BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No.75 of 2013 against C.C.No.188/2011 District Forum-I, Hyderabad.
Between
The General Manager,
AIR INDIA, previously known
as Indian Airlines, Hyderabad,
rep. by its Manager. ..Appellant/Opp.party
And
Sri Hansraj Jain alias Hansraj Bararia
S/o.late Sri Jaichandal
Aged 67 years, R/o.Avanthinagar,
Skylark Apartment, First floor,
Basheerbagh, Hyderabad-29. ..Respondent/
Complainant
Counsel for the Appellant : M/s K.Srinivasa Murthy
Counsel for the Respondents : M/s. G.Sudha
QUORUM:
SRI R.LAKSHMI NARASIMHA RAO, HON’BLE Incharge President
AND
SRI T.ASHOK KUMAR, HON’BLE MEMBER.
MONDAY, THE TWENTY FIFTH DAY OF NOVEMBER,
TWO THOUSAND THIRTEEN
Order (Per Sri T.Ashok Kumar Hon’ble Member)
***
Aggrieved by the order in C.C.No.188/2011 on the file of District Forum-I, Hyderabad, opposite party preferred this appeal.
The brief facts as set out in the complaint are that the complainant, a senior citizen and businessman carrying on whole sale business of Ribbons and falls of sarees in the name and style of M/s National Ribbon company which is a proprietary concern. The complainant was running his establishment in Begum Bazar, Hyderabad for the last 34 years and for the purpose of marketing realization of due amounts from its customers, the complainant is often in tours and in that process on 10-12-2007 he boarded IC No.935 fight of the opposite party from Chennai to Hyderabad and the opposite party allotted seat No.18F to him. When the flight was in mid air all the passengers were given sign of removing seat belts. In safe time the complainant went to toilet and while he was coming out of the toilet without any warning an abnormal bump occurred in the mid air because of negligent piloting of the air craft as a result of it the complainant fell down on the floor and there was severe wobbling of the flight dropping down from a high altitude and though the complainant sought for assistance no assistant/air hostess rendered assistance. The staff on board was reluctant to help the complainant and asked him to wait till the flight lands at Hyderabad. Thus he suffered severe pain and after the flight landed at Hyderabad, the staff at Air Port and the duty doctor examined him and informed that they were suspecting a fracture and advised the complainant to go to Yashoda Hospital as they have no such facilities at the airport. Accordingly, he went to Yashoda hospital and got himself treated and it was opined that the complainant’s ankle was fractured because of the fall and advised to undergo surgery immediately and thereby the complainant rang his house and took the assistance of his son and got discharged from Yashoda hospital. The complainant took the second opinion as the pain increased and went to Apollo Hospital wherein the doctor examined him thoroughly and took x-ray and operated him on 11-12-2007 by the Orthopedic surgeon, Dr.Hari Sharma in Apollo hospital. The complainant was in the said hospital as inpatient for 3 days and was discharged with an advice that a steel rod was implanted in his ankle and he has to be under medical care continuously till he recovers and he has to undergo physiotherapy daily till the wound gets healed and ankle set rights and that if the ankle does not set right, he has to be operated to install the steel rod and repeat the process. The complainant was discharged from the hospital on 14-12-2007 and since then he was bed ridden and therefore got addressed a letter on 17-12-2007 informing the negligent attitude of the opposite party crew and air port staff and informed that the opposite party will be held responsible for all the expenditure incurred because of the operation and also wrote another letter on 10-3-2008 but there was no response. If the ankle bone sets then he had to undergo another operation for removal of the implanted steel rod and the doctor estimated expenditure for this surgery at Rs.60,750/-. The complainant submitted that he spent Rs.49,654/- for the operation and communicated the same to the opposite party on 17-2-2007 but there was no response. It is the paramount duty of the Airlines of the OP to take care of the passenger’s safety till they land safely in the destination airport and if any untoward emergency arises, it is mandatory to the staff on board as well as pilot to announce it but on 10-12-2007 there was no such announcement and the complainant suffered and his movements were restricted as he cannot stand or sit for continuously even for an hour and could not attend his daily needs and became dependent and always needs a human assistant. He had to undergo physiotherapy at his house under the guidance of physiotherapist who charged Rs.250/- per session thus charged for 15 days Rs.3,750/-. He is spending Rs.2000/- per month for human assistance by employing a boy to take care of his needs and be with him to go over as he could not walk independently and that since the date of accident, he spent Rs.1,11,400/- and in total estimated the expenses at Rs.3,30,000/- for human assistance life long and for periodical check up, the doctor is charging Rs.500/- and till date paid Rs.10,000/-. The complainant has to spend Rs.70,750/- to remove the steel rod which got implanted in his ankle. Hence the complaint for a direction to the opposite party to pay Rs.1,24,154.50 reimbursement amount with interest at 12% p.a. from the date of complaint till the date of realization together with Rs.3,30,000/- towards compensation for mental agony.
Opposite party’s Manager filed counter resisting the complaint. He admitted that the complainant travelled by erst while Indian Airlines presently known as Air India Limited by flight IC-935 on 10th December, 2007 from Chennai to Hyderabad in economy class under seat No.11c but not 18F and that during flight journey, commander of the Aircraft gives a warning signal as ‘FASTEN THE SEAT BELT’ when he anticipates some problem due to weather to safeguard passengers/crew on board. He denied the allegations of the complainant that the cabin crew was reluctant towards him and stated that in service industry, safe, polite and courteous passenger service is their ultimate goal and that he is not aware of the medical treatment of the complainant or that they received any intimation or any complaint having gone through the records available. The complainant filed a case in 2011 quoting an alleged accident that occurred in 2007 and submitted that as per condition of carriage for Passenger and Baggage Act under Article 17- Time Limitation on claims and Actions is as quoted hereunder:
‘Any right to damages shall be extinguished if an action is not brought within two years reckoned from the date of arrival at the destination or from the date on which the aircraft ought to have arrive or from the date on which the carriage stopped. The method of calculating the period of Limitation shall be determined by the law of the court seized of the case’.
Hence the complaint itself is not maintainable and barred by limitation and thus prayed for dismissal of the complaint.
The District Forum based on the evidence adduced i.e. Exs.A1 to A11 and the pleadings put forward, allowed the complaint in part directing the opposite party to pay Rs.1,13,000/- towards medical expenditure and Rs.1,50,000/- as compensation.
Aggrieved by the said order, the opposite party preferred this appeal on several grounds and mainly contended that the complaint is not maintainable as it is barred by limitation under the provisions of conditions carriage for Passenger and Baggage Act under Art. 17 and that during the flight journey commander of the Aircraft gives a warning signal to fasten the seat belt when he anticipates problems due to weather to safe guard the passengers/crew who are on board and that the Forum failed to assign reasons as to what sort of deficiency was there on the part of the staff of the Ops in the flight and that the crew of the OP did not show carelessness towards passengers and was not reluctant towards the complainant and that the Forum failed to understands that the complaint is filed with 310 days delay and thus prayed to allow the appeal and set aside the impugned order and consequently to dismiss the complaint.
Heard the counsel for the respondent and written arguments filed on behalf of the appellant.
Now the point for consideration is whether the order of the District Forum is vitiated either in law or on facts ?
There is no dispute that the on 10.12.2007 complainant boarded the flight bearing No. in IC No.935 flight of the opposite party from Chennai to Hyderabad in economic class and that the opposite party allotted seat No.18F to him. According to the complainant he fell down in the aircraft while he was coming out of the toilet on account of abnormal bump caused in the mid-air and received fracture to his ankle and that crew of the flight did not alert him nor taken care of him and that he had taken treatment for such injury. The contention of the Ops is that in view of provisions of conditions of Carriage for passenger and Baggage Act under Art. 17 the claim is barred by time as limitation is prescribed to bring the claim within two years reckoned from the date of arrival at destination or from the date on which the air craft ought to have arrived or from the date on which the carriage stopped. Even under C P Act the limitation is two years from the date of cause of action and if the complaint is filed beyond the said limitation a delay condition petition has to be filed U/s. 24-A of the C P Act. A perusal of the record submitted by the District Forum reveals that the complaint was filed on 06.11.2010, the date of journey/alleged injury was on 10.12.2007 and even accepting that he had taken physiotherapy till 25.01.2008, the last date of limitation would be 24.01.2010. But admittedly it was not so filed within limitation as the complaint was filed on 06.11.2010 which is beyond the statutory period of limitation under the provisions of C.P. Act. As seen from the record IA 37/2010 filed by the complainant to condone the delay of 310 days in representing the CCSR 3816/2010, of course, it was allowed on payment of cost of Rs.300/- to the credit of legal aid account. Another IA 91/2011 to condone delay of 310 days in filing the complaint was filed and the same was allowed after giving notice to the OP and receiving the counter. The said order has not been challenged by the opposite parties by filing revision. Irrespective of the provisions of Carriage for passenger and Baggage Act under Art. 17, if any, when such delay of 310 days was condoned and it has attained finality keeping in view of the provisions of Section 24-A of C P Act this Commission finds no substance in the contention of the appellants/Ops that the complaint is barred by time. when the aged person ie senior citizen is on board it was incumbent on the part of the crew of OP to render aid and assistance to him when there was abnormal bump in the mid-air by cautioning him and other passengers suitably but the OP did not place any material on record to say that there was no such abnormal bump during relevant time or that the passengers including the complainant were suitably cautioned. The medical evidence in the shape of documents filed by the complainant revealed that he received injury in the said context and had undertaken treatment by spending huge amounts and that he was subjected for pain, suffering and mental agony. None of the crew of aircraft filed evidence affidavit deposing that there was no such bump and in such circumstances no importance need to be given to the evidence affidavit of K.S. Reddy, Station Master of Air India as he had no personal knowledge about the events that had taken place in the aircraft and therefore the evidence affidavit of the complainant who is a natural witnesses has to be given weight it is much more so when it is supported by medical and other record. The District Forum considering the medical and incidental expenses for the treatment, operation and physiotherapy of the complainant, removal of steel rod got implanted in his ankle, awarded Rs.1,13,000/- medical expenses and Rs.1,50,000/- compensation for mental agony and hardship. AS regards, reimbursement of medical expenses the order is sustainable but Rs.1,50,000/- compensation is somewhat on higher side and therefore, the same is scaled down to Rs.one lakh only and thus the order under appeal is liable to be modified accordingly.
In the result, the appeal is disposed of modifying the order of the District Forum directing the opposite party to pay Rs. 1,13,000/- towards medical expenses and Rs. 1,00,000/- ( Rupees one lakh only ) towards compensation for mental agony and hardship. Rest of the order is set aside. Parties shall bear their own costs of the appeal. Time for compliance four weeks from the date of receipt of this order.
I/C PRESIDENT MEMBER
DATED : 25.11.2013.
