Tamil Nadu

StateCommission

A/563/2022

Sampath Proprietor M/s Rathna Borewell - Complainant(s)

Versus

S.Parthasarathy - Opp.Party(s)

28 Feb 2023

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :        Hon’ble Thiru Justice R. SUBBIAH                PRESIDENT

               Thiru R   VENKATESAPERUMAL                   MEMBER                        

                      

F.A.NO.563/2022

(Against order in CC.NO.10/2020 on the file of the DCDRC, Chengalpattu)

 

DATED THIS THE 28^th DAY OF FEBRUARY 2023

 

S. Sampath

S/o. Sundara Naiker

Proprietor of M/s. Rathna Borewell                       M/s. R. Pushpalatha

No.43, Medavakkam Main Road                                 Counsel for

Adambakkam, Chennai – 600 008                              Appellant /Opposite party

 

                                                         Vs.

S. Parthasarathy

Plot No.56 & 57, Sairam Street                             

Thiruvalluvar Nagar, Adambakkam                                In person

Chennai – 600 088                                                    Respondent/ Complainant

 

        The Respondent as complainant filed a complaint before the District Commission against the opposite party praying for certain direction. The District Commission allowed the complaint. Against the said exparte order, this appeal is preferred by the opposite party praying to set aside the order of the District Commission dt.2.5.2022 in CC. No.10/2020.

 

          This petition is coming before us for hearing finally today.  Upon hearing the arguments of the counsel appearing for appellant and the Respondent in person, perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order in the open court:

 

JUSTICE R. SUBBIAH ,  PRESIDENT  (Open court)

 

1.      The opposite party before the District Commission is the appellant herein.

 

2.        The case of the complainant before the District Commission is that the complainant had availed the services of the opposite party for digging of the borewell for 300 feet deep.  The opposite party agreed for the work and supplied the motor, materials like PVC pipes, clamps, hose pipes etc.  Totally the complainant had spent Rs.75,669/- toward digging of the borewell including all incidental expenses.  But from the beginning the output of water from the borewell was mixed with some sort of clay soil.  Again as per the advise of the opposite party, the complainant did the flushing of borewell at the cost of Rs.8300/-.  Inspite of the same there was no output of water from the borewell.  Due to the defective nature of the PVC pipes supplied by the opposite party, the borewell could not yield good output of water.  Thus alleging negligence on the part of the opposite party, after issuance of legal notice, the complainant filed a complaint before the District Commission praying for a direction to the opposite party to rectify the defects in the borewell or to refund the amount spent @ Rs.75,669/- alongwith compensation of Rs.25000/- and cost. 

 

3.       The   Appellant/ opposite party, though served, remained absent before the District Commission, hence an exparte order was passed in favour of the Respondent/ complainant, by holding that there is deficiency in service on the part of the opposite party and directed the opposite party to set right the defect in the borewell and to pay a sum of Rs.10000/- towards compensation alongwith cost of Rs.5000/-.  Aggrieved over the said order, the opposite party had filed this appeal, praying to set aside the order passed, and remand back the matter for fresh disposal.

4.       The learned counsel for the appellant/ opposite party had submitted      that as required by the complainant the opposite party dug the borewell upto 300 feet.  The output of the water was good for three months.  After three months, when the complainant complained about the defect, the opposite party attended the work of flushing the borewell without even collecting charges.  The complainant did not hear the advise of the opposite party from the beginning.  If the defective materials were used there would not be a chance of water flow from the borewell.  There is no deficiency in service on their part.  The non-appearance before the District Commission is neither willful nor wanton.  If an opportunity is provided, the opposite party has a fair chance of succeeding the case.  Thus, prayed for an opportunity to contest the case on merit. 

 

5.       We have heard the learned counsel appearing on for the appellant and the Respondent appeared in person.

 

6.       Having considered the submissions, we are of the considered opinion that deciding the matter after considering the defence of the otherside would always be justifiable.  Accordingly, we are of the considered opinion that a chance may be given to the appellant/ opposite party to agitate their right on merit.  Eventhough on considering the lethargic attitude of the opposite party in not appearing before the District Commission, we are inclined to allow this appeal on imposing certain cost, and by way of order dt.24.2.2023   we have directed the appellant/ opposite party to deposit a sum of Rs.3000/- towards cost to the Legal aid account of the State Commission, on or before 27.2.2023, which was complied with.  Hence this appeal is allowed today by remanding back the complaint to the District Commission for fresh disposal according to law. 

 

7.       In the result, the appeal is allowed by setting aside the order of the District Commission, Chengalpattu in C.C.No.10/2020 dt.2.5.2022, and the matter is remanded back to the District Commission, Chengalpattu, for fresh disposal according to law on merit.

Parties are directed to appear before the District Commission, Chengalpattu on 28.3.2023, for taking further instructions. On which date itself, the appellant/opposite party shall file not only the vakalat, but also the written version, proof affidavit, and documents if any. The District Commission is directed to dispose of the complaint, within three months, according to law on merit.  

 The amount deposited, by the appellant, shall abide the order of the District Commission, in the original complaint, on merit.

 

 

   R   VENKATESAPERUMAL                                                      R. SUBBIAH

               MEMBER                                                                              PRESIDENT