SMT. RAVI SUSHA : PRESIDENT
Complainant has filed this complaint U/S 35 of Consumer Protection Act 2019, for getting an order to give direction to opposite party to pay compensation of a sum of Rs.15,00,000/- to the complainant for the loss and mental agony caused to him, alleging deficiency in service on the part of OP.
Brief facts of the case are that the complainant is working at Abu Dhabi. On 5/4/2018 complainant had travelled in Air India Flight No.A1-938 from Dubai International Air port to Kozhikode International Air port. Complainant submits that while the aircraft was landing at the Kozhikode International Air port, there had been a hard hit on the run way which caused severe back pain and the pain has spread to right hand, head and to the left feet. The complainant immediately reported to the cabin crew, then the cabin crew informed that such incidents may happen while travelling at the back seat which need not be worried. As the pain continued he started to take pain relief medicine and continued the treatment. Later the complainant went back to Abudhabi, where he suffered severe pain and he consulted a doctor , he advised to take high dose of pain killer tablets which did not give a permanent cure to his issue. Then he took an X-ray, the result showed that he had a hairline fracture on his back bone. He lodged a complaint to OP but no reply. Later the complainant lodged second complaint for which a reply mail was received from OP on 26/7/2018, which stated that an investigation was conducted as per his 1st complaint and stated that turbulent flying condition has happened and the company do apologies for the situation . Later the complainant returned to his native place and continuing treatment and he is still suffering unbearable pain and still undergoing treatment for the back pain and he has spent more than Rs.3,00,000/-. Hence the complaint.
The notice was served to OP and OP appeared through counsel and filed written version stating that there is no deficiency of service, negligence or unfair trade practice from the part of OP and also submitted that the complaint has been filed after an expiry of 2 years from the cause of action dtd. 5/4/2018 therefore the complaint is barred by limitation and is liable to be dismissed. OP further submitted is that the commission has no jurisdiction to entertain the complaint as no part of cause of action has arisen within the jurisdiction of this commission. The OP admitted that the complainant had travelled in Air India Flight No.A1-938 from Dubai International Air port to Kozhikode International Air port. The OP has denied all the allegations raised by the complainant against the OP. OP submitted that on receipt of 1st complaint dtd.21/7/2018, issued a reply on dtd 26/7/2018 explaining in general that hard landings occur due to the weather conditions and other turbulences it was also brought to the notice of the complainant that such issues are beyond the control of the OP. Further OP submitted that on second complaint dtd.28/7/18, they issued a reply dtd.3/8/2018 again explaining the reasons for general turbulence to the aircrafts on account of change of weather conditions. The averment that the complainant is still suffering from unbearable pain and still undergoing treatment for the back pain and is unable to sit properly at his office and the medication for pain relief still continuous is baseless and hence denied. It is submitted that had the complainant suffered any physical discomfort or pain as a result of the landing he ought to have reported the same to the OP immediately. There is no deficiency of service, negligence or unfair trade practice from the side of OP . Hence prayed for the dismissal of the complaint.
Complainant has filed his affidavit evidence and Exts.A1 to A34 have been marked. Complainant has been cross-examined for OP. OP has not adduced evidence.
After that the complainant has filed argument note.
The first plea raised by the OP is that the complaint is barred by limitation. OP submitted that the complaint has been filed after an expiry of 2 years from the cause of action. But on perusal of the complaint, we can see the alleged incident happened on 5/4/2018. Further complainant lodged second complaint for which a reply mail was received from OP on 26/7/2018, which stated that an investigation was conducted as per his 1st complaint and stated that turbulent flying condition has happened. It is seen that complaint has been filed on 16/7/2020 within the period of two years from 26/7/2018. So we do not find that the complaint is barred by limitation.
Another contention raised by OP is that the commission has no territorial jurisdiction as no part of cause of action has arisen within the jurisdiction of this commission. With regard to this point, we are of the view that since the complainant is residing within the territorial jurisdiction of this commission, as per Consumer Protection Act 2019, this complaint is maintainable here.
The admitted fact is that on 5/4/2018 complainant had travelled in Air India Flight No.A1-938 from Dubai International Air port to Kozhikode International Air port.
Complainant’s allegation is that while the aircraft was landing at the Kozhikode International Air port, there had been a hard hit on the run way which caused severe back pain and the pain has spread to right hand, head and to the left feet. On X-ray he had a hairline fracture on his back bone. Because of the said fracture he had to undergo several treatment at Dubai and also at Kerala. Complainant further alleged that he had immediately reported to the cabin crew, then the cabin crew informed that such incidents may happen while travelling at the back seat which need not be worried. Complainant alleged that since the pain continued he started to take pain relief medicine and continued the treatment.
Though OP admitted the complainant’s travel as alleged, they denied the fact, about the immediate lodging of a complaint to the cabin crew ,after the flight landed at Kozhikode airport. OP submitted that if such complaint from the side of the passengers been filed, the same will be noted down in the cabin crew flight report which is maintained by the cabin crew in charge and counter signed by the commander. But no such incidents were reported during /after the journey. Further submitted that if the complainant raised any need for medical attention, he would have been referred to Air India Medical officer in the air port itself for further treatment. But the complainant never raised any such complaint after arrival. OP denied the incident as alleged by the complainant and the lodging of the complaint to cabin crew. OP further denied the averment of the complainant that on the reply mail dtd.26/7/2018, the OP company apologized for the situation happened to the complainant. OP submits that the complainant had registered a complaint after 3 months from the journey and sent reply on 21/7/2018 seeking time to investigate and on 26/7/2018 issued reply explaining in general that hard landing occur due to the weather conditions and other turbulent as that such issued are beyond the control of OP’s.
Here we have gone through the entire evidence submitted by the complainant and the facts of the case. On perusal of the documents submitted by the complainant reveal that those are belong to the treatment availed by the complainant from different hospitals. Exts.A3&A4 shows that the treatment availed by the complainant due to the injury or facture happened to the complainant was due to hard landings of the aircraft while landing at the air port. Though OP submits that such issues are beyond their control, the incident was happened from the side of OP. So we are of the opinion that there is deficiency in service on the part of OP.
The complainant has not submitted documents to show that the treatment of the alleged complaint is continuing at present and also not submitted that he had spent more than Rs.3,00,000/- for the treatment.
On considering the above facts and circumstances, the complaint is allowed in part. Opposite party is directed to pay Rs.1,50,000/- to the complainant towards treatment expense and mental agony and hardship caused to him. Opposite party shall comply the order within one month from the date of receipt of this order, failing which the awarded amount carries interest @7% per annum from the date of order till realization. Complainant is at liberty to realize the amount by filing execution application as per the provision of Consumer Protection Act 2019.
Exts:
A1-X-rayPelvis-AP & Frogleg view
A2-Patient follow up card
A3-Treatment certificate
A4-Request to the issue medical certificate
A5-Prescription dtd.27/3/2021
A6-patient follow up card
A7to A10-Prescritpion
A11&A12-X-ray report
A13- MRI dtd.6/3/18
A14- Report issued by Al Ahli hospital
A15- prescription
A16 to A23- Cash bills
A24,A26,A27,A29,A33,A34- Tax invoice dtd.5/7/18,24/7/18, 13/9/18/
A25&A28 - Patient drug counseling dtd.1/7/18,14/7/18, 13/9/18
A30 - Patient drug counseling dtd.14/7/18,
A31- other service planned dtd.13//9/18
A32- Patient drug counseling -dtd13/10/18
A33,A34- Tax invoice dtd. 13/9/18/
PW1-Arunkumar.P.K.V-complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
