PRESENT:-

JUSTICE SHRI.K.R.UDAYABHANU            :          PRESIDENT

SHRI.M.K.ABDULLA SONA                            :          MEMBER

Appeal No.87/2009

The Chief Executive Officer,                                    :          APPELLANT

Jet Airways, S.M.Centre, Marol,

Andheri East, Mumbai – 400 059.             

(By Adv.Sri.Abdul Kharim & Narayan.R)

                      Vs

1.     Mathew Thomas,

4B JCI Towers, Karayogam,                  :        RESPONDENTS

Kanjikkuzhi, Kottayam.              

2.     The Managing Director,

Kochi International Airport

Nedumbaserry P.O., Ernakulam.

3.     The Chief Security Officer,

Kochi International Airport,

Nedumbaserry.P.O., Ernakulam.

4.     The Airport Manager, Air India Ltd.,

      Kochi International Airport,

    Nedumbaseery.P.O., Ernakulam.

(R2 rep. by Adv.Sri.V.K.Mohankumar)

          (R4 rep. by Adv.Sri.S.Reghukumar)

Appeal No.88/2009

The Managing Director,                         :          APPELLANT

Kochi International Airport,

Nedumbassery.P.O., Ernakulam.

(By Advs.Sri.Menon & Pai)

                      Vs

1.    Mathew Thomas,

4B JCI Towers, Karayogam,                  :        RESPONDENTS

Kanjikkuzhi, Kottayam.              

2.    The Chief executive Officer,

Jet Airways, S.M. Centre, Marol,

Andheri East, Mumbai 400 059.

3.    The Airport Manager, Air India Ltd.,

     Kochi International Airport,

Nedumbaseery.P.O., Ernakulam.

(R3 rep. by.Sri.S.Reghukumar)

Appeal No.708/2009

The Airport Manager, Air India Ltd.,

     Kochi International Airport,           :     APPELLANT

Nedumbaseery.P.O., Ernakulam.

 (By Adv.Sri.S.Reghukumar)

                      Vs

1.     Mathew Thomas,

4B JCI Towers, Karayogam,                  :        RESPONDENTS

Kanjikkuzhi, Kottayam.              

2.    The Managing Director,

Kochi International Airport,

Nedumbassery, Ernakulam.

3.    The Chief Security Officer,

Kochi International Airport,

Nedumbassery, Ernakulam.

4.    The Chief Executive Officer,

Jet Airways, S.M.Centre, Marol,

Andheri East, Mumbai – 400 059.

JUDGMENT

JUSTICE SHRI.K.R.UDAYABHANU  :          PRESIDENT

          The appellant in 87/09 is the 3^rd opposite party Jet Airways, the appellant in 88/09 is the 1^st opposite party/Managing Director, Cochin International Airport, the appellant  in 708/09 is the 4^th opposite party/Airport Manager, Airport India Limited in C.C.516/06 in the file of CDRF, Ernakulam.  The appellants are under orders to pay a sum of Rs.1,00,000/- of which 50% is to be borne by 1^st and 4^th opposite parties/appellants in appeal 88/09 and 708/09 respectively and the balance by the 3^rd opposite party ie, the appellant in A.87/09.

          The case of the complainant is that he is aged 60 years and has been suffering from Parkinson’s disease in an advanced stage.  He can move only in wheel chair and lacks coherence in speech.  He had undergone Deep Brain Stimulation surgery at Jaslok Hospital in Mumbai in 2002.  The surgery involved placement of electrodes in the diseased parts of his brain and then connecting these electrodes to a battery implant inserted surgically in the chest.  The battery implant would get damaged if exposed to metal detector at security check at airports.  Hence only manual security check can be conducted. On 27.12.2005 he traveled from Cochin to Mumbai in Jet Airways flight.  The details of the health condition and that he cannot be exposed to metal detector was intimated to the concerned officials of the Jet Airways. So on his arrival of the airport , Jet Airways representative arranged for a wheel chair as well as a loader to take to the same to the aircraft.  The representative was having a copy of the medical details of the petitioner.  The above as well as the ticket was submitted by the complainant.  But he was subjected to frisking inspite of the efforts of the petitioners to draw the attention of the official to the medical details.  On reaching Mumbai, the petitioner had to be rushed to Jaslok Hospital. The Neuro Surgeon on examining him stated that the implant was damaged and had to be replaced.  The petitioner has to undergo a major surgery for replacement of the damaged battery.   He had to incur a sum of Rs.3.84 lakhs towards hospital expenses.  The complainant has alleged negligence on the part of the opposite parties and has claimed a sum of Rs.6 lakhs as compensation and 3.84 lakhs incurred towards the cost of surgery.

          The 1^st opposite party Managing Director, Cochin International Air Port has denied any liability in the matter as it is only providing infrastructural facilities to various Airlines and it has no control over the 2^nd opposite party/CISF, Security personnel.  It is also contended that the 1^st opposite party was not at all aware of the accident.

          The 2^nd opposite party commandant of CISF has also contended that they were not informed of the medical history of the complainant or the request for manual security check.  It is stated that there was no request either verbal or written from the petitioner or the ground handling agent Air India or Jet Airways.  It is the practice that on such request received the Door Frame Metal Detector (DFMD) and Hand Metal Detector (HMD) will be switched off and Hand Held metal detector would not be used and the person will be subjected to frisking by hand only.  No objection to metal detector test was raised by the complainant also.  Hence they have denied any liability.

          The 3^rd opposite party/Jet Airways has contended that to avoid medical detector and that the complainant is to be subjected to manual security check only was intimated to the officials on 15.12.2005 itself.  The same was duly conveyed to the CISF officials. Neither the complainant nor his companion one Mr.D’Souza alerted the authorities of the CISF.  As the Air India is the ground handling agent third opposite partiy’s scope for direct involvement in handling the passengers at the Airport is very limited.

          The 4^th opposite party/Airport Manager, Air India has also contended that they were not intimated as to the special care required in the matter.  It is also contended that Air India is not engaged in providing security at the Airport and has nothing to do with the security check. 

The evidence adduced consisted of the testimony of PW1 Exts.A1 to A11 and Exts.D1 to D4 ie, the complainant and officials of the opposite parties.

 We find that the officials examined at the instance of opposite parties 1, 2 and 4 has denied any communication given to them with respect to the request for manual security check to be provided to the complainant.  It was the contention of the 3^rd opposite party that they have passed information to one Suman Babu of CISF.  DW2 the Commandant of CISF has testified that there is no officer under him working at Nedumbassery by name Suman Babu.  It is the case of 3^rd opposite party/DW1 that the request was conveyed orally.  The 4^th opposite party has also denied that it was intimated of the above requirements.  It is also the contention of the 4^th opposite party that they have no authority over the security check up.  The 3^rd opposite party has no case that the request was forwarded to the 4^th opposite party.  It was also pointed out that it is the Airport Authority that is managing the airports and not Air India. The Airport Authority has not been made a party.

  It is seen from the evidence that only a loader was provided to take the wheel chair to the security point.  PW1 has stated that Mr.D’suza who accompanied him is not a literate person who could converse with the CISF officials.  The complainant who is affected by Parkinson’s disease could not alert the security officials at the checking point.  There is no reason as to why the representative of the 3^rd opposite party did not accompany the complainant to the security point and convey the request to them instead of the alleged handing over all papers to the complainant and the complainant to the security officials.  In the circumstances we find that the evidence would indicate that it was on account of the negligence of the officials of the 3^rd opposite party, Jet Airways that the complainants happened to be frisked through the metal detector.  The finding of the Forum that the rest of the respondents ie, the 1^st opposite party and 4^th opposite party are also liable cannot be upheld.

PW1 has testified and also produced the medical records and the hospital bills that established that the damage done to the battery and the requirements of the battery replacement and also the surgery undergone and the treatment expenses.  The Forum has taken into consideration that the battery has to be replaced in every five years. Already three years had expired after the battery was implanted.  It was taking into consideration the above aspects that the hospital charges liable to be compensated was reduced Rs.1 lakh although the hospital bill produced shows the amount as Rs.3.84 lakhs.

 It was contended by the counsel for the 3^rd opposite party/ Jet Airways that the complainant had admitted that he attended the marriage of his daughter on 01.01.2006 although as per records the above date falls within the hospitalization period.  The above aspect has not been clarified in the re-examination.  All the same the records would show that he underwent emergency surgery on 29.12.2005 for replacement of the pacemaker as the battery was totally damaged by interference of strong electro magnetic field vide Exts.A3 and A4.  He was admitted in the hospital on 28.12.2005 and discharged on 13.01.2006.  The total hospital expenses is Rs.3,88,534/- vide Ext.A4.  Hence we find that the amount ordered to be paid is only a moderate sum.  Hence we find no interference in this regard is called for.  In view of the finding that only 3^rd opposite party/Jet Airways is responsible the order of the Forum is modified to the effect that the amount of Rs.1,00,000/- shall be paid by the 3^rd opposite party.  The litigation cost of Rs.1000/- will also be paid by the 3^rd opposite party.  The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant would be entitled for interest at 12% per annum from the date of the order of the Forum ie, 27.11.2008.

          In the result the appeals 88/09 and 708/09 is allowed and appeal 87/09 filed by 1^st opposite party is dismissed.

The office will forward the LCR to the Forum along with the copy of this order.

JUSTICE K.R.UDAYABHANU             :          PRESIDENT

M.K.ABDULLA SONA                              :          MEMBER

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