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4.       Notice was issued to the Respondents on 03.08.2022.  Petitioners filed Written Arguments/Synopsis on 10.08.2023, Respondents did not file any written arguments/synopsis.

5.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:

The respondent-1/complainant initiated a series of consumer complaints before the District Commission, making several allegations against the petitioner/OP-1, who are the transport authorities. These complaints primarily focused on the OP-1's alleged failure to implement adequate measures to prevent smoking in public transport buses, particularly by their own employees, including bus drivers and conductors. In addition to the smoking issue, the complaints encompassed other concerns, such as being overcharged for bus fares and instances of "burning litter in public." The OP-1 contended that the complainant did not meet the legal definition of a "consumer" as outlined in the Consumer Protection Act, 1986. Consequently, they assert that these complaints should be categorized under the purview of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act, 2003 (COTPA Act, 2003). The OP-1 also informed the District Commission that they had taken proactive steps, including issuing instructions to their employees, including drivers and conductors, to abstain from smoking. They had also appointed nodal officers responsible for conducting periodic inspections and ensuring compliance with these directives. The District Commission determined that smoking in public transport buses constituted an offense under COTPA 2003, and individuals caught smoking should be penalized under that Act and the consumer complaints were dismissed. Subsequently, the complainant lodged First Appeals before the State Commission. The OP-1 submitted that they had initiated proceedings under COTPA 2003 against the driver and conductor, which resulted in the driver being fined. As alleged by the OP-1, the State Commission treated the first appeals as a Public Interest Litigation (PIL)-Writ Petition and assumed a role akin to a writ court under the Indian Constitution. The Commission rendered a judgment and order that exceeded its jurisdiction under the Consumer Protection Act.

(iii)    The complainant's complaints appear more as a campaign against public smoking than conventional consumer complaints. The Consumer Protection Act, 1986, and COTPA 2003 are distinct laws, with COTPA serving as the relevant special provision for public smoking offenses. The State Commission's overreach by treating the appeal as a writ petition and issuing a "Mandamus Writ" is erroneous. Precedent in the case of Consumer Protection Council v. Thiruvalluvar Transport Corporation (1995) 2 SCC 279 emphasizes the distinction between the Consumer Protection Act, 1986, and COTPA 2003. The latter is a special law for motor vehicle-related accidents, which should prevail over the general provisions of the former. Therefore, the State Commission's order should be set aside due to its erroneous exercise of jurisdiction.

(iii)    The counsel for Petitioner further contends that any legal recourse regarding the issue of public smoking, as alleged by the complainant, should be pursued under the provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA, 2003). It is emphasized that such matters fall outside the jurisdiction of the Consumer Protection Act, 1986 or the prevailing Act of 2019. It is noted that appropriate measures under COTPA have already been taken against the responsible officials, including the imposition and collection of fines and the initiation of disciplinary proceedings against the conductor. This is substantiated by a letter dated 04.08.2020 issued by the General Manager, Haryana Roadways.

(v)     The actions undertaken by the OP include the appointment of a designated Nodal Officer responsible for conducting surprise inspections related to public smoking. Additionally, the OP consistently issues instructions to its staff members, directing them to refrain from engaging in public smoking. These measures align with the provisions out-lined in the COTPA, 2003.

10.     We have carefully gone through the grounds for challenging the orders of the State Commission, other facts and circumstances of the case, relevant records and rival contentions of the parties.  No doubt, there is some merit in the contention of the Petitioner that proceedings under Consumer Protection Act, 1986 (CPA) and COTPA 2003 are distinct, being under different laws and Consumer Commissions while dealing with the complaints under the Consumer Protection Act have to go by the provisions of this Act and to see whether the dispute in question constitutes a consumer dispute, whether complainant is a consumer under the CPA, whether there is any deficiency in service, if so, whether and how much and to whom to allow the compensation.  The Consumer Commissions under the CPA cannot treat the complaints as public interest litigations.  Hence, the main question which falls for consideration is hat whether the complainant in the present cases is consumer under the Consumer Protection Act, 1986 and whether there is a deficiency in service on the part of OP-1/Petitioner herein.  In this case the complainant has availed the services of OP-1- State Transport Department, who runs public buses on charge basis and the complainant has purchased a ticket/paid for such journeys in the buses run by OP-1, hence, the complainant is a consumer qua OP-1 i.e. State Transport Department of Government of Haryana.  However, in the present case, as the complainant has not availed any services from OP-2/Respondent -2 i.e. Health Department of Government of Haryana on payment basis, the complainant is not a consumer qua OP-2/Respondent-2.  As the law prohibits smoking in public places, which covers buses run by the State Transport Department of Government of Haryana, when any passenger, like the consumer in the present case, purchase a ticket for travel in such buses, it is a given assurance that he shall have smoke free environment in such bus(es).  Hence, if any driver or contractor or for that matter any other co-passenger in such buses smokes, it amounts to deficiency in service on the part of  the State Transport Department qua such passenger/complainant.  In the present case, it is established that the bus(es) in which the journey(ies) in question were undertaken by the complainant, had the driver/conductor smoking.  Hence, the complainant has got a deficient service for such journey(ies).  Hence, he is entitled to compensation from OP-1/Petitioner herein.  Section 39(1) of the Consumer Protection Act, 2019/Section 14(1) of Consumer Protection Act, 1986.  empowers the Consumer Commissions to remove the deficiency in service if allegations contained in the complaint about the services are proved. As was held by the Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512 "....jurisdiction of the consumer forums to award just and fair compensation as an incident of its power to direct the removal of deficiency in service is not constrained by terms of a rate which is prescribed in an unfair bargain. "The word "Compensation" is of a very vide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of Consumer Protection Act enable a consumer to claim and empower the commission to redress any injustice done".  Hence, the consumer Fora have a power to award compensation for deficiency in service.  However, such compensation can be awarded only to the complainant(s), who has got a deficient service and not to any third party.  Hence, not withstanding the good intentions of the State Commission, we tend to agree with the contentions of the petitioner herein that State Commission went wrong in directing to pay an amount of Rs.20,000/- to PGIMER, Chandigarh in each case, which shall be further deposited in the Poor Patient Welfare Fund maintained by PGIMER, Chandigarh for treatment of cancer patients.