JUSTICE SUDIP AHLUWALIA, MEMBER

         This order shall decide all the three Revision Petitions filed by the Director General, Haryana State Transport & Financial Commissioner, Health Department Haryana against Mr Ashok Kumar Prajapat hereinafter under Section 21 (b) of the Consumer Protection Act, 1986 arising from the common impugned Order dated 13.10.2022 passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh in Appeal bearing Nos. 41 of 2022, 42 of 2022 and 43 of 2022. The State Commission in the impugned order had partly allowed the Appeals while setting aside the Orders dated 07.03.2022 and 10.03.2022 passed by the District Consumer Dispute Redressal Commission – II, U.T. Chandigarh in Complaint Nos. 184 of 2020 and 185 & 186 of 2020 respectively.

2.      The brief facts leading upto these Revision Petitions are that the Complainant had purchased a ticket of Rs.185/- on 29.09.2018 for his journey from Chandigarh to Jind, a ticket of Rs.220/- on 31.01.2019 for his journey to Chandigarh, and a ticket of Rs.35/- on 27.02.2019 for his journey to Ambala Cantonment by buses of the Haryana Transport, Rohtak. The main allegations raised by the Complainant common to all the three Complaints are that he had faced extreme suffocation and  insecurity, and had become uncomfortable due to smoking by the passengers and driver during his aforesaid journeys. It was his contention that smoking is banned in public places and vehicles as per Cigarettes and Other Tobacco Products Act, 2003. Another issue raised by him was that he was charged excess fare than the prescribed rates for the journeys. He therefore raised his grievances with the concerned authorities/seniors. However, no suitable action was taken and only fines were imposed. Therefore, on being forced to travel in a polluted environment and in an atmosphere of fear, stress and insecurity, the Complaints were filed before the District Commission.

3.      The said Complaints were resisted by the Opposite Parties. It was the case of the Opposite Party No-1 in CC No. 185/2020 that a prompt action was taken by the department and the fare was decreased by Rs.5/- passenger. It was stated that the Complainant had failed to mention the kind of health injuries caused to him due to smoking and had also failed to prove/substantiate the allegations of smoking by the passengers or the driver. It was further stated that a Nodal Officer is appointed who conducts unannounced inspections from time to time. It was also stated that the Complainant had failed to make any complaint against the smoking of passengers/ driver to senior authorities and the allegations made by the Complainant were denied by the conductor and the driver in their statements. The Opposite Party No-1 in CC/184/2020 had stated that on receipt of Complaint by the Complainant against the smoking passengers and misbehaviour by the Nodal Officer, a letter dated 02.11.2018 was written to the Complainant for personal appearance. He, however, failed to appear.  Accordingly, Sh. Parvana Ram was acquitted. It was further stated that there was no medical evidence to show that the Complainant had suffered any health problem such as in his throat or lungs due to any smoke. Further, on receipt of Complaint, the Conductor was fined Rs.1,000/-. The Opposite Party No-1 in CC/186/2020 had stated that the Complainant is habitual in filing such Complainants, as he has filed numerous Complaints against Haryana Roadways buses in day-to-day life. It was further stated that the Complainant failed to substantiate his claims and the driver and conductor denied the allegations in their statements. Further, an enquiry officer was also appointed,  but the Complainant had failed to appear and had rather submitted an Application. 

4.      The District Commission noted in its Orders dated 07.03.2022 and 10.03.2022 that the Opposite Party No-2 have stated that the Complainant is not a consumer as as no service has been availed by the Complainant from the Opposite Party-2.

5.      The District Commission in its order dated 07.03.2022, decided Complaint no. 184/2020 and observed that the Complainant had not appended any cogent documentary evidence and further failed to prove any health problem suffered by him due to the acts of the Opposite Parties and the grievance of the Complainant had already been addressed as the guilty had been charged Rs.1,000/-. Therefore, the Complaint was dismissed. Further, the District Forum vide its order dated 10.03.2022 had decided the Complaint Nos. 185/2020 and No. 186/2020 wherein it was observed that there is no satisfactory and cogent documentary evidence. The Opposite Parties seemed to be well aware of their duties and the Complainant failed to establish deficiency in service on the part of Opposite Parties. Therefore, these Complaints were also dismissed.

6.      Aggrieved by the orders passed by the District Commission, the Complainant filed three appeals which were decided by the Common impugned order dated 13.10.2022, wherein the State Commission had partly allowed the Appeals and observed that the District Commission had failed to understand the gravity of the matter with regards to the hazardous effects that passive smoking can have, as it can lead to problems like lung cancer, heart disease, stroke, asthma etc. It was further noted that the opposite parties failed to take necessary steps to ensure that there is no smoking by the staff or by general public in the buses or at Bus stands. It was further noted that fines of Rs.200/- & Rs.1000/-, were imposed by the department which was not enough. Further, reliance was placed on the judgement of Hon’ble Supreme Court dated 02.11.2001 in “Murli S.Deora Vs. Union of India & Ors.” in which smoking was banned in public places by the Hon’ble Apex Court. It was further stated that passive smoking is a serious health risk not only for the smokers, but also for the people around them and the Opposite Parties had failed in their duties to ensure compliance of COTPA, 2003 by regularly checking at public places. Further, reliance was placed on Section 4 of the COTPA, 2003 and the National Tobacco Control Programme wherein the Transport Commissioner or the nominee is to ensure that all the public transport is smoke free as per the provisions of COTPA, 2003. Therefore the State Commission observed that despite specific guidelines, the Opposite Parties failed in their duties to ensure meticulous compliance of COTPA, 2003. 

7.      Consequently, the State Commission allowed the Appeals by observing inter alia :

“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.”

8.      Aggrieved by the impugned order dated 13.10.2022 passed by the State Commission the present Revision Petitions have been filed by the Petitioners/ Opposite Parties.

9.      Having carefully gone through the reasoning and decision of the Ld. State Commission in the impugned common Order, this Commission finds no grounds to interfere with the same to the extent that compensation to the Complainant/Respondent was awarded in each case. It goes without saying, that where there is the breach of a duty on the part of the service provider in ensuring that the rules and regulations governing the environment in public transport vehicles are not violated, any inconvenience or discomfort caused to a passenger in such vehicles would be a justifiable and actionable cause to seek compensation for such discomfort, inconvenience and potential health hazard. It is not necessary that being a Consumer, he must have to also prove elaborately that his health has suffered as a consequence of such enforced passive smoking in the public vehicle. The feeling of inconvenience and discomfort caused to him itself would justify a reasonable compensation. Besides he would also be liable to be compensated by way of at least a token payment when an amount slightly in excess of the prescribed fare was charged from him in one of his journeys.

10.    In the opinion of this Commission, the award of Rs. 5,000/-by way of compensation in each of the three complaints for the inconvenience/discomfort faced due to exposure to passive smoking in the public vehicles would appear to be reasonable and sufficient. Similarly the direction to pay an amount of Rs. 10/- to him where a very nominal amount of about Rs. 5/- above the prescribed fare was charged from him, also appears to be reasonable and sufficient in the given circumstances.

11.    However, the Ld. State Commission would appear to have slightly exceeded its jurisdiction in passing the directions contained in Paras 22 and 23 of the impugned order as reproduced above. These directions are essentially punitive in nature, and have no reasonable nexus with the question of compensation to the Complainant which is the primary objective of a Consumer Complaint. In fine, the directions contained in Paros 22 and 23 are in the nature of a mandamus Order as in a Writ Petition before a Constitutional Court/Authority. These directions alone are therefore liable to be set-aside.

12.    These Revision Petitions are consequently allowed in part.  While the directions of the Ld. State Commission contained in Paras 20 and 21 of the impugned order are confirmed, those in Paras 22 and 23 as reproduced earlier are set-aside.  Parties to bear their own costs.

13.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.