ANDHARAYOSE vs MOIDEEN RAWTHER

THE 2nd opposite party in O.P.1381/92 on the file of the District Forum, Kottayam is the appellant.

THE complainant authorised the 1st opposite party to buy a good quality of cow of high yielding. THE 1st opposite party informed the complainant that a cow owned by the 2nd opposite party was available for sale and the cow will give 5 bottles of milk every day. THE complainant entrusted Rs. 3500/- the price of the cow to the 1st opposite party and on 29.10.1992 the 1st opposite party paid Rs. 3500/- to the wife of the 2nd opposite party. THE 3rd and 4th opposite parties accompanied the 1st opposite party and brought the cow to the complainant. Two lesions in the udder of the cow were notified and when asked the complainant was told that it was due to the calf''s biting. When the cow was milked on the second day it gave only 2 bottles of milk. When it was reported to the opposite parties, the 1st and 3rd opposite parties came to his house and milked the cow and got only 2 and 3y2 bottles of milk. On 30.10.1992 the lesions in the udder increased and on 2.11.1992 the entire udder, face and legs were of lesions and when shown to a veterinary Doctor, the doctor said that the cow was having cow pox. It is alleged that the cow was sold the complainant with full knowledge that the cow was suffering from cow pox. The 1st and 3rd and 4th opposite parties did not file any objection. The 2nd opposite party filed and objection stating that the cow belonging to him was purchased by the 1st opposite party for Rs. 3500/- and the complainant has no cause of action against him. He also stated that the cow did not suffer from any defect or disease and he did not adopt any unfair trade practice. The 1st opposite party admitted that the cow was purchased on behalf of the complainant. It is clear from the evidence that the 1st opposite party only acted as an agent of the complainant and the real owner was the complainant. Ext. PI is a certificate issued by the veterinary doctor which showed that the cow was suffering from cow pox before the date of sale. It is in those circumstances the District Forum passed an order directing the 2nd opposite party to refund an amount of Rs. 3500/- to the complainant. There was also a direction that the cow and calf could be returned to the 2nd opposite party on refund of Rs. 3500/-.

In this appeal, learned Counsel vehemently contended that there is no privity of contract between the complainant and the appellant as the appellant sold the cow only to the 1st opposite party. In the circumstances he argued that order of the District Forum is unsustainable. The evidence clearly shows that the 1st opposite party was only an agent of the complainant and that the cow was really purchased by the complainant for himself and he was the owner. It is not the case of complainant or the 2nd opposite party that the complainant purchased a cow from the 1st opposite party. The evidence clearly shows the complainant sent the 1st opposite party to purchase the cow on his behalf and consideration of Rs. 3500/- was entrusted to the 1st opposite party for payment to the 2nd opposite party. Therefore, the complainant is a consumer and he is entitled to maintain the complaint. As indicated above, Ext. P1 certificate clearly shows that the cow was suffering from cow pox. In the circumstances the direction for refund of the price to the complainant and thereupon for return of the cow and calf to the 2nd opposite party cannot be said to be illegal or wrong. The appeal fails and it is accordingly dismissed. However, we direct the parties to bear their respective costs. Appeal dismissed.