In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 159 / 2006 1) Sri Mahendra Kr. Sarda, 6B, Middleton Street, Kolkata-700071. ---------- Complainant ---Verses--- 1) The Manager, AIR INDIA, J.L. Nehru Road, Kolkata-700071. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattachatya, Member. Order No. 2 2 Dated 1 6 / 12 / 2 0 0 9 . Complainant Mahendra Kr. Sarda by filing a petition of complaint on 22.6.06 u/s 12 of the C.P. Act has prayed for issuing direction upon the o.p. viz. Manager, Air India for payment of Rs.1,51,627/- towards the treatment expenses in respect of Late Sarla Devi Sarda and compensation of Rs.2 lakhs and other reliefs as the forum may deem fit and proper. Fact of the case in short is that Sarla Devi Sarda, the mother of the complainant aged about 75 years, a wheel chair bound passenger was coming from London to Dumdum Airport by Air India flight no.150 accompanied by her grand son and nephew on 5.11.05. Before the journey from London Sandip Sarda, the grand son of Sarla Devi (now dead) requested the Air India authorities to allot a seat with sufficient leg space and close to the toilet for her old age and limited mobility capacity and Air India authorities assured full cooperation. But unfortunately it was found that instead of providing a seat with sufficient leg space and close to the toilet she was allotted a middle side seat with very minimum leg space extremely inconvenient for her movement and they also did not render any cooperation to that old infirm lady and accordingly, for want of space her legs seized due to meager blood supply to legs and she felt critically ill inside the aircraft. On arrival to Dumdum Airport it took couple of hours to get her down from the aircrafts and she was taken and admitted to Health Care and Research Centre Nursing Home by an ambulance and she was medically treated there for her cardio vascular accident which she suffered during her flight from London and even in spite of medical treatment she expired on 21.11.05 at the said nursing home due to the negligence of the Air India and so there is deficiency in service on the part of the o.p. and as such, complainant has filed this case with the aforesaid prayer. O.p. has contested this case by filing a w/v on 19.3.07 contending interalia that there is no deficiency of service on the part of the o.p., that the petition of complaint is thoroughly misconceived, speculative and harassive and it is liable to be dismissed. Their specific case is that for the interest of the flight and passengers safety, the emergency exist row seats are not allotted to infirm and wheelchair passengers. As Sarla Devi was extremely fat lady one aisle seat viz no.19G was allotted to her, but for a lack of movement she got fixed to the seat and could not get free from the seat on her row. After reaching the flight at Kolkata she was off loaded with the help of others by the sincere effort. She was admitted to the nursing home, but she died after 16 days from the date of journey. There is provision to provide additional seat by paying additional charges to the bulky passengers, but complainant or the escorts of Sarla Devi did not make any such request to the Air India authorities. When the doctor after the investigation came to the opinion that she died out of cerebro vascular stroke during transit from London to Kolkata then in that event it can be very reasonable to presume that she was not physically fit when she boarded journey at London for Kolkata. So, the doctor’s certificate does not show that there was any deficiency of service on the part of the o.p. and accordingly, they are not guilty of deficiency of service and as such, the case should be dismissed. Decision with reasons : Accordingly to the complainant Sarla Devi was a passenger of Air India flight from London to Dumdum Airport bearing PNR no.24D9G/IP on 5.11.09 and she felt ill inside the aircraft and with the help of ambulance she was boarded down with much pain and strain and she was taken to Health Care Research Centre Nursing Home and after 16 days from the date of journey she died there by cerebro vascular stroke. It is the specific allegation of the complainant that they requested the Air India authorities before flight to provide her with a seat having sufficient leg space and close to the toilet because of her limited mobility capacity, but even in spite of such request and assurance from airport they provided a seat in the middle side with minimum leg space which caused extreme inconvenience to her and for such non cooperation by Air India flight her legs were seized, she felt critically ill and ultimately she died out of cerebro vascular stoke for the extreme negligence on the part of the Air India authorities. On the other hand, it is the specific case of the Air India authorities that there is no deficiency of service on their part because at the time of boarding into the aircraft at London she was ill and medical certificate does not support the cause of death for in sufficient leg space and her medical condition was suppressed and does not at all true that the cause of death due to cerebro vascular stroke in transit from London to Kolkata. And as she was extremely a fat woman escorts could request for additional seat which could be provided to her by the Air India authorities. But instead of doing so, she booked only one seat and she died a natural death not due to the negligence on the part of the Air India authorities. We have perused the annexures viz. air ticket of Sarla Devi Sarda now dead. Admittedly she was an old woman of 75 years and was an extremely fat woman suffering from obesity. It is the allegation of the complainant that at the time of boarding from London she was normal and as she was an extremely fat woman the aircraft authority did not provide her double seat. It appears from annex-G that when she landed at Dumdum Airport from London her condition was very much critical and on examination and clinical investigation it was found that she was attacked with cerebro vascular stroke. It is the allegation of the complainant that she developed cerebro vascular stoke during the transit from London to Kolkata and she was accordingly, admitted to ICCU of nursing home in Kolkata. We have also perused the prescription annex-H and the death report showing that she died on 21.11.05 at Health Care and Research centre. Complainant with respect to the cause of death of Sarla Devi as available from the doctor’s report has drawn out attention to a decision reported in II (2008) CPJ 136 (NC). In view of this position and particularly assigning reasons and counter reasons by both the parties involving the question of deficiency of service of the airport authority. Let us now consider some important points. As we have mentioned earlier that she was an old lady of 75 suffering from obesity, common prudence demands that her previous medical report, case history, clinical test reports are required that the cause of her death there cerebro vascular stroke accelerated and accentuated during the transit from London to Kolkata and that too was due the deficiency of service of Air India authority. The complainant has not filed any such medical papers previous to her death when she was in Kolkata. In order to measure the intensity and gravity of her illness the case history of the patient namely here Sarla Devi is of high important which the complainant ought to have filed, but they did not file the same. This being the position, it is not out of context here to mention that an adverse presumption u/s 114 (g) of the Indian Evidence Act can be drawn against the complainant. Further in order to ascertain and establish the allegation the complainant ought to have filed the medical papers particularly the certificate of doctor of London about he fitness of Sarla Devi that at the relevant time her health condition was permissive to take such a long journey by air from London to Kolkata. We failed to understand and also failed to decipher any meaning that from the doctor’s certificate it indicates that her condition was improving but what was improving is not mentioned in the certificate. Further we do not find any scrap of paper that before boarding at London her escort or she herself gave any declaration at the check in point that she was ill. Admittedly, she was suffering from obesity and a seat provided to a normal person is sufficient for her. It was not unknown to the complainant and accordingly was it not his responsibility to book an additional seat for Sarla Devi for her proper accommodation. The doctor who issued certificate is simply an MBBS doctor. He is not a cardiologist and so his opinion not being a cardiologist that Sarla Devi died out of cerebro vascular stroke due to stoppage of blood circulation of legs is to be taken with a grain of salt. It can be said with a reasonable certainty if there was thrombosis of her legs due to insufficient leg space as alleged, in that event her lungs must have been affected which could be evident from the P.M. report, but her P.M. report has not been submitted by the complainant. Further before boarding in the aircraft neither the complainant nor her escort gave any declaration regarding her cardiological problem or any kind of illness. She dies after 16 days from the date of boarding to the date of death at the nursing home. This long gap of time between transit in aircraft and death at the nursing home simply highlights to the fact which the common prudence shows that there was no casual connection between her death and deficiency of service of the o.p. It is very unfortunate that an old woman died at the nursing home after 16 days of the flight from London to Kolkata and we have every sympathy for that. But in absence of any cancel far to speak of direct connection of her death involving any deficiency of service of the o.p. It is also equally unfair and unjust to hold them responsible for the sad demise of that old woman. Law not only demands justice, but the justice must be equitable justice. So in order to establish equitable justice we cannot held responsible the o.p. for deficiency of service in this regard and only for that consideration they should not be held liable for the death of that old woman. Having due regard to the circumstances and in view of our discussion as made above following order is passed. Hence, Ordered, That the case is dismissed on contest and considering the circumstances no order is passed as to cost. Fees paid are correct. Supply copy of this order to the parties on payment of prescribed fees. ____Sd-______ ______Sd-_______ MEMBER PRESIDENT | 
