State Consumer Disputes Redressal Commission
Mr. Kallol Basu vs British Airway & Others on 27 May, 2010
State Consumer Disputes Redressal Commission
State Consumer Disputes Redressal
Commission
West Bengal
BHABANI BHAVAN
(GROUND FLOOR)
31, BELVEDERE ROAD,
ALIPORE
KOLKATA 700 027
S.C. CASE NO. : SC/37/O/2006
DATE OF FILING : 15.11.2006 DATE OF FINAL ORDER: 27.05.2010
COMPLAINANTS
Mr. Kallol Basu
Vice President
Industrial Ecology
Cementitious Materials
Lafarge India Pvt. Ltd.
Residing formerly at 14/117, Golf Club Road
Ground Floor, Kolkata-700 033
and presently at
14/14, Golf Club Road
Ground Floor
Kolkata-700 033
and working for gain at Lafarge India Pvt. Ltd.
having its Eastern Operations Office at 101B, Sunny
Towers,
43, Asutosh Chowdhury Avenue
Kolkata-700 019.
RESPONDENTS
1. British Airways
having its registered office at
Waterside (HBB3)
P.O. Box 365 Harmondasworth UB7 OGB,
Registered in England No. 1777777.
2. Martin Broughton, Chairman,
British Airways, London,
United Kingdom.
3. Carol Armstrong Sexton,
Administrative Assistant,
British Airways, London,
United Kingdom.
4. Annie Netto, Claims Assistant,
British Airways Insurance, London,
United Kingdom.
5. Manager, Insurance Claims,
British Airways, London,
United Kingdom.
6. Manager-Customer Relations,
British Airways, London,
United Kingdom.
7. Aparna Gupta, Customer Relations,
British Airways, DLF Plaza Tower,
DLF City, Phase-I
Gurgaon-122 002, Hariyana.
8. British Airways, Eastern Region India,
16, Camac Street, Kolkata-700 017.
9. Mr. Joe Homem, Manager,
British Airways
Eastern Region India
16, Camac Street
Kolkata-700 017.
PROFORMA RESPONDENTS
10. Dr. Sandip Chatterjee, Consultant
Neurosurgeon,
Park Clinic,
4, Gorky Terrace,
Kolkata-700 017.
11.
Dr.
Indrajit Roy
Consultant Neurosurgeon
16-A, Nandan Road,
Kolkata-700 025.
BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY
MEMBER : MR. S.COARI
FOR COMPLAINANT : Mr. R.K.Chaumal & Mr. D.P.Gupta, Ld.
Advocates
FOR THE RESPONDENT / O.P.S.:
Mr. R.Medora, Ld. Advocate (OP 1)
Mr. Mir
Anwar, Ld. Advocate (OP 10&11)
: O R D E R :
MR.
P.K.CHATTOPADHYAY, LD. MEMBER This Complaint case was filed by Mr. Kallol Basu, erstwhile Vice President, Industrial Ecology, Cementitious Materials, Lafarge India Pvt. Ltd., against the Ops namely British Airways (OP Nos. 1 to 9), alleging gross deficiency of service and negligence on the OP Nos. 1 to 9, namely British Airways and its various functionaries, relating to cause of action occurring on 14.6.06 when the complainant was returning to Kolkata from London by British Airways Flight No. BA 147.
The complainants case was that while deplaning from the aircraft through a very old, wet, dilapidated, wobbly, unstable and malfunctioning staircase, as was provided by British Airways, he had a terrible and nasty fall entailing grave injury and instant and profuse bleeding through his nose. Having seen that, one senior stewardess arranged to provide some tissue paper for wiping blood, but no medical assistance whatsoever was provided. One co-passenger in the name of Mr. Anindya Chatterjee helped the complainant to undergo/complete formalities of immigration, baggage handling and customs and no help and assistance could be had from the OP Nos. 1 to 9 or anyone on their behalf. Subsequently, with much difficulty, lot of pain and grave distress the complainant reached home and subsequently with increasing physical pain, distress and discomfort, getting unbearable by hours, the complainant had to be investigated by one eye-surgeon and one neuro-surgeon within few hours of the incident and on diagnosis it was detected that the complainant had fracture in the skull and internal bleeding in the brain resulting in inter alia major swollenness on the right side of the face, right eye and forehead, which in other words can be described as a serious case of intra-cranial subdural haematoma. Resultantly the complainant was required to be hospitalized and after three days, was discharged and could resume duties only after eight days from the day of occurrence. The complainant was thereafter advised complete restraint from travelling and driving for a period of one month from the date of the incident and thus the complainant was compelled to commute between home and office, affecting his performance of work/other activities. Pointing out that by virtue of his job conditions the complainant was required to undertake extensive travel involving visits to plants, worksites and construction hubs, the complainant finally lost his job for such constraints and in between on 18.5.06 the complainant filed a written complaint with OP No. 9 detailing the incident and misery/grief/distress resulting therefrom claiming compensation on account of irreparable loss suffered through mental trauma, grave physical injury and consequential physical distress and other mischief. The Ops admitting the incident asked him to indicate the quantum of financial loss suffered by the complainant, but after compliance of that, the Ops appeared to have not taken any effective steps though the Ops referred the complainants case to its insurance arm in United Kingdom.
Finally not having any relief from the Ops on the issues raised by the complainant even after protracted efforts, a complaint was filed before this Commission for redressal of grievances under Consumer Protection Act, 1986 as amended claiming compensation to the tune of Rs. 62,91,560/- alongwith interest @ 18% p.a. to be calculated till the date of actual payment and other order(s) as deemed fit and proper.
The OP No. 1 namely British Airways, entered appearance and denying and disputing the allegations of the complaint stated inter alia that the complainant had no cause of action against British Airways and the complainant did not disclose any cause of action. Denying that there was any deficiency of service on its part it was contended that on the complainants sole and exclusive cause of action as complained of, remedy lay under provisions of the Carriage by Air Act 1972 and the quantum of liability, if any, would be required to be determined in accordance with the provisions of Carriage by Air Act, 1972. Stating that the purported medical reports disclosed and sought to be relied upon by the complainant were suspect documents, authenticity of which was denied and disputed, the OP No. 1 claimed that the complainant had suffered no injury or damage and thus there was no deficiency of service on part of British Airways. Contending that the alleged injuries and mental trauma supposedly suffered by the complainant were on account of his own negligence, laxity and carelessness as he was disembarking from Flight BA147 at Kolkata on 14.5.06, it was pointed out that no other passenger or crew on the flight suffered similar fall and British Airways was not responsible at all and cannot be held liable under Carriage by Air Act or under any law currently in force.
Referring to Section 17 of the Carriage by Air Act, 1972 it was denied that the complainant had suffered by accident and the complainant not having pleaded any allegations against OP Nos. 2 to 9, those Ops should be dismissed from the action of the given complaint.
Arguing that the Carriage by Air Act 1972 does not incorporate or allow a cause of action by a passenger against a carriage for deficiency/negligence etc. it was stated that the answering OP had no deficiency or negligence on the complainant. Pointing out that British Airways had not organized alleged wobbly and unstable staircase at the Kolkata Airport on 14.5.06 for the said flight, it was submitted that firstly the staircase was provided at the sole control/discretion of either Indian Airlines or Airport Authority of India and secondly, it was denied that the staircase was wet or dilapidated. Stating that any complaint relating to staircase would require Indian Airlines or Airport Authority of India as necessary parties to be impleaded, attention was drawn to British Airways flight crews assistance provided to the complainant and alleged investigation and diagnosis was stated to have no relevance to the instant proceeding. Questioning validity/authenticity/correctness of purported medical reports of August, 2006 it was stated that given medical reports forwarded by the complainant were procured for purposes of this litigation and the complaint was filed on the basis of false and concocted allegations in an effort to make undue gain at the expense of British Airways and thus the same was liable to be dismissed.
The matter was heard after filing of evidence by contending parties with evidence filed by Proforma OP Nos. 10 & 11, namely Dr. Sandip Chatterjee, Consultant Neurosurgeon, Park Clinic and Dr. Indrajit Roy, another Consultant Neurosurgeon, when subsequent to hearing WNAs were also filed by the Complainant and Proforma Op Nos. 10 & 11. The OP Nos. 1to 9, however, did not file any WNA.
In his WNA the complainant underlined the responsibility and liability of OP Nos. 1 to 9 during flight and before and after, as per provisions of law, in the matter of safety, security and comfort of their passengers including ensuring assistance as might be required in going through immigration, baggage, handling and customs formalities, all of which were allegedly not taken care of. In such regard attention was drawn to definition of the word accident as in Advance Law Lexicon and Section 80 of IPC and then application of the principle of res ipsa loquitur was sought to be applied in the fact and circumstances of the case. Referring to Article 17 of the second schedule of Carriage by Air Act, 1972 it was stated that the second schedule of the Act makes the Carrier responsible/liable for damages sustained in the event of the death or woundage of a passenger or any bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in course of any of the operations of embarkation or disembarkation.
Referring to correspondence between the Complainant and the OP No. 1 it was stated that liability towards the claim was an admitted fact when the OP No. 1 took upon an exercise on assessing and evaluating the claim of the complainant and assured proper response in time, but went back on their words. Clarifying components of the claim the complainant drew attention to following citations :-
1.
Complaint Case No. C-155/1998 decided on 08.05.07 Delhi State Commission in Shri Paras Ram Vs. Ministry of Tourism & Civil Aviation & others, wherein it was held that the complainant having jumped from the Aeroplane of the OP, when the same was forced to go in for emergency landing, the complainant suffered fracture and was admitted in different hospitals and underwent surgical operation. Against claim of Rs. 10,10,000/- the OP/Airlines paid Rs. 5,09,033/- in full and final settlement of the claim.
2. 2004(3) CPR 60 NC Geeta Jethani & Others Vs. Airport Authority & others, wherein it was held, As procedure prescribed under Consumer Protection Act does not provide for application of Evidence Act or Civil Procedure Code, dispute is to be decided on yardstick of reasonable probability on basis of facts brought on record and also Hence, Opposite Party No. 1 (AAI) is directed to pay 2,50,000 French Francs or its equivalent in Rupees as on today, alongwith interest at the rate of 10% per annum from January 1, 2000 till the date of payment. The amount shall be paid within a period of four weeks from today.
3. (1968) 3 SCR 862 : AIR 1968 SC 1413 Gopal Krishnaji Ketkar Vs. Mohammed Haji Latif & others, wherein it was held, Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. On the issue as to whether the given staircase was old, wobbly and dilapidated or otherwise, we accept the complainants version on the principle of res ipsa loquotur the same being uncontroverted through evidence and in such regard, we would rely on the citation as in 2004 (3) CPR 60 (NC) Geeta Jethani & others Vs. Airport Authority of India & others and (1968) 3 SCR 862 : AIR 1968 SC 1413 Gopal Krishnaji Ketkar Vs. Mohammed Haji Latif & others.
OP No. 1 namely British Airways, did not file any WNA but in course of argument relied upon 1968 3 SCR 862:AIR 1968 SC 1413 and referred to identical para as relied upon by the complainant.
OP Nos. 10 & 11 namely Dr. Sandip Chatterjee, Consultant Neuro-surgeon, Park Clinic and Dr. Indrajit Roy, another Consultant Neuro-surgeon, retraced the events detailing their respective roles and contributions highlighting the complainants travails, suffering and physical conditions subsequent to the incident occurring on 14.5.06 and referred to Page-530 of Illustrated Medical Dictionary by British Medical Association in regard to meaning and symptoms of Subdural Haemorrhage. OP No. 10, the Neuro-surgeon treating the complainant at Park Clinic diagnosing the complainant as suffering rightsided basifarental fracture with an acute subdural Haematpma, found the OP No. 11 namely Dr. Indrajit Roy, being in complete agreement of such and to this effect both filed evidence which were never assailed by the OP No. 1 through controverting medical evidence.
DISCUSSION A. The fact of the complainants fall in the staircase as he was alighting from Flight BA147 on 14.5.06 travelling in OP No. 1s plane was an established position. According to the complainant, the said staircase was unstable, wet, wobbly and dilapidated and so fixed with the aircraft without any caution or notice announced/notified, which position was denied by the OP No. 1, not by providing any specific evidence or technical report, but by asserting only that no other passenger travelling by the same flight had identical incident. The complainant in regard to such submission relied upon (1968) 3 SCR 862 and argued that on the face of given allegations of the complainant it was for the OP Nos. 1 to 9 to prove that they took proper care and did their duty to repel the charges of negligence and deficiency of service. We accept this view.
B. Subsequent to the fall of the complainant from the staircase post attachment with aircraft he was travelling from London to Kolkata, the bleeding injuries as were suffered was sought to be responded to/attended by only offering some tissue paper by the OP No. 1s senior stewardess but no other help/assistance was provided in regard to complainants reaching the immigration counter at that physical/mental state including baggage collection and checking thereof and customs clearance and finally his departure from the Airport to his destination, when a co-passenger namely Shri Anindya Chatterjee, extended his fullest help and assistance enabling the complainant to have immediate medical assistance and reach home. We have gone through the records relating to Shri Anindya Chatterjee and accept the same in support of the complainant.
C. Coming over to the grave injuries, sufferings, damages and discomfort allegedly sustained by the complainant in course of his air journey on OP No. 1s aircraft, through fall from the aircraft staircase provided for disembarkation, the complainants contention was that the said staircase was old, wobbly, unstable and dilapidated, which caused the fall and resultant mischief and the OP Nos. 1 to 9 were liable for the same. The complainant argued that The liability with respect to the incidents arising in the course of embarkation or disembarkation of the Air Craft qua the AIR passengers is governed by Carriage By Air Act, 1972. The provision of Article 17 of the Second Schedule of the said Act makes the carrier liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operation of embarking or disembarking.
Also contending that OP Nos. 1 to 9 were responsible for deficiency of service in regard to the incident of fall in course of disembarkation of the complainant it was pointed out that not providing necessary medical service was also one components the OP Nos. 1 to 9 failed miserably.
We have carefully gone through the evidence and find that the incident of fall of the complainant and resultant grievous injury sustained by him have been proved. We also find that the medical attention as was provided by the OP No. 1 through offer of some tissue paper for wiping blood immediately after the fall was essentially a gesture of minor first aid and no further medical aid/assistance was provided by OP Nos. 1 to 9 to the complainant, when he was compelled to be on his own, in that most unfortunate situation and only through kind help and assistance of a co-passenger namely Anindya Chatterjee, could the complainant reach the airport terminal and clear formalities, collect baggage and leave the terminal on his own arrangement. In such regard, we would refer to Article 17 of the Carriage by AIR Act 1972 which provides as under :-
The carrier is liable for damage sustained in the event of death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operation of embarking or disembarking.
In the present case, the service provider namely the OP Nos. 1 to 9, on evidence duly established, failed to ensure safety of the complainant through disembarkation by placement of a staircase that was unsafe and defective resulting in the accident and fall of the complainant and resultant grievous hurt, suffering and misery leave alone physical distress and expenditure on medical treatments, on which the OP Nos. 1 to 9 totally failed to be of any help and thus, did not perform their statutory duty, which we consider as serious components of deficiency of service, as enshrined in the provisions of Consumer Protection Act, 1986, as amended.
D. On the issue of medical treatment as the complainant was forced to undergo, we have examined the evidence of both Dr. Indrajit Roy and Dr. Sandip Chatterjee and find that both the medical practitioners of considerable repute have sought to support the complainants case by giving details of their respective finding and treatment meted out to the complainant. We are satisfied with the evidence so filed and accept the same.
E. On the OP No. 1s questioning as to a single fall namely that of the complainants, on the staircase, with vague suggestion as it might be through inadvertence or carelessness, we need not refer to the celebrated theory of game of chances but shall limit ourselves to the fact that the complainant was a much travelled man frequently undertaking air journeys and as a matter of fact, was a member of the OP No. 1s privilege club. There was no evidence that he was careless or unmindful as he was disembarking from the aircraft through the dated and dilapidated staircase and, therefore, we would believe the complainant on his travails, on the evidence available before us and would again rely on citations in (2004) CPR 60 NC Geeta Jethani & Others Vs. Airport Authority & others.
F. On the complainants prayer for compensation to the extent of Rs. 62,91,560/- with interest @ 18% per annum with other order(s) as may be deemed fit, we find the break-up as under :-
A. Actual medical expenses incurred : Rs. 20,000/-
(Including telephone calls to wife and daughters in USA) B. Further medical expenses expected in : Rs. 16,000/-
next one year C. Loss of direct time at work (8 days on the basis of annual salary) : Rs.
1,05,560/-
D. Loss of performance at work due to Inability to travel for 1 month (20% Increment/bonus lost for 1 month) : Rs. 50,000/-
E. Cost towards trauma/pain, suffering Etc. : Rs. 10,00,000/- F. Cost towards possible permanent loss of future abilities, due to loss of confidence, ability and perpetual apprehension of danger about visiting plants and construction sites ultimately possibly leading to loss of job altogether after 6 months (on the basis of remain- ing 3 years of service even at 50% @ Rs. 30 lakhs per year without increment : Rs. 45,00,000/- G. Compensation for negligence : Rs. 5,00,000/- H. Cost of proceedings : Rs. 1,00,000/- On the basis of evidence
accepted by us we are in favour of allowing prayers for the amounts in A, B.C, D & E totalling Rs. 11,91,560/-, which we consider as fair and reasonable in the facts and circumstances of the case.
On the claim as detailed in F we are of the view that an amount of compensation for Rs. 10,00,000/- will be just and equitable on the given sufferings of the complainant, but we are not in favour of separately awarding any other amount on the claim marked G as compensation granted hereinbefore is expected to take care of the requirements. However, we allow litigation cost of Rs. 50,000/- for unnecessarily dragging the complaint towards litigation.
Thus the total decretal amount the complainant is allowed would amount to Rs. 22,41,560/- to be so paid within 30 days from the date of this judgement and order and on default, would earn interest @ 10% per annum for the period of default.
In determining the amount of compensation as in the foregoing we have relied upon the citations in State Commission, Delhi in the matter of the Complaint Case No. C-155/1998 Shri Paras Ram Vs. Ministry of Tourism & Civil Aviation & others and 2004 (3) CPR 60 (NC) Geeta Jethani & others Vs. Airport Authority of India & others, where the liability of each passenger is limited to a sum of 250000 franc in terms of Rule 22(1) under the Carriage of Air Act 1972, having the same force of law, established.
O R D E R The petition of complaint is allowed in part on contest with cost of Rs. 50,000/- (Rupees fifty thousand only). The OP Nos. 1 to 9 namely British Airways, are directed to pay Rs. 11,91,560/- (Rupees eleven lakhs ninety one thousand five hundred sixty only) to the complainant towards (A) actual medical expenses incurred, (B) further medical expenses expected to be incurred in following year, (C) loss of direct time at work, (D) Loss of performance at work due to inability to travel for one month, and (E) cost towards trauma/pain suffering etc. and also Rs. 10,00,000/- (Rupees ten lakhs only) as compensation for cost towards permanent loss of abilities in loss of confidence, ability and perpetual apprehension of danger about visiting plants and construction sites ultimately leading to loss of job etc. The said Ops are directed to pay the decretal dues amounting to Rs. 22,41,560/- (Rupees twenty two lakhs forty one thousand five hundred sixty only) to the complainant within 30(thirty) days from the date of this judgement, failing which the said sum will accrue interest @ 10% (ten per cent) per annum for the period of default.
MEMBER MEMBER