HITKARI ENGINEERS vs S. MEHAR SINGH

THIS appeal is directed against the order dated 11.2.2005 passed by the District Consumer Disputes Redressal Forum, Ambala whereby while accepting the complaint of the respondent-complainant, following directions have been given to the appellants-opposite parties: "The O.Ps. are jointly and severally directed to comply with the following directions within a period of 30 days after the receipt of this order: (i) To pay Rs. 1,98,348 spent by the complainant in purchasing the material for installing the tubewell. (ii) To pay Rs. 2,50,000 as loss suffered by the complainant. (iii) To pay Rs. 20,000 for harassment and menntal torture. (iv) To pay Rs. 3,000 as compensation for costs of proceedings."

PUT shortly the facts of the case as set up in the complaint are that the complainant and his brothers own 20 Killas of land. In addition they also took 20 Killas of land on lease in village Dhira Majra District Patiala (Pb.) for the purpose of cultivation. The complainant wanted to excavate the bore for the purpose of installation of his tubewell. He then contacted the opposite parties in the middle of June 2003. The opposite party No. 2 quoted the rates for the excavation of bore @ Rs. 50 per ft. upto the depth of 300 ft. and Rs. 60 per ft. from 300 ft. to 500 ft. The complainant purchased the required material consisting of pipes, submersible pumps, compressor etc. from M/s. Shiv Pumps and Pipes, Barwala in the presence of Surender, Foreman of the opposite parties. He paid a sum of Rs. 1,29,948 as per bill No. 1558 dated 30.10.2003 for the purchase of the material. In addition he purchased other items consisting of Bazri, diesel, compressors, cable wires, etc. He also spent Rs. 50,000 for getting electric load increased for the purpose of installation of the tubewell. In this manner a total amount of Rs. 3,50,000 was spent by him which included Rs. 23,000 paid as services charges. After bore was excavated in the fields of the complainant and the tubewell was accordingly installed. The tubewll worked thereafter for a period of 2-3 months but thereafter developed defects. Consequently, the complainant suffered a loss of Rs. one lac regarding the paddy and other crop as due to non-availability of the tubewell water, the standing crop came under drought and damaged. He contacted the opposite parties to excavate another bore for the installation of tubewell at other part of his agricultural land or to refund the expenses but no heed was paid to his request. Forced by these circumstances, the complainant instituted the present complaint seeking direction against the opposite parties to pay Rs. 5 lacs as compensation along with interest @ 18% per annum and Rs. 5,100 on account of cost of proceedings. The complaint was contested by the opposite parties. The opposite party Nos. 1 and 2 in their written statement pleaded that they had no partnership firm and only deal with drilling of the tubewell. They further averred that the material for excavation of the bore of the tubewell was purchased by the complainant of his own accord and they had not suggested any shop or brand of the material to be purchased and for that reason have no liability about the cost of the material so stated in the complaint. It was further stated that the complainant had purchased compressor of high pressure in between 200 kgs. to 900 kgs. whereas it was suggested by them that compressor of 100 kgs. to 400 kgs. was required and they further stated that they had no role with regard to the air functioning of the submersible pumps and were only concerned with the bore and installation of the tubewell. Further, according to them, the tubewell worked properly after its installation but due to lack of proper maintenance and leakage of submersible pumps, the defects in the functioning of the tubewell occurred. They maintained that there was no deficiency on their part and the complaint merited dismissal. On appraisal of the pleadings of the parties and evidence adduced on record the District Forum accepted the complaint and issued the directions noticed earlier. It is against this order, the present appeal has been filed.

Learned Counsel representing the parties have been heard at length.

CHALLENGE to the impugned order dated 11.2.2005 passed by the District Forum has been made from the side of the complainant primarily on the ground that there was no agreement between the parties to pay for the technical defects of the tubewell. It was further submitted that the District Forum did not take into consideration at all that the services of the appellants were engaged only for the boring of the tubewell which was performed to the satisfaction of the complainant. The findings of the District Forum on merits have been assailed because the expert evidence adduced from the side of the appellants has not been considered at all and whatever negligence has been attributed, it is due to the defective compressor and other material used for the installation of the tubewell, so purchased by the complainant. Opposing the submission made, learned Counsel representing the respondent-complainant justified the order of the District Forum for the reasons stated therein. Admittedly, in this case no formal agreement was executed between the parties so as to spell out any gurantee or warranty with regard to the proper installation of the tubewell. Even it is admitted by the complainant that the tubewell after installation functioned properly for a period of 2-3 months and thereafter defects developed in its functioning with the result due to non-availability of the tubewell water, damage was caused to the paddy crop and other crop of the complainant cultivated in his agricultural land. What was the nature of the defects, has not been specified in the complaint. To support the allegations made in the complaint Annexure CX has been placed on record from the side of the complainant. The other documents consisting of cash memo Annexure C-4 show that 455 steel pipes and other material were purchased by the complainant from M/s. Hitkari Pumps, Barwala for Rs. 1,29,948. The other documents Annexures C-5 and C-6 relate to the purchase of compressor vide bill dated 20.7.2002 for Rs. 5,000 issued by Zimidara Tubewell Compressor, Ambala City. The complainant has also placed other receipts on record Annexures C-7 to C-17 for Rs. 15,750, Rs. 1,650, Rs. 420, Rs. 1,568, Rs. 1,176, Rs. 1,260 and Rs. 41,000 but they were not rightly taken into consideration by the District Forum as they were not issued in the name of the complainant. No doubt, the above stated material has been purchased by the complainant. But these documents are not of any help to substantiate the allegation with regard to the functioning of the tubewell upto 2-3 months of its installation, as alleged in the complaint. It was the duty of the complainant to have examined expert evidence to establish the exact cause of non-functioning of the tubewell within a period of 2-3 months. Admittedly, the complainant is not an expert and as such he has merely-supported the allegations made in the complaint in his affidavit. On the other hand, the opposite parties have placed on record the affidavit of Sukhvinder proprietor of opposite party No. 1 wherein he has stated that opposite party No. 2 was only engaged for boring and installation of the tubewell and he was not responsible for the functioning of the air compressor or submersible pumps. He has also stated that due to lack of proper maintaining and leakage of submersible pumps, the pipes of the tubewell had been damaged. In support of the above reliance was placed on the affidavit of Hari Ram, who has maintained that he has done diploma in Mechanical Engineering from Government Polytechnic, Ambala in the year 1976 and thereafter worked in Haryana State Minor Irrigation Tubewell Corporation as Junior Engineer from 1979-2002. He thus claimed that he has been conversant with the installation and working of deep irrigation tubewell by virtue of his post, experience and job. He further stated that he has knowledge about the position of the tubewell in question having visited the fields of the complainant in the last week of September, 2003. According to him LG compresor of 200 PSI was deployed by the complainant on the tubewell which was of high pressure and back washing of bore/tubewell by closing the sluice valve fitted in the delivey of tube-well which was the cause of failure of the leakage of the tubewell. According to him the bore/drilling of the tubewell was properly done by the opposite parties as it has functioned for a period of two months after its installation. He also specified that the depth of the tubewell of the complainant was 450'' with diameter of 8 inch. In such type of case compressor 100 P.S.I. and 365 Cfm should be installed whereas the complainant has installed compressor of 200 PSI and 900 Cfm. His other assertion is that installation of bore quality material can be due to failure of the tubewell. Sukhvinder Singh in his affidavit has also supported the stand taken in the written statement filed. The District Forum though has noticed the contention of the opposite parties, but has not done evaluation of the evidence referred to above. No reasons are forthcoming in the order of the District Forum as to why deposition of Hari Ram, expert made in his affidavit does not require any reliance to be placeed. Therefore, it is established on record that non-functioning of the tubewell after 2-3 months of its installation resulted entirely on account of factual position specified by Hari Ram, whose stand has already been refered in detail above. Moreover, in this case, the opposite parties were not at all concerned with the purchase of tubewell material and they had only done the excavation of bore and installation of tubewell. No evidence has been led from the side of the complainant to establish that any shortcomings were noticed in the excavation of tubewell bore and in its installation by the opposite parties. The District Forum without any basis on record accepted the version of the complainant whereby he has put the entire blame on the opposite parties with regard to the mal-functioning of the tubewell after 2-3 months of its installation in the land of the complainant. The District Forum has committed patent illegality in accepting the complaint of the complainant. Therefore, the impugned order cannot be sustained.

FOR the aforesaid reasons while accepting the appeal, the impugned order is set aside and the complaint is dismissed. Appeal allowed.