Kerala

Idukki

CC/132/2018

Ambily Vijayan - Complainant(s)

Versus

Soji joseph - Opp.Party(s)

02 Feb 2022

ORDER

DATE OF FILING :4.7.2018

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION IDUKKI

Dated this the 2^nd day of February, 2022

Present :

SRI. C. SURESHKUMAR PRESIDENT

SMT. ASAMOL P. MEMBER

SRI. AMPADY K.S. MEMBER

CC NO.132/2018

Between

Complainant : Ambily Vijayan,

Chavarackal House,

Vazhavara P.O.,

Idukki – 685 515.

(By Adv: Sijimon K. Augustine)

And

Opposite Parties : 1. Saji Joseph, S/o/ Joseph,

Orappurayil House,

Vazhavara P.O.,

Nankuthotty, Erattayar.

2. Devasia George,

Choukarayil House,

Vazhavara P.O., Idukki.

(By Adv: Saji Augustine)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. Complaint filed under Section 12(1) of the Consumer Protection Act, 1986 (the Act, for short). Case of the complainant is briefly discussed here under :

2. Complainant had purchased a cow from 1^st opposite party in September, 2017 for Rs.60,000/-. 2^nd opposite party is the intermediary / broker who had introduced 1^st opposite party to complainant. Before the intended purchase, 1^st opposite party had made complainant believe that cow was yielding 15 ltrs of milk per day. Believing this, complainant had, as aforesaid, purchased the cow from him. However, to his utter (cont….2)

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disappointment, complainant found that cow did not yield even a litre of milk per day. He had informed 1^st opposite party about this, via 2^nd opposite party and had asked him to take back the cow and return the amount to him within 6 months. Though cow was returned, amount was not repaid by 1^st opposite party. Complainant alleges unfair trade practice on the part of 1^st opposite party. She prays for return of Rs.60,000/- which she had paid towards price of cow along with 12% interest from opposite party and a further sum of Rs.20,000/- as damages towards said loss including loss of livelihood and mental agony suffered, along with Rs.5,000/- towards litigation costs.

3. Opposite party had filed written version disputing claim of complainant. His case is briefly discussed her under : according to 1^st opposite party, complaint is not maintainable in law upon facts. He would say that a cow cannot be considered as a milk machine and that it should be looked after with utmost care or else it will got infected with disease which will lessen it’s yield. Opposite party would say that cow was purchased from him by complainant on 14.9.2012 for Rs.50,000/- and not for Rs.60,000/. At the time of sale, cow was pregnant. This was 2^nd pregnancy of the cow. After its first delivery, it had yielded 10 ltrs of milk every morning and this fact is known to complainant, since milk was given to Nankuthotti Milk Society. He had sold a healthy cow to complainant. On 22.10.2012, complainant had contacted 1^st opposite party over phone and informed him that the cow was not yielding milk and that he is bringing the cow back. Accordingly, he had brought the cow back on the same day. On the next day, 1^st opposite party found that the cow was affected with udder disease and its two teats were infected. That being so, complainant is not entitled for the reliefs prayed in the complaint and same is to be dismissed.

4. Second opposite party had filed written version, more or else, supporting the case of complainant. His case is briefly discussed here under :

He would admit that cow was purchased by complainant from 1^st opposite party on the basis of representations made by him (1^st opposite party) that yield was 15 ltrs per day. However, price paid was Rs.50,000/- and not Rs.60,000/- and after taking delivery of cow, complainant had informed him that cow was not yielding milk as represented by 1^st opposite party. Hence 2^nd opposite party had contacted 1^st opposite party and in course of mediation which take place between them, 1^st opposite party had agreed to take back the cow and to repay the amount given towards its price to complainant within 6 months. However, amount has not been paid. 2^nd opposite party submits that he had only introduced 1^st opposite party to complainant and has nothing to do with the transaction between them. He is not a necessary party and therefore complaint is to be dismissed with costs.

(cont….3)

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5. Case was thereafter posted for evidence after giving sufficient opportunity to both sides to take steps. Complainant herself gave evidence as PW1 to prove her case. No evidence was tendered by opposite parties 1 and 2, though they had sought and obtained repeated adjournments for the said purpose. Hence evidence was closed. We have heard the learned counsels appearing for complainant and opposite parties. Now the points which arises for consideration are :

1) Whether 1^st opposite party had sold a cow to complainant representing that it had a yield of 15 ltrs of milk per day ?

2 Whether the yield was less than what was represented ?

3) Whether 1^st opposite party had resorted to unfair trade practice ?

4) Whether complainant is entitled to get back the price paid by him for the cow from 1^st opposite party ?

5) Whether he is entitled for compensation for loss sustained by him pecuniary and mentally owing to unfair trade practice by 1^st opposite party ?

6) Whether 2^nd opposite party is liable along with 1^st opposite party to return / repay price of the cow and to compensate the complainant ?

7) Reliefs and costs.

6. Point Nos.1 to 6 are considered together :

Learned counsel appearing for complainant had adverted to the pleadings addressed by both sides in brief and submitted that leaving aside evidence, case of complainant is proved from the written versions filed by opposite parties. That apart, complainant has tendered evidence to prove her case also. It is proved that there was misrepresentation with regard to yield of cow by 1^st opposite party. Believing that these representations were true, complainant had purchased the cow from 1^st opposite party for a consideration of Rs.60,000/-. This amount is to be returned to her. She is also to be compensated for the loss occasioned.

7. Learned counsel for 1^st opposite party would submit that cow was kept in unhygienic conditions by complainant. Owing to this it contacted udder disease and two of it’s teats were infected. This was the reason for lessening of the yield. Complainant herself is responsible for that. She had, without any prior intimation, brought the cow back to the house of 1^st opposite party and left it there. Under this circumstances, 1^st opposite party is not liable to repay the money obtained as price of cow or to compensate the complainant.

(cont….4)

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8. Learned counsel appearing for 2^nd opposite party submitted that transaction was between complainant and 1^st opposite party. 2^nd opposite party had only introduced 1^st opposite party to complainant. Therefore 2^nd opposite party cannot be made liable for the price of cow or compensation claimed. Counsel further submits that there was representation by 1^st opposite party about yield of the cow believing which complainant had purchased it. That 2^nd opposite party was informed by the complainant after a week that cow was not yielding milk as represented by 1^st opposite party. He had immediately contacted 1^st opposite party and he had agreed to take the cow and return the price paid by complainant. 2^nd opposite party has nothing do with this. He is not liable to pay anything to complainant. Complaint is to be dismissed as against him.

9. We have gone through the pleadings addressed and evidence tendered in this case. Though a contention is taken that complaint is not maintainable, it is not seriously pursued by 1^st opposite party. Nobody has a case that 1^st opposite party will not answer the definition of trader or that complainant is not a consumer under the Act. Coming to the facts at hand, it is admitted that a cow was purchased by complainant from 1^st opposite party. Case of complainant that 1^st opposite party had represented that yield was 15 litres per day is not denied by 1^st opposite party. Complainant has further pleaded that yield was not even a litre per day. This is also not specifically denied by 1^st opposite party. 1^st opposite party also admits in his written version that complainant had informed over phone that cow was not yielding milk as represented by him and that he is bringing the cow back to him. It is further mentioned in the written version that the cow was brought back to the opposite party on the next day of phone call made on 12.10.2012. Therefore contentions that complainant had brought the cow on her own and left it at the house of 1^st opposite party do not appear to be true.

10. As far as price paid for the cow is concerned, according to complainant, she had paid Rs.60,000/- to 1^st opposite party for purchasing the cow. However during cross examination, she has admitted that price paid was only Rs.50,000/- and that she had spent Rs.10,000/- for putting up a cow shed. Complainant had not sought for any compensation for the money spent by her to put up a cow shed. She has only sought for return of price paid by her to opposite party for purchasing the cow. As per her own admission price paid was only Rs.50,000/- and not Rs.60,000/- as mentioned in her complaint. Besides, 2^nd opposite party is also pleaded that price was only Rs.50,000/-. It is thus proved that price of cow was only Rs.50,000/- and not Rs.60,000/-.

11. 1^st opposite party has only contended that yield of cow was affected as it was infected with udder disease owing to unhygienic condition in which it was kept and maintained by complainant. 1^st opposite party has not given any evidence to prove that (cont….5)

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complainant had not properly kept or maintained the cow. He has also not given evidence to prove that cow was returned while it was infected with udder disease. Therefore this case of 1^st opposite party remains unproved. In such circumstances, case of complainant that yield was very less than what was represented by 1^st opposite party prevails. Evidently. 1^st opposite party had made a tall claim regarding yield of cow, in all probabilities, to get rid of it as it was not yielding sufficient milk. Such misrepresentation of facts by 1^st opposite party regarding yield of cow would amount to unfair trade practice.

12. We have already found that price paid by complainant for the cow was only Rs.50,000/-. She is entitled to get back the price paid as the cow was returned to its owner, along with a reasonable rate of interest. Complainant had claimed interest at the rate of 12% per annum which appears to us as not excessive. She has further claimed Rs.20,000/- towards damages sustained owing to unfair trade practice adopted by 1^st opposite party. Considering circumstances of the parties and nature of transaction, we would hold that complainant is entitled for Rs.5000/- towards damages on this count. As far as, liability is concerned, there is no evidence to show that 2^nd opposite party had also joined 1^st opposite party in making false representations with regard to yield of cow. He has, apparently, only introduced the parties. Yet, he is a necessary party in this case, but, we are of the view that 2^nd opposite party should not be made liable for the claims of complainant or litigation costs as such. 1^st opposite party alone is liable. Point Nos.1 to 6 are answered accordingly.

 

13. Point No.7 :

In the result, complaint is allowed in part upon following terms :

1. 1^st opposite party is directed to pay Rs.50,000/- to complainant towards price of the cow.

2. He is further directed to pay a sum of Rs.5,000/- towards compensation for loss sustained owing to unfair trade practice resorted to by him.

3. Amount ordered as per clauses 1 and 2 above shall carry interest @ 12% per annum from 14.9.2012, till the date of payment or realization.

4. 1^st opposite party shall pay Rs.1,000/- towards litigation costs to complainant.

 

(cont….6)

 

 

• 6 -

 

5. Amount ordered as per clauses 1 to 4 above shall be paid within 30 days from the date of notice of this order, failing which complainant shall be entitled to realize the amount due from 1^st opposite party by proceeding personally against him and his assets in accordance with law.

Pronounced by this Commission on this the 2^nd day of February, 2022

 

Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

 

Sd/-

SMT. ASAMOL P., MEMBER

 

Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Ambily Vijayan

On the side of the Opposite Party :

Nil.

Exhibits : Nil.

Forwarded by Order,

 

SENIOR SUPERINTENDENT