PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

                             CONSUMER COMPLAINT NO. 71/2024

Present-Dr. Ramakanta Satapathy, President,

  Sri. SadanandaTripathy, Member,

Madhusudan Mitra, Aged about 51 years,

S/O- Late Suresh Chandra Mitra

R/O-Nayapara Road, Peer Baba Chowk, Sambalpur, Ps-Town,

Dist-Sambalpur-768001, Odisha.                                            ……….......Complainant.

Vrs.

1. M/S Sambalpur-Bargarh Toll ways Limited

At/Po-Barahaguda, Ps/Dist-Bargarh-768028.

2. The National Highways Authority of India Limited,

Represented through its Project Director,

Sarlakani ROB Bridge, Sakhipara,

At/Po/Dist-Sambalpur-768001.                                      ..…....……….Opp. Party

Counsels:-

1. For the Complainant                    :- Self
2. For the O.P. No.1                           :- Sri. P.K.Jena & Associates
3. For the O.P. No.2                           :- Sri. A. Pattanaik & Associates

Date of Filing:23.02.2024,Date of Hearing :24.06.2024,Date of Judgement : 30.10.2024

Presented by Dr. Ramakanta Satapathy, PRESIDENT

1. The Complainant challenged the deduction of toll tax amounting to Rs. 230/- on 17.02.2024 at 12.41 PM and 03.19 PM although the Complainant not crossed the tool plaza and went to village Tora through R.D.  Road. Establishment of tool plaza at 41KM from Ainthapali chowk is illegal and it is within 50 Kms range from Bargarh Muncipal area. For unfair trade practice compliant has been filed.
2. The O.P.No.1 in reply submitted that this Commission has no jurisdiction to entertain the case as imposition and levy/tax/fee is as per central Govt. and statutory body N.H. A.I, O.P.No.2 OD-15U-1105 used a substantial portion of N.H. 53 from Sambalpur 1.00 to 8.00 km road) and not crossed toll plaza at Barhagoda and toll collected is Rs. 230/-. There is a side road about 200 mtrs before the toll plaza going to village Tora, RD road. In the by pass additional tool gate has been installed. As per permission of O.P.No.2 additional tool gate has been established. Tool gate can be established within a distance of 10Kms of Muncipal or local town area. Location of the Tool Plaza is at 7.30Km of Bargarh by pass. There is no deficiency on the part of O.P.No.1 and the case is liable to be dismissed.
3. The NHAI submitted that the O.P.No.2 is not a necessary party. Concession agreement has been executed in favour of O.P.No.1 and under the supervision the toll gate is established. The maintenance of the National High way is on O.P.No.1 and all risks shall be met by the O.P.No.1. For the circumventing road permission has been granted to O.P.No.1 in the concession agreement. Restrictions shall not extended beyond a distance of 10Kms from the toll plaza. Tool plaza has been established within 5 to 7 Kms from the outer limit of Bargarh Muncipality. There is no any deficiency on the part of O.P. No.2. There is special authority to take up grievances of the road users. The case is liable to be dismissed.
4. Perused the documents filed by the parties. It is the admission of both the parties that the Complainant with his vehicle No. OD-15U-1105 on 17.02.2024. Went to village Tora without using the tool plaza and the O.P.No.1 has collected Rs. 230/- from the Complainant. The Complainant challenged the collection of tool amount of Rs. 230/- as illegal.
5. After going through the pleadings of the parties and documents the followings issues are framed:

ISSUES

1. Whether collection of tool from circumventing road/bypass road established 200 mtrs away from Tool Plaza, Barhagoda on R.D road is in accordance with law and collection of toll amounting to Rs. 230/- is proper?
2. Whether this Commission has no jurisdiction to entertain the Complainant in view of existence of an authority under the N.H. fees(Determination of fees) Rules, 2008.
3. What relief the Complainant is entitled to get?

Issue No.1 & 2 Whether collection of tool from circumventing road/bypass road established 200 mtrs away from Tool Plaza, Barhagoda on R.D road is in accordance with law and collection of toll amounting to Rs. 230/- is proper?

&

Whether this Commission has no jurisdiction to entertain the Complainant in view of existence of an authority under the N.H. fees(Determination of fees) Rules, 2008.

It is the submission of O.Ps that setting up Tool Plaza, collection of Tool fees, amount of Tool fees and other related issued are decided by the Ministry of Road Transport and Highway as well as the National Highways Authority of India (A statutory Body) and the O.P. no.1 as concessionaire only has to implement the same under the supervision under the guidance and instruction by NHAI and the Ministry from time to time, the O.P. No.1 is working. The O.P. No.1 is a company engaged in infrastructure development and under taken Km 0.000 to Km 88.000 N.H. 6 in Orissa under Build-Operate Transfer(BOT) pattern phase-III project.

The Complainant submitted that as illegally Rs. 230/- tool fees has been deducted, the Complainant is a consumer of the O.P. No.1 and the O.P. no.2 is the controlling authority regarding collection of fees from the passer by as admitted by O.Ps. Where there is imperfection in service or relating to price the Commission has jurisdiction. Heard the parties.

As per Sec.2(II) of the Consumer Protection Act, 2019 the O.P. No.1 is service provider and under BOT Pattern undertaken the N.H.6 phase-III. Deficiency means,“Any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by person in pursuance of contract or otherwise in relation to any service and includes-

1. Any act of negligence or omission or Commission by such person which causes loss or injury to the consumer and
2. Deliberately withholding of relevant information by such person to the Consumer.”

In the present case the O.P. No.1 has to work as per provisions of the National Highway(Determination of Rates and collection)  Rules, 2008 and state support Agreement made with Govt. of India dated 30.04.2010. Establishment of tool plaza, additional tool gate, price including services are under challenge and when the Complainant/consumer is paying fees for the service, this Commission has jurisdiction to examine whether proper service is provided by the O.P. No.1.

Relating to making grievances before the redressal mechanism established under the supra Rule, 2008, the Complainant has not made any grievance before the “Authorised officer”. It does not bar to prefer a complaint before this Commission under the Consumer Protection Act, 2019 as the Act is very clear as per provisions of Sec. 100 of the C.P. Act, 2019. The provisions of the C.P. Act, 2019 shall be in addition to and not in derogation of the provision of any other law for the time being in force.

This complaint is accordingly maintainable and this Commission has jurisdiction to entertain the complaint.

It is the admission of both the parties that on 17.02.2024 while the Complainant was going to village Tora with his vehicle No. OD-15U-1105 Rs.230/- tool fees has been collected although the Complainant has not crossed the tool plaza. Over the side road about 200mtrs before the tool plaza a loop road is there and the Complainant challenge the installation of electronics device/camera on the side of road of Tora. The Complainant submitted that as his vehicle has not crossed the Tool plaza he is not liable to pay. The O.Ps in the other hand submitted that the Complainant as used the project road, he is liable to pay the tool fees amount of Rs. 230/-.

The O.P. No.2 not submitted any document relating to establishment of additional tool gate by the appropriate authority/notification of the central government. Letter No. 350 dated 22.03.2021 clarifies that the additional tool gate has been established by the O.P. no.1 “…………..the concessionaire shall be entitled to set up at its own risk and cost and in consultation with the independent Engineer its temporary or permanent fees collection booth, as may reasonably be necessary for preventing such evasion.”. The O.P.No.2 failed to submit the notification of the Authority regarding establishment of additional toll gate. When the establishment of tool plaza is not in accordance with law and Rules the collection made by O.P.No.1 is not proper.

The establishment of temporary tool gate at Barhaguda is not as per law and it is illegal. Accordingly, the fees collected from the Complainant is illegal.

Accordingly, the issues are answered.

Issue No.3:-What relief the Complainant is entitled to get?

As discussed Supra, the Complainant is entitled to get relief from the O.Ps. The O.P. No.1 has collected the amount and it is to be refunded to the Complainant.

                   Accordingly, it is ordered:

ORDER

The complaint is allowed on contest against the O.Ps. The O.P. No.1 is liable to refund Rs. 230/- to the Complainant as it is established the additional tool gate at its own risk within one month of this order. In case of non refund the O.P. No.1 is liable to pay interest @12% PA till realisation. Further the O.Ps are liable to pay compensation of Rs. 25,000/- and litigation expenses of Rs. 5000/- each to the Complainant.

Order pronounced in the open court on 30^th day of Sept, 2024.

Supply frees copies to the parties.