Hon’ble Mr. Haradhan Mukhopadhyay, President.
The concise fact of the case of the Complainant in few words is that the Complainants Subrata Kundu, Smt. Bulan Kundu and Manimoy Kundu are legal hires of deceased Swapan Kundu. O.P. No.1 the Proprietor, Katrionia Travels, is the Travels Agency having its business Office at Kolkata and O.P. No.2 the Proprietor, Flaps Aviation Private Limited is an Aviation Company being corporate Office at 214, 2nd Floor, D-21 Corporate Park, Dwarka, Sector-21, New Delhi-110077 and Registered Office at 250/15, Arya Nagar, Jhajjar, Haryana-124103 who provides Air ambulance facility Sri Swapan Kumar Kundu was admitted in critical condition to Dr. P.K. Saha Hospital Private Limited at Cooch Behar on 23.08.21. On 25.08.21 Shubham Hospital and Diagnostic Centre Pvt. Ltd., Cooch Behar conducted diagnosis of the patient that the patient was suffering from acute OIV kidney disease. After diagnosis the patient was discharged with a discharge summery on the same day with direction to transfer the patient to higher medical centre for further expert investigation. Accordingly, the Complainants decided to move the patient for further treatment to Manipal Hospital in Bangalore. As the condition of the patient was critical so he could not travel normally, hence the Complainant contacted to O.P. No.1 & 2 to arrange for an Air ambulance to air lift the patient from Cooch Behar to Bangalore. As per conversation with the O.P. No.1 and Complainant made payment of Rs.13,50,000/- through NEFT as expenses for arranging Air ambulance. The service of O.P. No.2 is to provide Air ambulance in collaboration with O.P. No.1 to the Complainant as per commitment. Suddenly, the condition of the patient became critical and as such he was not in a position to be Air lifted as per the schedule of flight dated 26.08.21 at 9.30 A.M. Then he was taken immediately to Neotia Getwel health Centre, Uttorayon, Siliguri in CCT Isolation unit. The Doctor advice the patient not to move any further. Unfortunately, the said patient Swapan Kumar Kundu expired on 30.08.21 due to Septic Shock on acute OIV Chronic kidney disease coupled with severe Sars Covid-19 at Neotia Getwel Health Centre. Since the doctor adviced not to move the patient any further, the Complainants opted for cancellation of Air ambulance to the O.P. No.2 through e-mail on 27.08.21 and sought for refund of entire amount of Rs.13,50,000/- which was paid by the Complainant. O.P. No.2 issued a direction through e-mail to check with addressee No.1 for refund or cancellation charges they might put in their policy. The O.P. No.1 issued a tax invoice bill being No. KT/717/2021-22 wherein Rs.13,50,000/- as charged from the Complainant by O.P. No.1 & 2 without providing any service to the Complainants was mentioned. On 08.10.21 the Complainant sent a legal notice through Mr. Sontosh Kr. Sah Advocate for the Complainant by speed post to the O.Ps for refund of Rs.13,50,000/-. Despite service of the said notice O.P. No.1 remained silent but O.P. No.2 diverted the responsibility towards O.P. No.1. The aforesaid activities of the OP caused deficiency in service and negligence as well as unfair trade practices for which the Complainants sustained mental pain and agony alongwith harassment. The Complainant therefore prayed for an award for refund of Rs.13,50,000/-, Rs.1,50,000/- towards mental pain and agony and deficiency in service and Rs.20,000/- towards litigation cost against the O.Ps.
The O.P. No.1 initially contested the case by filing written version but subsequently preferred not to contest the case and accordingly as per order No.08 dated 20.05.2022 the case was decided to be heard ex-parte against the O.P. No.1.
The O.P. No.2 contested the case by filing written version wherein they denied the major allegation against them. The positive defence case of O.P. No.2 in brief is that the Proprietor Flaps Aviation Pvt. Ltd is a company and has no Proprietor. Therefore they are wrongly made party to this case. Since concerned person allegedly could not be Air lifted by the schedule time the Complainants have wrongly filed this complaint against the OP on account of alleged delay in providing the Air lifted services. No promises or assurance of any kind was made by the O.P. No.2 to the Complainants. There was no interaction whatsoever between the Complainants and the O.P. No.2. No link whatsoever has been established by the Complainants with the O.P. No.2. There was no cause of action whatsoever against the O.P. No.2. The O.P. No.2 did not operate the services as per the terms and conditions alleged in the complainants. It is the Complainants own case that their interaction were exclusively against O.P. No.1. Even the alleged invoice annexed to the complaint appears to have been raised exclusively by O.P. No.1. There is no case whatsoever made out against O.P. No.2. So there is no cause of action or privity of contract against the O.P. No.2. Even if assuming that the Complainant attempted to avail the service of O.P. No.2 indirectly through O.P.No.1, the terms and conditions of service of the O.P. No.2 are available on the O.P. No.2’s website for the public at large and the same is self explanatory. As per the said terms and conditions no amount is payable by the O.P. No.2 to the Complainant. The O.P. No.2 is not a service provider to the Complainant and as such the complaint is not maintainable. There is nothing on record to suggest any kind of link between the Complainants and O.P. No.2. No commitment was made by the O.P. No.2 to the Complainants. The emails sent by the Complainants are misconceived, perverse and irrelevant. All such emails have been duly replied to by the O.P. No.2. The O.P. No.2 is not aware of any such tax invoice bill raised against O.P. No.1. The O.P. No.2 has replied to the legal notice sent by the Complainants. The complaint is liable to be dismissed against the O.P. No.2. The O.P. No.1 decided not to contest the case and as such it was heard ex-parte against O.P. No.1.
The reciprocal case of the parties vis-à-vis the evidence in the case record and the argument advanced by Ld. Advocate for the Complainant and the O.P. No.2, led this Commission to ascertain the following points for proper adjudication of this case.
Points for determination
- Whether there is any cause of action and the case is bad for misjoinder of parties?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The present point relates to ascertainment as to whether there is any cause of action or the case is bad for misjoinder of parties.
It is evident from the case record that the O.P. No.1 preferred not to contest the case despite initially appearing and filing written version. In fact the defence case stated in the written version of the O.P. No.1 remains unproved and as such it has got no relevance in raising any defence against the allegation of the Complainants against the O.P. No.1.
However the O.P. No.2 raised these two points. After perusing the entire case and evidence on record as well as the argument advanced by the Ld. Advocate for the parties it is crystal clear that O.P. No.2 through their legal notice stated that attempts were taken to sent the Air ambulance but they did not succeed due to the trouble in ATC.
In fact no documents could be filed by the O.P. No.2 in the regard to substantiate that there was any correspondence with the ATC about the sending of Air ambulance by the O.P. No.2 to the address of the Complainant or the nearest air traffic like Bagdogra air traffic. So unless there had been contact whatsoever either between the Complainants and the O.P. No.2 or between the O.P. No.1 and O.P. No.2, the O.P. No.2 would not have taken such alleged steps. Thus the O.P. No.2 acted on behalf of the O.P. No.1 through which the Complainants wanted to provide medical treatment to the patient through the Air ambulance of O.P. No.2. Accordingly there is a close link between O.P. No.1 & 2 against whom the Complainants raised their grievance. In view of the said pleadings as well as evidence on record the Commission comes to the conclusion that there is cause of action to file the present case and the O.P. No.2 is a proper and necessary party.
Point No.1 is accordingly decided in favour of the Complainants.
Point Nos.2 & 4.
Both the points are very closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion.
The Complainants in order to substantiate the case adduced both oral and documentary evidence. Annexure-A is the discharged summery of the patient Swapan Kumar Kundu for whom the Air ambulance was booked. As per Annexure-A the said patient Swapan Kumar Kundu appears to have been medically treated at Shubham Hospital and Diagnostic Centre Pvt. Ltd wherein the patient was advised as transfer to higher centre on 25.08.21.
As a chain of document over the incident the Complainants proved Annexure-2 wherein it transpires that the patient was admitted at isolation unit.
The document further discloses that in order to provide better treatment at higher centre the Complainants contacted with the Air ambulance Agency through Ketrionia Travels being O.P. No.1 as per Annexure-4. The said Annexure-4 being a tax invoice issued by Ketrionia Travels dated 29.09.21 wherein corporate flight for Aircraft King C90 A/B from Cooch Behar to Bangalore from 26.08.21 to 28.08.21 was booked for a total sum of Rs.13,50,000/-. It is important to consider that the Complainants booked the said flight immediately on 26.08.21 after the date of discharge.
It is the specific case of the Complainants that since the patient Swapan Kumar Kundu was not in a position to be moved as per advice of the concerned doctor so he was immediately shifted to Neotia Getwel health Centre, Uttorayon, Siliguri wherein the patient expired on 30.08.21 at 9.30 A.M. due to Kidney decease and Covid-19.
Ld. Advocate for the Complainants rightly argued that the Complainants had no option to avail proper medical treatment due to the extreme critical condition of the patient and as such they were forced to admit the patient into the nearest Neotia Getwel Hospital at Siliguri.
The case record shows that the O.P. No.2 could not file any document to show that they took proper attempt to provide Air ambulance facility to the Complainants. After close scrutiny of the entire case record and the document filed by the parties there is nothing to show that O.Ps made any arrangement for the said Air ambulance.
In fact no Air ambulance was actually sent by either O.P. No.1 or O.P. No.2 at Bagdogra Airport or any nearest Airport even at Cooch Behar. There is also nothing to show that the ATC informed to O.P. No.1 or O.P. No.2 that the said Air ambulance was cancelled or the weather was not suitable/ favourable for the concerned flight.
The O.P. No.2 also could not file any documents to show that they incurred any expenses for running the said Air ambulance or that they paid any money to the ATC against the running of the said Air ambulance.
Even if for the sake of argument it is presumed that the O.P. No.2 took attempt for running said Air ambulance yet it cannot be a game for earning money by forfeiting the entire sum of Rs.13,50,000/- paid by the Complainants against which they could not avail any services.
Regard being also had to the fact that the Complainants were forced to un-avail the service of the OP due to situation beyond their control or due to supervening impossibility.
Annexure-B is an important document wherefrom it is found that the Complainants raised their grievance to the ATC Govt. of India Ministry of Civil Aviation wherein the Government responded by an order that kindly dispose of the grievance at the earliest.
Ld. Advocate for the Complainants repeatedly argued that the Complainant paid money but could not avail any services.
The argument has reasonable force in as much as I have already discussed earlier that due to supervening impossibility the Complainants could not avail of any kind of service from the O.P. No.1 or O.P. No.2.
Ld. Defence Counsel argued that as per the terms and conditions the O.P. No.2 cannot be held responsible. There was no privity of contract between the Complainant and the O.P. No.2.
The Complainants categorically pleaded as to how the O.P. No.1 & 2 are jointly responsible. In fact the pleadings and reply to the notice by O.P. No.2 disclose that it is the business of O.P. No.2 to provide Air ambulance. O.P. No.1 contacted with the O.P. No.2 for providing Air ambulance. Therefore in the given facts and circumstances both the O.P. No.1 & 2 are jointly and severally liable to the Complainants for refunding the money advanced by the Complainants. It is duty of the OP to disclose the terms and conditions before the Commission but neither of the O.Ps produced the said terms and conditions regarding the running of the flight and return of money. In fact in all transport service, if any transport vehicle or flight is cancelled a certain portion of money is deducted as cancellation charge. Similarly in the common parlance the O.P. No.2 can deduct the reasonable amount of money for cancellation of the said Air ambulance.
Regard being also had to the documents filed by the O.P. No.2 wherefrom it is revealed that the tax invoice of different Aviations relate to the period 27.08.2021 on words. But the disputed schedule date was 26.08.2021. So there is no document to show that the O.P. No.2 booked flight on that date for the Complainant. That apart, the tax invoices of O.P. No.2 is less than Rs. 1 Lakh. Thus there is nothing to show that the entire money of Complainant should be forfeited.
Having considered the peculiar facts and circumstances of the case the O.P. No.2 is permitted to deduct 10% of the total charge of Rs.13,50,000/- as cancellation charge but they cannot forfeit the entire sum of Rs.13,50,000/- paid by the Complainants against booking of the said Air ambulance charge.
In the backdrop of the aforesaid discussion vis-à-vis the observation made herein above the Commission comes to the finding that O.P. No.1 & 2 are jointly and severally responsible to refund the Complainants the amount paid after deducting 10% of the said money.
The inaction on the part of the O.Ps in not redressing their grievance despite direction by the Ministry of Civil aviation tantamount to deficiency in service and mental pain and agony.
Point Nos. 2 & 3 are accordingly decided in favour of the Complainant.
In the result CC case No.61/2021 succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No.CC/61/2021 be and the same is allowed ex-parte against O.P. No.1 and on contest against O.P. No.2 with cost Rs.20,000/-
The Complainant do get an award for a sum of Rs.12,15,000/- (Rs.13,50,000/- -10% = Rs.1,35,000/-) towards refund of Air ambulance charge, Rs. 1 Lakh towards mental pain and agony against O.P. No.1 & 2 who are jointly and severally liable.
O.P. No.1 & 2 are directed to pay a sum of Rs.13,35,000/- (Rupees thirteen Lakhs thirty five thousand only) @ 50% each within the 30 days from the date of passing the order failing which the Complainant shall be at liberty to realise it from the O.Ps alongwith interest @ 10% from the date of passing order till the date of its realisation as per provisions of law by executing the award. CC/61/2021 be and the same is disposed of accordingly.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
