State Consumer Disputes Redressal Commission
Ashok Kumar Parjapat vs Director General, Haryana State ... on 16 September, 2021
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 30 of 2020 Date of Institution : 30.01.2020 Date of Decision : 16.09.2021 Ashok Kumar Parjapat, Resident of Village Mohla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director General, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh - 160017, through Director (General Manager, concerned Driver-Conductor and Regional Officer of Tobacco), Haryana State Transport, Karnal. [2] Financial Commissioner, Health Department Haryana, New Secretariat, Opposite Fire Station, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present through Video Conferencing:- Sh.Ashok Kumar Parjapat, appellant in person. Sh.Kuldeep Tiwari, AAG, Haryana, for respondent no.1. Sh.Sachin Indora, Law Officer for respondent no.2. =============================================================== Appeal No. : 31 of 2020 Date of Institution : 30.01.2020 Date of Decision : 16.09.2021 Ashok Kumar Parjapat, Resident of Village Mohla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director General, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh - 160017, through Director (General Manager, concerned Driver-Conductor and Regional Officer of Tobacco), Haryana State Transport, Kaithal - 136027. [2] Financial Commissioner, Health Department Haryana, New Secretariat, Opposite Fire Station, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present through Video Conferencing:- Sh.Ashok Kumar Parjapat, appellant in person. Sh.Kuldeep Tiwari, AAG, Haryana, for respondent no.1. Sh.Sachin Indora, Law Officer for respondent no.2. ============================================================= Appeal No. : 56 of 2020 Date of Institution : 27.02.2020 Date of Decision : 16.09.2021 Ashok Kumar Parjapat, Resident of Village Mohla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director General, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh - 160017, through Director (General Manager, concerned Driver-Conductor and Regional Officer of Tobacco), Haryana State Transport, Hisar - 125001. [2] Additional Chief Secretary, Health Department, Haryana Secretariat, Opposite Fire Station, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present through Video Conferencing:- Sh.Ashok Kumar Parjapat, appellant in person. Sh.Kuldeep Tiwari, AAG, Haryana, for respondent no.1. Sh.Sachin Indora, Law Officer for respondent no.2. ============================================================= Appeal No. : 57 of 2020 Date of Institution : 27.02.2020 Date of Decision : 16.09.2021 Ashok Kumar Parjapat, Resident of Village Mohla, District Hisar, Haryana - 125 042. ......Appellant/Complainant [1] Director General, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh - 160017, through Director (General Manager, concerned Driver-Conductor and Regional Officer of Tobacco), Haryana State Transport, Panchkula 134109. [2] Additional Chief Secretary, Health Department, Haryana Secretariat, Opposite Fire Station, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present: Sh.Ashok Kumar Parjapat, appellant in person. Sh.Kuldeep Tiwari, AAG, Haryana, for respondent no.1. Sh.Sachin Indora, Law Officer for respondent no.2. ============================================================= Appeal No. : 75 of 2020 Date of Institution : 27.05.2020 Date of Decision : 16.09.2021 Ashok Kumar Parjapat, Resident of Village Mohla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s 1. Director General, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh - 160017. 2. Financial Commissioner, Health Department, Haryana, New Secretariat, Sector 17, Chandigarh - 160017. 3. Director (Regional Officer of Tobacco, General Manager and concerned Driver-Conductor of bus on 15.7.2017), Haryana State Transport, Hisar - 125001. .....Respondents/opposite parties Present through Video Conferencing:- Sh.Ashok Kumar Parjapat, appellant in person. Sh.Kuldeep Tiwari, AAG, Haryana, for respondent no.1 & 3. Sh.Sachin Indora, Law Officer for respondent no.2. ============================================================= Appeal No. : 76 of 2020 Date of Institution : 27.05.2020 Date of Decision : 16.09.2021 Ashok Kumar Parjapat, Resident of Village Mohla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s Director General, Haryana State Transport, Bus Stand, Jind 126102 Financial Commissioner, Health Department Haryana, New Secretariat, in front Fire Fighting Centre, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present through Video Conferencing:- Sh.Ashok Kumar Parjapat, appellant in person. Sh.Kuldeep Tiwari, AAG, Haryana, for respondent no.1. Sh.Sachin Indora, Law Officer for respondent no.2. ============================================================= Appeal No. : 77 of 2020 Date of Institution : 27.05.2020 Date of Decision : 16.09.2021 Ashok Kumar Parjapat, Resident of Village Mohla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director General, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh - 160017, through Director (General Manager, concerned Driver-Conductor and Regional Officer of Tobacco), Haryana State Transport, Kaithal - 136027. [2] Financial Commissioner, Health Department Haryana, New Secretariat, Opposite Fire Station, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present through Video Conferencing:- Sh.Ashok Kumar Parjapat, appellant in person. Sh.Kuldeep Tiwari, AAG, Haryana, for respondent no.1. Sh.Sachin Indora, Law Officer for respondent no.2. ============================================================= Appeal No. : 78 of 2020 Date of Institution : 27.05.2020 Date of Decision : 16.09.2021 Ashok Kumar Parjapat, Resident of Village Mohla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director General, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh - 160017. [2] Officials fixing the fare from Julana to Jind Road, through Directorate, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh 160017. .....Respondents/opposite parties Present through Video Conferencing:- Sh.Ashok Kumar Parjapat, appellant in person. Sh.Kuldeep Tiwari, AAG, Haryana, for respondent no.1. Sh.Sachin Indora, Law Officer for respondent no.2. ============================================================= BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MRS. PADMA PANDEY, MEMBER
MR. RAJESH K. ARYA, MEMBER PER RAJESH K. ARYA, MEMBER These appeals have arisen out from the impugned orders passed by the District Consumer Disputes Redressal Forum- I, U.T., Chandigarh (now known as District Commission), whereby the consumer complaints filed by the complainant (appellant herein) have been dismissed. Details of the said consumer complaints are given below:-
S.No. CC No. Date of order District Forum Allowed/Dismissed Appeal No.
1.
1087/2019 09.12.2019 DF-I Dismissed 30/2020
2. 1086/2019 09.12.2019 DF-I Dismissed 31/2020
3. 1128/2019 03.01.2020 DF-I Dismissed 56/2020
4. 1129/2019 03.01.2020 DF-I Dismissed 57/2020
5. 554/2019 04.02.2020 DF-I Dismissed 75/2020
6. 41/2020 05.02.2020 DF-I Dismissed 76/2020
7. 42/2020 05.02.2020 DF-I Dismissed 77/2020
8. 555/2019 05.02.2020 DF-I Dismissed 78/2020
2. The grievance raised by the appellant before the District Commission, except in CC No.555 of 2019, was that while travelling in the buses of Haryana State Transport, he found that the driver and conductors were smoking. The matter was taken with the higher authorities, but of no avail. As such, consumer complaints were filed by him for payment of compensation and also to penalize the drivers and conductors of the said buses, who were found smoking during plying the same (bus). In CC No.555 of 2019, it was alleged by the appellant that the respondents therein have charged excess amount towards bus fare.
3. However, since all the consumer complaints, referred to above, filed by the appellant were dismissed by the District Commission, hence these appeals have been filed by the appellant.
4. As common questions of facts and law have been emerged in above captioned appeals arising out of the orders passed by District Commission, and the facts thereof are analogous to each other to a great extent-therefore, this Commission would like to take them together and decide with a common order.
5. We have heard the arguments of the contesting parties, and have also gone through the entire record of the cases and written arguments also very carefully.
6. After giving our thoughtful consideration to the contentions and pleadings of the parties; as well as findings available on the record, this Commission is of the considered view that all the consumer complaints filed by the appellant, except the one related to charging of excess amount i.e. appeal no.78 of 2020 arising out of CC No.555 of 2019 which will be dealt with separately hereinafter, are required to be allowed, for the reasons to be recorded hereinafter.
7. It may be stated here that from the orders impugned, it has been noted by this Commission that the District Commission has observed that the appellant has failed to convince, as to how damage to the tune of Rs.4 lacs was caused to him, as has been claimed by him, on account of smoking by the drivers and conductors aforesaid, and that he has failed to prove on record as to how his health was affected as no medical record in that regard was placed on record. However, we are not satisfied with the observations made by the District Commission in that regard.
8. It is very significant to mention here that as has been observed by the District Commission also, that this is not the first complaint with regard to smoking in buses of Haryana Roadways, but earlier also number of such like complaints have been entertained and decided by the Consumer Fora which had been filed by the appellant only, yet, it appears that still the respondents have preferred not to purge the said practice. At the same time, the respondents being Competent Authorities have failed to take necessary steps to ensure that there is no smoking by their staff or by the general public, at the public places; in the buses/bus stands, as a result whereof, the appellant was caused a lot of inconvenience, harassment and agony. It is ironical that this person (Ashok Kumar Parjapat) has taken a cause, which is of common public interest and he has to come to this Commission again and again with the same grievance of smoking in buses and the Department is not doing anything despite express instructions of the Government of Haryana not to smoke on public places and government vehicles including buses. We would like to quote a judgment of Hon'ble Supreme Court of India dated 02.11.2001 in the case of Murli S. Deora Vs. Union of India and Ors., Writ Petition (Civil) NNo.316 of 1999, wherein the Hon'ble Apex Court clearly put a bar on smoking in public places, public conveyances, including railways etc.. The said order of Hon'ble Apex Court reads thus:-
"Fundamental right guaranteed under Article 21 of Constitution of India, inter alia, provides that none shall be deprived of his life without due process of law. Then - why a non-smoker should be afflicted by various diseases including lung cancer or of heart, only because he is required to go to public places? Is it not indirectly depriving of his life without any process of law? The answer is obviously - 'yes'. Undisputedly, smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive smokers should also be injuriously affected. In any case, there is no reason to compel non-smokers to be helpless victims of air pollution.
The statement of objects and reason of (The) Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, inter alia, provides, "Smoking of cigarettes is a harmful habit and, in course of time, can lead to grave health hazards. Researches carried out in various parts of the world have confirmed that there is a relationship between smoking of cigarettes and lung cancer, chronic bronchitis; certain diseases of the heart and arteries; cancer of bladder, prostrate, mouth pharynx and oesophagus; peptic ulcer etc., are also reported to be among the ill effects of cigarette smoking." Similarly, the statement of objects and reasons of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001, pro-vides, "Tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh deaths annually in the country. It has also been found that treatment of tobacco related diseases and the loss of productivity caused therein cost the country almost Rs. 13,500 crores annually, which more than offsets all the benefits accruing in the form of revenue and employment generated by tobacco industry".
In this view of the matter, when this petition under Article 32 of the Constitution of India came for orders on 31st August, 2001, we have passed order for implementing 1975 Act. At that time of hearing, learned Attorney General as well as counsel for the parties submitted that considering harmful effect of smoking, smoking in public places is required to be prohibited. On this submission, we sought response of the Central Government. As no affidavit was filed during the stipulated time by the Central Government, on 28th September, 2001, we were required to adjourn the matter. Today also, when the matter came up for hearing no response is filed on behalf of the Central Government. However, learned Attorney General with all emphasis at his command submitted that appropriate order banning smoking in public places be passed. Learned counsel for the petitioner also submitted to the aforesaid effect. Counsel appearing for other respondents also supported the same.
In the petition, it is pointed out that tobacco smoking contains harmful contents including nicotine, tar, potential carcinogens, carbon monoxide, irritants, asphyxiates and smoke particles which are the cause of many diseases including the cancer. It is alleged that three million people die every year as a result of illness related to the use of tobacco products of which one million people belong to developing countries like India. The World Health Organisation is stated to have estimated that tobacco related deaths can rise to a whopping seven million per year. According to this organisation, in the last half century in the developing countries alone smoking has killed more than sixty million people. Tobacco smoking also adds to the air pollution. Besides cancer, tobacco smoking is responsible for various other fatal diseases to the mankind.
It is further submitted that statutory provisions are being made for prohibiting smoking in public places and the Bill introduced in the Parliament is pending consideration before a Select Committee. The State of Rajasthan has claimed to have passed Act No. 14 of 2000 to provide for prohibition of smoking in place of public work or use and in public service vehicles for that State. It is stated that in Delhi also there is prohibition of smoking in public places.
Learned Attorney General for India submits and all the counsel appear-ing for the other parties agree that considering the adverse effect of smoking in public places, it would be in the interests of the citizens to prohibit the smoking in public places till the statutory provision is made and implemented by the legislative enactment. The persons not indulging in smoking cannot be compelled to or subjected to passive smoking on account of acts of the smokers.
Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places and issue directions to the Union of India, State Governments as well as the Union Territories to take effective steps to ensure prohibiting smoking in public places, namely :
1. Auditoriums
2. Hospital Buidings
3. Health Institutions
4. Educational Institutions
5. Libraries
6. Court Buildings
7. Public Office
8. Public Conveyances, including Railways.
Learned Attorney General for India assured the court that Union of India shall take necessary effective steps to give wide publicity to this order by electronic as well as print media to make the general public aware of this order of prohibition of smoking.
We further direct the Registrar General to intimate the State Governments Union Territories as well as the Commissioners of Police as mentioned in our orders dated 31st August, 2001 and 28th September, 2001 of this Court with directions for submission of their compliance report in this Court within five weeks from today. Union of India shall also file its response at the earliest.
List after six weeks."
9. Thus, the Hon'ble Apex Court in its wisdom after realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, directed and prohibited smoking in public places and issued directions to the Union of India, State Governments as well as the Union Territories to take effective steps to ensure prohibiting smoking in public places, namely auditoriums, Hospital Buildings, Health Institutions, Educational Institutions, Libraries, Court Buildings, Public Office and Public Conveyances including Railways.
10. The appellant claims to be a whistleblower and at the same time, if the drivers and conductors are not ready to eradicate their habit of smoking in the buses, despite orders having been passed by this Commission to their competent authorities to get the said practice stopped and if, on account of that reason, the appellant is repeatedly filing the consumer complaints, in the capacity of consumer, on accrual of fresh cause of action, then the District Commission fell into a grave error in dismissing the consumer complaints, holding that he is repeatedly filing consumer complaints or that he is in a habit of filing the same. Simply put, whistle blowing is uncovering information or activity that is deemed illegal or unethical or we can say a person who informs on someone engaged in illegal activities. The respondents have performed their duties capriciously, as a result whereof there has been no change in the system. The respondents (Department) acted like a silent and moot spectator and are allowing such like things to happen. The appellant being a whistleblower can be said to be one of the important pillars of the country, who uncovers such like practices, other illegal activities etc. These acts of misconduct can range from minor issues to more severe. Regardless of their severity, raising concerns about these activities plays an important role in bringing people to justice and preventing further human and corporate disasters. As such, the appellant needs to be suitably compensated.
11. As far as demand of compensation of Rs.4 lacs by the appellant, is concerned, it may be stated here that it was the discretion of the District Commission to award compensation in the matter, irrespective of the fact that the appellant had sought compensation of Rs.4 lacs, which appeared to be higher side by it. As such, the District Commission, on this count also, gave erroneous observations.
12. Further, we do not agree with the observations made by the District Commission to the effect that the appellant has failed to prove on record as to what health problems he has faced due to the said smoking in the buses and specially observation made in impugned orders dated 04.02.2020 passed in CC/554/2019 and dated 05.02.2020 in CC/41/2020 & CC/42/2020, to the effect that " There is no medical proof or say evidence led on record of the damage so caused to his lungs with smoking so as to quantify the damage of Rs.4.00 lakhs" and " It is also not disclosed, nor any medical evidence produced by the complainant, with passive smoking and intake of smoke, if at all it was there, he had suffered any health problem in his throat or say lungs or respiratory tract". It may be stated here that it is a known fact that tobacco is one of the biggest health threats, the world has ever faced. It kills more than millions of people every year around the county and majority of deaths are due to the result of direct tobacco use and remaining are the result of non-smokers being exposed to second-hand smoke. Cigarette/bidi smoking harms nearly every organ of the body; causes many diseases and reduces the health of smokers in general. Smoking is dangerous, not only for the person holding the cigarette, but also for the people who share their environment.
13. Secondhand smoke or passive smoking is a serious health risk for both those who smoke and those who do not. The people who are regularly around environmental tobacco also known as secondhand smoke have an increased risk of cancer because tobacco products and smoke have many chemicals that damage DNA. Further, the secondhand smoke may also increase the risk of breast cancer, nasal sinus cavity cancer and nasopharyngeal cancer in adults and the risk of leukemia and brain tumors in children. Secondhand smoke is associated with disease and premature death in nonsmoking adults and children. Exposure to secondhand smoke irritates the airways and have immediate harmful effects on a person's heart and blood vessels, which increases the risk of heart disease by 25% to 30% and of stroke by 20% to 30%. We may further add here that secondhand smoke is especially dangerous for unborn babies as smoking during pregnancy increases the risk of infant mortality, premature delivery, and babies with low birth weight. Smoking around infants and children has also been linked to sudden death syndrome and to a rise in respiratory illnesses, including an increased risk of developing asthma and an increase in the symptoms of asthma in children who already have the disease. Further the negative effects of smoking in public carry over into other people's lives with a tangible, measurable, and sometimes permanent impact.
14. As regards the objection raised by the respondents in their written arguments that the appellant/complainant is a not a consumer as no services were availed of by him, it may be stated here that the appellant/complainant duly availed of the services of the respondents against consideration paid as he bought the ticket to travel in their bus and further because of smoking in the said bus, his fundamental right under Article 21 of Constitution of India has been infringed, as observed by Hon'ble Supreme Court of India in Murli S. Deora Vs. Union of India and Ors. case (supra). Thus, the appellant/complainant is very much a consumer as defined under Section 2(1)(d)(ii) of Consumer Protection Act, 1986 and the objection raised in this regard, being devoid of any substance, is rejected.
15. A Resolution passed by the 39th World Health Assembly (WHO), in its Fourteenth Plenary meeting held on the 15th May, 1986, urged the member States of WHO to implement the measures to ensure that effective protection is provided to non-smokers from involuntary exposure to tobacco smoke and to protect children and young people from being addicted to the use of tobacco. This Resolution was reiterated by the WHO in its 43rd World Health Assembly in its Fourteenth Plenary meeting held on the 17th May, 1990. Impressed by the above said Resolution of the WHO, the legislature have enacted The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (in short the COTPA, 2003), which came into force w.e.f. 18.05.2003, with the object to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. It's Section 4 completely prohibits smoking in a public place, relevant part of which is reproduced hereunder:-
"4. Prohibition of smoking in a public place.-No person shall smoke in any public place: Provided that in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made."
Thus, in this view of the matter, it is held that the orders impugned, passed by the District Commission, in this regard, being perverse, needs to be reversed and accordingly are set aside.
16. Since, the findings given by the District Commission in consumer complaint bearing no.555 of 2019 out of which appeal No.78 of 2020 has arisen, to the effect that since as per Annexure R-2 (notification of the Haryana Govt.) 0.85 paisa is to be charged per km. and distance of 35 kms. is to be multiplied with 0.85 paisa which comes out to Rs.29.75 and the respondents have produced the record where the fraction of Rs.2.50 and that above shall be rounded off to Rs.5/- and in this case it was Rs.29.75, as such, the amount of Rs.30/- charged cannot be construed to be overcharged by Rs.5/- for the simple reason amount of Rs.29.75 comes out as fare i.e. @ 0.85 paisa per km. and only 0.25 paisa was more than Rs.29.75 and less than Rs.30/-, which had to be rounded off to Rs.30/-; did not sound any error to this Commission and, as such, Appeal bearing No.78 of 2020, being devoid of merit, stands dismissed, with no order as to cost.
17. For the reasons recorded above, seven appeals bearing Nos.30, 31, 56, 57, 75, 76 & 77 of 2020 filed by the appellant/complainant are partly accepted and the opposite parties/respondents, in each case (seven appeals), are jointly and severally directed to pay Rs.5,000/- each, in lump-sum, as compensation and cost of litigation, to the complainant/appellant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amount, in each case (seven appeals), shall carry penal interest @9% p.a. from the date of filing of the respective consumer complaints before the respective District Forums, till realization. It is made clear that Rs.5,000/- aforesaid has to be paid to the appellant/complainant in each case (seven appeals).
18. The opposite parties/respondents jointly and severally, in all the aforesaid seven appeals are also directed to pay the amount of Rs.20,000/-, each, to the PGIMER, Chandigarh, which shall further be deposited in the Poor Patient Welfare Fund (PPWF) maintained by PGIMER, Chandigarh for treatment of cancer patients. It is made clear that Rs.20,000/- aforesaid has to be paid to the PGIMER, Chandigarh, in each case (seven appeals), which shall be used by the PGIMER for treatment and care of cancer patients.
19. Director General, Haryana State Transport is directed to confirm within 30 days, from the date of receipt of certified copy of this order, the steps taken to stop smoking at public places, state buses, bus stands in Haryana, in compliance to the Supreme Court directions in Murli S. Deora Vs. Union of India and Ors. case (supra), The Cigarettes and Other Tobacco Products Act 2003 and guidelines for implementation thereof.
20. Certified copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected files.
21. The files be consigned to Record Room, after completion.
Pronounced 16.09.2021.
[RAJ SHEKHAR ATTRI] PRESIDENT (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER Ad