Kerala

Idukki

CC/156/2020

mathew Mathai - Complainant(s)

Versus

Vathikudy gramapanchayath - Opp.Party(s)

Adv: K B Selvam

30 Mar 2023

ORDER

DATE OF FILING : 9.11.2020 

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the    30th    day of  March, 2023

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.156/2020

Between

Complainant                                           :     Mathew Mathai,

                                                                   Molayal House,

                                                                   Padamugham P.O.,

                                                                   Vathikudy, Idukki.

         (By Adv: K.B. Selvam)

And

Opposite Parties                                     : 1. The Secretary,

                                                                   Vathikudy Grama Panchayath,

                                                                   Murickassery P.O.,

                                                                    Idukki.

                                                                 2. The Director,

           District Poverty Alleviation Unit, Idukki,

           Near District Panchayath Office,

          Painavu P.O., Idukki.

      3. Rajesh Mathew,

                                                                   Cherumattathil, 

                                                                   Vellurkunnam P.O.,

                                                                   Muvattupuzha.

 (By Adv: Sibi Thomas)

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under Section 35 of the Consumer Protection Act of 2009 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

          Complainant is farmer residing within the jurisdictional limits of this Commission.   1^st opposite party is secretary of Vathikkudy Grama Panchayath and 2^nd opposite party is Director of District Poverty Alleviation Unit, Idukki.  3^rd opposite party was contractor of PMGSY road project for building a road known as Chempakappara – Kallippara road.  During construction of road, 3^rd opposite party had taken soil from elevated portion of road and dumped it in complainant’s property owing to which his crop and well used for household purposes were destroyed.  A loss of Rs.35 lakhs was occasioned   to   complainant.    According  to  PMGSY  guidelines,  roads  are  to  be

(Cont.....2)

-2-

 

constructed at an admissible gradient approved by National Rural Roads Development Agency.Land surrendered, free of cost, by respective owners, which is  handed over to PIU by concerned local authorities, alone must be used for road construction.  Complainant has not given consent to deposit soil in his property.  He has not surrendered his land for construction of the road.  Complainant had lodged several complaints before various authorities.  2^nd opposite party, upon enquiry, had found that the complaint was true.  Similarly, 1^st opposite party had also arrived at a finding in favour of complainant.  However, both opposite parties were not prepared to give any compensation.  This was owing to influence exported by 3^rd opposite party.  Non-payment of compensation amounts to deficiency in service on the part of opposite parties.  On 28.10.2020, 1^st and 2^nd opposite parties had informed the complainant that they were not going to do anything in favour of complainant.  This has caused financial loss, sufferings and mental strain to him.  Complainant hence prays for grant of Rs.35 lakhs as compensation from 3^rd opposite party and Rs.10000/- towards litigation costs.

 

          2. Complaint was taken on file and upon notice, opposite parties have entered appearance and filed separate written versions.  Contentions   of 1^st opposite party are briefly narrated hereunder :

 

          1^st opposite party submits that the land in question, though in possession of complainant, is not covered by pattayam.   PMGSY project roads are with the agency entrusted with task of carrying out the project.  1^st opposite party had come to know that out of about 2 acres possessed by complainant, debris  is deposited in 10 to 15 cents of property.  However, 1^st opposite party was unable to find any signs of crops or a well in this area.  The plot was found to be covered with grass.  1^st opposite party has not come to a conclusion that crops and well of complainant were destroyed.

 

          3.  Project Implementation Unit headed by Executive Engineer has filed a written version for 2^nd opposite party.  Contentions contains in the statement of facts so submitted are briefly narrated hereunder :

 

Project Implementation Unit of Idukki had completed construction of road namely, Chempakappara – Kallippara road, under PMGSY 2009-10 package No.KR03-31, which has a length of 6.464 km.  Construction of the road had commenced on 30.9.2009 and was completed on 31.3.2013.  Contractor has not done anything illegal in excavation of earth or rock.  As per provisions contained in the work agreement, excavation and deposit of earth and debris was at contractor risk and cost during the execution of project.  Contractor has not informed PIU about any complaint written or orally pertaining to loss occasioned to land owners including complainant.  As per PMGSY guidelines, roads are constructed at an admissible gradient approved by National Rural

(Cont.....3)

-3-

 

Roads Development Agency in land surrendered early by owners through which the road alignment exists.   Surrendered land would be handed over to PIU by concerned local authority.  PIU does not own any road or undertake any work of road other than as explained earlier.  PIU functions upon funds approved by central government of India and hence is not in a position to compensate  complainant.  No written or oral complaints were received regarding execution of work, at the time when the work was being implemented and further until its completion.  After a lapse of 8 years, it is not possible to assess whether any loss was occasioned and the extent of loss.  3^rd opposite party, upon directions issued by 2^nd opposite party has informed that no damages were occasioned to crops or well during execution of work.  As PIU is not collecting any tax or toll for the road, it is not in a position to grant compensation.

 

          4.  3^rd opposite party in his written version has contended as hereunder :

 

          According to him, complaint is not maintainable in law or upon facts.  3^rd opposite party has not provided any goods or service to complainant and therefore complainant cannot be termed as a consumer under Section 2(7) of the Act.  Work was completed as early as on 31.3.2013.  Complaint is barred under Section 69 of the Consumer Protection Act also.  Work was executed under PMGSY 2009-10 package No.KR-03-31 for an extent of 6.464 kms.  It had commenced on 30.9.2009 and was completed on 31.3.2013.  Work was done in accordance with the terms and conditions contained in work file including A.S and T.S of competent authorities.  3^rd opposite party has not excavated earth or rock for construction of road near to complainant’s property.  No well or debris was deposited in complainant’s property.  No damages were caused to crops or well of complainant.  Loss of Rs.35 lakhs mentioned in the complaint is only an imaginary loss.  3^rd opposite party is not liable to pay any compensation to complainant.  Complaint is to be dismissed with costs.

 

          5.  After filing of written version, case was posted for steps and then for evidence.  Despite availing sufficient opportunity to tender evidence, complainant had remained absent.  Opposite parties have also not tendered any evidence.  On 21.2.2023, the date on which case was posted for evidence finally, only complainant and 3^rd opposite party were represented.  Though complainant’s counsel had sought for time for addressing arguments, prayer was declined as no reason was given for seeking adjournment.  No arguments were addressed from the side of complainant.  We have heard the counsel appearing for 3^rd opposite party.  Now the points which arise for consideration are :

1)  Whether complaint is maintainable ?

2)  Whether  thereis any deficiency in service ?

3)  Whether complainant is entitled for the reliefs prayed for in the complaint ?

4)  Final order and costs ?

(Cont.....4)

-4-

 

 

6.  point Nos.1 to 3 are considered together :

         

          Along with the complaint, complainant has produced a copy of complaint dated 16.1.2019 pertaining to loss occasioned to his crops and well by the purported dumping of debris in his property by 3^rd opposite party.  It is seen dated 16.1.2019.  No postal receipts evidencing sending of the aforesaid letter to 1^st opposite party or any other document proving sending of letter were produced by complainant.  Copy produced is not even attested as a true copy.  It is the case of opposite parties as such that the work was completed as early as in 2013.  However, as no evidence is forthcoming from both sides, we are not presently considering whether complaint is barredby limitation or not.  But complaint has a vital defect.  It is not with regard toany  deficiency in goods or services.  As rightly pointed out by 3^rd opposite party, he has not sold any goods or given a service to complainant for consideration.  That being so, complainant cannot be considered as  consumer as defined under Section 2(7) of the Act and neither opposite parties as service providers or traders.  Allegation of dumping of soil in complainant’s property is of tort which  is no within the jurisdiction of this Commission.  Therefore, we find that complaint is not maintainable before this Commission.  There is no deficiency in service.  Complainant cannot be granted any of the reliefs prayed for either.  Point Nos.1 to 3 are answered accordingly.

 

7.  Point No.4 :

 

          In the result, this complaint is dismissed under the circumstances, without costs.  Parties shall take back extra sets of copies without delay.

 

          Pronounced by this Commission on this the      30th       day of March, 2023

 

                                                                                                Sd/-

   SRI. C. SURESHKUMAR, PRESIDENT

                             Sd/-

 SMT. ASAMOL P., MEMBER

                   Sd/-

SRI. AMPADY K.S., MEMBER

 

 

      Forwarded by Order,

 

 

 

                                                                             ASSISTANT REGISTRAR