PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

                             CONSUMER COMPLAINT NO. 37/2023

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

Pramod Kumar Dash, Aged about 52 years,

S/O-Late Nityananda Dash,

R/o- Pradhan Colony, Kainsir Road,

PO-Sankarma, Ps-Ainthapali,

Dist-Sambalpur-768006

Mobile No. 9937577711                                                .……….......Complainant.

Vrs.

1. M/S Sambalpur-Bargarh Toll ways Limited,

At/Po-Barahaguda, Ps/Dist-Bargarh-768025.

2. The National Highways Authority of India Limited,

Represented through its Project Director,

Sarlakani ROB Bridge, Sakhipara,

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

Counsels:-

1. For the Complainant                     :- Sri. N.K. Panda Adv.
2. For the O.P. No.1                           :- Sri. S.C. Barik, Liasoning Officer.
3. For the O.P. No.2                           :- Sri. A. Pattanaik & Associates

Date of Filing:14.03.2023,Date of Hearing :13.11.2023,Date of Judgement : 02.01.2024

  Presented by Dr. Ramakanta Satapathy, PRESIDENT

1. The case of the Complainant is that the Complainant with his Maruti Wagon R vehicle No. OD-15J-9320 having fast tag on 27.02.2023 went to village Tore to met his friend from Sambalpur. The Complainant not crossed the tool plaza of O.P. no.1 at Barhagoda. On reaching Sambalpur and opening message box in his mobile found that Rs. 145/- has been deducted to-wards tool tax showing that on 27.02.2023 at 16:13:16 the vehicle crossed the gate. Since 17.02.2023 the Complainant has not crossed Tool plaza and the O.Ps by using electronic devices fraudulently deducted Rs. 145/-. There is a side road near about 200 Mtrs before the Tool plaza which is directly connected to Tora village and there is no need to cross the Tool plaza. The O.P. No.1 illegally installed an electronic device/camera on the side of road of Tora. A vehicle not crossing the Tool plaza is not liable to pay any tool tax and tool plaza is not authorised to collect the amount. Tool plaza is established at 41 KM from Ainthapali Chowk, further the O.P. No.1 is not authorised to collect more amount that fixed under law. The establishment of Tool plaza at Barhaguda is illegal and unjustified. Being aggrieved with illegal connection of tool complaint has been filed.
2. The O.P. No.1 Tool plaza filed objection and submitted that the Complainant is not a consumer. The O.P. No.1 is to implement the direction of ministry of Road Transport and Highways as well as the National Highways Authority of India(NHAI) and not liable for any payment. The O.P. No.1 is a successful bidder organised by Ministry of Road Transport entrusted to construct the four laning of Sambalpur-Bargarh-Odisha-Chhatisgarh boarder section from 0.000 Km to 88.000 of N.H. 6 in Orissa for execution build operate Transfer(BOT) project under National High Way Development Project. At 41.000 and a temporary Tool Booth at Ch. 40.360 has been installed. For installing Tool Plaza at 41.000 a notification was made by Ministry of Road Transport on 17.11.2021 which was amended vide notification dated 18.09.2014.

The NHAI by its letter dated 22.03.2021 upon consideration of the recommendation of the independent engineer for setting up additional fees collection booth at Ch. 43.600 and 40.360 have adviced the O.P. No.1 to set up a temporary Tool Booth at KM 43.600 and 40.360 to comply with the conditions of agreement(Clause 27.08). To, avoid evading tool fees and vehicle using whole or part of Highway under Rule 17 of the National Highways fees(Determination of rates and Collection) Rules,2008 fees have been collected.

Vehicle No. OD-15J-9320 had crossed the temporary tool booth having fast Tag for which Rs. 145/- has been deducted from the linked account. As Radio frequency Identification (RFID) technology has been used there is no possibility of any mischief in charging any extra or additional amount of Tool fees than the one permitted by NHAI. The Complainant on 27.02.2023 at 16:13:16 hours crossed loop road thereby Rs. 145/- deducted to-wards payment of tool fees. The tool plaza has been established in right place and within 10 Kms distance from Bargarh Municipal area.

The tool plaza beyond 5Kms and within 10 Kms of Bargarh Municipality has been establishes as determined by the Ministry of Road Transport and Highway is justified for the bye-pass. As per Rule 13 of the National Highways fees(Determination of Rates and Collection) Rules, 2008 the authorised officer can direct to refund the excess paid amount within 30 days and accordingly this case is not maintainable. There is no any unfair trade practice on the part of the answering O.P. The complaint is fictitious imaginary and unjustified and accordingly liable to be dismissed with cost.

3. The National Highway Authority, O.P. No.2 in its version submitted that the complaint is not maintainable. Tool fees shall be collected at the tool plaza from vehicles crossing the tool plaza and using the whole, or part of project Highway. The concessionaire is entitled to set up temporary fees collection Booth to avoid tax evasion. As per State Support Agreement clause-2.2 the authorities accorded due permission to the concessionaire to establish Tool Booth on the competing Road as per clause 27.08 of the agreement. The Concessionaire shall be entitled to set up tool booths at their own risk and cost. The Complainant to avoid tool tax used the loop road. When vehicle No. OD-15J-9320 having fastag crossed the circumventing road Rs. 145/- has been deducted.

The O.P. No.2 has taken the plea what the O.P. no.1 has taken in the complaint. Collection of Rs. 145/- tool fees is proper as the Complainant has used major 41 Kms of the project road. Complaint is liable to be dismissed with cost.

4. Perused the documents filed by the Complainant. On 27.02.2023 message delivered at 4.14P.M. has been filed along with RC copy of vehicle NO. OD-15J 9320 and account statement of ICICI Bank statement reference No. 080323/180743/27.

The O.P. No.1 filed the following documents:

1. Ministry of Road Transport and Highways Notification No. S.O. 2440(E) dated 18.09.2014.
2. Ministry of Road Transport and Highways Notification No. S.O. 2594(E) dated 17.11.2011.
3. Letter No. 11040/NHAIPIU/NH-6. SBP-BRG.11-Tool/350/2021 dated 22.03.2021.
4. Two photographs.

The O.P. No.2 filed the following documents:

Gazette Notification of Ministry of Road Transport and Highways dated 17.11.2011, state support Agreement dated 30.04.2010, letter of NHAI dated  22.03.2021, 25.03.2022 and letter NO. 545 dated 13.02.2021 of the Muncipal Council, Bargarh.

5. After perusal of the documents filed by the parties and their submission following issues are framed:

ISSUES

1. Whether the complaint is not maintainable and this Commission lacks jurisdiction?
2. Whether Collection of tool by the O.P. No.1 tool plaza on 29.04.2022 and 27.02.2023 from the Complainant is proper?
3. Is there any deficiency on the part of the O.Ps?
4. What relief the Complainant is entitled to get?

Issue No.1 Whether the complaint is not maintainable and this Commission lacks jurisdiction?

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. It is the further submission of O.Ps that under Rule 13 of the National Highways fees(Determination of Rates and Collection) Rules 2008 grievance of driver, owner or person in charge of a mechanical vehicle against any excess or unauthorised collection of fees can be made before the authorised officer and as special provision exists the consumer Commission has no jurisdiction.

The Complainant submitted that as illegally Rs. 145/- 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 passes 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.

Issue No.2 Whether Collection of tool by the O.P. No.1 tool plaza on 29.04.2022 and 27.02.2023 from the Complainant is proper?

It is the admission of both the parties that on 27.02.2023 while the Complainant was going to village Tora with his vehicle No. OD-15J-9320 Wagon-R Rs. 145/- 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. 145/-. In this regard the O.Ps submitted the notification of central Govt. and National Highways dated 17.11.20211 and 18.09.2014. As per notification location of Tool plaza is Km 42.00 of N.H. 6 and for 80.090Kms length of the section  and for 7.30Kms of Bargarh by pass the estimated cost of Rs. 74.00 crores have been shown. No any notification of the Govt. has been filed regarding the too  gate established to check the passers by use loop road to village Tora. The O.Ps have not filed any concession agreement as referred in letter No. 350/2021 dated 22.3.2021 of the NHAI. In the said letter the NHAI, O.P. No.2 clarified:

“for avoidance of doubt, the concessionaire hereby acknowledges and agrees that it shall not determine or collect fee from uses who inly use part of theproject Highways which is situated between the two Tool plazas. It is further acknowledge and agreed that the restrictions hereunder shall not extend beyond a distance of 10(ten) Kilometres from the tool plaza and the provisions of clause 27.08 shall be so enforced as to minise inconveniences to user who are not liable to payment of fees.

In view of above, it is hereby advised that temporary tool booth may be set up by concessionaire at 43.600 and Ch. 40.360 to comply with the above condition without any inconvenience to the local users.”

The Complainant challenges the establishment of Tool plaza which is within 10Km range of Bargarh Muncipal area. The O.Ps have filed a detail area of W.W.16, Bargarh Muncipality to-wards Sambalpur side. The Executive officer Bargarh Muncipality in letter No. 545 dated 13.02.2021 stated that Bargarh W.W.16 to-wards Sambalpur extend 5.560Kms (Pvt. Bus stand let side road to Railway Track) and 5.200Km. (last ACC cement near Railway Track, Ganapati Hotel). It means that the Tool plaza has been established within 5 Kms of the Bargarh Muncipality. Neither O.Ps explained why the tool plaza has been established within 5 Kms range from Bargarh Muncipality although rules provide to establish the plaza beyond 10 Kms(Location of Tool Plaza Rule 8)

When the establishment of Tool plaza is not in accordance with Rules provided, the collection made by the O.P. No.1 is not proper. Further 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 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.

Relating to quantum of fees of Rs. 145/- the O.P. No.2 has given a detail calculation following Rule 5(3) of the N.H. W. fees determination Rules, 2008 and on this point this Commission does not interfere. Accordingly, the issue is answered.

Issue No.3 Is there any deficiency on the part of the O.Ps?

When there is illegality in establishment of the Tool Plaza and additional tool gate, the O.Ps are deficient in their service and fees collected from Complainant is illegal.

The issue is answered accordingly.

Issue No.4 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. 145/- 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 2^nd Jan of 2024.

Supply frees copies to the parties.