State Consumer Disputes Redressal Commission
Ashok Kumar Prajapat vs Director, Haryana Roadways Through ... on 30 November, 2023
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STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
(Additional Bench)
Appeal No. : 67 of 2023
Date of Institution : 20.04.2023
Date of Decision : 30.11.2023
Ashok Kumar Prajapat, R/o Village Mohla, District Hisar, Haryana - 125042
... Appellant.
Versus
1. Director General, Haryana State Transport, 30 Bays Building,Sector 17,
Chandigarh - 160017
2. Financial Commissioner, Health Department, Haryana, New Secretariat,
Opposite Fire Station, Sector-17, Chandgiarh-160017
------ Respondents
Appeal under Section 41 of the Consumer Protection Act, 2019
against order dated 16.02.2023 passed by District Consumer
Disputes Redressal Commission-I, U.T. Chandigarh in Consumer
Complaint No.148/2021.
BEFORE: MRS. PADMA PANDEY, PRESIDING MEMBER
Mr.PREETINDER SINGH,MEMBER For the appellant : Sh.Ashok Kumar Prajapat, appellant in person. For respondent No.1 : Sh. APS Virk, ADA(Haryana Legal Cell) alongwith Mr.Navneet Nain and Mr.Vinod, Clerks.
PER PADMA PANDEY,PRESIDING MEMBER This appeal is directed against the order dated 16.02.2023, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (hereinafter to be referred as "the Ld. Lower Commission") in CC No.148/2021, vide which, it dismissed the complaint of the complainant, being devoid of any merit.
2.. Before the Ld. Lower Commission, it was case of the complainant/appellant that he (complainant) along with his family, travelled through 2 Haryana State Transport, Kaithal bus from Bus Complex, Kaithal to Jind on 01.06.2019 by paying Rs.140/- for the tickets (Annexure-1). During this journey, the problem of smoke was felt several times in the Kaithal Bus Complex at the beginning of the journey and in Jind Bus Complex at the end of the journey. The driver of the bus which was ready to leave for Jind early in the morning for this journey started smoking in the bus due to which the complainant did not board the said bus. When the complainant tried to give information about it to the officials present there but no Station supervisor was found present. Later on, the officers/officials on duty who were found standing right outside the inquiry room also did not take any positive action on the complaint of the complainant. He contacted Mr.Nardev Ji who asked the complainant to contact the concerned authority on his mobile number and give him written complaint after 9.00 A.M. He then contacted Mr. Tarun Malik who assured to take action against the delinquent officials. Thereafter, the complainant made several complaints to the concerned officials/officers but no action was taken. Ultimately the complainant by taking another bus from Kaithal Bus Complex, reached Jind and in the bus premises also there was problem of smoke fumes. The complainant felt extremely suffocated, uncomfortable and insecure due to smoking. It is stated that, as per COTPA-2003, smoking is banned in public places and in vehicles. While waiting for the bus, the conductor of bus HR645332 of Kaithal Depot, which was stationed at the booth to go to Kaithal, had started smoking and also was inciting others to smoke. Complaint of smoking was made to the officials present in Jind Bus Complex but they did not cooperate. It was further alleged that on reaching Jind on 01.6.2019, the same smoking problem was faced by the complainant. On the written complaints dated 2.6.2019 and dated 08.7.2019 given by the complainant, 3 the conductor of the concerned bus HR645332 was punished by fine of Rs.200/- but no action was taken against the bus driver. It is alleged that due to negligent act on the part of the opposite parties , the complainant had to spend extra time during the journey.
3. It is further alleged that bus fare from Kaithal to Jind was not charged as per rules prevalent at that time. For the total distance of 64 kms. against chargeable amount, the conductor charged Rs.140/- being cost of 2½ tickets, thus, the complainant was charged Rs.5/- in excess. However, the Opposite parties did not take any action on the complaints made by the complainant. Hence, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, a consumer complaint was filed before the Ld. Lower Commission.
4. Pursuant to issuance of notice, Opposite Parties appeared before the Ld. Lower Commission and contested the complaint. Opposite Party NO.1 in its reply inter-alia stated that on the complaint of the complainant appropriate action was taken against the conductor of the bus and fine of Rs.200/- was levied on him vide receipt dated 19.7.2019 (Annexure R-1). It is further stated that reply to the complaint of complainant dated 8.7.2019 was sent to him vide letter dated 1.8.2019. It is denied that any excess fare was charged from the complainant. It is pleaded that as per rules mentioned in notification of transport department, Haryana dated 4.7.2017(Annexure C-3) fare charges of Rs.140/- for 2 ½ tickets for journey from Kaithal to Jind were correctly received by the conductor. All other allegations made in the complaint were denied and a prayer was made for dismissal of the complaint.
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5. In its reply, OP No.2 raised a preliminary objection that the complainant does not fall in the ambit of definition of 'consumer' qua it as he had not purchased any goods or availed any service of answering OP, whatsoever, by paying any consideration, and as such, no cause of action against the answering OP has arisen. Denying all the allegations in the complaint, a prayer was made for dismissal of the complaint.
6. On appraisal of the complaint, and the evidence adduced on record by the complainant, Ld. Lower Commission came to the conclusion that there was no merit in the complaint and dismissed the same.
7. Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/complainant for setting aside the impugned order and granting the relief, as prayed for in the complaint.
8. We have heard the appellant, Govt. Pleader for respondent No.1 and have gone through the evidence and record of the case with utmost care and circumspection.
9. The appellant while referring to judgments of Hon'ble Supreme Court in Ghaziabad Development Authority Vs Balbir Singh, Civil Appeal No.7173 of 2002 decided on 17.3.2004 and Luknow Development Authority Vs M. K.Gupta decided on 5.11.1993, contended that he was required to be compensated for the sufferance undergone by him due to indirect smoking by the unknown smokers at the premises of Bus terminus, Kaithal and Jind Bus Stand. He further contended that every citizen is entitled to breath in pure air but due to indirect smoking, during journey, he felt problem, uneasiness due to inaction on the part of the 5 respondents. He further contended that he has been overcharged by respondent No.1 by charging Rs.140/- against bus fare of Rs.137.5/- from Kaithal to Jind for 2 ½ tickets.
10. As regards smoking by the bus conductor, on the complaint of the complainant, the bus conductor was penalized with fine of Rs.200/- . It is case of the appellant that he suffered problem due to indirect smoking during the journey and in the bus stand premises at Kaithal and after culminating of journey at Jind Bus stand premises. No doubt, Bus Conductor was the authorized person to issue challan for smoking in the bus under the provisions of the Cigarettes & Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act,2003, but admittedly there was no direct smoking by any person, as such, Bus Conductor was not supposed to issue challan for any indirect smoking.
11. It is case of the respondent No.2 that being a co-ordinator of implementation of COTPA Act, it has already taken up the matter with the Haryana State Transport Authority number of times and has advised the latter to strictly implement the provisions of the COTPA Act,2003 in their offices/Bus stands and buses in the State of Haryana. During the course of appeal, Dr.Rita Kotwal, Deputy Director cum State Nodal Officer, National Tobacco Control Programme O/o Director General Health Services, Haryana used to appear on behalf of respondent No.2. She stated that against the orders dated 16.9.2021 passed by this Commission in various cases of the appellant, respondent No.2 preferred revision petitions and against the orders dated 12.4.2022 passed by this Commission, second appeals were preferred before the Hon'ble NCDRC, New 6 Delhi, which were decided vide order dated 18.7.2023, the operative part of the said order is reproduced as under ;
"The aforesaid second appeals have been filed against the order of the State Consumer Disputes Redressal Commission dated
12.04.2022 passed in Appeals No. 55, 98, 99 and 100 of 2021 by which the appeals filed by the respondent were allowed and the appellant as well as Director General, Haryana State Transport Corporation were jointly and severally directed to pay Rs.20000/- as compensation to the appellant.
The short issue involved in the present second appeals is as to whether the appellant can be treated as a service provider of the respondent or there is any relation of service provider and consumer between the appellant and the respondent. So far as the appellant is concerned, it is a Government body. It has only issued the circular for not smoking at public places. Therefore, the appellant is not providing any service. The only allegation of the respondent is that while he was travelling in the bus run by the Director General, Haryana State Transport Corporation, some person was smoking in it and the driver and conductor have failed to stop that person from smoking. Therefore, there is no allegation that the complainant was a consumer of the appellant. The direction of the State Commission for the appellant holding it jointly and severally liable to pay compensation is illegal and is set aside. The appeals are allowed and the order of the State Commission dated 12.04.2022 passed in Appeals No. 55, 98, 99 and 100 of 2021 directing the appellant to pay compensation, is set aside.
This judgment will have no affect upon the Appeals filed by Haryana State Transport Corporation, against the same order 7 Thus, in view of the aforesaid finding of the Hon'ble NCDRC that the appellant is not a consumer qua respondent No.2, no complaint against respondent No.2 is maintainable.
12. The appellant also placed on record copy of the order dated 4.10.2023 whereby various revision petitions and second appeals preferred against the orders passed by this Commission in various cases of the appellant have been disposed of by the Hon'ble NCDRC with the following directions ;
" In view of the above, we are of the view that the State Commission's order needs modification. Accordingly, all the Revision Petitions covered under this order are disposed of with following directions:
(a) OP-1/Petitioner herein shall take all appropriate actions within two months of this order to ensure the removal of deficiency in service i.e. menace of smoking by drivers/conductors/co-
passengers in buses run by it, failing which, it shall be liable for penal action(s) under the provisions of Consumer Protection Act.
(b) OP-1/Petitioner herein shall pay a compensation of Rs.10,000/- in each case i.e. a total of Rs.70,000/- along with cost of Rs.3,000/- in each case i.e. Rs.21,000/- in total for the seven Revision Petitions, within one month of this order.
(c) In case OP-1/Petitioner fails to pay the amount as per this order within one month, it shall carry interest @9% per annum. As ordered by the Hon'ble NCDRC, New Delhi, Director General State Transport Haryana (respondent No.1) shall take all appropriate actions within two months of this order to ensure the removal of deficiency in service i.e. menace of smoking by drivers/conductors/co-passengers in buses run by it, failing which, it shall be liable for penal action(s) under the provisions of Consumer Protection Act. The appellant may get the above said order executed at appropriate level.
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13. As regards overcharging of bus fare from Kaithal to Jind , the respondent has placed on record notification dated 4.7.2017 issued by the Transport Department, Haryana Government which was circulated vide letter No.220/TI-5/dated 67.2017 by the office of Director, State Transport Haryana, vide which instructions were issued to determine the fare in round figures as per formula mentioned in the notification and letter, which is reproduced as under ;
"Fare beyond Rs.15.00 will be charged in multiples of Rs.5.00 and below Rs.15.00 will be charged in Rs.5.00, Rs.7.00, Rs.10.00 and Rs.12.00, as the case may be. Fare method fraction of Rs.2.50 and above shall be rounded off to Rs.5.00 and the fraction of less than Rs.2.50 shall be ignored. "
14. The Ld. Lower Commission while rightly rejecting the claim of overcharging observed as under";
"The second issue which requires to be determined is as to whether the complainant was charged more fare or not. A perusal of Annexure C-3 annexed by the complainant at page 14 shows that the fare from the Kaithal to Jind is Rs.55/- . Admittedly the complainant travelled alongwith his family with two and half tickets. The total fare of two and half tickets comes to Rs.137.5.. A further perusal of Annexure C-3 at page 13 shows that the fraction of fare of Rs.2.50 and above shall be recovered in the whole of Rs.5.00. Meaning thereby if the fare of a ticket is Rs.2.50 then fare of Rs.5 shall be recovered similarly in the instant case the fare of two and half ticket was 137.50, therefore the complainant and his family was rightly charged Rs.140/- as per rules. Hence, this plea of the complainant stands rejected. Thus, there is no merit in the case of the complainant and the same is liable to be dismissed."
15. We find that the order passed by the Ld. District Commission is based on correct appreciation of evidence and law on the point and does not suffer from illegality and perversity warranting any interference of this Commission. 9
16. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the Ld. Lower Commission is upheld.
17. Certified copies of this order be sent to the parties, free of charge.
18. File be consigned to the Record Room, after completion.
. Sd/-
(PADMA PANDEY)
PRESIDING MEMBER
Sd/-
(PREETINDER SINGH)
MEMBER
Pronounced
30th Nov.,2023
Js
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