BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAPURTHALA.
Complaint No.54 of 2019
Date of Instt. 11.6.2019
Date of Decision :16.12.2024
Shri Mukesh Mittu S/o Mohinder Pal Mittoo r/o House No.57, Mansa Devi Nagar, P.O. Satnampura, Phagwara-144402
....Complainant
Versus
The Panipat-Jalandhar Nh-1 Toll way Pvt. Ltd Toll Plaza: Ladowal (Km328 In Nh-1) ( Through its Authorised Signatory) Office at Toll Plaza Ladowal Ludhiana.
The National Highways Authority of India G-5 and G-6, sector 10, New Delhi-110075 (Through its Authorised Signatory) ...Opposite parties
Complaint under section 12 of Consumer Protection Act
Quorum: Before: Sh. Rajesh Bhatia (President)
Smt. Rajita Sareen (Member)
S. Kanwar Jaswant Singh (Member)
Present: Sh. Nitin Mittoo, Advocate for complainant.
None for Ops.
Order
Sh. Rajesh Bhatia (President)
1. The complainant has preferred this complaint under section 12 of Consumer Protection Act stating therein that on 30/12/2018, complainant along with his family travelled from Phagwara to Ludhiana for meeting his relatives using the National Highway to travel to his destination. The National Highway is constructed and maintained by OP No.2 through OP No.1. The complainant used the services provided by the OPs. The complainant in his course of travel from Phagwara to Ludhiana used the National Highway resulting which as per the provisions levied by OP No.2, complainant has to give a toll charge called as the toll tax at the Ladowal toll plaza which is taken in care by OP No.1. OP No.1 charges the toll charge in lieu of which it provides the services such as well constructed patch less highways, streetlight facility, washrooms, quick charging of the tax from the number of booths installed at the toll plaza, emergency services, green belt etc. While using the highway in Phagwara, complainant felt harassed as the road was not constructed properly as there were unexpected diversions due to incomplete flyover near the Bus Stand, Phagwara. The diversions were for about 1000 meters or more, which causes inconvenience to the general people, and no efforts are being made to complete the construction of the said Fly-over. The highway was mostly covered with patches and there were various spots in the highway where there were deep picket which caused the complainant to slow down his average speed of his vehicles and to the utter dismay of the complainant, the Satluj river bridge was covered with poor construction of road and to the further surprise the bridge didn't have any street light due to which it caused difficulty to the complainant while locating the vehicles while crossing the Satluj river bridge at the time he was returning back to his native city of Phagwara. There was no green belt maintained or properly established by the OPs due to which the animals and other public crossed the highways which forced the complainant to reduce its speed and at times he had to apply immediate breaks while saving the animals from getting strike with the car of the complainant which caused unexpected jerks and inconvenience to the complainant. It caused the complainant a lot of time in reaching the toll plaza and on reaching the toll plaza, complainant had to wait for long time standing in the queue due to improper and slow passing of the vehicular traffic from the toll booths constructed for the purpose of collection of toll tax. As per version of complainant, the lanes made are improper, congested and the staff appointed is working in very slow and lenient manner which causes the traffic to congest which eventually leads to long queues. The complainant had to wait for about ten minutes before he reached to the toll booth for the purpose of paying the toll tax whereas, as per the provisions stated in the information given by the OP No.2 through its authorized signatory which admitted that there is total waiting time of 3 minutes, if three minutes exceeds in waiting, then there is provision to pass the vehicle free of cost. The copy of the information sought under the Right to information Act, 2005 is attached but to utter dismay of the complainant, the operator present on duty showed the complainant a letter about the clarification on extant rules/guidelines on reported waiver of user free (toll) at free (toll) plazas in case of waiting times more than 3 minutes. It was a matter of shock for the complainant when he came to know that he has been fooled by the OP through their representatives. Although the family members of the complainant recorded the whole incident in their mobile phone. After a lot of arguments by the OPs through their operator, a toll ticket was issued vide ticket no. 56E984876D2132 through booth & operator: 19 & 00345. Even more the operator used very foul, disgraceful language to the complainant and all his requests were thrown on deaf ears and ultimately the complainant had to make the payment of the toll tax which was illegal and against the provision laid down in law through various rules and regulations formulated from time to time in this regard. As per the complainant faced a long queue due to which a lot of his valuable time got wasted as the complainant has fixed the time to meet his relatives at various places in Ludhiana to which he was heading to. The day was a holiday, which was kept by the complainant to rest and enjoy the holiday with relatives and friends but to the poor services provided by the OPs, the day of complainant and his family went wasted in traffic caused by the poor maintenance of the highway to which the OPs are bound to maintain against which the Ops are charging service amount in form of the toll tax. The complainant was harassed by the humiliation caused by the OPs and for his peace of mind left the matter but certainly on dated 17/5/2019, the complainant was going back to home from his shop at night by using the national highway and his car striked with an upward tiles of the manhole is in middle of the highway at Gol Chowk (Paper Chowk), Phagwara which was not properly constructed and maintained resulting which the car of the complainant got imbalance after striking in the upward part of the tiles of the manhole due to which the front left tyre of the car burst and after a lot of struggle the car was controlled by the complainant and he was fortunate enough that no serious injury was caused to him but the front tyre of the car burst due to which he had to buy a new tyre and get it replaced. It is pertinent to mention here that due to this accident it took the complainant 3 hours to get the tyre of the car replaced. The complainant was harassed due to this strike down of the car and it was very difficult in night to arrange a new tyre and get it replaced. This amounts to unfair trade practice and deficiency in service on the part of OPs and complainant has prayed that OPs be directed to refund the amount of toll charged for violating the three minute rule and the harassment and mental agony faced while driving in heavy traffic due to diversions and the jerks faced and the inconvenience and the harassment face while driving his car and using the national highway on 30/12/2018 i.e. Rs. 185/- and further Ops be directed to refund the cost of the front left tyre of the car burst down due to which new tyre was purchased and replaced with the burst one which happened due to poor maintenance of manholes on the national highway by the Ops i.e. Rs. 3000/- and further OPs be directed to pay Rs. 1,00,000/- as compensation due to mental pain, agony and harassment and Rs. 11,000/- as cost of present complaint.
2. Notice of the complaint was served to the OPs and OP No.1 appeared through counsel and filed his written reply by taking preliminary objections that this Forum has no jurisdiction to entertain and decide the present complaint because no cause of action arose in district Kapurthala. No accident/incident occurred in the territorial jurisdiction of Kapurthala nor any cogent proof in this regard. Secondly, the complainant is not the consumer on the alleged date of incident i.e. 17/5/2019. The roads and bridge are properly maintained by the OPs. Moreover flyover at Gol Chowk (Paper Work) Phagwara is not being constructed by the answering OP. It is being constructed as stand-alone project by other agency under the direction of National Highway Authority of India. Therefore, no cause of action if any exists between the parties. This forum has no jurisdiction to hear and decide the present complaint because, the project office of the company is at Ghaggar Toll Plaza, Devi Nagar, Ambala City and Toll Plaza of the company is at Ladowal, District Ludhiana. Secondly the project office of the OP No.2 is also at Ambala and territorial jurisdiction if any is at Ambala and territorial jurisdiction if any is at Ambala and not at District Kapurthala. The present complaint does not come under the preview of Section 12 of the Consumer Protection Act, 1986 because no goods sold or delivered to the complainant nor the complainant is “consumer” as defined under section 2(d) (ii) of the Consumer Protection Act, 1986 because the complainant had access to the National Highway free of costs at Gol Chowk, Phagwara on the alleged date of incident i.e. 17/5/2019, which is not under the domain of the answering OP. The answering OP is only Concessionaire of National Highway Authority of India and maintenance of Project Highway is being done on the directions of OP No.2 as per Concession Agreement. Toll Fee is collected as per norm/rates fixed by OP No.2 on their behalf. Timely inspections are being made by the OP No.2 regarding maintenance and also providing facilities as per agreement. Therefore, no complaint lies against the answering OP. Furthermore, no car number found mentioned in the complaint and no registration certificate attached by the complainant in his complaint, which depicts that a false complaint has been filed by the complainant. The complainant has not come with clean hands before the Court and concealed material facts with malafide intention to get undue favour of this Hon'ble forum for which they are not entitled. There are thousand of users of Project Highway, and no complaint was filed in this regard. Rather due to construction of six lane of the project highway and construction of bridge etc. it give a big relief to users by which saving their time and energy to reach their destination. The OP No.1 being the Concessionaire of OP No.2 i.e. National Highway Authority of India is authorized to collect toll from the users of N H No.1 as per contract Provisions which is based on Toll Policy of Govt. of India and also to undertake the work of Construction, Operation and Maintenance of NH-1 in Panipat Jalandhar Section (Km 96 to Km 387.100) on the directions of National Highway Authority of India. On merits, the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.
3. OP No.2 appeared through his counsel and filed his written reply by taking preliminary objections that complainant has estopped by his own act, conduct and own acquiscence's and admissions and omissions from filing the present complaint. This Forum has no jurisdiction to try, entertain and pursue with the present complaint. The complainant has failed to demonstrate any deficiency in service on the part of answering OP. Moreover, bare perusal of the complaint so filed by the complainant would reveal the fact that the complainant has sought the relief from this Forum which is beyond the jurisdiction of this Forum and as well as beyond the scope and ambit of Consumer Protection Act, as such, the complaint deserves to be dismissed from this Forum alone. It is submitted that the complaint has been filed with ulterior motive and malafide intention to cause harassment and prejudice to the answering OP, which is a government department of long standing and high repute and to extant money it without just cause or valid reason. The complainant has not acted in good faith with respect to subject of this complaint and has approached the Hon'ble Forum with unclean hands, whereas it is a settled legal preposition that “one who seeks equity must come with clean hands”. The complainant has failed to set up a nexus between the damages claimed in the present complaint and the damage suffered by him. The compensation claimed in arbitrary, without basis and is an abuse of the process of law. The complaint being frivolous and vexatious is liable to be dismissed under Section 26 of the Consumer Protection Act as the complainants has failed to make out a case of “Deficiency of Service” as alleged or otherwise, within the meaning of Consumer Protection Act, 1986. The complainant had concealed and suppressed the material and relevant facts of the case. The present complaint is also barred under the provisions of National Highway Authority of India Act, 1986 wherein Section 28 of the said Act provides the protection to the employees of National Highway Authority of India for the action taken in good faith. On merits, the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.
4. The complainant filed rejoinder to the written statement of OP No.1 reiterating the allegations made in the complaint and controverting those made in the written statement.
5. To prove his case, counsel for complainant submitted affidavit alongwith document Ex. C1 to Ex. C13.
6. On the other hand, OP No. 1 examined Nirmal Kumar Manager who submitted his affidavit Ex. RW1/A alongwith document Ex. R1.
7. We have heard the learned counsel for the complainant and also gone through the written arguments filed by learned counsel for complainant and OP No.1.
8. The opposite parties No.1 & 2 filed separate written statement in this Commission and both the opposite parties had taken preliminary objections. The Opposite party No.1 has taken the objection of jurisdiction of this Commission and has also separately filed an application for the same which was decided by this Commission on 24.01.2020. The present complaint is filed by the complainant for the payment of toll tax to the opposite party no. 1, which is authorized to collect the same as per agreement between the opposite party No.1 and opposite party No.2. The opposite parties have taken preliminary objections in their written statement and prayed for the dismissal of the complaint and in para no.11 of the reply on merits by the Opposite party No.1, it is alleged that the complainant has not mentioned even his car number in the complaint and also so many other allegations by the opposite party No.1 are more against the complainant regarding the evidence produced by the complainant in his complaint. We have also observed the same that the complainant has nowhere mentioned in his complaint nor the complainant has given any evidence that he is the owner of car for which the complainant paid toll tax to the opposite party no.1. The opposite party even has taken this plea in their written statement that the complainant has not mentioned the registered vehicle number of his car and the same has also been observed by this Commission. The complainant has not even filed any copy of RC as proof of ownership of car before this Commission and it is very necessary for the complainant to firstly establish that he is the consumer of the opposite parties as owner of vehicle i.e. car vide registered number of the vehicle but the complainant has not filed any evidence regarding the ownership of the vehicle. So the plea of the complainant in his complaint and evidence produced by complainant are also vague and all the other allegations of the complaint are not proved by the complainant. The present complaint is not proved as per allegations by the complainant against the opposite parties. The complainant has also not proved that he is the consumer of the opposite parties. Therefore, the present complaint stands dismissed without any costs.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated
16/12/2024
S. Kanwar Jaswant Singh Rajita Sareen Rajesh Bhatia
Member Member President
