SUPREME COURT OF INDIA
Sumatidevi M. Dhanwatay
Vs.
Union of India
C.A.No.2252 of 1999
(Shivaraj V.Patil and D. M. Dharmadhikari JJ.)
06.04.2004
JUDGMENT
1. The appellant travelled by 1st Class Air conditioned berth from Nagpur 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, pearls, diamond and other valuables were taken
away forcibly. This incident occurred on 4.12.1991: 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 of which, the train stopped at
Igatpuri 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 compensation 'of Rs. 9,
32, 256/-. The State Commission, after considering the material that was placed
before it and on considering the rival contentions, allowed the claim of the
appellant partly awarding total compensation of Rs. 1, 41, 756/. The Railway
administration, aggrieved by and not satisfied with the said order, filed an
appeal before the National Consumer Disputes Redressal Commission (hereinafter
referred to as 'the National Commission, for short). The National Commission,
by the order under challenge in this. Appeal, set aside the order made by the
State Commission. Hence this appeal.
2. 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 given by
the State Commission in allowing the claim made by the appellant, the National
Commission has set aside the order of 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 Commission was
fully justified in ordering the compensation.
3. In opposition, the learned counsel for the respondent Nos. 1 to 4 submitted
that the order impugned in this appeal is just and support-able 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 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.
4. 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 complaint was
posted for final hearing on 14.9.1993, on which date the Union of India and the
General Manager, Central Railway filed 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 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 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 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 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 Railway administration
inspite of their prior knowledge had not made any efforts or devised measures
to curb lawlessness indulged in by the ticketless tarvellers. 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 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 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 occurrence of such mob-violence 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
argument of the learned counsel for the respondents that the Railway
administration is not liable for the loss suffered by the appellant, cannot be
accepted in the light of the decision of this Court in the case of PA.
Narayanan vs. Union of India and others 1). 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 statutory liability on the
Railways but submits that the 1989 Act does not have any retrospective
operation. We do not 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 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 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
Claims 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."
5. This apart, 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.
As to the deficiency of service on the part of the Railway administration, no
such plea was raised before the State Commissions. 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 by the State Commission in the absence of any
such plea taken by the Railway administration as to the jurisdiction to
entertain the complaint.
6. 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 State 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-Railways shall pay Rs. 5000/- to the appellant towards cost.
Appeal allowed