N.V. SUBRAMANYAM vs U.B. AIR (P) LTD

IN this complaint the complainant has sought compensation in a sum of Rs. 5 lakhs for the loss and injury suffered by him and also a further sum of Rs. 5 lakhs as punitive damages from the Opp. Party U.B. AIR (P) Ltd.

THE facts, briefly stated, are as follows: THE complainant travelled by the Opp. Party Aircraft on 13.9.1991 from Bangalore to Madras. THE flight on that day left Bangalore early in the morning and it was scheduled to land at Madras Airport by about 7-30 a.m. THEre were 14 passengers including the complainant in the said flight on that day. The flight was readied for landing but no announcement was made regarding any technical or other snag. The aircraft landed and touched the ground but it did not land on its wheels instead it landed on its belly causing service impact resulting in shock and jolt to the complainant and the other passengers. Though the incident lasted a few minutes but it was most frightening and caused extreme anxiety, shock and imbalance to the complainant. When the complainant and other passengers got down after the aircraft came to a halt the ground staff of the opp. party at the Airport did not provide any assistance to the complainant and other passengers. The complainant made his own arrangement for a medical checkup and further travel.

The complainant further averred that the said incident took place solely on account of the carelessness, negligence and incompetence of the commanding officer of the Aircraft, who failed to ensure that all preparations for landing had been duly carried out. As a consequence of this event several persons closely associated with the complainant including his friends, business associates and members of his family suffered mental agony and anxiety.

THE complainant nextly averred that the opp. party failed to provide satisfactory service and so there was deficiency in service provided by the opp. party. The complainant claimed a compensation in a sum of Rs. 5 lakhs for the loss and injury so suffered by him and a further sum of Rs. 5 lakhs as punitive damages from the Opp. Party.

THE Opp. Party filed its version and denied any negligence on its part. THE opp. party also denied the fact that the complainant did suffer any loss or injury to him or to his business associates and members of his family as averred by him. THE Opp. Party on the basis of these averments sought the complaint to be dismissed. During enquiry the complainant examined himself as C.W.1 and got Exs. C.1 to C.3 marked in evidence. The Opp. Party examined R.W. 1, an Air-hostess and R.W. 2 a passenger who travelled in the said flight on that day along with the complainant. The accident report produced by the Director General of Civil Aviation is marked as Ex. C.4. We have heard the learned Counsel for the parties and perused the material on record. It is the case of the complainant that the landing of the Aircraft at Madras Airport was not a normal landing but it was a belly landing. The complainant has stated that it was belly landing because the front wheel did not come out. R. W. 1 the Air-hostess has admitted in the cross-examination the fact that it was a belly landing. R.W.1 has in this regard stated thus: "By smooth landing, I mean that the landing was normal. The Aircraft after landing i.e., after touching the ground moved further to a little distance and stopped. I cannot say whether the aircraft actually landed on belly but after it stopped when we got down and saw it was landed on belly."

EX. C. 4 is the accident report. The type of accident referred to therein is as ''Wheels up landing''. The report shows that the investigation had revealed that the flight crew failed to extend the landing gears prior to landing. Therefore, it is clear that the landing of the Aircraft at the Airport Madras was not a normal landing and it landed on its belly.

PARA 11 at Page 27 of the Accident Report, Ex. C. 4 reads as under: "Neither the commander nor co-pilot ensured that landing gears were down prior to landing." At the end of page 24 of the said report, it is mentioned that these lapses are indicative of a negligent flying for not attending to the duties of a crew thus endangering the safety of passengers. These circumstances would clearly go to show that the Opp. Party was negligent in landing the aircraft on its belly.

The learned Counsel for the Opp. Party submitted that the loss and injury alleged to have been suffered by the complainant is only a mental pain or anxiety only, so the complainant is not entitled for any compensation for this alleged loss.

THE Supreme Court in Lucknow Development Authority v. N.K. Gupta, (AIR 1994 SC 787) while considering the word ''compensation'' used in the Act have held thus: "THE word ''compensation'' is again of very wide connotation. It has not been defined in the Act. According to dictionary it means compensating or being compensated; thing given as recompense. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering; insult or injury or loss. THErefore, when the Commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. THE provision enables the consumer to claim and empowers the Commission to redress any injustice done to him. Any other construction would defeat the very purpose of the Act."

This would go to show that the complainant is entitled to a relief of compensation tion even in case of mental suffering alone.

IN the present case, we have been consider whether the complainant has been able to prove the loss and injury alleged to have been sustained by him? The complainant has averred in the complaint that he suffered a shock and joltdue to the belly landing of the Aircraft. He has further averred in the complaint that his business associates and members of his family all suffered mental agony and anxiety. At para 6 his complaint he has further averred thus: "Even after the Aircraft came to a has the passengers including complainant got down on their own and did not have the assistance of any ground staff of the at the Airport. Complaint ant had to make his own arrangements for a medical check-up and further travel."

The complainant has in his evidence state that he was completely dazed and cancelled a his engagements on that day as he was in a mental shock. The complainant has not pro duced any medical report to show that he due suffer any anxiety or jolt as averred by him. in para 6 of his complaint, as referred above, he has averred that he got the medical check up made after this incident. No medical report has been placed on record. Admittedly including the complainant 14 passengers travelled in the said Aircraft of that day. The complainant did not examine and passenger to show that whether the belly land ing had caused any impact, jolt or suffering any of them. On the other hand, R.W.I has stated that though it was a belly landing but was smooth landing. R.W.I has further state that no passenger showed any panicky condi tion as mere was neither jerk or jolt. R.W.2 passenger who had travelled along with the complainant in the said Aircraft stated thus: "The landing of the flight at Madras AIR port was normal except for the sound The Aircraft stopped in the middle of the run-way..."

IT is clear from the evidence of these witnesses that though it was a belly landing i.e., the Aircraft landed on its belly but it did not cause any jolt or jerk to any of the passengers.

THE National Commission in Indian Airlines v. Rajesh Kumar Upadhya, 1991(1) C.P.R. Page 46, while considering the provisions of Section 14(1)(d) of the Act have held at Para 13, thus: "THE Forums constituted under Consumer Protection Act are invested with jurisdiction under Section 14(1)(d) of the Act to award compensation to the consumers "due to negligence of the opposite party". Proof that there was negligence and that it had caused the particular loss or injury is a ''sine qua non'' for the award of compensation under this provision. Where there is no such proof compensation cannot legally be awarded under Section 14(1)(d) of the Act."

In the present case, as referred to above, the complainant except proving the fact that there was negligence on the part of the Opp Party while the Aircraft landed at the Airport, has not proved that in consequence of such negligent act, he did suffer any loss or injury. To award compensation under the provisions of the Act it is necessary for the complainant to prove not only the negligent act on the part of the Opp. Party but also that such negligent act had caused a particular loss or injury to the complainant.

In the present case, as referred to above, the complainant has not been able to establish the fact that he did suffer any particular loss or injury as averred by him. So, in our opinion, the complainant is not entitled for the claim sought for by him.

IN the result, therefore, this complaint fails and it is dismissed. The parties are directed to pay and bear their own costs. Complaint dismissed.