KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 664/2016
JUDGMENT DATED: 22.09.2022
(Against the Order in C.C. 21/2012 of CDRF, Kasaragod)
PRESENT:
SRI.T.S.P. MOOSATH : JUDICIAL MEMBER
SRI. RADHAKRISHNAN K.R. : MEMBER
APPELLANT:
The District Officer, Ground Water Department, Civil Station, Vidyanagar P.O., Kasaragod District.
(By M. Nizarudeen, Addl. Govt. Pleader)
Vs.
RESPONDENT:
K. Sathyan, S/o K.A. Karunakaran, Periyath Kundamkuzhy, Kundamkuzhy P.O., Kasaragod Taluk.
(By Adv. Vinod Kumar S.)
JUDGMENT
SRI.T.S.P. MOOSATH: JUDICIAL MEMBER
The 1st opposite party in C.C. No. 21/2012 of the Consumer Disputes Redressal Forum, Kasaragod, in short the District Forum, has filed the appeal against the order passed by the District Forum by which he was directed to pay Rs. 1,00,000/- and costs of Rs. 8,000/- to the complainant.
2. The averments contained in the complaint are, in brief, as follows: The complainant is having 70 cents of property in Panayal Village of Hosdurg Taluk. He had dug an open well and constructed a water tank and a small house in the said property. Complainant planted coconut, pepper, cashew nut plants, mango and jack-fruit plants in the property. Further the complainant used to cultivate Nendran banana plantains, local variety plantains and tapioca every year. The water in the well was found insufficient to irrigate the crops. So, he decided to dig a bore-well in the property and for that purpose he approached the opposite party and filed an application on 25.04.2011. The opposite party visited the property of the complainant, conducted a survey and marked a site feasible for the construction of bore-well. The opposite party informed the complainant that the site marked on the north eastern side of the property of the complainant is technically feasible for bore-well construction. Later, on 28.06.2011 the opposite party issued a letter to the complainant to remit an amount of Rs. 28,250/- after deducting the subsidy amount on drilling charges. But when the complainant approached the opposite party to remit the amount, they did not receive the amount. Even though the complainant approached the opposite party several times, they are not ready to accept the amount. Later, after making a complaint to the District Collector, opposite party received the amount from the complainant. The complainant had been waiting for the opposite party to dig the well. But they failed to dig the well. Thus, there was deficiency of service on the part of the opposite party. Due to the laches of the opposite party the crops of the complainant were drooped and are on the verge of dry. Hence the complaint.
3. The 1st opposite party filed version raising the following contentions. There was no deficiency in service on the part of the opposite party. The complainant did not turn up to remit the amount even after repeated demands by the opposite party. At the time of depositing the amount by the complainant there were four other applications pending in which the amounts were already remitted. Moreover, there was an order from the Director of the opposite party for drilling at different draught affected areas of Wayanad and Kozhikode District under draught scheme. The rig was shifted to Kozhikode District as per the order of the Director and after its work in Kozhikode it was shifted to Wayanad. The rig is allotted mainly to implement government works and so preference has to be given to the Govt. works. There is no laches on the part of the opposite party and the complainant is not entitled to get any relief against the opposite party.
4. The 2nd opposite party who was subsequently arrayed as the opposite party filed version raising more or less the same contentions raised by the 1st opposite party in the version filed by him.
5. The complainant was examined as PW1 and Exts. A1 A10 series were marked on his side. The Expert Commissioner was examined as PW2 and the report filed by him was marked as Ext. C1. No oral evidence was adduced by the opposite party and Exts. B1 to B11 were marked on their side. Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order. Aggrieved by the order passed by the District Forum the 1st opposite party has filed the present appeal.
6. Heard both sides. Perused the records.
7. The parties are referred according to their status/rank in the complaint.
8. The first prayer in the complaint was to give a direction to the opposite party to dig a bore-well in the property of the complainant within a date fixed by the District Forum. Admittedly, as per the direction of the District Forum in I.A. No. 63/2013, the opposite party had dug the bore-well in the property of the complainant. So, the said prayer need not arise for consideration. The second prayer in the complaint was to direct the opposite party to pay compensation to the complainant for the deficiency of service on their part. As found by the District Forum, the material question to be considered is whether there is any laches/delay on the part of the opposite party in digging the bore-well in the property of the complainant, whether there is deficiency in service on the part of the opposite party and whether the opposite party is bound to pay compensation to the complainant. The District Forum found that there is delay on the part of the opposite party, deficiency of service on the part of the opposite party and directed the opposite party to pay Rs. 1,00,000/- to the complainant and Rs. 8,000/- as costs to the complainant.
9. The counsel for the appellant submitted that the finding of the District Forum that there is delay on the part of the opposite party in digging the bore-well in the property of the complainant and that there is deficiency of service on the part of the opposite party is not correct. He pointed out that the complainant remitted the requisite amount only on 12.12.2011 and the complaint was filed within 40 days from that date, on 23.01.2012. There was no agreement to dig the bore-well within one month and no time limit is stipulated for digging the well. It is to be noted that the complainant has submitted the application before the opposite party on 25.04.2011. It is admitted by the opposite party that as per the request of the complainant they conducted a survey in the property of the complainant and marked a site as technically feasible for the construction of the bore-well and that was intimated to the complainant on 17.06.2011. On 28.06.2011 they had issued Ext. A5 letter to the complainant to remit Rs. 22,250/- after deducting the subsidy amount. According to the opposite party, the complainant did not turn up to remit the amount and he remitted the amount only on 12.12.2011. So, according to the opposite party only because of the fault or laches on the part of the complainant himself, delay in remitting the amount, the delay was caused for digging the well. Thereafter, because of the administrative and technical reasons further delay occurred. It is the case of the complainant that even though he approached the opposite party several times to remit the amount, they did not accept the amount and at last he filed a complaint before the District Collector which was forwarded to the opposite party. Thereafter they received the amount from him. As observed by the District Forum, PW1 deposed that the opposite party deliberately delayed the receipt of the amount from him. It is to be noted that the complainant was eagerly waiting for the digging of the well by the opposite party in his property, at the earliest, for using the water for irrigating the cultivations made by him in the property. In these circumstances, there is nothing to disbelieve the testimony of PW1 that he was always ready to remit the amount, but the opposite party deliberately delayed the payment by not accepting the amount from him and they received the amount from him only after he filed a complaint before the District Collector. So, the contention of the opposite party that the delay from June 2011 to 12.12.2011 was due to the delay/laches of the complainant in remitting the amount is not sustainable. It is the case of the opposite party that the delay after 12.12.2011 was due to technical and administrative reasons. It is stated by the opposite party that rig was allotted mainly to implement government works and so preference has to be given to the government works. There was order from the Director of the opposite party for drilling at different draught affected areas of Wayanad and Kozhikode District under draught scheme and the rig was shifted to those places. It is also stated by the opposite party that at the time when the complainant remitted the amount there were four other applications pending in which the amounts were already remitted. The District Forum considered the documents produced by the opposite party and found that on 12.12.2011 when the complainant remitted the amount no application from private parties were pending and works as per all those applications for digging the well were completed on or before 01.12.2011. The District Forum also found that on a perusal of the documents produced by the opposite party it can be found that the digging vehicle was available in Kasaragod till 29.12.2011 and so the opposite party could have very well dug the bore-well in the property of the complainant. The District Forum found that on a perusal of Ext. B1, it can be seen that the said document was created for the purpose of the case and it was not maintained in the ordinary course of day to day affairs. The District Forum rejected the contention of the opposite party that at the time of remitting the amount, the complainant had executed a bond stating that he will not claim compensation or interest for the amount in case of execution of work and settlement of accounts were delayed due to the administrative reason and found Ext. B10 is a document falsely fabricated for the purpose of filling up the lacuna. The District Forum also considered the other contentions raised by the opposite party for the delay, one by one and found that those contentions are not sustainable. The District Forum found that there was delay, there was deficiency of service on the part of the opposite party. Admittedly, the complainant remitted the amount before the opposite party on 12.12.2011. The opposite party dug the well in the property of the complainant only on 05.02.2013, that too after the order of the District Forum, Kasaragod. Considering the evidence, facts and circumstances of the case, we consider that there is no reason/ground to interfere with the finding of the District Forum that there is deficiency of service on the part of the opposite party.
10. The counsel for the appellant submitted that the District Forum directed the opposite party to pay Rs. 1,00,000/- as compensation to the complainant, the amount claimed by the complainant in the complaint, without any basis and it is on the higher side. Complainant had taken out an expert commission and commissioner had visited the property and filed report which was marked as Ext. C1. In Ext. C1 report the commissioner had estimated the loss caused to the complainant as Rs. 61,320/-. It is reported by the commissioner that insufficient watering badly affected the crops cultivated in the property of the complainant. He reported that several Nendran banana plantains and local variety plantains were affected due to insufficient watering and the same were drooped due to lack of water. The Commissioner when examined as PW2 deposed that the competent authority for making the yield test is Geological Department and he has not sought the help of Geological Department. As pointed out by the counsel for the appellant the damages to the crops may be caused due to several reasons other than lack of water such as nature of the soil, the diseases affected to the crops, lack of sufficient manure etc. Further it is reported by the expert commissioner that at the time of his visit he found that there was water in the open well situated in the property of the complainant to a depth of 1 m. In these circumstances, on the basis of the report of the Expert Commissioner (PW2) it cannot be concluded that the plantains in the property of the complainant were drooped and dried wholly due to the scarcity of water and that is the sole reason for the damages caused to the cultivation. The scarcity of water might have affected the growth and yield of the crops cultivated in the property of the complainant and the complainant might have suffered some financial loss because of that. Considering all these facts, we consider that the amount of Rs. 1,00,000/- ordered by the District Forum as compensation is on the higher side and it has to be reduced. We find it just and reasonable to direct the opposite party to pay Rs. 25,000/- as compensation to the complainant. So, the order passed by the District Forum is to be modified to that effect. The District Forum directed the opposite party to pay Rs. 8,000/- as costs to the complainant, which is just and reasonable, especially considering the fact that the complainant had to pay batta to the expert commissioner. So, no interference is called for regarding the costs ordered by the District Forum.
In the result, the appeal is partly allowed and the order passed by the District Forum is modified by reducing the compensation ordered by the District Forum to be paid by the opposite party to the complainant to Rs. 25,000/-.
Parties are directed to suffer their respective costs.
The appellant/opposite party had deposited Rs. 25,000/- before the District Forum, Kasaragod, as per the order of this Commission while granting the stay. The respondent/complainant is permitted to obtain release of the said amount by filing proper application before the District Forum, to be adjusted/credited towards the compensation ordered as above.
At the time of filing of the appeal, the appellant/opposite party had deposited Rs. 25,000/-. The respondent/complainant is permitted to obtain release of the amount of Rs. 8,000/- from that amount, by filing proper application to be adjusted/credited towards the amount ordered as costs. Appellant is permitted to obtain release of the balance amount, by filing proper application.
T.S.P. MOOSATH : JUDICIAL MEMBER
RADHAKRISHNAN K.R. : MEMBER
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