DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 4th day of December, 2023
Present : Sri. Vinay Menon V., President
: Sri. Krishnankutty N.K., Member Date of Filing: 28/05/2022
CC/97/2022
Viju K. Raphel,
S/o K.O. Rappayikutty,
Kallery house, Pazhayayalakam,
DPO Road, Thottungal,
West Yakkara, Palakkad – 678 014. - Complainant
(By Adv. V.G. Geetha)
Vs
- M/s. Thrissur Expressway Ltd.,
(Rep. by its Manager)
Panniyankara Toll Plaza, Panniyankara (PO),
Vadakkancherry, Palakkad – 678 686
- The National Highways Authority of India,
Rep. by its Manager,
House No.310A,
Chandranagar Extn., Chandranagar Colony,
Chandranagar (PO), Palakkad – 678 007
- State Bank of India,
Rep. by its Manager,
English Church Road,
Palakkad – 678 001 - Opposite parties
(OP1 by Adv.Sreenath S.,
OP2 exparte
OP3 by Adv. M/s. V. Raghuvaran & K. Dhananjayan)
O R D E R
By Sri. Vinay Menon V., President
- 1st O.P. is a concessionaire of the 2nd O.P. Statutory Authority who manages levying of toll over a stretch of road built by the 2nd O.P. Complainant purchased Fastag supplied from the 3rd O.P.
- Quintessential pleadings and grievance of the complainant pertains to levying of penalty from the complainant by opposite party 2 while using the Fastag issued by the 3rd O.P. For no fault of the complainant, even while the Fastag account was having enough fund, the O.P.1 failed to debit Rs. 100/- from the complainant and charged additional Rs. 100/- being the penalty. Aggrieved thereby this complaint is filed.
- 1st OP filed version stating that since the Fastag of the complainant did not respond to electronic sensor, the first OP deducted double the amount in accordance with the Rules applicable to them and there was no deficiency in service on their part.
- OP 2 did not enter appearance and were set exparte.
- OP3 filed version stating that even though they supplied the Fastag, it was manufactured some other person and they were not liable whatsoever in any manner.
- Pleading and counter pleadings considered, the following issues were raised by this Commission.
- Whether the complaint is bad for non-joinder of necessary parties?
- Whether the incident happened due to the defect in the Fastag of complainant’s vehicle?
- Whether the levying of fine by OP1 was as per the rules and guidelines of NHAI?
- Whether there is any deficiency in service / unfair trade practice on the part of OPs?
- Whether the complainant is entitled to the reliefs claimed?
- Any other reliefs?
7.(a) Complainant filed proof affidavit and marked Exts. A1 to A4.
Marking of Ext. A2 was objected on the ground it was an SMS message, it does not reveal any details as to the date and time of issue. Ext. A2 can be taken as proof for the matters it will disclose. Hence the document need not be rejected in toto.
Marking of Ext. A3 was objected to on the ground that it did not accompany S. 65B certification. Ext. A4 was objected because it was a photocopy. Since this Commission is not bound by the tenets of IEA, these objections are overruled.
Marking of Exts. A2 and A4 were further objected to on the ground that they were potential subjects of human intervention and therefore forgery. Since the O.P.s failed to adduce any evidence to prove that the said documents were a forgery, this objection is also overruled.
(b) O.P. 2 filed proof affidavit and marked Ext. B1.
Marking of Ext. B1 was objected to on the ground that the said documents were sought to be produced as per order dated 17/10/2022 in I.A. 425/2022 and which the O.P.1 had failed to produce and adverse inference was ordered as early as 16/12/2022.
We find merit in the contention of the complainant. The O.P.1 has not sought leave of this Commission to produce the said document considering the pendency of the Order dated 16/12/2022 in I.A. 425/2022. Ext. B1 can be dispensed with.
(c) O.P.3 did not produce any documents.
8. Be that as it may, in the facts of circumstances of the case, for reasons to be stated infra, this Commission is constrained to deviate from and ignore the evidence adduced by the parties and resort to consider the issue based on pleadings and question of law.
At the time of admission of the complaint as well as the framing of issues, two crucial questions were left out or rather slipped out of our notice. But those two questions and their answers formed part of the arguments. Without considering and arriving at an infallible conclusion regarding those two additional issues that were left out, any discussion on the issues already framed would be an exercise in futility.
9. The issues that would touch upon the maintainability of this case are as follows:
A) Whether the complaint is maintainable as against OPs 1 & 2?
B) Whether there is any liability cast on OP3?
Issue A
10. Counsel for the complainant argued vehemently lobbying for the position that the 1st O.P. is a service provider under the Act.
We differ for the position maintained by the complainant. The 1st opposite party is a concessionaire of the 2nd O.P., National Highways Authority of India, a Statutory Authority constituted by a legislation vested with the duty, responsibility and authority to develop, manage and maintain national highways in India. Subsequent to construction, in order to recover expenses incurred in construction and maintenance of the said highways, this concessionaire is permitted to collect user fees from users of the said highway. Usage of highways by motorists in the said facts and circumstances cannot be construed as availing services for consideration as contemplated under the Consumer Protection Act.
11. Even if there be patent illegality, irregularity, deficiency, arbitrariness or unfair trade practice, the opposite party cannot be at par with a service provider as contemplated under the Consumer Protection Act, so as to vest this Commission with adjudicatory authority.
12. Hence, we hold that this Commission has no jurisdiction whatsoever to adjudicate this dispute as against O.P.s 1 and 2.
Issue No.B
13. Per pleadings in the version of OP 3, we come to an understanding that the trouble was with the chip of the Fastag that was installed on the complainant’s car. O.P.3 has also repudiated the allegation that the Fastag was supplied by them in para 4 of their version. The complainant has not, except for a vague reference in paragraph 9 of the memorandum of complaint about the 3rd O.P. being the supplier of Fastag, sought for any relief as against the 3rd OP by raising cogent pleadings. Complainant has not amended the pleadings even after receiving the version of 3rd O.P. Therefore no culpability can be attributed by us, in the facts and circumstances of the case, as against OP3.
14. Therefore we hold that the complainant has no claim as against OP3.
15. Accordingly, we are left with no alternative but to dismiss the complaint. We do so.
Pronounced in open court on this the 4th day of December, 2023.
Sd/-
Vinay Menon V
President
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Original receipt issued by OP1
Ext.A2 – Print out of message
Ext.A3 - Copy of fastag account statement
Ext.A4 - Copy of certificate of registration of vehicle bearing No.KL09AN8629
Exhibits marked on the side of the opposite party:
Ext.B1 – Printout of the Gazette of India bearing No.224 dated 15/5/2020
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party: Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
