobody can assure that the same quantity of milk would be given in the subsequent deliveries also. Merely because the cow did not give 10 liters of milk it cannot be said to be a deficiency in service or an unfair trade practice. Even if the complainant is entitled to get any amount from the opp.party her remedy lies elsewhere and not before this Forum.. From the available materials we hold that the complaint as brought is not maintainable and the complainant is not entitled to get any compensation. Point found accordingly.<br /> <br /> In the result the complaint fails and the same is hereby dismissed with costs of opp.party Rs.2500/-. The order is to be complied with within one month from the date of this order.<br /> Dated this the 13th day of October, 2008.<br /> I N D E X<br /> List of witnesses for the complainant<br /> PW.1. – Oseela<br /> PW.2. – Bindhu<br /> List of witnesses for the opp.party<br /> DW.1. - Sarasamma<br /> DW.2.Vijaya Raghavan<br />