BEFORE THE DISTRICT FOUM: KURNOOL
Sri K.V.H. Prasad, B.A., LL.B., President
And
Smt C. Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B. Com., LL.B., Member
Thursday the 18th day of August, 2005
CD NO. 70/2004
C.R.Kumar,
S/o. C.L.N.Murthy,
Kumar Nurshing Home,
Gandhi Nagar,
Kurnool. . . . Complainant
-Vs-
1. The Regional Manager,
Regional Office,
APSRTC Bus station,
Kurnool.
2. The Regional Transport Officer,
Regional Transport Authority,
Bellary.
3. The Regional Transport Officer,
Regional Transport Authority,Hospet,
Bellary Dist.
Karnataka State. . . . Opposite parties
This complaint coming on 16.08.2005 for arguments in the presence Sri B.Prabhakara Rao, Advocate, for complainant, G.Madhusudhan Reddy, Advocate for opposite party No.1,Sri P. Siva Sudarshan, Advocate for opposite party No.3 and opposite party No.2 set exparte and stood over for consideration till this day the Forum made the following.
O R D E R
(As per Sri K.V.H.Prasad, President)
1. This CD case of the complainant is filed seeking refund of Rs. 4,200/- the amount paid as fine under compulsion and Rs. 95,800/- for the inconvenience suffered in the middle of the journey at the acts of the opposite parties.
2. The brief facts of the complainant’s case is that he has hired APSRTC bus No. AP11Z 2746 belonging to opposite party No.1 for 4 days from 26.11.2003 to go to Bijapur Via Bellary and Hospet from Kurnool paying Rs.21,000/- as hire charges, taxes and permit and he was made understood that no further amount is required to be paid any where in said journey and the opposite party No.1 there on obtained a temporary permit from Regional Transport Authority Kurnool, and furnished it to the complainant for enabling the said journey. Hence, the complainant left in said bus along with his friends for said journey and on its return journey from Bijapur at T.B Dam, Hospet, the official of RTA of Bellary and Hospet (Ops 2&3) stopped the said bus for Road tax/ permit payable to Karnataka State and inspite of taking to their notice the temporary permit issued by Regional Transport Authority for said journey they paid a deaf ear and coerced to pay a fine of Rs. 4,200/- for seating capacity of 40 of said bus at the rate of Rs. 105/- per seat, by the complainant on behalf of the driver of the said bus at the inconvenience caused to the inmates of said bus and their further journey at the indecent behavior of the opposite party No. 2 &3. The OP No.1 when approached for refund of the amounts so paid by the complainant as fine at the unforseen contingency occurred on the way at the conduct of opposite party No. 2 &3, the opposite party No.1 refused to do so showing a circular of Government of Karnataka, exempting any tax in Karnataka to the visiting APSRTC buses. The conduct of the opposite parties 1to 3 during the said journey has caused much inconvenience and parting with considerable amount of money seeks direction on the opposite parties for making good of the claim made in the complaint.
3. In pursuance of the receipt of the notices of this Forum as to this case of the complainant, the OP No.2 vide his letter dated 3.8.2004 submitted that the RTO and RTA Hospet (Op No.3) is an Independent from RTO and RTA Bellary and RTO Bellary ( OP No2) has no jurisdiction on RTO Hospet ( OP NO.3) and so when the steps were ordered the opposite party No.3 was brought on record vide orders in IA No. 362/2004, dated 29.11.2004 and consequent to there on the opposite party No.2 merely filed his explaination justifying the collection of Rs. 4,200/- as road tax leviable on temporary permits issued on the vehicle for commercial use.
4. When such is so with the OP No.2, the OP No.1 and 3 caused their appearance in pursuance of the receipt of the notices of this Forum as to this case of the complainant and contested the case filling their written version denying any of their liability to the claim of the complainant.
5. The written version of opposite party No.1 (Regional Manager APSRTC, Kurnool) besides questioning the justness and maintainability of the complainant’s case, submits that as per the terms and condition No.5 furnished to the complainant at the time of the later taking the said APSRTC Bus on hire, the terms and conditions of which were gone through and under stood by the complainant, as its hirer has to bear the additional expenses like local taxes levied by other states and after said adjustment an amount of Rs.3,122/- was refunded to the complainant who acknowledged it by his signature without raising any objection or settling up any claim for the road tax paid by him to Karnataka State. It submits further that vide notification No. RTD/189/TMT/93 dated 23.2.1994 of Govt. of Karnataka, the APSRTC buses are exempted from paying road tax on reciprocal basis and the amount of Rs.21,000/- was collected not for any road tax or permit fees but as hire at the rate of Rs.16/- per KM for estimated distance of journey. As the terms and conditions of permit were fully understood by the complainant at the time of taking bus on hire it denies of any alleged cheating of it on the complainant and denies of any deficiency of service and there by its liability for the claim of the complainant.
6. The written version of OP No.3 besides questioning the justness and maintainability of the complainant’s case allege no jurisdiction to this Forum as the act complained occurred at T.B Dam, Hospet which is not in the territorial jurisdiction of this Forum and as complainant is neither a consumer nor the opposite party is service provider and collection of legitimate tax due to Karnataka State on account of temporary permit issued by Regional Transport Authority, Kurnool under section 88(7) Motor Vehicle Act does not amount to any deficiency and there by the allegations of the complainant does not satisfy the requirement of section 2(1) (c ) of the Consumer Protection Act further it submits the tax exempted is only for special permits issued under Sec 88(8) of Motor Vehicle Act 88 and the intersection of said bus and collection of due tax to Government of Karnataka was made in accordance with the power vested under rule 259 (2) of Karnataka Motor Vehicle Rules 1989, section 11 A of Karnataka Motor Vehicles Taxation Act, 1957 read with Rule 27 of the Karnataka Motor Vehicles Taxation Rule, 1957. Further, it allege the collection of said tax not by any compulsion from the complainant as a valid receipt was issued. Further it submits that the acts of the opposite parties committed in the discharge of their legitimate duties are exempted from prosecution or legal proceedings under section 21 of Karnataka Motor Vehicles Taxation Act 1957 and hence redressal of the complainant for any arbitrary acts of levying and collection of tax is to be made to the appellate authority provided under section 15 of the Act, 1957 to Divisional Authority Provided under section 15 A of the said Act and not to this Forum. It lastly submits a Vehicle plied on hire or reward is liable to 7 days tax under Rule 10 of Karnataka Motor Vehicles Taxation Rule 1957 and hence, there is any violation in levying and collection of said tax and so seeks for dismissal of the complaint with exemplary costs.
7. In substantiation of the complaint averments while the complainant’s side has filed sworn affidavit and relied upon 6 documents enlisted in the complaint, the OPs has relied upon the sworn affidavit of the opposite party No.3 and the documents enclosed to their written versions.
8. Hence, the point for consideration is whether the complainant has made out any deficiency of service of the opposite parties and their liability to the claim made by him :-
9. The document No.1 enclosed to the complaint is a Photo stat copy of the vehicle hire requisition form dated 1.11.2003. No where there appears any explanations from the complainant as to why a xerox copy of it is filed. Nor it bares any attestation as true copy. Hence the said document is not marked as exhibit for want of justifying circumstances for entertaining as it secondary evidence. As the fact of the complainant taking on hire the said bus from OP No.1 was not denied by the op No.1 the non marking of the said document leaves any bearing on the merits of the complainant’s case. The said document envisages the remittance of Rs.21,000/- as advance estimated hire charges for to and fro journey Kurnool to Bijapur on 26.11.2003 and its vise versa on 29.11.2003 with the understanding of the complainant to bear any charges that may workout in excess to the deposited amount.
10. The second document of the complaint is a xerox copy of temporary permit for plying the said bus hired by the complainant to Bijapur from Kurnool Via Bellary and Hospet and its return to Kurnool within valid period of 26.11.2003 to 29.11.2003. There appears no explanation from the complainant side for placing said xerox copy instead of its original and of any justifying circumstances to act upon it as secondary evidence. Hence it is not marked as exhibit. But however as there is no denial form OP No.1 as to obtaining of said temporary permit and providing it for enabling the said journey of complainant, it does require any further appreciation them what does it connotes. The said document envisages the said permit shall be subject to all rules relating to permits made under the MV acts. Hence it is not barring the levying of any taxes permissible under the MV act. Even though there is a stipulation in Serial No.13 of the said document as to the tax payment” Exempted upto 31.11.2003 it being not clear to what kind of tax to which place or territories the said exemption extends it is remaining hard to construe said permit as exempting every and any kind of tax of other territories even under the MV Act.
11. The third document of the complaint is an un attested xerox copy of APSRTC special ticket for reserve bus envisaging receipt of Rs.21,000/- for journey in between Kurnool to Bijapur and there being any explanation form the complainant for filing the said un- attested xerox copy dispersing with its original and of any justifying circumstance warranting its consideration as secondary evidence, the said document is not marked as exhibit but however the said is not leaving any bearing on merits of the case of the complainant as the said fact was not denied by the op No.1.
12. The Fourth document enclosed to the complaint is a J.T.C Special Squad Check cum Receipt issued by Senior inspect of MV Hospet as checking authority for collection of Rs. 4,200/- in view of temporary permit issued by RTA, Kurnool which is valid from 26.11.2003 to 29.11.2003, levying for 7 days to seating capacity of said bus at 40+1 and issual of receipt for the said amount of Rs.4,200/- collected from the driver of said bus. The said checking and collection of levied amount as is not disputed the fact stated there in remains proved as collection of said amount.
13. The sixth document enclosed to the complaint is hand chit said to have been issued by S.K. Basha driver of said RTC bus alleging the payment of Rs.4,200/- levied by the Op 2 and 3, on him and its receipt from the complainant. But there being no supporting affidavit of said person the said document is not marked as exhibit but however as there is an admission of the opposite parties in their written versions as to the receipt of said revied amount from the complainant when the driver of the said bus express his inability to pay the same, the said fact envisaged in supra stated document is appreciated as it speaks.
14. The document No. 5 of the complaint is an unattested xerox coy of notification dated 22.3.1994 of Government of Karnataka exempting, on reciprocal basis the taxes payable under Karnataka Motor Vehicles Taxation act 1957 in Karnataka to the vehicles plied, by Indian Tourist Development Corporation or State Road Transport corporation or Tourist Development Corporation of union territory of Pandicherry or any other state except of Kerala and non availability of said exemption in respect of Motor Vehicle covered by special permit issued under section 88(8) of Motor Vehicles Act, 1988 by the Transport Authority of union territory of Pandicherry or any other state except of Kerala other than the state of Karnataka to pickup and set down passenger in the sate of Karnataka. There appears any plausible explanation from the complainant to file such an un attested xerox copy said notification dispensing the filing of the such documents which can be looked into and acted upon for evidence, the said document is not marked as exhibit. But there being an admission on the part of the opposite party No.1 as to this notification as to exemption of tax, the said document is remaining worthy of consideration for the facts stated there in.
15. While the said document is considerable in view of its admission by the Op No.1, no amount is required to be paid under tax and hence collection of said exempted tax would amount to breech of exemption of tax ordered in the said notification, while the document No.4 does not say the amount levied and collected there under is tax payable to Karnataka State in the otherwise conditions and circumstance, contemplated there in as it merely says of violation as “ collected 7 days seating capacity 40+1. TP valid from 26.11.2003 to 29.11.2003, “the written version of Op No.3 and explanation of Senior Motor Vehicles Inspecter RTO office BagalKot, says the amount of Rs4,200/- so levied was tax and cess. While such is so either the complaint averment or the written version of the opposite parties makes any reference to the effect that in spite of the said notification in Document No.5 was brought to the notice of OP No.2 &3, the said amount was collected as tax. There appears any possibility for said circumstances even, in the light of the complaint averments to the effect that the Opposite party No.1 when approached for the said amount of Rs.4,200/- on return from journey provided said notification as to tax exemption. Hence the complainant cannot await the benefit of the said notification, at the belated stage with out pressing on it at relevant time of
levying of the said amount of Rs.4,200/- nor made such payment under any protest. As there is no denial from the complainant as to the facts averred in written version of the op that an amount of Rs.3,122/- was refunded to the complainant obtaining his signature in token of the same the claim for Rs. 4,200/- is remaining doubtful especially when the complainant did not caused any interrogatories on the opposite party on said aspects.
16. While such is so with the material on the complainant side, the annexure A, the terms and conditions enclosed to the written version of Op No.1 and duly signed by the depot Manager APSRTC Kurnool in condition No.5 obligates the hirer of the bus only to bear the additional expenses like local tax or tax revied by the other states. By this it remains clear that the journey permit issued does not cover those expenses stated afore said. Hence the complainant cannot blame the Op No.1, who provided the said bus for Journey and said temporary permit, for the amount of 4,200/- paid under document No.3 &4 enclosed to the complaint. Nor the other Ops who have revied the legitimate taxs collectable under the provisions of the said states Motor Vehicle taxation act especially when the complainant appears to have paid it without any protest and in know of the nature of the permit that was issued for said journey and its terms and conditions it was subjected to.
17. They explanation dated 7. 7.- offered by senior Motor Vehicles Inspector, R.T.O BaglKot to the opposite party No.3, submits the Vehicle plied of other states under temporary permit in Karnataka State have to pay tax to Karnataka State under section 88 (7) of Motor Vehicles Act 1988 and the vehicles plying with special permit issued under section 88(8) of MV Act 1988 only are exempted form any taxation in Karnataka State.
18. The Section 88(7) of MV act 1988 reads as under
“ Not withstanding anything contained in sub-section (1), a Regional Transport Authority of one region may issue a temporary permit under section 87 to be valid in another region or state with the concurrence, given generally or for the particular occasion, of the Regional Transport Authority of that other region or of the State Transport Authority of that other state, as the case may be”
19. The contents of the above section does not envisage any thing as to revying of tax in case of vehicle plying with temporary permit in other regions, as it merely says of the power of RTA of one region to issue a temporary permit to be valid in another region or state with the concurrence of RTA of that other region.
20. The Section 88(8) MV act 1988 reads as under
“ Not withstanding anything contained in sub- section (1), but subject to any rules that may be made under this act by the Central Government, the Regional Transport Authority of any on region or, as the case may be the STA may for the convenience of the public grant a special permit to any public service vehicle including any vehicle covered by a permit issued under section 72 ( including a reserve stage carriage) or under section 74 or under sub-section (9) of this section of or carrying a passenger or passengers for hire or required under a contract, express or implied, for the use of the vehicle as a whole without stopping to pick up or set down along the line of route passengers not included in the contract, and in every case where such special permit is granted, the RTA shall assign to the vehicle, for display thereon, a special distinguishing mark in the form and manner specified by the central Government and such special permit shall be valid in any other region or state without the counter-signature of the Regional Transport Authority of the other region or of the State Transport Authority of the other state, as the case may be”.
21. The contents of the above section does not provide any exemption of tax as alleged in the explanation of said senior Motor Vehicles Inspector, Regional Transport Office BagalKot enclosed to the written version of OP No.3, as it merely envisages of the circumstances for which a special permit may be granted.
22. The explanation of the said Senior Motor Vehicles Inspector, RTO BagalKot who participated in said interspetion of the RTC bus hire to the complainant, takes reference to rule 10 (6) of KMV taxation rules 1957 for saying the tax is not exempted for the vehicles plying with temporary permit issued under section 88 (7) Motor Vehicle Act 1980 r/w rule 174 (V) of Andhra Pradesh Motor Vehicles rules 1989. But no such extract of said rule 10(6) even is filed for its appreciation, hence the said plea appears to be a plea for plea sake without any substance, merit and force.
23. A reference to section 21 of Karnataka Motor Vehicles taxation act, 1957 read with section 3 (22) of General clauses Act 1987 was taken seeking exemption from prosecution or legal proceedings against the OP 2 and 3 for their acts done in good faith or intended to be done as contemplated under the statutory provisions governing their functions and duties etc.
24. The said section 21 of KMV taxation Act, 1957 reads as udder
“No suit, prosecution, or other legal proceedings shall lie against any person for anything in good faith done or intended to be done under this Act”.
25. Hence if the acts complained were the act done in good faith or intended to be done under the act in discharge of their official duties and functions they are protected from being sued, presented or from being put to any other legal proceedings.
26. To say there alleged acts are the duties and functions contemplated under statutory provisions reference is taken to section 27 (a), 11 and 11(A) of KMV taxation act, 1957.
27. Sec 27 (A) of Karnataka Motor Vehicles taxation of Act, 1957 reads as under
“ Where an officer empowered by the state government under section 11-A (hereinafter referred to as the authorized officer) has reason to believe that the tax payable in respect of any motor vehicle has remained unpaid, such officer may by an order in Form 27 seize the motor vehicle and serve a copy of the order on the registered owner or the person in possession or control of such vehicle or his driver. After such order is made, the authorized officer shall direct that the vehicle be taken to the nearest police station mentioned in such order for detention. In case of any goods or articles in such vehicle the authorized officer shall make an inventory of goods or articles found in the vehicle and direct the person from whom the motor vehicle is seized, to remove the same. If such person fails or refuses to drive the vehicle to the nearest police station mentioned in the order, the authorized officer may arrange to have the vehicle driven to the police station. No officer seizing or detaining a motor vehicle shall b responsible for the safe custody of any goods or articles therein and the registered owner or his representative duly authorized by him in writing shall make such arrangement for the safe custody as he deems fit”.
29. From the contents of the above provision it remains clear that the officers empowered by the state government, to seize and detain motor vehicle in case of non payment of tax.
30. Section 11 of Karnataka Motor Vehicle taxation Act of 1957 reads as under
“ Any police officer or officer of the Motor Vehicles Department, inuniform, not below such rank as may be prescribed by the state government in this behalf may require the driver of any motor vehicle in any public place to stop such vehicle and cause it to remain stationary so long as may reasonably be necessary for the purpose of satisfying himself that the amount of the tax due in accordance with the provisions of this Act in respect of such vehicle has been paid”.
31. By the contents of the above section it is remaining clear that the officer of the M.V Department gets the power to stop the vehicle for such a reasonable time as may be required for satisfying his self that the amount of tax due in accordance with provision of this act in respect of said vehicle has been paid.
32. Section 11 (A) of KMV taxation Act 1957 reads as under
“ Without prejudice to the provisions of sections 13 and 14, where any tax due in respect of any motor vehicle has not been paid within the period specified in section 4, such officer.
- of the motor vehicles department and below the rank of an inspector of motor vehicles: or
- of the police department not below the rank of an inspector of police,
as the state government may empower in this behalf, may, subject to such rules as may be prescribed, seize and detain such vehicle and for this purpose, take or cause to be taken all steps for the safe custody of the vehicle, until the tax due in respect of the vehicle is paid.
1(2) If the tax due in respect of the vehicle seized and detained under sub-section (1), is not paid within thirty days from the date of such seizure and detention, the officer empowered by the state government may, after giving a notice in writing to the registered owner and the person who had the possession or control of the vehicle immediately before such seizure and detention, and considering their objections, if any, recover the tax due by sale of such vehicle in the manner prescribed. Provided that the vehicle shall not be sold if the tax due is paid at any time before sale”.
33. The contents of the above section envisages the official concerned there in are empowered to sell the seized and detained vehicle for recovery of tax due.
34. By cumulative reading of the above sections it remains clear that the empowed officials of Motor Vehicles Departments of that state can stop, detain, seize and sell the vehicle in accordance with law for tax due to said state on said vehicle. Here in our present case the action of Op 2 and 3 in stopping the APSRTC Bus taken on hire by the complainant and finding tax due and collecting it as falls within the powers envisaged under supra stated sections of law of said statute and there by they are getting the statutory protection under section 21 of said act, 1957 from prosecution, being sued or put to any legal proceedings etc. Therefore the acts of Op 2 and 3 being in discharge of their official functions and duties prescribed under said statute they are protected under section 21 of said Act from being prosecuted and hence the case fails against the OP 2 and 3 from being entrained by this Forum.
35. Further the case of the complainant is suffering for want of territorial jurisdiction to this Form as acts alleged against Op 2 and 3 occurred at T. B Dam Hospet Karnataka State which is totally beyond the territorial jurisdiction of this District consumer Forum, Kurnool which is within the Kurnool District boundaries in Andhra Pradesh.
36. Further the privy of complaint does not appear to be of a “consumer” to the op 2 and 3 as any service was hired by the complainant from them for any valuable consideration and from the nature of the allegations of the complaint the said grievances if bear any bonafidies may at the most amount to arbitrary collection of tax either exempted or which is not leviable which does not fall within the scope of the consumer dispute.
37. There neither appears any proper cause of action of any deficiency of service on the part of the opposite party No.1 who provided the said bus on hire for journey of the complainant as the inconvenience the complainant felt is not at the acts of the OP No.1 but at legitimated acts of the OP 2 and 3. There would have been any deficiency of service on the apart of Op No.1 if the journey could not be performed in the said bus on account of any deficiency of service of its driver or any mechanical defects of the said vehicle which must have stand in the said journey in reaching the desired destination. But there being no such complaint no deficiency of service could be found on the part of the op No.1. As terms and conditions issued by the Op No.1 to the complainant while hireing the bus as makes its clear that any additional expenses levied by the other states has to be born by hirer himself and the temporary permit issued for said journey of bus not providing exemption of any further taxation by other regions, SRTA especially of other states and on the other hand one of the condition of said temporary permit says the subjection of said permit to all rules relating to permit made under the Motor Vehicle Act, the OP No.1 cannot be found of any deficient conduct amounting to deficiency of service to the complainant as hirer of said bus during its plying in Karnataka State and there by any deficiency of service could be found against the opposite party No.1.
38. If the complainant feels that the Op No.1 as suppressed any taxes payable by it as owner of the bus making him believed otherwise practicing deception and mis representation on him and constrained him to pay the same the said grievance as to cheating and dis honest causing of monitory loss to the complainant as to be agitated before such authority which can probe into the said accepts of cheating and mis-representation ensuring monetary loss to the complainant and there by convict the person responsible for it and not before this Forum which cannot entertain the same.
39. Therefore, in any angle i.e on the merits side or on the point of the territorial jurisdiction or on the aspect of entertainability of complainant’s grievances under consumer protection act or on the aspect of statutory prohibition of the opposite parties from prosecution, the case of the complainant being bearing any merits and force worthy of being entertainable, the complainant is not remaining entitled to the claim made against any of the opposite parties even.
40. Consequently, the case of the complainant is dismissed with costs.
Dictation to the Stenographer, Typed to the dictation corrected by us pronounced in the Open Court this the 18th day of August 2005.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant For the opposite parties
-Nil- -Nil-
List of Exhibits Marked for the complainant:-
-Nil-
List of Exhibits Marked for the opposite parties:-
-Nil-
PRESIDENT
MEMBER MEMBER
Copy to:-
1. Sri B.Prabhakara Rao, Advocate, Kurnool for the complainant
2. Sri G.Madhusudhan Reddy, Advocate, Kurnool for the opposite
party No.1.
3. Sri P.Siva Sudarshan, Advocate, Kurnool for the opposite party
No.3.
4. The Regional Transport Officer, Regional Transport Authority, Bellary,
Karnataka State.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
