Punjab

Ludhiana

CC/20/206

shubhjeet Singh Sethi - Complainant(s)

Versus

Bhagomajra Toll Plaza - Opp.Party(s)

M.S.Sethi

17 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:206 dated 29.09.2020.                                                        Date of decision: 17.02.2023.

 

Shubhjeet Singh Sethi R/o. H. No.538, St. No.1, Harcharan Nagar, Near Shinghar Cinema, Ludhiana, Punjab-141008.                                                                                                                                   ..…Complainant

                                                Versus

1. Bhagomajra Toll Plaza, N.H.A.I., Chandigarh Road, Near Chandigarh University, Rupnagar, Punjab-140301 through its authorized signatory M/s. Surya International Pvt. Ltd. (Email:-siplakb@gmail.com)
2. Airtel Payments Bank, Ist Floor, Tower-B, Plot No.16, Udyog Vihar Industrial Area, Phase 4, Gurugram-122001 through its authorized signatory.
3. National Highways Authority of India, G5&6, Sector 10, Dwarka, New Delhi-110075 through its Authorized signatory.

…..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. M.S. Sethi, Advocate.

For OP1and OP3           :         Exparte.

For OP2                         :         Sh. Govind Puri, Advocate.

 

ORDER

PER JASWINDER SINGH, MEMBER

 

 

1.                Shorn of unnecessary details, facts of the case are that the complainant visited Chandigarh on 17.09.2020 from Ludhiana through his car bearing RC No.PB-10-DG-4651. The said car was already having Fastag bearing Sr. No.34161FA820328AA202906C80 issued by opposite party No.2. The complainant submitted that during his journey towards Chandigarh, Toll plazas were deducted at two toll plaza namely Ghulal Toll Plaza Samrala and Bhagomajra Toll Plaza, Kharar of opposite party No.1 through Fastag. On return journey from Chandigarh to Ludhiana on same day at 13.26, opposite party No.1 denied access through toll plaza through Fastag on the objection that said fastag was not working due to low balance in the fastag maintained with opposite party No.2. Then the complainant clarified to opposite party No.1 that the fastag has sufficient balance and the complainant also paid the toll plaza charges at this toll plaza in morning through fastag but the officials of opposite parties forced the complainant to pay the toll plaza charges in cash which the complainant paid charges of Rs.65/- under compelling circumstances vide ticket No.012-00117 dated 17.09.2020. However, on the next toll plaza namely Ghulal toll plaza automatically deducted the toll charges of Rs.25/- through Fastag. On coming to Ludhiana, the complainant requested opposite party No.2 to send the statement of the account for the period 16.09.2020 to 17.09.2020 and the same was supplied from which the complainant acknowledged that opening balance as on 17.09.2020 was Rs.249.58 and after deducting Rs.65/- through fastag by opposite party No.1 there was balance of Rs.179.58 and despite having sufficient balance in fastag account, a sum of Rs.100/- more was got deposited at 10.56 AM from Paytm payment bank and on return journey to toll plaza of opposite party No.1, the complainant was having balance of Rs.279.58 in the account with opposite party No.2. The complainant further submitted that as per toll plaza rate as displayed by opposite party No.1, they are liable to charge Rs.65/- in case of single journey (one side) but in case of return journey, they are bound to deduct only Rs.100/- only for ongoing & return journey while giving benefit of Rs.30/- to the consumer but opposite party No.1 illegally deducted Rs.65/- in cash against the norms under the code ‘single journey’ whereas same was required to be counted for return journey so only a sum of Rs35/- more was required to be counted against the return journey within 24 hours however, the complainant returned back within 4 hours. The complainant further submitted that earlier before implementation of fastag, there was norms for paying single journey or for both ‘being going & returning (Up & Down)’ for minimizing the charges on the consumer but after implementation of fastag, toll plaza through automatic resources itself counted the amount if the same vehicle returned back to said toll plaza within 24 hours period, As such, opposite party No.1 was also required to deduct only sum of Rs.35/- but opposite party No.1 illegally deducted excess sum of Rs.30/-  which amounts to unfair trade practice and deficiency in service on the part of the opposite parties. The complainant also called the helpline number 1033 of opposite party No.3 but they advised to contact 8800688006 of opposite party No.2. The complainant also lodged complaint with opposite party No.2 through email dated 29.09.2020 regarding nonworking of fastag at toll plaza of opposite party No.1 on 17.09.2020 and the said complaint was registered vide different case No.6977945, 6979709 and 6981400. Opposite party No.2 vide its email reply dated 21.09.2020 informed the complainant that “as per their telephonic conversation on 21.09.2020 at 12.35 PM, we have checked and found that the tag is activated and no issue persists at our end. If it still shows blacklisted at the toll plaza then you can choose not to pay as per government regulation. Furthermore, we would like to inform you that there is no such provision to refund the amount debited at toll plaza paid in cash in Airtel Payment Bank.” The complainant further submitted that as per contents of email of opposite party No.2, he was not liable to pay in cash even officials consisting security official, helper and counter official of the opposite party No.1 compelled him to pay in cash. If fastag was not working as per version of opposite party No.1 then opposite party No.1 was required to allow to pass/leave the toll plaza without compelling to pay in cash. Moreover, the toll plaza has got no approval of the competent authority to operate and as such, opposite party No.1 has collected toll plaza illegally. Otherwise opposite party No.1 is not liable to collect toll plaza unless entire construction work is completed whereas on 17.09.2020 almost 35-45% work was still uncompleted and from toll plaza of opposite party No.2 towards Chandigarh almost entire road area was under construction which also effected the running of vehicles. In the end, the complainant prayed for directing opposite party No.1 to refund the excess amount of Rs.30/- along with interest @12% and also to penalize opposite parties to Rs.19.60 lac including cost of litigation of Rs.25,000/- for rendering deficient/negligent services and unfair trade practice etc.

2.                Notice was sent to opposite party No.1 through registered post on 26.12.2020 but none turned up for opposite party No.1 and as such, opposite party No.1 was proceeded against exparte vide order dated 30.03.2021. Notice was also sent to opposite party No.2 and 3 through registered post on 12.04.2021 but none turned up for opposite party No.2 and 3 and they were proceeded against exparte vide order dated 20.07.2021. Later on, opposite party No.2 filed revision petition No.35 of 2021 against exparte order dated 20.07.2021 before the Hon’ble State Consumer Disputes Redressal Commission, Chandigarh, Punjab which accordingly was set aside by the Hon’ble State Commission vide order dated 28.04.2022 vide which opposite party No.2 was directed to appear before this Commission on 30.05.2022 and to file written reply on or before 30.05.2022 and to deposit costs of Rs.1000/-.

3.                Opposite party No.2 filed written reply by assailing the complaint on the ground of lack of cause of action, concealment of material facts, maintainability of the complaint, lack of jurisdiction and non-joinder of necessary parties etc. Opposite party No.2 alleged that it is a public limited company and subsidiary of Bharti Airtel which received its first Payments Bank License in India from the Reserve Bank of India and it operates a technology enabled payment banking system in India to enable its customers to pay for the goods and services purchased which also includes ‘Prepaid Payment Instruments/E-Wallet’ and savings account services authorized by RBI under applicable laws. Opposite party No.2 further alleged that it has been impleaded incorrectly in the present complaint. As opposite party No.2 being a payments bank in India and providing an online system to render the banking services to the end users and is governed by RBI/NPCI regulations.

                   On merits, opposite party No.2 reiterated the crux of averments made in the preliminary objections. Opposite party No.2 alleged that the Fastag account of the complainant was duly functioned as the Toll plaza charges were duly deducted at all the toll plazas while the complainant was coming from Ludhiana to Chandigarh and this clearly shows that there was no technical glitch in the functioning of fastag issued by opposite party No.2. Moreover, as per the records available with opposite party No.2, the Fastag of the complainant was fully functional and having sufficient balance at the alleged date and time. Opposite party No.2 further alleged that the complainant also approached it on 20.09.2020 on the matter to which he was duly informed by the advisor that his fastag was active and working fine and the same was further briefed to the complainant on 21.09.2020 verbally over phone. Opposite party No.2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                During pendency of the complaint, the complainant filed an application for impleading name of authorized signatory of opposite party No.1 stating that the main grievance of the complainant is as against opposite party No.1 only and the he has already impleaded opposite party No.1 through its authorized signatory. The said application was allowed vide order dated 20.01.2023 subject to payment of Rs.200/- as costs in the Consumer Welfare Fund which the complainant deposited vide receipt No.3917204 of even date and also field amended title.

5.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of statement, Ex. C2 is the copy of statement of airtel payments bank, Ex. C3 is the receipt of Bhagomajra toll plaza, Ex. C4 is the copy of complaint moved by the complainant, Ex. C5 and Ex. C6 are the copies of emails and closed the evidence.

6.                On the other hand, the counsel for opposite party No.2 tendered affidavit Ex. RA of Mr. Ojesvi Agarwal, Authorized representative of opposite party No.2  along with documents Ex. R1 is the copy of  statement of account and closed the evidence.

7.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.     

8.                Perusal of documents shows that on 17.09.2020, the complainant commuted Ludhiana to Chandigarh and back in a car bearing registration No.PB-10-DG-4651 equipped with Fastag (a device that employs Radio Frequency Identification (RFID) technology for making toll payments directly from the account registered and linked to the issuing bank). During the onward journey from Ludhiana to Chandigarh full toll charges were deducted. However, on return journey at about 13.26 hours, the complainant had to pay toll charged in cash amounting to Rs.65/- vide Ex. C3 on the pretext that the Fastag installed by the complainant was not functional due to low balance. In this process, opposite party No.1 deducted an excess of Rs.30/- from the complainant. In his written statement, answering opposite party No.2 (Airtel Payment Bank) affirmed that from the available records with them, fastag of the complainant was fully functional and was having sufficient balance at the given date and time. This fact was also conveyed to the complainant as well by opposite party No.2. From these facts, it can be easily inferred that there was malfunctioning of electronic toll connection infrastructure by opposite party No.1.

9.                The counsel for the complainant has drawn the attention of this Commission towards the notification dated 07.05.2018 of Ministry of Road Transport and Highways, Government of India, which reads as under:-

1.       Short title and commencement – (1) These rules may be called the National Highways Fee (Determination of Rates and Collection) Amendment Rues, 2018.

(2)     They shall come into force on the date of their publication in the Official Gazette.

2.       In the National Highways Fee (Determination of Rates and Collection) Rules, 2008 (hereinafter referred to as the principal rules), in rule 2, in sub-rule (1) after clause (hc), the following clause shall be inserted, namely:-

‘(hd) “Electronic Toll Collection Infrastructure” means set of equipment comprising of hardware and software which shall facilitate electronic collection of user fees;’.

3.       In the principal rules, in rule 6, in sub-rule (3), after the second proviso, the following proviso, shall be inserted, namely:-

          “Provided also that if a vehicle user with a valid, functional FASTag or any such device with sufficient balance in the linked account crossing a fee plaza installed with Electronic Toll Collection infrastructure, is not able to pay user fee through FASTag or any such device owing to malfunctioning of Electronic Toll Collection infrastructure, the vehicle user shall be permitted to pass the fee plaza without payment of any user fee. An appropriate zero transaction receipt shall be issued mandatorily for all such transactions.”

10.              Perusal of this notification shows that since the complainant was having a valid functional fastag and was having sufficient balance in the linked account Ex. C2 at the time of crossing toll plaza of opposite party No.1 and in that contingency, opposite party No.1 was required to permit the crossing of car of the complainant without the payment of any user fees. They were further required to issue a zero transaction receipt but the officials of opposite party No.1 did not adhere to the directions contained in the notification. It also amounts to unfair trade practice and deficiency in service on the part of opposite party No.1. In these circumstances, it would be just and appropriate if opposite party No.1 is directed to refund the excess charged amount of Rs.30/- to the complainant within 30 days from the date of receipt of copy of order along with composite cost of Rs.10,000/-.

11.              As a result of above discussion, the complaint is allowed with direction to opposite party No.1 to refund the excess charged amount of Rs.30/- to the complainant within 30 days from the date of receipt of copy of order failing which the complainant shall be entitled for interest @8% per annum from the date of order till actual payment. Opposite party No.1 shall further pay a composite costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of copy of order. However, the complaint as against OP2 and OP3 is dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:17.02.2023.

Gobind Ram.

 

 

Shubhjeet Singh Vs Bhagomajra Toll Plaza                           CC/20/206

Present:       Sh. M.S. Sethi, Advocate for complainant.

                   OP1 and OP3 exparte.

                   Sh. Govind Puri, Advocate for OP2.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is allowed with direction to opposite party No.1 to refund the excess charged amount of Rs.30/- to the complainant within 30 days from the date of receipt of copy of order failing which the complainant shall be entitled for interest @8% per annum from the date of order till actual payment. Opposite party No.1 shall further pay a composite costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of copy of order. However, the complaint as against OP2 and OP3 is dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:17.02.2023.

Gobind Ram.