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2004 (3) CPR 60 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
M.B. Shah, President, Rajyalakshmi Rao, B.K. Taimni & S.N. Kapoor, Members.
Geeta Jethani & Ors.—Complainants
versus
Airport Authority of India & Ors.—Respondents
Original Petition No. 81 of 2001
Decided on 5-8-2004
on facts brought on record — Principle of res ipsa loquitor was also attracted in the case — It was duty of opp. party to maintain escalator in proper condition — Not to keep staff at the escalator to switch off in case of calamity by itself was deficiency in service.(Paras 13 to 16)
(ii)Consumer Protection Act, 1986 — Section 21 — 7-1/2 years old child trapped & crushed to death — Consumer complaint claiming compensation for deficiency in service — Pending of crimi-nal case regarding the incident no bar in adjudication of consumer complaint — Standard of proof is altogether different in criminal matter — Judgment qua deficiency in service would not be binding in criminal prosecution.(Para 17
(iii)Consumer Protection Act, 1986 — Section 21 — Airport Authority of India Act, 1994 — Sections 2, 12, 22 & 25 — 7-1/2 years old child trapped & crushed to death in escalator in Airport premises — Complaint claiming compen-sation alleging deficiency in service — Resisted on plea that no services were undertaken by opp. party qua complai-nants who landed at airport from Dubai — Opp. party was required to provide facility to passengers, who are incoming or outgoing and who entered airport premises with permission or entry ticket — Even if fee was not charged from passengers coming to India, they were allowed to enter airport premises on basis of reciprocal agreement and consumer includes any beneficiary of such services — Complaint was main-tainable.(Para 33)
(iv)Consumer Protection Act, 1986 — Sections 2(d)(ii) & 21 — 7-1/2 years old child trapped and crushed to death in escalator in airport premises — Escalator was installed & commissioned in 1986 by OTIS & its maintenance contract with opp. party had expired in Sep. 1999 whereas incident occurred in December, 1999 — It was not necessary to go into & decide any dispute between opp. party & OTIS & it was open to opp. party to take action against OTIS for reimbursement of damages.(Paras 34 & 35)
(v)Consumer Protection Act, 1986 — Section 21 — 7-1/2 years old child trapped & crushed to death in escalator in airport premises — Fixing of quantum of compensation — Factors such as age of deceased, income, occupation, future prospects, life expectancy, minimum expected income or income of parents etc. to be considered — Even if there was liability of carrier, it would be joint & several liability of carrier, Air India & opp. party — Non-joining of Air India would not be a ground for defeating the claim — For assessing damages, reliance upon Schedule II provided in Carriage by Air Act, 1972 could be placed — Opp. party on that basis would be liable to pay 2,50,000/- Francs — If minimum earnings of minor was taken at $ 1400 P.M. which amount complainant No. 2 was earning then applying multiplier of 18 amount came to US $3,02,400 & deducting 1/3rd towards personal needs of deceased amount came to approxi-mately $ 2 lakhs — It would be just & proper to adopt criteria under Carriage by Air Act — Compensation of 2,50,000 French Francs allowed with interest at 10% p.a. from January, 2000.(Paras 43 to 45)
Result: Petition allowed accordingly.
M.B. Shah, President.— A young child, named, Jyotsna Jethani, met with a horrifying accidental death while getting out of escalator maintained by Airport Authority of India (AAI) (Opp. Party No. 1). A weeping mother and the grandfather have filed this complaint alleging deficiency in service on the part of the Opposite Parties which has resulted in chewing or crushing of their beloved daughter and hence claimed compensation for the irreparable loss.
2. The questions for determina-tion are— (a) whether complaint under the Consumer Protection Act, 1986 (hereinafter referred to as the C.P. Act) is maintainable? (b) If yes, whether there was any deficiency in service? (c) And, if yes, the quantum of damages.
3. The case also illustrates to what extent we have developed the tendency to deny the obvious, in litigation. Except admitting the trapping of young child in the escalator, the AAI has tried to dispute its liability and deficiency in service. We do not know when we would change our jurisprudence which encourages such attitude of denials and protracts litigation and increases burden on adjudicating Forums/Courts.
Case of the Complainant:
4. It is the case of the complainant that complainant No. 1 is the mother of the deceased, Jyotsna, and was residing in Dubai. Complainant No. 2 is the grandfather of Jyotsna, and father of the injured complainant No. 3, Rajesh and, is working in Dubai. It is also stated that at the relevant time complainant No. 3 was working in Moscow (Russia). Because of tragic incident which occurred on 13-12-1999, complainant No. 2, Parmanand Jethani, who is at present residing in Jodhpur (Rajasthan) in India, has left all his business activities in Dubai so as to make himself available for answering the queries of Commission of Enquiry set up by the Government to enquire into the incident which led to Jyotsna’s gruesome death. It is contended that Opposite Party No. 1, the AAI, is a Government body res-ponsible for managing Indira Gandhi International Airport (IGI Airport) at New Delhi. It charges Airport Tax from passengers for providing various services at the Airport. Opposite Party No. 2, OTIS Elevators, is a company engaged in the manufacture and maintenance of Lifts and Escalators.
5. It is contended that on the night of 12/13-12-1999, the complainant and the other family members travelled by Air India Flight No. A1-720 from Dubai to New Delhi. They came to India, as the Jethani family had organized Indian wedding on 17-12-1999 for recently married Rajesh Jethani and Vera Jethani (Russian Wife) at Jodhpur. After the flight landed at Delhi, they came to Arrival Terminal of the East Wing of the Airport at about 2.55 A.M. It is the say of the complainant that Parmanand Jethani, Rajesh Jethani and Jyotsna Jethani used the escalator along with other persons. When they were half way down on the escalator, Parmanand Jethani heard shouts from the bottom to run up stairs as there was a gap at the base of the escalator. It transpired that there was a gaping hole between the comb plates, groove of the final step and the landing platform. People had no way to disembark from the moving escalator without risking falling over and into the gaping hole. Some passengers who were on escalator tried to run back up, i.e., against the direction of escalator which was going down. Some passengers tripped and fell down on the escalator. As Rajesh and Jyotsna were near the base of the escalator, they were sucked into the gaping hole. Jyotsna slipped in, while Rajesh’s feet also got sucked in. It is their say that Parmanand heard the screams of his little grand-daughter and saw her back and flailing legs as she cried for freedom. The comb plate sliced through the flesh on her face. Her head and upper body were trapped. She was crushed, however, Rajesh managed to pull out his profusely bleeding legs from the gap.
6. Complainant and others watched the horror with their eyes and tried desperately to pull Jyotsna out of the gap bu
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