JUSTIN AUSTIN Vs. LANKAN AIRLINES

JUDGEMENT

(1.) Whether the complaint filed is entertainable by this Commission on the ground that cause of action arose not within the territorial jurisdiction of this Commission is the question that is to be answered by us. It is the case of both parties that complainant sustained injuries (opposite party is not admitting the assertion of complainant that he sustained all the injuries alleged to have been sustained by him in the complaint) and there is dispute between the parties regarding the manner of sustaining of injuries by the complainant. According to the complainant injuries were sustained by him "while complainant was stapping down to the airport floor from the air craft at the time of disembarkation at Colombo Airport, due to the rush, somebody had pushed him from behind and in consequence of that he fell down flat on face on the steps of gangway attached to the air craft and sustained serious injuries such as multiple injuries on face, fracture of nasal bone and damage to the teeth". That allegation is refuted by the opposite party and his version as to how the complainant sustained injury is that while disembarking at Colombo to catch the flight to Thiruvananthapuram tripped and fell down from the ladder resulting in wounds on his face". We are not here called upon at this stage to decide which version either complainant's version or opposite party's version regarding sustaining of injuries is true and we are not concerned with the question were what the injuries sustained by the complainant.

(2.) On the basis of the fact that the complainant sustained injuries at Colombo we entertain no doubt to hold that the cause of action arose not within the territorial jurisdiction of this Commission. From the assertion made in the complaint and objection filed by the opposite party making a prayer to decide the question of maintainability of the complaint as a preliminary issue it is clear that complainant travelled from Muscat to Trivandrum via Colombo in the flight operated by the opposite parties on 8.12.2000.

(3.) Opposing the application to decide the question of maintainability and also asserting the complaint is maintainable complainant contended that though the cause of action arose not within the territorial jurisdiction of this Commission the complaint is entertainable by this Commission on the ground that Rule 29 (1) of the 2nd Schedule of Carriage by Air Act conferred right on him to action bring for damage before the Court having jurisdiction at the place of destination Rule 29 (1) reads thus : "29 (1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the high contracting parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has on establishment by which the contract has been made or before the Court having jurisdiction at the place of destination. (2) Question of procedure shall be governed by the law of the Court seized of the case. "