Ram Nihore vs KASHYAP BOREWELLS

THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 18.6.2002 in Complaint No. 146/2001 by District Consumer Disputes Forum, Bilaspur (hereinafter called the ''Distt. Forum'' for convenience), dismissing the complaint of the appellant.

UNDISPUTABLY, the complainants have an agricultural field at Village Kachar. Since the complainants desired that a 5 H.P. pump for irrigation of the said field be installed in the said field, they had entrusted the said work to the respondent M/s. Kashyap Borewells. It was agreed that 5 H.P. pump would be installed by the respondent after boring to the required depth and casing pipe of 6" diameter would be laid. According to the complainants, the above work was to be executed by the respondent on payment of Rs. 60,000/- to the respondents. It is not in dispute that Rs. 40,000/- have been paid to the respondent towards the execution of the said work.

The complainant''s grievance was that the respondent did not execute the work and did not instal the pump as agreed to between the parties. It was averred that though drilling in his field was carried out on 18th and 19th May, 2001, but the motor pump fell down in the hole drilled by the respondent, which could not be extracted despite efforts. It was further averred that the respondent had only drilled the bore to the depth of 50 feet, though the agreement and payment received by him was for boring to the depth of 170 feet. The complainants, therefore, claimed refund of Rs. 64,760/- with compensation of Rs. 20,000/- and interest thereon.

THE complaint was resisted by the respondent. It was averred that the respondent had executed the work as per agreement. As per averment in the written version, the boring was done to the depth of 170 ft. and sufficient water was struck. He had executed the work of fitting of casing pipe to the depth of 105 ft. and had purchased 5 HP motor pump along with other material for its fitting. However, since the mechanic of the motor pump was not available, the above articles were lying on the complainant''s field. Since the complainants were in hurry, they called their mechanic who started the work of fitting of the motor pump. However, due to the negligence of the complainant''s mechanic the said motor pump fell into the drilled hole, which could not be extracted despite efforts. It was also averred by the respondent that he received only Rs. 40,000/- from the complainants though he had executed the work worth Rs. 75,955/- as detailed by the respondents in para 3(a) of the written version. THE respondent, therefore, claimed that the complainant be directed to pay him balance of Rs. 45,955/- which include the cost of the material of the respondent lying on the spot. The District Forum after consideration of documents and material placed on record came to the conclusion that the boring was done up to the depth of 105 ft. and that as per the respondent''s version while motor was being fitted by the complainant''s mechanic, it fell down in the bore drilled. Hence the District Forum held that the complainants are not entitled to any relief as they have failed to prove their averments in the complaint. The complaint was acordingly dismissed.

ARGUMENTS of the learned Counsel were heard and the record was perused. During pendency of this appeal, the appellant No. 1 Smt. Ramkali Bai expired hence her name was deleted from the array of the complainants/appellants. Out of the two complainants, now only complainant No. 2 survives and had prosecuted this appeal. As noticed earlier, it is not in dispute that the parties had agreed that the respondents shall execute the work of installation of motor pump in the field of the complainants. According to the respondent, he had executed the work as per agreement and had drilled the bore to the depth of 170 ft., till water source was struck. He had further averred in written version that the casing pipe was fitted till the depth of 105 ft. According to him, the total cost of the work done and the material used amounted to Rs. 75,955/-. He has admitted that Rs. 40,000/- were received by him towards the work as above, and claimed that Rs. 35,953/- were to be recovered from the complainants. As against the above, the complainant''s averments were that the drilling was executed only up to 50 ft. The respondent was paid Rs. 60,000/- besides articles worth of Rs. 4,750/- were also purchased by the complainants, as desired by the respondent. Therefore, Rs. 64,750/- in cash and kind as above, were given to the respondent with regard to the above work.

THE first and main question that arises for consideration is : as to whether the drilling was to the extent of 170 ft. and the casing pipe was fitted till the depth of 105 ft. or as to whether the drilling was only up to the depth of 50 ft., as has been averred by the complainants/appellants?

IN the above context, it may be noticed that the respondent has not produced any material to show that the drilling was to the extent of 170 ft. The respondent has submitted his own affidavit besides the affidavit of Kailash Mehto and Gurunarayan Kashyap. It appears that Kailash Mehto in his affidavit has stated that he has executed the work of boring. However, the respondent in his written version has no where mentioned the name of Kailash Mehto as the person who executed the said work. Even Gurunarayan Kashyap, the person who filed the other affidavit has not stated that the work was executed by Kailash Mehto. It may also be noticed that even if Kailash Mehto executed the work, the affidavit alone would not be sufficient to show that the drilling was executed to the depth of 170 ft. and casing pipe was fitted to the depth of 105 ft. In the above context, the complainants'' averment was that the drilling was only to the depth of 50 ft. as was discovered later. It is not in dispute that the motor pump fell down into the drilled bore. In this connection, the complainant/appellant has produced the report of Asstt. Agricultural Engineer (Drilling) Bilaspur, State of C.G., who has stated therein that the bore was to the extent of 55 ft. only and the remaining portion was filled up by mud. This shows that the drilling was to that depth and casing pipe was also fitted only up to the depth of 55 ft. Had the casing pipe been fitted to the depth of 105 ft., as has been asserted by the respondent, there was little possibility of the drilled bore being filled up by mud. It, therefore, appears that the complainants'' version is more probable, and should be preferred over the respondent''s version.

It is, therefore, clear that the respondent has failed to prove that the hole was drilled to the depth of 170 ft. or casing pipe was fitted to the depth of 105 ft. as was his averment. On the contrary, it appears much more probable that the hole was drilled to the depth of 55 ft. only, as has been asserted by the complainant, which is supported by the report of Asstt. Agricultural Engineer of the State Government. Clearly, therefore, the appellant''s, contention that the respondent did not execute the work properly and did not instal the pump, in accordance with the agreement, deserves to the accepted. Therefore, the respondent is guilty of deficiency in service in not doing the work as agreed to between the parties.

THE respondent has admitted that he received Rs. 40,000/- from the complainants. THE complainants have not satisfactorily proved that they paid Rs. 60,000/- or supplied the respondent with the material worth of Rs. 4,750/-. It is not clear that some of the bills issued by Kashyap Borewells for Rs. 29,730/- has been paid by the complainants. In view of the above, the complainants are entitled to get Rs. 40,000/- only from the respondent. Accordingly, the appeal is allowed. The impugned order dismissing the complaint is set aside. The respondent shall pay to the complainants/appellants Rs. 40,000/-. In view of the fact that casing pipe is still lying in the field of complainants, we are not awarding any interest on the said amount. It is further directed that the amount as above be paid within three months from the date of this order failing which the said amount shall carry interest @ 9% per annum from the date of default. Appeal allowed.