Kerala

Idukki

CC/104/2021

Joseph - Complainant(s)

Versus

Sunny - Opp.Party(s)

24 Aug 2023

ORDER

DATE OF FILING : 23.7.2021

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  24^th  day of  August, 2023

Present :

                   SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.104/2021

     Between

Complainant                                       :       Scaria,

                                                                   Ilavummoottil House,

                                                                   Chottupara, Karunapuram.

(By Adv: Sibi Thomas)

        And

Opposite Party                                    :         Sunny,

                                                                   Vadakkedam House,

                                                                   Cumbumettu, Karunapuram.

(By Adv: Shiji Joseph)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This case originates from a complaint filed under Section 35 of the Consumer  Protection Act of 2019 (the Act, for short).  Case of the complainant, so disclosed from his complaint is briefly discussed hereunder :

 

Complainant alleges that he had purchased a pregnant cow on 13.3.2021, for a consideration of Rs.75,000/- from  opposite party, who is rearing cattle and engaged in agricultural operations.  At the time of purchase, complainant was made to believe by opposite party that the cow yielded 17 litres of milk in the morning and 8 litres in the evening.  On 29.4.2021, the cow had calved.  Thereafter when complainant started milking the cow, he found that it was yielding only 8 litres in the morning and 4 litres in the evening.  Complainant had reared miltch cows for about 40 years and hence he knows how a milking cow should be looked after and cared for.  Cow purchased from opposite party was comfortably kept in a cattle shed.  It was given green fodder, hay and protein rich cattle feed.  Despite this, yield was not as promised by opposite party. When this was conveyed to him, opposite party had asked complainant to wait for one month and had assured him that the cow will yield milk as promised by him by this time.  Though the complainant had waited for one month, there was no improvement in yield.    Therefore, he had asked opposite party to take back the cow and its calf and to return the money taken from him towards its consideration.  Thereupon opposite party informed                                                                                                              (cont…..2)

him that he had already spent the money, but promised that he will return the money without delay and take back the cow.  Complainant submits that opposite party has not kept his promise.  He had not returned the money or taken back the cow.  Complainant is now looking after it and its calf.  He further submits that opposite party should be directed to return Rs.75,000/- taken from him towards price of the cow.  He should also be directed to reimburse complainant money spent towards feeding and looking after the cow which comes to Rs.25,000/-.  Complainant seeks a compensation of Rs.1 lakh for the inconvenience suffered by him by the acts of opposite party.

 

2.  Complaint was admitted and upon notice, opposite party had entered appearance and filed a written version.  According to opposite party, complaint is not maintainable.  The cow is not a milk making machine.  Yielding of cow depends upon several factors.  There can be no guarantee with regard to yield of cow.  Complainant has no case that the cow sold to him was ill or sick before sale or that it had any health issues which had resulted in low yield.  There is no deficiency in service from the part of opposite party.   He admits of having sold a pregnant cow to complainant for Rs.75,000/-.  The cow had calved twice earlier.  It was sold during its 3^rd pregnancy.  It is incorrect to say that the cow had yielded 17 litres of milk in the morning and 8 litres in the evening.  It had a yield of 17 litres in the morning and 10 litres in the evening.  Opposite party was selling milk obtained from the cow to Malanadu Ksheerolpadaka Sangham, Cumbummettu.  Opposite party’s society membership number is 61.  He had only one cow during that period and it yielded 13.6 litres in morning and 10.3 litres in evening on 10.9.2017.  On 2.4.2018, opposite party had measured 17.1 litres of milk in morning and 9.2 litres in evening.  Opposite party is prepared to produce the entire details of milk sold  to the society.  Before selling the cow to complainant, opposite party had shown all the available records to complainant.  Complainant had verified the same with records maintained by Malanadu Milk Producers’ Society and thereafter purchased the cow.  Opposite party does not know that the cow had calved on 29.4.2021.  He does not know that the yield was only 8 litres in morning and 4 ½  litres in the evening.  Opposite party does not know about the care or protein rich feed allegedly given by complainant to the cow.  Complainant had not asked opposite party to take back the cow.  Opposite party had not agreed to take it back either on 4.6.2021, or on any other day.  This opposite party had sold the cow for raising money for the marriage of his daughter.  One Mr. Joseph, who is his neighbor, used to assist the opposite party to sell milk to society. He is a relative of complainant too.  When opposite party instantly told Mr. Joseph that he is going to sell the cow, it was this Joseph who had brought the complainant as a prospective purchaser, to him.  Thereupon opposite party had shown all records with regard to sale of milk to the society, to complainant.  Complainant had personally gone to the society and verified the details.  After being fully convinced about its yield, complainant had purchased the cow.                                                                                                                     (cont…..3)

Opposite party had reliably come to know that the cow had calved while in the shed at night and the complainant came to know about this only in the morning.  Due to  negligence of complainant, the cow had developed mastitis (inflammation of udders) and this was the reason for low yield of cow.  On 4.5.2021, complainant came to the house of opposite party and had abused him.  He had also filed a complaint with Cumbumettu Police, against opposite party.  Police had enquired about the complaint, finding that there was no truth in the petition,  refused to take any action against opposite party.  Complainant has not provided proper care to the cow after its sale to him.  This is also the reason for low yield.  Opposite party had not given any false assurance to complainant regarding yield of the cow.  On these premises, opposite party prays for a dismissal of complaint with costs.

 

3.  Case was then posted for steps and for evidence. Complaint was filed in person by the complainant.  It was only during evidence stages that he had engaged a counsel to represent him. On the side of complainant, he himself and 2 witnesses were examined as PWs1 to 3.  No documents were produced from his side.  From the side of opposite party, he himself and one witness, secretary of Malanadu Milk Producers’ Society at Cumbumettu were examined as RWs1 and 2 respectively.  Exts.R1 and Ext.X1 series, 2 in numbers were marked.  Ext.R1 is a passbook given to opposite party from the milk society with regard to sale of milk by him.  Ext.X1 series, 2 in numbers are 2 registers maintained by society pertaining to purchase of milk from its members for the year 2021.  After examination of RW1, evidence was closed and both sides were heard.  Now the points which arise for consideration are :

1)  Whether complaint is maintainable ?

2)  Whether there was any misrepresentation with regard to yield of cow ?

3)  Whether complainant is entitled for the reliefs prayed for in the complaint ?

4)  Final order and costs ?

 

4.  Point No.1 :

 

          We have heard both counsels. We will first consider the issue of maintainability. Primary question is whether opposite party falls within the sweep of the term trader as defined in the Act. As per Section 2(45), ‘a trader in relation to any goods, means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof.’

 

          Thus, to qualify a person as a trader in relation to any goods, he must be a person who sells or distributes any goods for sale. There must be regular sale  of goods by a person to qualify him as a trader in his regular line of business. We are not impressed by contentions advanced by opposite party that cow is not a milk making machine and                                                                                                                           (cont…..4)

hence cannot be considered as goods. Livestock is certainly movable property and can be bought and sold. However a trader as defined in the Act is one who indulges in sale or distribution of goods for sale. Such sale and distribution of goods involve plurality of actions and cannot be confined to a single instance of sale. Complainant has no case that opposite party sells cattle regularly  in the line of his business.

 

          We notice that complainant himself has described the opposite party as an agriculturist and not as a trader in the complaint itself. In the instant case, opposite party has pleaded that he had only one cow with him.  This was sold to complainant for the purpose of meeting marriage expense of his daughter. These contentions are not in challenge. That being so, this fact is to be taken as admitted.  This single instance of sale as such is not sufficient to bring him within the mischief of Section 2(45) of the Act for qualifying him as a trader. That apart, as mentioned earlier, complainant himself has described the opposite party as an agriculturist, who also rears cattle and it  apparently is the only source of his livelihood. Since opposite party cannot be considered as a trader as defined in the Act, any sale by him of the likes as now  will not amount  to unfair trade practice which comes within the ambit of Sec.2(6)(i) of the Act since such representations are not by a trader.  Alleged misrepresentations if any amounting to unfair trade practice under the provisions of this Act, will not include the acts of opposite party herein.  Complaint therefore cannot be maintained.  Point No.1 is answered accordingly.

 

5.  Point No.2 :

 

          According to complainant, opposite party had misinformed him about the yield of cow.  He was told that the cow yield 17 litres of milk in the morning and 9 litres in the evening.  However, actual yield of the cow was very low.  His evidence as such is sought to be complemented by the evidence of PWs 2 and 3.  According to complainant, PW2 had milked his cow for testing its yield. PW2 has also deposed so and further given evidence during cross examination to the effect that he had accompanied complainant to meet opposite party for informing him about low yield of the cow.  But  complainant has no case in his complaint that PW2 had milked the cow or accompanied him when he had gone to the house of opposite party, complaining about low yield of the cow. That being so, evidence of PW2 that he had milked the cow or that he had  gone to meet opposite party along with complainant cannot be believed.  As far as PW3 is concerned, he has not tested the yield of cow.  He has not seen the cow being milked either. Though he has deposed that he had gone along with complainant at the time of purchase and tendered evidence regarding alleged misrepresentations made by opposite party, his evidence in this regard is not convincing,  reasons for which will be given in later portions of this order.

                                                                                                                   (cont….5)

          To consider whether there was any possibility or probability of there being any misrepresentation, we have also perused the evidence tendered by opposite party and his witnesses along with the documents produced by them.  Opposite party has specifically pleaded in his written version that yield was 17 litres in the morning and 10 litres in the evening.  But we find that he had gone back from this to some extent while addressing further pleadings in this regard in the written version itself.  Further down in same paragraphopposite party would plead that he had measured 13.6 litres in the morning and 10.3 litres of milk in the evening on 10.9.2017. However in the next line he would plead that on 2.4.2018, he had sold 17.1 litres of milk in the morning and 9.2 litres in the evening to the society. Ext.R1 passbook contains entries with regard to sale of milk by opposite party to Malanadu Milk Producers’ Society at Cumbumettu.  The entries lack clarity and there was no  attempt to explain the  entries made in the passbook.  We say so because daily yield of the milk, presuming that entries on the left side related to yield in the morning,is shown in  3 digit numbers and similar entries made on the right side of the page relating to measuring of milk in the evening quantity are also in 3 digit numbers.  There is no possibility of a cow yielding milk, for instance, as shown in the first entry, which is dated 10^th.  On 10^th, measurement of milk is shown as 136 in the morning and 103 in the evening.  We also find that there was no attempt to corelate the entries in the passbook with those contained on Ext.X1 series of registers.  According to RW2, membership number of complainant is 61.  The 2 registers produced pertain to the years 2020, X1 covering the period from 15/03/2020 to 22/06/2020 and X1(a) is from 23/06/2020 to 30/09/2020.  There was no attempt during examination of RW2 to clarify the manner in which entries are made in the register.    As far as register Ext.X1 is concerned, we do not find any entries of  member number 61 for having measured milk in the society at any point of time.  In Ext.X1, however, member No.61 is seen to have measured milk mostly in the morning and often during evening hours also.  There is no evidence by RW2 explaining entries with regard to yield of milk or rather measurement of milk shown in respective columns contained in register, both in the morning and evening.  There was no attempt to prove any of the entries in both registers to show that yield was as mentioned in written version or near to it.

 

However, we  notice that complainant had paid only Rs.75,000/-  towards price of the cow.  Evidence tendered by PW1 during cross examination itself is to the effect that a cow yielding one litre of milk will fetch a price between  Rs.5,000/- and Rs.6,000/-.  RW2 has given  evidence that the price should be Rs.6500/- for a cow having yield of one litre.  On a fair estimate, market value of cow yielding one litre of milk will be Rs.6000/-.  If it is presumed that the cow had a yield of 13.5 litres in the morning, then the price would be Rs.81,000/-. For sale purposes, only yield in the morning is taken into consideration which is on the higher side.  Admittedly, price was fixed on the basis of the yield of cow.  That being so, probability which emerges is that yield as spoken by the opposite party in his written version that the cow mostly gave a yield of 13.5 litres in                                                                                                               (cont….6)

the morning and 10.3 litres during evening time is convincing. And probably this was the yield mentioned by him to complainant. To sum up, we find that there is no sufficient evidence to prove that opposite party had made any misrepresentation with regard to yield of milk as alleged in the complaint.  More so, when price of the cow admittedly paid by complainant is considered. There is no deficiency in service and there are no allegations as such.  Allegations are of unfair trade practice with regard to misrepresentation regarding yield of cow.  There is no evidence to prove such misrepresentation.  Point No.2 is answered accordingly.

 

6.  Point Nos.3 and 4 are considered together :

 

          In view of our findings on Point Nos.1 and 2, we find that complainant is not entitled for the reliefs prayed for.  In the result, this complaint is dismissed, considering the circumstances, without costs.  Parties to take back extra copies, without delay.

 

                             Pronounced by this Commission on this the   24^th day of August, 2023

                                                                                                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         -  Scaria E.S.

PW2         -  George.

PW3         -  Joseph

On the side of the Opposite Party :

RW1        -   Sunny.

RW2        -  Varghese Ouseph.

Exhibits :

On the side of the Complainant :

Nil.

On the side of the Opposite Party :

Ext.R1     -  Passbook of member No.61

Ext.X1 series  -  2 registers maintained by the society for collection of milk from members.

 

                                                                                        Forwarded by Order,

 

 

                                                                                      ASSISTANT REGISTRAR