Tamil Nadu

South Chennai

CC/311/2015

M/s.M.Vivek Kumar - Complainant(s)

Versus

M/s.Thirumalai, Prop.Thirumalai Borewell Services - Opp.Party(s)

Party in Persion

28 Nov 2022

ORDER

                                 Date of Complaint Filed : 23.07.2015

                                 Date of Reservation      : 15.11.2022

                                  Date of Order               : 28.11.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                 :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,          : MEMBER II

 

CONSUMER COMPLAINT No. 311/2015

MONDAY, THE 28^th DAY OF NOVEMBER 2022

M.Vivek Kumar,

S/o. Thiru. T. Maharajan,

No.11/5, Sivagnanam Road,

Thiyagaraya Nagar,

Chennai – 600 017.                                                                                                                    …  Complainant

 

-Vs-

Thirumalai,

Prop: Thirumalai Borewell Services,

No.55, Arcot Road,

Chennai – 600 087.                                                                                                               ...  Opposite Party

 

******

Counsel for the Complainant           : Party in Person

Counsel for the Opposite Party        : M/s. K.P Suresh Kumar

 

        On perusal of records and after hearing the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Party, we delivered the following:

ORDER

Pronounced by member-I, Thiru. T.R. Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Party to pay a sum of Rs.34,500/- being the additional expenses incurred by engaging other agency to complete the work inefficiently done by him and to pay a sum of Rs.1,00,000/- as compensation for the mental agony caused to him.

2.     The averments of Complaint in brief are as follows:-

                The case of the Complainant is that he had entrusted digging of 7 Inch Borewell in his premises to a depth of 200 feet, to the Opposite Party. A quotation dated 28.05.2014 has been given by the Opposite party and he had agreed to pay the charges as per the quotation and had paid an advance amount of Rs.12,000/- to the Opposite Party. It was informed by the Opposite Party that the rigging unit on drilling reached rock level to a depth of 68 feet and he was able to install 7 Inch PVC casting pipe upto 65 feet to avoid sliding of the mud inside the borewell. There was gap of 3 feet between the rock level and mud level, when the same was pointed out, the Opposite Party had failed to give support to the said three feet gap. Thereafter with the help of compressor the borewell work was completed upto 200 feet by the Opposite Party.Reposing faith on the Opposite Party, he had paid and settled entire amount of Rs.45,900/- to the Opposite Party. On the next day of the completion of work he had measured through a rope and the depth was found only upto 65 feet instead of 200 feet, when immediately informed the Opposite Party, he pacified by saying the mud might have slided and closed the borewell and assured to set right the defect. He was further advised by the Opposite Party to dig the borewell again with compressor and to fix 5 inch PVC pipe to entire depth. The Opposite Party also demanded for further charges. The Opposite Party would either drilled till the rock base was found or in the alternate would have placed pipes in the borewell, to avoid the mud sliding. Having fixed 7 inch pipe upto 65 feet instead of 68 feet resulted in mud sliding, which is nothing but deficiency in service. He had caused a notice dated 07.06.2014 to the Opposite Party to set right the defect, in spite of receipt of the same the Opposite party had not responded, hence a legal notice dated 16.06.2014 was sent to the Opposite Party calling him to rectify the defects, failing which the same would be done through some other agency and the expenses and damages to be recovered from him, the Opposite had failed to respond his demand. Hence he had entrusted the work to one Kalai Bore Well Services and completed the work with an additional expenses of Rs.34,500/-, which amount the Opposite Party is liable to pay along with Compensation for mental agony suffered and deficiency of service. Hence the Complaint.

3.   Written Version filed by the Opposite Parties in brief are as follows:-

         The Submissions of the Opposite Party are that as per the quotation dated 23.05.2014 given by him the borewell was carried out and the same was completed. The Rock surface was found when the drilling reached about 65 feet and 7 inch PVC pipe was installed upto 65 feet and thereafter drilling work was done till 200 feet at the request of the Complainant and as per his quotation. It was advised to install 5 inch PVC slotted pipe from 65 feet to 200 feet in the entire rock surface to avoid bolders, losse rock and mud sliding, for which the Complainant had told him that none of the neighbours in that area installed pipes in the rock surface, only till the mud and clay surface they had installed pipes, hence he had completed the work and issued a bill dated 31.05.2014 for a sum of Rs.46,325/- and the same was received from the Complainant. The Complainant had informed him that he did not want to spend money on unnecessary expenditure by installing PVC pipe in the rock surface. After completion of work on 31.05.2014, after 2 or 3 days later the Complainant had informed that the dig had closed after pipe level and asked to clear the dig once again and on his request went to the spot and found that the dig was closed by itself due to various causes like bolder falling, mud sliding which are all act of nature. Thereafter had to visit twice to do flushing work, as his hard work and efforts to drill the hard rock surface, at the decision of the Complainant, he had to do with fuel cost alone. Even thereafter it was advised to install 5 inch slotted PVC pipe in order to save the dig, the Complainant had informed that he would take care of the situations and sent back the Opposite Party. After that he had received the summons of this Hon’ble Commission and on perusal of the Complaint, the Complainant had filed with misrepresentation of facts and on false allegations, as nobody can judge the nature, under the earth, where the rock surface could reach and loose soil could reach the water taste even the geological report also fails lot of times in borewell cases. As per quotation rock surface reached at 65 feet and the payment was made accordingly, hence denied the allegation made about it was informed that the rock surface reached 68 feet. Measurement of depth of the Borewell with the help of rope was false and imaginary, as the Complainant was present and witnessed the work till completion, hence the allegations regarding depth of the borewell was 65 feet instead of 200 feet as well as he had agreed to set right the defect and fix 5 inch PVC pipe to the entire depth and demand of further charges, were denied. Measuring the depth of the borewell by long rope was not a correct way and if any weighted substances along with long rope sent into the dig, when caught in between would have caused disturbances to close the dig. The Complainant had not acted as per his advise of installing 5 inch slaughter pipe in the rock surface and he cannot take advantage of his own wrong. When he had visited and carried out the flush out work to remove the mud sliding in the rock surface, entrusting of work to Kalai Borewell, was denied. Without admitting, from the Bill dated 04.06.2014 issued by the said Kalai Borewell services, it would prove that only flushing out of mud from rock surface was carried out from 65 feet to 200 feet and not any drilling done, further only the Complainant ha installed 5 inch PVC slaughter pipe, if at the first instance the complainant would have followed his advise of installing 5 inch slaughter pipe, the mud falling or what so ever would have been prevented and hence deny allegations made in this regard. Further there was discrepancy regarding the length of 5 inch PVC pipe installed mentioned in the Bill of the alleged Kalai Borewell. The Complainant had approached with unclean hands, the complaint has been filed only to grab money illegally for no fault on him. Considering the mental agony and hardship suffered by him, the Complaint to be dismissed with exemplary cost.

4.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-13  were marked. The Opposite Parties submitted his Proof Affidavit and Written Arguments. On the side of the Opposite Parties, no documents was marked.

Points for Consideration:-

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled?

Point No.1:-

        It is an undisputed fact that a 7 inch Borewell was dig at Complainant’s premises by the Opposite Party. It is also not in dispute that the Complainant had paid entire amount as per the quotation dated 23.05.2014 given by the Opposite Party and the same was admitted by the Opposite Party.

         The Disputed facts are that the Opposite Party had drilled rock level to a depth of 68 feet and he was able to install 7 Inch PVC casting pipe upto 65 feet and there was gap of 3 feet between the rock level and mud level, when the same was pointed out, the Opposite Party had failed to give support to the said three feet gap, which resulted in the closure of the dig made from 65 feet to 200 feet. Having fixed 7 inch pipe upto 65 feet instead of 68 feet resulted in mud sliding, which is nothing but deficiency in service. Though the Opposite Party had agreed to set right the defects, had demanded further charges and not responded to his notices and information about engaging another agency to carry out the rectification work. Hence the Complainant was made to avail service of another Agency, who had rectified by Flushing out the mud closure with Compressor unit and installed 5 Inch Slotted pipes form 65 feet to 200 feet, at an additional cost of Rs.34,500/-.

The Contentions of the Complainant were that he was informed by the Opposite Party that the rigging unit on drilling reached rock level to a depth of 68 feet and he was able to install 7 Inch PVC casting pipe upto 65 feet to avoid sliding of the mud inside the borewell, but gap of 3 feet between the rock level and mud level, was not supported by the Opposite Party, even when the same was pointed out. As the Opposite Party had completed upto 200 feet by the Opposite Party, reposing faith on the Opposite Party, he had paid the agreed sum of Rs.45,900/- to the Opposite Party. On the next day of the completion of work he had measured through a rope and the depth was found only upto 65 feet instead of 200 feet, when immediately informed the Opposite Party, it was replied that the mud might have slided and closed the borewell and assured to set right the defect. He was further advised by the Opposite Party to dig the borewell again with compressor and to fix 5 inch PVC pipe to entire depth, for which the Opposite Party had also demanded for further charges. If the Opposite Party would have drilled till the rock base was found or in the alternate would have placed pipes in the borewell, the mud sliding would not have happened. Fixing of 7 inch pipe upto 65 feet instead of 68 feet resulted in mud sliding, which is nothing but deficiency in service. The Opposite had not responded to the notice dated 07.06.2014 to the Opposite Party wherein he was called upon to set right the defect, in spite of receipt of the same as well as the legal notice dated 16.06.2014 sent to the Opposite Party calling him to rectify the defects, failing which the same would be done through some other agency and the expenses and damages to be recovered from him, the Opposite had failed to respond his demand. Hence he had entrusted the work to one Kalai Bore Well Services and completed the work with an additional expenses of Rs.34,500/-, which amount the Opposite Party is liable to pay along with Compensation for mental agony suffered and deficiency of service. Further contended that if at all the Opposite Party would have advised to install 5 inch slotted pipe, he would have mentioned in the quotation dated 23.05.2014 itself, hence the contention made in the written version is false. Initially 7 inch PVC pipe measuring to the length of 68 feet has been installed and as the Opposite Party had quoted only for 65 feet, 3 feet length of 7 Inch Pipe was negligently cut off, by the Opposite Party, as admitted in the written version that 7 inch PVC pipe was installed only upto 65 feet. The Opposite Party had refused to rectify the work at his own cost and demanded for further charges, in spite of his negligent act and as flushing using air pressure or over pumping the bore well would help to improve the yield of bore well and cleaning impurities from the bore well, hence flushing out twice the mud closed from 65 feet to 200 feet and advised to install 5 inch PVC pipe were false. Through another agency, namely, Kalai Borewell service, he had re-bored from 65 feet to 200 feet with Compressor drilling unit and had installed 5 inch pipe above the rock level from 56 feet to 200 feet.

The Contentions of the Opposite Party were that the Complainant had filed with misrepresentation of facts and on false allegations, as nobody can judge the nature, under the earth, where the rock surface could reach and loose soil could reach the water taste even the geological report also fails lot of times in borewell cases. As per quotation rock surface reached at 65 feet and the payment was made accordingly and it was not informed that the rock surface reached 68 feet. Measurement of depth of the Borewell with the help of rope was false and imaginary, as the Complainant was present and witnessed the work till completion, hence the allegations regarding depth of the borewell was 65 feet instead of 200 feet as well as he had agreed to set right the defect and fix 5 inch PVC pipe to the entire depth and demand of further charges, were denied. Measuring the depth of the borewell by long rope was not a correct way and if any weighted substances along with long rope sent into the dig, when caught in between would have caused disturbances to close the dig. The Complainant was advised to install 5 inch slaughter pipe in the rock surface and he cannot take advantage of his own wrong. The Opposite Party had visited and carried out the flush out work to remove the mud sliding in the rock surface, entrusting of work to Kalai Borewell, was denied. Without admitting, from the Bill dated 04.06.2014 issued by the said Kalai Borewell services, it would prove that only flushing out of mud from rock surface was carried out from 65 feet to 200 feet and not any drilling done, further only the Complainant had installed 5 inch PVC slaughter pipe. If the complainant would have followed his advise given at the first instance of installing 5 inch slaughter pipe, the mud falling or what so ever would have been prevented. Further there was discrepancy regarding the length of 5 inch PVC pipe installed mentioned in the Bill of the alleged Kalai Borewell. The allegations were not supported by any engineer/expert report and the Bill given by Kalai Borewell services marked as Ex.A-6 is not admissible and the gap of 3 feet between 65 feet to 68 feet as alleged was not proved by the Complainant.

Considering the contentions made and on perusal of the Exhibits marked in support of the Complaint, it is clear From Ex.A-1, the quotation dated 23.05.2014 the Opposite Party had not advised/mentioned about 5 inch slaughter pipe to be installed after reaching the rock level and it was advised to install 7 inch PVC pipe upto 65 feet, without foreseeing the rock surface from the ground level in the premises of the Complainant. Further Ex.A-1 has been quoted by the Opposite party with full confidence and not approximately, to the Complainant, when that is so, claiming advised at the first stance to install 5 inch PVC pipe from 65 feet to 200 feet and denying Ex.A-6, the Bill dated 04.07.2014 of Kalai Bore well Service, who had rectified the work, are not legally sustainable, as the Opposite Party had not responded to Ex.A-4, notice dated 07.06.2014 issued by the Complainant and Ex.A-5, Legal notice dated 16.06.2014 sent to the Opposite Party. Hence it is clear that the Opposite Party had dig upto 68 feet, whereupon had reached the rock surface and though he was aware of the depth of 68 feet drilled to reach the rock level, had failed to cover with 7 inch pipe of 3 feet gap, i.e, from 65 feet to 68 feet and it is clear that taking advantage of Ex.A-1 had installed 7 inch pipe till 65 feet, though drilled upto 68 feet, as if the drill reached 65 feet in the rock surface and 7 inch pipe installed till 65 feet as contended by the Opposite Party, there is no possibility or chance of mud sliding and closure of the Borewell. Further, from Ex.A-6 it is clear that the mud from 65 Feet to 200 feet has been flushed out using Compressor unit and thereafter 5 Inch slotted pipe has been installed by the other Agency, namely Kalai Borewell Services, which additionally cost a sum of Rs.34,500/- to the Complainant. Hence we hold that the Opposite Party had acted negligently in not rectifying the defect of the Borewell of the Complainant, by taking advantage of Ex.A-1 and caused serious mental agony and monetary loss to the Complainant. Therefore, we are of the considered view that the Opposite Party had committed deficiency of service. Accordingly Point No.1 is answered.

Point Nos.2 and 3:-

          As discussed and decided Point No.1 against the Opposite Party, the Opposite Party is liable to pay a sum of Rs.34,500/- being the additional amount paid to other Agency to complete the work of Borewell of the Complainant and also to pay a sum of Rs.10,000/- towards deficiency of service and mental agony caused to the Complainant, along with Cost of Rs.3,000/-, within 8 weeks from the date of receipt of this order. And the Complainant is not entitled for any other relief/s. Accordingly Point Nos.2 and 3 are answered.

In the result the Complaint is allowed in part. The Opposite Party is directed to pay a sum of Rs.34,500/- (Rupees Thirty Four Thousand Five Hundred) being the additional amount paid to other Agency to complete the work of Borewell of the Complainant and also to pay a sum of Rs.10,000/-(Rupees Ten Thousand Only) towards deficiency of service and mental agony caused to the Complainant, along with Cost of Rs.3,000/- (Rupees Three Thousand Only), within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest @ 9% per annum from the date of receipt of this Order till the date of realization

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 28^th of November 2022. 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                           PRESIDENT

 

List of documents filed on the side of the Complainant:-

Ex.A1	23.05.2014	Copy of Quotation
Ex.A2	25.05.2014	Advance Receipt for Rs.12,000/-
Ex.A3	31.05.2014	Final settlement invoice No.2670 cum receipt for Rs.32,400/-
Ex.A4	07.06.2014	Letters with courier receipts
Ex.A5	16.06.2014	Copy with acknowledgement
Ex.A6	04.07.2014	Copy of Bill with Receipt
Ex.A7	25.08.2014	Returned cover with lawyer’s notice
Ex.A8	19.09.2014	Letter with courier receipt
Ex.A9	-	Photocopy of Borewell
Ex.A10	-	Photocopy of Borewell
Ex.A11	-	Photocopy of Borewell
Ex.A12	-	CD of Borewell
Ex.A13	-	Copy of Booking of cash bill slip

List of documents filed on the side of the Opposite Party:-

                                                                           NIL

 

 

S. NANDAGOPALAN                  T.R. SIVAKUMHAR                     B.JIJAA

         MEMBER II                                MEMBER I                         PRESIDENT