DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.998 of 2017

                                                Date of institution:  17.11.2017                                                  Date of decision   :  17.07.2019

Ashok Kumar Parjapat, resident of village Mohla, District Hisar (Haryana) 125042.

…….Complainant

Versus

1.     General Manager, Haryana State Transport, Industrial Area, Phase-1, Ellante Mall, Chandigarh.

2.     Director General, Haryana State Transport, 30 Bays Bhawan, Sector 17, Chandigarh.

3.     Director General, Health Department Haryana, Sector 6, Panchkula.

                                                         ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Complainant in person.

                Shri Laxman Singh, Clerk on behalf of OP No.1 & 2.

                OP No. 3 ex-parte.

Order by :-  Shri G.K. Dhir, President.

Order

                  Complainant after getting ticket for Rs.40/-, started journey from Zirakpur (Mohali) to Ambala Cantt. on 17.05.2015. Bus driver, during this journey started smoking in area of Baldev Nagar, Ambala City. Complainant claims that he felt uneasiness and unsafe due to direct impact of this smoking. This smoking was done despite prohibition thereof on public places. Complainant searched for conductor of the bus, but he was out of bus. Thereafter complainant himself requested the driver to stop smoking, on which driver first looked in rage towards complainant and thereafter started speaking in loud voice.  Conductor came in the bus and on blowing of whistle, driver started the bus, while smoking. Due to this smoking it became difficult to travel in the bus. Complainant lodged complaint with the conductor after feeling that he alone can keep travelling safe. Conductor proclaimed in loud voice as if there is nothing wrong in doing smoking by person of age of father/grandfather of complainant. When complainant tried to do recording, then the conductor sat in silence on the front left seat. Passengers kept on seeing the incidence as spectators. It is claimed as if the conductor made preparation for giving beatings to complainant, due to which complainant travelled in fear. Written complaint was lodged with the officials who disclosed as if the bus belonged to Chandigarh Depot. General Manager of Haryana Roadways at Ambala sent letter to General Manager, Haryana Roadways Chandigarh regarding this lodged complaint and thereafter complainant was given intimation through letter dated 30.09.2016 as if fine of Rs.200/- imposed on the driver vide order of 14.09.2016 and that charge sheet served on the conductor. It is claimed that conductor charged Rs.5/- in excess of actual payable fare. Intimation on 26.10.2016 was sent in response to which letter dated 18.11.2016 was sent by General Manager, Haryana Roadways Chandigarh for informing complainant as if actual chargeable fare is Rs.40/- as per rules.  As incidence of smoking in buses taking place and that is why consumer complaints filed in some Consumer Forums including one in District Forum Chandigarh. Fine of Rs.10,002/- was imposed in one of these complaints dated 25.05.2016. It is claimed that journey started from Zirakpur (Mohali) and as such this Forum has jurisdiction. Earlier complaint filed in District Consumer Forum, Panchkula bearing No.44/2017 was dismissed for want of jurisdiction on 25.10.2017. Through this complaint direction sought for imposing penalty on the conductor also as per service rules and regulations. Even direction sought for refund of excess charged fare. Compensation for mental agony and harassment of Rs.4.00 lakhs and litigation expenses of Rs.20,000/- more claimed in addition to direction of ensuring smooth and proper journey  free from smoking in the buses.

2.             In reply filed by way of short affidavit submitted by Shri Rajpal Sekhon, State Nodal Officer on behalf of OP No.3, it is claimed that complaint is not maintainable because of mis-joinder and non joinder of necessary parties; complainant does not fall under definition of consumer enunciated by provisions of Consumer Protection Act.  Besides it is claimed that Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 or COTPA Act, 2003 has been enacted by Central Govt. for regulation of Cigarettes and Tobacco Products in India. Answering OP has already constituted a State Level Committee vide notification dated 10.12.2008. Task force at State as well as District level has been constituted to combat evil of smoking in public places. District Tobacco Control Cells in all Districts of Haryana have been constituted for implementing above said Act and even various committees have been constituted at State Level and District Level.  By virtue of Section 4 of COTPA Act, 2003 smoking in public place has been prohibited except in special smoking zone areas.  Provision for imposing fine upto Rs.200/- for smoking in general place exists. Health Department being nodal agency is to create awareness amongst general public regarding adverse effect of using tobacco products. Copy of instructions dated 20.10.2014 alleged to be annexed with the reply. An amount of Rs.2,46,035/- has been received as fine for violation of provisions of above said Act in State of Haryana from April, 2017 to October, 2017. Letter dated 10.12.2018 issued by worthy Financial Commissioner or Principal Secretary to Govt. of Haryana, Health Department was addressed to Director General Health Services, Haryana and to all Deputy Commissioners for imparting instructions required to be followed for enforcing statutory rules of COTPA, 2003. In the instant case as violation of Section 4 of above referred Act committed by employees of Transport Department and as such said department is only responsible for implementing the Act. No grievance/ground made out against OP No.3

3.             In separate joint reply submitted on behalf of OP No.1 and 2, it is claimed that complaint not maintainable in this Forum because incident of smoking or of misbehavior took place in Baldev Nagar area of Ambala and the bus belongs to Chandigarh depot. No cause of action has accrued to complainant. No violation of rights of complainant committed by OP No.1 and 2. Allegations regarding sending of complaint by Haryana State Transport Ambala to OP No.1 and 2 in fact are false because same never received by answering OPs. However, copy of complaint was provided by complainant on 06.07.2016. Cognizance has been taken against driver and conductor of the bus in question on the basis of complaint sent by complainant. After serving charge sheet on Mohinder Singh driver under Haryana Civil Services (Punishment & Appeal) Rules 1987, stoppage of one increment was contemplated and thereafter fine of Rs.200/- imposed. That charge sheet was served on the basis of copy of complaint supplied on 06.07.2016 by complainant. Even action was taken against the conductor, but despite that complainant was not satisfied with the action taken under Haryana Civil Services (Punishment & Appeal) Rules 1987. Complaint bearing CC No.44/2017 filed by complainant was dismissed by District Consumer Forum, Panchkula on 25.10.2017 and thereafter this complaint filed on vague allegations. As per information supplied to answering OPs, complainant was aspiring to get down from bus outside bus stand of Ambala Cantt., but driver refused to accede to that request by claiming that on account of stoppage of bus, traffic jam will take place, due to which danger of accident may be there. It is claimed that on account of this, skirmish took place between complainant and driver and that is why this complaint filed. Complainant has not produced any solid proof in support of allegations. No other complaint received from any other passenger in the office of answering OPs. It is claimed that if complainant was feeling so uncomfortable due to incidence of smoking inside the bus, then he would not have traveled further in the bus for reaching upto the destination. In view of this, it is claimed that story put forth by complainant is false. As per approved fare list, fare from Zirakpur to Ambala is Rs.40/- and the same has been charged. Complainant was disclosed that in case he has doubt regarding fare being less than Rs.40/-, then he for removal of doubt can visit on any working day in the office of answering OPs and satisfactory explanation will be provided to him. All other averments of the complaint denied one by one each.

4.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-6 and thereafter closed evidence. On the other hand counsel for OP No.1 and 2 tendered in evidence affidavit Ex.OP-1/1 of Shri Veom Dinesh Sharma alongwith documents Ex.OP-1 to Ex.OP-15 and thereafter closed evidence. Thereafter none turned up for OP No.3 despite wait and as such OP No.3 was proceeded against ex-parte.

5.             Written arguments submitted by complainant as well as by OP No.1 and 2. Oral arguments heard and records gone through.

6.             First grievance of complainant is that he felt suffocated and uncomfortable because of incidence of smoking by driver inside the bus. For that incidence driver and conductor have been punished as per provisions of Haryana Civil Services (Punishment & Appeal) Rules 1987. Certainly prohibition of smoking in public places is contemplated by Section 4 of COTPA Act of 2003 as per contents of document Ex.OP-5. In view of  this violation committed, memo of charges Ex.OP-3 and Ex.OP-4 were served on the driver and conductor and as such present is not a case in which action not taken by department against the driver and conductor as per relevant service rules. Now direction is sought through this complaint for calling upon concerned officials to impose more penalty than that of amount of Rs.200/- because of seriousness of offence of smoking. Such direction cannot be issued by this Forum at all because competent authority under provisions of Haryana Civil Service Rules to impose such penalty  as has already been on the driver and conductor. So on account of imposition of fine by competent punishing authority, further direction through this complaint cannot be issued.

7.             As per law laid down in Inder Singh Sachdeva (Wing Commdr) Vs. Amritveer Singh and others, 2015 (4) CLT 162 by Hon’ble Punjab State Consumer Disputes Redressal Commission, direction cannot be issued by District Consumer Forum to the department for registration of FIR against erring employee or proceed against them because issue of such directions are beyond purview of District Consumer Forum. It is held in this case that it is for the concerned authorities to take departmental action against the erring employees and District Consumer Forum cannot intervene in that respect. Ratio of this case fully applicable to the facts of the present case in so far as seeking of direction sought for imposing more stringent penalty than that of penalty of fine of Rs.200/- after issue of charge sheet.

8.             In the present case driver and conduct who misbehaved with the complainant on account of incidence of smoking have been imposed fine and if that be the position, then claim of complainant regarding charging of excess fare alone can be taken note of. Even as per Para No.5 of case titled as Ashok Kumar Parjapat Vs. Director General Haryana State Transport & others, Revision Petition No.2948 of 2018 decided on 16.04.2019 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in view of non impleadment of driver and conductor, it is not fair and reasonable to take view regarding allegations of misbehavior and of smoking against them because principle of natural justice require that no one should be condemned unheard. Decision rendered by District Consumer Forum, Rohtak in Complaint No.467 of 2017 decided on 12.09.2018 of case Ashok Kumar Prajapat Vs. Chief Director, Haryana Roadways & others is not binding  on this Forum, more so when Hon’ble National Commission in the above referred case refused to take cognizance against driver and conductor regarding allegations of smoking for want of their impleadment as party. Decision of Hon’ble National Commission is binding on this Forum and not of District Consumer Forum, Rohtak and as such complainant cannot take benefit from this decision of District Consumer Forum, Rohtak or of decision dated 25.05.2016 in CC No.853 of 2015 titled as Ashok Kumar Parjapat Vs. Director Haryana Roadways & others by District Consumer Forum-I, UT Chandigarh. Reference of decision of Hon’ble National Commission referred above is not at all made in any of these two decisions given by District Consumer Forum, Rohtak and District Consumer Forum-I, UT Chandigarh.

9.             If violation of Section 4 of COPTA Act, 2003 committed by driver and conductor, then separate action against them has been taken by department and as such further direction cannot be issued for more stringent penalty.

10.            As per decision given by Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 27.02.2019 in Revision Petition No.1100 of 2018 titled as Ashok Kumar Parjapat Vs. Director, Haryana State Roadways and another, direction to authorities of Haryana Roadways for stopping complete smoking in the buses cannot be given by Forum/Commission because the same is subject matter of State Govt. In the last lines of those orders of Hon’ble National Commission, it has been held that Hon’ble National Commission would request the State Govt. to take appropriate action for issuing orders in this regard. When such direction has already been issued by Hon’ble National Commission to State of Haryana,  then repetition of same instructions not required by this Forum. Moreover, rule of double jeopardy was taken in consideration in the above noted case for not imposing greater penalty than that of imposed fine of Rs.50/-. Ratio of that case is fully applicable to the facts of the present case and as such submission of complainant has no force that compensation for mental agony and harassment should be allowed to complainant because of suffering from smoking inside the bus. 

11.            If complainant sent complaints Ex.C-1 and Ex.C-2 or other complaints on other dates, then OPs have also produced on record documents Ex.OP-1, Ex.OP-2 and Ex.OP-7 for claiming that complaint sent by complainant to Ambala Depot never received by Chandigarh Depot of Haryana Roadways. Whether or not that complaint received by Chandigarh Depot that is not matter germane for disposal of this complaint. Ex.OP-8 and Ex.OP-9 are copies of notices sent to driver and conductor for initiating departmental action against them, whereas Ex.OP-10 and Ex.OP-11 are documents issued by Nodal Officer appointed under Smoking Prohibition Rules by Haryana Roadways Department for showing that fine of Rs.200/- charged. Rather through Ex.OP-12 complainant has been conveyed that the fare as mentioned in the fare list is proper.  In Ex.OP-12 further it is mentioned that in view of notification dated 01.04.2015 issued by Punjab Govt., fare for Punjab area has been increased w.e.f. 08.04.2015. It is on account of this that fare in Ex.OP-13 @ Rs.0.90 paise per K.M. w.e.f. 01.04.2015 is mentioned. It is the contention of complainant that two separate tickets should have been issued i.e. one for coverage of Haryana area and the second for coverage of Punjab Area because fare of Haryana area is less than that of fare chargeable for Punjab area.  It is contended by complainant that distance of Zirakpur from Ambala Cantt. is mentioned as 38 KMs, but that of Chandigarh is 53 KMs and as such only Rs.35/- should have been charged as fare.  Question of issue of two separate tickets does not arise because single ticket has to be issued for a single journey in a bus. Contention in that respect of complainant is liable to be repelled. It may be mentioned here that earlier complaint filed by complainant in District Consumer Disputes Redressal Forum, Panchkula was returned for presentation as per orders Ex.C-4 and thereafter this complaint was filed. It is the contention of representative of OP No.1 and 2 that complainant has not lodged complaint regarding charging of more fare than the prescribed one in his initial complaint dated 17.06.2015 and as such now cooked up story has been presented regarding charging of excess fare. After going through complaint Ex.C-1, it is made out that mention regarding charging of excess fare is not at all made by complainant in this complaint and as such certainly submission advanced by representative of OP No.1 and 2 has force that subsequent complaint dated 06.07.2016 lodged on after thought version. Now complainant claims as if Rs.5/- charged in excess of the prescribed fare, but in complaint dated 06.07.2016 it is mentioned as if Rs.4/- charged in excess. Which of these versions is correct, qua that no satisfactory reply given by complainant. Through Ex.OP-10 and Ex.OP-11 complainant was informed that charged fare of Rs.40/- is as per prescribed norms and that is why fare table Ex.OP-13 was supplied to complainant. Fare of Zirakpur to Ambala Cantt. is mentioned as Rs.40/- in fare table Ex.OP-13 and Ambala is ahead of Dera Bassi and as such if fare of Rs.40/- charged as per fare table Ex.OP-13, then certainly no excess fare charged from complainant. Submission of representative of OP No.1 and 2 in this respect has force and that of the complainant has no force.

12.            No other worth mentioning point argued.

13.            As a sequel of above discussion, complaint dismissed without any order as to costs. Certified copies be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

July 17, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member