DATE OF FILING-10.5.12
DATE OF DISPOSAL-21.2.2014
O R D E R
Dr. N.Tuna Sahu, Member
The complainant filed this complaint under Section 12 of Consumer Protection Act, 1986 claiming stating that he is an expert driver and driving the office four wheeler vehicle attached to his work place. He further states that he is having driving license bearing D.L. No.288/1982-83 issued by Cuttack which was renewed at Ganjam vide bearing No.3659/90 and it continued till 19.8.2011. Subsequently, he applied for renewal of the said driving license before the Opposite Party No.1 (for short O.P.No.1) observing due formalities. In the meantime, the Opposite Party No.2 wrote a letter bearing No.1606 dated 26.9.2011 to Opposite Party No.1 disclosing about fake license possessed by the complainant and advised him to apply for a new driving license. Accordingly, the complainant applied for a new driving license depositing required fee with O.P. No.1. He was also issued with a learner license on 29.8.2011. But subsequently he was neither issued with a new license nor renewed his old license. Despite several approaches and letters followed by Advocate’s Notice dated 19.12.2011 and 31.3.2012, the Opposite Party No.1 remained silent in the matter. He added that although he is having Pan Card, Service Book, LIC Policy, Employment Exchange enrollment Card, Adhar Card, etc. containing his correct date of birth, but the Opposite Party No.2 has alleged and informed the Opposite Party No.1 about forged date of birth certificate possessed by him. When all efforts of the complainant failed to obtain a renewed/ new license, he filed this consumer complaint before this Forum seeking for a direction to the O.P.No.1 to renew his license or to issue a new driving license as applied by him and to pay compensation of Rs.70,000/- in total for the loss, mental agony and harassment caused due to deficiency in service on the part of the Opposite Parties. In support of his case, the complainant has filed certain documents which are marked as Annexure - 1 to 6 respectively.
2. The Opposite Parties appeared through Associate Lawyer, Berhampur for Government and filed their written versions respectively. The Opposite Party No.1 in its written version has prima-facie raised objection on maintainability of the case in this Forum under the C.P. Act 1986. It is further stated that the Date of Birth of the complainant stands as 5.4.1966 as per documents submitted by him. It is further stated that the driving license No.6987/1975 was obtained from Licensing Authority, Bisalspur, Chhatisgarh at the age of 9 years whereas as per rule, no person under the age of 20 years shall drive a transport vehicle in public place. On proper verification, it revealed that the license obtained from Bilaspur, Chhatisgarh is found to be fake one for which subsequent renewal was not granted. Originally the license was issued by the Licensing Authority, Bilaspur vide Driving License No.6987/75, authorizing to drive Light Motor Vehicle, Medium Motor Vehicle and Heavy Motor Vehicle w.e.f. 28.7.1975. But subsequently, the D.L. No.288/82-83 and D.L.3659/90 were renewed from Cuttack and Ganjam in fraudulent manner. It is admitted that the complainant obtained the Learner License by applying afresh and he had done so at his own accord. But the Opposite Party No.1 after hearing the complainant has cancelled the Driving License No.3659 and Lerner’s License No. OR/07/ 11/23355/2011. It is further averred that the matter relating to grant or renewal of license is governed under the Motor Vehicles Act, 1988 and Rules made there under. Any person aggrieved with the order passed by the Licensing Authority regarding grant or renewal of license, he may go for appeal before the Appellate Authority i.e. Collector-cum-Chairman, Regional Transport Officer. In this case, the Collector, Ganjam is the Appellate Authority to redress the grievance of the complainant. It is, therefore, stated that the complaint filed by the complainant has no locustandi to file this case in this Forum before preferring his grievance with the Appellate Authority. It is, therefore, prayed for dismissal of the case.
The Opposite Party No.2 in his written version has stated that the complainant is a careless and rough driver and for such driving he has to pay fine many times to M.V. Department. For his carelessness the official vehicle of the institute met with accident on 23.12.2009 on the National High Way. It is further clarified that the Date of Birth, as per documents available with the institute, of the complainant is 5.4.1966 and the Driving License produced by him during his service is bearing No.6987/1975 from Licensing Authority, Bilaspur, Chhatisgarh. It is also brought to the notice of the Forum that the complainant has been put under suspension. The above driving license was valid up to 19.8.2011 and he could not able to produce renewal license as the R.T.A., Ganjam cancelled the above license as the same was found to be fake one. When the fact known to the Opposite Party No.2, the complainant was advised to obtain new driving license, but the complainant was also failed to obtain new license as the same was cancelled due to non-disclosure of having a license earlier in the application form. At the time of joining in Government service he had produced a Transfer Certificate (TC) bearing No.12/79 dated 31.8.1979 by the Head Master, Panchayat M. D. School, Nanghira, Keonjhar wherein the date of birth was mentioned as 5.4.1966. On that basis, he managed to obtain the license. Later on the Head Master of that school in his letter No.31 dated 1.10.2010 and No.32 dated 6.10.2010 confirmed that the date of birth of the complainant is 10.2.1955 as he has not passed Class-VII. As such he has manipulated the record and produced fake T.C. also. It is, therefore, contended that on such grounds the complainant is not entitled for any relief from this Forum and the instant case is deserved to be dismissed against this O.P. as there is no negligence or deficiency in service.
3. On the date of final hearing of the consumer dispute, we heard the argument from both the learned counsel for the complainant and Associate Lawyer, Berhampur for government as well. We have also gone through the case record and verified the documents placed on it marked as Annexure-1 to 6 respectively. We have also perused the written arguments filed by both parties which are place in the case record. During the course of hearing of the case, the learned advocate for the complainant argued that the complainant is a driver who got his Driving License vide D.L. No.288/1982-83 of Cuttack which was continued at there up to 1989 and 1990. Subsequently, the said D.L. was renewed as bearing No.3659/90 at R.T.O. Chatrapur on payment of usual charges and was valid up to 19.8.201. However, on 5.5.2012 the said D.L. was cancelled by the R.T.O. Chatrapur alleging that the said license is a fake one. Hence, the R.T.O. Chatrapur in his letter bearing No.6352 dated 29.6.2011 called for a show cause to submit the proof of authenticity of his D.L. But on 29.8.2011 a Learners License bearing No.OR-07/LL/ 23355/2011 was issued in favour of the complainant on payment Rs.244/- towards license fee vide receipt No.AAO8107715 plus Rs.80/- for processing and printing of D.L on smart card and driving license vide cash receipt No.010730 respectively. So, the learned counsel for the complainant contended that even after receipt of fees for issuing new D.L., the R.T.O. Chatrapur neither renewed his old license nor issued a new D.L. on the pretext of wrong date of birth of the complainant which is deficiency in service on his part. On the validity of date birth of the complainant, the learned counsel submitted before us that the complainant is a employee under Principal, I.T.I. Berhampur, Ganjam (O.P. No.2) and his service has been regularized with the intervention of Hon’ble High Court, Odisha vide W.P(C) No.3439 of 2002 order dated 29.11.2002. He also contended that the I.T.I. Berhampur, Ganjam has already opened his service book where the date of entry of Government Service has been mentioned as 03.03.2004 and his date of birth has been recorded as 05.04.1966. So at this point, the R.T.O. Chatrapur has raised an unreasonable dispute regarding his date of birth while making renewal of his old license. Further, he also contended that previously the R.T.O. Chatrapur renewed the D.L. up to 19.8.2008 but never pointed out and not disputed his date of birth. Furthermore, the learned counsel submitted before us that the complainant has obtained certain LICs Bonds where his date of birth has been mentioned as 5.4.1966 and at the same time the date of birth has also been recorded in PAN Card of Income Tax Department of Government of India etc. Moreover, the complainant is a government employee and his date of birth has been recorded in the Service Book as per his School Leaving Certificate which has been admitted by the O.P.No.1 in his written version filed on 23.4.2013 before this Forum. The contention of O.P.No.1 that the date of birth is wrong is not based on any reliable documents filed by the said O.P.No.1 and it is only a contention of the O.P. No.1 without any substantial evidence which has not been brought on record. Hence, the O.P. No.1 unreasonably raised a dispute regarding the date of birth of the complainant to mentally harass the complainant the reason best known to him. He also argued that the contention of O.P.No.1 that the license bearing No.6985/1975 was first issued at Bilasapur, Chhatisgarh is proved wrong since the reply letter No.4490-A dated 10.9.2013 received through R.T.I. application from the Regional Transport Authority, Bilaspur states that there is no such license issued under the number referred by the O.P. No.1 in his written version based on which the said O.P. has rejected renewal of D.L. of the complainant. Thus, the O.P. No.1 may kindly be directed to renew the D.L. of the complainant or to issue a new driving license which has been cancelled. He also prayed for compensation of Rs.50,000 for deficiency in service and Rs.20,000/- towards cost of litigation.
In reply to the above contentions of the learned counsel for the complainant, the learned Associate Lawyer for Government i.e. O.P. No.1 & 2 argued that the matter relating to grant/ renewal of driving license is governed under the Motor Vehicles Act, 1988 and rules made there under. The R.T.O. functions as the Licensing Authority under Rule-3 of Odisha Motor Vehicle Rules, 1993 as amended up to date for the purpose of grant or renewal of license. Any person aggrieved with the order passed by the licensing authority regarding the same may file appeal before the Collector-cum-Chairman, Regional Transport Officer. In this case the Collector-cum-Chairman is the Appellate Authority under the statute to adjudicate the case of the complainant. So, this Hon’ble Forum has no jurisdiction to adjudicate the complaint filed by the complainant under the Consumer Protection Act, 1986. In the present case, such a fake Driving License cannot be renewed by the O.P.No.1 under M.V. Act, 1988. The complainant is not a consumer and the O.P. No.1 is not required to provide any service to the complainant. As contended by O.P.No.2, the complainant is a careless driver and he was fined many a times for his careless driving and fine was deposited vide Money receipt No.163612 dated 21.1.2009 for an amount of Rs.350/- and due to his rough driving the institute vehicle met with an accident on 23.12.2009 at 8.00 PM. He also admitted that it is a fact that the Date of Birth of the complainant stands as 05.04.1966 as per the documents submitted by him and mentioned in several other documents. The learned counsel also contented vehemently that the alleged driving licence bearing No.6987/1975 dated 28.7.1975 was obtained from Licensing Authority, Bilaspur, Chhatisgarh at the age of 9 years and 3 months in which he was authorized to drive LMV, Medium Motor Vehicle and Heavy Motor Vehicle. But as per M.V. Act no person under the age of 20 shall drive a transport vehicle in public place. The Original license obtained from Bilaspur is a fake one and it was subsequently renewed at R.T.O. Cuttack in 1982-83 up to 27.7.1990 and later at R.T.O. Ganjam from 20.8.1990 to 19.8.2011. The learned counsel for the O.Ps also contended that previously the license was renewed manually at Cuttack as well as Ganjam. Now the present renewal is being made by computer with the help of a Computer Software namely SARATH. At the time of renewal of the Driving License, it is observed that the Date of Birth of the complainant is 5.4.1966 which indicates that the license was issued at the age of 9 years, 3 months and 23 days, whereas the prescribed minimum age is 20 years for obtaining of a Driving License as per the prevailing law of the country. In support of his arguments, he also drew our attention towards the documents relied on by him which has been placed in the case record along with his written arguments and marked as Ext A to Q respectively. He further submitted before the Forum that the complainant was issued a show cause notice and the hearing was fixed to 28.12.2011 vide O.P.No.1 Office Letter No.8044 dated 24.12.201. Usually, there is no inordinate delay for issuing new Driving Licence from the office of O.P.No.1. Since, the complainant has submitted a fake license for renewal, so it can’t be renewed as per law. After all, the O.P.No.1 after hearing in person from complainant and on the basis of clarification of Jt. Commissioner Transport (Tech), Odisha, Cuttack, the D.L. No.3659/90 and Learners License No.OR 07/LL/23355/2011 were cancelled by the R.T.O., Chatrapur, Ganjam under Section 19(e) of M.V. Act, 1988 and it was communicated to the complainant vide O.P. No.1 Office letter No.3851 dated 5.5.2012. Hence, in view of the above submissions made by the O.P. No.1 and 2, the present case of the complainant is liable to be dismissed with heavy cost for being not maintainable and devoid of merit in any respect under law.
4. We heard the above arguments of both learned counsels for the respective parties and perused the pleadings and verified the documents on record. After hearing the matter, it appears that the disputes which are to be adjudicated by this Forum are that whether the complainant is a consumer under O.P.No.1? Can any licensing authority dispute the date of birth of a government employee whose date of birth has already been entered in the Service Book certified by the competent authority? Whether any deficiency in service on part of the O.P.No.1 for non-issuance of Driving License in favour of the complainant even after receipt of fees for the said purpose?
As far as the first question is concerned regarding complainant is a consumer or not, we would like to say that as per Section 2 (d) (ii) of Consumer Protection Act, 1986, the definition of Consumer as follows:
‘Consumer’ means any person who –
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.
Explanation – For the purposes of this clause, “commercial purpose” does not include use of by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.)
On simple reading of the above definition of the term ‘consumer’, it is clear that a person who hires or avails of any service for a consideration that has been paid is a consumer. In the present case, the complainant applied for the Driving License to the O.P.No.1 on payment of Rs.244/- towards fees for P.D.L and D.L. Test respectively and Rs.80/- paid for processing and printing of driving license on Smart Card and driving license particulars. The O.P. No.1 on receipt of the aforesaid payment issued the Learners Driving License in favour of the complainant vide license No.OR-07/LL/23355/2011 dated 29.8.2011 which is valid from 29.08.2011 to 28.02.2012. In this regard, we are not inclined to accept the contention of the learned counsel for the O.P.No.1 that the complainant is not a consumer. The complainant is certainly a consumer under the provisions of Consumer Protection Act, 1986, since he has availed the service on payment of required fees. So, there is no doubt that the complainant is a consumer in the present case under O.P.No.1.
With regard to the second question we would like to point out that a licensing authority can’t dispute the date of birth of a government employee whose date of birth has already been entered in the Service Book by competent authority, since the date of birth of a government employee has already been recorded in the Service Book after taking into account to the reliable documents submitted by him before concerned authorities. In the present case, the O.P.No.2 i.e. Principal, I.T.I. Berhampur has admitted in his written version that the date of birth of the present complainant is 05.04.1966 as per his school leaving certificate submitted by him at the time of joining in the government service. Accordingly, the O.P.No.2 has opened the Service Book of the complainant and in his Service Book it has been mentioned that the Date of Birth of the present complainant is 05.04.1966 and his date of entry in Government Service is 03.03.2004. This is a fact which has already been admitted by the O.P.No.2 and this fact can’t be changed by any further court order, since the service of the complainant has been regularized by the order of Hon’ble High Court, Odisha vide W.P. (C) No.3439 of 2002. Further, according to Rule-65 of the O. G. F. R. Vol-I, which mentions that every person on entering Government service shall declare his/her date of birth which shall not differ from any such declaration expressed or implied for any public purpose before entering service. The Rule also states that no alternation of the date of birth of Government servant shall be made except in case of clerical error without prior approval of the State Government and any such application for effecting a change in the date of birth shall not be entertained after five years of entry into Government service. In this case the complainant has entered into the Government Service on 03.03.2004 and his date of birth as per his Service Book is 05.04.1966 as certified by O.P.No.2 can’t be altered in view of Rules referred above. Thus, in our considered opinion, the date of birth of the complainant is 05.04.1966 as per his Service Book which can’t be changed by anybody including statutory authorities. So, the dispute raised by the O.P.No.1 with regarding to date of birth of the present complainant without any documentary evidence is not sustainable under law, hence we are not inclined to accept that the date of birth of the complainant is wrong. Further, during the course of hearing of the case, our attention was drawn towards other documents like LIC Bond, PAN Card etc filed by the complainant. In the LIC Bond and PAN Card, the date of birth of the complainant is mentioned as 05.04.1966 and the complainant would suffer irreparable loss if his date of birth will be changed. So, in our considered view at this point, the date of birth of the complainant can’t be changed by any means. Moreover, the O.P. No.2 has admitted that the Date of Birth of the complainant is 05.04.1966 as per his Service Book since he is a government employee. So, it is amply proved that the date of birth of the complainant is not wrong hence it can’t be disputed. It has also come to our notice that the learned counsel for the complainant has submitted before us that a clarification letter bearing No.4490-A/2014 dated 10.9.2013 was obtained under Right to Information Act, 2005 from the Office of the Public Information Officer (PIO), Regional Transport Authority, Bilaspur, Chhatisgarh, where it has been mentioned that the driving license bearing No.6987/1975 as referred by O.P.No.1 is not registered in his office. Hence, as contended by the O.P. No.1, the license bearing No.6987/1975 was obtained from Bilaspur is not proved. The O.P. No.1 miserably failed to prove that the date of birth of the complainant is wrong. On the other hand, the complainant has prayed before this Forum either to renew his old license or to issue a fresh license in his favour. In the case in hand, the O.P. No.1 has received the required fees towards issue of license as discussed above but subsequently cancelled the Learners License unreasonably. The O.P. No.1 received the fees towards issue of a new driving license but cancelled the same on the basis of clarification sought from Jt. Commissioner (Tech.) Odisha, Cuttack. However, we would like to point out that the complainant is not coming under Section-6 of the M.V. Act which provides restrictions on holding of a driving license. If he is not restricted to hold a driving license under the relevant provision of the M.V. Act, it is not justified on part of O.P. No.1 to cancel the said learner’s license of the complainant unreasonably. It is also on record that previously the Transport Authority, Odisha, Cuttack, has also renewed the alleged fake driving license of the complainant. Finally, we would also like to point out that the O.P. No.1 i.e. R.T.O. Ganjam, Chatrapur, has renewed the alleged fake driving license time and again up to 19.08.2011 and while making renewal of the said license by the concerned authority, he never tried to verify the original driving license of the complainant and blindly renewed the same which is a contributory negligence on his part. Now both, the Regional Transport Authority, Odisha, Cuttack and the R.T.O., Ganjam, Chatrapur, contended it is a fake driving license. From the aforesaid discussion, it is evident that the Regional Transport Authority, Odisha, Cuttack and R.T.O., Chatrapur, Ganjam both have committed contributory negligence for making renewal of a fake driving license which is illegal under law. Under the above circumstance of the case, the most important thing that has come to our notice is that the complainant has been working as a Driver under O.P.No.2 and his service has been regularized on intervention of Hon’ble High Court, Odisha vide W.P. (C) No.3439 of 2002. It is also a fact that he is the sole bread earner of his family and his family entirely lives on his service. Our good conscience states that the complainant would suffer like anything if he will be deprived of having a driving license, since he can’t pursue his service /profession in Government without a valid driving license, which is derogatory to human dignity and survival. Thus, under the peculiar facts and circumstance of the case, in our considered view, if it is illegal now to renew the alleged fake driving license of the complainant, what prevented the O.P.No.1 not to issue a fresh (new) driving license in his favour, since he is not coming under Section-6 of M.V. Act which provides restriction on the holding of driving license. As discussed above, it is also beyond doubt that the O.P.No.1 has received license fees and has already issued Learners License in favour of the complainant but arbitrarily cancelled the same in an unjustified manner putting the complainant in trouble.
In a sequel to the above discussion and carefully considering the limited grievance of the learned counsel for the complainant in the light of his submissions and facts of the case, we feel that there is deficiency in service on part of O.P.No.1 for non-issuance of a new driving license in favaour of the complainant, in spite of receipt of service charges for the said purpose.
5. In the result, we allow the case of the complainant against O.P.No.1 and dismiss against O.P. No.2, since there is no specific relief prayed by the complainant against him. We, therefore, direct the O.P.No.1 to issue a new driving license in favour of the complainant within two months of receipt of this order failing which the O.P. No.1 is to pay a modest amount of Rs.100/- per day to the complainant for the delay. The case is disposed of accordingly with no order as to cost.
6. The order is dictated and corrected by me on this 21st day of February 2014. Copy of order shall be supplied to the parties free of cost as per rule.
(Dr. N. Tuna Sahu) Member
I Agree (Ms. S.L. Pattnaik)
President
I Agree (Mrs. Minati Pradhan)
Lady Member
