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



Urmila mishra v/s M/s Inter Global Aviation Ltd. & Others


Company & Directors' Information:- A K AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200MH2007PTC176382

Company & Directors' Information:- S V V AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200KA2008PTC046264

Company & Directors' Information:- URMILA AND COMPANY LIMITED [Active] CIN = U99999MH1972PLC016089

Company & Directors' Information:- S R C AVIATION PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071383

Company & Directors' Information:- M AND C AVIATION INDIA PRIVATE LIMITED [Active] CIN = U63013KA2006PTC039002

Company & Directors' Information:- S. A. AVIATION PRIVATE LIMITED [Active] CIN = U63040DL2012PTC234038

Company & Directors' Information:- AVIATION INDIA PRIVATE LIMITED [Strike Off] CIN = U63033DL1996PTC077267

Company & Directors' Information:- S K AVIATION PRIVATE LIMITED [Strike Off] CIN = U63090WB1999PTC089940

Company & Directors' Information:- P AND M AVIATION PRIVATE LIMITED [Active] CIN = U35999KA2021PTC143523

Company & Directors' Information:- S. S. AVIATION PRIVATE LIMITED [Active] CIN = U35300KA2007PTC043583

Company & Directors' Information:- R. S. INDIA AVIATION PRIVATE LIMITED [Active] CIN = U62100DL2006PTC153980

Company & Directors' Information:- J D M AVIATION INDIA PRIVATE LIMITED [Active] CIN = U63040PB2013PTC038242

Company & Directors' Information:- J T AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200DL2011PTC216080

    Consumer Case No. 369 of 2014

    Decided On, 07 October 2015

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER & THE HONOURABLE DR. B.C. GUPTA
    By, MEMBER

    For the Complainant: Anurag Tiwari, Advocate. For the Opposite Parties: R1, Rajshekhar Rao, Meherunissa Anand, Advocates, R2, NEMO.



Judgment Text

V.K. Jain, Presiding Member

1. Late Shri N.P. Mishra, husband of the complainant, while travelling on Indigo flight No.6E-236 from Agartala to Delhi via Kolkata on 24.11.2012, fell ill during the flight. When the flight arrived at Kolkata at 11.10 a.m. the Airlines staff informed Airport Authority of India (AAI) which deputed a doctor to examine him. The deceased was deplaned at about 12.00 noon and was brought to the MI room of AAI. His condition started improving at about 12.40 p.m. and the doctor, who was attending to him advised immediate hospitalization. An Ambulance was called at about 4.30 p.m. and the deceased was admitted to Charnock hospital. He died in the aforesaid hospital at 5.45 a.m. on the next day. Alleging negligence and deficiency on the part of opposite party No.1 Inter Global Aviation Ltd., which operates Indigo flight and opposite party No.2 Airport Authority of India, the complainant is before this Commission, seeking compensation amounting to Rupees two crores, along with interest @ 18% per annum.

2. The complaint has been opposed by opposite party No.1 Inter Global Aviation Ltd. as well as opposite party No.2 AAI. It is claimed in the reply filed by the opposite party No.1 that it had fulfilled all its obligations cast upon it by the applicable laws, rules and regulations and the demise of the deceased was not as a consequence of any act / omission attributable to it. It is also stated that the claim is barred as per the ‘Conditions of Carriage’, which provide that the airlines is not responsible for any illness, injury or disability, including death attributable to the physical conditions of the customer or the aggravation of such conditions.

3. In its reply, opposite party No.2 AAI has taken a preliminary objection that there was no privity of contract between it and the complainant and therefore, it owed no obligation or duty towards late Shri N.P. Mishra, husband of the complainant. It is further stated that AAI provides medical assistance free of cost on request from the concerned airlines and therefore, the complainant cannot said to be a consumer of the AAI. On merits, it is stated that the Air Terminal Management Manual provides only for providing first aid in emergency situations within the available resources, the objective being transportation of sick person comfortably and quickly to the site of the competent Medical Care Facility but it does not mandate medical services to the travelling passengers. Reference is also made to Clause 6.59 of the Facilitation to the Convention on International Civil Aviation Organization (International Standard and Recommended Practices). It is also stated in the reply that AAI collects passengers service fee (PSF) for use of facilities such as water, air condition, trolley, public conveniences etc. made available at the airports.

4. On merits it is alleged that an information was received from the staff of opposite party No.1 at 12.00 hrs. on 24.11.2012 that Shri N.P. Mishra had fallen ill. Dr. Bilas Sarkar immediately went to the aircraft and found the patient in severe distress. He was taken to Medical Inspection Room, where the duty Medical Officer gave emergency treatment, lasting about two hours to him. On improving his condition, the patient was reluctant to be shifted to hospital and wanted to fly to Delhi and after a lot of persuasion he was sent to Charnock Hospital and admitted there at 4.50 P.M. through the AAI ambulance accompanied by a medical assistant.

5. The first question which arises for our consideration in this regard is as to whether there was any negligence or deficiency on the part of the opposite party No.1 in rendering services to late Shri N.P. Mishra. The admitted position is that late Shri Mishra fell sick, having developed a cardiac problem while travelling from Agartala to Delhi, before the plane in which he was travelling could land at Kolkata. Admittedly, he was offloaded from the above referred flight at Kolkata Airport and intimation of his sickness had been given to the airport even before the aircraft landed at Kolkata Airport. Immediately on the aircraft landing at Kolkata airport, the doctor of opposite party No.2 AAI took the charge of Mr. Mishra. No negligence on the part of the airlines or any of its employees, till the time the aircraft landed at Kolkata Airport, has been established by the complainant. Though it is claimed in the written submissions filed by the complainant that the son of late Shri N.P. Mishra tried to contact his father on telephone but was restrained from doing so by the staff of opposite party No.1, the aforesaid submission is patently incorrect since the charge of Mr. Mishra had been taken by the doctors of opposite party No.2, as soon as the aircraft landed at the Kolkata Airport. It is alleged that the family members of the deceased requested opposite party No.1 to hospitalize Shri Mishra. In case, there was delay in the hospitalization of Mr. Mishra, the said delay cannot be attributed to opposite party No.1, his charge having been taken over by the doctors of opposite party No.2, as soon as the aircraft landed at Kolkata Airport. This was not the obligation of opposite party No.1 to take the deceased to a hospital, its obligation having been discharged on handing over the patient to the doctors arranged by opposite party No.2 at the airport. It is contended by the complainant that intimation of the sickness of Mr. Mishra was not given to his family members, despite the fact that the son of the deceased was the last person called by him from his mobile. However, there is no evidence of the last number called by the deceased being the mobile number of his son. It is an admitted position that one Mr. H.P. Roy, a friend/colleague of late Shri Mishra was called and informed of his sickness. Had the last number dialled by Mr. Mishra of his son, and not of Shri H.P. Roy, opposite parties obviously, would have informed his son and not Mr. Roy, since their attempt would be to call the last person contacted by the deceased. Therefore, no deficiency on the part of opposite party No.1 in rendering service to late Shri Mishra is made out.

6. Coming to the alleged negligence or deficiency on the part of opposite party No.2 AAI, the first question which arises for our consideration is as to whether late Shri Mishra was a consumer of the said opposite party as defined in Section 2(1)(d) of the Consumer Protection Act, 1986. The aforesaid section, to the extent it is relevant, defines the term ‘consumer’ to mean any person who hires or avails of any service for a consideration which has been paid or promised or partly paid and promised and includes any beneficiary of such services other than the person who hires or avails of the services for consideration, where such services are availed of with the approval of the first mentioned person. Opposite party No.2 is an Authority constituted for the administration and management of airports and civil enclaves where the airport services are operated or are intended to be operated and for matters connected thereunder or incidental thereto. Section 12 of the Airport Authority of India Act, 1994, provides to the extent it is relevant, that it shall be the function of the Authority to manage the airports, the civil enclave and aeronautical communication stations efficiently. For this purpose, the Authority may plan, develop, construct and maintain runways, taxiways, terminals and ancillary buildings and the airports, besides establishing airports or assisting any establishment of private airports. It may also install and maintain ground aids at the airports, besides establishing facilities for the use of passengers and other persons at the airports. Section 22 of the aforesaid Act empowers Authority to charge fees or rent inter-alia for the amenities given to the passengers and visitors at any airport, civil enclave etc. It can also charge fee or rent for use and employment of persons of facilities and other services provided by it at any airport, civil enclave etc. Under Section 22A of the Act, the Authority may levy and collect from the embarking passengers, development fee at the prescribed rates.

7. It would thus be seen that one of the essential functions of opposite party No.2 is to provide facilities and amenities to the passengers and other visitors to the airport. For this purpose, the Authority can collect not only fee or rent but also the prescribed development fee. Admittedly, such fee is actually being charged and collected by the said opposite party. This is AAI’s own case in the reply that it has been collecting passenger service fee for the use of facilities provided by it at the airport. Therefore, it would be difficult to dispute that late Shri Mishra was a consumer of the Authority within the meaning of Section 2(1)(d) of the consumer Protection Act, irrespective of whether the requisite fee or charges are being collected directly from the passenger or from the carriers, operating at the airports managed by the said Authority. Even if the consideration for rendering services is being paid by the airlines the beneficiary of the services being the passengers themselves, they also would be the consumers of the Authority. It would also be pertinent to note here that the definition of the term ‘service’ given in Section 2(o) of the Consumer Protection Act is inclusive and not exhaustive and therefore, would include within its purview the services being provided by the said Authority. Therefore, we find no merit in the preliminary objection raised by opposite party No.2.

8. Coming to the merits of the case, this is the case of the opposite party no.2 that as soon as the aircraft landed at Kolkata Airport at 12.00 hrs., late Shri Mishra was examined by its doctors, namely Dr. Bilas Sarkar accompanied by medical assistant Mr. Madhu Soren and thereafter, he remained in the MI Room of AAI at Kolkata Airport till he was shifted to Charnock hospital at 4.50 p.m. The log entry made by the doctor on 24.11.2012, which opposite party No.2 itself has placed on record, shows that the doctor after giving some medication advised Mr. Mishra to be taken to nearest hospital for further management. Use of the term ‘nearest hospital’ clearly indicates that there was an urgency in the matter and that is why the patient was required to be shifted to a hospital which was nearest to the airport. The log entry made by the Airport Manager shows that the ambulance was called only at 4.32 p.m. Thus, the ambulance was called after 4 hours of the patient being taken to the MI room of the Kolkata Airport. The incident report filed by Dr. T.K. Deshmukhia, Senior Manager (MS) on 07.1.2013, a document filed by opposite party No.2 shows that it took about two hours for the doctors to revive the passenger. The report further shows that it took about 30 minutes to shift the passenger from aircraft to the MI room. Computing from 12.30 p.m. the doctors were able to revive the patient by about 2.30 p.m. Obviously, the advice to shift him to the nearest hospital would have been given latest by 2.30 p.m. Once the doctor had advised shifting of the patient to the nearest hospital and considering the fact that his condition at that time was so critical that it took two hours for the doctors to revive him, no time should have been lost in shifting him from MI room of Kolkata Airport to Charnock hospital. Even the Air Terminal Management Manual, referred in the reply of AAI, mandates ‘quick’ transportation of a sick passenger to a competent medical facility which in view of the advice given by the doctor was a well-equipped hospital. Unfortunately, the ambulance itself was called atleast two hours after the doctor had advised immediate shifting of the passenger to the nearest hospital.

9. Though, no one can be sure as to whether the Late Shri Mishra would have been alive or not had he been shifted to nearest hospital immediately on the advice of the doctors which had been given latest by 2.30 p.m., it can hardly be disputed that delay even of minutes in giving appropriate treatment at a well-equipped hospital to a person who has suffered a cardiac attack can prove to be fatal. The possibility of the late Shri Mishra being still alive, had he been shifted to the hospital immediately after such an advice was given by the doctor, cannot be ruled out in the facts and circumstances of the case. The delay of atleast two hours in even summoning the ambulance required for shifting him to the hospital was nothing but an act of gross negligence and deficiency in rendering service on the part of the staff of opposite party no.2 AAI.

10. It was contended by the learned counsel for the opposite party ho.2 that the passenger himself was unwilling to be shifted to a hospital and was insisting on flying to Delhi. The aforesaid averment cannot be accepted for two reasons. Firstly, the opposite party No.2 has not filed the affidavit of the Dr. Bilas Sarkar, who treated late Mr. Mishra to prove that the passenger had refused to be shifted to a hospital and was insisting on resuming onward journey to Delhi. In fact, even the affidavit of the assistant Mr. Madhu Soren who was present with Dr. Bilas Sarkar has not been filed by opposite party No.2. The only evidence filed by opposite party No.2 is the affidavit of Shri Vikram Singh, presently working as Deputy General Manager (OPS), who obviously would have no personal knowledge as regards the alleged insistence on the part of the passenger. Even otherwise, it would be difficult for us to accept that a person who has suffered a heart attack and is critically ill would ignore the advice of the doctor and insist on resuming onward journey to a distant place even without getting himself thoroughly checked at a well-equipped hospital. Such a reaction, in our view, would be contrary to the natural course of human conduct. Therefore, we are not inclined to accept the plea taken by opposite party No.2 in this regard.

11. For the reasons stated hereinabove, we hold that though no case of deficiency on the part of opposite party No.1 in rendering services to late Shri Mishra is

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made out, the staff of opposite party No.2 was clearly negligent and deficient in rendering services to him. 12. As regard the compensation, we really do not know as to whether late Shri Mishra would have been alive or not had he been taken to the nearest hospital immediately on the doctor attending him advising so. As noted earlier, a cardiac patient, who has suffered a cardiac attack needs appropriate treatment at a well-equipped hospital, through qualified and experienced Cardiologists. If necessary, such a person may also be required to undergo emergency Angioplasty/Bypass surgery. The recovery of a person who has suffered a cardiac attack becomes rather remote if he does not get appropriate treatment well in time. In the present case, late Shri Mishra had suffered heart attack before the aircraft landed at Kolkata airport at 12.00 hrs. He was shifted to hospital at about 4.50 p.m. Thus, he could reach the hospital atleast five hours after he had suffered a cardiac attack. The family of the deceased will always have a feeling that probably Mr. Mishra could be alive today, had he been shifted to the nearest hospital as soon as the doctor had so advised. Considering all the facts and circumstances of the present case, we direct opposite party No.2 AAI to pay a sum of Rs.10,00,000/- as compensation to the complainant, along with interest @ 9% per annum from the date of filing of the complaint and the cost of litigation quantified at Rs.25,000/-. The aforesaid payment shall be made within six weeks from today. The complaint stands disposed of accordingly.
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