Orissa

Sambalpur

CC/53/2022

Pritish Debata - Complainant(s)

Versus

1. M/S Sambalpur-Bargarh Toll ways Limited - Opp.Party(s)

27 Mar 2023

ORDER

PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

                             CONSUMER COMPLAINT NO. 53/2022

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

Pritish Debata,

S/O-Sri. Rabindra Nath, Occupation-Advocate

R/O- Panch Gachhia, Central School Chowk, Baraipali,

PO-Remed

Dist-Sambalpur-768006, Odisha.                                        ...………..Complainant

Versus

1. M/S Sambalpur-Bargarh Toll ways Limited

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

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. S.S.Panda & Associates
2. For the O.P.1                   :-          Sri. P.K.Mishra, Advocate & Associates
3. For the O.P. No.2                        :-          Sri. A.Pattnaik, Advocate & Associates

 

Date of Filing:01.08.2022,  Date of Hearing :27.02.2022  Date of Judgement : 27.03.2022

  Presented by Dr. Ramakanta Satapathy, PRESIDENT

1. The case of the Complainant is that the Complaint is having a Maruti Dezire Car bearing Regd. No. OD-15S-9605 and father of the Complainant has Santro Car bearing No. OR-15M-1277 and both the Car having ‘Fastag’ facilities. The O.P. No.1 is the Tool Plaza established at Barhagoda which is at 41 Kms from Ainthapali, Sambalpur and only authorised to collect tool prescribed under law.

On 29.04.2022 the Complainant went to Bargarh from Sambalpur along with his father in car bearing No. OD-15S-9605, crossed the gate at 12.35.27 hour and Rs. 145/- was automatically deducted from Complainant’s account. Simultaneously father of the Complainant in his mobile No. 94370-52288 received a message as to deduction of Rs. 145/- from his account vide order ID 1133396569, wallet Ref. No. 40151221432 Fastag ID 34161FA830328E4010AA30CO Car No. OR-15M-1277 although the car was parked at the residence at Sambalpur and never went to Bargarh or crossed the tool plaza of O.P. No.1. The Complainant returned back to Sambalpur on 29.04.2022 and crossed the plaza at 15.09 hour for which Rs.75/- was automatically deducted from his account but no deduction took place from father’s account which was apprehending illegal deduction switched off mobile.

On 25.06.2022 in his Car No. OD-15S-9605 proceeded to village Tora from Sambalpur and back not crossed the tool plaza at Barhagoda. On reaching Sambalpur he received a message of Rs. 145/- deduction towards tool tax. On next day 26.06.2022 the Complainant got another message of deduction of Rs. 145/-. The O.P. No.1 collected Rs. 290/- illegally.

The establishment of the tool plaza at Barhagoda is illegal and unjustified as it is located within60 KM distance from either point i.e. Sambalpur and Luhurachati and within 10 KM distance from Bargarh Muncipal erea. The O.P. No.1, its acts are unfair trade practice, crime and against the Public interest, further there is deficiency in service of the O.Ps.

2. The O.P. No.1 after appearance in its version submitted that the complaint is not maintainable, malicious and exaggerated with malafide intenstion. Both the cars OD-15S-9605 and OR15M-1277 are having fastag arrangement are not within the knowledge. Vehicle not crossing tool plaza are not liable to pay any tool tax is denied. The appropriate amount of tool is collected. The Complainant crossed the tool gate, Barhagoda at 12:35:27 hour on 29.04.2022, Rs. 145/- was automatically deducted are denied. The receipt of Rs. 145/- vide order ID1133396569,Wallet Ref. No. 40151221432, Fastag ID-34161FA830328E4010AA30CO of Car No. OR-15M-1277 are also denied. OR 15M-1277 was parked at Complainant’s residence for entire day is also denied. Fastage ID No. 34161FA820328E4010AA30CO deduction of Rs. 145/- is also denied.

On 29.04.2022 vehicle No. OD-15S-9605 passed through Bargarh toll plaza and Rs. 145/- deducted from linked account. Vehicle bearing Fast Tag No. 34161FA820328E4010AA30CO passed through aforesaid tool plaza, requisite tool fees was collected from Fastag account. Fastag technology eliminates human intervention in the tool collection system by using Radio Frequency Identification(RFID) technology and there is no possibility of mischief. Fastag is affixed to the windscreen of the vehicle. The other allegations about deduction of Rs. 75/- is also denied.

The O.P. No.1 denied the incidence dated 25.06.2022. On 25.06.2022 vehicle No. OD-15S-9605 proceeded to-wards Bargarh through loop road. Tool booth at the loop road detected the fastag Id 34161FA82032897228C2AF20 on vehicle and debited Rs. 145/- at 13:23:31 PM towards tool fees.

The Complainant returned back on the same day to Sambalpur through the same loop road and tool fees for return journey was debited at 14.41.46PM. To avoid and evade tool loop road was used. Tool booth is set up as Temporary fees collection Booth at Ch.43.63 Kms and Ch. 40.360Kms to prevent evasion of tool tax. The setting up tool plaza at loop/competing road is perfectly legal. The plaza has been established as per rules and regulations. There is no any deficiency in service or unfair trade practice.

3. The O.P. No.2 in its version submitted that this Commission lacks jurisdiction, the NHAI is not a proper party. The O.P. No.1 functions under the supervision of O.P. No.2 is not true. Through open bid tender process the O.P. No.1 has taken the tool plaza. Some tool roads are managed under ‘Build-Operate-Transfer’ (BOT) system wherein successful bidder are given opportunity to build the road and are given a limited concession period to collect the tool fees. The ownership is transferred to govt., when concession period expires. The O.P. No.2 is only a nodal agency and not responsible for the lapses of O.P.No.1. The cause of action arose out-side the territorial jurisdiction of this Commission.

Prior to filing of the complaint as per Rule 13(2) of the National Highways fees(Determination of Rates & Collection) Rules, 2008 the complaint has not approached the authorised officer of the central Govt. for the grievance. With ulterior motive complaint has been filed and liable to be dismissed.

4. Perused the documents filed by the Complainant fastage e-statement dated 29.04.2022 for Rs. 145/- for car No. OR-15M-1277, Fastage e-statement dated 29.04.2022 for Car No. OD-15S-9605 for RS.220/- and e-statement dated 25.06.2022 for Car No. OD-15S-9605 for Rs. 290/-.

The O.Ps filed photo print of computer screenshots and photo print of C.C. TV footage clarification by NHAI Gazette notification No. GSR 1361(E) and fastag details of Complainant and his father.

5. After perusal of complaint, versions, documents filed and submissions of the parties the following issues are framed:
103606587.  

1. Whether the complaint is not maintainable on the point of territorial jurisdiction and the National High Way Authority of India, O.P. No.2 is not a necessary Party?
2. Whether Collection of tool by the O.P. No.1 tool plaza on 29.04.2022 and 25.06.2022 from the Complainant and his father 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 on the point of territorial jurisdiction and the National High Way Authority of India, O.P. No.2 is not a necessary Party?

It is the admission of both the parties that the cause of action arose at Barhagoda, Dist-Bargarh on 29.04.2022 and 25.06.2022. The O.P. No.2 raised the question of maintainability on territorial jurisdiction. The O.P. No.2 has established the tool plaza at Barhagoda, Bargarh where office of O.P. No.1 situates, The Complainant resides at Panch Gacchia, Central School Chowk, Sambalpur and work as an advocate at Bargarh and Sambalpur. As per section 34(d) of the Consumer Protection Act, 2019 as the Complainant resides and work for gain in Sambalpur and Bargarh, this Commission has territorial jurisdiction to entertain the Complaint.

The O.P. No.2 in its version submitted that the tool plazas are independently operated by the Agencies. On Build-operate given a concession period to O.P. No.1 to collect the tool fees and after the concession period the ownership shall be transferred to government. Selection has been made through open bid tendering process. From this very statement of O.P. No.2 it is clear that there is ultimate control of the O.P. No.2 regarding collection of tool and management. No doubt, the O.P. No.2 acts like a nodal agency but the O.P. No.2 can not deny the control over the O.P. No.1 under the National Highways fee (Determination of Rates and Collection) Rules, 2008. According, the O.P. No.2 is a necessary party in the Complaint.

The issue is answered accordingly.

Issue No.2 Whether Collection of tool by the O.P. No.1 tool plaza on 29.04.2022 and 25.06.2022 from the Complainant and his father is proper?

From the documents filed by the Complainant and O.Ps it reveals that on 29.04.2022 for vehicle No. OR-15M-1277 at 12.35PM RS. 145/- was deducted and at 15.09 PM Rs. 75/- was deducted as per fastag E-statement reference Number 270722/222945/80 ICICI Bank Statement. The said facts corroborate with the documents filed by the O.Ps.

The Complainant has not filed any documents regarding deduction of Rs. 145/- in connection with Mobile No. 94370-52288 of his father.

As per statement of Complainant on 25.06.2022 vehicle No. OD-15S-9605 proceeded to Tora village from Sambalpur. The Complainant received a message of deduction of Rs.145/- towards toll tax. As per e-statement filed twice Rs. 145/- deducted at 13.23PM and 14.41 PM respectively and the Complainant has not crossed the tool gate. The O.Ps filed documents showing crossing the by-pass road at 13.20PM and 14.39PM along with photographs of the vehicle crossing. The O.Ps answered Radio Frequency Identification(RFID) technology identifies vehicles with valid fastag and deduct automatically. The bar-code in the fastag is linked to the RFID reader. The Complainant returned back on same day to Sambalpur through the same loop road and tool fees was debited at 14.41.46 Pm. To evade tool fees the Complainant used the loop road. The O.P. No.1 has set up its temporary or permanent fee collection booths with the permission of the authorities. The temporary fees collection booth at Ch.43.63 Km and Ch. 40.360Km has been established. The tool collection by O.P. No.1 setting up tool plaza at loop road is legal and valid.

The Complainant agitated the establishment of tool plaza of Barhagoda is illegal and unjustified. In reply the O.Ps submitted that the establishment is proper as per the National Highways fees(Determination of rates and collection) Rules, 2008. Rule 8 location of the tool plaza has been narrated:

“The executing authority or the concessionaire as the case may be, shall establish a fees plaza beyond a distance of ten kilometres from a municipal or local town area limits………..”

Learned advocate for the Complainant submitted that Bargarh Municipality extends up to Brahmachari area and Panichhatar i.e. up to Nagenpali area. From that point the tool plaza is in between 5 to 10 Kms range. Neither O.Ps explained why the tool plaza has been established within 10 kms range from Bargarh Muncipality although rules provide to establish the plaza beyond 10Kms. Further learned advocate submitted that the alleged loop road is used by Tora & Nagenpali villagers to approach the National High Way and due to establishment of tool plaza at ch. 43.600 and 40.360 within 5Kms and 7 Kms range establishment from Bargarh Muncipality( as admitted by the O.Ps) violates Rule 8 of the location of tool plaza Rule.

The O.P. No.1 filed letter No. 350/22 dated 07.04.2022 of NHAI wherein permission has been granted and risk has been casted upon O.P. No.1. No doubt to avoid tool fees evasion the NHAI(O.P. No.2) granted permission to O.P. NO.1 but it evaded the rights of Nagenpali villagers and Tora villagers who are residing within 10Kms range of Bargarh Muncipality and any person going to village Tora and Nagenpali are pre-judiced like the Complainant.

On 25.06.2022 the Complainant has not entered the tool plaza but Rs. 290/- deducted. In case the tool plaza would have been established beyond (Kalapani chowk and Sukutapali between) 10 Kms range such problem would not arisen. The establishment of tool plaza at Ch. 43.63 Km and 40.360Kms is accordingly illegal and not proper application of mind of the O.P. No.2 violating Rule 8 .

The Collection made by O.P. No.1. On 29.06.2022 is accordingly illegal and it is refundable by the O.P. No.1.

The issue is answered accordingly.

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

From the Supra discussion it is found that the O.P. No.2 by granting permission within 10Kms range of Bargarh Muncipality violated the N.H.W fees(Determination of Rates and Collection) Rules, 2008 and the O.P. No.1 by establishing temporary tool gate at village Tora collected fees on 29.06.2022 from Complainant Rs. 290/-. The O.Ps are deficient in their service and liable to refund the amount.

Learned advocate agitated another point relating to base rate of fees per Km in rupees fixed under the rule. For Car, jeep, van or light Motor Vehicle it is fixed @Re 0.65P in 2007-08 for National High Way of four lanes. The formulae for determining the application rate of fees shall be as follows:-

[As per Rule 5(3)]

Applicable rate of fees= Base rate + base rate X  WPIA-WPIB    X 0.4

                                                                                                               WPIB         

WPIA-Whole sale price index for the month of December immediately proceeding year 3 immediately proceeding the date of revision under these rules.       

WPIB- Whole Sale Price Index of the week ending on 6^th January 2007 i.e. 208.7.

                   The O.Ps failed to establish the rate of fees Rs. 145/- charged one time from Complainant, on what basis it was collected from 43.600Kms crossing the plaza from Ainthapali chowk. Every consumer has the right to information and the O.Ps failed to provide information to the Complainant, the basis of charging tool fees. Accordingly it amounts to deficiency in service on the part of the O.Ps.

Relating to fixation of fees the O.Ps submitted that the authorised officer under Central Govt. is the proper authority under Rule 13(2) to raise any complaint. When there is any deficiency in service relating to price imperfection, etc. this commission has jurisdiction to entertain a complaint as an alternative dispute resolution mechanism.

 

 

Issue No.4 What relief the Complainant is entitled to get?

From the Supra discussion it is clear that the Complainant is entitled to get relief.

Accordingly it is ordered:

ORDER

The complaint is allowed on contest against the O.Ps. The O.Ps are jointly and severally liable to pay to the Complainant refund of Rs. 435/- with 9% interest with effect from date of collection within one month. The permission granted by the O.P. No.2 to O.P. No.1 for collection of tool fees at loop road, Tora and tool plaza, Barhagoda at Ch. 40.360Kms and 43.63Kms respectively on National High Way No. 06 is illegal and directed to shift the tool plaza 10Kms beyond Bargarh Muncipality area.

For harassment both the O.Ps are to pay compensation of Rs. 1,50,000/- each within one month of this order and litigation expenses of Rs. 10,000 each.

In case of non payment the entire amount will cover 12% interest P.A. till realisation.

Order Pronounced in the open court on 27^th day of March 2023

          Supply free copies to the parties.