BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI Dated this the 26th day of September, 2008
Present: SRI.LAIJU RAMAKRISHNAN PRESIDENT SMT.SHEELA JACOB MEMBER SMT.BINDU SOMAN MEMBER
C.C No.85/2008 Between Complainant : Baby @ Jacob Francis, Poovatholil House, Anchiri P.O, Alakkode Village, Thodupouzha Taluk, Idukki District. And Opposite Party : Thankappan S/o Velayudhan, Cherusserikunnel House, Neerikkadu P.O, Neerikkadu, Ayarkunnam, Kottayam District. (By Adv: K.J.Thomas)
O R D E R SMT.SHEELA JACOB(MEMBER)
On 1.06.2008, the complainant Sri.Jacob Francis purchased a milch cow from the opposite party Sri.Thankappan for a consideration of Rs.16,000/-. It was promised by the opposite party that the cow was yielding 8 litres of milk per day. The price of the cow was arrived at based on the yield at the rate of Rs.2,000/- per litre of milk. The cow was brought to the house of the complainant and protected properly, he received only 4 litres of milk. The fact was intimated to the opposite party. But the opposite party took the stand that it was due to the fault of the complainant that the yield was reduced. So the complainant gave more cattle feed to the cow. Still, there was no increase in the yield. Several times, the opposite party was approached for refund of the excess amount collected or take back the cow and to refund the price received. But the opposite party has not complied with the request. The cow was purchased for earning the daily bread for the complainant and his family. The consideration was raised by borrowing Rs.12,000/- from his neighbour. Alleging deficiency in service, the complaint has been filed for a direction to the opposite party to compensate the complainant.
2. In the written version filed by the opposite party, it is contended that the complainant came to the residence of the opposite party on 28.05.2008 and witnessed the milking of the cow in question. At that time 7 litres of milk was received. On 1.06.2008 the complainant came and purchased the cow. The purchase was on exchange with another cow. The opposite party received a cow belonging to the complainant and Rs.3,500/- in cash. The price was fixed on the yield at the rate of Rs.1,500/- per litre. There was no false representation regarding the matter. The complainant had personally seen the milking. The reason for the reduction in the milk may be due to lack of protection, change in the climate etc. There was no deficiency in service on the part of the opposite party. 3. The point for consideration is whether there was any deficiency in the service of the opposite party, and if so, for what relief the complainant is entitled to ?
4. The evidence consists of the oral testimony of PWs 1 and 2 on the side of the complainant. No oral evidence was adduced from the side of opposite party.
5. The POINT :- The gist of the complaint is that the complainant did not get the offered quantity of milk from the cow. It is common case that the price of the cow was arrived at based on the yield at the rate of Rs.1,500/- per litre of milk. Regarding the quantity of milk, according to the complainant he believed and acted upon the representation of the opposite party,whereas the opposite party stated that the complainant had actually witnessed milking on the previous date on 28.05.2008 of the sale. The complainant examined as PW1. In cross examination PW1 has stated that he had exchanged his cow fixing Rs.12,000/- as its price and paid Rs.4,000/- in cash. One witness also present, examined as PW2 stated that PW1 had exchanged his cow and paid Rs.4,000/- in cash. From the evidence of PW1 and PW2, it is clear that he exchanged his cow and paid Rs.4,000/- in cash. But in the complaint, the complainant stated that he paid Rs.16,000/- in cash and he borrowed Rs.12,000/- from his neighbour was a false statement. In a case like this, it is very difficult to find deficiency in service on the part of the opposite party. A farmer, especially one who purchases a cow for earning daily bread will purchase the cow only after witnessing the sample milking. In fact it is the duty of the purchaser to get himself convinced about the yield of the cow before the sale was effected. The quantity of milk of a cow which is a living object may vary due to several reasons such as change in climate, change of cattle shed, change of the person milking, food given and several other things. A cow is a living animal and not a machine. Guarantee or warrantee in respect of quantity of milk of cow can in no circumstances be absolute. A person who buys the cow with such condition very well known that it is not in the hands of the seller to make the cow yield a particular quantity of milk. He can only vouchsafe the previous performance of the cow. In support of this contention reliance was placed on a ruling reported in 1993(3) CPR (Page 331)(Anwar Khan & Anr. Vs Gopal Awasthi). Quantity of milk of a buffalo would depend on various conditions and circumstances. So the mere reduction in the yield alone cannot be found to be a deficiency on the part of the seller. So the complainant is not entitled for any relief in this case. In the result, the Consumer Complaint is dismissed. No cost is ordered against the petitioner. Pronounced in the Open Forum on this the 26th day of September, 2008 Sd/- SMT.SHEELA JACOB(MEMBER) Sd/- I agree SRI.LAIJU RAMAKRISHNAN(PRESIDENT) Sd/- I agree SMT.BINDU SOMAN(MEMBER)
APPENDIX
Depositions On the side of Complainant : PW1 - Jacob Francis PW2 - Thomas V.V On the side of Opposite Party : Nil Exhibits On the side of Complainant Nil On the side of Opposite party : Nil
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