DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA

 

Consumer Complaint No. : CC/20/2019

Date of Institution : 27.02.2019

Date of Decision : 02.12.2019

Pushkar Raj Sharma aged about 69 years son of Sh. Asa Ram Advocate, District Courts, Barnala.

...Complainant

Versus

1. NHAI , PIU Mohali, Plot No. 275, Industrial Area, Phase-9, Mohali, Punjab (Pin-160062) through its Project Director.

2. National Highways Authority of India C/o Regional Officer, Chandigarh Bays No. 35-38, 1st Floor, Sector-4, Panchkula-134112 (Ministry of Road Transport & Government of Highways).

3. Ridhi Sidhi Toll Plaza, Badbar District Barnala.

…Opposite Parties

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

QUORUM:

SHRI KULJIT SINGH, PRESIDENT.

SHRI TEJINDER SINGH BHANGU, MEMBER.

SMT. MANISHA, MEMBER.

COUNSEL FOR THE PARTIES:

For complainant : Sh. Varinder Kumar Goyal Advocate.

For opposite parties : Sh. Kamaljit Bansal Advocate. 

 

Per KULJIT SINGH, PRESIDENT 

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred as OPs) on the averments that he is a registered owner of the vehicle no. PB-19-R-4050 having Chassis no. MALC381CLJM 387953. The car is fitted with Fastag system of Toll payment to make traveling seamless. On 29th May 2018, he had to cross Badbar Toll Plaza on KM130.720 at 10.18 am but fastag system was not working and he had to pay Rs.120/- towards both side journey of Toll Plaza vide ticket no. 331813032. When on return journey, he crossed the Toll plaza apart from payment already made, an amount of Rs. 80/- was deducted from his fastag account bearing no. 20794730. The matter was brought to the notice supervisory staff at Toll Plaza but nothing was done. He also made complaint to authorities but nothing has been done to redress his grievance. The act of OPs of charging excess money and not redressing the grievance of the complainant falls under unfair trade practice and deficiency in service. Therefore, he has filed the present complaint and prayed that the OPs be directed to refund the excess charged toll of Rs. 80/- along with interest @ 12% from the date of loss, Rs. 50,000/- as compensation for mental tension and harassment and Rs. 5,000/- as litigation expenses.

2. Upon notice, OPs no.1 and 2 appeared and filed written reply and contested the complaint of the complainant by raising legal objections that complainant has not approached this Forum with clean hands. There is no deficiency in service and unfair trade practice on the part of OPs. M/s Ridhi Sidhi Associates has entered into a Contract Agreement on 13.03.2018 regarding Badbar Toll Plaza with answering OPs i.e. National Highways Authority of India. As per Clause 21 of the said agreement under head “OPERATIONAL TRANSPARENCY” enshrines that the Contractor shall be solely responsible for efficient and transparent working and management of User Fee Collection at all points of time. Clause 34 of the said agreement under head “INDEMNITY” enshrines that the Contractor shall indemnify the Authority and its officers, agents and authorized representatives against all liabilities, damages and expenses arising from any claims for damages, suits, proceedings, recoveries or execution. OP no. 3 has given undertaking dated 12.07.2018 regarding its liability for any dispute/recovery etc. in its tenure. According to which, the whole liability if any is of OP no. 3. The dispute arose in the tenure of OP no. 3 so whole liability if any is of OP no. 3 and answering Ops are not liable for anything in the present complaint. The answering OPs written a letter no. 25058/NHAI/PIU/BTI/381 dated 15.05.2019 to OP no. 3 regarding liability of alleged dispute. The complainant has no locus standi to file the present complaint. On merits, the OPs controverted all the other allegations of the complainant and prayed for dismissal of the complaint.

3. OP no. 3 appeared and filed its separate written reply and contested the complaint of the complainant by raising legal objections that complainant has not approached this Forum within clean hands. There is no deficiency in service or unfair trade practice on the part of OPs. The complainant is not consumer of OPs. The complainant has no locus standi to file the present complaint. The complaint is false and frivolous and is not maintainable. On merits, it was averred that on 29.05.2018, there were two special lanes, one for incoming and one for outgoing traffic, on Badbar Toll Plaza, which were ETC (Electronic Toll Connection) lanes having inbuilt fastag system specially for the vehicles, which were having fastag and if anyone, having fastag on his vehicle, then fastag system works and cut the toll automatically. But in the present case, the complainant did not use the said ETC lane but used some other lane in his first journey and that is why he had to pay toll amount physically and in his return journey the complainant used the said ETC lane and the amount deducted automatically through fastag system. So, it is duty of the person using fastag system to use that particular ETC lane because that lane is automatic and if complainant was having return journey ticket, then he should not have used the said ETC lane in his return journey. There is no fault on the part of answering OP. It is specifically denied that OP no. 3 has charged excess money from the complainant or there is any unfair trade practice on the part of OP no. 3 and it prayed for dismissal of the complaint. 

4. The complainant has tendered in evidence his affidavit Ex.C-7 , affidavit of Bhupinder Singh as Ex.C-8 and in rebuttal evidence affidavit of complainant as Ex.C-9 along with copies of documents Ex.C-1 to Ex.C-6 and closed the evidence. As against it; OPs no. 1 and 2 tendered in evidence affidavit of Vipin Mangla as Ex.OP-1.2/A along with copies of documents as Ex.OP-1.2/1 to Ex.OP-1.2/5 and closed the evidence. OP no. 3 tendered in evidence affidavit of Nand Lalji son of Hazari Lal as Ex.OP-3/4 along with copies of documents Ex.OP-3/1 to Ex.OP-3/3 and closed the evidence.

5. We have heard learned counsel for the parties and have also examined the record of the case very carefully. Written arguments also filed by the opposite parties.

6. The counsel for complainant submitted that on 29th May 2018 complainant had to cross badbar toll plaza on KM130.720 at 10.18 am while going to see his in-laws. But to dismay fastag system was not working and he had to pay Rs. 120/- towards both side journey at toll plaza, vide ticket no.331813032. When on return journey, the complainant crossed the toll plaza apart from the payment already made an amount of Rs. 80/- was deducted from his fastag account bearing no.20794730. The matter was brought to the knowledge of supervisory staff at Toll Plaza but nothing was done rather staff at toll plaza behaved in a very rude way. He alleged that the act of OPs of charging excess money and then not redressing his grievance falls under unfair trade practice and deficiency in service.

7. On the other hand, OPs denied all the averments of the complainant and submitted that on 29.05.2018, there were two special lanes, one for incoming and one for outgoing traffic, on Badbar Toll Plaza, which were ETC (Electronic Toll Connection) lanes having inbuilt fastag system specially for the vehicles, which were having fastag and if anyone, having fastag on his vehicle, then fastag system works and cut the toll automatically. But in the present case, the complainant did not use the said ETC lane but used some other lane in his first journey and that is why he had to pay toll amount in his return journey. So, it is duty of the person using fastag system to use that particular ETC lane because that lane is automatic and if complainant was having return journey ticket, then he should not have used the said ETC lane in his return journey. There is no fault on the part of answering OP. It is specifically denied that OP no. 3 has charged excess money from the complainant or there is any unfair trade practice on the part of OP no. 3 and it prayed for dismissal of the complaint. 

8. The complainant tendered his affidavit Ex.C-7 on the record. Bhupinder Singh also tendered his affidavit Ex.C-8 in support of the case of the complainant. Ex.C-1 is copy of registration certificate issued in the name of complainant Pushkar Raj Sharma issued by Registering Authority Barnala. Ex.C-2 is receipt of Rs. 120/- issued by National Highways Authority of India Badbar Toll Plaza. Ex.C-4 is complaint written by complainant addressed to Project Director NHAI regarding charging of toll and uncooperative attitude of staff of Badbar Toll Plaza. Ex.C-5 and Ex.C-6 are postal receipts thereof. 

9. To counter this evidence of the complainant, OPs relied upon affidavit of Vipin Mangla as Ex.OP1-2/A in support of the case of OPs no.1 and 2. This witness stated that the alleged dispute arose in the tenure of OP no. 3, so the whole liability, if any, is of OP no.3 and OPs no.1 and 2 are not liable for anything in the present case. He further stated that complainant never approached OPs no.1 and 2 to settle out the matter nor OPs no.1 and 2 has ever received any communication from complainant except an undated written letter/complaint. He denied all the allegations leveled by complainant in his complaint. Ex.OP-1.2/1 is copy of Contract Agreement executed between the parties on 13.12.2018. Copy of undertakings are Ex.OP-1.2/2 and Ex.OP-1.2/3. Ex.OP-1.2/4 is copy of letter dated 15.05.2019. Ex.OP-1.2/5 is copy of letter dated 04.07.2018. OP no. 3 tendered in evidence affidavit of Nand Lalji as Ex.OP-3/4 on the record. Copy of number of dedicated ETC lanes on 29.05.2018 as Ex.OP-3/1, copy of statement of ETC lanes dated 29.05.2019 as Ex.OP-3/2. Copy of details of vehicle of complainant as Ex.OP-3/3 on the record.

10. The grievance of the complainant is that on 29th May 2018, the complainant had to cross badbar toll plaza on KM130.720 at 10.18 AM while going to see in laws. But to dismay, the fastag system was not working and he had to pay Rs.120/- towards both side journey at toll plaza vide ticket no.331813032. When on return journey he crossed the toll plaza apart from the payment already made an amount of Rs. 80/- was deducted from his fastag account bearing no.20794730. On the other hand, OPs denied all allegations leveled by complainant in his complaint.

11. It is pertinent to mention here that contract agreement was executed between the parties on 13.12.2018, vide Ex.OP-1.2/1 on the record. This agreement is valid from 14.03.2018 to 14.06.2018. As per Clause 21 of the said agreement under head “OPERTIONAL TRANSPARENCY” enshrines that the Contractor shall be solely responsible for efficient and transparent working and management of User Fee Collection at all points of time. Clause 34 of the said agreement under head “INDEMNITY” enshrines that the contractor shall indemnify the authority and its officers, agents and authorized representatives against all liabilities, damages and expenses arising from any claims for damages, suits, proceedings, recoveries, judgments or executions (including, but not limited to litigation costs and expenses and reasonable User Fees of the Authority) which may be made or recovered from the Authority by reason of any acts, omissions (whether negligent or otherwise) or due to willful misconduct of the contractor including its agents, survivors and personnel and while leaving the Badbar Toll Plaza (after completing its term), OP no. 3 has given undertakings dated 12.07.2018 regarding its liability of any dispute/recovery etc. According to which, the whole liability, if any, is of OP no. 3. Ex.OP-1.2/2 is undertaking given by OP no. 3/Ridhi Sidhi Associates on the record. In this undertaking in para no. b) it is clear that TCS up to date as per income tax Act has been deposited in NHAI Account and same has been remitted in Government Authority accordingly. 

12. OP no. 3 specifically stated in their written statement that complainant did not use the said ETC lane but used some other lane in his first journey and in his return journey, he used the said ETC lane and amount deducted automatically through fastag system. So, it is duty of the person using fastag system to use that particular ETC lane because that lane is automatic and if the complainant was having return journey ticket, then he should not have used the said ETC lane in his return journey. Therefore, there is no fault on the part of OPs.

13. The complainant also submitted in his complaint that on 29.5.2018 at about 10.18 AM the fastag system was not working due to which he has to pay Rs. 120/- physically. To rebut this allegation of the complainant the opposite parties relied upon document copy of statement of ETC lanes dated 29.5.2018 Ex.OP-3/2 in which it is mentioned that on 29.5.2018 at 10.17.30 AM the ETC lane was working as at that time one bus has crossed this ETC lane. It is further mentioned in this document Ex.OP-3/2 that thereafter on the same day at 10.23.11 AM a Car Jeep crossed the said ETC Lane so from this document it is proved on that file that during this period when the complainant crossed the Toll Plaza the ETC lane was working and it is the fault of the complainant that he used some other lane except ETC lane to cross the toll plaza. The complainant suffered harassment due to his own wrongs. In the above said contract agreement, it is specifically mentioned in para no.21 OPERATIONAL TRANSPARENCY that the contractor shall be solely responsible for efficient and transparent working and management of user fee collection at all points of time. So, there is no relevant record/document produced on record by the complainant to prove the deficiency in service or unfair trade practice on the part of OPs. In para no.23 (a) OBLIGATIONS OF THE CONTRATORS it is mentioned that the contractor undertakes the responsibility of the complete job of User Fee Collection, maintenance of all records, maintenance of User Fee Collection account, maintenance of vehicle type wise Traffic Data on shift to shift basis, maintaining the cleanliness of User Fee Plazas/User Fee collection booths and surrounding area etc and any other duty as may be assigned by the Authority from time to time.

14. Further in para No. 34 of the agreement it is specifically mentioned that the contractor shall indemnify the Authority and its officers, agents and authorized representatives against all liabilities, damages and expenses arising from any claims for damages, suit, proceedings, recoveries, judgments or executions which may be made or recovered from the authority by reason of any acts, omissions or due to willful misconduct of the Contractor including its agents, survivors and personnel.

15. Keeping in view of above facts and circumstances of the case, it is clear that complainant suffered mental harassment due to his own wrongs not on account of any act prepared by OPs. There were two special lanes, one for incoming and one for outgoing traffic, on Badbar Toll Plaza, which were ETC (Electronic Toll Connection) lanes having inbuilt fastag system specially for the vehicles, which were having fastag and if anyone, having fastag on his vehicle, then fastag system works and cut the toll automatically. But in the present case, the complainant did not use the said ETC lane but used some other lane in his first journey and that is why he had to pay toll amount in his return journey.

16. In the light of our above discussion, we dismiss the complaint of the complainant. However, there is no order as to costs or compensation. Copy of this order be supplied to the parties free of costs. The file be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN FORUM:

    2nd Day of December 2019

 

 

 

            (Kuljit Singh)

            President

              

(Tejinder Singh Bhangu)

Member

 

(Manisha)

Member