D.o.F:2/12/2013
D.o.O:21/08/2014
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.272/13
Dated this, the 21st day of August 2014
PRESENT:
SMT.P.RAMADEVI : PRESIDENT
SMT.BEENA K.G : MEMBER
SMT.SHIBA.M.SAMUEL : MEMBER
P.T.Mohankumar,
S/o B.K.Gopalan Nambiar,
Chithrakala ,Karattuvayal, : Complainant
Hosdurg, Po.Kanhangad
Kasaragod. Dt.
1.Sri.M. Sreekantan Nair,
S/o Madhavan Pillai, Contractor,
R/at Lotus, Near L.V.Temple,Hosdurg,
Po.Kanhangad.
2.General Manager (co)
Corporate office at G-5&6 sector 10 : Opposite parties
Dwaraka, New Delhi 110045.
National Highway Authority of India
3. Project Director
National Highway Authority of India
No.2/2175-B,Kriashnakripa,
Aishwarya Road,Civil Station PO,
Kozhikode-673230.
(Adv. Sri.K.Vijayan)
ORDER
SMT.P.RAMADEVI : PRESIDENT
The brief facts of the complaint are that the complainant is a practicing lawyer and his wife is a lecturer in Nehru College,Padnakkad and the complainant is compelled to use the national highway between Kanhangad and Nileshwar daily and he has no alternative way and after construction of the railway over bridge at Padnakkad the opposite party being the contractor started collection of toll from vehicles passing through over bridge and after inauguration of the passage, there was wide spread agitation by locals, political parties against the toll collection and there was malpractice and corruption and favouratism in the realization of toll collection and due to the strong protest offered by the locals and political parties the toll collection was abandoned for a while and after a long gap without giving notice to the general public toll booths were installed and the opposite party started collection of toll and the petitioner is paying Rs.25/- per day and the toll fixed is exorbitant and it is unscientific and arbitrary and moreover unscientific installation of toll booth and the shortage of space create traffic block and thereby as a passenger the complainant is suffering mentally and monetarily. Hence this complaint is filed alleging deficiency in service against opposite party.
Complainant also filed an emergent IA.294/13 seeking injunction against opposite party from collecting the toll fee. Upon hearing the complaint the Forum issued emergent notice to the opposite party. On receipt of notice from this Forum the opposite party entered in appearance and filed their version. In the version opposite party denied all the allegations made against him by the complainant and he submitted that he is a contract holder of the contract dt.21/10/2013 entered into between National Highway Authority of India and he himself. The opposite party further submitted that before entering into the contract all the legal formalities in tendering method was followed by NHAI and after complying all legal formalities only the tender was fixed against this opposite party and this opposite party follows the terms and conditions of contract and he cannot act beyond the contract and the opposite party further submits that toll rates were fixed by the NHAI and whatever defects or deficiency or latches is there NHAI is responsible for that hence NHAI is a necessary party in this proceedings and the complaint is bad for non joinder of necessary parties. Thereafter the complainant filed IA 308/13 to implead supplementary opposite party 2&3. The General Manager National Highway Authority of India and the Project Director National Highway Authority of India respectively . the Forum allowed IA and issued notice to supplemental Opposite parties 2&3.
Supplemental respondentNo.3/opposite party No.3 served notice and entered in appearance through his counsel Sri.K.Vijayan and filed the counter and version. In the counter the opposite party taken a specific contention that the complaint is not maintainable before this Forum and denied all the allegation s made against them by the complaint. The first contention raised by the 3rd opposite party is that the complaint is not maintainable before the Forum since the National Highway Authority of India(NHAI) is an authority constituted under the National Highway Authority of India Act 1988 and the opposite parties Nos 2&3 are its officials and as per Sec.28 of the said Act no suit, prosecution or other legal proceedings will lie against action taken by National Highway Authority of India or its officials in the official capacity and the complaint against the General Manager and Project Director is compressely barred by law.
Sec.28(1) of the National Highway Authority of India Act 1988” no suit, prosecution or other legal proceedings shall lie against the Authority or any member or officer or employee of Authority for anything which is in good faith done or intended to be done under this Act or the rules or regulations made there under’.
In order to substantiate their contentions the learned counsel for the opposite parties 2&3 submitted so many notification and decisions of apex courts. Considering all the facts on record and on plain reading of section 28 of the National Highway Authority of India Act 1988 we are of the opinion that no complaint shall lie against opposite parties 2&3. Opposite party No.1 is acting as per the contract entered into between NHAI and I st opposite party. Since no complaint will lie against the opposite parties 2&3 , the complaint is not maintainable against Ist opposite party also. Hence the complaint is dismissed as it is not maintainable.
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
/forwarded by Order/
SENIOR SUPERINTENDENT
eva
