Holding

The State Commission was competent to entertain the complaint, the Railway administration was negligent and liable for compensation, and the National Commission's unreasoned order setting aside the State Commission's award was unsustainable.

Summary

The appellant, an elderly woman, was assaulted and had valuables stolen during a mob attack on a railway train. She claimed the Railway administration failed to provide protection, constituting deficiency in service, and filed a complaint before the Maharashtra State Consumer Commission, which awarded compensation. The Railway administration appealed to the National Consumer Disputes Redressal Commission, which set aside the State Commission's order without giving reasons. The Supreme Court held that the State Commission had jurisdiction under the Consumer Protection Act, 1986, that the Railway administration was negligent and liable under the Railways Act, 1989, and that the National Commission's unreasoned order could not stand. Consequently, the appeal was allowed, the National Commission's order was set aside, and the Railway was ordered to pay costs to the appellant.

Issues considered

Whether the State Consumer Commission had jurisdiction to entertain a complaint against the Railway administration under the Consumer Protection Act, 1986.
Whether the Railway administration was liable for deficiency in service and negligence under the Railways Act, 1989.
Whether the National Consumer Disputes Redressal Commission could set aside the State Commission's award without providing reasons.
Whether sections 100, 103 and 124A of the Railways Act, 1989 apply to the liability of the Railway administration for mob violence.

Legislation cited

Consumer Protection Act, 1986s. 3
Railways Act, 1989s. 100, s. 103, s. 124A

Subjects

Consumer ProtectionDeficiency of ServiceJurisdictionRailway NegligenceMob ViolenceCompensationNational Consumer Disputes Redressal CommissionState Consumer CommissionRailways ActCPA 1986

Judgment

A SUMATIDEVI M. DHANWATAY
v.
UNION OF INDIA AND ORS.

APRIL 6, 2004
B [SHIVARAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.]

.,.
Consumer Protection Act, 1986:

C Section 3-Complaint before State Commission-Maintainability a/-
Held, maintainable in absence of any plea taken by Respondent-Railway
administration as to jurisdiction of the Commission to entertain the complaint.

Deficiency in service-State Commission finding deficiency of service
on the part of Railway Administration and awarded compensation to
D passenger-National Commission without assigning any reason set aside the
order-Held, the order of National Commission being non-reasoned, cannot
be sustained

Railways Act, 1989-sections 124A, 100 & 103-Mob violence on
railway passengers-Damage to person and property-Held, Railway
E Administration was negligent in not taking preventive steps-Liable to pay
compensation to the passenger for the loss suffered

An unruly mob entered into a railway compartment and assaulted
the passengers. Appellant, an old lady travelling in the same compartment
F was assaulted and damage was caused on her person and property. She
approached the Railway authorities for protection, but did not get any
assistance from them. Thereafter she filed complaint, claiming
compensation, before the State Consumer Commission. The State
Commission recorded a finding that there was deficiency in service on the
part of the Railway administration on the date of incident, and accordingly
G awarded compensation to appellant. Aggrieved, Railway administration
filed appeal whereupon the National Commission set aside the order of
State Commission. Hence the appeal.

The appellant contended that the State Commission was justified in
-
ordering compensation and that the National Commission was not right
H 928
I S.M. DHANW ATAY v. U.0.l. 929
in setting aside that order. The respondents however contended that the A
State Commission had no jurisdiction to entertain the complaint made by
the appellant.

Allowing the appeal, the Court

HELD: I.I. The State Commission has categorically recorded a B
finding that there was deficiency in service on the part of the Railway
administration on the date of incident. It is also noticed in the order of
the State Commission that the incident did not take place all of a sudden.
The Railway administration was well aware of the impending contingency
that would happen (as it was a yearly experience for them). The State
Commission has also recorded that the Railway administration failed to C
take precaution and preventive measures. Their negligence was
compounded in the case of the appellant being old and sickly lady. The
appellant suffered injury and no protection or support was given to her.
The Railway administration inspite of their prior knowledge had not made
any efforts or devised measures to curb lawlessness indulged in by the D
ticketless travellers. The State Commission was not satisfied with the
explanation given on behalf of the Railway administration, when it came
forward to state that they had taken sufficient precautions. Having
recorded such finding, the compensation was awarded to the appellant.
However, strangely, the National Commission, without noticing the facts
of the case, without dislodging the reasons recorded by the State E
commission and without giving reasons, upset the order of the State
Commission, simply stating that the finding of the State Commission could
not be upheld. [932-8-E)

1.2. There has been negligence on the part of the Railway F
administration. Under Section 124A of the Railways Act, 1989 the Railway
administration cannot escape the liability having regard to the facts and
circumstances of the case and in the light of the incident that had taken
place. [932-G; 933-FJ

P.A. Narayanan v. Union of India and Ors., [19981 3 SCC 67, relied G
on.

~ -. 1.3. The Railway administration also did not raise any issue as to
the maintainability of the complaint or jurisdiction of the State
Commission to deal with the complaint. Even otherwise, under Section 3
of the Consumer Protection Act, 1986, the complaint could be entertained H
930 .SUPREME COURT REPORTS [2004] 3 S.C.R.

A by the State Commission in the absence of any such plea taken by the
Railway administration as to the jurisdiction to entertain the complaint.
(933-F-G(

CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 2252 of
1999.
B
From the Judgment and Order dated 22.3 .96 of the National Consumer
Disputes Redersal Commission, New Delhi in F.A. No. 606 of 1993.

Ms. Nivedita Sharma, Yakesh Anand and Sanjeev Anand for the
Appellant.
c
Ms. Rekha Pandey and S.N. Terdol for the Respondents.

The following Judgment of the Court was delivered

The appellant travelled by I st Class Air conditioned berth from Nagpur
D to Bombay by Howrah-Bombay Mail. She was carrying her luggage which
included gold, pearl, silver and diamond jewellery and other valuables valued
at Rs. 1,11,756. While she was travelling, she was assaulted by some
unauthorised passengers and her gold, silver, p~arl, diamond and other
valuables were taken away forcibly. This incident occurred on 4.12.1991.
E Thousands of persons entered into the compartment and assaulted the
passengers, including the appellant. The said crowd was so violent that they
broke the doors, window bars, glass panels, seating berths and toilets etc.
This apart, the crowd committed so many other illegal acts of assaulting the
bonafide passengers. They molested the women and even raped the young
girl passengers. The appellant pulled the alarm chain three times, as a result
F of which, the train stopped at lgatpuri Station. She, alongwith other bonafide
passengers got down at that station. She approached the Railway Authorities
for protection, but, without any assistance. On reaching Bombay, she lodged
a complaint with the police about the incident. The appellant approached the
Consumer Disputes Redressal Commission, Maharashtra State (hereinafter
referred to as 'the State Commission', for short) by filing a complaint claiming
G compensation of Rs. 9,32,256. The State Commission, after considering the
material that was placed before it and on considering the rival contentions,
aliowed the claim of the appellant partly awarding total compensation of Rs. .,.. -4
1,41,756. The Railway administration, aggrieved by and not satisfied with
the said order, filed an appeal before the National Consumer Disputes Redressal
H Commission (hereinafter referred to as 'the National Commission', for short).
S.M. DHANWATA Y v. U.0.1. 931
The National Commission, by the order under challenge in this appeal, set A
aside the order made by the State Commission. Hence this appeal.

The learned counsel for the appellant strongly contended that the National
Commission was not right and justified on facts as well as in law in upsetting
the order passed by the State Commission; the National Commission has set
aside the order made by the State Commission without dislodging the reasons B
given by the State Commission in allowing the claim made by the appellant;
the National Commission has set aside the order o: the State Commission
simply stating that the State Commission was not right in upholding that
there has been a deficiency in service on the part of the Railway administration.
The learned counsel added that having regard to the facts found, the State C
Commission was fully justified in ordering the compensation.

In opposition, the learned counsel for the respondent Nos. I to 4
submitted that the order impugned in this appeal is just and supportable
order. According to her, the State Commission had no jurisdiction to entertain
the complaint made by the appellant; there was no deficiency in service on D
the part of the Railway administration; when an unruly mob entered into the
railway compartment and caused damage on the person and property of the
passengers, the Railway administration was helpless. In such a situation, no
complaint could be entertained by the State Commission under the Consumer
Protection Act, 1986.
E
We have considered the respective submissions made on behalf of the
parties. As is evident from the order of the State Commission that opposite
parties Nos .. 1, 3, 5 & 6, i.e., Union of India, Chief Security Commissioner,
Secretary, Home Department and Inspector General of Police, remained absent.
No written version was filed by any of the parties on the date given. The F
complaint was posted for final hearing on 14.9.1993, on which· date the
Union of India and the General Manager, Central Railway filet1 written version
jointly. The averment made in the complaint that the appellant travelled by
train on that day when the incident happened, is admitted. However, the
Railway administration denied its responsibility as to the theft of luggage of
the appellant and the injuries -suffered by her. The only contention of the G
Railway administration was that it was not responsible for the loss of luggage
and injuries caused to the appellant. The State Commission, on consideration
of the facts and circumstances, has recorded that having regard to the past
experience, the Railway administration did not take reasonable steps to avoid
such incident. It is also recorded in the order of the State Commission that H
932 SUPREME COURT REPORTS (2004] 3 S.C.R.

A the allegations of injuries suffered by the appellant and the loss caused to her
luggage, the Railway administration had not been able to controvert effectively.
It was submitted on behalf of the Railway administration before the State
Commission that the claim as to the loss of ornaments urged by the appellant,
was exaggerated. As· regards loss of the Bank Draft, it was contended that
intimation could be given to the concerned Bank. An argument was also
B advanced that the complaint was not maintainable under the provisions of
Sections 100 and 103. of the Indian Railways Act, 1989. The State Commission
has categorically recorded a finding that there was deficiency in service on
the part of the Railway administration on the date of incident. It is also
noticed in the order of the State Commission that the incident did not take
C place all of a sudden. The Railway administration was well aware of the
impending contingency that would happen (as it was a yearly experience for
them). The State Commission has also recorded that the Railway administration
failed to take precaution and preventive measures. Their negligence was
compounded in the case of the appellant being old and sickly lady. The
appellant suffered injury and no protection or support was given to her. The
D Railway administration inspite of their 'prior knowledge had not made any
efforts or devised measures to curb lawlessness indulged in by the ticketless
travellers. The State Commission was not satisfied with the explanation given
on behalf of the Railway administration, when it came forward to state that
they had taken sufficient precautions. Having recorded such finding, the
E compensation was awarded to the appellant. However, strangely, the National
Commission, without noticing the facts of the case, without dislodging the
reasons recorded by the State Commission and without giving reasons, upset
the order of the State Commission simply stating that the finding of the State
Commission could not be upheld that there was a deficiency in service on the
part of the Railway administration. It may be added that the National
F Commission itself has observed in the impugned order:
"However we cannot part with this order without expressing our
concern about the total absence of any steps having taken by the
concerned Railway Administration to mobilise adequate police force
sufficiently before hand when the occurrences of such mob-violence
G on stations enroute Nagpur to Bombay on Ambedkar Day has been
a recording phenomenon every year."

This observation of the National Commission also supports the position
that there has been negligence on the part of the Railway administration. The
H argument of the learned counsel for the respondents that the Railway
S.M. DllANWATAYv. U.0.1. 933
administration is not liable for the loss suffered by the appellant, cannot be A
accepted in the light of the decision of this Court in the case of P.A. Narayanan
v. Union of India and Ors., [1998] 3 SCC 67. Paragraph 10 of the said
judgment reads thus;

"Mr. Goswami, learned counsel appearing for the Railway
administration, does not dispute that under the new Act, there is B
statutory liability on the Railways but submits that the 1989 Act does
not have any retrospective operation. We do r:ot wish to go into that
question in this case and leave that issue open. We are resting our
case on the breach of common law duty of reasonable care, which
lies upon all carriers including the Railways. The standard of care is C
high and strict. It is not a case where the omission on the part of the
railway officials can be said to be wholly unforeseen or beyond their
control. Here there has been a complete dereliction of duty which
resulted in a precious life being taken away, rendering the guarantee
under Article 21 of the Constitution illusory. Had the deceased not
pulled the alarm chain with a view to stop the train, the position D
might have been different. Liability in this case is fault based. Such
a liability is not inconsistent with the scheme of the Railways Act of•
1890 either (refer Section 80 with advantage). The proof of a fault in
this case is strong and Mr. Goswami has not rightly challenged it
either. To relegate the appellant to approach the Railway c·laims .E
Tribunal or the Civil Court, as suggested by Mr. Goswami, does not
appear to us to be proper. More than 17 years have already gone by
since the occurrence and, therefore, it appears appropriate to us to
give a quietus to this litigation now."

This apart, under Section 124A of the Railways Act, 1989, the Railway F
administration cannot escape the liability having regard to the facts and
circumstances of the case and in the light of the incident that had taken place.
1 As to the deficiency of service on the part of the Railway administration, no
such plea was raised before the State Commission. The Railway administration
also did not raise any issue as to the maintainability of the complaint or
jurisdiction of the State Commission to deal with the complaint. Even G
otherwise, under Section 3 of the Consumer Protection Act, 1986, the
>- complaint could be entertained by the State Commission in the absence of
any such plea taken by the Railway administration as to the jurisdiction to
entertain the complaint.
H
'•

934 SUPREME COURT REPORTS 12004] 3 S.CR.

A This being the position, in our view, the impugned order passed by the
National Commission cannot be sustained. No good reason was given by the
National Commission to upset the order passed by the Stale Commission, as
already observed. Under the circumstances, the appeal is entitled to succeed.
Accordingly, it is allowed and the impugned order is set aside. The respondent-
B Railways shall pay Rs. 5000 to thP, appellant towards cost.

B.B.B. Appeal allowed.