w w w . L a w y e r S e r v i c e s . i n

V. Surendran v/s S. Viswambharan

    Appeal No. 795 of 1999

    Decided On, 16 May 2000

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, MEMBER

    For the Appellant: S. Reghukumar, Advocate. For the Respondent: J.S. Vishnukumary, Advocate.

Judgment Text

L. Manoharan, President:

1. Opposite party in O.P. No. 345/95 on the file of the Consumer Disputes Redressal Forum, Alappuzha is the appellant. Complainant’s case before the District Forum was that he engaged the service of the opposite party for attending his pregnant cow, when he noticed on 24.5.1995 that the cow has developed pre-delivery restlessness. The opposite party attended the cow treated it for two days by administering medicine and he forced the delivery on account of which the cow suffered injury and later on 26.5.1995 it succumbed to the injuries thereby he underwent mental agony and also loss. Therefore,

Please Login To View The Full Judgment!

he wanted the direction to be issued to the opposite party to pay compensation. In the version by the opposite party though he admitted that he attended the pregnant cow of the complainant and treated it, he sought to maintain that he did not receive any consideration towards the same. He maintained that the cow delivered a calf and both were healthy and normal. He denied the allegation of the complainant that the cow died because of his negligence. He further contended that the complaint itself is foisted at the instance of Dr. Kamarudeen, Veterinary Surgeon who is inimical towards him. He wanted dismissal of the complaint. Complainant gave evidence as P.W. 1. He also examined P.W. 2 and P.W. 3. P.W. 3 is one of his neighbours and P.W. 2 is a Veterinary Surgeon. Complainant also produced Exts. A1 to A6. But the opposite party did not give evidence. On a consideration of the said evidence the District Forum ordered the opposite party to pay a sum of Rs. 15,000/- with interest at 14% from the date of the complaint; that is from 10.7.1995 and also costs Rs. 1,000/-. Aggrieved by the same the opposite party has come up in appeal.2. The learned Counsel for the appellant urged that the conclusion reached by the District Forum is erroneous as according to the learned Counsel since there was no consideration for the service, the complainant could not have been held to be a consumer. He further urged that the finding of the District Forum that the opposite party had extracted the calf from the cow in such manner on account of which the cow sustained injuries and later died is not true or correct. It is his case that the District Forum could not have accepted the evidence of P.W. 2 and P.W. 3. On the other hand the learned Counsel for the respondent/complainant supported the conclusion reached by the District Forum maintaining that the complainant/respondent depended for his livelihood by selling the milk of the cow and he had to bestow his whole hope on the milk that he expected to get from the cow and hence by the death of the cow the means of his livelihood itself dried up and thus he got severe mental agony sustained the loss. It is also urged, P.W. 1 sworn to his having prayed Rs. 200/- as consideration which he raised as a loan from P.W. 3. She highlighted that there being no evidence to counter it the finding of the District Forum does not call for any interference.3. Having regard to the fact that the evidence of P.W. 1 is corroborated by the evidence of P.W. 3 the neighbour as to the payment of consideration for the service of the opposite party; it cannot be now urged by the appellant that the service was rendered without any consideration. This is particularly so as he did not enter the box to deny the evidence by P.W. 1 and P.W. 3 as to this aspect. The finding that the complainant is a consumer thus does not call for any interference.4. Then coming to the deficiency of service the District Forum considers the same in para 7 of the impugned order. The order summarises, the evidence of P.W. 1, the complainant has deposed as to the crude method by which the opposite party extracted the calf from the cow whereby injury was caused to the cow. This evidence of P.W. 1 is supported by the evidence of P.W. 3 the neighbour; and P.W. 2 the Veterinary Surgeon gave evidence to the effect that the cow died because of the negligence in administering the medicine as well as the way in which the delivery was forced. Having regard to the said evidence which is not controverted by the opposite party by giving evidence, the finding of the District Forum on the said aspect also does not call for any interference.5. Coming to the question of compensation whereas the appellant would maintain that the compensation awarded is on the higher side particularly as even according to the complainant the price of the cow was only Rs. 12,500/- whereby compensation of Rs. 15,000/- cannot be supported. In an endeavour to support the direction of the District Forum learned Counsel for the complainant pointed out that in as much as the complainant was depending for his livelihood on the income by selling milk of the cow when the cow died because of the negligence of the opposite party, he naturally is entitled to be compensated and that compensation has to be reckoned with due regard to the said aspect also, adding to that according to the learned Counsel, a person in the position of the complainant could have naturally undergone mental agony on the death of the cow. Having regard to the aforesaid circumstance according to the Counsel that the compensation of Rs. 15,000/- does not call for any interference. We see enough force in the submission made by the respondent. It cannot be said that the quantum is artificial or imaginary. When P.W. 1 said that he depended for his livelihood from the income by selling from milk of the cow, naturally had the cow survived he would have get income by selling the milk from the cow. That being the position the said aspect has to be taken into account. We do not consider the fixing of compensation of Rs. 15,000/- is on the higher side. It was then urged that the rate of interest fixed is not permissible, at any rate the interest could be awarded only from the date of the order not from the date of the complaint. We consider that the rate of interest awarded need be at 12% and the interest shall be from the date of the order of the District Forum. The only modification required as is afore indicated.6. Therefore, the appeal is liable to be dismissed with the aforesaid modification In the result, the appeal is dismissed but with the modification as to the interest as indicated above. No other interference is called for. In this appeal there will be no order as to costs.

Already A Member?