Dinesh Singh, Member
1. This Revision Petition has been filed under Section 21(b) of The Consumer Protection Act, 1986, hereinafter referred to as the ‘Act’, challenging the Order dated 02.07.2919 of The State Consumer Disputes Redressal Commission, Haryana, hereinafter referred to as the ‘State Commission’.
The Revision Petitioner herein, Kurukshetra Express Pvt. Ltd., was the Appellant before the State Commission and the Opposite Party(ies) before The District Consumer Disputes Redressal Forum, Jhajjar, hereinafter referred to as the ‘District Forum’.
The Respondent No. 1 herein, Mr. Raj Kumar, was the Respondent No. 1 before the State Commission and the Complainant before the District Forum.
The Revision Petitioner, Kurukshetra Express Pvt. Ltd., is hereinafter being referred to as the ‘Petitioner Co.’ and the Respondent No. 1, Mr. Raj Kumar, is hereinafter being referred to as the ‘Complainant’.
2. The dispute relates to loss and injury caused to the Complainant due to alleged deficient services of the Petitioner Co.
3. We heard the learned Counsel for the Petitioner Co., and perused the entire material on record including inter alia specifically the application for condonation of delay, the Order dated 09.03.2018 of the District Forum, the Order dated 02.07.2019 of the State Commission and the Memorandum of Petition.
4. The Registry has reported a delay of 22 days in filing the Revision Petition.
The Petitioner Co. has filed an application for “condonation of delay, if any”, “to avoid any technical objection”.
In its application for condonation of delay, the Petitioner Co. has inter alia written “- - - the present petition is being filed by the petitioner within the period of limitation from the date of knowledge of the impugned order. However, to avoid any technical objection, the Petitioner is filing a present application for condonation of delay, if any, from the date of the impugned order - - -” and “- - - to pass condone the delay, if any, in filing the appeal - - -”.
A mere perusal of the application for condonation of delay shows that it has been mechanically drafted. The prayer clause itself (“- - - to pass condone the delay, if any, in filing the appeal - - -”) is illustrative of the manner of articulation, wherein “pass” has been written in place of ‘please’ and “appeal” has been written in place of ‘revision’.
We find that the stated reasons for delay, as written in the application for condonation of delay, point towards managerial inefficiency and perfunctory and casual attitude to the law of limitation, they are illogical and incongruous in explaining convincingly and cogently the delay in filing the Revision Petition before this Commission.
Sufficient cause to condone the delay is not visible.
However, in the interest of justice, and to adjudicate the case on merit, we condone the delay, whatever it be, in filing the Revision Petition, without undertaking any elaborate and unproductive exercise to compute the number of days of delay etc.
5. The rival contentions have been succinctly enunciated by the State Commission in its impugned Order dated 02.07.2019:
2. The complainant owns a vehicle, which he uses for going from Jhajjar to Rohtak and in order to pay the toll, he had purchased monthly toll pass. On 11.08.2017, he travelled in his vehicle between Jhajjar and Rohtak and passed through toll barrier thrice. However, when he was going to Rohtak at about 10.00 P.M, the toll collector without checking the system did not allow him to cross the toll plaza. Not only was he detained unnecessarily for more than one hour, he was also charged Rs.40/- and only thereafter, he was allowed to cross the toll plaza. Complaining deficiency in service on the part of the opposite parties, the complainant sought directions to the opposite parties to pay him Rs.2,00,000/- as compensation alongwith interest and litigation expenses.
3. Upon notice, the opposite parties pleaded that on the alleged date and time of the incident, the complainant did not show the toll pass as he might not be having the toll pass at that time. In the absence of the same, the opposite parties issued a daily toll receipt of Rs.40/-, which was not illegal. Hence, they sought dismissal of the complaint.
6. In the Consumer Complaint before it, the District Forum heard both sides, appraised the evidence, and, vide its Order dated 09.03.2018, allowed the complaint:
4. We have heard the arguments of learned counsel for the parties and have gone through the material aspects of the case very carefully and minutely. It is an admitted case of the parties that the complainant has been issued a monthly toll pass by the respondents and it is also admitted by the respondents in their written statement that the complainant had recharged his toll pass card on 2.8.2017 and on the day of incident i.e. on 11.8.2017 had crossed the toll gate twice and on the first visit the complainant crossed the toll gate by use of said smart card /gate pass. As per the allegations of counsel for complainant, when the complainant was allowed to cross the toll gate twice on the day of incident as per their own admission of respondents, then what was the reason not to allow the complainant to cross the toll gate without checking of system by respondents and why the respondents charged Rs. 40/- for the said purpose from the complainant. In order to prove the case in his favour, the counsel for complainant has placed on record RTI application dated 17.8.2017 of complainant placed on record as Ex. C-1 and the reply thereof from the side of respondents placed on record as Ex . C - 3. From the perusal of above documents, we have observed that the complainant had sought intimation under RTI Act, 2005 regarding providing of CCTV footage of recording of whole day activity of incident, to provide the detail whether the complainant has paid or not the toll fee w.e.f. 1.8.2017 to 31.8.2017 etc. etc. But we have observed that the respondents declined to provide the above information to the complainant saying that “we do not have any obligation for parting information”. We have further observed that the toll pass card is Ex. C - 4 and illegal charging receipt of Rs. 40/ - is placed on record as Ex. C - 5.
5. In view of aforesaid discussion and findings, it is observed that there is deficiency in service on the part of the respondents who wrongly, illegally and unlawfully charged a sum of Rs. 40/- from the complainant on 11.08.2017 vide receipt Ex. C - 7 whereas the complainant was already having a valid toll gate pass card Ex. C - 4 with him and crossed he toll gate twice on the same day. Hence, we have observed that the complainant has suffered mental agony, harassment and losses as well as litigation expenses due to the deficient act of respondents. Therefore, we hereby direct that the respondent shall pay lumpsum compensation of Rs. 25,000/- to the complainant on account of sufferings on account of sufferings, harassment etc. including the litigation expenses to the complainant. The complaint stands disposed of accordingly.
7. The Petitioner Co. appealed in the State Commission.
The State Commission heard both sides, appraised the evidence, and, vide its Order dated 02.07.2019, dismissed the appeal:
5. The State Commission has heard learned counsel for the parties, perused the impugned order and scanned the evidence.
6. The fact that the complainant had a monthly toll pass issued by the opposite parties stands admitted. The same was recharged on 02.08.2017. On 11.08.2017, the complainant crossed the toll gate twice. On his first visit, he was allowed to cross the toll gate by using toll pass. However when for the second time, the complainant wanted to cross the toll gate, the toll collector did not allow him to do so and instead charged Rs.40/- and only then he was allowed to cross the toll gate. The plea of the opposite parties that at the time of the second visit of the complainant, he did not show the toll pass cannot be accepted as he had recently got the toll pass recharged and had used the same during his first pass through the toll gate. The complainant had also sought information under Right to Information Act from the opposite parties to provide CCTV footage of recording of the entire day activity of the incident and to provide the details but the opposite parties declined to provide the information on the plea that they did not have any obligation for parting with the information. As such, it can safely be concluded that the complainant had toll pass card with him but he was illegally charged Rs.40/- for passing through the toll gate.
7. Resultantly, no fault can be found with the decision arrived at by the learned District Forum whereby the complainant was granted a lumpsum compensation of Rs.25,000/- to be paid by the opposite parties.
8. The appeal is devoid of merit and is, accordingly, dismissed.
8. We find the impugned Order dated 02.07.2019 of the State Commission to be well-appraised and well-reasoned. The State Commission has concurred with the findings of the District Forum. We note in particular the extracts of the respective appraisals made by the two fora below, quoted, verbatim, in paras 6 and 7 above. On the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice.
9. The case has been appraised by both the fora below. The two fora have arrived at concurrent findings.
Within the ambit and purview of section 21(b) of the Act, we find no grave error in appreciating the evidence by the two fora below as may cause to require de novo re-appreciation of the evidence in revision.
10. The facts of the case are simple, and unsavoury.
The Complainant had paid the requisite fee for a toll pass, that is, the Complainant had paid the consideration to avail of the services of the Petitioner Co. He was a ‘Consumer’ within the meaning of Section 2(1)(d) of the Act.
It is admitted by both sides that the Complainant had a valid toll pass. He crossed the toll barrier of the Petitioner Co. three times on the date in question i.e. on 11.8.2017 (the number of times the Complainant crossed the toll barrier i.e. ‘three times’ has been taken from the Complaint and from the Memorandum of Petition). On the first two occasions, his (monthly) toll pass was honored. On the third occasion, he was charged Rs. 40/- as (daily) fee for crossing the toll barrier.
11. The Petitioner Co.’s contention, that on the third occasion the Complainant failed to produce his toll pass, is difficult to believe. He crossed the toll barrier twice earlier on the same day itself. It is unreasonable to accept that on the third occasion he anyway left his toll pass elsewhere and did not produce it.
In the case of one plausible eventuality, that on the third occasion the computerized system of the Petitioner Co. was dysfunctional and could not accept the toll pass, the benefit will go to the Complainant for the simple factum that functionality of its system is the responsibility of the Petitioner Co. and not of the Consumer.
In the case of another plausible eventuality, that on the third occasion the toll pass produced by the Complainant was dishonored and disregarded and the employee(s) of the Petitioner Co. insisted on and wilfully charged Rs. 40/-, the benefit will self-evidently go to the Complainant.
Both contingencies show arbitrariness and highhandedness, wrongful and unlawful enrichment, on the part of the Petitioner Co.
It is material and bears emphasis that before the forum of original jurisdiction, the District Forum, the Complainant has adduced both [a] his valid toll pass and [b] the receipt issued for Rs.40/-.
12. We have no hesitation in agreeing with the concurrent findings of the two fora below in respect of ‘deficiency in service’.
13. In addition, we may note here that ‘unfair trade practice’ is a specific provision unique to The Consumer Protection Act, 1986.
Section 2(1)(r) of the Act says of “a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-”.
The list provided in Section 2(1)(r) is illustrative and not comprehensive.
That is to say, an unfair method or unfair or deceptive practice, as is judiciously determined, on facts and reasons, on fair and objective appraisal of the evidence and material on record, would qualify as ‘unfair trade practice’ within the meaning of Section 2(1)(r).
In the instant case, arbitrarily and highhandedly dishonoring and disregarding a valid toll pass, and wrongly and unlawfully enriching itself by charging a fee of Rs. 40/- when none was due, is decidedly an unfair and deceptive act, which qualifies as ‘unfair trade practice’ under the Act.
14. We, thus, find both ‘deficiency in service’ within the meaning of Section 2(1)(g) and (o) and ‘unfair trade practice’ within the meaning of Section 2(1)(r) of the Act to be well and truly evident on the part of the Petitioner Co.
15. The Act is for “better protection of the interests of consumers”, in recognizedly a fight amongst unequals.
This is a plain and simple case of a Company, with wherewithal, on the one side, and an ordinary common Consumer, without wherewithal, on the other side, with the Company first indulging in deficiency in service and unfair trade practice, causing loss and injury to the Consumer, and then indulging in litigation in one, and then, two, and now, three, Consumer Protection Fora. We also find that, before the third Forum, i.e. this Commission, also, its case fails at the admission stage itself.
We may also note that this is one particular instance that has come to notice before the Consumer Protection Fora. The eventuality of other such instances, with other Consumers, of arbitrarily and highhandedly dishonoring and disregarding valid toll passes, and wrongly and unlawfully enriching itself by charging fee when none is due, as an intermittent or regular practice, cannot be ruled out.
16. All this is not viewed favourably.
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In the light of the above examination: [a] The Compensation of Rs. 25,000/- awarded by the District Forum in respect of deficiency in service, as upheld by the State Commission, is confirmed. The impugned Order dated 02.07.2019 of the State Commission is sustained. [b] (i) In addition, for unfair trade practice per se, the Petitioner Co. through its Chief Executive is put to stern advice of caution with imposition of cost of Rs. 1 lakh to be deposited with the Consumer Legal Aid Account of the District Forum within four weeks of the pronouncement of this Order. (ii) The Petitioner Co. through its Chief Executive is ordered under Section 14(1)(f) of the Act to forthwith discontinue its unfair trade practice and to most immediately pass appropriate directions to all its concerned employees / offices / barriers to desist from such unfair and deceptive acts, so that there is no recurrence of such acts (undertaken for wrongful and unlawful enrichment) in future, and to furnish a report-in-compliance to the District Forum within four weeks of the pronouncement of this Order. 18. Needless to add, the District Forum shall undertake execution as per the law for failure or omission in timely compliance. 19. A copy each of this Order be sent by the Registry to [a] the District Forum and [b] the Chief Executive of the Petitioner Co. within three days of its pronouncement, in specific reference to paras 17 and 18 above. 20. A copy of this Order also be sent by the Registry to the Complainant within three days of its pronouncement. 21. So disposed.