16.8.08<br /> Sri. K.Gopalan, President<br /> <br /> <br /> This is a complaint filed under section 12 of the consumer protection Act for an order directing the opposite party to pay Rs.48, 000/-.<br /> The cases of the complainant in brief is as follows:<br /> The well that attached with the bath room of the complainant’s house is having a depth of 24 koles. Up to 14 koles from the bottom constructed with laterite stone and then leaving the 4 koles free without construction, on the reason that there is rock enough to protect the sides, proceeded the construction of a further 5 koles. There was soil dropping from the portion left out from laterate construction during the very next rainy season. This was immediately brought to the notice of the Mestri who had constructed the well. He came one day and after inspection told the complainant that the well lowered a little but need not be worried since it has no connection with water level. But soil dropping repeated within short intervals. Mestri was again contacted but he told him that it was not possible to get down to the well and do repair works. It can only be constructed after the rainy season is over. After few days complainant brought one Kunhiraman he advised that construction with laterite stone is necessary in the vacant portion but that can be done only after 3 to 4 months. After three four days on 7th July with a huge sound the well crumbled down seven to eight koles. This was happened only due to the explosion of construction around the rocky area. After the incident the opposite party came one day and left the place saying that work can be started in January. The situation was very dangerous and the beam with the bathroom seems to be collapsed at any time. Complainant was compelled to do immediate construction and forced to spend <br /> Rs.48, 000/- thereby. Opposite party has not visited the place during construction work of about 20 days. Complainant prays for compensation.<br /> After receiving notice opposite party appeared and filed version denying the allegations and averments in the complaint. The contention of the opposite party in <br /> Brief are as follows:<br /> It is one Surendran who had done the construction work with the laterite stone and he had done only digging work. The work of the well had been completed before 4 ½ years back and the construction were as per the strict direction of the complainant. The well collapsed due to the natural calamities. The well of the complainant has situated on the steep slope of a hill. There had been a lot of incidence of natural calamities due to the heavy rain during that season. The incident took place after 4 years of completion of work. Opposite party also denied that he had been intimated several times with the incidents of soil drops on the side of the well. Opposite party is not liable to make good of losses sustained by the complainant. Complainant is not entitled to any of the relief prayed in the complaint.<br /> On the above pleadings the following issues have framed for consideration:-<br /> 1. Whether the complaint is bad for non-jointer of necessary parties?<br /> 2. Whether there is any deficiency in service on the part of the opposite party?<br /> 3. Whether the complainant is entitled for any relief prayed in the complaint?<br /> 4. Reliefs and costs.<br /> Evidence consists of the oral testimony of PW1, DW1, Exts.A1 series, X1, C1 and B1,<br /> Issue Nos. 1 to 4<br /> The main allegation of the complainant is that his well constructed with laterite stone collapsed due to deficiency in construction on the part of the opposite party. Opposite party contended that his part of the work was only digging well and construction with laterite stone had been performed by one Surendran Mestri. It has come in evidence that Surendran has obtained Rs.29, 000/- from the hands of the complainant. Involvement of Surendran is evident and his name should have been brought in party array since he is a necessary party. More over complainant was not able to establish that the construction work with laterite stone was done by the opposite party. Opposite party has a specific case that he has performed only digging work. Opposite party has taken this contention from the very outset. He has stated in his version that the construction work with laterite stone was done by Surendran Mestri. Complainant has not taken steps to impleads Surendran as opposite party.<br /> Apart from the oral testimony of complainant as PW1 he has produced certain photographs which are marked as Exts.A1 series. Photographs are showing a collapsed well. But it is not possible to ascertain what extent the damage caused to well by looking into the photographs. Commission was taken in the case and his report marked as Ext.C1. The Commissioner inspected the well after the completion of repair work. But it cannot be assumed from his report Ext.C1 that up to 7th steps ie. 7 koles down repair work has been done with new laterite stones. Ext.C1 states “<br /> 7 kole<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> These facts alone cannot help to decide the case. Opposite party has a case that the collapse of well happened not due to deficiency of construction work but due to the natural calamity under heavy monsoon. It has come in evidence by the admission of the complainant in cross examination corroborating with Ext.X1 that the complainant has received Rs.4, 000/- from Relief Fund as compensation distributed by Govt. for affected parties of natural calamities. Ext.X1 order dt.27.1.06 published by Tahsildar, Kannur listed the name of the complainant as No.42 for the damage of well entitled to get Rs.4000/-.<br /> The complainant’s application for relief before the Tahsildar entertains only on that ground of monsoon hit damages. If the complainant received such an amount of financial assistance out of relief fund from the government that itself is an evidence to prove that ‘well’ happened to be collapsed due to the natural calamity. If so Ext.B1’Mathrubhumi’ the national daily in Malayalam reported the news of collapse of complainant’s well on 3.7.05 thus “<br /> <br /> <br /> <br /> <br /> <br /> This report makes much clearer that the damage caused to the well is due to natural calamity. In the light of the above facts we are of the opinion that the complainant t is not entitled to get any damage as prayed in the compliant. Thus the issues are found against the complainant.<br /> In the result, the complaint is dismissed but without cost.<br /> <br /> Sd/- Sd/- <br /> President Member <br /> <br /> APPENDIX<br /> Exhibits for the complainant<br /> A1 series. Photographs<br /> <br /> Exhibit for the opposite party<br /> B1,Mathrubhumi paper dt.3.7.05.<br /> Exhibits for the witness<br /> C1.Commission report<br /> Exhibits for the court<br /> X1.Authenticated copy of the document in fled No.G1.5160/05 of the Tahsildar,Kannur.<br /> Witness examined for the complainant<br /> PW1.Complainant<br /> Witness examined for the opposite party<br /> DW1.Abdullakunhi<br /> <br /> /forwarded by order/<br /> <br /> Senior Superintendent<br /> <br /> Consumer Disputes Redressal Forum, Kannur<br /> <br /> <br />