KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 135/2017

JUDGMENT DATED: 29.03.2023

(Against the Order in C.C. 12/2015 of CDRF, Wayanad)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI.RANJIT. R                                                                   : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

The Proprietor, Sree Seethadevi Borewells, Pulpally Post, Sulthan Bathery Taluk.

                            (By Adv. Rajmohan C.S.)

                                                Vs.

RESPONDENT:

Abdul Salam M.Y., S/o Mohammed, Mannarathodukayil House, Mathamangalam, Naiketty Post, Sulthan Bathery.

(By Adv. D.R. Rajesh)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

The opposite party in C.C. No. 12/2015 of the Consumer Disputes Redressal Forum, Wayanad (District Forum for short) has filed this appeal against the order dated 30.09.2016 directing the appellant to return                  Rs. 1,10,000/- with interest @ 12%, to pay Rs. 5,000/- as compensation and    Rs. 3,000/- as costs. 

2.  The averments contained in the complaint are that the complainant had entrusted the opposite party to dig a bore well in his land who completed the work in January 2013.  While doing the digging process up to 105 feet the normal procedure was adopted and thereafter the work was stopped on finding the soil as loose and further digging was done by resorting to galaxy drilling up to 160 feet where rock was found.  But the opposite party made the complainant believe that if further digging is effected till the depth of 140 ft, clear water will be available.  Accordingly the well was dug at a depth of 300 ft.  The complainant paid Rs. 1,10,000/- as charges to the opposite party.  The complainant installed a motor and started pumping water, but instead of getting clear water mud water came.  It was stated by the opposite party that clear water will be available within a few days.  But clear water never came though the pumping continued for several weeks. The complainant realized that the complications arose on account of the faulty installation of pipes by the opposite party.  When the complainant contacted the opposite party for rectification he assured that he will rectify the defects.  But he failed to rectify the same for more than one year.  Ultimately the complainant had to dig another bore well in his plot by spending a sum of Rs. 1,53,000/-.  The complications in the well dug by the opposite party arose only due to the defect in the service rendered by him for which the complainant had to incur loss to the tune of Rs. 1,53,000/- which is sought to be realized along with Rs. 1,00,000/- as compensation. 

3.  The opposite party filed version admitting that he had carried out the work. According to him the work was carried out in the month of October 2012 and not in January 2013.  The work never stopped and it is also incorrect to say that the complainant had paid him Rs. 1,10,000/-.  The complainant had paid only Rs. 40,000/- the balance Rs. 64,200/- still remains unpaid.  There was no deficiency in service.  So the complainant is not entitled to get any compensation or costs.  Hence he sought for dismissal of the complaint. 

4.  The complainant had examined himself as PW1and Exts. A1 & A2 were marked.  CWs 1 & 2 were examined and Exts. C1 & C2 marked.  OPW1 was examined on the side of the opposite party and Ext. B1 marked. 

5.  The District Forum after considering the contentions of both parties directed the appellant to return Rs. 1,10,000/-, Rs. 5,000/- as compensation and Rs. 3,000/- as costs.  The appellant had assailed the judgment of the District Forum on the ground that the District Forum did not properly appreciate the exact cause for intrusion of mud and water in the bore well.  The expert witness had given evidence that complication may arise if somebody puts stones in the bore well.  It is also stated by the expert that complication may arise if any crack is caused to the rock after fixing the pipes.  According to the appellant, the District Forum had reached the conclusion on the basis of assumptions. Hence the appellant would seek for setting aside the order passed by the District Forum. 

6.  Heard the counsel for the appellant and the respondent.  Perused the records received from the District Forum.  The evidence let in by the complainant as PW1 would convincingly prove that the water drawn from the well dug by the appellant was not in a usable condition as mud water alone came out from the well.  According to him, the above situation arose due to the defective service rendered by the appellant.  Since the well constructed by the appellant is found unsuitable another bore well was constructed in the very same property of the complainant from which he is getting clear water. The complainant had caused production of Ext. A1 which is the quotation submitted by the appellant.  The signature contained in Ext. A1 is admitted by the appellant during his examination before the District Forum as OPW1.  Ext. A1 is dated 21.01.2013.  So the stand taken by the appellant that the digging took place in 2012 does not appear to be correct.  Even the quotation for the proposed well was signed by the appellant in the month of January 2013.  So the contention raised by the appellant that well was dug in the property in 2012 is apparently incorrect.  The learned counsel appearing for the appellant would submit that the well was constructed in the location as pointed out by the complainant.  So no liability could be fastened on the appellant with regard to the alleged complication arose in this case.  Apart from the testimony of PW1 the appellant had examined CWs 1 & 2.  CW1 had inspected the well and he tendered evidence that complication was caused on account of three reasons.  The first reason is improper fixation of the pipes.  The second one is rupture of the pipes installed and the third cause is the flow of mud and rock pieces through the water resources.  The first and second causes may arise on account of the faulty digging of the well and the third cause might be due to natural flow of water.  But the evidence on record would go to show that the complainant had constructed a new well at a distance of 12.9 meter from the disputed well inside the very same compound.  So the possibility of natural flow of water and drawing mud water into the well is too remote.  In addition to the evidence let in by CW1 the complainant had also examined an expert witness, as CW2 who is a Junior Hydro Geologist attached to the Ground Water Department, District Office, Wayanad.  He had issued Ext. C2.  He had inspected the disputed well and tendered evidence that it is not possible for inserting a dummy into the well beyond the depth of 40.5 m as the well is fully filled up with mud.  According to him there are four reasons for causing the defects.  The possibility of causing flow of muddy water into the well on account of the flow of ground water in the plot is not possible on the reason that the complainant could construct another well in the very same property and he is drawing clear water from the same.  The complainant is not an expert.  The appellant being a person who is doing the process of digging of well, it is up to him to effect proper measures and see that the bore well is constructed in a proper location and ensure availability of clear water so as to enable the complainant to use the same.  On evaluating the evidence let in by the complainant and the expert witnesses as CW1 & CW2 coupled with Exts. C1 and C2 it could be seen that the entire complication arose on account of the improper digging of the well.  Having agreed to construct a bore well after getting the market rate for the work it was his responsibility to find the feasible area for the well and construct the well in a scientific manner.  There is deficiency of service on the side of the appellant and hence loss was caused to the complainant.  The District Forum had appreciated the matter in its correct perspective and reached at a proper conclusion.  The learned counsel for the appellant would submit that the primary burden is upon the complainant to prove that digging of the well was improper and there was deficiency of service.  According to the learned counsel for the appellant the complainant has failed to establish his case that there is a possibility of arising this complication on account of natural flow of ground water in the location.  This possibility is ruled out on the reason that the complainant had constructed another well within the very same plot from which he is getting clear water.  On an evaluation of the entire evidence on record it is found that there is deficiency of service on the side of the appellant and that is why the entire complication arose.  The contention raised by the appellant that the complainant had paid Rs. 40,000/- only also does not appear to be correct.  If the said contention is correct one would expect the appellant initiating action for realization of the balance amount.  He never initiated any steps for realization of the alleged balance.  So the stand taken by the complainant that he had paid Rs. 1,10,000/- to the opposite party for digging of the bore well appears to be more probable.  Though the appellant caused production of Ext. B1, the genuineness of the same is disputed.  Execution of Ext. B1, the alleged agreement executed between the complainant and appellant is not established.  So the District Forum has rightly declined to accept Ext. B1 to reach any conclusion.  We do not find any reason to interfere with the order passed by the District Forum since the District Forum had appreciated the evidence in its correct perspective and reached at a proper conclusion.  There is no merit in the appeal.  Hence the appeal is only to be dismissed.

In the result, the appeal is dismissed.  Parties shall bear their respective costs. 

AJITH KUMAR D.  : JUDICIAL MEMBER

RANJIT. R                : MEMBER                                      

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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