BRITISH AIRWAYS Vs. KALLOL BASU

JUDGEMENT

(1.) This appeal has been filed by the appellant against the order dated 27.05.2010 passed by the State Consumer Disputes Redressal Commission, Rajasthan (in short, 'the State Commission') in S.C. Case No. SC/37/0 of 2006 - Mr. Kallol Basu v. British Airways & Ors. by which, complaint was complaint was allowed.

(2.) Brief facts of the case are that Complainants/respondent no.1 while deplaning from the OP No. 1/Appellant aircraft through a very old, wet, dilapidated, wobbly, unstable and malfunctioning staircase, as was provided by British Airways, had a terrible and nasty fall entailing grave injury and instant and profuse bleeding through his nose. Having seen that, one senior stewardess arranged to provide some tissue paper for wiping blood, but no medical assistance whatsoever was provided. One co-passenger in the name of Mr. Anindya Chatterjee helped the complainant to undergo/complete formalities of immigration, baggage handling and customs and no help and assistance could be had from the OP Nos. 1 to 9 or anyone on their behalf. Subsequently, with much difficulty, lot of pain and grave distress the complainant reached home and subsequently with increasing physical pain, distress and discomfort, getting unbearable by hours, the complainant had to be investigated by one eye-surgeon and one neuro-surgeon within few hours of the incident and on diagnosis it was detected that the complainant had fracture in the skull and internal bleeding in the brain resulting in inter alia major swollenness on the right side of the face, right eye and forehead, which in other words can be described as a serious case of intra-cranial subdural haematoma. Resultantly the complainant was required to be hospitalized and after three days, was discharged and could resume duties only after eight days from the day of occurrence. The complainant was thereafter advised complete restraint from travelling and driving for a period of one month from the date of the incident and thus the complainant was compelled to commute between home and office, affecting his performance of work/other activities. Pointing out that by virtue of his job conditions the complainant was required to undertake extensive travel involving visits to plants, worksites and construction hubs, the complainant finally lost his job for such constraints and on 18.5.06 the complainant filed a written complaint with OP No. 9 detailing the incident and misery/grief/distress resulting therefrom claiming compensation on account of irreparable loss suffered through mental trauma, grave physical injury and consequential physical distress and other mischief. The Ops admitting the incident asked him to indicate the quantum of financial loss suffered by the complainant, but after compliance of that, the Ops appeared to have not taken any effective steps though the Ops referred the complainant's case to its insurance arm in United Kingdom. Alleging deficiency on the part of OPs, complainant filed complaint before State Commission.

(3.) OP No. 1 to 9 resisted complaint, denied allegations made in the complaint and submitted that complainant had no cause of action against British Airways and the complainant did not disclose any cause of action. Denying that there was any deficiency of service on its part it was contended that on the complainant's sole and exclusive cause of action as complained of, remedy lay under provisions of the Carriage by Air Act 1972 and the quantum of liability, if any, would be required to be determined in accordance with the provisions of Carriage by Air Act, 1972. Stating that the purported medical reports disclosed and sought to be relied upon by the complainant were suspect documents, authenticity of which was denied and disputed, the OP No. 1 claimed that the complainant had suffered no injury or damage and thus there was no deficiency of service on part of British Airways. Contending that the alleged injuries and mental trauma supposedly suffered by the complainant were on account of his own negligence, laxity and carelessness as he was disembarking from Flight BA147 at Kolkata on 14.5.06, it was pointed out that no other passenger or crew on the flight suffered similar fall and British Airways was not responsible at all and cannot be held liable under Carriage by Air Act or under any law currently in force. Referring to Section 17 of the Carriage by Air Act, 1972 it was denied that the complainant had suffered by accident and the complainant not having pleaded any allegations against OP Nos. 2 to 9, those Ops should be dismissed from the action of the given complaint. Arguing that the Carriage by Air Act 1972 does not incorporate or allow a cause of action by a passenger against a carriage for deficiency/negligence etc. it was stated that the answering OP had no deficiency or negligence on the complainant. Pointing out that British Airways had not organized alleged wobbly and unstable staircase at the Kolkata Airport on 14.5.06 for the said flight, it was submitted that firstly the staircase was provided at the sole control/discretion of either Indian Airlines or Airport Authority of India and secondly, it was denied that the staircase was wet or dilapidated. Stating that any complaint relating to staircase would require Indian Airlines or Airport Authority of India as necessary parties to be impleaded, attention was drawn to British Airways flight crew's assistance provided to the complainant and alleged investigation and diagnosis was stated to have no relevance to the instant proceeding. Denying any deficiency on its part, prayed for dismissal of complaint. Learned State Commission after hearing parties allowed complaint and directed OP No. 1 to 9 to pay total Rs. 22,41,560/- against which, this appeal has been filed along with application for condonation of delay.