DOF.21.2.09

           DOO. 7/7/10

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the 7^th  day of July    2010

CC/57/2009

P.K.Abdul Azees,

Rtd.Technical supervisor (BSNL),

‘AHRAZ’, New Mahe.                                    Complainant

(Rep. by Adv.V.P.Mahammood)

Rajan,

Proprietor of KERA Engineers,

Chalakkara, M ahe.                                          Opposite Party

(Rep. by Adv.V.K.Rajeev)

O R D E R

Smt.M.D.Jessy, Member

            This is a complaint filed under section 12 of the consumer protection act for getting an order directing the opposite party to prevent the flow of rainwater into the well, to clean the well and to pay an amount of Rs.50, 000/- as the expenses already been incurred with future expenses.

            The averment in the complaint is as follows: “the complainant is the owner in occupation of the house with his family namely ‘AHRAZ’. This house was erected by the complainant before 15 years. While he was thinking of avoiding chance of leakage from the top concrete in future, the opposite party approached the complainant and represented that he will do the work by providing slanting Zink sheet roofing over the terrace. As his proposal happened to be a coincidence to his desire he obliged for the same, for the same amount Rs.90, 000/- he estimated. The amount was paid by the complainant in 4 installments during various stages of work. The complainant was very careful only as to its accomplishment with out any nuisance of falling roof water in the well and also with safely. But contrary to the assurance as to the undertaking the opposite party enabling the flow of water directly to the well. When the complainant brought this hazards to the notice of opposite party that such an alignment of sloping will result into the flowing of roof water in to the well and that will result health problems the opposite party told the complainant that a drop of roof water will not be peeped into the well as the verge of the roofing will be provided with spouting and that it will drain it through PVC pipes. So complainant paid the entire amount in the month of April 2008 itself. The opposite party left the place with out providing the said spouts to avert the flow of contaminated rain water into the well. In the last rainy season the rainwater from the Zink roofing directly peeped into the well and consequent to its contamination the complainant and his family fallen ill and compelled to stop drawing of water from the well. Legal notice sent on 3.11.08. But he was not ready to carry out the necessary work. Hence this complaint.

            After receiving the complaint forum sent notice to opposite party. Opposite party appeared through counsel and filed version denying the allegation of the complainant.  The allegation of the complainant that he would undertake the work and they mutually agreed and hence opposite party was given the contract for the said construction for a sum of Rs.90,000/- etc. are denied by the opposite party. Complainant approached the opposite party and he entrusted the fabrication work with precise specifications to erect roofing over his terrace with Zink sheet and G.I pipes to hold the same. But nothing was said about the spouts and the amount was fully paid by the complainant after completion of work. According to opposite party nothing is agreed apart from the fabrication of the false roofing between complainant and opposite party. Hence the averments in the complaint that opposite party had agreed to fix the spouts and pipes to collect the rain water from the seems of the roof and to let the water down in the desired area etc. are totally denied by the opposite party. The remuneration received from the complainant by the opposite party was only to erect the Zink roofing on the top of the house of the complainant. No additional remuneration charged by the opposite party for attaching spouts or drawn pipes to the Zinc roofing.

On the above pleadings the following issues were raised for consideration.

1. Whether there is any deficiency of service on the part of opposite party?

2. Whether the complainant is entitled to get compensation? If so what is the quantum?

3. Relief and cost.

            The evidence consists of oral testimony of complainant as PW1 andExts.A1 to A6.There is no oral or documentary evidence on the side of opposite party.

Issue Nos. 1 to 3

            Admittedly complainant entrusted the opposite party the work of providing slanting zinc sheet roofing over the terrace. The case of the complainant is that at a time when he was thinking of doing some work to avoid any chance of leakage form the top concrete of his house in future the opposite party approached him and represented to undertake the work of providing slanting zinc sheet roofing over the terrace with the support of necessary GI pipe erecting and girdles. As opposite party’s proposal happened to be a coincidence to his desire complainant agreed with the opposite party’s proposal and accepted the estimate of opposite party itself. Complainant was particular only of its accomplishment without any nuisance of falling roof water in the well and also with its safety. The main allegation of the complainant is that the zinc roofing erected by the opposite party contrary to the assurance in such a way that the sloping of roof would result in flowing of roof water in to the well.

            Opposite party on the contrary contended that it is complainant who approached him and entrusted the fabrication work with precise specifications to erect roofing over his terrace with Zinc sheet and GI pipe and nothing was said about spouts and draining of the water through PVC Pipes.

            Complainant filed Chief affidavit intone with the pleadings attempting to reiterate what is already stated in the complaint. Complainant produced documents Exts.A1 to A6. Ext.A4 to A6 marked subjected to proof. Complainant has not taken steps to prove Exts.A4 to 6. Ext.A1 is the lawyer notice, Ext.2 is acknowledgement and Ext.A3 proves that complainant has sent legal notice. The content of the notice Ext.A1 is same as that of the pleadings. There is no mention about Ext.A4, 5 and 6 in the affidavit. Complainant in his cross examination deposed that there was no written contract between complainant and opposite party. Except the affidavit evidence there is nothing before the Forum to understand what all terms and conditions had agreed upon. Complainant has not even taken out “Commission to bring the facts of existing position before the Forum. Complainant could not even prove the main allegation that the sloping of roof would result in flowing of roof water in to well. He could have at least examine some witness to prove that the rain water has flown into well and the opposite party was asked to complete the work as is agreed upon. He has deposed in cross examination that “ t\m«o-k-b¨vXp 3.12-.07 \mWv. AXn\p ap³t] certificate of posting Bbn I¯-b-¨n-cp-¶p. IqSmsX ]e-B-fp-I-tfm-SpT Cu work complete sNbvXp-X-cp-hm³ ]d-ªn-cp¶p“. That means complainant contacted opposite party through many persons for the purpose of completion of the work. He could have examined some of those persons as witness.  Complainant has not discharged his obligation to prove the terms and conditions of the contract work undertaken by the opposite party. Opposite party has contended that there was no provision for attaching spouts on the seems of the roofing so as to collect rainwater from the roof and drain it out through PVC pipes. Complainant failed to take pain to place reliable evidence before the Forum so as to establish his averments. On going through the available evidence on record it s difficult to find deficiency in service on the part of opposite party.

            In the light of above discussion we are of opening that complainant have miserably failed to establish his case. Thus issues 1 to 3 are found against complainant.

            In the result, complaint is dismissed. No cost.

                                     Sd/-                          Sd/-                            Sd/-

President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1& 2.Copy of the lawyer notice sent to OP & Postal AD

A3.Reply notice

A4.Copy of the notice issued to Proprietor, Kerala Engineers, Mahe dt.9.6.08.

A5.Copy of receipt issued by               “             “

A6.Photographs

Exhibits for the opposite party: Nil

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party: Nil

                                                                        /forwarded by order/

                                                                        Senior Superintendent

Consumer Disputes Redressal Forum, Kannur