The plaintiff must provide evidence in tort cases to substantiate claims; defendants are vicariously liable for negligence despite the involvement of a caterer.

JUDGMENT :

P.B.BALAJI, J.

1. The defendants, who have been directed to compensate the plaintiff for a sum of Rs.1,00,000/- by way of damages, are the appellants.

2.The brief facts, which are necessary for deciding the appeal, are as follows:

The plaintiff, claiming to be a frequent flier with the defendants' airlines, had travelled by the defendants' airlines IC 574 on 26.06.2002 from Colombo to Chennai. During the flight, a sealed food packet was served, in which the plaintiff noticed few strands of hair in the food, which left the plaintiff nauseous and the plaintiff was unable to make any complaint, since no complaint box or papers were available and the staff in the flight also did not hear out the plaintiff. The plaintiff took ill and immediately on landing, lodged a complaint to the 3^rd defendant. Expressing regret for the incident, the defendants sent a letter dated 12.07.2002, claiming that the matter is under investigation. On 19.07.2002, the plaintiff sent a lawyer's notice, stating that he had to suffer from vomiting sensation and also stomach pain and claimed compensation. The defendants sent a reply on 20.07.2002, again regretting for the inconvenience caused to the plaintiff and the plaintiff was therefore constrained to file the suit, claiming compensation of Rs.11,00,000/-.

3.The written statement filed by the defendants are as follows:

The plaintiff admittedly is a frequent flier with the defendants' airlines and there has never been such an incident in the past and therefore, it cannot be termed as negligence, warranting a fanciful claim of Rs.11,00,000/-. It is also contended that the defendant had entrusted the catering services to Ambassador Pallava, a Five Star Hotel in Chennai and for non-joinder of the said caterer, the plaintiff has to be non-suited. The defendants have also raised a defence that there was a possibility that when the passenger opened the sealed food packet, the hair follicles of a co-passenger could have fallen in the dish. The defendants also stated that when the plaintiff had not handed over the food tray back to the defendants' staff on board and also did not request for any assistance and necessary medical attention, the plaintiff could not blame the defendants. It is also stated that the apology given and inconvenience regretted was only as a matter of courtesy and would not amount to an admission of guilt.

4.During trial, no oral evidence was let in on both sides and no document was also exhibited.

5.Issues framed by the trial Court:

Based on the pleadings, the following issues were framed by the trial Court:

1.Whether the suit is bad for non-joinder of necessary party?

2.Whether the defendants are liable to pay damages to the plaintiff?

3.Whether the plaintiff is entitled to damages as prayed for?

4.To what relief, if any, the plaintiff is entitled?

6.The trial Court, holding that the defendants were negligent, proceeded to decree the suit for a sum of Rs.1,00,000/-, together with costs.

7.I have heard Mr.S.Satish Kumar, learned counsel for the appellants/defendants and Mr.R.Subramanian for Mr.B.Ravi, learned counsel for the respondent/plaintiff.

8.Arguments of the learned counsel for the appellants:

Mr.S.Satish Kumar, learned counsel for the appellants would first and foremost submit that in a suit for damages, it was incumbent for the plaintiff to enter the witness box and give evidence. The plaintiff, in the present case, has taken a risk in not entering the witness box and adducing evidence. Therefore, he would state that the trial Court ought not to have awarded any compensation as admittedly, when there is no io