IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 RFA.No. 600 of 2011 --------------------------- OS.18/2006 of SUB COURT,NEYYATTINKARA .................... APPELLANTS (S): DEFENDANTS: ----------------------------------------------- 1. TAMILNADU STATE TRANSPORT CORPORATION (MADHURAI) LTD, NAGERCOIL REGION, NESAMONY NAGAR NAGERCOIL, KANYAKUMARI DISTRICT, TAMIL NADU REPRESENTED BY ITS GENERAL MANAGER, DO.DO. 2. THE GENERAL MANAGER TAMILNADU STATE TRANSPORT CORPORATION (MADHURAI) LTD, NAGERCOIL REGION, NESAMONY NAGAR, NAGERCOIL, KANYAKUMARI DISTRICT, TAMIL NADU . BY ADV. SRI.SUBHASH SYRIAC RESPONDENT(S): PLAINTIFF: ----------------------------------------- N.PRABHULLA CHANDRAN, S/O.NANU, THITTAVILA VEEDU,PUTHYAKAVU, KILIMANOOR PO, THIRUVANANTHAPURAM 695 001. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- R.F.A.No.600 of 2011 ----------------------------------------- Dated, this the 22nd day of September, 2011 J U D G M E N T K.M.Joseph, J. Appellants are the defendants in a suit for money laid by the respondent. Briefly put, the case of the respondent is as follows: Respondent is a Contractor/Licensee authorised to collect toll at the rate prescribed by the Government of Kerala from the vehicles passing through the newly constructed bridge across Neyyar River in National High way 47. The Government of Kerala awarded the contract to him for a sum of Rs.61.00,600/-. Buses belonging to the appellants were passing through the bridge from 1.4.2005. Details were also indicated. The cause of action for the suit was refusal of the appellants to pay toll fee for the vehicles which passed through the aforesaid bridge. The 2nd appellant filed written statement for and on behalf of the Ist appellant also and contended that the appellants are not liable to pay the amount. It was further contended inter alia as follows: There was no notice or information from the Government of Kerala on the subject, it is stated. There was no compromise or RFA 600/2011 -2- agreement between the respondent and appellants. Correspondence is going on between appellants and the Government of Kerala to exempt the appellants from payment of toll. There is allegation of violation of Article 14 of the Constitution. 2. Before the court below Exts.A1 to A4 (a) were marked on the side of the plaintiff and Ext.B1 was marked on the side of the defendants. Exts.X1 to X7 were third party exhibits which were marked. Plaintiff examined the Superintending Engineer, NH, South Circle, Thiruvananthapuram as Pw1. Pw2 was the First Grade Overseer. There is no oral evidence on the part of the defendants/appellants. 3. The trial court found inter alia as follows: “The fact that plaintiff was the contractor for the year 2005-07, 2006-07 and 2007-08 is not in dispute since Ext.X1 to X3 was produced by Pw1. As per the contract between Superintending Engineer and the plaintiff he was authorised to collect the toll fee from the vehicles passing through the Amaravila bridge across Neyyar River. As per Schedule B attached to Ext.X1 to X3 he was authorised to collect Rs.10/- for a single journey and Rs.15/- for return journey for bus, lorry, heavy vehicles etc. In the plaint it is stated that the buses belonged to the defendant Corporation had conducted 281 journeys RFA 600/2011 -3- and 142 trips through the bridge. In the written statement the number of journeys and trips are not disputed. Further though plaintiff filed IA 59/09 by which defendants were directed to produce records/documents showing the details of buses operated through the bridge, it was not produced. They had only produced Ext.B1 Gazette Notification. So the amount covered by plaint is not in dispute. The contention raised by the learned counsel appearing for the defendant is that there is a reciprocal arrangement between the State of Kerala and Tamil Nadu and so defendants are not liable to pay the toll amount. They also contended that since KSRTC buses are exempted from payment of toll fee they are not liable to pay the toll fee. On a perusal of Ext.X1 to X3 it is seen that as per Condition No.8 vehicles belonging to Government of Kerala, Government of India and KSRTC are exempted from payment of toll. There is no mention about the buses belonging to the defendants. Ext.X5 is a copy of letter dated 3.5.05 sent by the Ist defendant to the Chief Engineer, National Highways, Thiruvananthapuram seeking exemption from payment of toll fee. Ext.X4 is a letter dated 8.6.05 from the Chief Engineer, PWD National Highways addressed to Secretary to Government, PWD from which it is revealed that it is not possible to exempt the TNSTC Corporation vehicles from the toll fee since as per the gazette notification exemption was available only to the vehicles belonging the Kerala State, Central Government and KSRTC. Ext.X7 is a copy of letter dated 6.7.05 issued by the Secretary to Government to the Chief Engineer, RFA 600/2011 -4- National Highways, Thiruvananthapuram from which it is revealed that if the request for exemption from toll by the defendant Corporation is approved, it will be violation of the contract between the Contractor and the Government and hence the request was rejected. Ext.X6 is a copy of letter dated 21.7.08 sent by the Chief Engineer to the defendant Corporation informing that their request for exemption of toll fee for TNSTC vehicles is rejected. So from Ext.X4 to X7 it is crystal clear that buses belonging to the defendant Corporation is liable to pay toll fee and their request for exemption was rejected by the State of Kerala. So the contention of the defendants that they are not liable to pay toll fee since the defendant is an undertaking of Tamil Nadu State Government is unfounded. As stated earlier from Ext.X1 to X3 it is revealed that plaintiff was awarded contract to collect toll fee for 3 years covered by the plaint. The number of trips and journeys and the amount is not in dispute. In spite of issuance of Ext.A1 to A3 notices the amount was not paid and the defendants maintained that they are not liable to pay the amount. From the evidence on record it is crystal clear that defendants are liable to pay the toll amount and so the suit is only to be decreed. This issue is found in favour of the plaintiff.” On the basis of the said reasoning the court decreed the suit in a sum of Rs.23,34,480/- with interest at 6% from the date of the suit till realisation. 4. We heard the learned counsel for the appellants. RFA 600/2011 -5- Learned counsel for the appellants would essentially press before us that under Ext.B1 there is a reciprocal arrangement and appellants are not liable to pay the toll amount. Learned counsel does not dispute that Ext.B1 does not mention exemption from payment of toll fee. As far as collection of toll amount is concerned as correctly found by the court below the matter is governed by an agreement between the plaintiff and the Government. Condition No.8 of Exts.X1 to X3 would only show that vehicles belonging to Government of Kerala, Government of India and KSRTC are exempted from payment of toll. Appellants have not been able to show with reference to any material that they are entitled to any exemption from payment of toll fee. About other factual matter there is no dispute. Since this is the only legal question which is raised, we find that the judgment of the court below does not suffer from any error. We also notice that though the appellants made an effort to get exemption, the communication referred to by the trial court would undoubtedly show that the Government has indicated that it is not possible to exempt the vehicles belonging to the appellants from payment of RFA 600/2011 -6- toll fee. In such circumstances, we see no merit in this appeal and it is dismissed. The parties shall suffer their respective costs in this appeal. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS