Date of Filing: 21.05.2013. Date of Final Order: 17.02.2014
Complaint in brief.
The Complaint in brief is that Sri Susanta Adhikari for maintaining his livelihood had purchased one Auto Rickshaw, WB-63/2420 (7+1) for carrying passenger and after getting Route Permit No. PCOP 06/2002-2003 for the route Ghughumari to New Cooch Behar to Pundibari, from the Opposite Party R.T.A., Cooch Behar had placed the same on route. In 2009 the Complainant facing server problem due to tough competition had surrendered relevant papers and documents to the Opposite Party on 06-10-2009, keeping the Auto Rickshaw in garage in damage condition.
Ultimately, again he decided to ply the said Auto Rickshaw in the said route and on 20-06-2011 approached the Opposite Party for permission to repair the vehicle to ply on road. Since then the Opposite Party has not taken any step on various pretext inspite of his repeated contact with the Opposite Party by several correspondence and personal contact but to no good. He served Advocate Notice to the Opposite Party on 24-09-2012 against which the Opposite Party by Memo No. MV/1083 dated 15-11-2011 & Memo No. MV/1174 dated 13-12-2011 directed the Complainant to produce the original receipt copy of his application for their verification which he submitted on 16-12-2011.
The Opposite Party by Memo No. MV/209 dated 05-04-2012 intimated the Complainant that (1) Fitness Certificate was not submitted with his application dated 04-10-2009 for surrender of papers and (2) Road Tax was also not paid up to date on the said date of application and hence the Opposite Party did not consider the prayer of the Complainant. He submitted an application on 28-05-2012 intending to pay entire Road Tax but nothing has been intimated to him. He intimated the matter to the S.D.O., Cooch Behar for his intervention. By Memo No. MV/389/TDN dated 16-07-2013 the Opposite Party claimed Additional Road Tax on from 2009. The auto is lying in his garage.
Thus, he suffered serious mental setback for such willful act of omission and/or commission of the Opposite Party which is deficiency on the part of the Opposite Party R.T.A., Cooch Behar.
On 21-05-2013 he filed his complaint praying for an order directing the R.T.A., Cooch Behar to issue necessary permission to the Complainant to repair his vehicle (1) Auto Rickshaw and place the vehicle on route, (2) To declare the Memo No. MV/389/TDN dated 16-07-2013 void ab-initio, (3) To awarded Rs. 1,00,000/- towards harassment mental pain, agony and deficiency in service, (4) To awarded Rs. 04,83,700/- for loss of the Complainant @ Rs. 700/- for the period 20-06-2011 to 10-05-2013 and Rs. 5,000/- as litigation cost.
He has filed the complaint through his Ld. Authorised Advocate Mr. Bibek Kumar Dutta and Mr. Himadri Sekhar Roy Ld. Advocate as his Agents on verification but without affidavit enclosing Xerox copies of some documents.
Based on the Complaint DF Case No. 40/2013 has been registered and hearing the Ld. Advocate the Notice was issued fixing 14-06-2013 for S.R. and appearance. Despite receipt of Notice none appeared for the Opposite Party and no step was also taken and the case was taken in Ex-Party hearing fixing 21-06-2013 when on 14-06-2013 later for the Opposite Party i.e. the R.T.A., Cooch Behar, Mr. Karma Bhutia entered appearance in person and he prayed for time to file W/V and filing records which was allowed.
On 21-06-2013 the Complainant filed his evidence on affidavit and 24-06-2013 was fixed for argument and filing W/V by the Opposite Party, if any, before two days. On that date the Complainant sought time for argument and the Opposite Party was absent without any step. 15-07-2013 was fixed for argument by the parties. On that date also no step was taken by the Opposite Party. The Complainant took adjournment on the ground of mother’s death of the Ld. Agent and 01-08-2013 was fixed for argument. On that date the Opposite Party Sri Tapas Biswas, R.T.O. appeared personally and filed a petition to vacate Ex-Parte hearing order which was allowed fixing 19-08-2013 for filing W/V by the Opposite Party and on that date the Opposite Party Sri Sudip Sarkar, M.V.I.(Tech) appeared through his Ld. Agent who filed petition for time to file written version and 29-08-2013 was fixed for filing W/V by the Opposite Party on cost of Rs. 100/- payable to W.B.C.W.F.
On 29-08-2013 the Complainant filed a petition for amendment of his plaint. The Opposite Party filed written deposition for necessary order enclosing a sheet as to status of Complainant under signature and Seal of R.T.O., Cooch Behar dated 29-08-2013. 03-09-2013 was fixed for filing amendment petition. 03-09-2013 the Complainant filed amended plaint to add para 9(a), 9(aa) but non appeared for the Opposite Party. 09-09-2013 was fixed for hearing the amendment petition and plaint with liberty to Opposite Party to file W.O., if any, in the meantime but that day no step was taken on death of a Ld. Lawyer of Cooch Behar Bar Association. Accordingly, 19-09-2013 was fixed for hearing the matter of amendment. On that date though the Complainant appeared no step was taken for the Opposite Party. None responded on repeated calls for the Opposite Party. The amendment was allowed and amended accordingly. 21-10-2013 was fixed for filing W/V of the Opposite Party. On that date no W/V was filed by the Opposite Party and 18-11-2013 was fixed for show cause by the Opposite Party as to why the cost imposed on 19-08-2013 was not paid and the case shall not be heard Ex-Parte for misuse of the opportunity given to the Opposite Party.
On 18-11-2013 both the President and the Male Member were under training at W.B.N.U.J.S., Kolkata and 09-12-2013 was fixed for show cause of the Opposite Party. Neither the W/V nor the imposed cost was paid by the Opposite Party. On that date the Opposite Party was absent and the case was taken up in Ex-Parte argument fixing 12-12-2013. On that date the Complainant filed a petition to file his evidence on affidavit which was allowed and 17-12-2013 was fixed and it was filed. No step has been taken by the Opposite Party i.e. R.T.A., Cooch Behar. 03-01-2014 was fixed for argument in Ex-Parte, fixing 16-01-2014 for delivery of Final Order when further 31-01-2014 was fixed for Final Order, as the President who also heard the argument was on leave 31-01-2014. That date Final Order could not be delivered for not being the same typed. 17-02-2014 i.e. today is fixed for passing and delivery of Final Order.
Now, let us see the evidence on record filed by the Complainant and though the Opposite Party restrained from appearing at times and also not complied with the direction of the Forum, reason best known to the Opposite Party R.T.A., Cooch Behar and both the parties in litigation conducted the case very casually. Even there appears some irregularities in the proceedings the case is being decided on further examination of the Complainant, on oath to mark the filed documents exhibit, for identification, in a separate sheet and for just decision.
So, called “Written Deposition” filed by the Opposite Party on 29-08-2013 in the format of status of the Complainant as “Reply” treating it as W/V and evidence para wise speaks :
Point 3 : Neither relevant records of surrendering the documents is available at this end nor acceptance of surrender has been endorsed in respective Surrender Register based on his application dated 06-10-2009. Moreover, it is presumed that due to non-deposition of pending dues within time his prayer could not be entertained.
Point 4 : Agreed. (i.e. the Opposite Party has admitted that the Complainant approached the Opposite Party for permission to repair the vehicle and lifting /place the vehicle on the road again after thorough repair).
Point 5 : No comment. (i.e. no comment made as to several correspondence and service of Advocate’s Letter dated 24-09-2012).
Point 6 : Agreed. Applicant produced Original Receipt only.
Point 7 : Agreed. (i.e. the Opposite Party issued the Memo No. MV/209 dated 05-04-2012 as to non-consideration of the prayer of the Complainant on two grounds i.e. for non-submission of (1) “Fitness Certificate” and (2) Up to date Road Tax as a ground for non-consideration of the prayer of the Complainant).
Point 8 : Agreed. On receipt of intimation intention of the applicant vide his prayer dated 28-05-2012 calculation was being done and it was ascertained that a total due amounting to Rs. 51,581/- (Road Tax Rs. 26,359/- + Rs. 25,222/- as Fine) is payable by the concerned applicant. But due to some problem with Computer Software Demand Notice could not be printed at that time and the applicant did not turn up further.
Point 9 : It was ascertained that total due amounting to Rs. 51,581/- is payable by the applicant. At present on 07-07-2013 Memo No. MV/389/TDN dated 16-07-2013 which may now be accepted by the Complainant with due direction of the District Consumer Disputes Redressal Forum, Cooch Behar.
Point 10: No comment. (i.e. no comment has been made in respect of the averments of the Complainant in respect of “deficiency in service” by the Opposite Party).
Point 11: Advocate Notice dated 24-09-2012 has not readily available at this end.
Point 12: Route Permit will be allowed/Re-validated only when necessary dues will be cleared and on fulfillment of relevant criteria forced by M.V. Rules/ M.V. Act as directed by the Hon’ble Court.
Point 13: No comment. (i.e. no comment made in respect of entitlement relief since 20-06-2011 till 21-05-2013 causing loss of Rs. 700/- per day of the Complainant by the Opposite Party and or deficiency in service caused by the Opposite Party).
Point 14: No comment. (i.e. no comment in respect of the prayer part in the complaint dated 21-05-2013).
However, no comment could be have from the Opposite Party as to amendment of the plaint dated 19-09-2013 though on 19-09-2013 the Ld. Advocate for the Opposite Party had filed his attendance without taking any step in respect of such amendment which may be treated as admission.
Further, we require discussion on the evidence of the Complainant on affidavit dated 21-06-2013 and exhibits marked on 31-01-2014 in which he has claimed about his knowledge of all facts and circumstance of the case. He, for maintaining his livelihood purchased the Auto Rickshaw, WB-63/2420 (7+1) for carrying passenger and after getting Route Permit being No. PCOP 06/2002-2003 for the Route Ghughumari to New Cooch Behar to Pundibari for the Opposite Party placed the same on route is acceptable or not as no Driving License/document produced.
Since, 2009 he was facing severe problem in plying the vehicle due to tough competition. Hence, he surrendered all relevant papers and documents of the vehicle to the Opposite Party on 06-10-2009 and since then the vehicle was lying at the garage in fully breakdown and damaged condition is not disputed so far.
He again filed application to the Opposite Party on 20-06-2011 for permission to repair the vehicle for on road. He served Advocates Notice to the Opposite Party on 24-09-2012.
Against his prayers the R.T.A. issued Memo No. MV/1083 dated 15-11-2011 and Memo No. MV/1174 dated 13-12-2011 and being asked to produce the original receipt copy of his application for their verification he submitted the same on 16-12-2011. Ultimately the R.T.A. issued Memo No. MV/209 dated 05-04-2012 as to non acceptance of his prayer by the Opposite Party on two grounds as to (1) non-submission of Fitness Certificate with his application dated 04-10-2009 and (2) Road Tax was also not paid up to date i.e. up to 04-10-2009.
He deposited all necessary papers at the time of Surrender of Route Permit. He got Memo No. MV/209 dated 05-04-2011 and he conceded to pay the Road Tax (arrear Road Tax, if any) but the Opposite Party did not take any positive step. He intimated the S.D.O., Cooch Behar for intervention.
He has claimed his serious suffering and mental setback due to evasive reply of the Opposite Party delaying the matter by willful act of omission or commission for which he suffered financial loss even being a bonafide Route Permit Holder which is deficiency in service of the Opposite Party.
He claimed relief since 20-06-2011 stating till this day i.e. 21-05-2013 @ Rs. 700/- per day from the Opposite Party who caused such loss to him (Complainant) i.e. the date of filing the complaint.
Now, from the discussion of the materials on record we need consideration of the following points.
Points For Consideration
- Is the petitioner is a “Consumer” or “Complainant” and the petition is a “complaint” ?
- Has there any deficiency in service on the part of the Opposite Party towards the Complainant?
- Is he entitled to get the benefit as claimed, based on the evidence adduced by the Complainant?
- What other relief or reliefs the Complainant is entitled to?
Decision with Reason
Point No. 1.
The Complainant in his Complaint stated that he purchased the Auto Rickshaw for his livelihood and placed the same on route as stated is not disputed but there is no whisper as to whether he placed the same on route driven by self or through hired driver for the purpose of business i.e. whether it was obtained for any commercial purpose or not.
Here, the main legal criteria is whether even if the Auto Rickshaw is on route for earning self or through appointed/engaged driver and party by self driving and partly by engaged driver and earning thereby fall within the purview of self employment though transparently it speaks that the Auto was for carrying (7+1) passenger i.e. including the driver and obviously a passenger vehicle but for self employment as claimed in the complaint and not disputed by the Opposite Party specifically anywhere.
From the explanation of Section 2(l)(d) of the C.P. Act, 1986 it appears “Explanation for the purposes of this clause”, “Commercial purpose” does not include use by a person goods brought and used by him/her and services availed by him/her exclusively for the purpose of earning his/her livelihood by means of self employment; which reasonably implies that it relates to goods vehicle. It also implies that the services availed of by plying such vehicle i.e. passenger carrying vehicle i.e. the Auto Rickshaw purchased by the Complainant falls within the ambit of exclusively for the purpose of earning his livelihood.
It is the burden of proof on the part of the Opposite Party i.e. the R.T.A., Cooch Behar that the permission the Auto Rickshaw to ply was not for exclusive earning of the livelihood of the Complainant but it was for the commercial purpose had it been proved the Complainant could not treated as “Consumer” in the light of the provisions of the C.P. Act, 1986. Rather the Opposite Party in the present case remained silent on this aspect. Hence, this points i.e. whether the petitioner is a “Consumer”, “Complainant” the petition is a “Complaint” are decided in favour of the petitioner Sri Sushanta Adhikari and against the Opposite Party i.e. the R.T.A., Cooch Behar.
Point No. 2.
From the discussion here in before it is transparent that the Opposite Party i.e. the R.T.A., Cooch Behar has invited it’s deficiency in every performance towards service to the Complainant specially when it failed to send the Demand Notice of arrear Road Tax due to defect in computer generation of the Demand Notice. The plea that the Complainant did not appeared before the R.T.A. cannot be accepted as violation of the order of the R.T.A. because no Demand Notice was served to him. By filing the status of the Complainant before this as discussed herein cannot immune the Opposite Party from the deficiency in service.
On the other hand though the Complainant claimed to declare that the Memo No. MV/389/TDN dated 16-07-2013 i.e. Additional Road Tax and from 2009 illegal as the Auto Rickshaw was in the garage in damaged condition cannot be accepted from his self produced documents vide his letter dated 28-05-2012 that one quarter Road Tax one on 04-10-2009 and without paying the same he has filed the document surrender petition on 06-10-2009. Besides, in his petition to R.T.O., Cooch Behar dated Nil (Received date 06-10-2009) he filed Road Tax paid Receipt DCR TR No. 418670 of 20 page 10 dated 27-01-2009 and not DCR TR No. 443865 of 20 page 15 dated 22-05-2009 for 09-04-2009 - 08-07-2009 amount of Rs. 2,610/-.
Further, the contention of the letter of the R.T.O., Cooch Behar dated 05-04-2012 alleging that Fitness Certificate was not submitted with the application dated 04-10-2009 for surrender of papers also cannot be logically accepted if the claim of the petition of Complainant before this Forum is considered that the said vehicle was lying at the garage in fully breakdown and damaged condition, is believed to be true but fact remains that in his petition of surrender of papers to the R.T.A. dated 06-10-2009 he stated that he could not sustain on route due to competition whereas in his application to the S.D.O., Sadar dated 21-11-2011 he stated about retched condition of his Auto Rickshaw besides, alleging on some other matters. So, it can reasonably be presumed that the Complainant has not come before this Forum in clear hand which is also proved from other annexed documents.
However, considering all aspects we find that in one hand the Opposite Party i.e. R.T.A., Cooch Behar has deficiency in service towards the Complainant.
On the other hand, the Complainant has not only come before this Forum by suppressing material facts but also with uncleaned hand by not producing the relevant documents, reasonably putting the Forum in dilemma to decide the case. From the documents on record it is transparent that the Complainant is defaulter in respect of payment of the Road Tax of the relevant period. He however, before S.D.O. Sadar, Cooch Behar has stated that he himself used to drove the Auto Rickshaw but in his petition he has not specifically stated the same in his petition before this Forum that he himself drove his vehicle. May whatever, it be this point is partly decided in favour of the Complainant and partly in favour of the Opposite Party to the extent of claim may in the written deposition (Sub. : status of complaint at point No. 9 as to the total due amount of Rs. 51,581/-, Road Tax Rs. 26,359/- + Rs. 25,220/- as fine). Which he is to pay to the R.T.A. even he is entitled to compensation in respect of deficiency in service as per M.V.A. Act and rules there under. Here, it is pertinent to observe that for the Act/omission when come to light from the performance of service due to the Acts/omission of the concerned officer/staff neither the Act/rules can be allowed to be violated nor the due revenue of the Govt. can be allowed to suffer there lies the accountability.
Point No. 3.
We have gone through and considered the evidence in chief dated 21-06-2013 and further evidence by the Complainant dated 18-12-2013 together with the documents annexure/original shown for verification. From the discussion herein above we may come to the conclusion that the Complainant is not entitled to get the relief/reliefs as prayed in his petition of complaint dated 21-05-2013 from the evidence on record and in terms of the law, rules and regulations there under, as settle principle of law. Though the Opposite Party R.T.A. has not whispered against the claim of daily earning loss for the claim period it cannot be allowed to be born by the Opposite Party because it was due to the wrong of the Complainant who lost his earning. There is provision for compensation in respect of loss of earning in case medical deficiency in service but that should not be applicable in such a case under consideration before this Forum. However, the harassment to the Complainant cannot be ignored though personally the Complainant himself is partly responsible for his harassment, mental pain and agony. He is entitled to get benefit in respect of deficiency in service on the part of the Opposite Party besides, the permission for plying the said Auto Rickshaw on route after it being repaired at the cost of the Complainant if so he deserves action in terms of the M.V. Act and Rules there under otherwise the petition dated 06-10-2009 be decided on merit by the R.T.A., Cooch Behar.
Point No. 4.
In respect of other relief/reliefs the Complainant entitled to may be decided amicably by sitting of the Complainant with the R.T.A., Cooch Behar to arrive at a reasonable solution so that the Complainant do not suffer any more in one hand and Govt. does not loss its revenue which may come on plying the Auto Rickshaw of the Complainant on route being beneficial to not only to the Complainant and the M.V.A. but also general public as whole. In fact, this legislation as to Consumer Protection Act is to protect the Consumer rather Consumer friendly but not a Jackpot or Lottery centre.
ORDER
Therefore, it is Ordered that the complaint case be and the same succeeds in part and do get compensation to the tune of Rs. 50,000/- payable by the R.T.A., Cooch Behar i.e. the sole Opposite Party to the Complainant along with litigation cost of Rs. 5,000/- within a period of 45 days from the date of receipt of this Final Order by the Opposite Party, failure of which the Opposite Party shall pay at the rate of Rs. 100/- per day for each day’s delay in payment of the aforesaid amount. The Complainant is also directed to deposit the amount of Rs. 51,581/- within the aforesaid period.
Besides, both the Complainant and the Opposite Party shall within the aforesaid period decide the dispute in respect of plying the Auto Rickshaw on route as per provision of the M.V. Act and Rules there under if applied afresh by the Complainant as such. No cost in respect of non-compliance of the earlier orders and not causing before the Forum in clean hand is imposed.
A plain copy of this order be made available and be handed over sent to each of the parties free of cost by registered post with A/D forthwith as per rules.
Dictated and corrected by me.
President, President,
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar.
Member, Member,
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar.
