ABDUL MAJID vs RAJENDRA SINGH CHAUHAN

THESE appeals are preferred separately by both the opposite parties against the same order dated 5.11.2001 in complaint No. 108/2000 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''District Forum'' for short) directing each of the opposite parties, appellants of these appeals to pay a sum of Rs. 10,000/- and cost of Rs. 500/- to the complainant/respondent. The appellants have been jointly and severally held liable for payment as above. Since both the appeals are against the same order and involve common questions, they are being disposed of by this common order.

ACCORDING to the averments in the complaint, opposite party appellants herein agreed to dig a bore well in the complainant''s/respondent''s field. The complainant/respondent gave them advance of Rs. 10,000/- towards the said work. It was further averred that opposite parties undertook the work of boring on 15.1.1999 and dug the bore well upto the depth of about 50 feet. However, thereafter, they abandoned the boring work and did not complete it. Though the complainant requested them several times to complete the work as above, but they did not do so. The complainant, therefore, raised a claim for Rs. 2.00 lakhs for loss of crop due to non-availability of water for irrigation from boring. The complaint was resisted by both the appellants. The opposite party appellant No. 1 Hira Dubey (of appeal No. 442/2003) did not file his written version. As per written version of opposite party appellant Abdul Majid (of Appeal No. 444/2003) he carries on his shop for auto repairs and has knowledge of diesel mechanism. From time-to-time, he also undertakes repair work of boring machine of opposite party No. 1 Hira Dubey. According to him on 15.1.1999 the opposite party No. 1 Hira Dubey along with the complainant came to his shop and directed him to check the compressor of the boring machine and to load the casings and fill in the diesel therein. According to the averment of appellant Abdul Majid he was paid Rs. 1,500/- for the said purpose by Hira Dubey. He has denied that he undertook any boring work in the field of the complainant.

District Forum in the impugned order held that the complainant/respondent had entered into an agreement with the appellants of both the appeals and had paid them Rs. 10,000/-. It was further held that the work of boring was not completed by the appellants. Therefore, the amount of Rs. 10,000/- received by the opposite parties from the complainant was directed to be refunded by the appellants of both the appeals, with interest thereon @ 12% p.a. as also cost to the complainant.

LEARNED Counsel for appellants of both the appeals have urged that the complainant/respondent has not produced documentary evidence to show that the appellants have undertaken any boring work in the field of the complainant/respondent or received Rs. 10,000/- from the complainant. It was, therefore, submitted that the complainant/respondent was not entitled to receive any amount. The complainant/respondent in support of his averments in the complaint has filed his own affidavit as also that of Arun Shrivastava. It has been stated by the complainant on affidavit that the opposite party appellant Hira Dubey undertakes the boring work and the appellant Abdul Majid works as his contractor. He has further stated in his affidavit that he had a talk with both the appellants regarding boring in his field and that he had paid Rs. 10,000/- to them. He has further stated that the appellants undertook the boring work and boring to the depth of only 50 feet was done by them. The affidavit of Arun Shrivastava corroborates the above version of the complainant/respondent.

AS noticed earlier the opposite party appellant No. 1 Hira Dubey did not file his written version. He had, however, filed his affidavit. Appellant Abdul Majid in his written version had admitted that appellant Hira Dubey had gone to his shop along with complainant/respondent and had directed him to check the compressor, etc. and to load casings in the, boring machine. He paid him Rs. 1,500/- for the purpose. This also lends support to the averments of the complainant that appellant Hira Dubey had undertaken the boring work. It may further be noticed that though appellant Abdul Majid denied that he undertakes any boring work, the appellant Hira Dubey in his affidavit has contradicted him and has stated that the appellant Abdul Majid undertakes boring work on contract. Para 5 of the affidavit of appellant Hira Dubey would indicate that he sent his machine for boring in the field of the complainant and that it was the duty of the appellant Abdul Majid to do the work of boring. By implication it clearly discloses that the boring work was undertaken by the present appellants. However, both the appellants have tried to shift the liability and responsibility for the non-performance of the work on each other. In view of the above, it is clear that the averment of the complainant supported by the affidavit of himself and Arun Shrivastava deserves to be relied upon in preference to the version of the appellants who have tried to avoid the liability. It is clear from the material placed on record that they had undertaken the boring in the field of the complainant/respondent and had left the work unfinished. In view of the above version of the complainant/respondent that he had paid Rs. 10,000/- towards boring work also appears to be reliable and deserves to be accepted. The appellants have not completed the job despite receiving the above amount from the complainant and have thus committed deficiency in service. In view of the above the complainant/respondent is entitled to refund of Rs. 10,000/- with interest thereon as has been directed by the learned District Forum. In view of the above discussion and facts and circumstances as above, we find no substance in both these appeals. They are dismissed. The appellants of each appeal shall bear their own cost and each of them shall pay to the complainant/respondent the cost of Rs. 1,000/- (one thousand) only. Appeals dismissed.