Haryana

Charkhi Dadri

CC/32/2021

Smt. Naresh Kumari Advocate - Complainant(s)

Versus

Manager, K. C. C, Pvt Ltd. - Opp.Party(s)

Sh. Sachin Siwach

23 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

 CHARKHI DADRI.

                                                            CONSUMER COMPLAINT NO. 32 of 2021.

                                                            DATE OF INSTITUTION:           04.02.2021

                                                            DATE OF ORDER:                    23.07.2024     

 

Smt. Naresh Kumari Advocate, District Court premises, Charkhi Dadri, Tehsil & District Charkhi Dadri

 

                                                                ………Complainant.

                Versus

1. Manager, K.C.C. Private Limited, Toll Plaza, Kitlana, Tehsil & District Bhiwani.
2. National Highway Authority of India, Head Office G 5-6, Sector-10, Dwarka, New Delhi-110075

………Opposite Parties.

  

COMPLAINT UNDER THE CONSUMER PROTECTION ACT,

 

BEFORE:   Hon’ble Sh. Manjeet Singh Naryal, President.

                   Hon’ble Sh. Dharam Pal Rauhilla, Member.

 

Present:       Shri Sachin Siwach, Advocate for complainant.

                   Shri Mehtab Singh Punia, Advocate for Opposite Party no.2.

                   OP no.1 exparte vide order dt.27.02.2023.

ORDER:-

                   This present complaint has been filed by complainant against the opposite parties (for short the OPs) under Section 35 of the Consumer Protection Act,2019 alleging deficiency in services on their part.

2.                The brief facts of the present case are that complainant has vehicle bearing registration no. HR-19N-9774. On dated 07.12.2020, the complainant was returning from Bhiwnai to Charkhi Dadri and in between Bhiwani to Charkhi Dadri, there was a toll plaza at Kitlana, Bhiwani which is being operated by the OPs. On 07.12.2020 at 12:22:20 when the complainant reached the TOLL PLAZA, the operator of the toll booth told to the complainant to pay Rs.40/- for toll fee. The complainant informed that there was fastag on the vehicle why were they asking for cash. On this operator reverted that her fastag was not working and the complainant had to pay the toll fee in cash. The complainant told them  that fastag  was working and had adequate balance in account, but the operator of the OP no.1 did not consider the genuine request of the complainant and misbehaved with the complainant and took Rs. 40/- from the complainant forcefully and illegally. After crossing the Toll Plaza, the complainant had received a message on her mobile that an amount of Rs.40/- was deducted from her fastag account at Kitlana (Bhiwani). On which, the complainant reverted back and showed the message of deduction of Rs.40/-, then the OPs gave the receipt of Rs.40/- collected in cash for toll crossing and said that they had not deducted your money from Fastag. After that the complainant served a legal notice dated 08.12.2020 through her counsel Sh. Sachin Siwach, Advocate but the opposite parties did not reply the same.   Branding the act of the OPs as illegal and arbitrary, the complainant had prayed for the refund of the said amount of Rs.40/- alongwith interest @24% with compensation of Rs.4,50,000/- for harassment and  Rs. 11,000/- as litigation expenses and any other relief which this Hon’ble Commission deems fit and proper.

3.                Notice was sent to OP no.1 but none appeared on behalf of OP no.1. Hence, OP no.1 was proceeded exparte vide order dt.27.02.2023.

4.                Opposite party no.2 on appearance filed written statement alleging therein that as per clause no.21 of agreement signed between NHAI and toll agencies, it is specifically provided that “the Contractor shall be solely responsible for efficient and transparent working and management of User Fee Collection at all points of time.”

Further as per clause No.34 of the agreement -

“The contractor shall indemnify the Authority and its officers, agents and authorized  representatives against all liabilities, damages and expenses arising from any claims for damages, suits, proceedings, recoveries, judgments or executions (including, but not limited to litigation costs and expenses and reasonable User Fees of the Attorney) which may be made or recovered from the Authority by reason of any acts, omissions(whether  negligent or otherwise) or due to willful misconduct of the Contractor  including its agents, survivors and personnel.”

          It was averred that from the above facts, it is clear that the OP no.2 has nothing to do with the alleged claims and toll agency which is liable to manage and control the affairs relating to toll and all other complaints of the personal customers. OP no.2 had  averred that answering respondent had no such personal knowledge regarding the alleged complaint. OP no.2 further averred that in view of the circumstances mentioned above, there is no deficiency in service on the part of OP no.2 and the complaint of the complainant is liable to be dismissed against respondents with costs.

5.                In order to make out his case, the complainant has tendered into evidence affidavit Ex.CW1/A and documents Ex. C1 to Ex. C5 and closed the evidence on 25.05.2023

6.                Ld. Counsel for the OP no.2 made a statement that written statement filed be read in his evidence and tendered documents Ex.R1 & Ex.R2 on 28.03.2024.

7.                We have gone through the record of the case carefully and heard the learned counsels for the parties. The brief of the facts emerged are that the complainant on 07.12.2020 was returning from Bhiwani to Charkhi Dadri by driving her vehicle No. HR-19N-9774 and when she reached Toll Plaza at Kitlana, Bhiwani, the operator of the Toll Booth (OP-1) demanded Rs.40/- for toll fee on which the complainant informed that there was fastag on the vehicle with sufficient balance. The OP no.1 informed that the fastag of complainant was not working at that time and she had to pay the amount Rs.40/- by cash. Leaving no alternate, the complainant had paid Rs.40/- in cash to the operator of OP no.1 and operator issued toll receipt vide transaction Id 110921 dated 07.12.2020 at 12:22:20 hours as reflected in Ex.C1. After sometime, the complainant had received a message on her mobile that an amount of Rs.40/- was deducted from fastag account at Kitlana Toll Plaza, vide Order ID 376843726 Toll crossed on 07.12.2020,12:19 hours and money deducted no 07.12.2020, 12:28 hours as reflected in Ex.C2.

8.                It is averred that the complainant has been charged twice for crossing the Toll Plaza for the same journey once Rs.40/- paid in cash and secondly  Rs. 40/- deducted from the fastag and this fact has been proved from the evidences placed on record by the complainant. From these facts, it is substantiated that the vehicle of the complainant passed through the lane meant for the vehicles having Fastag. It is the duty of the attendant not to charge any amount in cash for passage of the vehicle unless the system of scanning fastag is out of order. It has been clearly proved that the OPs have charged twice from the complainant for a single journey using the toll road. The complainant has filed her sworn affidavit Ex.CW1/A wherein she has reiterated all the assertions made in the complaint. Moreso, the entire evidence produced on record by the complainant remains unrebutted and unchallenged as there is no iota of evidence on record produced by the OPs to refute the allegations of the complainant and this complaint is liable to be accepted against the OPs.

9.                The OP no.2 who had engaged the OP no.1 as operator to operate the said Toll Plaza is responsible for any deficiency on the part of OP no.1 being Principal of OP no.1 as the relation between OP no.1 and OP no.2 is that of Principal and Agent. Hence, in this case, the OP no.2 being Principal cannot be absolved from the liability arisen due to action of misconduct of the staff of the OP-1.  In this way both OPs are equal liable  for charging double fee for single journey which caused harassment to the complainant. It is obligatory on the part to OPs to manage the toll plaza smoothly with no hindrance and inconvenience to the commuters. In this case, the OPs have failed in meeting their obligations and responsible for mismanagement at toll plaza and deficiency in service, hence liable for refund of toll fee charged twice and pay for harassment and litigation charges apart from penalty for causing pecuniary loss as well as inconvenience to the complainant. 

10.              With the above-mentioned observations and findings, the present complaint is hereby allowed and the OPs are directed to comply with the following directions jointly as well as severally:

1. To refund the amount of Rs.40/- (Rupees Forty only) to the complainant along with interest at the rate of 9% from the date of deposit i.e.       07.12.2020 till realization.
2. To pay compensation worth Rs.5,000/- (Rupees Five Thousand only) on account of mental agony and harassment.
3. To pay Rs.5,000/- (Rupees Five Thousand only) as litigation expenses.
4. To plant 500 trees on both sides of the National Highway, Charkhi Dadri to Bhiwani in District Charkhi Dadri area with adequate safeguard and to take care of the so planted trees as to grow properly and submit the proof with this Commission as penalty for mal-trade practice and mismanagement on the part of OPs as mentioned above.

11.              The above directions be complied within 45 days from the date of this order, failing which OPs shall be liable to pay interest                                                on the said amount mentioned at (i) to (iii) above, @ 12% for the defaulted period. As regards, compliance of order at (iv) above, a compliance report be submitted to this Commission within 45 days with site photograph of plantation failing which additional plants @ 50 plants per day will be planted for delayed period.

                    Certified copies of the order be supplied to both the parties, free of costs and file be consigned to the record room after due compliance.