KALYANI GANDHI vs BRANCH MANAGER, M/S. INDIAN AIRLINES

IN this complaint, the mother of the injured child has claimed compensation for the mental agony suffered by her due to the injury suffered by her minor child, loss of pay, income and the expenses to be incurred by her for proper rehabilitation of minor child at the time of marriage of the child.

THE complainant averred that she along with her injured child Miss Manisha Yatin Gandhi, another daughter Miss Ambika, her husband Sri Y.R. Gandhi and her relation Sri Deepak travelled from Bangalore to Bombay on 22.6.1989 by Indian Airlines Flight IC-206 and reached Bombay by about 10.00 a.m. on that day. The complainant further averred that while the minor child Miss Manisha Yatin Gandhi was alighting from the aircraft at Santa Cruz Airport, Bombay, the ladder that was bridging the ground and the Aeroplane collapsed trapping her left leg. The minor child was immediately shifted to Airport Hospital and from there to Dr. Balabhai Nanavathi Hospital for treatment. The complainant averred that she had incurred expenses for the treatment and would require further sum for the continuous treatment till she attained the age of 18-20 years. The complainant has further averred that she sustained loss of pay and the family members suffered a great mental agony and that she were to spend sufficient money for proper rehabilitation of minor child at the time of marriage. The complainant on the basis of these averments sought the relief as under- "Wherefore, the complainant prays that this Hon''ble Commission be pleased to order the opposite parties to pay a sum of Rs. 9,24,026.15 only as damages for the past, present and future, to the complainant (Annexure-D) in the interest of justice and equity."

(Annexure-D)

The Opp. Party filed the statement of objections. The Opp. Party admitted the fact that the complainant''s minor child Miss Manisha Yatin Gandhi sustained the injuries due to collapsing of the ladder and trapping her left leg under it. The Opp. Party further averred that the right of action stood extinguished as per the provisions of Rule 30 of Schedule II of The Carriage By Air Act, 1972, as the complaint came to be filed beyond the period of limitation i.e., beyond the period of two years, so the complaint was barred by time.

THE Opp. Party further averred that the injured child has already preferred a separate claim in Complaint No. 208/91 through her natural guardian, the mother, the complainant in the present complaint and so a separate claim by the mother of the injured child was untenable. THE Opp. Party nextly averred that the complainant in this complaint cannot be classified as a consumer under the provisions of the Consumer Protection Act, 1986, so the complaint was untenable. It is not disputed that the injured child Miss Manisha Yatin Gandhi has filed a complaint through her mother, the guardian, the complainant herein, in Complaint No. 208/91 before this Commission claiming compensation for the injury sustained by her due to the deficiency in service by the Opp. Party. The said complaint is pending on the file of this Commission.

UNDER Section 2(1)(d) of the Act, ''consumer'' has been defined as under- ''consumer'' means any person who - (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; (ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; In the present case, it is not disputed that the complainant also travelled by air along with the child.

Under Section 2(1)(g) of the Act, ''deficiency'' has been defined as under- ''deficiency''-any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service has been declared to mean as deficiency in the Act As far as the complainant is concerned, it is not her case that there was any deficiency in service on the part of the Opp. Party and in consequence of which, she did suffer any loss or injury. Under Section 2(1)(c) of the Act, ''complaint'' has been defined as under- "Complaint'' means any allegation in writing made by a complainant that - (i) as a result of any unfair trade practice adopted by any trader, the complainant has suffered loss or damage; (ii) the goods mentioned in the complaint suffer from one or more defects; (iii) the services mentioned in the complaint suffer from deficiency in any respect; (iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods with a view to obtaining any relief provided by or under this Act. The averments made in the complaint do not show that the services rendered by the Opp. Party to the complainant did suffer from deficiency in any respect. So the averments made in the complaint do not constitute a ''complaint'' as provided under the Act.

THE provisions under Section 14 of the Act provide for the reliefs to be granted as under : - a) to remove the defect pointed out by the appropriate laboratory from the goods in question. b) to replace the goods with new goods of similar description which shall be free from any defect; c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant; d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the Opp. Party. It is clear as per the provisions of Section 14(1) (d) the compensation may be awarded to the consumer for any loss or injury suffered by the consumer due to the negligence of the Opp. Party. In the present case, as referred above, it is not the case of the complainant that there was any deficiency in service on the part of the Opp. Party to her in consequence of which, she did suffer any loss or injury. So the allegations made in the complaint do not constitute a complaint as per the provisions of the Act and so no relief could be granted under the provisions of the Act.

THE complainant being the mother of the injured child, while the child sustained the injuries might have naturally suffered mental agony and other injury but the consumer action is not the proper remedy for the redressal of her grievances. She may have a remedy in tort which she may pursue in an appropriate Forum. In view of these facts and in the circumstances, we hold that the complaint is untenable and it is dismissed. Complaint dismissed.