State Consumer Disputes Redressal Commission
Shri Sunil Pandurang Gaikwad vs Shripadeep Manohar Shitole on 7 March, 2011
BEFORE THE HON
BEFORE THE HON'BLE STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION,
MAHARASHTRA, MUMBAI
First Appeal No. A/10/505
(Arisen out of Order Dated
11/03/2010 in Case No. 375/2010 of District Solapur)
1. SHRI
SUNIL PANDURANG GAIKWAD
PROP OF
ANMOL HATCHERY & BREADING
FARM PARIT ROAD
VARVALE TAL MADHA
SOLAPUR
...........Appellant(s)
Versus
1.
SHRIPADEEP MANOHAR SHITOLE
RES BEHIND
GODOWN SHIVAJI NAGAR BARSHI
SOLAPUR
...........Respondent(s)
BEFORE:
Hon'ble Mr. P.N.
Kashalkar PRESIDING MEMBER
Hon'ble Mrs.
S.P.Lale Member
PRESENT:
R NARVANKAR ,
Advocate for the Appellant
Shri Abhijit Kadam,
Advocate for the Respondent
ORDER
Per Mrs.S.P. Lale, Honble Member
1. This appeal is directed against the order dated 11/03/2010 passed by District Consumer Disputes Redressal Forum Solapur in consumer complaint No.375/2009 whereby the District Consumer Forum directed the opponent to pay `2,30,000/-
as compensation within 30 days to the complainant. District Consumer Forum further directed to pay `1,000/- towards cost to the complainant. Being aggrieved by the said order, org. opponent has filed the present appeal.
2. The case of the complainant before the District Consumer Forum was that the complainant is having poultry farm in the name of Sai Poultry at Mauje Varadvali Phata, Tal. Paranda. Complainant used to purchase chicks from the opponents for his own business. According to the complainant on 15/07/2008 he has purchased 4500 chicks from the opponents. After purchasing the same from the opponents, complainant had purchased branded food like Bakinz and Amrut for the said chicks. But, after 65-70 days the chicks were weak and one after another they started dying. The complainant had shown said chicks to the Medical Officer, who opined that chicks had Marek disease. The complainant sent the said chicks to the Laboratory at Pune for confirmation of said Marek disease. On 17/11/2008 said laboratory confirmed that said chicks had Marek disease. According to the complainant opponent had failed to give vaccination to the said chicks after the birth of the chicks within one day. Therefore, due to failure on the part of the opponent to give vaccination to the chicks, they started losing their weight and some of them died. Therefore, complainant suffered loss of `5 Lakhs. Complainant sent notice to the opponent, but opponent even failed to reply the said notice. Therefore, complainant filed consumer complaint for deficiency in service and claimed compensation.
3. Opponent filed its written statement and pleaded that poultry of the complainant is not constructed as per the poultry pattern which is approved by the Government Norms. There was no plaster for the walls and floor of the poultry. There was no separate room for breeding for the birds. There was no proper shed to protect the birds from environmental disease. Opponent pleaded that the area of the poultry is very less and in the said poultry at a time upto 1200 birds can be kept, but complainant kept 4500 birds. This is beyond the capacity of the poultry. It further pleaded that poultry of the complainant was not having water sewerage facility and disposal of waste, food hygienic, etc. Finally, opponent prayed for dismissal of complaint.
4. After considering the affidavits and documents placed before it, the Learned District Consumer Forum allowed the complaint and passed the impugned order.
5. We heard Shri R.Narvankar, Advocate for the appellant and Shri Abhijit Kadam, Advocate for the respondent.
6. Perused the copy of impugned order, memo of appeal and documents placed before us. We are finding that the order passed by the District Consumer Forum is erroneous and bad in law. District Consumer Forum has giving finding that the complainant/respondent had purchased 4500 chicks from the appellant on 15/07/2008. Said chicks died due to Marek disease. The appellant/org. opponent had failed to give a regular vaccination to the chicks of one day. According to the appellant/org. opponent at the time of delivery of the chicks to the respondent/org. complainant, appellant had given regular vaccine to the chicks. In the present case, chicks died after 65-70 days. On 15/07/2008 one Shri Anand Shivaji Shinde had also purchased 1200 chicks and one Shri Ganesh balkrushna Gavali had also purchased 900 chicks from the appellant, but they have not found marek disease to the said chicks. Said chicks were healthy and good for human consumption. The appellant/org. opponent had filed affidavits of both the above purchasers. The appellant/org. opponent has taken defence that any vaccination can be given to the chicks to protect them from the disease, but it cannot be guaranteed that the marek disease will not be infected to the chicks. Said disease has infected because of viral infection of Bio-Catrich. Marek disease had not spread from the appellant Hatcheries. District Consumer Forum has wrongly taken into consideration the Diagnosis Report dated 17/11/2008 wherein the age of the chicks is shown as 120 days and the said report has given tentative diagnosis of mareks disease plus bacterial infection. It is seen that the diagnosis had also not confirmed the death of the chicks due to marek disease only. Therefore, the appellant/org. opponent is not responsible for the death of the chicks that too after 65-70 days.
7. It is also pertinent to note that the appellant/org. opponent in its written version has taken defence that the complainant is in the service and he is a teacher in the school. The complainant/respondent is running a business of poultry farm and therefore, complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. The complainant is earning profit from the poultry farm. However, the complainant in his complaint also admitted that in the poultry farm complainant is running a business of selling the chicks. The complainant/respondent is in service. He is a teacher in School and he is running a poultry farm for business purpose and earning profit out of it and said poultry farm is not the only means of his livelihood. Therefore, we are inclined to allow the appeal and inclined to dismiss the complaint and complainant may go to any other Court to redress his grievance. The District Consumer Forum did not consider all these aspects and arrived at a wrong conclusion. Therefore, upholding the appellants claim, we pass the following order :-
-: ORDER :-
1.
Appeal is allowed. The impugned order dated 11/03/2010 is quashed and set aside. The consumer complaint No.375/2009 stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 7th March 2011.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member dd