BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 326/2014 Filed on 14.08.2014

ORDER DATED: 02.09.2016

Complainant:

K. Prasad, Krishnakripa, Pulimath P.O, Chirayinkeezhu Taluk, Thiruvananthapuram.

                             (By Adv. J. Jayakumar)

Opposite parties:

1. The Director, Ground Water Department, Jalavijana Bhavan, Ambalamukku, Kowdiar Post, Thiruvananthapuram-695 003.

2. The District Officer, Ground Water Department, Jalavijana Bhavan, Ambalamukku, Kowdiar Post, Thiruvananthapuram-695 003.

This C.C having been heard on 04.07.2016, the Forum on 02.09.2016 delivered the following:

ORDER

SMT. LIJU B. NAIR:  MEMBER

Complainant’s case is as follows: The complainant had applied for drilling a bore well as per application No. GW/DOT/1304/12 to the opposite parties.  The complainant also remitted Rs. 300/- for investigation charges on 08.08.2012.  That as per the application, the 2^nd opposite party issued a letter dated 16.10.2012, stated that they had conducted scientific investigation at the site and recommended the complainant to drill a bore well of 80 meter depth, 110 mm perimeter.  The 2^nd opposite party also issued the detailed estimate to the complainant.  That as per the above recommendation of 2^nd opposite party, the complainant had remitted Rs. 9,200/- after deducting 50% subsidiary of drilling charges, on 16.10.2012.  The complainant remitted the said amount by way of Demand draft in favour of the 1^st opposite party.  Thereafter on 04.11.2013 the opposite parties drilled a bore well at the property of the complainant, but no bit of water was find out from the bore well.  That the staff of the opposite parties have not conducted any scientific study at the complainant’s property.  It is also pertinent to note that before drilling bore well, they can easily find out the availability of water source and its exact depth.  It is also clarified that the opposite parties used dismantling type of ring which is having capacity to drill only upto 80 meters.  The complainant waited about one year by believing the words of the opposite parties and finally fully disappointed and desperated.  It is further submitted that the complainant informed to the staff of the opposite parties that complainant’s neighboring property owner conducted a feasibility of digging a borewell in his property.  But after conducting proper study, the Geologist advised that the water source was available 300 meters below and hence the neighboring property owner dropped the proposal of digging bore well.  But the staff of the opposite parties informed the complainant that there is plenty of water source available in the complainant’s property and the complainant can use the same for domestic as well as his agricultural purposes.  That after the completion of the work, no bit of water was available from the bore well.  Then, the drilling staff of opposite parties opined that no proper scientific investigation is done by the scientists of the opposite parties before digging the borewell.  So the complainant issued a notice dated 06.11.2013 to the 2^nd opposite party claiming compensation.  He also issued an application under right to Information Act to the public information officer of the opposite parties. That the public information officer of the opposite parties issued a reply to the complainant, stating that 75% of drilling charges is to be refunded to the complainant for their failure.  In the said reply, the information officer also stated that the officers of the department have no liability to compensate in case of failure on their part in scientific study.  That the opposite parties have mechanically decided to dug the bore well without conducting any scientific study, its feasibility, the availability of water source etc., even though they had collected Rs. 300/-from the complainant as scientific study.  So there is a culpable negligence, latches, dereliction of duty and deficiency of service on the part of the opposite parties and hence they are liable to pay compensation to the complainant.  The complainant had waited more than one year by believing the words of the opposite parties and hence he had suffered untold hardships and mental agony.  That, finally the complainant issued legal notices through his lawyer to the opposite parties claiming compensation.  Immediately after receipt of lawyer’s notice, claiming compensation, the opposite parties issued a letter dated 19.05.2014 along with a cheque dated 29.04.2014 for Rs. 1,325/- to the complainant for avoiding their liability.  That, in the above circumstances, the complainant is entitled to get refund of Rs. 8,175/- with interest @ 12% per annum from 16.10.2012 along with compensation of Rs. 10,000/- for the mental agony, discomfort caused to the complainant due to the dereliction of duty on the part of the opposite parties. 

Opposite parties filed version contending as follows:  The Groundwater Department is the nodal agency in the State envisaged to carry out scientific studies relating to the feasibility of groundwater abstraction structures in any location within the state.  Sri. K. Prasad, Krishna Kripa, Pulimath P.O had filed an application on 08.08.2012 for groundwater investigation for his proposed bore well drilling.  Department has carried out the groundwater investigation and site was found technically feasible to construct a bore well for drinking as well as agriculture purpose.  Accordingly the estimate for well construction as per existing rate (as on 03.10.2012) and including 50% agricultural subsidy was calculated for Rs. 9,200/- and the same was intimated to the party on 03.10.2012.  This is the usual procedure adopted for all applicants by the department.  On 16.10.2012 the complainant executed an agreement with the department agreeing therein to obey the rules and regulations of the Department in all stages of the well construction, and then remitted the construction charge of Rs. 9,200/-by way of challan.  Hence on 04.11.2013 the drilling was taken up with department rig.  But unfortunately the well turned out dry even after drilling to the entire depth of 90 metres and eventually drilling was stopped.  Department will undertake drilling operation only after the feasibility report of the groundwater scientist based on the groundwater investigation.  The investigation revealed that the site was technically feasible for bore well drilling and hence the estimate was given to remit the required fees for bore well drilling.  The estimate would not have been given, if feasibility report was not issued based on the scientific study.  Hence the apprehension of the applicant for not conducting the scientific study before bore well drilling is wrong.  Further, groundwater department, district office, Trivandrum is equipped with 4 types of drilling rigs, that suit to different terrains.  The type of drilling rig to be used at a site is selected according to the accessibility and nature of geological formation expected at depths.  Here, the dismantling type rig was preferred due to lack of accessibility to the recommended point for other rigs.  Groundwater Department is the nodal agency for groundwater investigation in the state.  No private agency is authorized to carry out investigation on behalf of department.  Even though utmost care has been taken for groundwater prospecting, our track record indicates few instances of failures.  In hydrogeological investigations the fractures present in the crystalline rocks indicates the water bearing formations which is commonly referred as aquifers.  Some ground water aquifers drains naturally across valley’s as seepages and some as base flow across the boundaries along the fracture zones.  In such complex situations the aquifers may not yield groundwater even if subsurface fracture exists.  Numbers of these failures are negligible as compared to the vast number of cases attended by the groundwater scientists over the years.  As these are technical reasons beyond our control, in such cases the department is not liable to pay any compensation.  This is actually agreed by the party in the agreement already executed by him before drilling.  Scientific approach is the basis of groundwater investigation in which hydro geological and geophysical methods (using resistivity meters) are commonly employed.  In para 5 complainant alleged that scientific study was not conducted but in para 8 he asserts that no proper scientific study was conducted.  From the above statements he admits that the scientific study was actually done but was not proper.  From his argument he might be referring to the date collection through geophysical instrument which alone is proper.  This is against the principles of groundwater investigation as collection of data through resistivity measurement alone is not the basis of groundwater investigation.  After examining the field condition, groundwater scientist alone would decide the mode of approach to be carried out in the field.  He or she has the right to decide on the type of data collection and hence not the choice of the applicant to insist geophysical data collection by making use of resistivity measurements.  Most importantly it involves a detailed hydro geological study of the terrain by scientific observation of geology, hydro geology, hydro geomorphology, drainage basin, geological structures etc.  Since the well has become dry the applicant is eligible for drywell compensation of a refund of 75% of the drilling charges and remaining 25% due to department for construction of bore well (rate as on the date of drilling).  Also there is no liability outstanding with the officials to compensate for the failure on their part in scientific study.  The department is rendering efficient services to the public with the available facilities and so there have been no negligence, dereliction of duty, latches and deficiency of service purposefully committed.  As per G.O. (Rt) No. 269/13 WRD dated 12.03.2013, the government have enhanced the drilling rates to Rs. 350/m and according to this rate, the total construction charge of bore well due to department (i.e. 25% of drilling charges) comes to Rs. 7,875/-.  Hence the eligible amount of refund to the applicant for dry well compensation is Rs. 1,325/- only which is calculated as amount remitted by party.  Total construction charge of well due to department (i.e. Rs. 9200-Rs.7875).  The same had already been refunded to the complainant.  As in the case of every scientific date, admissible deviation from the expected outcome alone had occurred.  The department is aware of such rare failures which is beyond human understanding and hence indicated in the applicant’s feasibility report.  The department has not made any intentional efforts to cause discomfort and inconvenience to the complainant.  Instead it had maintained good intention in all respects while entertaining this application.  Hence the value of complaint and the compensation claim of Rs. 18,175/- cannot be justified.  As detailed above, it is humbly submitted that no scrupulous efforts were made by the department in any states of this work.  As per the existing norms, the eligible amount of refund for dry well compensation is only Rs. 1,325/- and the department is not liable for any additional interest or refunds to be given to the complainant. 

Points:

1. Whether there is any deficiency in service on the part of the opposite parties?
2. If so, reliefs and costs.

Points (i) & (ii):- Complainant filed affidavit along with 11 documents which were marked as Exts.P1 to P11.  Opposite parties filed only version.  No affidavit is seen filed by the opposite party.  Along with version they filed a document also.  Perused all the evidence before us.  This is a case demanding refund of the amount remitted for digging a bore well, where no drop of water was there after digging.  Opposite party admits all the contentions of the complainant.  They differ only on the amount of refund.  Complainant paid Rs. 9,200/- on 16.10.2012 as per the estimate given by the opposite party.  The digging was done on 04.11.2013.  As per the agreement between the parties and as per the existing rules, if the opposite parties failed in their venture, complainant is eligible to get 75% of the amount as refund.  Here they paid Rs. 1,325/- to the complainant after receipt of the legal notice.  Their contention is that as per G.O (Rt) No. 269/13 WRD dated 12.03.2013, Government have increased the drilling charges to Rs. 350/m and according to this rate, the total construction charge of bore well will come to Rs. 7,875/- and out of Rs. 9,200/- only Rs. 1,325/- is refundable to the complainant and they have paid it also.  Here we may see that complainant remitted the estimated charge, as calculated by the opposite party as early as on 16.10.2012 itself.  No enhanced rate was asked to be paid to the complainant.  He was not intimated about the hike also.  Complainant complied all the formalities as early as on 16.10.2012 itself.  It is not due to any fault on the side of the complainant that the opposite party dug the bore well only on 04.11.2013.  So without collecting the enhanced rate, opposite party calculated the percentage of refund on the basis of enhanced rate.  This is against natural justice.  Complainant is eligible to get back 75% of Rs. 9,200/- as per the agreement, executed as early as on 16.10.2012 itself, which will come to Rs. 6,900/-.  Out of this amount, opposite party has already paid Rs. 1,325/-.  So complainant is eligible to get back Rs. 5,575/-.

In the result, complaint is allowed.  Opposite parties are directed to refund Rs. 5,575/- to the complainant within two months of receipt of this order, failing which complainant is eligible to get 9% interest for Rs. 5,575/- till the date of realization.  No order on cost and compensation.

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 2^nd day of September 2016.       

Sd/-

LIJU B. NAIR                        : MEMBER 

 Sd/-

P. SUDHIR                            : PRESIDENT

Sd/-

R. SATHI                               : MEMBER

jb

C.C. No. 326/2014

APPENDIX

  I      COMPLAINANT’S WITNESS:

                             NIL

 II      COMPLAINANT’S DOCUMENTS:

P1     - Receipt dated 08.08.2012 issued by opposite party

P2     - Letter dated 03.10.2012 issued by opposite party

P2(a) - Copy of letter dated 16.10.2012 issued by opposite party

P3     - Copy of chalan dated 16.10.2012

P4     - Copy of letter dated 06.11.2013 issued by complainant to O.P

P5     - Copy of letter dated 10.01.2014 issued by complainant

P6     - Copy of reply letter dated 12.02.2014 issued by O.P

P7     - Copy of advocate notice No. 13/2014 dated 14.05.2014

P8     - Copy of advocate notice No. 12/2014 dated 14.05.2014

P9     - Copy of letter from O.P to complainant dated 19.05.2015

P9(a) - Copy of final bill

P10   - Copy of letter dated 30.06.2014 issued by 2^nd O.P to 1^st O.P

P11   - Copy of reply notice dated 22.07.2014

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

NIL

                                                                                                      Sd/-

PRESIDENT

jb