By Sri. Chandran Alachery, Member:
The complaint filed under section 12 of Consumer Protection Act for an order to direct the Opposite Party to pay Rs.50,500/- the amount already accepted by the Opposite Party from the Complainant for digging bore-well with 18% interest and Rs.20,000/- as compensation for the mental agony sustained by the Complainant and cost of the complaint.
2. The Complainant's case in brief:- The Complainant approached the Opposite Party at the work site of his neighbour and informed his intention to dig a borewell. The Opposite Party agreed for the same and fixed a rate to dig a borewell with 7 inch width and 290 feet depth for Rs.280/- per feet in mud portion and Rs.140 per feet in rock portion. The Opposite Party started work and digged the bore well of Complainant on 17.02.2013 and received Rs.49,000/- for his work and Rs.1,500/- to his workers as additional payment. The Complainant gave the amount to the Opposite Party in the presence of one Kattiparambil Antony Deavasya. After one week, the Complainant purchased a motor to fix it in well, the motor could not be put in the borewell due to the defective digging. When the Complainant asked the Opposite Party to clear the defect, the Opposite Party demanded Rs.28,000/- more to clear the defects. The Complainant could not make use of the well even if he spent more than 50,000/- for that purpose. So the Complainant pleaded that there is deficiency of service on the side of Opposite Party for which the Opposite Party is liable to compensate the Complainant. Hence the complaint.
3. On receipt of complaint, notice was issued to Opposite Party to appear on 02.04.2013. the Opposite Party received the notice on 20.03.2013 but did not appear in Forum at all. The Opposite Party was set exparty on 13.05.2013 and Complainant is directed
to file proof affidavit. The Complainant field proof affidavit and he is examined as PW1.
4. On going through the complaint and proof affidavit, the Forum raised following points for consideration.
1. Whether there is any deficiency of service on the part of Opposite Party?
2. What order as to cost and compensation?
5. Point No.1:- To prove the case of the Complainant, Complainant produced proof affidavit. In proof affidavit, the Complainant narrated the entire facts as stated in the complaint. Even if notice from the Forum is received by the Opposite Party, the Opposite Party did not appear in Forum and deny the contentions of the Complainant. The contentions of the Complainant is unchallenged. So it lead to an inference that there is deficiency of service on the part of Opposite Party. Even if the Complainant did not produce any document to prove the contract and not produced any witness to prove the cash dealing, the case of the Complainant is proved by affidavit. It is up to the Opposite Party to deny the allegations. But it was not done. So the Forum came to a conclusion that there is deficiency of service on the part of Opposite Party and the Complainant is entitled to get the remedy as prayed for. But here the Complainant did not produce any witness to prove the case. The Complainant is given sufficient time to produce witness to prove the case beyond doubt. But he failed to produce any witness or any document to prove the case undoubtfully. The Complainant did not send any notice to the Opposite Party prior to the filing of this complaint. Any how the Opposite Party is exparty we are in the opinion that there is a deficiency of service from the part of Opposite party and the point No.1 is decided accordingly.
6. Point No.2:- Since the Forum found deficiency of service from the side of the Opposite Party, he is liable to pay compensation to the Complainant and the Complainant is entitled for Rs.28,000/- as cost for the further service of the borewell in order to fix the motor and Rs.5,000/- as compensation to the mental agony and financial loss to the Complainant, and Rs.1,000/- as cost of the proceedings. The point No.2 is found accordingly
In the result, the complaint is partly allowed and the Opposite party is directed to pay Rs.28,000/- (Rupees Twenty Eight thousand) only as further service charge and Rs.5,000/- (Rupees Five thousand) only as compensation and Rs.1,000/- (Rupees One thousand) only as cost of this proceeding. The Opposite Party shall pay the amount within one month from the date of receipt of this order.
Pronounced in the open Forum on this the 28th day of January 2014.
Date of filing:08.03.2013
