Geeta Jethani & Ors.                                .. Complainants
                         Vs.
Airport Authority of India & Ors.                 .. Opposite Parties

BEFORE: Hon'ble Mr. Justice M.B.Shah, President, Mrs. Rajyalakshmi Rao, Member, Mr. B.K.Taimni, Member, Hon'ble Mr. Justice S.N.Kapoor, Member.

Dated: 5th August 2004

Justice M.B.Shah, J. 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.

     The questions for determination 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.

     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:

     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 responsible for managing Indira Gandhi International Airport (IGI Airport) at New Delhi. It charges Airport Tax from passengers for providing various services at the Airport. Opp. Party No.2, OTIS Elevators, is a company engaged in the manufacture and maintenance of Lifts and Escalators.

     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.AI-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 AM. 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.

     Complainant and others watched the horror with their eyes and tried desperately to pull Jyotsna out of the gap but they could not do so. They shouted and screamed for help and assistance. They pleaded that someone should stop the escalator. However, no personnel either from the Immigration or Customs Department or of the AAI came over to help. No attendant from the OTIS to manage the escalator was present. There was no emergency assistance of any kind. There was no medical assistance of any kind available to meet the emergency. After an hour, a doctor finally came and declared Jyotsna dead. Rajesh was compelled to go to a private Nursing Home where several stitches were put and he was treated. 

     Thereafter, police came and took away the dead body of Jyotsna for postmortem. At about 3.55 AM, FIR for the offence punishable under Section 304A/337 of the IPC was registered.

     It is contended that complainants were compelled to watch in a helpless position the horrifying death of their daughter aged about 7½ years. Opposite Parties failed to render any assistance immediately. It is contended that the escalator was not properly maintained nor any assistance nor any person to manage the same was kept. After sometime, Union Minister of State for Civil Aviation visited the Airport and offered Rs.5 lakhs as compensation to Geeta Jethani. That was not accepted by the crying mother who asked the Minister whether he could bring back her daughter, if she gave him Rs.10 lakhs or even Rs.1 crore. Thereafter, as per the newspaper report, they came to know that a three member Committee was appointed for investigating the incident. It is submitted that complainants came to know in February 2000 that the Committee had submitted its report holding the airport management and staff on duty squarely responsible along with the manufacturer of OTIS for poor maintenance of the escalator and the staff for `lacking alertness and sensitivity'. 

     It is contended that by criminal acts of the opposite parties, the family has lost Jyotsna and therefore claimed the compensation as stated above for an amount of Rs.1,40,00,000/-, i.e., about 3 lakh dollars, with interest @ 24% per annum from 13.12.99 and also for injury to complainant No.3, Rajesh Jethani, uncle of the deceased. A sum of Rs.6 lakhs is claimed for loss of business and Rs.4 lakhs for wasted expenditure incurred by the complainants in organizing wedding of Rajesh Jethani, which was required to be cancelled, for which purpose the Jethani family cam to India.

Submissions by Opposite Party No.1:

     As against this, Opp.Party No.1, AAI, has raised various contentions. In substance, they are as under :

1) On the basis of the FIR registered, matter is pending in the court of Additional Chief Metropolitan Magistrate, Patiala House, New Delhi. As the matter is sub-judice before the Criminal Court, this forum may not adjudicate upon the complicated question of facts which would require voluminous evidence and extensive cross-examination of the witnesses.

2) On 12.12.1999, on routine checking by the officials on duty of the Opp.Party No.1, no defect in the various electrical installations including the escalator in question was observed.

3) The cause of unfortunate incident is still unknown but it cannot be led upon the door of Opp.party No.1. Hence, upon the complainant's own version of events stampede has provided for the tragic incident on account of development of gap at the bottom of the escalator and due to that little Jyotsna fell into the said gap.

4) No service was undertaken by Opp.party No.1, therefore, there was no question of failure or deficiency at the door of Opp.Party No.1. Complainant has not hired or availed of any services for consideration from the AAI. Therefore, complaint was not maintainable. 

5) In any case, complaint deserves to be dismissed on the ground that complainants have failed to adduce sufficient evidence to substantiate the various constituents of the damages claimed.

6) It is also submitted that AAI had been entrusting the maintenance of the escalator directly to the manufacturer (Opp.Party No.2) right from the date of installation till the date of mishap to ensure that only genuine parts are used and maintenance is carried out by Opp.Party No.2 as per their norms. It is therefore contended that the possibility of malfunctioning of the escalator on account of some manufacturing defect or other lapse on the part of Opp.Party No.2 cannot be ruled out.

7) The Consumer Protection Act is an additional Legislation to the existing law and not in abrogation or substitution thereof. The liability with respect to the incidents arising in the course of embarkation or disembarkation of the Air Craft qua the AIR passengers is governed by Carriage by AIR Act, 1972. The provision of Article 17 of the IInd Schedule of the said Act makes the carrier liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operation of embarking or disembarking. The complainants have not filed any claim against the carrier `Air India', nor is it impleaded herein as a party. 

8) The complaint against AAI, constituted under the Airports Authority of India Act, 1994 (Act No.55 of 1994), is, in any case, unsustainable in view of Section 33 of the said Act.

Contentions of the Opposite Party No.2:

a) It is contended by learned Senior Counsel Mr.Ashwani Kumar that Opposite Party No.2 is not at all liable. There was no subsisting contract between Opp.Party Nos.1 and 2 for maintenance of escalators and elevators, as the contract for maintenance expired on 30th September 1999. Further, Opp.Party No.2 was not under any statutory or legal obligation to provide maintenance or any other service including posting of any personnel to supervise and manage escalators at the airport outside its contractual obligations. Maintenance contract which was executed between Opp.Party Nos.1 and 2 was subsequently extended by a period of six months, i.e., w.e.f. 1.4.99 to 30.9.99. On the date of incident there was no contract of maintenance by Opp.Party No.2.

b) For the plea regarding malfunctioning and fundamental defects in the escalator, it is contended that it is devoid of any substance as escalator has functioned efficiently for 15 years before the date of accident. 

Enquiry Report:

     Before we discuss the contentions raised by the parties, it would be worthwhile to refer to some findings portion of the report "on Accident Escalator at IGI Airport" given by High Level Enquiry Committee, known as Jain Committee, appointed by the Government of India.

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     The aforesaid report leaves no doubt with regard to deficiency in service by the AAI in maintaining, supervising and sensitivity in handling the situation on the part of the staff. In view of the aforesaid finding by the Enquiry Committee, the contention of the learned Counsel for the AAI that on routine check on 13.12.1999 the officials on duty have not found any defect in various electrical installations including the escalator, is not required to be discussed. On the contrary, this would reveal that routine check of electrical installations was itself casual and improper. 

     For highlighting the deficiency in service the findings of the said report can be further summarised as under:

1. The escalator was purchased from M/s. OTIS India Ltd. in 1985 and installed in 1986. The OTIS was required to do both preventive as well as call-back maintenance under the supervision of the engineering staff of the AAI. It was found that maintenance of escalator was not being done in a satisfactory manner. 

2. The contracting of the maintenance work has not been done timely. There was no contract of maintenance of escalator between the parties and there was poor supervision by the AAI.

3. OTIS did not do maintenance work in a responsible way. Vital parts of the escalator had not been opened for check up for a long time by the OTIS.

4. The quality of the engineering personnel of OTIS and the supervisory staff of the AAI was not satisfactory.

5. Improper documentation of maintenance work.

6. The engineering staff handling the escalator in the AAI were never trained to handle the equipment either with the OTIS or anywhere else.

7. Technical examination of the equipment shows that due to negligence in maintenance a hole was created in which some passengers fell and sustained injuries and the girl died.

8. Even some lifts installed at the airport were not in working condition on several occasions.

9. The escalator was not upgraded though there is increase in passenger traffic by 85% and it was subjected to intensive usage during peak hours. It was not equipped with safety features that were provided for in the later models of equipment. 

10. Lack of alertness and sensitivity in handling the situation on the part of the staff present at the time of accident.

11. As per Mr. Bindra, an official of AAI, he did not see at the spot either Doctor, Police or any official of AAI, and even the senior officers did not given any direction or instruction to manage the situation with least possible loss to humans. It shows lack of comprehension on the part of the AAI staff. 

12. Absence of the concerned staff at the escalator to switch it off in case of calamity, has really aggravated the situation and this has been the prime reason for the tragedy.

13. Because of communication gap, the technical/operational staff did not reach the spot in time.

14. Stand-by support communication system was out of order for three months prior to the accident and this fact was not within the knowledge of the seniors.

15. The concerned authorities had not planned any mock exercises to meet with the contingencies.

16. Inaction in not extracting the trapped deceased for about 25 minutes was callous and reprehensible. 

     Learned Counsel for the AAI submitted that the aforesaid report cannot be held to be conclusive in establishing the deficiency in service with regard to maintenance, quality, supervision and sensitivity in handling the situation on the part of the staff present at the time of accident, as during the inquiry, witnesses were not cross-examined.

     We agree that report of the Committee may not be conclusive in judicial and quasi-judicial adjudication but at the same time, considering undisputed facts, in our view, it ill behoves the AAI which is a statutory corporation, inter alia, constituted for maintenance of runway and passenger facilities to contend that the finding recorded by the Committee appointed by the Ministry of Civil Aviation, Government of India, is not binding on it. The report is exhaustive on all aspects, after recording the evidence of number of witnesses and after having spot inspection. 

     Secondly, it should be well understood that under the Consumer Protection Act, 1986 the Commission has to decide the matters de-hors of all technicalities developed under our civil/criminal jurisprudence. This is obvious, because the procedure prescribed under the C.P.Act does not provide for application of Evidence Act or the Civil Procedure Code. The dispute is to be decided on the yardstick of reasonable probability on the basis of facts brought on record.

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Re: Whether complaint under the C.P. Act is maintainable:
     Learned Counsel for the AAI submitted that Complainant cannot be said to be consumer as no service was undertaken by the Opposite Party No.1 qua the Complainants who landed at the airport from Dubai by Air India. 

     The aforesaid contention is without any substance, in view of the statutory duty cast on the AAI under Airport Authority of India Act, 1994, which, inter alia, requires the Authority to manage the airports, to provide air traffic service and air transport service, air safety service, to regulate entry and exit of passengers and visitors at the airports, to provide transport facilities to the passengers travelling by air and to have due regard for safety of such service. 

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     The learned Counsel for the AAI submitted that the AAI is charging fees from the passengers who are going out of country, but is not charging any fees for the passengers who are coming to India. And, therefore, the complaint under the C.P. Act is not maintainable. 

     In our view, this contention is without any substance in view of the statutory functions which are required to be discharged by the statutory body, AAI. Section 22 empowers the AAI for charging fees for providing traffic services and ground safety services [(Sec.22(b)]. It also empowers for charging fees for providing amenities given to the passengers and visitors at any airport. 

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     In Indian Medical Association Vs. V.P.Shantha & Ors. (1995) 6 SCC 651, the Apex Court interpreted Sec.2(b)(ii) with regard to medical services and held, inter alia, that even if some patients are given medical treatment freely, but if some patients are charged, then it would be covered by the C.P.Act.

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The relevant conclusions (para 55) is as under:

"(10) Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression `service' as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be `service' and the recipient a `consumer' under the Act." ......

     In view of the aforesaid decision rendered by the Apex Court, there is no substance in the contention of the AAI that as no consideration is received from the passengers who are coming from other country, the provisions of the Consumer Protection Act would not be applicable. Reasons are:

(a) Maintenance of airports is a statutory function of the AAI.

(b) Under Section 22 it has power to charge fees for any other service or facility offered in connection with the aircraft operation at any airport, or providing air traffic services or for amenities given to the passengers. 

(c) The expenses incurred for providing any free service to out going passengers who are coming from other countries are met out of the income from the services rendered other passengers who are required to pay entry fee as well as other fees.

(d) Use of airport premises is restricted and regulated. Without using the airport premises, passengers coming from other countries cannot enter into Indian territory.

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QUANTUM:

     For fixing quantum of compensation we have to take into account factors such as age of the deceased, income, occupation, future prospects, life expectancy, the minimum expected income or the income of the parents, or, in the alternative, the minimum standard prescribed for paying compensation to the passengers under any statutory provisions.

The Complainant has claimed :

1. For harassment, mental torture. Rs.1,40,00,000 

2. For loss of income due to stay in Rs. 6,00,000 India for pursuing the case after the tragedy. (@ Rs.60,000/- p.m.)

3. Wasteful expenditure on account of Rs.4,00,000 abrupt stoppage of the marriage due to tragedy, which expenditure includes the travelling expenses incurred by the relatives of the Complainant who have come from Russia. 

     It is also contended that in the United States tortuous acts such as these would have resulted in million of dollars in damages being awarded against the Opposite Parties. 

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22(1): In the carriage of persons the liability of the carrier for each passenger is limited to sum of 2,50,000 francs. Where, in accordance with the law of the Court seized of the case, damages may be awarded in the form of periodical payments the equivalent capital value of the said payments shall not exceed 2,50,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.

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     On the basis of the aforesaid Act and the Schedule, if we assess the liability of the AAI, then it is liable to pay a compensation equivalent to 2,50,000 Francs. No doubt, it is to be made clear that liability prescribed under the Act is for the carrier and not for the AAI, but, considering the fact that for embarking or disembarking a passenger is required to use the airport which is maintained by the AAI. The assessment of damages on that basis would be just and proper. Admittedly, the Complainants are Non-resident Indians.

     It is true that there is no evidence on record for assessing the quantum of damages. As stated above, when Rs.5 lakhs were offered by the Hon'ble Minister on the spot, the same was not accepted by the aggrieved mother. It has been pointed out that Complainant No.2 was earning $ 1,400 per month. If we take minimum earning of the minor at $ 1,400 then yearly income can safely be assessed at $16,800, applying the standard multiplier of 18 years because of the young age of the child the said amount comes to $ 3,02,400. After taking 1/3rd amount in consideration of the expenses which the victim had incurred towards maintaining herself, had she been alive, the amount comes to approximately $ 2 lakhs. This would be in conformity with the Second Schedule of the Motor Vehicle Act which provides for compensation in cases of fatal accidents. Instead of Rupees, calculation is on the basis of Dollars.

     So, the question is whether we should adopt the minimum compensation prescribed under the Carriage by Air Act or on the basis of the Schedule prescribed under the Motor Vehicles Act. Loss of child to the parents is irrecoupable and no amount of money could compensate the parents. Further, there can be no exact or uniform rule for measuring the value of human life. But, having regard to the environment from which the child was brought compensation is required to be determined. Hence, it would be just and proper to adopt the criteria under the Carriage by Air Act, because, admittedly, the Complainants were non-resident Indians and they were coming from Dubai to India for celebration of marriage of Complainant No.3. 

     Hence, Opposite Party No.1 (AAI) is directed to pay 2,50,000 French Francs or its equivalent in Rupees as on today, along with interest at the rate of 10% per annum from January 1, 2000 till the date of payment. The amount shall be paid within a period of four weeks from today.

     Complaint is disposed of accordingly. There shall be no order as to costs.