w w w . L a w y e r S e r v i c e s . i n



Brinda Sreejith & Others v/s The Managing Director, Air India Express, Mumbai & Others

    C.C. No. 39 of 2011

    Decided On, 30 November 2021

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, THE HONOURABLE MR. JUSTICE K. SURENDRA MOHAN
    By, PRESIDENT
    By, THE HONOURABLE MR. T.S.P. MOOSATH
    By, JUDICIAL MEMBER
    By, THE HONOURABLE MR. R. RANJIT
    By, MEMBER
    By, THE HONOURABLE MRS. A. BEENAKUMARI
    By, MEMBER & THE HONOURABLE MR. K.R. RADHAKRISHNAN
    By, MEMBER

    For the Complainants: Jyothis Manu, P. Jayaprakash, Advocates. For the Opposite Parties: M/s. Menon & Pai, Advocates.



Judgment Text

R. Ranjit, Member

Complaint filed under Sec. 17 of the Consumer Protection Act. The averments contained in the complaint, in brief, are as follows: The 1st complainant is the wife of late Sreejith Balakrishnan and 2nd & 3rd complainants are their minor children. The complainants and the mother of late Sreejith Balakrishnan are the only legal heirs of the deceased. The mother of the deceased Sreejith Balakrishnan, one of the legal heirs, who was not ready to co-operate with the complainants, is made the 4th opposite party in the complaint. Late Sreejith Balakrishnan met with a premature death on 14.07.2010 at Dr. Balabhai Nanavathi Hospital, Mumbai following chest pain while on board the Air India Express on 10.07.2010 which was flying from Calicut airport to Dubai.

2. Late Sreejith Balakrishnan was on leave from work at Dubai and scheduled to return to Dubai on 10.07.2010 from Calicut airport on the Air India flight. A few minutes after the flight took off from the Karipur airport, late Sreejith suddenly developed chest pain and suffocation at about 10.30 pm and he collapsed in the plane seat with stiff legs and froth oozing out of his mouth. According to the complainants, when he felt irritated he had informed the air-hostess of his discomforts, but she did not respond. Immediately he collapsed. The co-passengers reported the incident to the crew on board and asked for emergency landing and for rendering immediate medical treatment to the patient. One of the passengers who was trained to deliver first aid treatment revealed his identity and informed his willingness to give first aid to the patient, but the crew adamantly restrained him saying that it was only a case of epilepsy and he would automatically recover after some time. The condition of the patient became worse and on seeing the protests by the co-passengers against the crew, the Airline staff were forced to cause emergency landing of the flight at Mumbai airport by 12.35 am on 11.07.2010, nearly two hours after the collapse of the deceased. From the airport he was taken to the hospital and admitted there only by 2.27 am, by which time the patient was almost paralyzed and his condition had deteriorated and did not respond to any expert treatment. Ultimately, he was declared dead at 10.05 am on 14.07.2010 by the hospital authorities. The air crew acted negligently and defiantly and mistook the condition of the passenger as epilepsy. Even though a co-passenger who was trained and competent to give first aid volunteered himself to do so, he was prevented by the crew from rendering any care and attention to the ill-fated person. Thus, there was dereliction of duty and negligence on the part of opposite parties 1 & 3, Air India in providing adequate first aid and facilitating emergency treatment to the passenger who suffered a heart attack on board the plane. There was inordinate delay in rendering medical aid and expert treatment on the part of Air India and Mumbai Airport Authorities. Mumbai Airport authorities took about two hours to admit the collapsed person to the nearby Nanavathi Hospital, that too by hiring an ambulance from outside. That in the normal course it would take only 15 to 20 minutes of journey by vehicle from airport to hospital. The consultant neurologist at the Nanavathi hospital also reported to the relatives that, had the patient been brought half an hour before, his life could have been saved. The inordinate and unexplained delay of nearly four hours on the part of Air India and Airport Authorities in taking the highly critical patient from the airport to the hospital had aggravated the neurological and physical condition of the 1st complainant’s husband resulting in his untimely and tragic death on the fourth day of the incident. The Air India and Airport authorities carelessly and negligently kept the complainants and other relatives of the patient in dark about the serious mishap caused to the complainant’s husband on board the flight until they enquired about his whereabouts. Though late Sreejith Balakrishnan’s travel documents very clearly revealed his identity and clear address of his house with sufficient contact numbers, none of the relatives were contacted or intimated in time about his critical condition or admission to the hospital. The deceased Sreejith was a hale and healthy person and had no previous record or history of any diseases like blood pressure, diabetic complaints, heart ailments or anything like that. The complainants strongly believe that it might have been caused due to the economy class syndrome which may affect certain passengers on board, all on a sudden. The symptoms, appeared immediately after the flight took off from Karipur International Airport, at about 10.30 pm and the patient was reported to have collapsed in the flight. For about two and half hours, i.e; till 1.00 am he was kept in the plane without any first aid, care or attention. Even though the flight landed at about 1.00 am, till 2.30 am he was kept at the Mumbai airport without any medical aid or expert treatment. No first aid was rendered by the airport authorities till he was admitted at Nanavathi Hospital. Hence for nearly 4 hours the patient was left without any proper medical care and attention by the opposite parties. The death was caused only due to the wilful negligence, dereliction and deficiency of service on the part of the Air India crew on board and the officers of Mumbai International Airport Authority. Since the officers of Mumbai International airport were paid employees working under the Air India and Airport Authority of India, the Air India, Airport Authority of India and Govt. of India are all answerable and they are vicariously liable for the loss sustained by the passenger and thereby his legal heirs. Late Sreejith was employed in Dubai at Datel Systems Software FZLLC as network engineer and was drawing a salary of Rs. 1,65,000/- per month with free family accommodation and other benefits in addition. He used to save Rs. 1,25,000/- after all expenses. He was only 30 years old at the time of death. He was hale and healthy and was expected to work there for a span of more than 25 years with all luxury and higher salary and other benefits. He was the sole earning member of the family consisting of wife and two infants. Due to the sudden untimely and tragic death of Sreejith the complainants’ family has lost its sole source of income, causing irreparable loss to the estate. Complainant’s family has sustained an estimated lumpsum loss of Rs. 50,00,000/- to the estate due to the accidental sad demise of Sreejith. The complainants and Sreejith’s mother are the only legal heirs to the estate of late Sreejith Balakrishnan. The death of Sreejith was caused solely due to the sheer, willful and irresponsible, culpable negligence, deficiency in service and dereliction of duty on the part of the Air India Express crew on board and the officers on duty at Mumbai International Airport. Hence the Air India authorities, Airport Authority of India and Govt. of India are jointly and severally liable to compensate the legal heirs under the following heads. Loss of consortium Rs. 10 lakhs, loss of love and affection Rs. 15,00,000/-, loss of estate Rs. 50 lakhs, Total Rs. 75,00,000/-. Thus, the complainants claim a total compensation of Rs. 75,00,000/- from the opposite parties. The 1st complainant has no job or independent source of income. The 1st complainant’s late husband’s family is not ready to accommodate the complainants. The mother of the deceased who is arrayed as 4th opposite party is also a legal heir to the estate, to the extent of share of the total claim of Rs. 75,00,000/-. The complainants are jointly entitled to get 3/4th share of the total compensation i.e; Rs. 56,75,000/-.

3. On notice opposite parties entered appearance and filed version. Opposite parties 1 & 3 filed joint version raising the following contentions. Opposite parties 1 & 3 did everything in their capacity to save the 1st complainant’s husband. On 11.07.2010 at 12.05 am the duty manager of the 1st opposite party was informed by phone of the diversion of the flight number IX 343 to BOM airport due to medical emergency. The duty manager of the 1st opposite party immediately informed the arrival officer at the Mumbai International Airport to make all arrangements for the passengers on arrival of the flight. The Arrival Officer immediately organized Airport Authority medical officer, ambulance lift, medical ambulance, Commercial assistants etc. before the arrival of air crew at Mumbai airport. The flight in which the 1st complainant’s husband had travelled made an emergency landing at 12.35 am. Immediately on arrival of the flight, the arrival officer along with paramedical staff rushed to the aircraft. The Arrival Officer and medical officer found the passenger on the seat with stiff legs, clenched teeth and froth oozing out of his mouth. The passenger was given oxygen on board the aircraft after the patient was pulled out from his seat and made to lie down on 3 seats after lifting the hand rests. This was done as it was difficult to put him on wheel chair or stretcher because of his weight and narrow aisle. Immediately a folding stretcher was brought to carry the ailing passenger. The medical staff along with the help of commercial assistants and Arrival Officer shifted the ailing passenger to the waiting ambulift. With the help of the Ambulift the passenger was brought down from the aircraft and transferred to the waiting medical ambulance. The doctor administered medicine and ECG was also taken. After initial medical aid and diagnosis the ambulance immediately left the airport at 1.30 am. The officials of the opposite parties were constantly trying to get in touch with the relatives of the ailing passenger before admitting him to the hospital. Finally the Arrival Officer of the 1st opposite party voluntarily signed the admission and authorization papers to carry out all relevant tests so as to ensure that all possible medical aid was provided to the patient without any delay. Thereafter the Arrival Officer got the passenger’s personal belongings from the cabin crew and from the Passport the address and age of the passenger was ascertained. The mobile phone could not be used as it was number locked. From the wallet an I.D card was found issued by subsidiary agency or Emirates Airlines at Dubai. The Arrival Officer immediately passed the ailing passenger’s I.D number and name to the Duty Manager to get in touch with the Emirate office at Dubai. The Duty Manager alternatively contacted the mobile numbers given in the PNR numbers which were unreachable. Thereafter a fax message was sent to Air India, Calicut and Dubai office at 4.55 a.m providing details of the flight diversion and hospitalization of the passenger. Due to the efforts of the Duty Manager and his staff a friend of the passenger in Dubai could be contacted. But he did not have the contact numbers of any of the relatives of the passenger at that time. Later the passenger’s friend intimated the opposite party the passenger’s father-in-law’s contact number at 10 a.m. Immediately he was contacted and informed of the condition of the ailing passenger. The relatives of the passenger who were in Mumbai reached Nanavati hospital around 12 a.m. Thereafter the passenger’s belongings were handed over to his brother Mr. Renjith Balakrishnan on 11.07.2010. The Duty Managers were in constant touch with the Nanavati Hospital to keep a check on the passenger’s medical condition. On 14.07.2010 on receiving information of the passenger’s sad demise and knowing about their difficulties in obtaining NOC from the local police station, the opposite parties immediately deputed two officers who were well acquainted with the local police and thorough with the municipal procedures. These officers were instrumental in helping the relatives to obtain local clearance for air transportation of the deceased passenger to Calicut. On immediate intimation of the chest pain of the deceased passenger the officials of the airlines both in the aircraft and on the ground worked sincerely and gave proper treatment to the deceased passenger. On seeing the adverse medical condition of the passenger in the flight the crew along with the captain were trying their level best to make an emergency landing to the nearby Mumbai airport. Permission is essential for a sudden emergency landing and they took all efforts to get proper clearance from the concerned air traffic controls. The airlines took emergency landing at Mumbai airport after getting permission from the air traffic controls and there was no dereliction of duty or negligence on the part of the opposite parties 1 & 3 in delivering adequate first aid. For issuance of visa to other countries the applicant should make a declaration stating his medical condition. The 1st opposite party issues tickets to the passengers on a bonafide belief that these conditions have been complied with. The opposite parties without having proper medical records of the passenger cannot be held responsible. Even if it is so, the opposite parties are not responsible for any eventuality which is beyond their control. According to the complainants the chest pain of the passenger started after take-off, in the mid-air. In these conditions the opposite parties tried their level best to make an emergency landing for the sake of the ailing passenger. Opposite parties had sincerely done everything within their capacity to save the life of the ailing passenger. All the efforts of the opposite parties were in vain. The passenger collapsed and later died. There was no negligence on the part of the crew on the airline and the ground staff. The compensation claimed by the complainants is very exorbitant and it is not backed by any logical quantification. The complainants are not entitled to any relief as prayed for. There was no deficiency of service or dereliction of duty so as to pay any compensation to the complainants as prayed for. The complainants are not entitled to any of the reliefs prayed for. Hence the complaint may be dismissed.

4. The 2nd opposite party filed version contending that the complaint was not maintainable as against the Airport Authority of India. The main function of Airport Authority of India is to create, upgrade, maintain and manage civil aviation infrastructure both on the ground and air space in the country. It includes construction, modification & management of passenger terminals, development and management of cargo terminals, development and maintenance of apron infrastructure including runways, parallel taxiways, apron etc., provision of communication, navigation and surveillance which includes provision of OVOR/DME, ILS, ATC radars, visual aids etc., provision of air traffic services, provision of passenger facilities and related amenities at its terminals thereby ensuring safe and secure operations of aircraft, passenger and cargo in the country. The allegation in the complaint is with regard to the negligence and dereliction of duty on the part of Air India Express crew on board and the officers of the Mumbai International Airport. Mumbai International Airport is not an airport under the control of Airport Authority of India. It is controlled by Mumbai International Airport Pvt. Ltd. The said fact was informed to the complainant vide reply notice dated 27.01.2011. The said Mumbai International Airport was not made a party in the complaint. Hence the complaint is bad for non-joinder of necessary party. According to the complainants a few minutes after the flight took off from the Karipur airport to Mumbai the patient suddenly developed chest pain and collapsed at 10.30 p.m in the plane. The flight made an emergency landing at Mumbai International Airport and from there the patient was taken to Dr. Balabhai Nanavati Hospital, Mumbai. No cause of action arose within the jurisdiction of this Commission. Even according to the complainants, the symptoms appeared only after the flight took off from the Calicut International Airport and by 10.30 p.mhe collapsed in the Air India Express Flight and thus the incident was not known to the authorities at Calicut International Airport during the relevant time. Hence Calicut International Airport authorities cannot be found fault with. Therefore Airport Authority of India is not liable to compensate the complainants. The crew of Air India Express are not permanent employees of Airport Authority of India. Moreover, the Mumbai International Airport is not an airport which is under the control of Airport Authority of India. Hence the Airport Authority of India would not be vicariously liable for the loss sustained to the passenger due to the alleged negligence of the crew of Air India Express. There is no negligence or deficiency of service on the part of Authorities of the Calicut International Airport at Karipur. No cause of action is made out in the complaint as against the 2nd opposite party. It is the responsibility of the concerned airlines to protect the interests of their passengers. The 2nd opposite party is in no way acquainted with the facts of the case and hence 2nd opposite party is an unnecessary party to the complaint. Complainants are not entitled to get any reliefs from the 2nd opposite party. 2ndopposite party is neither a necessary party nor a proper party in the case and hence complaint as against 2nd opposite party is liable to be dismissed.

5. Evidence in the case consists of oral testimony of 1st complainant as PW1. Witness of the complainant was examined as PW2. Exts. A1 to A28 were marked on the side of the complainant. Manager of the 2nd opposite party was examined as DW1. On the side of opposite parties 1 & 3, the 1st opposite party’s Manager was examined as DW2 and the Cabin Crew was examined as DW3. Exts.B1 to B3 were marked on the side of the opposite parties 1 & 3.

6. Heard the counsel on both sides. Based on the pleadings the following points arise for consideration.

i. Whether the complaint is maintainable as against the 2nd opposite party?

ii. Whether there is negligence or deficiency of service on the part of opposite parties 1 to 3?

iii. Whether the complainants and 4th opposite party legal heirs are entitled to get compensation from opposite parties 1 to 3? If so, what is the quantum?

7. Point (i): According to the complainant the death of the passenger was caused only due to the wilful negligence and dereliction of duty on the part of Air India crew on board and officers of Mumbai International Airport. The 2nd opposite party had taken a contention in the version that Mumbai airport is not an airport which is under the control of the Airport Authority of India. It is controlled by Mumbai International Airport Pvt. Ltd. Their specific case is that this fact was informed to the complainant vide reply dated 27.01.2011 to the notice under Sec. 80 of the CPC. But the said Mumbai International Airport is not made a party in the complaint. Hence the complaint is bad for non-joinder of necessary parties. The specific allegation of the complainant in the complaint is that there was inordinate delay in rendering medical aid and expert treatment on the part of Air India and Mumbai airport authorities. They further stated that the complainant’s husband had developed chest pain and other irritations which ultimately resulted in his collapse in the plane at 10.30 p.m, but they reported it to the concerned officers at Mumbai Airport at 12.05 am only and the flight made an emergency landing only at 12.35 am at Mumbai International Airport. That due to this culpable negligence and dereliction of duty on the part of Air India, Air India is liable to pay compensation for their negligence. They further contended that when the flight landed at the Mumbai Airport there was further delay of about 2 hours to admit the collapsed patient to the nearby hospital. They took the patient to the hospital by hiring an ambulance from outside. In normal course it was only a 15 to 20 minutes of journey by vehicle from the airport to the hospital. There is clear negligence and dereliction of duty on the part of Mumbai airport authorities also to take the patient to the hospital in time. The doctor at Nanavati Hospital had reported that had the patient been brought about half an hour before, his life could have been saved. From the above it can be seen that no cause of action is made out in the complaint as against the 2nd opposite party.

8. The learned counsel for the complainant contended that the complainants are not concerned about the Mumbai International Pvt. Ltd. because it was not on the request of either the deceased Sreejith or the complainants that the deceased Sreejith was taken to that airport, leaving his life at their mercy. The 2nd opposite party’s contention that Mumbai International Airport is not under their control is absolutely wrong. Introduction to the Airport Authority of India Act 1994 under the head ‘the statement of objects and reasons’ very specifically states that “Four International Airports namely Delhi, Mumbai, Madras and Calcutta were transferred to International Airport Authority of India with effect from 01.04.1972”. Sub Section (3)aa of Sec. 1 of the Act states that it applies to all private airports in so far as it relates to providing air traffic service, to issue directions under Sec. 37 to them for the purpose of Chapter VA. Sub section 2 of Sec. 12 of the Act under the head “Functions of the Authority”, which states that it shall be the duty of the Airport Authority, to provide air traffic services and air transport services at any airport and civil enclaves. It clearly shows that all air traffic services are operated under their guidance and control.

9. Perusing Airport Authority of India Act Chapter 1 sub clause (3) which states that the Act applies to all airports where air transport services are operated or are intended to be operated other than airports and air fields belonging to, or subject to the control of, any armed force of the union. But it may be noted that Sec. 3 aa states that it applies to all private airports in so far as it relates to providing air traffic service, to issue directions under Sec. 37 to them and for the purpose of chapter V A. The above section clarifies that Airport Authority of India has no jurisdiction over private airports other than to issue directions under Sec. 37 to them and for the purpose of Chapter V A. Section 37 A of Chapter V (A) states that “The Authority or any officer specifically authorized by it in this behalf may, from time to time, by order, issue directions, consistent with the provisions of the Aircraft Act 1934, and the rules made thereunder, with respect to any of the matters specified in clauses(f), (h), (i), (j), (k), (m), (p),(q) and (r)of sub section (2) of Sec. 5 of that Act, to any person or persons engaged in aircraft operations or using any airport, heliport, air strip or civil enclave, in any case where the authority or the officer is satisfied that in the interests of security of India or for securing the security of the aircraft, it is necessary to do so.

10. Admittedly, the instant case is not connected with the security of India or securing the security of aircrafts and hence it cannot be stated that the Airport Authority of India has jurisdiction or control over Mumbai International Airport in these matters. Mumbai International Airport is an independent airport which is controlled by Mumbai International Airport Private Ltd. and not by Airport Authority of India. The functions under Chapter V (A) of the Airport Authority of India Act are with regard to the functions to be carried out where the Airport Authority of India Act 1994 applies. As discussed above Airport Authority of India Act is not applicable to Mumbai International Airport. It is made out that there is no cause of action as against Airport Authority of India. There is not even an allegation of negligence or deficiency of service on the part of authorities of the Calicut International Airport at Karipur which is controlled by Airport Authority of India. Moreover the crew of Air India are not permanent employees of Airport Authority of India. Airport Authority of India is not liable for the loss sustained to the passenger due to the alleged negligence of the crew of the Air India Express. All the allegations in the complaint are made against Air India Express and Mumbai International Airport. However, Mumbai International Airport Private Ltd. is not made a party to the complaint even though the 2nd opposite party had clearly stated about non-joinder of parties in their reply notice and in their version. In the light of the above discussions, we find that the 2nd opposite party is not a necessary party and that Mumbai International Airport Private Ltd. is the necessary party who ought to have been impleaded in this complaint. Thus, the complaint is bad for non-joinder and misjoinder of parties. Hence the complaint as against the 2nd opposite party is not maintainable.

11. Point (ii):- Since we have already found in point (i) that complaint as against the 2nd opposite party is not maintainable, the question now to be considered is whether the complainants and 4th opposite party are entitled to get compensation from opposite parties 1 & 3 and if so what is the quantum. Case of the complainants as testimonied by PW1, 1st complainant and PW2 witness of the complainant who is alleged to be the fellow passenger of late Sreejith, the husband of the 1st complainant, is that within a few minutes after the flight took off from Kozhikode Airport the husband of the 1st complainant had chest pain and suffocation at about 10.30 p.m and he collapsed in the plane seat with stiff legs and froth oozing out of his clenched mouth. The co-passengers reported the same to the crew on board and asked for emergency landing of the plane at Calicut Airport itself. But the crew did not co-operate with the request made by the passengers. One of the passengers on board who was trained to deliver first aid treatment to persons, informed that it was a case of heart attack and that he was ready to give first aid treatment to the patient, but the crew on board adamantly objected and restrained him from delivering any help or first aid to the patient saying it was only a case of epilepsy and he would recover automatically after sometime. The crew on board turned down all the requests made by the co-passengers for rendering him immediate medical aid or emergency landing of the flight at the nearest air base. Since the condition of the passenger became worse and due to the consistent protests from the co-passengers, the crew was forced to cause emergency landing at Mumbai International Airport that too by 12.35 am, i.e; after a delay of about 2 hours after the patient collapsed in the flight. They further contended that even though the flight landed at Mumbai International Airport at 12. 35 a.m on 11th July, the Airport Authority took the patient to Nanavati Hospital, Mumbai after a further delay of 2 hours i.e; only by 2.27 am at their leisure. Due to the long delay both in the flight and at the airport the condition of the passenger became bad and he was ultimately declared dead on 14.07.2010 at 10.05 a.m. There was no timely first aid or good treatment provided to the passenger’s heart ailment from the flight and at the Mumbai airport. There is clear case of negligence and dereliction of duty on the part of the Air India crew on board and the Mumbai International Airport. Mumbai International Airport Authorities acted carelessly in delaying the transportation of the collapsed patient to the hospital. They brought the highly critical patient to Nanavati Hospital by hiring an ambulance. In the normal course it would take 15-20 minutes journey from the airport to the hospital, but they took about two hours. The consultant neurologist at the Nanavati Hospital had specifically opined that had the patient been brought to the hospital half an hour earlier, his life could have been saved. They further alleged that the Air India and Airport authorities were furthermore negligent and careless in keeping the complainants and other relatives in the dark about the mishap suffered by the complainant’s husband until they made enquiries about his whereabouts. Even though the deceased Sreejith’s travel documents contained several contact numbers, the Airport Authority and Air India officers did not contact his relatives and inform about the critical condition or about the admission of the passenger in the hospital. It was only after making persistent attempts and repeated enquiries through different sources that Mr. Sreejith’s whereabouts could be gathered on the next day, after about 10 hours of prolonged tension and dilemma. The deceased Sreejith was hale and healthy and had no previous history of ailments.

12. The witness who was examined as PW2 alleged to be a passenger in the flight along with the deceased Sreejith, has stated that had the crew of the flight been dutybound and vigilant in rendering timely medical aid to the deceased and had the crew made an emergency landing of the flight without delay, as requested by the co-passengers on board, the life of Sreejith could have been saved. She has stated that even though a co-passenger who was well trained in giving first aid was ready to give first aid to late Sreejith he was prevented from doing so by the crew stating that the case of the passenger was only epilepsy and he would recover automatically after sometime. The complainant’s husband’s case was not a case of sudden heart failure and imminent death on board. The deceased Sreejith was hale and healthy and had no previous history of diseases like blood pressure, diabetes, heart ailments and other ailments. It was for the first time that the deceased Sreejith was afflicted with such symptoms as narrated above. The complainants state that this was due to the economy class syndrome which may affect certain passengers on board all on a sudden. According to the learned counsel for the complainant the above narrated incident amounts to accident as contemplated under Article 17 of the Montreal Convention applicable to the Carriage by Air Act. The convention provides that when an accident occurs during an international carriage by air and causes damage to the passenger or a ship or cargo, there is a presumption of liability of the carrier. The carrier however is not liable if he proves that he or his agent had taken all necessary measures to avoid the damage or that it was impossible for him/them to take such measures. Rule 17 of Chapter III of Schedule 1, Rule 17 of Chapter III of Schedule II and Rule 17 of Chapter III of Schedule III of the Carriage by Air Act define the extent of liability of the carrier and very specifically declare that the carrier is liable for damage, if the ‘accident’ which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Neither the Carriage by Air Act nor the Montreal Convention anywhere defines the term ‘accident’.

13. As pointed out by the learned counsel for the complainant, the term ‘accident’ set out in article 1 of the Montreal Convention 1999 received a universally accepted interpretation by US Supreme Court Judgement in the matter of Air France Vs. Saks as an unexpected or unusual event or happening that is external to a passenger. It also held that an injury is the product of a chain of cases and we require only the passenger to be able to prove that some link in the chain was unusual and unexpected.

14. The learned counsel also brought to our notice about another leading case ‘Hussain Vs. Olympic Airways’ where the US Supreme Court has very affirmatively answered the question whether an airline’s unreasonable refusal to assist a passenger who becomes ill during an international flight, in violation of industry standards and the airline’s own policies constitutes an accident within the meaning of article 17 of the Warsaw Convention. It has been held that, the airline’s response, including a refusal to respond, satisfies the definition of ‘accident’ under the Warsaw Convention.

15. In the instant case according to the complainant the deceased Sreejith felt irritated was perspiring and suffocating shortly after departure from Calicut airport and he personally informed the crew and sought medical help. The crew was not ready to render any care, attention or medical aid. Later he developed chest pain and went unconscious and finally collapsed in the flight by 10.30 p.m stretching his limbs and body and froth oozing out of his mouth. The learned counsel for the complainants relied on Exts. A3, A8, A9, A12, A15 and A16 to substantiate his case. The complainant as PW1 has affirmed the facts regarding the incident as averred in the complaint as told to her by PW2, Smt. Salini and other co-passengers who are alleged to have travelled with late Sreejith. To prove the negligence of the Airlines complainant produced Exts. A1 to A16. The learned counsel pointed out that, Ext. A3 which is a medical report issued by the medical officer, medical department of Mumbai International Airport shows the critical condition of the patient. The condition of the late Sreejith was very severe. Ext. A8 is the death summary of Sreejith issued by Dr. Balabhai Nanavati Hospital, Mumbai, which shows the time of admission to the hospital as 2.30 p.m and the physical condition during the time of admission was critical. Ext. A9 the indoor continuation sheet or inpatient treatment issued by the hospital shows that the patient developed uneasiness at 10.30 pm in the flight. Ext. A12 is the reply sent by Manager Air India, Calicut to the Deputy Secretary, Norka Department showing the version of the Air India Authorities that the incident took place inside the Air India flight. Ext. A15 is the investigation report sent by Manager, Customer Relations to the queries under Right to Information Act given by the father of the 1st complainant. Ext. A16 is the reply sent by Mumbai Airport Authorities to the 1st complainant’s father to the questions which is marked as Ext. A14 and A15. Complainant says that the crew of the flight mercilessly turned down the requests made by the co-passengers for rendering him immediate medical aid and for emergency landing of the flight at the nearest air base which is Calicut air base itself. They responded only after the protests from the co-passengers at 11.30 am to request for an emergency landing of the flight at Mumbai International Airport at 12.35 am on 11.07.2010, after a lapse of 2 hours after the collapse of the deceased. From the airport the passenger was taken to the hospital only at 2.27 am and there was a further lapse of about 2 hours. The learned counsel for the complainant contested that the air crew neglected all the prayers to give first aid and for giving oxygen and they neglected and considered it only as epilepsy. A co-passenger who was trained and competent to give first aid though asserted that the symptoms exhibited by complainant’s husband was due to cardiac disorders and volunteered to help and attend on him by giving necessary first aid was turned down by the airhostess and members of the crew and he was prevented from rendering any care or attention to the ill-fated person. There was dereliction of duty and culpable negligence on the part of Air India and Airport Authorities in delivering adequate first aid and facilitating emergency treatment to the passenger who was affected with heart attack on board the plane. Had the crew been a bit diligent, dutiful and humane and delivered first aid treatment in time, and provided proper attention and prompt expert treatment the valuable life of the passenger could have been saved. From the above documents it is very clear that there is wilful negligence on the part of Air India crew and the airport staff which is actionable under law. Though the complainant’s husband had developed chest pain and other irritation which resulted in his collapse in the plane at 10.30 pm on 10.07.2010 it is seen from the official records that the case was reported to the concerned officers at Mumbai Airport only at 12.05 am and the flight made an emergency landing only by 12.35 am at Mumbai International Airport. Further there was a delay of two hours in taking the collapsed patient to the nearby Nanavati Hospital. They took the patient to the Nanavathi Hospital by hiring an ambulance from outside. The neurologist of Nanavati Hospital had reported that had the patient been brought about half an hour earlier, his life could have been saved. Thus this is a clear case of criminal negligence and dereliction of duty on the part of the Air India crew and the Mumbai Airport Authorities. It resulted in the untimely tragic death of the 1st complainant’s husband on the 4th day of the incident. She further stated that the Air India and Airport Authorities were furthermore careless, negligent and delinquent in their duty and kept the complainants and other relatives in the dark about the accident caused to the complainant’s husband on board until they enquired about his whereabouts. Though late Mr. Sreejith’s travel documents very clearly revealed his identity and clear address at home and abroad with sufficient contact numbers, none of his relatives was contacted or intimated in time about his critical condition or admittance at the hospital. It was only after making vehement attempts and repeated enquiries through different sources that late Sreejith’s whereabouts could be gathered on the next day, after about 10 hours of prolonged tension and dilemma.

16. On the other hand, opposite parties 1 & 3 contended that they did everything in their capacity to save the life of the complainant’s husband. On 10.07.2010 the flight took off from Calicut at 10.05 p.m. The crew on the flight was informed of the difficulty of the passenger by around 11.30 p.m. Immediately he asked the cabin crew to check the medical condition of the passenger. On seeing the medical condition of the passenger the crew checked whether there was any doctor on board to help the patient, but there was no passenger who was a doctor. So, the crew immediately informed the condition of the passenger to the captain of the flight. Within a few minutes a lady passenger who is a nurse came forward to inspect the passenger. On inspection the nurse informed that the passenger was having fits and froth was starting to ooze from his mouth and stated that it was a case of epilepsy. Immediately the captain on knowing the condition of the passenger, diverted the plane to the nearest airport which is Mumbai airport. The crew took all possible steps to ensure that the passenger was comfortable. They checked for medicines but they could not find any medicine. The crew immediately administered oxygen to the passenger. In the meanwhile the captain contacted the air traffic control and sought permission to divert the flight to Mumbai. Since the flight was destined for Dubai, the flight had to be re-routed. ATC (Air Traffic Control) had to ensure that the flight path was clear and thereafter clearance was given to him and permission was given to come and land at Mumbai airport. Emergency landing can only be made as and when proper clearance is given from the concerned airport. The duration of time for getting clearance and to proceed with the landing are entirely dependent upon the air traffic in that particular airport. Only as and when perfect clearance is available the airport authority gives clearance to the flight to proceed with the emergency landing. On immediate arrival of the flight at 12.35 am on 11.07.2010 the Arrival Officer of Air India along with Mumbai International Airport doctor and para medical staff rushed to the aircraft. The patient was pulled out from his seat and made to lie down after lifting the hand rests and folding stretcher was brought to carry the ailing passenger. The medical staff along with the help of commercial assistants and Arrival Officer shifted the passenger to the waiting ambulift and thereafter to the medical ambulance. The 1st opposite party had done everything within their power to save the life of the passenger. The officials of the opposite party were constantly trying to get in touch with the relatives of the ailing passenger before admitting him to the Nanavathi Hospital.

17. Since the patient’s mobile phone was number locked and known numbers stated in PNR were not reachable the officials of the opposite parties contacted the friend of the ailing passenger in Dubai and through him contacted the 1stcomplainant’s father and informed him properly and there was no laches on their part.

18. Now it is to be determined as to whether the incident amounts to an accident as contemplated under Article 17 of Montreal Convention, and whether it is applicable to the Carriage by Air Act and if not whether the complainants are entitled to receive any compensation from the opposite parties under the Consumer Protection Act.

19. The Convention provides that when an accident occurs during an international carriage by air and causes damage to the passenger or a ship of cargo, there is a presumption of liability of the carrier. The carrier however is not liable if he proves that he or his agent had taken all necessary measures to avoid the damage or that it was impossible for him/them to take such measures. Neither the Carriage by Air Act nor the Montreal Convention anywhere defines the term ‘Accident’. The ordinary meaning of accident is any incident that happens unexpectedly and unintentionally resulting in damage or injury. The Black’s dictionary defines accident as an event not intended by anyone but it is the result of injury to someone or damage to something. As contended by the learned counsel for the complainants we have gone by the ruling of US Supreme Court in the matter of Air France Vs. Saks (supra) and also Hussain Vs. Olympic Airways (supra) which are well known and universally accepted interpretations of accident. The rulings held that if airline personnel’s conduct is unreasonable refusal to assist a passenger who becomes ill during flight, in violation of industry standards and airlines’ own policies, it constitutes accident.

20. The fact that late Sreejith had developed uneasiness and suffocation while in flight and collapsed in the plane with stiff legs and froth oozing out of his mouth and that the flight had made an emergency landing at Mumbai airport by 1.30 am on 11.07.2010 and that he was admitted in Nanavathi Hospital Mumbai at 2.27 am are all admitted. The dispute is with regard to the time at which late Sreejith felt chest pain, suffocation and consequently collapsed and whether there was timely first aid and treatment provided to the patient for his ailment by the airlines staff and whether there was inordinate delay in rendering medical aid and expert treatment on the part of Mumbai Airport Authority and whether there was delay on the part of the airport authority in admitting the ill fated passenger to the nearby hospital. Ext. A2 the copy of Itinerary receipt issued by Air India Express shows the time of departure of the flight from Calicut Airport is at 9.45 p.m. Flight landed at Mumbai airport around 1.30 a.m. Ext. A3 the medical report issued by medical officer, Medical Department at Mumbai Airport shows that late Sreejith developed epilepsy and fits on the flight, 2 hours back. That means it happened around 11.30 p.m. Ext. A8 the death summary of Sreejith issued by Nanavathi Hospital shows that the patient was admitted in the hospital on 11.07.2010 at 2.27 am. Ext. A12 reply given by Manager, Air India, Calicut to the Deputy Secretary, Norka Department shows that the incident took place inside the flight on 10.07.2010 after departing from Calicut Airport necessitating an emergency landing at Mumbai Airport. Ext. A13 & A14 are the copy of the petitions filed by the father of the 1st complainant before the public information officer, Mumbai International airport under the Right to Information Act asking the details of the incident which took place inside the flight on 10th July. Ext. A16 is the reply sent by the Mumbai Airport authority to the father of the 1st complainant. Ext. A15 shows the investigation report sent by Manager, Customer Relations Mumbai Airport to the Manager, Air India, Calicut based on A13 & A14 petitions answering the query. Ext. A19 is another petition filed by father of the 1st complainant under RTI Act asking Air India Express Mumbai about the details of treatment rendered to the late Sreejith in the airport and at the hospital. Ext. A20 is the reply given by Air India authorities to the 1st complainant’s father’s application that is Ext. A19. The above documents clearly state that the Air India had done everything to safeguard the life of the passenger. The specific contention of the complainant is that Ext. A9 the indoor continuation sheet of Mumbai Nanavati hospital clearly shows that the patient developed convulsion in flight at 10.30 p.m. She says that even though the patient collapsed in the flight at 10.30 p.m on 11th July they reported the matter to the concerned officer at Mumbai international airport only at 12.05 am after a delay of two hours and the flight made emergency landing at 12.30 am. She says that had the officials of airlines taken steps immediately at 10.30 pm making an emergency landing of the flight at Calicut Airport itself, his life could have been saved. But the crew members did not respond to the request of the co-passengers and after an inordinate delay of two hours they took the patient to the hospital only at 2.30 am and that too on compulsion of the co-passengers. To establish this, the complainant had examined PW2 who is alleged to be a co-passenger of the deceased. She has produced Ext. A28 document to prove that she travelled on the alleged date in the same flight from Calicut to Dubai. Perusing Ext. A28 it is seen that the witness Smt. Salini was in India from 02.07.2010 onwards and she went back to UAE on 11.07.2010. Though she deposed that she was a co-passenger along with late Sreejith she did not produce the copy of any of her travel documents to prove that she travelled in the same flight of Air India on 11th July along with late Sreejith. Even though the witness affirmed that she knew the 1st complainant she deposed that she did not inform the 1st complainant about the tragic accident. She further deposed that she did not inform the matter to her husband also. These statements create doubt about the veracity of the affirmation made by her in the affidavit in lieu of chief. It is true that Ext. A9 copy of indoor continuation sheet of Nanavathi Hospital, Mumbai shows that the patient developed convulsion in the flight at 10.30 pm. This was written by the doctor as narrated by the airline staff who were on duty at the airport and who had come along with the patient from the airport. But Ext. A3 the medical report issued by the Medical Officer, Medical Department of Mumbai International Airport shows that epilepsy and fits happened in the flight two hours before the flight landed at 1.30 am. It is thus clear that the uneasiness and epilepsy happened to the patient at about 11.30 p.m. only and not at 10.30 pm as contended by the complainant. The medical report issued by Mumbai International Airport is the first information given by the airline staff. Moreover, the other documents which were relied on by the complainants themselves i.e Exts. A12, A13, A19 & A20 show that the patient collapsed in the airline at about 11.30 pm only. It is undisputed that at about 11.30 pm the crew members of the flight tried to help the patient but could not find any doctors on board. The complainant and witness allege that there was a doctor present in the flight, but he was prevented by the Airline crew to give first aid. However, this doctor was not examined to prove the same beyond doubt. According to the crew members a nurse on board came forward and inspected the passenger and stated that it was a case of epilepsy as froth was starting to ooze from his mouth. It is also admitted that the captain immediately took stops to divert the flight to the nearest airport, which is Mumbai Airport. The crew also took possible steps like administering oxygen to ensure that the patient was comfortable. Facts being so, we cannot find any negligence on the part of the Airlines. Opposite parties have produced 3 documents which were marked as Exts. B1 to B3, through DW2 and DW3. The officials of the airlines gave oral evidence as DW2. The Cabin Crew was examined as DW3 and the Captain of the airlines was examined as DW4. Ext. B1 is the log book maintained by the captain of the flight. Ext. B2 is the computer-generated copy of general declaration which is a mandatory document as per International Civil Aviation Organization. Ext. B3 is the computer generated copy of the Operational Incident Report alleged to have been submitted by the Captain to his higher officer concerned regarding the emergency landing of the flight. Exts. B2 & B3 are only computer printouts and not properly authenticated as required under Sec. 65(B) of the Evidence Act. Exts. B2 & B3 fail to prove that the crew member named therein was actual crew member of that particular flight, Ext. B1 & B1(a) categorically shows that the captain who was examined as DW4 was captain of the fl

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ight on the date of accident i.e. on 10.07.2010. Ext. B1 was marked though it was a photocopy since the opposite party has produced the original log book and it was compared with the photocopy. The original log book was given back as it was needed for the day-to-day purpose. Ext. B3 also will not categorically prove that DW4 captain has submitted the Operational Incident Report to the higher officials concerned. But it is undisputed that the flight had made an emergency landing at Mumbai airport on 11.07.2010 at about 12.35 am. However, it can be noted that the narration of facts by the airlines authorities are corroborated by Exts. A12, A13 A19 and A20. These documents clearly show that the airport authorities had made sincere efforts to safeguard the life of the passenger. The captain and crew who were examined clearly spoke about the steps they have taken to safeguard the life of the passenger/patient. They have taken all the standard care possible to them that can be given to the patient on board. 21. Moreover, since Mumbai International Airport has high level of congestion and that the ATC has to give clearance there was some delay for the flight to have an emergency landing at Mumbai airport. The diversion of the flight from its destination is made only after getting clearance from the ATC. The ATC will have to determine the path, speed and altitude as there could be other flight movements in the congested area. Hence all these parameters have to be ascertained before the pilot diverts and takes the course path fixed by the ATC to the airport. From the records it can be seen that on immediate arrival of the flight at around 1 am the Arrival Officer of Air India along with Mumbai International Airport doctor and paramedical staff rushed to the aircraft and took the ailing passenger to the medical ambulance. The Arrival Officer of the 1st opposite party voluntarily signed the admission and authorization papers to carry out all relevant tests so as to ensure all possible medical aid to the patient without any delay. From the passengers’ personal belongings which were handed over to the Arrival Officer by the cabin crew the passenger’s passport, mobile phone and wallet were found. From the passport the age and address of the passenger was ascertained. The mobile phone was number locked and hence it could not be used. From the wallet an ID card was found and the Arrival Officer immediately passed the I.D number and name of the passenger to the duty manager to get in touch with the Emirates office at Dubai. The Duty Manager alternatively contacted the mobile numbers given in the PNR number, but they were all unreachable. Thereafter a telex was sent to Air India Calicut and Dubai office at 04.55 am providing details of the flight diversion and hospitalization of the passenger. A friend of the ailing passenger was contacted, but he did not have the contact numbers of any other passengers or relatives. The airlines could obtain the father-in-law’s number only at 10.00 am through a friend of the passenger. Immediately father-in-law of the ailing passenger was contacted and informed about the condition of the patient. Some of the relatives who were in Mumbai were called up and they reached Nanavati Hospital at around 12 p.m. The Duty Manager was in constant touch with the Nanavati Hospital to keep a check on the passenger’s medical condition. On 14.07.2010 on receiving the message of passenger’s sad demise and the relatives’ difficulties in obtaining NOC from the local police station the opposite parties immediately deputed two officers, who were well versed with the local police and thorough with the municipal procedures and helped the relatives in obtaining the local police’s clearance for air transportation of the deceased passenger to Calicut. The opposite parties had sincerely done everything under their capacity to save the life of the ailing passenger. There was no culpable negligence on the part of the crew on board the airlines and ground staff. 22. From the above it can be concluded that there was no negligence or deficiency in service on the part of the opposite parties 1 & 3. The complainant has failed to prove the allegations of negligence/deficiency of service on the part of opposite parties 1 & 3. The complaint that the passenger had collapsed due to economy class syndrome is not substantiated by any evidence. 23. Since there was no negligence or deficiency in service on the part of opposite parties 1 & 3 no liability can be fixed on them. However, we note that there is unexplained inordinate delay on the part of Mumbai Airport Authority in taking the critically ill patient to the nearby hospital. The flight landed at Mumbai International airport at around 1am but the critically ill patient was shifted to the hospital only at 2.30 a.m by the Airport Authority’s staff. There is unexplained delay of more than two hours. This is a clear case of negligence and deficiency in service on the part of Mumbai Airport Authority. However, unfortunately as stated above Mumbai Airport Authority is not made a party to this complaint. Only Airport Authority of India is made a party. As already found no cause of action is there against the Airport Authority of India and so no liability can be fixed on them. 24. Point (iii):-Since we have found point (ii) against the complainants, we find that the opposite parties are not liable to pay any amount as compensation. In the result, the complaint is dismissed.
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