BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 16/02/2011

Date of Order : 31/07/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 93/2011

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the case leading to this complaint are :-

On 25-04-2010, the complainant along with his wife and children boarded in the opposite party's flight from Dubai to Kochi. While airborne, the aircraft all of a sudden fell down sharply from 20000 feet height to 5000 feet due to air turbulence. No advance information was given to the passengers for fastening seat belt in time. Following the impact, the complainant sustained right clavicle fracture. It is sufficiently known that the pilot of an aircraft can sense regarding air turbulence at least 100 meters in advance. The opposite party did not provide medical service to the complainant and his family at Kochi Airport. The complainant of his own moved to a hospital in Chalakkudy. The complainant was directed to take rest for 4 months. The complainant is drawing a salary of 18,000/- in a week. The complainant caused to issue a lawyer notice to the opposite party on 07-05-2010, but nothing happened. The complainant is entitled to get a total damage of Rs. 4,89,864/- with costs of the proceedings. This complaint hence.

2. The version of the opposite party is as follows :-

The complainant and his family travelled in the flight from Dubai to Kochi on 24-04-2010. En-route to Cochin due to bad weather, which is totally beyond the control of the opposite party, the aircraft flew into turbulence as a result of which the complainant suffered some injury, as he did not adhere to the warning to keep his seat belt fastened. The skill of the pilots prevented any untoward damage or disaster. On arrival at Kochi International Airport, all passengers were offered medical facilities and were taken to the nearby hospitals for treatment, if any. The complainant and his family opted not to avail the medical facility and decided to go home and be treated at his local hospital. The complainant has not produced any evidence before the Forum to prove the loss of earnings as claimed by the complainant. The opposite party duly sent reply to the lawyer notice of the complainant expressing their willingness to reimburse medical expenses. The complainant has not submitted any more details with the opposite party. The complainant has no cause of action against the opposite party. The complaint deserves dismissal.

3. The Power of Attorney of the complainant was examined as PW1 and Exts. A1 to A16 were marked on his side. Neither oral nor documentary evidence was adduced by the opposite party. Heard the learned counsel for the parties.

4. The questions that arose for consideration are as follows :-

1. Whether the complainant is entitled to get total damages of Rs. 4,89,864/- from the opposite party or not?

2. Whether the opposite party is liable to pay costs of the proceedings to the complainant?

5. Point No. i. :- The following issues are undisputed by the parties :

1. The complainant and his family travelled in the flight of the opposite party on 25-04-2010 from Dubai to Kochi.

2. While airborne the aircraft lost height due to air turbulence.

3. Due to the impact of the fall the complainant sustained fracture right clavicle.

4. The complainant was taken to St. James Hospital, Chalakkudy evidenced by Ext. A2 certificate.

5. The complainant caused Ext. A4 lawyer notice to the opposite party demanding compensation for the injury sustained and for the inconveniences suffered.

6. In reply to Ext. A4 lawyer notice, the opposite party issued Ext. A2 letter dated 13-05-2010 requesting to forward the details of the accident.

7. On receipt of the documents, the opposite party caused Ext. A8 notice dated 10-06-2010 expressing their willingness to meet the actual loss sustained by the complainant.

6. The opposite party vehemently and vigorously contended that the incident occurred due to the acts beyond their control and the pilots could prevent further disaster or damage with their expertise alone. According to the opposite party, the injury has been caused to the complainant since he failed to use the seat belt at the time of the incident. It is pertinent to note that nothing is on record before the Forum to show that the unfortunate incident happened due to vis-major. The opposite party ought to have produced the data from the Cockpit voice recorder or flight data recorder in the black box to substantiate the above contentions. The opposite party being a reputed aircraft operating company would have necessarily conducted a thorough inquiry about the unfortunate incident. None of the above documents did see light of the day in this Forum, which is conspicuous. The opposite party failed to prove that the incident occurred due to vis-major. It is pertinent to note that neither the complainant nor the opposite party has anything to say about insurance coverage. Since there is no evidence to corroborate the same, we leave it at that.

7. Rule 17 (1) of the 3^rd schedule to The Carriage By Air Act, 1972 (As amended by the Carriage By Air (Amendment) Act, 2009) reads as follows :-

“The carrier shall be liable for damages sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

Perspective to the claim for damages, our views are drawn to the contemplated and accepted Rule 21 (1) of the above Rule. We have no hesitation to award the damages for Rs. 1 lakh, considering the claim that has not been controverted.

8. The opposite party as a gesture of goodwill stated in Ext. A8 notice as follows :

“As discussed in the telephonic conversation with you (Mr. Arun Kumar) if you could give us details of his salary, or the costs incurred since his holiday obviously has been curtailed, we could consider some of those expenses.

Our clients however would like to settle any of Mr. Pauls expenses related to this incident at the earliest. They have asked us to try and bring this matter to a satisfactory end considering that Mr. Paul & family are their passengers and would like to maintain good customer relations.

We also refer to the telephonic conversations that we have exchanged on the 7^th and 9^th of June 2010 with Mr. Arun Kumar, wherein we requested you to give us better details of any actual loss suffered so that we may process them in accordance to the liability.

If you would like to contact us you may do so, on telephone no: 022-23512341, and ask for Mr. Vikram Philip or Mr. Kawashaw Jagose.”

The complainant has produced documents called for by the opposite party in Ext. A8 in this Forum.

9. As per Ext. A2 medical certificate, the complainant was advised to take rest for 6 weeks with effect from the date of accident ie. on 25-04-2010. Exts. A12 and A13 goes to show that the complainant is working in Ireland and he is drawing a salary of 330.60 per week. He is entitled to get the salary for 6 weeks in tune with Ext. A13, 330.60 Irish Pound (Rs. 18,000/-) per week for 6 weeks amounting to a total of Rs. 1,08,000/-. The complainant is also entitled to get the expenses incurred by him as per Ext. A15 at the hospital which comes to Rs. 764/-.

10. In the result, we partly allow the complaint and direct as follows :-

1. The opposite party shall pay Rs. 1,00,000/- (Rupees one lakh only) to the complainant towards damages.

2. The opposite party shall also pay Rs. 1,08,000/- to the complainant towards loss of his salary for six weeks.

3. The opposite party shall further pay a sum of Rs. 764/- being the treatment expenses incurred by the complainant.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amounts shall carry interest @ 12% p.a. till realisation.

Pronounced in the open Forum on this the 31^st day of July 2012

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

=========