State Consumer Disputes Redressal Commission
Ravindrasingh Avtar Singh Bhasin vs The Regional Transport Authority on 22 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR Complaint Case No. CC/16/54 1. RAVINDRASINGH AVTAR SINGH BHASIN R/O. PLOT NO. 628, KASHMIRI GALI, DR. AMBEDKAR ROAD, NAGPUR-440017 NAGPUR MAHARASHTRA ...........Complainant(s) Versus 1. THE REGIONAL TRANSPORT AUTHORITY R/O RURAL NEAR GRAMIN POLICE HEADQUARTERS LAL GODAM, TAKANAKA, NAGPUR-440026 NAGPUR MAHAARASHTRA ............Opp.Party(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Complainant: Adv. Mr. A.P. Gera For the Opp. Party: Adv. Mr. Girish Dube Dated : 22 Aug 2017 Final Order / Judgement (Delivered on 22/08/2017) PER SHRI B.A. SHAIKH, HON'BLE PRESIDING MEMBER.
1. This complaint is filed under section 17 of the Consumer Protection Act, 1986.
2. The case of the complainant as set out by him in this complaint in brief is as under:-
a. The complainant is engaged in the business of selling automobile spares. The opposite party (for short O.P.) is the Regional Transport Authority (Rural) which is herein after referred to as O.P. The Honda Accord make car bearing registration No. GJ-6/CM-7374 was previously owned by Shri Mahendrabhai Ramanbhai Shah of Vadodara (Gujarat). The said vehicle was registered at the office of Regional Transport Authority, Vadodara (Gujarat). The said original owner carried certain modifications in the said vehicle. Thereafter, the complainant purchased that vehicle from Shri Mahendrabhai Ramanbhai Shah on 08/08/2014. The cost of the said vehicle after modification was Rs. 28,00,000/- which was paid by the complainant to Shri Mahendrabhai Ramanbhai Shah for purchasing the same. The complainant did not know as to when the said modifications were done by the previous owner.
b. The complainant after purchasing the said vehicle brought it to Nagpur in Maharashtra State from Gujarat State. However, the O.P. detained and seized the said vehicle on 18/12/2014 under the pretext of violation of various provisions of Motor Vehicle Laws/Rules and Regulations. and the vehicle was then remained the continuous care and custody of the O.P. at Nagpur.
c. The O.P. initiated proceedings under section 55(3) of the Motor Vehicles Act, 1988 and other provisions of Law, Rules and Regulations against the complainant. The said proceedings was contested by the complainant. He was waiting for the decisions of the O.P. in that matter.
d. The complainant also made an application to Judicial Magistrate First Class (M.V. Court), Nagpur on 09/01/2015 to get released the vehicle, under section 457 of Cr.P.C.
e. However, the said car/vehicle was destroyed in fire during the intervening night of 29/01/2015 and 30/01/2015, which was kept in the custody of the O.P. at R.T. O. premises, in front of Giripeth, Civil Lines, Nagpur. The said car caught fire and destroyed because of negligence of the O.P. and its employees and agents. The complainant learnt about same in the morning of 30/01/2015 from the news published in the newspaper. Therefore, he rushed to the RTO premises and found his vehicle in burnt condition, which caused immense mental agony to him. He therefore, lodged complaint at Sitabuldi Police Station, Nagpur on 30/01/2015.
f. The O.P. cancelled the registration of the said vehicle without giving opportunity of hearing to the complainant. The O.P. issued notice dated 29/07/2015 to the complainant asking him to take over the salvage of the car from their custody.
g. The complainant is a consumer within the meaning of section 2(I)(d) of the Consumer Act, 1986. He is entitled to compensation for the loss caused to him because of destruction of his car on account of acts, commission or omission on the part employees and agents of the O.P. Therefore, he issued legal notice dated 11/09/2015 to the O.P. claiming compensation of Rs. 28,00,000/-. The O.P. gave vague reply dated 23/10/2015. But did not speak anything about their liability for destruction of the vehicle in fire due to their negligence. The O.P. is therefore, liable to make good and compensate the loss suffered by the complainant.
h. Therefore, this complaint is filed by the complainant claiming compensation of Rs. 28,00,000/- with interest at the rate of 18% p.a. and further claiming litigation cost on account of deficient service provided by the O.P. to him as above.
3. The O.P. appeared before this Commission and filed reply/written version and thereby resisted the complaint. The submission of the O.P. in brief is as under:
i. The complainant does not fall within the definition of consumer and there is no relationship between of consumer and service provider in between the complainant and the O.P. as contemplated under the Consumer Protection Act,1986 and therefore, this Commission has no jurisdiction to entertain and decide the complaint.
ii. The complainant is not a registered owner of the vehicle which is burnt accidentally and therefore he is not entitled to seek compensation from the O.P. iii. The complainant modified /altered the vehicle for commercial purpose and on this count also he does not fall within the definition of the Consumer under section 2(I)(d) of the Consumer Protection Act, 1986.
iv. The alleged claim of the complainant fall under the tortuous liability and burden lies on the complainant to prove the malice and negligence on the part of the official of the O.P. for causing destruction of vehicle and for that purpose evidence in detail is required. Moreover, it is also to proved by evidence that the complainant is a owner of the vehicle. He has not produced any document to prove the same. Therefore, only Civil Court has a jurisdiction to entertain and decide the grievance made in the complaint.
v. The O.P. while discharging its official duties as per provisions of Motor Vehicle Act, detained the vehicle. During the investigation, the complainant was asked to produce certificate of registration , certificate of insurance, tax payment receipt, pollution certificate and Motor Driving Licence etc. But he failed to produce the same. Moreover, it was also found that the vehicle is not constructed and adapted according to provisions of rule 126 of Central Motor Vehicles Rule, 1989. The said vehicle was originally Honda-Accord. But it was modified/altered without prior permission of Registration Authority. Moreover, Prototype and Worthiness Certificate was not granted by the testing authority as provided under Rule 126 of Central Motor Vehicles Rule, 1989. Therefore, the said vehicle was unsafe to drive on public place. Hence, the said vehicle was detained by the flying squad of the O.P. under section 207 of Motor Vehicles Act, 1988.
vi. On 30/12/2014 the O.P. served notice to the complainant by showing all irregularities in the vehicle and called explanation from him as to why the registration of the vehicle shall not be cancelled. The complainant appeared on 06/01/2015 and sought time of 7 days to submit his explanation. On 19/01/2015 the complainant submitted his explanation and admitted the modification done in the vehicle and that the vehicle was brought in Goods Container Vehicle. But he failed to produce the way bill /builty of the vehicle. Vehicle was brought by road in contravention of the provisions of Motor Vehicle Act by putting the safety of public at large on stake.
vii. No satisfactory explanation was given by the complainant regarding the registration of modified vehicle and about permission from the authority as laid down in Motor Vehicle Act. Therefore, by considering the unsafe nature of the vehicle it was detained by O.P. viii. The application made by the complainant to the Court has been rejected by the Court for want of documents. Therefore, the said vehicle was parked in the premises of RTO , Nagpur at the cost and risk of complainant. However, in the morning of 30/01/2015 the said vehicle was found in burnt condition.
ix. The complainant might have played mischief and thereby put the said vehicle on fire to destroy the evidence and he tried to put all accountability on the shoulder of the O.P. The officials of the O.P. have performed their duties as per law. They had parked the vehicle in the premises of the office and security guard was also deployed. There is no negligence on the part of the O.P. Except this vehicle so many other vehicles parked in the premises were not put on fire.
x. The police investigated into the matter. But no incriminating evidence was found against the officer of the O.P. Therefore, merely because the vehicle detained in the premises of the O.P. caught fire, it does not make the O.P. liable to pay any compensation to the complainant. The O.P started the procedure for cancellation of registration and after cancellation of the registration of the vehicle, the vehicle cannot be allowed to drive. Therefore, the complainant was directed to sale the same in scrap after completion of official formalities. But he did not comply the said direction. Therefore, the complaint is liable to be dismissed.
4. The complainant filed the rejoinder to the complaint after the O.P. filed above reply. He denied the adverse allegations made in the reply by the O.P. He filed copies of following documents.
Copy of letter dated 29/07/2015 written by O.P. to the complainant.
Copy of the application made by the complainant to JMFC for release of vehicle, dated 09/01/2015.
Copy of the newspaper clipping dated 30/01/2015 Copies of photographs of the vehicle before and after destruction of the vehicle.
Copy of the complaint filed by the complainant before the Police Station, Sitabuldi on 30/01/2015.
Legal notice dated 11/09/2015 to the O.P. endorsing copy to the Secretary to the Government of Maharashtra, by the complainant.
Copy of the reply of the O.P. dated 23/10/2015 given to that notice.
Copy of NOC slip dated 22/09/2014 issued by Gujarat Motor Vehicle Department.
Copy of Registration of Motor Vehicle issued by Gujarat State.
Copy of Pollution Control Certificate dated 18/09/2014 issued by Transport Department of Gujarat State.
The Complainant has also filed his evidence affidavit.
5. The learned advocate of both the parties filed their respective written notes of argument. We have heard learned Advocate Mr. A.P. Gera appearing for the complainant and learned Advocate Mr. Girish Dube appearing for the O.P. We have also perused the entire record of the complaint discussed above.
6. The material question involved in the present case is as to whether the complainant is a consumer and O.P. is service provider as contemplated under the Consumer Protection Act, 1986. The complaint is maintainable before this Commission only when the relationship as consumer and service provider is existed in between the complainant and O.P. respectively.
7. It is argued by the learned advocate of the complainant that the distinction has to be drawn between sovereign function and discharge of administrative duties on payment of fees. Thus according to him, the sovereign functions are not covered under the Consumer Protection Act, 1986. whereas the discharge of administration duties is covered under the Consumer Protection Act,1986. He relied on the observations made in the Sawant case of which he produced commentary obtained from internet. As per the said document the Hon'ble National Commission held that the consumer fora jurisdiction would not be ousted merely because the officials were government servants discharging official duties. Moreover, the function of land measurement is not a sovereign function, but an administrative function for which fees are payable. Hence, Sawant would be a consumer of services availed on payment of consideration. Thus relying on the said observation, learned advocate of complainant submitted that as the O.P. was negligent in performing administrative function due to which the vehicle of the complainant caught fire and burnt, it is liable to pay compensation to the complainant for deficiency in service.
8. On the other hand, the learned advocate of the O.P. submitted that the aforesaid observation of the Hon'ble National Commission are not applicable to the present case since in the present case no consideration was paid by the complainant to the O.P. for care and protection of the vehicle after it was seized by the O.P. for violation of various provisions of Motor Vehicles Act and Rules made there under as specified in detail in the reply of the O.P. filed on record. He also submitted that the vehicle was seized by the O.P. under its sovereign function for violation of Laws and Rules and thus there is no question of discharge of administrative duties by the O.P. as regards the seizure of that vehicle and it was detained in the premises of the O.P. for taking further recourse of law against the complainant for violation of the various Rules and Laws. Therefore, according to him merely because of detention of the vehicle by the O.P. for violation of the Rules and Laws, no relationship of consumer and service provider is existed in between the complainant and the O.P. Therefore, the complaint is not maintainable before this Commission.
9. Thus main issue involved in the present case is as to whether the relationship is existed in between the complainant and the O.P. as the consumer and service provider as contemplated under the Consumer Protection Act, 1986. The term consumer is defined under section 2(1)(d) of the Consumer Protection Act and term service is defined under section 2(1)(o) of the Consumer Protection Act. Section 2(1)(d) of the Consumer Protection Act, 1986 inter alia provides that if person hires or avails service from other person for consideration, then the said person who hires service for consideration, fall within the ambit of the definition of the Consumer. Under section 2(1) (o) of the Consumer Protection Act, service contemplated is any service which is rendered for the consideration.
10. In the instant case, admittedly no consideration was paid by the complainant to the O.P. to avail any such service from the O.P. as contemplated under the Consumer Protection Act,1986. Therefore, we are of the considered view that the complainant does not fall within the definition of the Consumer given under section 2(1)(d) of the Consumer Protection Act,1986.
11. We also find that the vehicle in question was seized by the O.P. under relevant provisions of laws during discharge of statutory duties. The seizure of the vehicle by the O.P. for violation of laws and rules during its use, to our mind is sovereign function of the O.P. The seizure of vehicle cannot be said to be during discharge of any administrative duties of the O.P. The aforesaid decision in the case of Dr. Chandrakat Vitthal Sawaant Patel Vs. L.R. Pilankar Inspector of Land Records and Another in Revision Petition No. 2273/2012 decided by the Hon'ble National Commission is not applicable to the facts and circumstances of the present case as in that case it was found that the service of Inspector of Land Record was availed by the complainant by paying fees for the purpose of measurement of land, where as in the present case no such consideration or fee was paid by the complainant to the O.P. to avail its services. Moreover, in the present case it is also found that the vehicle of the complainant was seized by the O.P. while performing sovereign function as contemplated under Motor Vehicles Act and Rules made there under .
12. We thus find that the O.P. does not fall within the ambit of service provider as contemplated under the Consumer Protection Act,1986. Hence, relationship in between the complainant and O.P. does not exist as consumer and service provider. The complaint filed before this Commission under the Consumer Protection Act, 1986 is therefore not maintainable in law.
13. We, therefore hold that as the complaint is not maintainable before this Commission, there is no question of entering into other issues involved in the present complaint. Thus on this sole ground that the complaint is not maintainable before this Commission, the complaint deserves to be dismissed. Accordingly, the following order is passed.
ORDER i. The complaint is dismissed. ii. No order as to cost in complaint. iii. Copy of order be furnished to both the parties, free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER