Air India Limited v. Ajith P. Balan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** **WP(C).No.22573 OF 2015(V)** ## **PETITIONER/S:** **AIR INDIA LIMITED D.H.ROAD, ERNAKULAM, COCHIN-682016, REPRESENTED BY ITS AIRPORT MANAGER, UMA DEVI P.** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.BENNY THOMAS SRI.P.GOPINATH (SR.) SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS** ## **RESPONDENT/S:** **1 AJITH P BALAN S/O.BALAN, PONDIPARAMBIL, KAZHIMBROM-680568. 2 THE PERMANENT LOK ADALATH KALOOR, COCHIN-682017, REPRESENTED BY ITS CHAIRMAN.** **R1 BY ADV. SRI.SHERRY J. THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-07-2019, THE COURT ON 26-08-2019 DELIVERED THE FOLLOWING:** W.P.(C) No.22573 of 2015 2 ## **JUDGMENT** The petitioner, a Government of India enterprise, is engaged in the transport of passengers and goods by air. The first respondent was employed at Dammam in Saudi Arabia and had come to Kerala on leave in May, 2012. The first respondent had booked his return ticket on 10.5.2012, from Kochi to Dammam by Flight No.AI 915 operated by the petitioner. That Flight got cancelled and the first respondent rebooked his travel on 11.5.2012 by Flight No.IX 481, of the petitioner. The rebooked flight also got cancelled and according to the first respondent, no alternative arrangement was made by the petitioner. Consequently, he could not reach Dammam on time, resulting in the first respondent losing his job. According to the first respondent, he was a permanent employee of the SBG AL-DABAL Company at Dammam and his W.P.(C) No.22573 of 2015 3 retirement age is 55 years. Alleging that he had lost his employment due to the negligence on the part of the petitioner, the first respondent approached the permanent Lok Adalat claiming compensation of Rs.19,20,000/-. The compensation was calculated at the rate of Rs.10,000/- per month multiplied by 16 years of employment which the first respondent had lost due to the alleged negligence of the petitioner. 2. The petitioner filed written statement refuting the claims of the first respondent. The petitioner contended that the first respondent is not entitled for any relief inasmuch as he had failed to produce documentary evidence to prove that he was permanently employed abroad, was drawing a salary of Rs.15,000/- per month and had lost his employment on his failure to report back for duty on time. It was contended that W.P.(C) No.22573 of 2015 4 the petitioner had, in fact, made alternative arrangement for taking the passengers of the cancelled Flight No.IX 481, by Flight No.AI-929 from Kochi to Riyadh and also for transportation of those passengers from Riyadh to Dammam by road. It was contended that 30 passengers in the cancelled Flight No.IX 481 had opted and travelled by the alternative flight and had reached their destination on time. It was hence contended that, having failed to utilise the alternative arrangements, the petitioner had no right to raise a claim for compensation. 3. The Permanent Lok Adalat, after attempting a statutory conciliation under Section 22 C (4) of the Legal Services Authorities Act, 1987 ('the Act' for short) which ended in failure, rendered a decision on merit, in exercise of the power under Section 22 C (8) of the Act. After W.P.(C) No.22573 of 2015 5 considering the evidence tendered, both oral and documentary, Ext.P10 award was passed finding the first respondent to be entitled for compensation of Rs.5 lakhs from the petitioner Company and directing the petitioner to pay the compensation within two months, failing which the first respondent could realise that amount with interest at the rate of 6% per annum, from the date of award till the date of realisation. 4. The petitioner challenges Ext.P10 award mainly on the ground that the finding regrading negligence on the part of the petitioner is not supported by evidence and that on the other hand, there was sufficient evidence before the Adalat to prove that the petitioner had done everything possible to ensure that the first respondent reaches his destination. It is urged that the finding in Ext.P10 that, no steps were taken by W.P.(C) No.22573 of 2015 6 the petitioner to inform the first respondent about the alternative arrangement, is patently wrong. That, the specific case put forward by the petitioner was that frequent announcements were made at the Airport to inform the passengers in Flight No.IX 481 that they were being offered in Flight No.AI-929 from Kochi to Riyadh. Exts.P7, P8 and P9 are relied on in support of this contention. Another ground urged is regarding the inadequacy of the evidence tendered by the first respondent regarding his employment abroad and the loss of employment consequent to his failure to report for duty on time. As far as the quantum of compensation is concerned, the challenge is on the ground that the first respondent had failed to produce any evidence regarding his salary and monthly savings. 5. In the counter affidavit filed by the first respondent, W.P.(C) No.22573 of 2015 7 his contentions before the Permanent Lok Adalat is reiterated. It is contended that Ext.P4 Gate Pass, the translation of which was proved by examining an independent witness, is sufficient proof regarding the petitioner's employment abroad. According to the first respondent, he was never informed about the alternative flight, either through SMS or email and no announcement in that regard was made through the public address system in the Airport. Only those passengers who had gone to the reservation office of the petitioner were provided seats in the alternative flight to Riyadh. The first respondent submits that if he was informed about the alternative flight, he would have definitely opted to travel by that flight since his job was at stake. 6. From the pleadings in the writ petition, it is evident that the challenge against Ext.P10 is on the ground that the W.P.(C) No.22573 of 2015 8 Permanent Lok Adalat had failed to properly appreciate the evidence tendered before it. In essence, what is sought in this writ petition, is re-appreciation of the evidence. In the nature of the challenge, it would be appropriate to refer to the relevant provisions in Chapter VIA of the Act. In fact, Chapter VI A, containing Sections 22 A to 22E, was subsequently incorporated in the Act by way of an amendment brought about by Act 37 of 2002. The very purpose of the amendment was the establishment of Permanent Lok Adalats conferred with power to conciliate and, if necessary, to adjudicate disputes with respect to the public utility services enumerated under Section 22 A. Transport service for the carriage of passengers or goods by air, road or water is public utility service specified in Section 22 A (b) (i). Section 22 C (1) stipulates that any party to a dispute may, prior to the dispute W.P.(C) No.22573 of 2015 9 being brought before any court, make an application to the Permanent Lok Adalat for settlement of the dispute. Section 22 C (4) confers power on the Permanent Lok Adalat to conduct conciliation proceedings between the parties to the application in such manner as it thinks appropriate taking into account the circumstances of the dispute. As per Section 22 C (8), if the parties fail to reach an agreement, the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute. 7. As far as the instant case is concerned, the first respondent had approached the Permanent Lok Adalat with a dispute pertaining to the services rendered by the petitioner, which undisputedly is a public utility service. The Permanent Lok Adalat attempted conciliation and on its failure, decided the dispute. Hence, there cannot be any challenge against the W.P.(C) No.22573 of 2015 10 procedure adopted by the Permanent Lok Adalat upto that point, because the procedure was in accordance with the prescription under the Act. It is precisely for this reason that the challenge is confined to the procedure followed by the Permanent Lok Adalat while deciding the dispute. The specific case of the petitioner is that the dispute was decided based on wrong appreciation of the facts and evidence. It is contended that Ext.P10 award should not have been passed in the absence of clear proof in support of the pleadings in the petition filed by the first respondent. In the light of this specific contention, Section 22 D, which prescribes the procedure to be followed by the Permanent Lok Adalat while deciding a dispute assumes relevance. Section 22 D reads as follows: **“22D.** The Permanent Lok Adalat shall, while conducting conciliation proceedings or deciding a dispute on W.P.(C) No.22573 of 2015 11 merit under this Act, be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice, and shall not be bound by the Code of Civil Procedure, 1908 (1 of 1872) and the Indian Evidence Act, 1872(5 of 1908).” 8. Section 22 D makes it clear that the Permanent Lok Adalat is not bound by the Code of Civil Procedure and the Indian Evidence Act and on the other hand, would be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice while deciding a dispute. The reason for introducing Chapter VI A has been explicitly expatiated by the Honourable Supreme Court in **Bar Council of India v. Union of India [(2012) 8 SCC 243]** , in the following words:- “13. The title of Chapter VI-A is "Pre-litigation Conciliation and Settlement". Section 22-A(a) defines "Permanent Lok Adalat" to mean a Permanent Lok Adalat established under sub-section (1) of Section 22-B. "Public utility service" is defined in Section 22A(b). It means (i) transport service for the carriage of W.P.(C) No.22573 of 2015 12 passengers or goods by air, road or water; or (ii) postal, telegraph or telephone service; or (iii) supply of power, light or water to the public by any establishment; or (iv) system of public conservancy or sanitation; or (v) service in hospital or dispensary; or (vi) insurance service. If the Central Government or the State Government declares in the public interest, any service to be a public utility service for the purposes of Chapter VI-A, such service on declaration is also included in the definition of 'public utility service' under Section 22-A(b) 14. The establishment of Permanent Lok Adalat is done under Section 22-B. The Central Authority and every State Authority, as the case may be, have been mandated to establish Permanent Lok Adalats at such places and for exercising such jurisdiction in respect of one or more public utility services and for such areas as may be notified. The composition of Permanent Lok Adalat is provided in Section 22-B (2). Accordingly, every Permanent Lok Adalat shall consist of (a) a person who is or has been a District Judge or Additional District Judge or has held judicial office higher in rank than that of a District Judge and (b) two other persons having adequate experience in public utility service to be nominated by the Central Government or by the State Government, as the case may be on the recommendation of the Central Authority or by the State Authority (as the case may be). The judicial officer, namely, the District Judge or Additional District Judge or the Judicial Officer higher in rank than that of a W.P.(C) No.22573 of 2015 13 District Judge shall be the Chairman of the Permanent Lok Adalat.” 9. Therefore the only question to be considered is as to whether, for arriving at Ext.P10 decision, the Permanent Lok Adalat was guided by the principles of natural justice, objectivity, fair play and equity. The evidence on record was sufficient to prove that the first respondent was employed abroad and that he had lost his employment consequent to his failure to report back for duty on time, due to cancellation of the flights in which he was supposed to travel. The evidence on record is sufficient to prove that the petitioner had not intimated or informed the first respondent about the availability of an alternative flight for travelling up to Riyadh, arranged for the passengers of the cancelled Flight No.IX 481. Even according to the officer examined on behalf of the petitioner, there was no facility at the Airport for informing W.P.(C) No.22573 of 2015 14 the passengers about the option of rebooking in another flight, for travelling up to Riyadh. According to RW1, such facility was available only at the reservation office of the petitioner, that too, only if sufficient time gap is available between the flights. In the absence of personal intimation or information from the petitioner, the first respondent cannot be held to be at fault for not opting the rebooking facility, merely for the reason that 30 other passengers had availed that option. Though the first respondent had claimed Rs.19,20,000/- as compensation, the Permanent Lok Adalath fixed the compensation amount as Rs.5,00,000/-. In the circumstances, I find no reason to hold that Ext.P10 was rendered without adhering to the principles of natural justice, objectivity, fair play and equity. The absence of evidence or proof, as contemplated under the Indian W.P.(C) No.22573 of 2015 15 Evidence Act, is not a ground for interfering with Ext.P10 award. In the result, the writ petition fails and is accordingly dismissed. No order as to costs. ## 26.8.2019 Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.22573 of 2015 16 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **EXHIBIT-P1: TRUE COPY OF THE ORIGINAL PETITION NO.116/2013 DATED 18.10.2013 FILED BY THE 1ST RESPONDENT BEFORE THE HON'BLE PERMANENT LOK ADALATH (WITHOUT EXHIBITS).** **EXHIBIT P2** **EXHIBIT-P2: TRUE COPY OF THE WRITTEN STATEMENT IN OP NO.166/2013 DATED 27.1.2014 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P3 EXHIBIT-P3: TRUE COPY OF THE GATE PASS DETAILS DATED 6.10.2008 OF THE 1ST RESPONDENT.** - **EXHIBIT P4 EXHIBIT-P4: TRUE COPY OF THE MALAYALAM TRANSLATION OF THE APPOINTMENT LETTER DATED 8.7.2008(5.7.1429 ACCORDING TO HIJRI CALENDAR) PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P5 EXHIBIT-P5: TRUE COPY OF THE DETAILS REGARDING CANCELLATION OF THE FLIGHT DATED 14.05.2012 ISSUED BY THE PETITIONER.** - **EXHIBIT P6 EXHIBIT-P6: TRUE COPY OF THE FLIGHT INTERRUPTION MANIFEST OF FLIGHT AI 915 DATED NIL SHOWING THE PASSENGERS WHO WERE SUPPOSED TO TRAVEL VIA THE FLIGHT OF THE PETITIONER DATED 17.9.2014.** - **EXHIBIT P7** **EXHIBIT-P7: TRUE COPY OF THE FLIGHT INTERRUPTION MANIFEST OF FLIGHT IX 481 DATED 11.5.2012.** W.P.(C) No.22573 of 2015 17 **EXHIBIT P8** **EXHIBIT P9** **EXHIBIT P10** **EXHIBIT-P8: TRUE COPY OF THE TELEX MESSAGE DATED NIL SENT BY THE DUTY MANAGER OF THE PETITIONER HEREIN TO THE OFFICE OF THE PETITIONER IN RIYADH.** **EXHIBIT-P9: TRUE COPY OF THE PASSENGER LIST OF FLIGHT AI-929 DATED 11.5.2012 OF THE PETITIONER THAT WAS SCHEDULED TO OPERATE FROM COCHIN TO RIYADH.** **EXHIBIT-P10: TRUE COPY OF THE AWARD DATED 29.10.2014 PASSED BY THE 2ND RESPONDENT IN FAVOUR OF THE 1ST RESPONDENT IN ID.166/2013.**