IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 7th day of October, 2021.
Filed on 29-08-2019
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P.R Sholy, B.A.L,LLB (Member)
In
CC/No.218/2019
between
Complainant:- Opposite parties:-
Sri.N.Ajayakumar Sri.Radhakrishnan
Athira M.R Feeds, IX 352C Fort
Palamel Village, Mavelikkara, Alappuzha
Kadassanadu P.O. (Adv.Sri.Prasanth S Pillai)
Alappuzha-689512
(Adv.Sri.Sulfikar)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
After returning from gulf complainant started a cattle farm with 18 cows. Complainant purchased a milking machine from the opposite party for an amount of Rs.53,760/-. But the machine was not functioning and it was informed to the opposite party. After inspection it was told that the machine is not working for want of sufficient electric supply. Thereafter complainant purchased a Kissan kraft engine from the opposite party for Rs.10,048/-. Even after installing the same complainant was unable to use the milking machine and it was informed to the opposite party and he was inactive. 8 cows of the complainant became ill and it was sold for throw away price.
2. At the time of purchase of the machine complainant had 12 cows worth Rs.60,000/- to 70,000/- each. Since the opposite party supplied substandard machine 8 cows of the complainant became ill and during July, August 2019 he sold the cows for a price of Rs.25,000/- each. Since the complainant sustained loss of Rs.40,000/- for each cows he is entitled for compensation of Rs.3,20,000/-. Further he is also entitled to get Rs.63,808/- being the price of the machinery. Hence the complaint is filed for realizing an amount of Rs.3,83,808/- along with interest @ 12% and for compensation of Rs.50,000/-.
3. Opposite party filed a version mainly contenting as follows:-
On 25.02.2019 complainant visited the shop of opposite party and enquired about Sahyadri milking machine. Opposite party explained the functioning of the machine and requested to install a power plug point and purchase PVC pipe. For purchasing milking machine Rs.25,000/- is given as subsidy from the diary development department/ animal husbandry department.
4. On 27.02.2019 complainant transferred an amount of Rs.53,760/- into the account of opposite party and thereafter on the next day a machine was installed at the premises of the complainant and demonstration was shown. Opposite party informed that proper electric connection is required for smooth functioning of the machine. Since subsidy for the current year was not available complainant requested to issue the bill after March. Accordingly on 13.05.19 a bill was issued and complainant received an amount of Rs.25,000/- as subsidy. After 2 days it was informed that the machine was not functioning properly. Opposite party inspected the machine at the farm and found that the machine is not working properly due to insufficient voltage.
5. Complainant enquired about installing a petrol engine and accordingly on 27.06.19 a petrol engine was supplied. The 2nd day it was informed that the petrol engine is not working. After inspection it was exchanged with a new one. The representative of the company from Coimbatore visited the farm and found that the complaint happened due to misuse. For enabling to get subsidy of Rs.4,500/- a bill was collected from the opposite party. After about 3 days again there was a complaint of not functioning and opposite party visited the farm and found that there is no proper electrification. Complainant informed that he will call back after getting proper electricity and thereafter opposite party received notice from this Commission. Opposite party had installed several Sahyadri milking machine and they are functioning without any complaint. Illness as mentioned in the complaint will not occur by the use of milking machine.
6. When the opposite party visited the farm there were only 5 cows and not 12 cows as mentioned in the complaint. Complainant has not produced any license of the farm. The averment that he sold 8 cows is false. The averment that complainant obtained only Rs.25,000/- each when the cows were sold is incorporated only to extract money. Complainant is not entitled for any relief and hence the complaint may be dismissed with cost.
7. On the above pleadings following points were raised for consideration :-
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled to realize an amount of Rs.3,83,808/- along with interest from the opposite party as prayed for?
- Whether the complainant is entitled to realize an amount of Rs.50,000/- as compensation?
- Reliefs and cost?
7. Evidence in this case consists of the oral evidence of PW1 and Exts.A1&A2 from the side of the complainant and the oral evidence of RW1 from the side of opposite party.
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PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1& A2.
RW1 is the opposite party in this case. He filed an affidavit in tune with the version.
9. Pw1, the complainant is conducting a cattle farm and for the use in the said farm he purchased a milking machine from the opposite party for an amount of Rs.53,768/-. However it was not found working properly due to power failure and as per the advice of opposite party he purchased a petrol engine for Rs. 10,048/-. In spite of installing the petrol engine the milking machine was not working properly. Due to the malfunctioning of the machine 8 milching cows of the complainant sustained mastitis and he had to sell the same for throw away price. According to PW1 he purchased the cows at a price of Rs.60,000 to Rs. 70,000/- and due to the disease he had to sell the cows for an amount of Rs.25,000/- by which he sustained a loss of Rs.40,000/- for each cow. Hence he has filed the complaint for realizing an amount of Rs.3,20,000/- being the loss and Rs.63,808/- being the value of the machines. He is also seeking compensation of Rs.50,000/-. Opposite party filed a version admitting the purchase of the machinery However according to RW1 the defect occurred due to fluctuation in the electricity. The milking machine will function only if there is proper electricity. Since the voltage was very less a petrol engine was supplied. Due to misuse of the same it was also not functioning properly. It is also contended that PW1 obtained an amount of Rs. 25,000/- as subsidy. He had supplied milking machines in several places and they are functioning without any problem. It is also contended that there is no evidence to show the amount by which cows were purchased and sold. The complaint was filed only to extort money and hence it is only to be dismissed. Complainant got examined as PW1 and Ext.A1 and A2 were marked. Opposite party got examined as RW1.
10. The fact that PW1 purchased one milking machine from the 1st opposite party is not in dispute. From Ext.A1 it is seen that on 13/5/2019 PW1 purchased the machine for an amount of Rs.53,760/- and thereafter on 27/5/2019 purchased a petrol engine for Rs. 10,048/-. Opposite party alleges that it was purchased on 28/2/2019 and during cross examination PW1 admitted the same. The bill was issued on 13/5/2019 as per request of PW1 for enabling him to get the subsidy since the subsidy for the previous year was closed. PW1 admitted that he obtained the subsidy suppressing the fact the machine was not working. Though PW1 stated that he was having 12 cows no evidence is available to prove the same except his interested testimony. Similarly though PW1 alleges that he purchased the cows for rupees 60 to 70 thousand there is no evidence for the same. Though PW1 contented that he had to sell the cows due to mastitis for a throw away price of Rs.25,000/- there is also no evidence for the same. It is true that we cannot expect invoices for purchasing the cows and also invoices for selling the cows but there should be some documents available to prove the purchase and sale of the cows. Here PW1 has not even produced a scrap of paper to prove the purchase and sale of the cows.
11. The main allegation is that due to the malfunctioning of the machine 8 cows’ sustained mastitis and he had to sell the same for throw away price. But no evidence is produced to show that the cows sustained mastitis. If the cows became ill under normal circumstance the service of a veterinary doctor will be availed and he will prescribe medicines. Here also no prescription is seen produced and PW1 has no case that the cows were treated by a veterinary doctor. Mastitis is a painful swelling in the udder usually because of infection. It can happen if the milk is not extracted properly. Here according to PW1 due to the malfunctioning of the machine mastitis occurred. If that is so milking can be done manually also which will avoid mastitis. This to be read along with the cross examination of PW1 that earlier he was milching the cows manually. As stated earlier the value of the machine as per Ext.A1 invoice is Rs.53,760/- and PW1 admitted during cross examination that he had availed an amount of Rs.32,000/- as subsidy.
As per rule 3(1) of the issuance of licence of livestock farms. A licence from the Grama Panchayath is compulsory if the farm is having more than five animals.
12. Here according to PW1 he was having 12 animals. But during cross examination he admitted that he was not having any licence. Though it was put to PW1 that the farm was closed due to complaints that it was functioning without any licence he denied the same. According to RW1 the machine was supplied on 28/2/2019 for an amount of Rs.53,760/-. However the bill was issued only after 3 months for collecting the subsidy. This appears to be true since the date of Ext.A1 bill is 13/5/2019. RW1 stated that when complaint occurred regarding the machinery he visited the farm 7 times and had done service. A petrol engine was installed for smooth functioning. However due to misuse of the same complaint occurred to the same. Since RW1 had visited the farm for 7 times to rectify the mistake it cannot be held that there was deficiency of service. In the complaint as well as in the chief affidavit it is stated that complaint is having 12 cows and he had employed 4 persons to look after the same. So the purchase of machinery was for commercial purpose which is excluded him the definition of Consumer. Though in the chief affidavit is stated that it is his livelihood it is conspicuously absent in the complaint. As per the settled principle he cannot set up a new case without pleading.
13. The definite case of PW1 is that he had 12 cows and each cow was purchased at a price of rupees 60 to 70 thousand. As stated earlier not even a scrap of paper is produced to prove the value of the cow. PW1 contented that due to the malfunctioning of the machine 8 cows sustained mastitis and he had to sell the same for a throw away price of Rs.25,000/-. Here also not even a scrap of paper is available to prove the same. PW1 has also not examined any witness either to prove the purchase or to prove the sale. Though PW1 has got a case that 8 cows sustained mastitis due to the use of the substandard machine no evidence is available to show that the cows were treated by a veterinary doctor. PW1 is claiming an amount of Rs.3,20,000/- on account of loss sustained to him for the sale of 8cows. If such a huge amount is claimed there should be some evidence. Similarly PW1 is claiming an amount of Rs. 63,808/- being the value of the machines. During cross examination PW1 admitted that he had availed a subsidy of Rs.32,000/-. The said fact was purposefully suppressed in the complaint and claimed the total value of the machinery. Though PW1 contended that he was having 12 cows he could not produce any licence to prove the same. As per Panchayath Raj Act and Live stock Rules 3(1) licence is compulsory if the numbers of cows are more than 5. Hence assessing the evidence as a whole we are of the opinion that complainant could not prove the case as alleged and so he is not entitled for any relief. These points are found against the complainant.
14. Point No.4:-
In the result complaint is dismissed. Parties are directed to bear their respective cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 07th day of October, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - N.Ajaykumar(Complainant)
Ext.A1 - Invoices and Certificate
Ext.A2 - Photographs
Evidence of the opposite parties:-
RW1 - Radhakrishnan Nair(Witness)
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
