[2020] KENCCART 151 (KLR)

Ahmed v Air Arabia (Complaint 6 of 2019) [2020] KENCCART 151 (KLR) (Civ) (11 March 2020) (Judgment)

Neutral citation: [2020] KENCCART 151 (KLR)

Republic of Kenya

In the National Civil Aviation Administrative Review Tribunal

Civil

Complaint 6 of 2019

P. Muholi, Chair, A Owuor, Vice Chair, P Ochieng & E. Waithaka, Members

March 11, 2020

Between

Farah Abdinoor Ahmed

Claimant

and

Air Arabia

Respondent

Judgment

1. The dispute before the tribunal involves the claimant Farah Abdinoor Ahmed who was a passenger on board Air Arabia headed to India for treatment. The respondent was served and filed a response dated January 8, 2019. In the statement of claim, the claimant seeks the following orders;a. General damages for emotional anguish and stress.b. Special damages for; Unexplained extra costs on ticket USD 360

Costs for extended stay in India USD 1,000

Emirates Airline ticket USD 1,000c. Aggravated damages.d. Costs of the suit.

Claimant’s Case 2. The claimant’s case was tendered in court by one Farah Abdinoor Ahmed on December 9, 2019. He testified that sometime in 2016, he intended to take his wife to India for treatment. He therefore commenced the process by applying for a medical visa which was granted. He then contracted his travel agent; Hubaal Travel Agent who made reservations for 1April 7, 2017 and he paid a total sum of USD 1,080.

3. He testified that he was asked to fill medical forms which he did and forwarded to the airline. On April 16, 2017 at around 6 pm, he received a call and was informed that his wife required oxygen support at a cost of USD 275 which he paid for, though this delayed the travel plans by 48 hours. He told court that later on April 17, 2017 he was asked to pay an extra USD 85 and he had to enquire what that was for but he was never given an answer.

4. He told court that they boarded the flight on April 18, 2017, flew to Sharjah in United Arab Emirates where she was examined by the respondent’s in-house doctor and was cleared to travel to India though with a recommendation of the oxygen support. Upon completion of the treatment at Shalby Hospital in India, he started to plan his travel back to Kenya via Air Arabia. He told court that he filled the travel forms declaring her fit to travel but they were rejected by the airline.

5. He told court that they declined to allow her to travel on their flight because she had tuberculosis and had fluid in her lungs. He testified that he then obtained a letter from the doctors who confirmed that his wife did not suffer from those ailments. They denied her to board the flight and he had to purchase other flight tickets and when he contacted the airport manager for a refund, he was informed that there was no cash-back policy and that she could only give him an open ticket valid for one year.

6. He told court that as a result of the defendant’s actions, he suffered inconvenience, incurred extra expenses when he booked Emirates tickets and the extra days they had to stay in India. He asked the court to award the orders in the plaint. On cross-examination, he told court that from Nairobi to Sharjah he did not see any oxygen cylinder yet he had paid for it. He told court that he had a patient and wished to travel back home after discharge, yet he was forced to stay in India.

Defence Case 7. DW1 was Carolyne Mwongera. She adopted her statement. She testified that she is the Nairobi Airport Manager of Air Arabia and on April 17, 2017, the plaintiff and his wife had booked to travel to India through Hubaal Travel Agent. She testified that the airline’s policy is that a sickly passenger must fill a medical form and be examined by the Airline’s doctor. On April 16, 2017 the form was filled, she then forwarded it to the doctor in Sharjah who stated that oxygen support was required. She asked the plaintiff to pay an additional USD 275 and since it could take 24-48 hours, he paid and the same was procured but that meant that they could not travel on April 17, 2017 as earlier booked. They were able to travel to Ahmedabad, India, on April 18, 2017.

8. She told court that on the return trip, the process was the same – a medical form was filled and when she sent it to their doctor in Sharjah, their doctor declared the passenger unfit to travel because of the fluids in the lungs and though the doctors in India confirmed otherwise, it was declared that she was unfit to travel. She told court that she informed the plaintiff and advised him to book another flight to avoid inconvenience. They later refunded USD 373 for both tickets.

9. On cross-examination, she told court that the ticket was booked on April 15, 2017 through Hubaal Travel Agents who are their agents and that all their agents are aware of the medical forms requirement for sickly passengers. She closed their respondent’s case.

10. Parties have filed written submissions which we have considered and the issues for determination that arise are;1. Whether there was a contract of carriage between the claimant and respondent.2. Whether there was breach of the contract of carriage.3. Whether the claimant is entitled to the reliefs sought in the claim.

Whether There Was Carriage By Air Contract Between The Claimant And Respondent 11. It is not in doubt that the claimant and the respondent had a customer relationship. PW1 told court that he booked an air ticket with the respondent’s airline to Ahmedabad in India. This position was acknowledged by the respondent. It is therefore not disputed. Article 3(2) of the Warsaw Convention as read with article 3(5) of the Montreal Convention provides;“The passenger’s ticket shall constitute prima-facie evidence of the conclusion of the contract of carriage …”

12. The applicant produced a ticket indicating that he booked on April 15, 2017 from Nairobi to Ahmedabad through Sharjah under reference No 48718162 aboard flight No G9735. Once the respondent issued the ticket a contractual relationship was created.

Whether There Was A Breach Of The Contract 13. The claimant’s evidence is that he booked the flight to Ahmedabad on April 15, 2017. He was prepared to travel on April 17, 2017. However, prior to that date, he was asked to fill medical form which he did and presented to the respondent’s officials. Upon their consideration of the report he was asked to facilitate for provision of oxygen; these meant that he pays an extra USD 275. A delay was caused that attracted a further USD 85 which he paid.

14. He testified that the problem came in when he wanted to return to Kenya from Ahmedabad, India, when the respondent declined to return them on the ground that the wife was not fit to fly. He told court that he was left in India and was consequently forced to book tickets on another airline – Emirates, which meant an extra expense; further he was also forced to stay longer in India.

15. The respondent indeed acknowledged that on the return trip they declined to ferry them on the basis that the wife to the plaintiff had tuberculosis and fluids in the lungs and the doctor in Sharjah upon review of the medical documents declared her unfit to travel. She also told court that they would process a refund of the one way trip.

16. The issue we need to address is whether the act of declining to allow the claimant on their airline back to Kenya was a breach of the contract. In support of their assertions the respondents relied on their conditions of carriage for passengers and baggage.Article 10(2) provides;“If we cancel a flight or fail to stop at your destination and no alternative flight is available, or we have refused to carry you or if a refund is otherwise due to you under that conditions of carriage, the amount of the refund shall be; If you have not used any part of the ticket, equal to the fare and any taxes, fees and charges you have paid.

If you have used part of the e-ticket, equal to at least the difference between the fare and any taxes, fees and charges you have paid and the fare and of taxes, fees and charges for travel between the points from which you have used your E-ticket.

You will not be entitled for a refund if you miss your flight and not change the booking 24 hours prior to departure time.”

17. It is not in doubt that the claimant booked a return ticket. It is also not in doubt that the claimant had legitimate expectation that he would be returned to Kenya. The respondent declined to ferry them on the basis of the wife being unfit to fly. They did not offer a refund immediately and this meant that the claimant had to make alternative arrangements.

18. The respondent is no doubt entitled to deny one to board or to refuse to carry a passenger, but such should not cause an inconvenience to the passenger. The respondent had to stay a further 7 days in India as he made alternative arrangements. It is our finding that the failure to provide a refund constituted a breach of their own conditions. Though the respondent alleges that they later refunded USD 373, the inconvenience had already been caused. It is our finding based on the above analysis that the respondent breached the contract of carriage.

Whether The Claimant Is Entitled To Reliefs Sought; 1. General Damages For Emotional Anguish, Stress For The Claimant And His Wife 19. It is not in doubt that the actions of the respondent caused anguish, stress and inconvenience. He had to stay in India a further 7 days due to the refusal by the respondent to carry them. In our view the claimant has established that they are entitled to damages. Consequently, we are of the view that an award of USD 3,000 is adequate.

2. Unexplained Extra Costs On Ticket 20. In our view, it was necessary for the airline to have asked for oxygen support whether it was used or not. No evidence was tendered to show that the oxygen support was not required. We decline to issue any amounts under this head.

3. Costs Of Extended Stay In India 21. The refusal to carry the claimant and his wife definitely attracted extra costs. They are special in nature and must be pleaded and proved. No evidence in form of receipts or invoices has been produced to prove that the claimant incurred USD 1,000. We decline to issue any orders.

4. Emirates Airline Ticket At USD 1,000 22. It is the action of the respondent that necessitated the booking of another flight at a cost of USD 1,000. The evidence is that the respondent refunded USD 373. It is our view that if the respondent had not abruptly refused to carry the claimant, this cost would not have been incurred. We therefore find that the claimant is entitled to USD 1,000. Since they had been paid USD 373, he is entitled to the difference which is USD 627.

5. Aggravated Damages 23. There is no case made for aggravated damage and none is awarded.

24. The claimant shall also get costs of the suit and interest from date of judgment till payment in full.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF MARCH, 2020BY:PETER MUHOLI-CHAIRPERSON ………………………………..ALICE OWUOR-VICE CHAIRPERSON ………………………………..ENG PATRICK OCHIENG-MEMBER ……………………………….EUTYCHUS WAITHAKA-MEMBER ……………………………….Court Assistant Donald Asiago