State Consumer Disputes Redressal Commission
Ashok Kumar Prajapat vs Director General, Haryana State ... on 13 October, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 41 of 2022 Date of Institution : 25.04.2022 Date of Decision : 13.10.2022 Ashok Kumar Prajapat, Resident of Village Mohalla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director General, Haryana State Transport, 30 Bays Bhawan, Sector 17, Chandigarh - 160017, through Director (Chief General Manager, Driver-Conductor & Area Officer of Tobacco), Haryana State Transport, Kaithal - 136027. [2] Financial Commissioner, Health Department Haryana, New Secretariat, Opposite Fire Brigade Office, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present:- Sh. Ashok Kumar Prajapat, appellant in person. Sh. Ram Tirath, Govt. Pleader for respondent no.1. Sh. Sachin Indora, Law Officer for respondent no.2. =============================================================== Appeal No. : 42 of 2022 Date of Institution : 25.04.2022 Date of Decision : 13.10.2022 Ashok Kumar Prajapat, Resident of Village Mohalla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director General, Haryana State Transport, 30 Bays Bhawan, Sector 17, Chandigarh - 160017, through Director (Chief General Manager, Driver-Conductor & Area Officer of Tobacco), Haryana State Transport, Bhiwani - 127021. [2] Financial Commissioner, Health Department Haryana, New Secretariat, Opposite Fire Brigade Office, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present:- Sh. Ashok Kumar Prajapat, appellant in person. Sh. Ram Tirath, Govt. Pleader for respondent No.1. Sh. Naresh, ADA for Haryana Roadways Depot, Bhiwani (on VC). Sh. Sachin Indora, Law Officer for respondent no.2. ============================================================= Appeal No. : 43 of 2022 Date of Institution : 25.04.2022 Date of Decision : 13.10.2022 Ashok Kumar Prajapat, Resident of Village Mohalla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director General, Haryana State Transport, 30 Bays Bhawan, Sector 17, Chandigarh - 160017, through Director (Chief General Manager, Driver-Conductor & Area Officer of Tobacco), Haryana State Transport, Rohtak - 124001. [2] Financial Commissioner, Health Department, Haryana, New Secretariat, Opposite Fire Brigade Office, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present:- Sh. Ashok Kumar Prajapat, appellant in person. Sh. Ram Tirath, Govt. Pleader for respondent No.1. Sh. Naresh, ADA for Haryana Roadways Depot, Bhiwani (on VC). Sh. Sachin Indora, Law Officer for respondent no.2. ============================================================= BEFORE: MRS. PADMA PANDEY, PRESIDING MEMBER
MR. RAJESH K. ARYA, MEMBER MR. PREETINDER SINGH, MEMBER PER RAJESH K. ARYA, MEMBER These appeals have arisen out from the impugned orders passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short '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 Commission Allowed/Dismissed Appeal No.
1.
184/2020 07.03.2022 DC-II Dismissed 41/2022
2. 185/2020 10.03.2022 DC-II Dismissed 42/2022
3. 186/2020 10.03.2022 DC-II Dismissed 43/2022
2. The grievance raised by the appellant before the District Commission, in consumer complaint No.184 of 2020, was that on 29.09.2018, while travelling in the bus of Haryana State Transport from Chandigarh to Jind, one of the passenger started smoking when the said bus moved from Kaithal Bus Stand to Jind. The matter was taken with the higher authorities and a fine of Rs.200/- was imposed on the conductor, which was a mere formality done by the department and the department did not recommend any measures to stop smoking in future in buses and public places like bus stand. Similarly, is his grievance with regard to passive smoking in the other two consumer complaints No.185 of 2020 & 186 of 2020. In these cases, again, the appellant felt problem of smoking firstly at Jind Bus Stand and secondly at Pehowa Bus Stand. It was his case that passengers waiting at the Bus Stand, a public place and other persons were smoking. He also averred that the driver of the bus was also smoking at Jind Bus Stand. 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.185 of 2020, it was also alleged by the appellant that the respondents charged excess amount towards bus fare.
3. On the other hand, in CC/184/2020, it was the stand of Haryana State Transport (respondent No.1/opposite party No.1) that immediately acting upon the complaint received from the appellant, the conductor of the bus was fined with Rs.1,000/- for sitting on the first seat and he was warned to be careful in future. However, in CC/185/2020, all the allegations made in the complaint were denied and it was pleaded that the appellant failed to prove his case on record and further the Driver Jaibeer Singh in his statement had denied all allegation. It was further pleaded that on mere allegations of doing smoking in the absence of any proof, the driver and conductor cannot be punished. As regards bus fare, it was pleaded that the same was charged as per the fare list given by the department.
4. In its reply, opposite party No.2 generally denying the allegations leveled in the complaint, specifically took an objection with regard to the complainant not a consumer qua it as no service, whatsoever, was availed by him.
5. 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.
6. 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.
7. 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.
8. 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 appeals filed by the appellant, are required to be partly allowed for the reasons to be recorded hereinafter.
9. So far as the passive smoking in the buses, bus stands and other public places is concerned, it may be stated here that from the orders impugned, it has been noted by this Commission that the District Commission has started dismissing the complaints of the appellant mainly on the ground that the Consumer Commission/Fora has a limited scope and that too confined to compensate for loss/damage suffered by the complainant on account of deficiency in service committed in like cases. In CC/184/2020, the District Commission taking note of Section 4 of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Product, Supply and Distribution) Act, 2003 and also that of Section 21 of the aforesaid Act dismissed the complaints of the appellant and also held that once the grievance of the complainant has already been addressed by punishing the driver by imposing fine of Rs.1,000/- upon him, then to punish him again for the same offence, under any other Act, shall amount to a case of double jeopardy. The District Commission also observed that the complainant also failed to prove on record any health problem suffered by him due to any act of the opposite parties while rendering service. The District Commission also observed that the authorized officers of Government carry out a surprise check from time to time and in case they find some violation, departmental action is taken against such erring official of the department. It further observed that the opposite parties seemed to be well aware of their duties and responsibilities with regard to prevention of smoking in government buses. However, we are not satisfied with the observations made by the District Commission in that regard.
10. It is very significant to mention here that the District Commission is not understanding the gravity of the matter and rather ignoring the fact, despite numerous judgments passed by this Commission with regard to hazardous effects of passive smoking in umpteen number of cases filed by the appellant earlier also, that passive smoking gives birth to many serious diseases. There are serious consequential results of passive smoking namely, Chronic Obstructive Pulmonary Disease (COPD) which includes emphysema and chronic bronchitis; Lungs Cancer; Heart Disease, Stroke, Asthma and also increases the risk of lower respiratory tract infections in infants such as bronchitis and pneumonia and also low-birth-weight babies etc. We can very well imagine the havoc in the present scenario that a Covid positive passenger smoking in a bus can create by infecting all the passengers on board with the deadly Covid-19 virus by way of passive smoking. Earlier also, number of such like complaints with regard to smoking in buses of Haryana Roadways have been 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 had suffered a lot of inconvenience, harassment and agony. It is ironical that the complainant (Ashok Kumar Prajapat) is the only person who has taken up a cause, which is of common public interest and he has to approach this Commission again and again with the same grievance of smoking in buses and the Department is not at all doing anything despite express instructions of the Government of Haryana not to smoke in public places and government vehicles including buses.
11. It is also imperative to mention here that mere imposing fine of Rs.200/- or Rs.1,000/- by the respondents/Department is not enough to put a curb on passive smoking in buses and bus-stands or at public places, where the buses take halt, rather, the department after imposing the prescribed fine once or twice on such defaulting & erring drivers and conductors or their staff, should set an example by taking stern disciplinary action against them, so that they may not dare to repeat such a mistake in future. We expect from the District Commission below to understand the gravity of the matter. Dismissing a complaint on any issue is very easy but to bring it to a logical end is must and the foremost priority of the District Commission. It should understand that the passive smoking has become a very major problem everywhere, whether these are parks, public places, buses, bus stands and busy markets etc. That is why, the Consumer Fora have been given additional remedy under the provisions of Consumer Protection Act so that any deficiency under its purview can be dealt with in a manner to provide justice to the consumers at large. Earlier also this Commission in umpteen number of judgments passed in the cases filed by the appellant has quoted 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) No.316 of 1999, wherein the Hon'ble Apex Court clearly put a bar on smoking in public places, public conveyances, 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 Buildings
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."
12. 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. 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 over seven million people every year in our county due to direct tobacco use and 1.2 million non-smokers who are exposed to second-hand smoke. Cigarette/bidi smoking harms nearly every vital 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 which 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. 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 observing that the complainant failed to prove on record any health hazards or problem suffered by him due to smoking or any act of the opposite parties while rendering service. Further observation of the District Commission that the authorized officers of Government carry out a surprise check from time to time and in case they find some violation, departmental action is taken against such erring official of the department and further that the opposite parties seemed to be well aware of their duties and responsibilities with regard to prevention of smoking in government buses, cannot be made a ground to dismiss the consumer complaint alleging serious allegations of passive smoking by the driver or the conductor or any passenger of the bus, whether the said bus is moving or stationery. 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. This Commission earlier also had observed that the respondents (Department) are acting like a silent and moot spectator and are allowing continuously such like things to happen. Still the position is the same and nothing has changed or nothing new has been shown to this Commission that the Department is taking any stringent and stern steps to curb this menace. 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.
15. 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.
16. 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."
Not only above, during the course of arguments, a copy of Operational Guidelines pertaining to National Tobacco Control Programme undertaken by National Tobacco Control Cell, Ministry of Health and Family Welfare, Government of India (2015), with the Logo "Choose LIFE Not Tobacco" was also placed on record by the respondent(s). Under the said Programme, the Secretary Transport/Transport Commissioner or the nominee is to ensure that all public transport vehicles are Smokefree as per provisions under COTPA 2003 and to further ensure that there should not be direct/indirect advertisement of tobacco products like gutka, pan masala on state transport including bus panels, bus stand and premises. Guideline 2.8 pertains to "Role and Responsibilities of STCC" and under Clause 6 thereof 'Enforcement of COTPA', it is clearly mentioned as under:-
Conducting regular checks at public places, public conveyances, point of sale etc. for compliance of COTPA.
17. Despite specific operational guidelines, as referred to above, it seems that the respondents are failing in their duties to ensure meticulous compliance of COTPA 2003 by regularly checking at public places, public conveyances, point of sale etc. and that is why the smoking has increased and being fearlessly done in Haryana Roadways Buses and Bus Stands, Bus Stops and at public places etc. etc. We direct the respondents to ensure strict compliance of COTPA 2003 and operational guidelines to curb the smoking in Haryana Roadways Buses and Bus Stands, Bus Stops and at public places etc.
18. In A/42/2022 arising out of impugned order dated 10.03.2022 passed in CC/185/2020, the appellant has raised a dispute with regard to charging of Rs.10/- as excess fair by the Bus Conductor, which the Ld. District Commission has totally ignored and did not discuss the same while passing the impugned order. It may be stated here that during the course of arguments, Sh. Naresh, ADA appeared on behalf of Haryana Roadways Depot, Bhiwani through video conferencing and conceded that the excess fare was wrongly charged by the Bus Conductor as per the previous fare list and the revised fare list, as applicable on the said date, came to the notice of the Bus Conductor very late. Thus, in our considered opinion, the appellant is very much entitled to the refund of excess fare charged from him.
19. Thus, in this view of the matter, it is held that the orders impugned, passed by the District Commission in all the three complaints, being perverse, needs to be reversed and accordingly are set aside.
20. For the reasons recorded above, all the three appeals bearing Nos.41 of 2022, 42 of 2022 & 43 of 2022 filed by the appellant/complainant are partly accepted and the opposite parties/respondents, in each case (three 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 (three appeals), shall carry penal interest @9% p.a. from the date of filing of the respective consumer complaints before the Ld. District Commission-II, U.T., Chandigarh till realization. It is made clear that Rs.5,000/- aforesaid has to be paid to the appellant/complainant in each case (three appeals).
21. However, in FA/42/2022, the opposite parties/respondents are also directed to refund an amount of Rs.10/- to the appellant/complainant, charged in excess as bus fare within a period of 30 days from the date of receipt of a certified copy of this order.
22. The opposite parties/respondents jointly and severally, in all the aforesaid three 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 (three appeals), which shall be used by the PGIMER for treatment and care of cancer patients.
23. 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.
24. Certified copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected files.
25. The files be consigned to Record Room, after completion.
Pronounced 13.10.2022.
(PADMA PANDEY) PRESIDING MEMBER (RAJESH K. ARYA) MEMBER (PREETINDER SINGH) MEMBER Ad