BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 290/2005 Filed on 10.05.2005

Dated : 30.10.2010

Complainants:

1. Dr. B.V. Geetha Rajeev, W/o A. Rajeev, residing at “Greeshmam”, Hospital Junction, Parassala, Neyyattinkara Taluk, Thiruvananthapuram.

2. A. Rajeev, S/o A. Appakutty(late), residing at ..do..

(By adv. G. Jayakumar)

Opposite parties:

1. S.T. Loganathan, Reena Tube Wells, Borewell Contractors, 1^st Floor, Near NMC College, Marthandam-629165.

2. S.R. Kumar, ..do..

3. M. Justin, S/o late P. Muthuswamy(Thomas), Cheriakattuvilai, Vettooni, Marthandom P.O - 629 165.

(By adv. S. Dharmapalan Nair)

This O.P having been heard on 31.08.2010, the Forum on 30.10.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainants sought the service of the opposite parties for boring a deep well for the purpose of irrigating their property, that opposite parties 1 & 2 are borewell contractors and 3^rd opposite party is the workman employed by opposite parties 1 & 2, that an agreement was made by both parties and rate of drilling was fixed to 350 ft, that the drilling cost of the tube well was fixed at Rs. 50/- per feet for the initial 200 ft, Rs. 55/- per feet for the next 100 feet and Rs. 60/- per feet for the further upto 400 ft, that the diameter of the tube well was fixed at 7 inch as per the advice of the opposite parties, that thereupon the oral agreement opposite parties made a survey on the land and pointed out a spot for boring, that drilling operation was done by opposite parties on the said spot upto 350 ft and thereupon opposite parties told the complainants that bottom 288 ft of the well is covered by rock and hence PVC pipe need not be fitted in that portion, that PVC pipe was fitted only upto 62 feet from the top of the well coming in touch with the rocky part, that after completion of the bore and installation of the PVC some sort of leakage was felt. On inspection 3^rd opposite party clarified that it is not due to breakage of PVC, but due to a small hole that has been made on the PVC. Complainant paid Rs. 24,810/- vide bill dated 01.06.2004 issued by 1^st opposite party. Thereafter complainant remitted the required amount to KSEB and fitted electric motor and pump set, that on 21.11.2004 complainant was provided with supply of electrical energy vide consumer No. 18353 by KSEB. When the motor and pump was operated, it was found that the water flow was interrupted as the pump was not functioning properly. Further the water flowing out showed mud, silt and rocky particles, that the matter was informed to opposite parties and 3^rd opposite party came and inspected the defect, that breakage of the PVC pipe was ascertained at a depth of 52 feet, thereupon 3^rd opposite party directed the complainant that PVC pipe was further needed to be installed to a further depth in the bore well covering the portion where the PVC pipe was not fitted and gave an estimate of Rs. 26,750/- for the rectification work. The demand of additional money is illegal. The entering of mud and rocky particles into the PVC pipe and motor happened only due to sheer negligence of the opposite parties as the PVC pipe was broken while it was rashly installed. There is absolute deficiency in service from the part of opposite parties. It is further submitted by the complainant that they have spent Rs. 50,000/- for irrigation and electrical fittings which are rendered useless now, that the complainant has suffered damage to the tune of Rs. 50,000/- due to non-use of the bore well and inactivity incidental thereto. Hence this complaint to direct opposite parties to pay an amount of Rs. 23,000/- with interest towards the cost of material and repairing charges, Rs. 25,000/- towards loss sustained due to non-functioning of the bore well, Rs. 10,000/- towards physical and mental agony and Rs. 5,000/- towards costs.

Opposite parties filed counter stating that complaint is not maintainable either in law or on facts. Opposite parties never had discussed with the 2^nd complainant as averred in the complaint, that there was no such contract and no survey was done, that no suggestion was given to the complainant as to the rate of fixing PVC for 350 feet length by opposite parties 1 & 2, that 3^rd opposite party is not the workman of opposite parties 1 & 2, that drilling operation was not done by opposite parties, but by one Kumaran, Bore well vehicle engaged by 3^rd opposite party on the request of the 2^nd opposite party, that complainants never paid the opposite parties a sum of Rs. 24,810/-. 3^rd opposite party never gave any advice as or estimate as averred in the complaint, that bore wells are perfectly functioning. The statement expenses is absolutely false, that there is no deficiency in service on the part of the opposite parties. Hence opposite parties prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether there was defect in the construction of tube well?

2. Whether the complainants are entitled to get the amount claimed in the complaint?

3. Whether the complainants are entitled to compensation and costs?

In support of the complaint, complainant has filed affidavit in lieu of chief examination and Exts. P1 to P9 were marked. Complainant has not been cross examined by the opposite parties. In rebuttal opposite parties have not filed affidavit or any documents.

Points (i) to (iii):- It has been the case of the complainants hat complainants availed the service of the opposite parties for boring a deep well for the purpose of irrigating their property and rate of drilling was fixed by oral agreement and boring was made to 350 ft. Ext. P1 is the bill dated 01.06.2004 issued by Reena Tube Wells, the 1^st opposite party. Opposite parties have contended in their version that the drilling operation was not done by opposite parties, but by one Kumaran. On perusal of Ext. P1 the bill is signed by the Managing Partner of the 1^st opposite party and bill amount comes to Rs. 24,810/-. Ext. P2 is the copy of the advocate notice dated 15.01.2005 issued by the complainant to opposite parties claiming damages. Ext. P3 and P4 are postal receipts and acknowledgement cards. Ext. P5 is the reply notice issued by opposite parties 1 & 2. As per Ext. P5 opposite parties 1 & 2 have denied all the engagements of bore welling. While Ext. P1 is seen issued by 1^st opposite party. It is contended by opposite parties 1 & 2 that 3^rd opposite party approached opposite parties 1 & 2 and collect a quotation for drilling a bore well and that they were not knowing as to whom the quotation was given. It is pertinent to point out that nowhere in Ext. P1 mentioned any quotation rather it is mentioned as a bore well. Ext. P6 is the reply notice to Ext. P2 issued by 3^rd opposite party. In Ext. P6 3^rd opposite party admitted that he is a plumber by profession and has done bore welling works for the complainants. Admittedly, by Ext. P6 3^rd opposite party has drilled 350 ft depth but below 52 feet depth drilling was done in rock, so 62 feet of PVC pipe was inserted to avoid silting. The counter is seen filed by opposite parties 1 to 3. The very case of the complainant is that 3^rd opposite party is the workman employed by opposite parties 1 & 2. If 3^rd opposite party is not the employee of opposite parties 1 & 2, the version need not be filed by opposite parties 1 to 3 jointly. 3^rd opposite party has admitted the drilling works to the extent of 350 ft and complainant has paid Rs. 24,810/-. In para 7 of the version it is averred that complainants never paid opposite parties a sum of Rs. 24,810/- and the opposite parties never furnished any bill. On perusal of Ext. P3, Ext. P1 is not issued to 3^rd opposite party for arranging a bank loan as averred the counter filed by opposite parties 1 to 3. Ext. P1 does not show that it is issued to be produced before any bank or for loan purpose. Further it is to be noted that as per version 3^rd opposite party taking advantage of access with Reena Tube Wells some how obtained letter pad without seal or signature. If that be so opposite parties 1 & 2 would definitely initiate a police case against 3^rd opposite party. Further on comparison of the signature seen in Ext. P1 and signature seen in vakalath of 1^st opposite party and in counter show that there is similarity of signature seen in Ext. P1 with other admitted signature. 3^rd opposite party admitted in Ext. P6 reply notice that as wanted by complainants he has given an estimate of Rs. 26,750/- for inserting 5” PVC pipe inclusive of its cost after removing the silt. Ext. P7 is the said estimate. On perusal of Ext. P7 it does not bear either name or signature of the issuer. Ext. P8 series consists of cash bills issued by Chokkalinga Nadar & Co. to Mr. Rajeev. In his affidavit 2^nd complainant has stated that the above said tube well's defect was cured by Aloysius Gomez on 15.02.2008 for which complainants had incurred a cost of Rs. 23,000/-. The bill issued by Aloysius Gomez to the complainant is marked as Ext. P9. Complainant has not been cross examined by the opposite parties, as such the affidavit in lieu of chief examination filed by the complainants remain uncontroverted, nor did opposite parties file affidavit to substantiate their contention in version. By virtue of Ext. P1 it is apparent that opposite parties have executed the work of tube well for complainants on accepting Rs. 24,810/- towards boring charges. Though complainant has not sought expert opinion regarding the nature of work done by opposite parties, by virtue of Ext. P9 it is seen that the defect in the tube well was corrected on 15.02.2008 by Donann Bore Wells for which complainant has incurred a cost of Rs. 23,000/-. Opposite parties never challenged this aspect nor challenged the contention in the affidavit in support of the complaint filed by complainants. On going through the averments in the complaint and affidavit as well as the documents produced, we find there was defect in the construction of tube well, to the extent of which we find there is deficiency in service on the part of 1^st and 2^nd opposite parties and complainant is entitled to get the repair cost of Rs. 23,000/- from opposite parties 1 & 2 along with a compensation for mental agony and strain.

In the result, complaint is allowed. 1^st and 2^nd opposite parties are directed to pay Rs. 23,000/- towards additional cost of rectification along with Rs. 5,000/- towards compensation within two months from the date of receipt of this order failing which Rs. 23,000/- will have interest at the rate of 9%. Parties shall bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of October 2010.

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

jb

C.C. No. 290/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Rajeev

II COMPLAINANT'S DOCUMENTS :

P1 - Bill dated 01.06.2004 issued by Reena Tube Wells.

P2 - Copy of advocate notice dated 15.01.2005 issued by the

complainant to opposite parties.

P3 - Postal receipts.

P4 - Acknowledgement cards.

P5 - Reply notice issued by opposite parties 1 & 2.

P6 - Reply notice dated 08.03.2005.

P7 - Estimate Form.

P8 - Cash bills issued by Chokkalinga Nadar & Co. to Rajeev.

P9 - Bill issued on 15.02.2008

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT

jb