Airline told to pay for woman’s fall

Subject: Airline liable for defective wheelchair
Backdrop: The Goa state commission has ruled that higher the charge, higher must be the compensation for negligence and breach of duty, and held an airline liable to compensate a passenger for a fall from a defective wheelchair.
Case Study: Two Goan residents, Maria Noronha (76) and her husband Carlos Noronha (79), booked tickets on an Indian Airlines/Air India’s flight through TCI to fly from Mumbai to Goa on March 14, 2009.Since Maria was unable to walk, a request was made for a wheelchair, which was confirmed by the airline.
On arrival at Goa airport, a wheelchair with an attendant was provided by the airline. While being wheeled out by the attendant, the right-hand armrest of the wheelchair gave way and Maria fell on the ground. She suffered a comminuted fracture of the right-hip joint. The airport doctor wanted to admit her to the nearby SMRC Hospital, however, as Maria preferred to go to Grace Cardiac Care Hospital in Margao, the airline provided an ambulance for transporting her. The next day, she underwent a surgery. The airline’s airport terminal manager visited Maria while at the airport and also in hospital. Maria was discharged on March 28, 2009, but had to undergo physiotherapy for the next two months. She was also advised not to travel and consequently, the Noronha couple could not attend the christening of their grandchild in Portugal.
Later, Maria wrote to the airline demanding a reimbursement of the treatment expenses of Rs 1,03,671.75, for which the supporting bills were also submitted. She also claimed a compensation of Rs 4 lakh. The airline replied that it would settle the medical expenses as per its rules, but did not clarify what the total amount would be. Hence, Maria filed a consumer complaint before the North Goa District Forum.
The forum held the airline to be vicariously liable and awarded Rs 79,672 Maria towards medical expenses and Rs 25,000 as compensation and costs. Aggrieved by the meagre amount awarded, Maria appealed to the Goa state commission. The airline kept harping that it had consistently showed willingness to settle the bills even though it was a loss-making undertaking. Maria pointed out that the airline did not have any genuine intention to pay as it had failed to respond to her letter seeking a clarification about the total amount that it was willing to pay. The commission observed that whether or not the airline was making a loss was irrelevant for deciding the dispute in respect of deficiency in service. It considered the observations of the Supreme Court in the case of Ghaziabad Development Authority v/s Balabir Singh [2004 (5) SCC 65], where it had been held that a consumer is entitled to claim the actual loss or the expected loss and compensation for physical, mental or even emotional suffering, insult or injury or loss.
It also noted the observations of the Delhi high court in the case of Klaus Mittelbachert [(1997) INDLAW DEL 402], where it had been held that in the commercialized world, the degree of care would also be determined by reference to the price, which is being charged; the higher the charges, the higher would be the degree of care. Justice N A Britto, president, who delivered the judgment on May 3, on behalf of the bench comprising himself and member Vidhya Gurav, held the airline guilty of breach of duty and failure to take adequate care.
The commission observed that the degree of care would be much higher since airfares are substantially high, and so for breach of such care, the compensation awarded would also have to be commensurately higher. It pointed out that a mere visit by the airline’s officials without paying or even indicating what amount it would be willing to pay as compensation is “lip service”. Since the bills substantiated the claim for reimbursement of medical expenses, the commission granted the entire amount of Rs 1,03,680.
For quantification of compensation, the commission observed that a fracture of the hip at such an advanced age would be very painful. Also, the couple was deprived of the ordinary pleasures of life of being with their grandchild at the christening ceremony. The compensation could best be assessed in such circumstances. Accordingly, the commission awarded Rs 2 lakh. The amount awarded was to be paid along with a 9% interest from the date of the complaint till payment. Additionally, costs of Rs 5,000 were also awarded.
Impact: Service providers who charge higher will have to provide commensurately better quality services or else pay adequate compensation.
(The author is a consumer activist and has won the government of India’s national youth award for consumer protection. His e-mail is jehangir_gai@indiatimes.com)