KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 68/2014

JUDGMENT DATED: 17.08.2023

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

COMPLAINANTS:

1. Majida Beevi A., W/o Kamaludeen, Manaluvila Veedu, Vattathamara P.O., Kummil Village, Kottarakkara Taluk, Kollam.

2. Mumtaz K.M., W/o Firoz, Manaluvila Veedu, Vattathamara P.O., Kummil Village, Kottarakkara Taluk, Kollam.

3. Noorah Shereen, Manaluvila Veedu, Vattathamara P.O., Kummil Village, Kottarakkara Taluk, Kollam minor represented by 2^nd complainant.

4. Nasrin Shereen, Manaluvila Veedu, Vattathamara P.O., Kummil Village, Kottarakkara Taluk, Kollamminor represented by 2^nd complainant.

                             (By Advs. Fathahudeen M. & R. Narayan)

                                                Vs.

OPPOSITE PARTIES:

1. The Managing Director/Authorized Signatory, Etihad Airways, Khalifiya City A, Abudhabi, United Arab Emirates-00971-25110000.

2. Airport Manager, Etihad Airways, New International Terminal, Thiruvananthapuram International Airport, Thiruvananthapuram-695 009.

(By Adv. Sandeep T. George for OPs 1 & 2)

3. Airport Director, Airports Authority of India, Trivandrum International Airport, Thiruvananthapuram-695 008.

(By Adv. B. Vijayakumar)

JUDGMENT

SRI. AJITH KUMAR D.: JUDICIAL MEMBER

This is a complaint filed by the legal heirs of late Kamaludeen Firoz who was a passenger in Etihad Airways flight on 28.02.2014 from Abu Dhabi to Thiruvananthapuram.  On arrival at Trivandrum Airport the passenger was found dead.  Compensation has been claimed against Etihad Airways and Airport Authority of India alleging deficiency of service.

2.  The allegations as set out in the complaint are stated here under:-

Sri. Firoz was coming to Trivandrum for better treatment of his pancreatitis disease.  In the flight he was accompanied by his brother and another relative.  The physical and mental condition of the passenger was informed to the staff of the airline as and when he was brought to the checking counter in a wheelchair.  His condition was noted in the passenger ticket, all the staff of the Airlines were well aware about the condition of the passenger that he is a person who needs special attention. But no one attended the passenger after boarding.

3.  The scheduled departure of the airline from Abudhabi International Airport was 29.50 hours on 28.02.2014 and the arrival time at Trivandrum was at 3.30 hours on 01.03.2014 with a flying duration of 4.10 hours.  But the Airline arrived at the destination one hour late.  No doctor or nurse was available in the Aircraft and there was no trained person to provide first aid to the passengers, in case of emergency.

4.  During the journey the passenger became unstable and the brother of the passenger informed the fact to the cabin crew. They expressed their helpless in the matter as no such facility is provided in the aircraft.  Even after the arrival at Trivandrum International Airport the Airlines did not arrange any doctor or medical facility to attend the passenger.  However, 15 minutes after the landing of the flight a lady came to the Air craft and on examination of the pulse declared that the passenger is dead.  Thereafter somebody arranged an ambulance to shift the passenger from the Airport to Ananthapuri hospital at 5.15 A.M and the doctor declared the death of the passenger.  Subsequently post-mortem was conducted at the Medical College Hospital, Trivandrum.  The cause of death was ascertained as hemorrhagic pancreatitis.

5.  The passenger died due to the negligence on the part of the Airline and staff in not providing first aid and medical assistance to the passenger.  There being no Airline staff in the Airport to attend the passenger and the delay of 40 minutes caused to take off the flight the passenger had died.  According to the complainants the first and second opposite parties are liable to pay                  Rs. 40,00,000/- as compensation.

6.  On admitting the complaint notices were issued to the opposite parties.  The first and second opposite parties filed a joint version with the following contentions:

Compensation could be considered after establishing that the death of the passenger occurred due to the negligence of the opposite parties.  There was no deficiency of service or negligence on the part of the opposite parties.  The admitted case of the complainants is that Mr. Firoz was travelling from Abudhabi to Trivandrum for better treatment for his illness namely “Pancreatitis”.  The passenger was accompanied by his brother and a relative but they suppressed the true nature of his ailments.  The complainants never disclosed that the doctor who treated Firoz failed to secure a clearance certificate from the doctor for his travel from Abudhabi to Trivandrum.  The facts stated in the complaint itself would establish that the death of Firoz occurred after the flight landed at Thiruvananthapuram.  The death occurred not on account of the negligence of the opposite party, but due to his illness named Pancreatitis.

7.  Rule 17(1) of schedule 3 of the Carriage by Air Act, 1972 stipulates that the carrier is liable if the death was caused on account of any accident in the course of the journey.  Here death occurred due to the pre-existing ailments of the passenger.  The complaint is not maintainable in view of the provisions in Article 4.1.5 of the Civil Aviation Requirements and section 3 of Air Transport Series “M” Part I Issue III dated 28.02.2014 issued by the DGCA that it is the responsibility of the persons with disability to notify their request at least 48 hours prior to the departure so that the airlines can make necessary arrangements in providing boarding in and out of airline or to provide an escort.

8.  The case set out in the complaint is contradictory.  In one place it is stated that the passenger was found dead in his seating posture and on another space, it is stated that the passenger died at 5.30 am i.e; on the way from the Airport to Hospital.  The opposite parties would admit the fact that Sri. Firoz was a passenger in Flight No. EY 272 dated 28.02.2014 and upon landing at Thiruvananthapuram the companion of the passenger had informed the crew that the passenger is apparently not breathing.  It is incorrect that the passenger had informed the crew regarding his ailments.  A Special declaration is required for the travel of a passenger with a special medical condition and the same has to be disclosed at the time of booking and not at the time of check-in. If a passenger is not fit to fly the Airlines can refuse his carriage.  Airline is not expected to enable a passenger to undergo medical check-up.  Sri. Firoz was brought to the flight in a wheel chair.  The Air ticket availed by Firoz did not disclose his medical condition.  Mr. Firoz had undertaken the journey being aware about his physical condition whereas the opposite party was unaware about the medical condition of the passenger.  Otherwise, it could have refused to carry such a passenger.  All the allegations attributed against the opposite parties have been denied.  They seek for dismissal of the complaint.

9.  Third opposite party filed a version by refuting the allegations of negligence attributed in the complaint as discussed below:

The complainants are entitled to get compensation if they could prove negligence on the part of the opposite parties.  The pleadings in the complaint are to the effect that the passenger was found dead on the passenger's seat on reaching the Airport.  If the passenger was in a severe medical condition, the companions could have brought him in an Air Ambulance Flight fully equipped with all medical facility including doctors.  But after the flight landed at the International Airport, Thiruvananthapuram at 4.34 am it was informed that a medical attendant should reach at the arrival site.  At 4.42 am the Airline staff informed the need of an ambulance to shift the passenger to the hospital.  The co-passenger also sought for ambulance but unfortunately the passenger died at 5.03 am.  The passenger had died due to hemorrhagic pancreatitis which is a natural cause for which the opposite party cannot be penalised.  Third opposite party would also request for dismissal of the complaint.

10.  No oral evidence was adduced either by the complainants or the opposite parties.  The first complainant had sworn an affidavit in lieu of chief examination and Exts. A1 to A5 marked.  The Vice President of the first opposite party had sworn an affidavit in lieu of chief examination.  Five documents were filed by the first opposite party which were marked as Exts. B1 to B5.  The senior manager of the third opposite party had sworn an affidavit in lieu of chief examination and two documents were marked as Exts. B6 & B7.  The lawyers appearing for the complainants and the opposite parties filed written notes of arguments.  Perused the case records.  In the affidavits filed by the opposite parties the exhibits marked are referred as R1 to R7.  To avoid confusion those documents are renamed as Exts. B1 to B7.

11.  Now the points that arise for determination are:

1. Is there any deficiency of service or unfair trade practice on the part of the opposite parties?
2. Reliefs and costs?

12.  Point (i): The 1^st complainant had sworn an affidavit.  She is the mother of the deceased passenger Sri. Kamaludheen Firoz.  The 1^st complainant had no direct knowledge in respect of the incidents that transpired at the Airport and the Airline as she was not a passenger at the relevant time.  Ext. A1 is the copy of the lawyer notice dated 30.04.2014 issued on behalf of the complainants.  Ext. A2 is the reply notice dated 23.06.2014 issued on behalf of 1^st opposite party.  Ext. A3 is the copy of the Outpatient Treatment card issued by one Deepu P. John, the staff nurse attached to SUT Hospital in respect of the medical care and assistance given to the deceased passenger on receiving a phone call from the Airport Manager at 4.35 A.M.  Ext. A4 is the copy of the letter issued by the doctor attached to Ananthapuri hospital to the Medical College Hospital, Thiruvananthapuram to conduct post mortem of the deceased who was brought to the hospital in an "unresponsive stage and declared dead".  According to the complainants there was negligence on the part of the crew of the Airways in not providing timely medical attention which had resulted in the death of Firoz.

13.  The opposite parties refuted the claim of the complainants alleging that it was obligatory for an ailing passenger to avail a fitness certificate proving that the patient is fit to travel.  This is a mandatory requirement as per 7.3.1 of the conditions of carriage.  Exts. B1& B2 are the documents in respect of the conditions of carriage.  Ext. B3 is the incident details (confidential) maintained by the crew.  Ext. B4 is the extract of section 17(1) of the Carriage by Air Act 1972 that the carrier is liable for the damages sustained in case of death or injury only if it happened in an accident which took place on board. These are produced to canvass a position that for the death due to a pre-existing ailment the airline could never be held liable.  Ext. B5 is the requirement 4.1.5 that it is the responsibility of the persons with disability to notify their needs 48 hours before the scheduled departure.  Ext. B6 is the copy of the log sheet, the contemporary record maintained by the Airport authority with respect to the various steps taken in this regard.  Ext. B7 is another copy of Ext. A3.

14.  The learned counsel for the complainant argued that the Air crew were fully aware that the deceased passenger was an ailing person, even then no proper care was given.  In answer to the above argument the counsel for the first and second opposite parties pointed towards the mandatory requirement in such cases to obtain a fitness certificate to fly.  The complainants did not resort to such a step though the conditions of the carrier contemplate such a requirement.

15.  It is also submitted that the deceased was suffering with a dreadful disease and he had travelled to Trivandrum for better treatment.  So it is evident that the deceased was taking a risk in opting for a travel at that stage.  It is also significant to note that the complainant did not cause production of the Post mortem certificate for proving the cause of death.  It is the admitted case of the complainant that the deceased died due to pancreatitis.  The airways could be held liable if the death is caused in an accident while the passenger was on board.  The complainants did not examine the brother or the relative of the deceased who had accompanied the deceased in the flight.  They would have spoken about the health condition of the deceased passenger while he was in the aircraft. There is no evidence to the effect that he was fit while boarding and his health condition worsened while travelling.  Admittedly the deceased passenger had boarded the flight coming in a wheel chair which fact would point out towards his poor health condition.  The evidence on record would prove that urgent steps were taken immediately on getting informed about the bad situation and the passenger was taken to the nearby hospital.  On a cumulative consideration of the materials on record it could be seen that the deceased had succumbed to death on account of his pre-existing ailments and the opposite parties are found not liable as no deficiency of service is proved against them.  Point is thus found against the complainant.

In the result, the complaint is dismissed.  On consideration of the nature of the case it is found that the parties shall bear their respective costs.

AJITH KUMAR D.: JUDICIAL MEMBER

                                                                        BEENA KUMARY. A         : MEMBER

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APPENDIX

I         COMPLAINANT’S WITNESS :

II       COMPLAINANT’S DOCUMENTS :

III      OPPOSITE PARTY’S WITNESS :

IV      OPPOSITE PARTY’S DOCUMENTS :

AJITH KUMAR D.: JUDICIAL MEMBER

jb                                                                     BEENA KUMARY. A         : MEMBER