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INSTITUTE OF COMPANY SECRETARIES OF INDIA 9TH ALL INDI AMOOT COURT COMPETITION 2011 Regional Level Round June

e 18, 2011
Rosy Mascarenhas v NACIL Mr Roger Mascarenhas and Mrs Rosy Mascarenhas, both senior citizens, were travelling to London for attending their grandchilds first birthday. They booked their travel with Indian Airways (ex Mumbai). Indian Airways is the registered trade name of The National Aviation Company of India Limited (NACIL) established in 2007 and is owned by the Government of India and headquartered in Mumbai. The Company facilitates affordable travel through state-owned airlines in India, and also operates some international flights. She booked an e-ticket on the Indian Airways for two connecting flights one from Pune to Mumbai, and the other from Mumbai to London. Mrs. Mascarenhas had recently undergone knee replacement surgery and was advised by her consulting doctor to use a wheelchair while travelling by air. When she booked her e-ticket, she could have asked for a wheel chair and an attendant to assist her into the plane. For this purpose she would be required to state the nature of her physical disability, and to pay Rs 250 as nominal charges for this service. Upon such request, Indian Airways would assign an attendant trained for handling the particular disability. Else she would have the option to have her own wheel-chair approved by the Indian Airways, and an attendant to accompany her until she was seated in the plane; likewise to disembark from the plane at the destination. It is usual for Indian Airways to disclaim any liability for any injury arising to a person seeking such assistance, arising from any cause whatsoever, and advises such travellers to seek appropriate insurance if they so wish. Mrs Mascarenhas made no such disclosure. She travelled from Pune to Mumbai without a wheelchair, and walked throughout from the entrance of the Pune airport into the plane upto her seat. She also walked into the Mumbai airport from the Arrivals to the Departure lounge. Having reached the security check for the international trip, she was required to stand in queue for a long time, which caused her pain and discomfort in the operated knee. She complained to the airport staff for the delay. She also requested the Indian Airways staff for a wheelchair because she found difficult to stand any further, and also an attendant, because Mr Mascarenhas would not be able to guide the wheel-chair. Ground staff at the airport provided her a wheelchair and one of its general staff as an attendant without asking for additional charges. This attendant was not trained to handle disabled persons. Mrs. Mascarenhas was taken through the security check procedures, where she was frisked as she stood on her feet. Thereafter she sat back on the wheelchair and was carted up to the aircraft for boarding. On the way from the departure terminal to the aircraft, the attendant left Mrs Mascarehnas unattended for some time as he was required to attend to an urgent task assigned to him by his superior staff. After a while, Mrs Mascarenhas sent Mr Mascarenhas to look for the attendant. The wheelchair moved and Mrs Mascarenhas fell down on the very knee that were operated. Her knee had turned purple and there considerable pain. The Doctor at the airport gave her some first aid and rushed her to the Candy Bridge Hospital at Bandra, Mumbai, where the consulting doctor found that because of the fall, Mrs Mascarenhas had suffered multiple fractures on her femur and injuries to her already operated knee. The doctor had to perform a surgery on urgent basis to save her leg. It took Mrs. Mascarenhas three weeks in the hospital, and further four weeks rest at home. She was advised to take physiotherapy for six months to retain her mobility. She could not attend to her household tasks during this period, and was required to hire services of two attendants, one for herself, and one for looking after the house. Medical expenses and of physiotherapy were Rs 7.5 lakhs. She had also missed her grandchilds birthday. Mrs Mascarehnas demanded from NACIL the amount as compensation arising from negligence of its staff. NACIL denied liability. She has therefore approached the Consumer Forum at Mumbai for claiming compensation. Argue for Mrs Mascarenhas and for NACIL.

This is the imaginary problem formulated for this competition Law: Torts: Negligence, Consumer Protection Act

INSTITUTE OF COMPANY SECRETARIES OF INDIA 9TH ALL INDI AMOOT COURT COMPETITION 2011 Regional Level Round June 18, 2011

In favour of NACIL
Applicable Sections under Consumer Protection Act :

1. Section 28 : Protection of action taken in good faith. No suit, prosecution or other legal
proceedings shall lie against the members of the District Forum, the State Commission or the National Commission or any officer or person acting under the direction of the District Forum, the State Commission or the National Commission for executing any order made by it or in respect of anything which is in good faith done or intended to be done by such member, officer or person under this Act or under any rule or order made thereunder. 2. Does not fall in the definition of CONSUMER. 3. Section 2 : Definitions. (c) "complaint" means any allegation in writing made by a complainant that (iv) a trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint a price in excess of the price (a) fixed by or under any law for the time being in force (b) displayed on the goods or any package containing such goods ; (c) displayed on the price list exhibited by him by or under any law for the time being in force; (d) agreed between the parties; 4. Section 6 : Objects of the Central Council.The objects of the Central Council shall be to promote and protect the rights of the consumers such as, (a) the right to be protected against the marketing of goods and services which are hazardous to life and property; (b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, as the case may be so as to protect the consumer against unfair trade practices; (c) the right to be assured, wherever possible, access to a variety of goods and services at competitive prices; (d) the right to be heard and to be assured that consumer's interests will receive due consideration at appropriate forums; (e) the right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers; and (f) the right to consumer education.

5. Mrs Mascarehnas would have availed services of an attendant by disclosing the state of her disability. For this purpose she was required to pay Rs. 250/- as nominal charges or she would have the option to have her own wheel-chair approved by the Indian Airways, and an attendant to accompany her until she was seated in the plane; likewise to disembark from the plane at the destination. But Mrs. Mascarenhas made no such disclosures. As Mrs. Mascarenhas made no disclosures and didnt availed services for which she was required to pay an amount Mrs. Mascarenhas is not a Consumer because ; According to the definition of CONSUMER defined under the Act: "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 paid or partly promised,

INSTITUTE OF COMPANY SECRETARIES OF INDIA 9TH ALL INDI AMOOT COURT COMPETITION 2011 Regional Level Round June 18, 2011
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; or (ii) hires or avails of 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 or avails of 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 but does not include a person who avails of such services for any commercial purposes; And no such payment was done by Mrs. Mascarenhas neither has asked for the services to be provided

In favour of Mrs Rosy Mascarenhas Section 6 : Objects of the Central Council.The objects of the Central Council shall be to promote and protect the rights of the consumers such as, (a) the right to be protected against the marketing of goods and services which are hazardous to life and property; (b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, as the case may be so as to protect the consumer against unfair trade practices; (c) the right to be assured, wherever possible, access to a variety of goods and services at competitive prices; (d) the right to be heard and to be assured that consumer's interests will receive due consideration at appropriate forums; (e) the right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers; and (f) the right to consumer education.

2. (c)

Definitions. "complaint" means any allegation in writing made by a complainant that (iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;