Supreme Court of Mauritius, 29 janvier 2020, 2020 PL1 5 – D Gukhool v. Sky Air Limited

D Gukhool v. Sky Air Limited

2020 PL1 5

IN THE DISTRICT COURT OF PORT LOUIS (DIV I) Cause Number: – 34/2019 In the matter of: – GUKHOOL DEOLALL Claimant v. SKY AIR TRAVEL LIMITED Defendant JUDGMENT

This is an action by the claimant claiming damages from the defendant company for damages which he suffered in the course of a trip to India which was booked through the defendant company. The claimant was represented by counsel and the defendant company was not represented by counsel.

It is the case for the claimant that he had go to India for medical treatment and in October 2017, booked two air tickets to India through the defendant company. He explained that he contacted one Shaheena, with whom he usually booked his ticket and met with her in the office of Sky Air situated at Mohamadally Court, Desforges Street. There he was introduced to one Ameerah Peerbye, who made the booking for two air tickets to Mumbai departing on 10 December 2017 and returning on 19 January 2018. A special request was also made to make available a wheel chair for the plaintiff. He stated that the trip did not go as planned inasmuch as, (a) a wheel chair

was not made available to him neither at departure nor upon his return and (b) on 19 January 2018, when he went to the airport, he was informed that he was not on the passenger list but that he was instead on the passenger list for the flight of 23 January 2018.

The fact that the claimant was not on the passenger list of the 19 January 2018 resulted in a series of mishaps, which started when he was taken ill and had to be conveyed to see a doctor. He incurred taxi costs of Rs 1, 600, additional medical expenses of Rs 1, 500, had to pay a deposit of Rs 14, 000 to a hotel, lost a special bag worth Rs 15, 000 before being told that he had obtained two emergency seats on the flight of the 19 January 2018 for an additional charge of Rs 8, 000. The claimant further claims Rs 50, 000 as moral damages because a wheel chair was not made available to him and he missed a party at his house on 21 January 2018 because he was unwell due to the stress of the journey.

The defendant company denied the version of the claimant. Its representative deposed in court and stated that his company never dealt with the claimant. He explained that the defendant company, as an IATA registered company has an arrangement with another non IATA approved agency called MyMy Travel. It is MyMy Travel who dealt with the plaintiff and that the defendant company only issued the ticket for MyMy Travel.

I have considered the evidence adduced as well as the testimony of the respective witnesses and the documents produced and I am satisfied on a balance of probabilities with the case for the claimant. I believe the version of the claimant to the effect that he attended the office of Sky Air Travel where he met with one Mrs Peebye. This is supported by the tickets which were issued by Sky Air Travel Agency (Doc A refers) and the email sent by Mrs Peerbye to the claimant’s wife (Doc D refers). On the other hand, I have considered the version of the defendant company which relies heavily on the version of Mrs Shaheena Dookhit and I have not been impressed with same. In particular, Mrs Dookhit could not explain the communication between Mrs Peerbye and the claimant nor did she have in her possession a receipt which she allegedly issued to the claimant in the name of Travel MyMy, nor was any evidence produced that Travel MyMy does in fact exist as a legal entity with an office at Rue Lislet Geoffroy, La Cathedrale.

It is not disputed that the return date of the claimant was changed by mistake as admitted by Mrs Dookhit. There is also no evidence on record to the effect that the claimant was made aware of and agreed to the change of date. The evidence of Mr Faezal Ramjaun to the effect that there was no request for a wheelchair was also not materially challenged.

As regards the damages, I note that a receipt was produced only for the payment of Rs 8, 000 additional charge to Air Mauritius. No documents were produced to support the other heads of damages claimed by the claimant and I do not find that these claims proved. I have considered the explanation of the plaintiff as to how he assessed the moral damages at Rs 50, 000, namely because he had to go down a flight of stairs to disembark as well as the fact that there was no wheel chair and he missed out on a party at his house. I find that as supported by the letter from Mr Ramjaun (Doc E refers), the defendant company cannot be held responsible for airport facilities. I therefore find that a sum of Rs 5, 000 would be reasonable as compensation taking into account the circumstances.

I therefore order the defendant company to pay to the plaintiff the sum of Rs 13, 000 as damages. With Costs.

S Chui [Judgment delivered by S Chui (Mrs) Senior District Magistrate] [Judgment delivered on 29 th January 2020]