BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.S. Chinnaiah,B.A.,B.L.,I/C President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Friday the 11th day of April, 2008
C.C.No. 95/07
Between
P. Nageswara Reddy, S/o. Subba Reddy, Age 47 years, Yearramattam Village, Kurnool Dist. … Complainant
Versus
Proprietor,Sri Manikanteswari Bore wells,
Opposite Samithi Ofice, K.G. Road, Athmakur, Kurnool District. - 518422.
… Opposite party
This C.C coming on before us for final hearing on 27-03-2008, Sri P. Siva Sudarshan, Advocate Kurnool for the complainant and of Sri. A. Sivaramaiah avocate, Kurnool for the opposite party and having stoodover consideration till this day, this forum delivered the following.
ORDER
(Sri. S. Chinnaiah, I/C President)
1. This is a complaint filed under section 12 of C.P.Act, 1986 by the complainant to direct the opposite party to refund a sum of Rs.25,000/- with interest at 24% p.a from 07-06-2005 till date of payment, grant a sum of Rs.70,000/- towards loss of crop and Rs.5,000/- towards mental agony and costs of the complaint.
The brief facts of the complaint herein are that the complainant approached the opposite party for digging a bore well in his filed in Sy.No.136 of Yerramatam Village limits. On 07-06-2005 the opposite party has collected a sum of Rs.25,000/- towards advance from the complainant. Before digging of bore well the geologist verified the land of the complainant and also issued a report. On 16-06-2005 the opposite party has dug the bore well in the land of the complainant to a depth of 120 feet and sufficient water is available. But the staff of the opposite party negligently installed the casing pipes. Hence casing pipe is damaged. But without verifying the defects the staff of the opposite party went away from the field. Now the bore well is not useful to the complainant due to negligent attitude of the opposite party staff. Hence the complainant approached the opposite party and demanded to rectification of defects and also refund of the balance amount. But the opposite party negligently talked with the complainant and refused to rectify the defect and also not refunded the amount. The complainant entered into lease agreement with the formers to hope that the bore well successfully installed by the opposite party. Now lease holders are refused to take land due to non-functioning of bore well. It is stated that the complainant financially sustained loss to a sum of Rs.70,000/- . Hence the complainant issued a legal notice to the opposite party on 02-05-2007. The opposite party received the legal notice but not paid the amount. The Geologist also inspected the bore well and certified that the opposite party not properly inserted the casing pipe in bore well. It is stated that it is the clear deficiency of service on the part of the opposite party. Hence the case of the complainant.
2. The opposite party resisted the contents of the complaint contending that it is a fact that the complainant approached the opposite party for digging a bore well in his land in Sy.No.136 of Yerramattam Village and that on 07-06-2005 he has paid an advance amount of Rs.25,000/- to the opposite party. The opposite party denied the rest of the contents as mentioned in the complaint.
The opposite party states that the complainant has suppressed the material facts and he is guilty of misrepresentation. The true facts are that the complainant approached the opposite party for digging a bore well in his land in yerramattam village and the opposite party agreed to a dug a bore well of 6 ½ “ diameter @ Rs.38/- per feet and casing pipe at Rs.150/- per feet apart from labour charges of Rs.200/- per bore well. The opposite party further states that the complainant agreed for the terms and paid a sum of Rs.25,000/- towards advance on 7-6-2005 and it was also mentioned in the advance receipt if sand and gravel was found at the bore well point the opposite party is at liberty to refuse to dug the bore well as the machinery will be damaged and became useless. It is also agreed between the parties that in case water is not found in the bore well and casing pipe is not fit for removal from the bore well, the complainant has to borne the cost of the casing pipe. After agreeing all the terms and conditions the complainant paid the advance amount to the opposite party and the opposite party dug the bore well on 06-06-2005 to a depth of 120 feet and no rock was found and only sand is coming out throughout from the bore well and at the instructions of the complainant only casing pipe of 120 feet was inserted by the staff of the opposite party. But due to the loose soil i.e., sand, the bore well was collapsed and it became not possible to remove the casing pipe, and this was taken place in the presence of the complainant. The complainant requested the staff of the opposite party to dug another bore well and accordingly the staff dug another bore well to a depth of 50 feet and at the request of he complainant it was stopped. In all this opposite party dug two bore wells of 160 feet and used casing pipe of 120 feet. The opposite party further stated that the total cost of the bore wells was Rs.6080/- and cost of casing pipe is Rs.15,000/- and the labour charges for two bore wells is Rs.400/- and the total amount is of Rs.24,480/- was retained by the opposite party and Rs.520/- being the balance amount out of the advance amount of Rs.25,000/- was refunded to the complainant on the same day. The opposite party further states that the complainant kept quite for two years and got issued legal notice with all false allegations on 2-6-2007 with an oblique motive to make wrongful gain. After receiving the notice the opposite party made an appropriate reply disclosing the true facts. Therefore there is no negligence or deficiency of service on the part of this opposite party in digging or installing casing pipes therein. The allegation that the complainant sustained loss of Rs.70,000/- on account of negligence of this opposite party is specifically denied and the complainant himself selected the casing pipe and it was purchased at his choice and therefore the opposite party is not liable to pay any damages as claimed by the complainant. The opposite party also states that he is not aware of subsequent inspection by Geologist nor he was intimated about the inspection it was an after thought of the complainant to create false report for wrongful gain. Hence to dismiss the complaint with costs.
3. Heard arguments both sides.
4. The point that arises for consideration herein is : whether the complainant has proved the deficiency of service on the part of the opposite party?.
5. Exs. A-1 to A-5 are marked for the complainant. Ex.A-1 is the cash bill with terms and conditions dated 07-06-2005 for advance payment of Rs.25,00/- , Ex.A-2 is the ground water investigation, dated 19-5-2005, Ex.A-3 office copy of legal notice along with postal acknowledgement and receipt, dated 02-06-2007, Ex.A-4 is certificate issued by Rural Resources Development Co-operative Society Limited, dated 09-06-2005, Ex.A-5 Xerox copy of Pattadar pass book of the complainant.
6. Ex.B-1 is marked for the opposite party. Ex.B-1 is reply notice dated 18-060-2007 along with postal acknowledgement.
7. POINT:- We have gone through the contents of the complaint, counter filed by the opposite party, interrogatories documents filed on either side, written arguments and the material available on record.
8. The contention of the complainant is that at his request, the opposite party dug a bore-well in his land situated in Sy.No.136 of Yerramatam Village. On 07-06-2005 the opposite party collected a sum of Rs.25,000/- under Ex.A1 receipt towards advance for digging a bore-well. His next contention is that on 16-06-2005, the opposite party dug bore-well in his lands to a depth of 120 feet and sufficient water was available. The opposite party staff negligently installed casing pipe and hence the casing pipe is damaged. Without rectifying the defects, the opposite party staff went away from the field. Now, the bore-well is not useful due to negligent attitude of the opposite party staff. He approached the opposite party and demanded to rectify the defects and also refund the balance amount, but the opposite party negligently talked with him and refused to rectify the defects and also not refunded the amount.
9. On the other hand, the opposite party is admitting that the complainant paid Rs.25,000/- for digging a bore-well in his land as mentioned under Ex.A1 and that the bore-well was dug at the point shown by the complainant and that it is failure. The contract for digging the bore-well entered between the parties is subject to the terms and conditions contained under Ex.A1 dt.07-06-2005. Ex.A1 is not only contained the rates agreed between the parties for each item and contained the conditions that if sand and loose soil was found in the bore-well at the time of digging or if water was not found or if casing pipe is not able to remove, the complainant has to bear the expenses and the opposite party is not responsible. After agreeing the specific terms and conditions, the complainant has paid the advance amount. Their further contention is that the water was not found and only sand is coming out and that casing pipe inserted already was not fit for removal and that on the request of the complainant another bore-well was dug in the same land at the point shown by the complainant, which is also a failure. Their next contention is that interrogatories of the complainant to the sworn statement of the opposite party suggested at question No.4 that water was found within 70 feet while digging bore-well and that it was stopped at 100 feet due to sufficient water. If it is true and according to the complainant, if the casing pipe is not properly fixed and inspite of his requests, if the opposite party is not responded, the complainant would have got it rectified that somebody else and would have claimed the cost against the opposite party. It is most unnatural and artificial that when the bore-well was successful with plenty of water and only casing pipe is not inserted properly, the complainant kept quiet for 2 years keeping the bore-well idle and on the last day of limitation filed the complaint with all false allegations and thus there is no deficiency of service on the part of the opposite party.
10. After going through the rival contentions of both sides, we have to necessarily accept the contention of the complainant. It is not in dispute that the complainant has paid Rs.25,000/- under Ex.A1 to the opposite party for digging bore-well at the point shown by him. For that it is not in dispute that the opposite party dug the bore-well to a depth of 120 feet. It is no doubt true that the complainant filed affidavit and interrogatories of the geologist, who says that there was sufficient water available in the bore-well dug by the opposite party. It is unfortunate to note that both the parties have not taken steps to summon the geologist and examine him recording his evidence. The contention of the opposite party is that as per directions of the complainant, the bore-well was dug at the point shown by him to a depth of 120 feet and no rock was found and only sand is coming out throughout from the bore-well and at the instructions of the complainant , the casing pipe of 120 feet was inserted but due to loose soil and sand, the bore-well was collapsed and it has become not possible to remove the casing pipe and all these have taken place in the presence of the complainant. Thereafter, the complainant changed the point and requested the opposite party to dug another bore-well . Accordingly, the staff of the opposite party dug another bore-well upto a depth of 50 feet and as there is no water it was stopped on the request of the complainant. In all the opposite party dug two bore-wells of 160 feet and used casing pipe of 120 feet and total cost of bore-well was Rs.6,080/- and cost of casing pipe is Rs.15,000/- and labour charges for two bore-wells is Rs.400/- , thus total amount being Rs.24,480/- and the balance amount of Rs.520/- was refunded to the complainant and settled the amount on the same day. The complainant never raised any dispute and kept quiet for 2 years and got issued legal notice on 02-06-07 under Ex.A3 at the fag end of limitation with motive to make wrongful gain for which the opposite party got issued suitable reply under Ex.B1 and hence they have not committed any deficiency of service.
11. The complainant filed Ex.A2 i.e. ground water investigation dt.19-05-05 issued by the Geologist. Ex.A4 is certificate issued by the Rural Resources Development Co-op. Society Ltd., dt.09-06-05 that there is sufficient water in the ground level for digging bore-well. He also filed affidavit and interrogatories of geologist himself and reply given by the opposite party. As seen from the case of the opposite party, he too spent Rs.24,480/- for the digging the bore-well and returned balance of Rs.520/- to the complainant as the bore-well was not successful. It is to be noted that as per terms of Ex.A1 it is stated that if sand, is found, the complainant has to bear the risk for digging bore-well. Even though knowing the fact of existing of loose soil and sand, the opposite party has taken risk and dug bore-well and it was not successful. It is to be stated that the complainant with fond hope to irrigate his lands has approached the opposite party for digging bore-well and requested him to dug bore-well in his lands and paid Rs.25,000/-. Unfortunately, the bore-well was not successful as the casing pipe was damaged. The complainant says that due to negligent in installing the casing pipe by the staff of the opposite party, the same was damaged and so there is deficiency of service on the part of the opposite party. However, as it is not in dispute that the opposite party has taken risk and came forward to dug the bore-well at the point shown by the complainant though there is sand and it is loose soil up-to depth of 120 feet and installed casing pipe, but it was not successful. We are of the opinion that as the opposite party dug the bore-well and continued up-to 120 feet even after knowing there is loose soil and sand, he has taken that risk and casing pipe was damaged in that situation. Hence, having regard to the facts and circumstances of the case, and as the complainant is a farmer and was anxious to have bore-well in his land and that the opposite party knowing that the point shown by the complainant where the bore-well was installed consisting loose soil and sand necessarily it can be said that the opposite party is at fault and committed deficiency of service. Under the circumstances, we are satisfied that the complainant has to be compensated to some extent. Hence, under the circumstances, it is quite reasonable to direct the opposite party to refund a sum of Rs.10,000/- to the complainant. There is no privity of contract between the parties to pay interest as seen under Ex.A1 and hence we are not awarding any interest on the refund amount as directed.
12. The contention of the complainant is that he has entered into lease agreement with farmers to hope that the bore-well successfully installed by the opposite party. The lease holders are refused to take land due to non-functioning of bore-well. His next contention is that he financially sustained loss to a sum of Rs.70,000/- due to failure of bore-well. His last contention is that the geologist inspected the bore-well and certified that the opposite party has not properly inserted the casing pipe in the bore-well and hence there is clear deficiency of service on the part of the opposite party.
13. The contention of the complainant is not convincing for the reason that he has not filed any document in order to show that he entered into agreement with farmers with a fond hope that the bore-well successfully installed by the opposite party. On the other hand, it is already stated in the previous lines that geologist to whom the complainant has referred there is sufficient water at the point shown by the complainant while digging bore-well, the said geologist did not enter into witness box to substantiate his sworn affidavit filed by him and the certificate filed by the complainant under Ex.A4. Hence, virtually the complainant has not shown sufficient grounds to accede his prayer. On the other hand, there is no basis for the claim of complainant as come forward by him. Under the circumstances, the complainant is not entitled to claim Rs.70,000/- and Rs. 5,000/- towards loss of crop and mental agony.
14.. In the result, the complaint is partly allowed directing the opposite party to pay Rs.10,000/- (Rupees ten thousand only) to the complainant and also to pay Rs.250/- (Rupees two hundred and fifty only) towards cost of the complaint. This order shall be complied with, within one month from the date of receipt of the order.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum on this the 11th day of April, 2008.
Sd/- Sd/-
MEMBER I/C PRESIDENT
Appendix of evidence
Witness examined
For Complainant: For Opposite parties:
-Nil- -Nil
Documents marked
For the Complainant:
Ex.A-1. Bill dated 7-6-2005 for Rs.25,000/-
Ex.A-2. Ground water Investigation Report
Dated 19-5-2005.
,
Ex.A-3. Office copy of legal notice, dated 2-6-2007 along
with postal acknowledgement and receipt.
Ex.A-4. Certificate issued by Rural Resources Development
Co-operative Society Limited, dated 9-6-2005.
Ex.A-5. Xerox copy of Pattadar passbook of the complainant.
For the opposite parties:
Ex.B1. Reply notice, dated 18-6-2007 along
with postal acknowledgement.
By the Forum: Nil Sd/-
I/C PRESIDENT
1. Sri. P. Siva Sudharshan, Advocates,Kurnool for the complainant.
2. Sri. A. Sivaramaiah, Advocate, Kurnool for the opposite
Parties 1 & 2.
Copy was made ready on :
Copy was dispatched on:
Copy was delivered to parties
