PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This appeal has been filed by the appellant against the order dated 27.05.2010 passed by the State Consumer Disputes Redressal Commission, Rajasthan (in short, ‘the State Commission’) in S.C. Case No. SC/37/0/2006 – Mr. Kallol Basu Vs. British Airways & Ors. by which, complaint was complaint was allowed.

2.      Brief facts of the case are that Complainants/respondent no.1 while deplaning from the OP No. 1/Appellant aircraft through a very old, wet, dilapidated, wobbly, unstable and malfunctioning staircase, as was provided by British Airways, 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 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 complainant’s case to its insurance arm in United Kingdom.  Alleging deficiency on the part of OPs, complainant filed complaint before State Commission.

3       OP No. 1 to 9 resisted complaint, denied allegations made in the complaint and submitted that 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 complainant’s 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 crew’s assistance provided to the complainant and alleged investigation and diagnosis was stated to have no relevance to the instant proceeding.  Denying any deficiency on its part, prayed for dismissal of complaint.  Learned State Commission after hearing parties allowed complaint and directed OP No. 1 to 9 to pay total Rs. 22,41,560/- against which, this appeal has been filed along with application for condonation of delay.

4.      This Commission vide order dated 5.8.2010, condoned delay of 10 days in filing appeal.  Respondent No. 4 to 11 were deleted.

5.      Heard learned Counsel for the parties finally at admission stage and perused record.

6.      Learned Counsel for the appellant submitted that inpsite of negligence on the part of complainant and inspite of no negligence on the part of OP No. 1 to 9 and inspite of no proof of damages, learned State Commission committed error in allowing huge compensation; hence, appeal be allowed and impugned order be set aside.  On the other hand, learned Counsel for the respondent no. 1 to 3 submitted that order passed by learned State commission is in accordance with law as injuries were received by complainant on account of negligence of OP; hence, appeal be dismissed.

7.      Complainant in the complaint alleged that as stair case was wet and in a dilapidated condition, he suddenly slipped and fell flat on the face of the floor. In reply to question at 18 of the interrogatories, he admitted that he fell from lower part of the stair case. Thus, it becomes clear that according to complainant, he slipped from the lower step of the stair case and sustained injuries on the face.  Learned Counsel for the appellant rightly submitted that had he slipped from the stair case, complainant should have sustained injuries on the back, but not on the face, but it appears that he missed one step and fell down on the ground as he was having two baggage in his hand and was not holding railing.  Learned Counsel for the respondent submitted that even by slipping on the last step, injury can be sustained on front side of the face which argument is not believable because if a person slips, he will sustain injury only on the back of the head, but not on the front of the face and it appears that complainant missed last step of the stair case and fell down on the floor and sustained injury on his face and in such circumstances, complete negligence on the part of OP cannot be attributed.  Complainant has been allowed Rs.20,000/- for medical expenses and telephone calls to wife and daughter in USA.  Medical bills submitted by complainant are worth Rs.16,000/- and he has not furnished any telephone call details and expenses incurred on that.  In such circumstances, complainant is entitled only Rs.16,000/- towards medical expenses incurred in his treatment and learned State  Commission has committed error in allowing Rs.20,000/-.

8.      As far further medical expenses expected in one year, learned State Commission has allowed Rs. 16,000/- as claimed by complainant.  Complainant in reply to interrogatory No. 126 made on 2.1.2008 submitted that as regards future expenses, it is expected that he has to bear more expenses in future.  He has not placed any document depicting incurring medical expenses in next one year of filing complaint and learned State Commission has committed error in allowing Rs.16,000/- for future medical expenses without any basis; though, complaint was decided almost after 4 years.

9.      Complainant claimed Rs.1,05,560/- as loss of time at work for 8 days on the basis of annual salary which was allowed by learned State Commission.  In reply to question 127, he submitted that absence from office is automatically adjusted with the available leave, which otherwise when accumulated can be encashed. Firstly, he has not placed on record terms and conditions of employment and secondly he has not placed on record salary slip by which it can be inferred that he was drawing salary of Rs. 30 lakhs/45 lakhs per year.  Even if it is presumed that he was drawing salary of Rs. 30 lakhs per annum, learned State Commission committed error in allowing compensation of Rs.1,05,560/- for 8 days as claimed by complainant and it should not have exceeded Rs.65,000/-. He himself has admitted that leave is adjusted against available leave and in such circumstances, it would be appropriate to allow Rs. 25,000/- to the complainant on account of loss at work for 8 days due to injuries by him on account of contributory negligence.

10.    Learned State Commission has allowed Rs. 50,000/- towards loss of performance at work due to inability to travel for one month.  Complainant has not placed on record any document requiring travelling as part of his duty and getting additional Rs.50,000/- for travelling. Learned State Commission has allowed aforesaid amount as claimed by complainant without any basis which is contrary to law and cannot be allowed. 

11.    Complainant claimed Rs. 10 lakhs as cost towards trauma/pain, suffering etc. and learned State Commission allowed aforesaid amount without any evidence.  At the most, complainant had to remain absent from duty for a period of 8 days on account of sustaining some injuries.  There was no justification for allowing huge amount of Rs. 10  lakhs without any iota of evidence and as he suffered physical and mental pain for 8 days, it would be appropriate to allow Rs. 10,000/- towards trauma/pain, suffering etc. instead of Rs. 10 lakhs. 

12.    Complainant has claimed Rs. 45 lakhs towards loss of future abilities and Rs. 5 lakhs as compensation for negligence and learned State Commission has allowed Rs. 10 lakhs against claim of Rs. 50 lakhs.  No reason has been given for allowing huge amount of Rs. 10 lakhs without any evidence on record.  Learned Counsel for the respondent submitted that on account of injuries, complainant lost confidence in travelling and had to resign from the post.  This argument is contrary to record because in reply to question 68 & 69, he admitted that he travelled abroad after 14.5.2006 on several occasions on British Airlines.  In such circumstances, by no stretch of imagination, it cannot be presumed that he lost confidence in travelling; so, had to resign from the post.  In reply to question 32 of additional interrogatories, he replied that he resigned, but he does not possess resignation letter. In such circumstances, it cannot be presumed that he resigned due to injuries sustained by him on account of fall from the stair case. Learned State Commission has committed error in allowing Rs. 10 lakhs in this head which is liable to struck out.

13.    Complainant claimed Rs. 1 lakh as cost of proceedings and learned State Commission allowed Rs. 50,000/- for unnecessary dragging the complainant towards litigation. Perusal of record reveals that complainant claimed huge amount without any reasonable justification and learned State Commission allowed Rs. 21,91,560/- besides cost whereas as per my aforesaid observation, complainant is entitled to only Rs. 51,000/- and in such circumstances, complainant should be allowed to get only Rs.5,000/- as cost of litigation instead of Rs. 50,000/- awarded by State Commission.

14.    It is further observed that complainant not only impleaded OP No. 10 & 11/Respondent No. 2 & 3 as proforma respondents, though, they were witnesses of the complainant and learned State Commission without any justification dismissed application of OP No. 1 for cross examination of OP No. 10 & 11 on their affidavit which were filed in support of complainant.

15.    In the light of aforesaid discussion, it becomes clear that appeal filed by appellant is to be allowed partly and appellant is required to pay only Rs. 56,000/- against Rs. 22,41,560/- allowed by learned State Commission.

16.    Consequently, appeal filed by appellant is partly allowed and impugned order dated 27.05.2010 passed by the learned State Commission in S.C. Case No. SC/37/0/2006 – Mr. Kallol Basu Vs. British Airways & Ors. is partly modified and OP No. 1 is directed to pay Rs. 56,000/- against Rs. 22,41,560/- allowed by learned State Commission within 30 days failing which, amount will be paid with 10% p.a. interest for the period of default.  Parties to bear their costs.