DATE OF FILING : 14.09.2009

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 25th day of February, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.175/2009

Between

Complainant : P.K.Supran S/o Kunjuraman,

Palackal House,

Anakkuzhi Puthuval,

Vellaramkunnu P.O,

Idukki District.

(By Adv:Sijimon.K.Augustine)

And

Opposite Parties : 1. Raju Joseph,

Proprietor,

Mailickal Borewells,

now residing at

Mailickal House,

Chempakappara P.O, Pallikkanam,

Idukki District.

(By Adv: Biju Vasudevan)

2. The Secretary,

All Kerala Borewell Drilling Contractors

Association,

Idukki District Committee,

Kattappana P.O,

Idukki District.

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Complainant is a small scale cardamom farmer. He decided to drill a bore well in his property in order to meet his household affairs and irrigation of his cardamom land, under the subsidy of the Spices Board. The Ist opposite party contacted with the complainant and made belief that he had sufficient equipments and labourers to drill the bore well for the complainant. In order to get subsidy from the Spices Board, the drilling work would be completed on or before 31^st March 2009. The Ist opposite party who is a member of the 2^nd opposite party association, assured that the work will be completed before 22.03.2009. There was an agreement created between the parties for drilling the bore well and the opposite party agreed to construct the bore well with a drilling charge of Rs.57 per feet with 5" PVC @ 190 per feet and a batta of Rs.500/-. The agreement was created on 15.03.2009 and an advance of Rs.5,000/- was received from the complainant by the Ist opposite party. The complainant collected the amount for the construction of the bore well, by availing a loan from the Amaravathy Service Co-operative Bank with almost good faith that he would receive subsidy from the Spices Board. Eventhough the opposite party assured the completion of the drilling work on or before 22.03.2009, the opposite party never did the same. The complainant several times contacted the Ist opposite party for demanding the same, but the opposite party avoided the complainant. As a result of the non-construction of the bore well before 31.03.2009, the complainant lost the subsidy from the Spices Board and also failed to irrigate the cardamom plants in his land. At last the opposite parties agreed to construct the borewell or to return the advance amount within 20.04.2009. The act of the opposite party is illegal and the petition is filed for getting compensation to the tune of Rs.40,000/- for the loss sustained to the complainant and also for a direction to construct a borewell as per the terms and conditions of the agreement.

2. The opposite party filed a written version and admitted that the complainant and the opposite party created an agreement on 15.03.2009 for drilling a borewell in the complainant's property and Rs.5,000/- received as advance from the complainant. At the time of creating the agreement it was told to the complainant about requirement of wider passage for the entry and exit of heavy vehicle for borewell drilling purpose. The complainant agreed to the terms and conditions of the agreement. On 18.03.2009 the Ist opposite party with the vehicle and the labourers arrived at Vellaramkunnu – Anakkuzhy Bhagom road and it was revealed that the complainant's residence is at 1 ½ kms. away from there. There was only jeep road to the property of the complainant. So the opposite party and their men stopped the vehicle at the road and approached the complainant and told that the vehicle cannot reach the property of the complainant. A 407 lorry can only operate the machine for drilling the bore well in the property of the complainant and that type of vehicle was not available for him. He also told that he can receive the advance amount and the matter can be stopped. But the complainant agreed that the borewell can be drilled after getting machinery in a 407 vehicle. After that the complainant contacted several times to the opposite party over phone. The opposite party told that a 407 lorry fitted with the machine will come in February, 2010 and the borewell can be build on that month. The same was agreed by the complainant. So there is no deficiency in service on the part of the opposite party.

3. The point or consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to ?

4. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 and P2 marked on the side of the complainant and the oral testimony of DW1 and Ext.R1 marked on the side of the opposite parties.

5. The POINT :- Complainant and the opposite party agreed to construct a borewell in the property of the complainant as per the agreement created on 15.03.2009 which is marked as Ext.P1 and advance also received for the same. The complainant decided to drill the borewell expecting the subsidy from the Spices Board. It was needed to complete the work before 22.03.2009 for getting the subsidy. But the opposite party never completed the work on or before that day. As per the complainant the agreement was created at the residence of the complainant and the opposite party visited the property and signed in the agreement. There is an estate road goes near to the property of the complainant which is Vellaramkunu – Anakkuzhy tar road. There is only 20 meter from that road to the complainant's property. If the vehicle with the machinery for drilling the borewell parks at the estate boundary, the drilling can be done at the complainant's property. PW3 is the neighbour of the complainant. A borewell was constructed in PW2's property also. PW2 was also with the complainant at the time of creating the agreement. At the time of creating the agreement, the opposite party told that the borewell would be constructed within 7 days. The residence of PW1 is about 20 meter from Vellaramkunnu estate road. The lorries and buses are going through that way if any traffic block comes in the main road. There is another borewell constructed near to the property of PW1. The opposite party agreed to construct the borewell within 30^th March, 2009 to PW1. The opposite party agreed to PW2 to construct the bore well within 30^th of March, but they constructed only in April 2009.

6. The opposite party has constructed several borewells near to that area. PW2 also made an agreement with the opposite party to construct a borewell. As per the agreement it was agreed to construct the same within 30^th of March. But the opposite party constructed the same only in April. So many persons created agreement with the opposite party for constructing the same. But the opposite party never did the same for them and the advance money was returned by the opposite party with the guarantee of PW2. But they never gave any complaint to any other authorities for the delay caused by the opposite party for drilling the borewell. The opposite party was examined as DW1. The original agreement created between the complainant and the opposite party is marked as Ext.R1. DW1 deposed that on 18.03.2009 DW1 with his men and vehicle reached at Vellaramkunnu – Anakkuzhy Bhagom road for drilling the bore well, they understood that the complainant is residing 1 ½ Kms. away from the road, which is a jeep road, heavy vehicle will not go to that place through that road. So it was told to the complainant to receive back the advance amount paid by the complainant. DW1 has spent Rs.2,000/- on that day when he approached with his vehicle and men. The complainant agreed to drill the borewell after getting a 407 lorry which is fitted with the machine in March 2010. On cross examination of the learned counsel for the complainant, DW1 deposed that he is not having borewell machinery to drill the bore well. He is doing the work by the persons from Tamil Nadu. He is not having any office at that place. There is a common form for agreement for the borewell contractors association and the agreement is signed in that common form. That common forms can be obtained to anybody. The matters written in the last portion of the given agreement was not written by the opposite party. DW1 never agreed to complete the work within 22.03.2009.

7. It is admitted by the opposite party that they have received Rs.5,000/- as advance and an agreement was created between the complainant for drilling a bore well and as per Ext.P1, copy of the agreement produced by the complainant, it is written in the bottom portion of the agreement that

" 22.03.2009 ". But as per theExt. R1 agreement produced by the opposite party, in which there is nothing written about like that. It means that the date of work is written by the complainant himself in the photostat copy of the Ext.R1 original agreement. Ext.R1 is not challenged by the complainant. It is also deposed by the opposite party that the last line was not written by him. So in the original agreement there is no date of work. So we think that the opposite party never agreed to drill the borewell within a specified date. But the advance amount was received by the opposite party and they should construct a borewell as per the agreement. So we think it is fit to direct the opposite parties to construct a borewell in the property of the complainant within one month. The opposite party is also ready to construct the same in March 2010 because he will get a machinery fitted 407 lorry in March, which will reach to the property of the complainant.

Hence the petition allowed. The opposite party is directed to construct a borewell in the property of the complainant or return Rs.5,000/- with 12% interest from the date of Ext.R1 agreement to the complainant within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 25^th day of February, 2010

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

I agree SMT.SHEELA JACOB(MEMBER)

Sd/-

I agree SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - P.K.Supran

PW2 - Saji Thomas

On the side of Opposite Parties :

DW1 - Raju Joseph

Exhibits:

On the side of Complainant:

Ext.P1 - Photocopy of Agreement dated 15.03.2009 between the

complainant and the Ist opposite party

Ext.P2 - Photocopy of Cardamom Registration Certificate dated

6.02.2009 issued by the Tahsildar

On the side of Opposite Parties :

Ext.R1 - Original Agreement between the complainant and the Ist

opposite party