Kerala

Palakkad

CC/239/2022

Praveen. B - Complainant(s)

Versus

Panniyankara Toll Plaza - Opp.Party(s)

30 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Near District Panchayath Office, Palakkad - 678 001, Kerala
 
Complaint Case No. CC/239/2022
( Date of Filing : 01 Dec 2022 )
 
1. Praveen. B
S/o. Balasundaram, Mayoogham, Kiliyallur, Cheramangalam P.O, Melarkode, Alathur, Palakkad - 678 703
...........Complainant(s)
Versus
1. Panniyankara Toll Plaza
NH544, Thenidukku, Panniyankara, Vadakkenchery, Palakkad- 678 686
2. Pampampallam Toll Plaza
Salem-Kochi Highway Attappallam, Walayar - 678 621
3. The Manager
Axis Bank, Palakkad Branch
4. Popular Vehicles and Service
Near Palana Hospital, Yakkara, Palakkad. Rep. by Managing Director
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. Vinay Menon.V PRESIDENT
 HON'BLE MRS. Vidya A MEMBER
 HON'BLE MR. Krishnankutty. N.K MEMBER
 
PRESENT:
 
Dated : 30 Sep 2024
Final Order / Judgement

                DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

DATED THIS THE 30th DAY OF SEPTEMBER, 2024.

PRESENT  : SRI. VINAY MENON .V.

         : SMT.VIDYA A., MEMBER.

                                                                                                   DATE OF FILING:01.12.2022.                                              

 

CC/239/2022

               

                Praveen.B, S/o.Balasundaram.P.P, mayookam,                                        - Complainant

Kiliyallur, Cheramangalam PO,

Melarkode, Alathur,

Palakkad-678 703.

(By Adv.G.Abhilash)                                                     

 

                                                                                Vs

 

 1.           Panniyankara Toll Plaza,                                                                     -Opposite Parties

NH544, Thenidukku,

Panniyankara, Vadakkenchery,

Palakkad, kerala-678 686.

2.            Pampampallam Toll Plaza,

                Salem-Kochi Highway,

                Attappallam, Walayar,

                Kerala-678 621. (Case against OPs 1 and 2 dimissed)

3.            The Manager, Axis Bank,

                Palakkad Branch.

                (OP3 by Adv.Ullas Sudhakaran)

4.            Popular Vehicles and Service, Palakkad

                Represented by Managing Director near,

                Palana Hospital, Yakkara.

                (For OP4 by Adv.Bharathy.P)

 

       ORDER

 

BY SMT.VIDYA A., MEMBER.

 

1.      The complainant purchased a Maruti Celerio VX1 model car from the 4th opposite party on 28.07.2018.  At the time of delivery of the car, the 4th opposite party had issued Fastag to the vehicle.  The 1st and the 2nd opposite parties are the Toll Plazas operating as part of the National Highway Authority of India.  The 3rd opposite party is Axis Bank and the 4th opposite party is the dealer of the vehicle.                    

The complainant is a frequent traveller and when he passed through Toll Plaza on 24.04.2014, an amount of Rs.340/- was debited from his account and after one month, the amount was re-credited to his account.  As per law, an amount of Rs.75/- has to be charged as Toll for his vehicle and an additional amount of Rs.25/- to be paid if he returns within 24 hours.  But whenever he passes through the Toll booth, an additional amount is debited from his account and it is refunded later.  Because of this issue, sometimes he has to pay fine eventhough his Fastag account had sufficient balance.

                      Later, he came to know that the issue is due to the reason of change in the category of the vehicle. He intimated this to the opposite parties through phone and e-mail, but no action was taken by them.

                      The act of the opposite parties in debiting additional amount and refunding it later is a deficiency in service on their part.  This had caused great mental agony and financial loss to the complainant.

                      So, he approached the Commission for directing the opposite parties to pay a compensation of Rs.1 lakh for the mental agony and financial loss caused to the complainant together with cost of the litigation.

2.      After admitting complaint, notices were issued to the opposite parties.  The 1st opposite party did not appear or file version and they were set ex-parte.  All other opposite parties entered appearance and filed version.

3.      The main contentions raised by the 2nd opposite party in their version is as follows:-

                      The 2nd opposite party is an unnecessary party to this complaint.  The procedure to obtain Fastag is that the complainant himself has to apply to the Bank or to the authorities by giving the details of his vehicle number and copy of RC book and other relevant documents.  Here the complainant had taken the Fastag from the Bank.  The details with regard to the vehicle is entered by the Bank as per the information given by the complainant and if there is any mistake in that it may be due to the wrong or incorrect information given by the complainant or the Bank or the officials who have entered the details incorrectly.  For that, this opposite party is not liable.

                      If the number of the vehicle is changed in the Fastag, the amount will be deducted as per the class of vehicle entered into the Fastag.  It is the duty of the complainant to verify it.  If he has verified and rectified it in time, this would not have happened.  The complainant’s Bank who has given the Fastag is the authority to rectify the same if the complainant provides correct information.  There is no deficiency in service on the part of this opposite party.  The complainant has no cause of action against this opposite party and is not entitled to get any amount as compensation.  So, the complaint has to be dismissed against them.

4.      The 3rd opposite party in their version contended that the 4th opposite party had purchased Fastags from the 3rd opposite party for the purpose of affixing the same to LMV’s purchased and taken delivery by the 4th opposite party’s customers from their showrooms.  The 3rd opposite party has not supplied any Fastag pertaining to any other class of vehicle other than light motor vehicle to the 4th opposite party and if the allegation regarding the affixing of Fastag pertaining to another class of vehicle in the complainant’s LMV is found to be correct, the 3rd opposite party is not responsible for the same.

                      Whenever a vehicle affixed with Fastag passes through the toll booth, the toll applicable to the said class of vehicle get automatically debited from the prepaid wallet linked to the Fastag affixed in the said vehicle and the 3rd opposite party has no control over the same.  If the said pre-paid wallet is not having sufficient balance for effecting auto debit, as per the rules, fine amount as applicable ie double the Toll fees would be manually levied by the 1st and the 2nd opposite parties as the case may be, and the 3rd opposite party has no role in the said act of levying fine.  The 3rd opposite party’s role is to maintain the account of the customer to which the pre-paid wallet of the said customer is linked and to recharge the said wallet by effecting debit from the customer’s account linked to the wallet as per the customer’s instructions.  The toll amount payable by the customer while passing the toll gate would automatically debited by the system from the pre-paid wallet linked to the fastag affixed.  Any vehicle without a Fastag or an invalid Fastag entering Fastag lane would be liable to pay two times fee applicable at Toll plaza.

                      Complainant has no cause of action against the 3rd opposite party and there is no deficiency in service/unfair trade practice on their part.  The complainant is not entitled to the reliefs claimed and the complaint has to be dismissed against this opposite party with cost.

5.      Contentions raised by the 4th opposite party in their version is as follows:-

                      The opposite party admitted that the complainant had purchased a Maruti Celerio VXi model car from their showroom on 28.07.2018.  They also admitted that as a mandatory requirement, a Fastag procured from Axis Bank through this opposite party was affixed on the vehicle at the time of delivery.  The opposite party had taken utmost care and caution in facilitating the purchase of the Fastag from the 3rd opposite party.  The Fastag was affixed on the vehicle and it was activated after complying the necessary formalities.  The Fastag was credited with an account balance of Rs.200/- at the time of issuance of the same.  All transactions conducted subsequent to the issuance of the Fastag are the transactions between the complainant, concerned toll plazas and issuing bank.  The opposite party has no control over the day-to-day transactions or the account operation of the Fastag of the complainant.

                      The category of the vehicle needs to be in conformity with the make and model of the vehicle invoiced.  The registration of Fastag is done using online system and the same does not let furnishing of any in correct information not in conformity with the vehicle details invoiced.  The allegation that the category of the Fastag provided is not in conformity with the category of the vehicle of the complainant is false and incorrect as this opposite party had provided the correct vehicle category information to the 3rd opposite party Bank.

                      The opposite party is in no way responsible for the wrong debit and subsequent credit of the Fastag account of the complainant as it is a 3rd party to the fiduciary relationship between third opposite party, Bank and the complaint.  This opposite party is no way connected to the allegations and averments raised by the complainant.  Hence, they prayed for dismissal of the complaint with cost.

6.      From the pleadings of parties, the following points were framed for consideration.

          1.  Whether the complaint is maintainable as against the 1st and the 2nd opposite parties?

          2. Whether the pleadings have made out a prima facie case as against the 3rd and the 4th opposite parties?

          The following additional issues were also framed

          1. Whether the complainant is barred by limitation as alleged by the 3rd opposite party?

          2. Whether the opposite parties has control over the account operation of the Fastag of the complainant?

          3. Whether there is any deficiency in service on the part of the 3rd and 4th opposite parties?

          4. Whether the complainant is entitled to the reliefs claimed?

          5. Reliefs  if any, as cost and compensation.

7.      The complainant filed proof affidavit and Exts.A1 to A19 marked.  Marking of Exts.A14, A15, A16 and A17 are objected to as they are wiped clean and unreadable.  These documents pertain to bill issued at the Toll Plazas and not considered in evidence. Later, complainant filed an additional proof affidavit and four documents.  All are rejected.  The 3rd opposite party filed proof affidavit; no documents to be marked form their side.  Evidence closed and heard the parties.  The 3rd opposite party filed notes of argument.

8.      The issue of limitation (in Addl. issue No.1) is considered as point No.1.

                      The 3rd opposite party in their version had contended that complaint is time barred as the incident resulting in the alleged cause of action had occurred two years before the date of filing of this complaint.  From the documents, Exts.A8, A9, A10, A11, A12 and A13, it can be seen that the complainant was continuously contacting the opposite parties from the year 2020 and the last communication was in the year 2022.  So, the cause of action is continuous and the complaint filed is within the period of limitation. Question of limitation is found accordingly.

9.      Point No.1

          Opposite parties 1 and 2 are Toll Plazas through which the complainant’s vehicle had passed during the alleged transaction.  Whenever a vehicle affixed with Fastag passes through Toll booth, the Toll applicable to the said class of vehicle get automatically debited from the pre-paid wallet linked to the Fastag.  If there is no sufficient balance for effecting auto debit, fine will be levied as per the applicable rules.  So, for the alleged disputed transactions, the Toll Plazas are not responsible.  This is the contention raised by the 2nd opposite party. The Commission had considered the preliminary issue of maintainability of the complaint as against the 1st and 2nd opposite parties and dismissed the complaint against opposite parties 1 and 2 with liberty to proceed against the OPs 3 and 4.

10.    Point No.2

          The 4th opposite party, the dealer of the vehicle has purchased the Fastag from the 3rd opposite party which is affixed to the complainant’s vehicle.  The Fastag account is deducted towards the toll amount according to the category of the vehicle entered in the Fastag.  Hence from the pleadings, it is clear that the alleged transaction of excess debit from the complainant’s Fastag account may be due to the deficiency in service on the part of the 3rd and the 4th opposite parties.  So, the complainant had succeeded in making out a prima facie case against the 3rd and the 4th opposite parties.  Point No.2 is found accordingly.

11.    Addl. Issue No.2

          The 1st opposite party did not appear or file version.  The 2nd opposite party filed version stating that they have no control over the deduction of Fastag account, as the amount is deducted as per the class of vehicle entered in the Fastag account.  The 4th opposite party dealer had contended that while purchasing the Fastag from the 3rd opposite party they have taken utmost care and caution.  Fastag was affixed on the vehicle and it was activated after complying the necessary formalities.  All transactions conducted subsequent to the issuance of the Fastag are between the complainant, concerned toll Plazas and issuing bank.  The opposite party has no control over the day-to-day transactions or the account operation of the Fastag.  The 3rd opposite party also contended that whenever a vehicle affixed with Fastag passes through Toll Booth, the toll amount applicable to the said class of vehicle gets automatically debited from the pre-paid wallet linked to the Fastag and the 3rd opposite party has no control over the same.

12.    Exts.A7 to A13 are the communications between the complainant and the 3rd and the 4th opposite parties.  As per Ext.A10 e-mail communication to the 4th opposite party, the complainant had stated that he came to know that the issues with regard to the Fastag is due to the vehicle classification as MAV instead of LMV and as a result the Fastag account is debited with a higher amount at Toll Plaza.  Ext.A6, the e-mail from Axis Bank, the 3rd opposite party states that “please note that if we are not receiving any response from your side within two days, we would be changing the vehicle class associated with Fastag in our database and also recover the differential amount from your wallet account. ”The vehicle classification has to be done in our data base for Toll Trip charges would be recovered as the revised vehicle class itself and no separate violation/dispute by other Toll Plazas in future.  For your information, the vehicle class modification has to be done by Tag issuing Bank mandatorily for violations raised by Toll agencies as regulatory requirements.” From this, it is clear that, eventhough the opposite parties have no control over the Fastag operation, the vehicle classification has to be done by the 3rd opposite party in their database for collecting the Tolls.

          Addl. issues 3 to 5

13.    In Ext.A6 mail, the 3rd opposite party had asked the complainant to send the front and side images of the vehicle along with vehicle registration copy for doing the vehicle class modification and the complainant had sent the picture on the next day itself.  Inspite of complying the requirements sought for by the 3rd opposite party, they did not do anything to solve the issue.  It is a deficiency in service on the part of the 3rd opposite party.

14.    Because of the failure on the part of the 3rd opposite party to carry out the vehicle class modification in time, the complainant was forced to pay the fine amount even though the extra amount debited from his fastag account as “adjustment entry” is credited to this account after 15 days.

                      Because of the deficiency in service on the part of the 3rd opposite party, the complainant had suffered mental agony and inconveniences and they are bound to compensate the complainant for that.

                      In the result, the complaint is allowed in part against the 3rd opposite party directing them to pay Rs.20,000/- for their deficiency in service, Rs.15,000/- for the mental agony suffered by the complainant and Rs.5,000/- as cost of the litigation.

The above amounts are to be paid within 45 days of receipt of this order, failing which the opposite parties are liable to give Rs.500/-as solatium per month or part thereof, from the date of the order, till the date of payment.

Pronounced in open court on this the 30th day of September, 2024.

                                                                                    Sd/-

                                                                      VINAY MENON .V, PRESIDENT

 

                                                                                                Sd/-

                                                                                  VIDYA A., MEMBER.

                                   

                                                           APPENDIX

          Documents marked from the side of the complainant:

Ext.A1: Statement of  Account received by the complainant from Popular vehicles.

Ext.A2: Vehicle Invoice received by the complainant from Popular vehicles.

Ext.A3: Certificate cum policy schedule received by the complainant from National Insurance.

Ext.A4: Proof of fitment of fastag received by the complainant from Axis Bank.

Ext.A5: Registration certificate of vehicle of the complainant.

Ext.A6: Complaint sent to the Axis Bank and replay from the Axis Bank dated 11.02.2019.

Ext.A7: Complaint sent to the Axis Bank and replay from the Axis Bank dated 17.07.2019.

Ext.A8: Complaint sent to the Axis Bank and replay from the Axis Bank dated 16.02.2020.

Ext.A9: Email of complaint sent to the Axis Bank dated 25.02.2020.

Ext.A10: Email of complaint sent to the Popular vehicles dated 02.12.2020.

Ext.A11: Email of complaint sent to the to the Axis Bank dated 30.07.2022.

Ext.A12: Reply sent by the Axis Bank dated 30.07.2022.

Ext.A13: Reply sent by the Axis Bank dated 31.07.2022.

Ext.A14:  Payment receipt of Rs.150/- to the Valayar Toll Plaza dated 31.07.2022.

Ext.A15: Payment receipt of Rs.150/- to the Valayar Toll Plaza dated 31.07.2022.

Ext.A16: Payment receipt of Rs.150/- to the Valayar Toll Plaza dated 23.10.2022.

Ext.A17: Payment receipt of Rs.150/- to the Valayar Toll Plaza dated 23.10.2022.

Ext.A18: Payment receipt of Rs.150/- to the Valayar Toll Plaza dated 26.10.2022.

Ext.A19: Payment receipt of Rs.150/- to the Valayar Toll Plaza dated 26.10.2022.

            Document marked from the side of Opposite party:NIl

            Document marked from the side of Court: Nil

            Witness examined on the side of the complainant: Nil

            Witness examined on the side of the opposite party:  Nil

Court witness: Nil

            Cost : 5,000/-.

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.

 

 

 
 
[HON'BLE MR. Vinay Menon.V]
PRESIDENT
 
 
[HON'BLE MRS. Vidya A]
MEMBER
 
 
[HON'BLE MR. Krishnankutty. N.K]
MEMBER
 

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