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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4925 OF 2011
[Arising out of SLP [C] No.21108 of 2010]
InterGlobe Aviation Ltd. ... Appellant
vs.
N.Satchidanand ... Respondent
J U D G M E N T
R.V.RAVEENDRAN, J.
Leave granted. Heard.
2. The appellant, an aviation company operating an air carrier under the
name and style of IndiGo Airlines has filed this appeal aggrieved by the
judgment of the Andhra Pradesh High Court dated 31.12.2009 dismissing its
writ petition challenging the decision of the Permanent Lok Adalat for Public
Utility Services, Hyderabad, dated 18.9.2009 awarding Rs.10,000 as
compensation and Rs.2,000 as costs to the respondent herein.
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Facts found to be not in dispute
3. The respondent and eight others were booked to travel on Indigo flight
No.6E-301 from Delhi to Hyderabad on 14.12.2007 scheduled to depart at 6.15
a.m. The respondent reached the airport, obtained a boarding pass and boarded
the flight at around 5.45 a.m. Due to dense fog, bad weather and poor visibility
at Delhi airport the flight was delayed. An announcement was made that the
flight was unable to take off due to dense fog and poor visibility, and that the
flight will take off as and when a clearance was given by ATC. As appellant
was a `low cost carrier' neither snacks nor beverages were offered. However
sandwiches were offered for sale and the respondent purchased a sandwich by
paying Rs.100. Around 11.15 a.m. an announcement was made that flight No.
6E-301 was cancelled and the passengers were given the following options: (a)
refund of air fare; or (b) credit for future travel on IndiGo; or (c) rebooking
onto an alternative IndiGo flight at no additional cost. As an extension of the
third option, willing passengers were permitted to undertake the journey on the
next flight, by combining the said flight (Flight No.6E-301) with the next flight
(Flight No. 6E-305) which was scheduled to depart at 12.15 p.m., subject to
improvement in weather conditions and clearance by Air Traffic Control
(`ATC' for short).
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4. As the same aircraft was to be used for the combined flight, several of the
passengers including respondent took the third option, and opted to continue the
journey on the combined flight, by the same aircraft by remaining on board.
Several other passengers, who opted for refund of their airfare or obtaining
credit for future travel or for re-booking on subsequent flights of their choice,
left the aircraft.
5. In view of the cancellation of flight No.6E-301 and the DGCA
regulations prescribing maximum duty hours for the crew, the crew of 6E-301
was replaced by the fresh crew of flight No.6E-305. Even the combined flight
No.6E 305 could not take off on schedule as the ATC did not give the
clearance. Several announcements were made about the delay on account of
inclement weather conditions and the piling up of delayed flights queuing for
take off. In the meanwhile on account of cancellation of flights and delaying of
several flights, the airport was getting overcrowded and congested. As a
consequence, the airport authorities advised the flights which had completed
boarding but had not taken off for want of ATC clearance, not to send back the
boarded passengers to the airport lounge, but retain them in the aircraft itself, as
the airport was not capable of handling the additional load. The respondent and
some other passengers, who had opted for travel in the combined later flight by
the same aircraft, protested about the delay and demanded lunch/refreshments
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as they were held up inside the aircraft. Each of the affected passengers,
including the respondent, was provided with a sandwich and water, free of cost
around noon time. A further offer of free sandwiches was made around 3.00
p.m. However as vegetarian sandwiches were exhausted, the second offer by
the crew was of chicken sandwiches. Respondent and others, who declined
chicken sandwiches, were offered biscuits and water free of cost. Finally the
ATC clearance was given at 4.20 p.m. and the flight departed at 4.37 p.m. and
reached Hyderabad around 7 p.m.
6. When the flight reached Hyderabad, the respondent and some other
passengers were detained at the Hyderabad Airport for more than an hour in
connection with an enquiry by the Security Personnel of IndiGo, in regard to a
complaint by the on-board crew that they had threatened and misbehaved with
the air hostesses when the flight was delayed.
The complaint and the response
7. The respondent filed a complaint against the appellant before the
Permanent Lok Adalat for Public Utility Services, claiming a compensation of
Rs.Five lakhs for the delay and deficiency in service resulting in physical
discomfort, mental agony and inconvenience. The respondent listed the
following reasons for the claim:
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(a) confinement to the aircraft seat from 5.45 a.m. (time of boarding) to
4.37 p.m. (time of departure of flight) for nearly 11 hours leading to
cramps in his legs;
(b) failure to provide breakfast, lunch, tea in the aircraft in spite of the
fact that the respondent was detained in the aircraft for eleven hours
(from 5.45 a.m. to 4.37 p.m.) before departure;
(c) failure to provide access to medical facilities to the respondent who
was a diabetic and hyper tension patient;
(d) illegal detention from 7 p.m. to 8.30 p.m. at Hyderabad airport upon a
false complaint by the crew of the aircraft;
(e) inability to celebrate his birthday on 15.12.2007, on account of the
traumatic experience on the earlier day, apart from being prevented
from attending court on 14.12.2007 and being prevented from
attending office till 19.12.2007.
8. The respondent contended that the airlines failed to take necessary care
of the passengers and failed to act reasonably by not resorting to the remedial
steps in regard to following matters:
(a) In view of the foggy conditions and inclement weather, instead of
issuing boarding passes, the passengers should have been asked to
wait in the airport lounge itself until the weather/visibility improved,
so that they could have had breakfast and lunch in the airport
restaurant without being confined to the aircraft for a total period of
eleven hours;
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(b) When the flight could not take off due to bad weather for a long time
(nearly eleven hours), the appellant ought to have brought back the
passengers from the aircraft to the terminal so that they could have
avoided confinement to their narrow seats in the aircraft and at the
same time had access to breakfast and lunch, proper toilet facilities, if
necessary, medicines;
(c) Though the appellant was a low cost carrier with no provision for
serving food, in the extraordinary circumstances of detention of the
passengers in the aircraft for 11 hours (before departure), it should
have provided breakfast and lunch of their choice and beverages, free
of cost, on board.
(d) The respondent being a diabetic and hyper-tension patient was
required to have timely meals and medicines, which he was denied.
Though a free sandwich was provided around 12.30 p.m., at around
3.00 p.m. when second round of frees snacks were offered, he was
offered a chicken sandwich which he could not accept being a
vegetarian. Offering a few biscuits with water as an alternative was
wholly insufficient.
(e) Since the toilets were being constantly used by the cooped up
passengers in the aircraft for several hours, and as there was no
proper air circulation, the air was unbreathable apart from the foul
smell from the toilet leading to nausea and dizziness.
9. The appellant resisted the claim of the respondent on the following
grounds :
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(a) The Permanent Lok Adalat at Hyderabad had no jurisdiction to
entertain the complaint. Having regard to the jurisdiction clause in
the contract of carriage, only the courts at Delhi had jurisdiction. Any
complaint or case had to be filed only at Delhi.
(b) The delay was for reasons beyond the control of the airlines and its
employees, due to dense fog and bad weather. As the visibility
dropped to less than around 15 meters, flights could not take off and
the consequential congestion at the airport led to further delay. Even
after the fog had cleared, the Air Traffic Control clearance for take
off was given only at 4.20 p.m. The delay was not on account of any
negligence or want of care or deficiency in service on the part of the
airlines, but due to bad weather conditions and want of ATC
clearance, which were beyond the control of the airlines and therefore
it was not liable to pay any compensation.
(c) The respondent was given the option of either re-booking in a
different flight, or receive the refund of the airfare, or continue the
journey in the same aircraft by taking the next combined flight to
depart as per ATC clearance. The respondent opted for continuing the
journey in the combined flight and he stayed in the aircraft. If he had
opted for re-booking or refund, he could have left the aircraft by
12.00 Noon.
(d) The respondent did not disclose his alleged physical condition (about
diabetes and hyper tension) either at the time of purchasing the ticket
or during the period he was on board. If he was suffering from any
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ailment he ought to have given advance notice or ought to have
accepted the offer for rebooking or refund and left the aircraft as was
done by several other passengers.
(e) Being a flight operated by a low cost carrier, the appellant did not
have any provision to serve any food or beverages. Only sandwiches
and some other snacks were available on sale basis. In spite of it, in
view of the delay, arrangements were made for supply of free
sandwiches and water, once around 12.30 p.m. and again around 3.00
p.m. The toilets were also functional all through the period. Thus
there was no deficiency in service or want of care on its part.
10. In regard to the detention of respondent at Hyderabad Airport, the
appellant submitted that the respondent and some of his fellow passengers
became agitated and furious when the announcement regarding cancellation of
flight No.6E 301 was made and started abusing and misbehaving with the crew
using extremely vulgar and threatening language; that the respondent also threw
the biscuits offered, at one of the crew members; and that a complaint was made
against the respondent and other members by the crew and consequently when
the flight reached Hyderabad there was an inquiry by appellant's Assistant
Manager (Security). It was further submitted that during enquiry, the crew
decided not to press the matter in the interests of customer relations and to
avoid unnecessary complications; and therefore, even though CISF personnel
advised that a written complaint may be given in regard to the misbehaviour, a
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written complaint was not given and the respondent and others were permitted
to leave. The allegation of wrongful confinement and harassment was thus
denied.
11. The Permanent Lok Adalat, by award dated 18.9.2009 held that it had
territorial jurisdiction. It further held that the delay was due to poor visibility
and bad weather conditions, reasons beyond the control of the appellant. It
further held: (a) though the claim of the respondent that he was confined in the
aircraft without providing food was not established, and though the airlines
being a low cost carrier, was not bound to provide any food to its passengers, as
the passengers were detained in the aircraft for long, not providing food of
passenger's choice caused inconvenience and suffering to the passengers; (b)
though there was no evidence to show that the respondent had notified the
airlines that he was a diabetic and it was not possible to hold the airlines
responsible in any manner, the fact that he suffered on account of being a
diabetic could not be ignored; and (c) though the relevant rules might not have
permitted the passengers who had boarded the aircraft to return to the airport
lounge, in view of the unduly long delay, the rules should have been relaxed
and the airlines was under a moral duty to take the passengers to the lounge and
keep them there till the flight was permitted to take off and failure to do so was
inexcusable. The Permanent Lok Adalat did not examine the grievance
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regarding wrongful confinement at the Hyderabad airport for an hour and half
stating that criminal offences were not within its purview. The Permanent Lok
Adalat held that there was laxity and deficiency in service on the part of the
appellant and consequently awarded Rs.10000 as compensation and Rs.2500 as
costs.
12. The said decision of the Permanent Lok Adalat was challenged by the
appellant by filing a writ petition. The High Court dismissed the writ petition by
the impugned judgment dated 31.12.2009. In regard to jurisdiction the High
Court held as follows:
"Most of the passengers, who took tickets or most of the passengers who buy
tickets in Indigo counters seldom, read the terms and conditions regarding
jurisdiction of Court in case of disputes. In such a situation, the jurisdiction
aspects of the contract between IndiGo and passenger must receive liberal
approach by the Courts or else the consumerism would be at peril."
The High Court did not interfere with the award of the Permanent Lok Adalat
on the following reasoning:
"Whatever be the reason and whatever be the justification, for Indigo in not
operating Flight 6E-301 as per schedule, it certainly caused inconvenience to
the passenger who is admittedly a diabetic patient. Therefore, he should at
least receive nominal damages for the deficiency of service. This was what
was precisely done by learned Permanent Lok Adalat in an unexceptional
manner. We do not see any strong reason to exercise our extraordinary
jurisdiction to find fault with the same."
13. The said order is under challenge in this appeal by special leave. On the
contentions urged the following questions arise for consideration:
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(i) Whether the Permanent Lok Adalat at Hyderabad did not have territorial
jurisdiction?
(ii) When a flight is delayed due to bad weather, after the boarding of
passengers is completed, what are the minimum obligations of an air carrier in
particular a low cost carrier, to ensure passenger comfort?
(iii) When there is delay for reasons beyond the control of the airlines,
whether failure to provide periodical lunch/dinner or failure to take back the
passengers to the airport lounge (so that they can have freedom to stretch their
legs, move around and take food of their choice) can be termed as deficiency in
service or negligence?
(iv) Whether the award of compensation of Rs.10,000/- with costs calls for
interference?
Re: Question (i) : Jurisdiction of Permanent Lok Adalat
14. The Indigo Conditions of Carriage, containing the standard terms which
govern the contract between the parties provide as follows: "All disputes shall
be subject to the jurisdiction of the courts of Delhi only." The appellant
contends that the ticket related to the travel from Delhi to Hyderabad, the
complaint was in regard to delay at Delhi and therefore the cause of action
arose at Delhi; and that as the contract provided that courts at Delhi only will
have jurisdiction, the jurisdiction of other courts were ousted. Reliance was
placed on ABC Laminart v. A.P. Agencies [1989 (2) SCC 163] where this court
held:
"So long as the parties to a contract do not oust the jurisdiction of all the
Courts which would otherwise have jurisdiction to decide the cause of action
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under the law it cannot be said that the parties have by their contract ousted
the jurisdiction of the Court. If under the law several Courts would have
jurisdiction and the parties have agreed to submit to one of these jurisdictions
and not to other or others of them it cannot be said that there is total ouster of
jurisdiction. In other words, where the parties to a contract agreed to submit
the disputes arising from it to a particular jurisdiction which would otherwise
also be a proper jurisdiction under the law, their agreement to the extent they
agreed not to submit to other jurisdictions cannot be said to be void as against
public policy. If on the other hand, the jurisdiction they agreed to submit to
would not otherwise be proper jurisdiction to decide disputes arising out of the
contract it must be declared void being against public policy.
......From the foregoing decisions it can be reasonably deduced that where
such an ouster clause occurs, it is pertinent to see whether there is ouster of
jurisdiction of other Courts. When the clause is clear, unambiguous and
specific accepted notions of contract would bind the parties and unless the
absence of ad idem can be shown, the other Courts should avoid exercising
jurisdiction, As regards construction of the ouster clause when words like
'alone', 'only, 'exclusive' and the like have been used there may be no
difficulty. Even without such words in appropriate cases the maxim 'expressio
unius est exclusio alterius' -expression of one is the exclusion of another may
be applied. What is an appropriate case shall depend on the facts of the case.
In such a case mention of one thing may imply exclusion of another. When
certain jurisdiction is specified in a contract an intention to exclude all others
from its operation may in such cases be inferred. It has therefore to be
properly construed."
15. The `exclusive jurisdiction clause', as noticed above is a standard clause
that is made applicable to all contracts of carriage with the appellant, relating to
passengers, baggage or cargo anywhere in the country, irrespective of whether
any part of the cause of action arose at Delhi or not. If for example a passenger
purchases a ticket to travel from Mumbai to Kolkata, or Chennai to Hyderabad,
which involved travel without touching Delhi and if such ticket was purchased
outside Delhi, obviously the Delhi courts will not have territorial jurisdiction as
no part of the cause of action arises in Delhi. As per the principle laid down in
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ABC Laminart, any clause which ousts the jurisdiction of all courts having
jurisdiction and conferring jurisdiction on a court not otherwise having
jurisdiction would be invalid. It is now well settled that the parties cannot by
agreement confer jurisdiction on a court which does not have jurisdiction; and
that only where two or more courts have the jurisdiction to try a suit or
proceeding, an agreement that the disputes shall be tried in one of such courts is
not contrary to public policy. The ouster of jurisdiction of some courts is
permissible so long as the court on which exclusive jurisdiction is conferred,
had jurisdiction. If the clause had been made to apply only where a part of
cause of action accrued in Delhi, it would have been valid. But as the clause
provides that irrespective of the place of cause of action, only courts at Delhi
would have jurisdiction, the said clause is invalid in law, having regard to the
principle laid down in ABC Laminart. The fact that in this case, the place of
embarkation happened to be Delhi, would not validate a clause, which is
invalid.
16. There is another reason for holding the said clause to be invalid. A clause
ousting jurisdiction of a court, which otherwise would have jurisdiction will
have to be construed strictly. In this case, we are concerned with a clause which
provides that all disputes shall be subject to the jurisdiction of the courts at
Delhi only. But in this case, the respondent did not approach a "court". The
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claim was filed by the respondent before a Permanent Lok Adalat constituted
under Chapter VI-A of the Legal Services Authorities Act, 1987 (`LSA Act' for
short). Section 22C provides that any party to a dispute may, before the dispute
is brought before any court, make an application to the Permanent Lok Adalat
for settlement of the dispute. When the statement, additional statements, replies
etc., are filed in an application filed before it, the Permanent Lok Adalat is
required to conduct conciliation proceedings between the parties, taking into
account, the circumstances of the dispute and assist the parties in their attempt
to reach an amicable settlement of the dispute. If the parties fail to reach an
agreement, the Permanent Lok Adalat is required to decide the dispute. The
Permanent Lok Adalats are authorized to deal with and decide only disputes
relating to service rendered by notified public utility services provided the value
does not exceed Rupees Ten Lakhs and the dispute does not relate to a non-
compoundable offence. Section 22D provides that the Permanent Lok Adalat
shall, while conducting the conciliation proceedings or deciding a dispute on
merit under the LSA 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 and the Indian Evidence Act, 1872.
Section 22E provides that every award of the Permanent Lok Adalat shall be
final and binding on the parties and could be transmitted to a civil court having
local jurisdiction for execution. Each and every provision of Chapter VIA of
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LSA Act emphasizes that is the Permanent Lok Adalat is a Special Tribunal
which is not a `court'. As noted above, Section 22C of the LSA Act provides
for an application to the Permanent Lok Adalat in regard to a dispute before the
dispute is brought before any court and that after an application is made to the
Permanent Lok Adalat, no party to the application shall invoke the jurisdiction
of any court in the same dispute, thereby making it clear that Permanent Lok
Adalat is distinct and different from a court. The nature of proceedings before
the Permanent Lok Adalat is initially a conciliation which is non-adjudicatory
in nature. Only if the parties fail to reach an agreement by conciliation, the
Permanent Lok Adalat mutates into an adjudicatory body, by deciding the
dispute. In short the procedure adopted by Permanent Lok Adalats is what is
popularly known as `CON-ARB' (that is "conciliation cum arbitration") in
United States, where the parties can approach a neutral third party or authority
for conciliation and if the conciliation fails, authorize such neutral third party or
authority to decide the dispute itself, such decision being final and binding. The
concept of `CON-ARB' before a Permanent Lok Adalat is completely different
from the concept of judicial adjudication by courts governed by the Code of
Civil Procedure. The Permanent Lok Adalat not being a `court', the provision in
the contract relating to exclusivity of jurisdiction of courts at Delhi will not
apply.
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17. The appellant next contended that even if the jurisdiction clause is
excluded from consideration, only courts and tribunals at Delhi will have
jurisdiction as the cause of action arose at Delhi and not at Hyderabad. The
appellant contended that the respondent boarded the flight at Delhi and the
entire incident relating to delay and its consequences took place at Delhi and
therefore courts at Delhi alone will have jurisdiction. This contention is wholly
untenable. The dispute was with reference to a contract of carriage of a
passenger from Delhi to Hyderabad. The ticket was purchased at Hyderabad
and consequently the contract was entered into at Hyderabad. A part of the
cause of action also arose at Hyderabad as the respondent clearly alleged as one
of the causes for claiming compensation, his illegal detention for an hour and
half at the Hyderabad Airport by the security staff of the appellant when the
flight landed. Therefore the courts and tribunals at Hyderabad had jurisdiction
to entertain the claims/disputes. Section 22B provides that permanent Lok
Adalats shall be established for exercising jurisdiction in respect of one or more
public utility services for such areas as may be specified in the notification. It is
not disputed that the Permanent Lok Adalat for public utility services,
Hyderabad was constituted for the area of Hyderabad and transport services by
way of carriage of passengers by air is a public utility service. Therefore we
hold that the Permanent Lok Adalat at Hyderabad had jurisdiction to entertain
the application against the appellant.
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18. One of the reasons assigned by the High Court to hold that Permanent
Lok Adalat at Hyderabad had jurisdiction was that the term in the IndiGo
conditions of carriage that only courts at Delhi will have jurisdiction should be
ignored as most of the passengers buying tickets from IndiGo may not read the
terms and conditions regarding jurisdiction of courts and therefore, the court
should adopt a liberal approach and ignore such clauses relating to exclusive
jurisdiction. The said reasoning is not sound. The fact that the conditions of
carriage contain the exclusive jurisdiction clause is not disputed. The e-tickets
do not contain the complete conditions of carriage but incorporate the
conditions of carriage by reference. The interested passengers can ask the
airline for a copy of the contract of carriage or visit the web-site and ascertain
the same. Placing the conditions of carriage on the web-site and referring to the
same in the e-ticket and making copies of conditions of carriage available at the
airport counters for inspection is sufficient notice in regard to the terms of
conditions of the carriage and will bind the parties. The mere fact that a
passenger may not read or may not demand a copy does not mean that he will
not be bound by the terms of contract of carriage. We cannot therefore, accept
the finding of the High Court that the term relating to exclusive jurisdiction
should be ignored on the ground that the passengers would not have read it.
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19. We may also at this juncture refer to the confusion caused on account of
the term Permanent Lok Adalat being used to describe two different types of
Lok Adalats. The LSA Act refers to two types of Lok Adalats. The first is a Lok
Adalat constituted under Section 19 of the Act which has no adjudicatory
functions or powers and which discharges purely conciliatory functions. The
second is a Permanent Lok Adalat established under section 22B(1) of LSA Act
to exercise jurisdiction in respect of public utility services, having both
conciliatory and adjudicatory functions. The word Permanent Lok Adalat
should refer only to Permanent Lok Adalats established under section 22B(1) of
the LSA Act and not to the Lok Adalats constituted under section 19. However
in many states, when Lok Adalats are constituted under section 19 of LSA Act
for regular or continuous sittings (as contrasted from periodical sittings), they
are also called as Permanent Lok Adalats even though they do not have
adjudicatory functions. In LIC of India vs. Suresh Kumar - 2011 (4) SCALE
137, this court observed: "It is needless to state that Permanent Lok Adalat has
no jurisdiction or authority vested in it to decide any lis, as such, between the
parties even where the attempt to arrive at an agreed settlement between the
parties has failed". The said decision refers to such a `Permanent Lok Adalat'
organized under section 19 of the Act and should not be confused with
Permanent Lok Adalats constituted under section 22B(1) of the Act. To avoid
confusion, the State Legal Services Authorities and the High Courts may ensure
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that Lok Adalats other than the Permanent Lok Adalats established under
section 22B(1) of the Act in regard to public utility services, are not described
as Permanent Lok Adalats. One way of avoiding the confusion is to refer to the
Lok Adalats constituted under section 19 of the Act on a regular or permanent
basis as `Continuous Lok Adalats'. Be that as it may.
Re : Question (ii) to (iv)
Low cost carrier vis-a-vis full service carrier
20. The appellant is a low cost carrier. It is necessary to bear in mind the
difference between a full service carrier and a low cost carrier, though both are
passenger airlines. Low cost carriers tend to save on overheads, operational
costs and more importantly on the services provided. Low cost carriers install
the maximum number of seats possible in their aircraft, and attempt to operate
the aircraft to optimum levels and fill the seats to capacity. The passengers, who
prefer to travel on budget fares, when opting for low cost carriers know fully
well that they cannot expect from them, the services associated with full service
carriers. From the passenger's view point, the important difference between the
two classes of airlines lies in the on-board service offered to them by the
airlines. While full service carriers offer several services including free food
and beverages on board, low cost carriers offer the minimal `no-frills' service
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which does not include any free food or beverages except water. But the fact
that an airline is a low cost carrier does not mean that it can dilute the
requirements relating to safety, security and maintenance. Nor can they refuse
to comply with the minimum standards and requirements prescribed by the
Director General of Civil Aviation (`DGCA' for short). The fact that it offers
only `no- frills' service does not mean that it can absolve itself from liability for
negligence, want of care or deficiency in service. Both types of carriers have
clauses either excluding or limiting liability in respect of certain contingencies.
The disclaimers by low cost carriers will be more wider and exhaustive when
compared to full service carriers. DGCA and other authorities concerned with
licensing low cost carriers, shall have to ensure that the terms of contract of
carriage of low cost carriers are not unreasonably one sided with reference to
their disclaimers. This becomes all the more necessary as the terms of contract
of carriage are not incorporated in the tickets that are issued and usually
passengers, who purchase the tickets, will not be able to know the actual terms
and conditions of contract of carriage unless they visit the website of the airline
or seeks a copy of the complete terms of contract of carriage. All that is
required to be noted in the context of this case is that travel by a low cost carrier
does not mean that the passengers are to be treated with any less care, attention,
respect or courtesy when compared to full service carriers or that there can be
dilution in the minimum standards of safety, security or efficiency.
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Relevant statutory provisions and DGCA directives
21. The Carriage of Air Act, 1972 gives effect to the convention for
unification of certain rules relating to international carriage by air, and
amendments thereto, to non-international carriage by air. Section 8 provides
that the Central Government may by notification in the official gazette apply
the rules contained in the first schedule to the Act and any provision of section
3 or section 5 or section 6 to such carriage by air, not being international
carriage by air, as may be specified in the notification, subject, however, to such
exceptions, adaptations, modifications as may be so specified. Notification
No.SO.186E dated 30.3.1973 issued under section 8 of the Act applies to
sections 4, 5 and 6 and the rules contained in the second schedule to the Act to
all carriages by air (not being an international carriage) and also modified
several rules in the second schedule to the Act apart from amending sections 4
and 5 and omitting section 6 of the Act. Chapter III of the Second Schedule to
the said Act relates to "liability of the carrier" and clause 19 thereof (as
amended by Notification No.SO.186(E) dated 30.3.1973 issued under section
8(2) of that Act) is extracted below:-
"19. In the absence of a contract to the contrary, the carrier is not to be
liable for damage occasioned by delay in the carriage by air of passengers,
baggage or cargo."
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22. Rule 134 of the Aircraft Rules 1937 provides that no person shall operate
any scheduled air transport services except with the permission of the Central
Government. Rule 133A of the said Rules provides that the special directions
issued by the Director General of Civil Aviation (`DGCA' for short) by way of
circulars/notices to aircraft owners relating to operation and use of aircraft shall
be complied with by the persons to whom such direction is issued. The Director
General of Civil Aviation, Govt. of India, issued a circular No.8/2007 dated
5.12.2007, containing the guidelines for Aircraft operations during Low
Visibility Conditions (Fog management) at IGI Airport, Delhi which were
applicable on the relevant date (14.12.2007). Clauses 31, 32, 35 and 36 thereof
are extracted below :
"31) Airlines shall augment their ground staff and position them at the airport
with proper briefing for handling various passenger facilitation processes in
co-ordination with the other airport agencies.
32) Airlines shall inform their passengers of the
delay/rescheduling/cancellation of their flights in through mobile/SMS/other
communication mean to avoid congestion at the airport.
35) Airlines shall ensure progressive boarding of the passengers out of
security hold area in order to avoid congestion in the security hold. Passenger
after check-in shall be made to proceed for security by the airlines after
ensuring that the flight is ready to depart/is on ground. If delayed, after
boarding, appropriate facilitation to be given by Airlines on board.
36) The Airlines, particularly LCC shall provide facilitation in terms of
tea/water/snacks to the passenger of their delayed flights. The coupon
scheme extended by DIAL may be availed by airlines for the passenger
facilitation purpose."
[emphasis supplied]
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Other directives referred by way of comparison
23. We may, by way of comparison also refer to the following provisions of
the subsequent circular/CAR (Civil Aviation Requirements) dated 6.8.2010
issued by DGCA in regard to the facilities to be provided to passengers by
airlines due to denied boarding, cancellation or delays in flights, which came
into effect from 15.8.2010.
"Introduction
x x x
1.4 The operating airline would not have the obligation to pay compensation
in cases where the cancellations and delays have been caused by an event(s)
of force majeure i.e. extraordinary circumstance(s) beyond the control of the
airline, the impact of which lead to the cancellation/delay of flight(s), and
which could not have been avoided even if all reasonable measures had been
taken by the airline. Such extraordinary circumstances may in particular,
occur due to political instability, natural disaster, civil war, insurrection or
riot, flood, explosion, government regulation or order affecting the aircraft,
strikes and labour disputes causing cessation, slowdown or interruption of
work or any other factors that are beyond the control of the airline.
1.5 Additionally, airlines would also not be liable to pay any compensation
in respect of cancellations and delays clearly attributable to Air Traffic
Control (ATC), meteorological conditions, security risks, or any other
causes that are beyond the control of the airline but which affect their
ability to operate flights on schedule.
Extraordinary circumstances should be deemed to exist where the impact of
an air traffic management decision in relation to a particular aircraft or several
aircraft on a particular day, gives rise to a long delay or delays, an overnight
delay, or the cancellation of one or more flights by that aircraft, and which
could not be avoided even though the airline concerned had taken all
reasonable measures to avoid or overcome of the impact of the relevant factor
and, therefore, the delays or cancellations.
x x x x x x x x x
24
3.4 Delay in Flight
3.4.1 The airlines shall provide facilities in accordance with Para 3.6.1 (a) if
the passenger has checked in on time, and if the airline expects a delay
beyond its original announced scheduled time of departure or a revised time
of departure of:
a) 2 hours or more in case of flights having a block time of up to 2 = hrs; or
b) 3 hours or more in case of flights having a block time of more than 2 = hrs
and up to 5 hours; or
c) 4 hours or more in case of flights not falling under sub-para (1) and (b) of
Para 3.4.1.
3.4.2. When the reasonably expected time of departure is more than 24 hours,
after the scheduled time of departure previously announced, the airline shall
provide facility to the passengers in accordance with the provisions of para
3.6.1(b) hereunder.
3.4.3 An operating airline shall not be obliged to adhere to Para 3.6 if the
delay is caused due to extra ordinary circumstances as defined in Para 1.4 and
Para 1.5 which could not have been avoided even if all reasonable measures
had been taken.
x x x x x x x x x
3.6 Facilities to be offered to Passengers
3.6.1 Passengers shall be offered free of charge the following:
a) Meals and refreshments in relation to waiting time.
b) Hotel Accommodation when necessary (including transfers).
3.6.2 Airlines shall pay particular attention to the needs of persons with
reduced mobility and any other person (s) accompanying them.
3.8 General
3.8.1 The airlines shall display their policies in regard to compensation,
refunds and the facilities that will be provided by the airline in the event of
denied boardings, cancellations and delays on their respective websites as part
of their passenger Charter of Rights. Passengers shall be fully informed by the
airlines of their rights in the event of denied boarding, cancellations or delays
of their flights so that they can effectively exercise their rights provided at the
time of making bookings/ticketing, they have given adequate contact
25
information to the airline or their agents. The obligation of airlines to fully
inform the passenger(s) shall be included in ticketing documents and websites
of the airlines and concerned third parties (GDS and travel agents) issuing
such documents on airlines' behalf. "
(emphasis supplied)
24. We may also refer to Regulation (EC) No.261/2004 of the European
Parliament and of the Council, establishing common rules on compensation and
assistance to passengers in the event of denied boarding and of cancellation or
long delay of flights, to know the European standards. Clause (17) of the
preamble thereto provides thus :
"(17) Passengers whose flights are delayed for a specified time should be
adequately cared for and should be able to cancel their flights with
reimbursement of their tickets or to continue them under satisfactory
conditions."
(emphasis supplied)
Article 6 deals with delay, Article 8 deals with reimbursement and Regulation 9
deals with passengers' right to care. We extract below the relevant regulations :
"Article 6 (Delay)
1. When an operating air carrier reasonably expects a flight to be delayed
beyond its scheduled time of departure:
(a) for two hours or more in the case of flights of 1,500 kilometres or less; or
(b) for three hours or more in the case of all intra-Community flights of more
than 1,500 kilometres and of all other flights between 1,500 and 3,500
kilometres; or
(c) for four hours or more in the case of all flights not falling under (a) or (b),
Passengers shall be offered by the operating air carrier:
26
(i) the assistance specified in Article 9(1)(a) and 9(2); and
(ii) when the reasonably expected time of departure is at least the day after
the time of departure previously announced, the assistance specified in Article
9(1)(b) and 9(1)(c); and
(iii) when the delay is at least five hours, the assistance specified in Article
8(1)(a).
2. In any event, the assistance shall be offered within the time limits set out
above with respect to each distance bracket.
Article 8 (Right to reimbursement or re-routing)
xxxx
Article 9 (Right to care)
1. Where reference is made to this Article, passengers shall be offered free
of charge:
(a) meals and refreshments in a reasonable relation to the waiting time;
(b) hotel accommodation in cases
-- where a stay of one or more nights becomes necessary, or
-- where a stay additional to that intended by the passenger becomes
necessary;
(c) transport between the airport and place of accommodation (hotel or other).
2. In addition, passengers shall be offered free of charge two telephone calls,
telex or fax messages, or e-mails."
(emphasis supplied)
Liability for damages for delay
25. Rule 19 of Second Schedule to Carriage by Air Act, makes it clear that
the carrier is not liable for damage occasioned by delay in the carriage by air of
passengers. The position would be different if under the contract, the carrier
agrees to be liable for damages. On the other hand, the IndiGo Conditions of
27
Carriage categorically state that the carrier will not be liable to pay any
damages for delays, rescheduling or cancellations due to circumstances beyond
the control of IndiGo. There is no dispute that in this case, the delay was for
reasons beyond the control of the carrier. The guidelines show that the
operating air carrier would not be liable to pay compensation to a passenger, in
respect of either cancellation or delays attributable to meteorological conditions
(weather/fog etc.,) or air traffic control directions/instructions, which are
beyond the control of the air carrier. The Permanent Lok Adalat recorded a
finding of fact that delay was due to dense fog/bad weather and want of ATC
clearance due to air traffic congestion, which were beyond the control of the air
carrier and as a consequence rightly held that the air carrier was not liable for
payment of any compensation for the delay as such. We may note this was the
position as on the date of the incident (14.12.2007) and even subsequently, after
the issue of the guidelines dated 6.8.2010 by the DGCA.
Liability to provide facilitation during delay
26. The issue of responsibility for delay in operating the flight is distinct and
different from the responsibility of the airline to offer facilitation to the
passengers grounded or struck on board due to delay. If the obligation to
provide facilitation to the passengers is legally recognized, either based on
28
statutory requirements or contractual obligations or recognized conventions,
failure to provide the required minimum facilitation may, depending upon the
facts of the case, amount to either breach of statutory/contractual obligation,
negligence, want of care or deficiency in service on the part of the operating
airline entitling the passengers for compensation.
27. We may consider whether there was any such obligation to provide
facilitation to passengers by the appellant on 14.12.2007. As per the DGCA's
guidelines dated 5.12.2007 which were in force on 14.12.2007, there was such
obligation on the part of the carrier. Clause 35 provided if the flight is delayed,
after boarding, appropriate facilitation has to be given by the Airlines on board.
Clause 36 provides that the Airlines, even low cost carriers, had to provide
facilitation in terms of tea/water/snacks to the passengers of their delayed
flights.
28. Under the CAR circular dated 6.8.2010 which came into effect on
15.8.2010, in the event of delays attributable to air traffic control or
meteorological conditions, the operating Airlines shall have to offer to the
passengers free of cost, meals and refreshment in relation to waiting time, vide
clause 3.6.1(a) read with clause 3.4.1. Facilitation of passengers who are
stranded after boarding the aircraft on account of delays is an implied term of
29
carriage of passengers, accepted as an international practice, apart from being a
requirement to be fulfilled under DGCA's directives. Such facilitation which
relates to the health, survival and safety of the passengers, is to be provided, not
only by full service carriers, but all airlines including low cost carriers. This
obligation has nothing to do with the issue of liability or non-liability to pay
compensation to the passengers for the delay. Even if no compensation is
payable for the delay on account of bad weather or other conditions beyond the
control of the air carrier, the airline will be made liable to pay compensation if
it fails to offer the minimum facilitation in the form of
refreshment/water/beverages, as also toilet facilities to the passengers who have
boarded the plane, in the event of delay in departure, as such failure would
amount to deficiency in service. At the relevant point of time (14th December
2007), in the event of delay, passengers on-board were to be provided by the air
carriers, including low cost carriers, facilitation by way of snacks/water/tea
apart from access to toilet. [Note: The facilitation requirement was subsequently
revised and upgraded with effect from 15.8.2010 as "adequate meals and
refreshments" due during the waiting period].
29. We may at this juncture refer to the decision of this Court in Ravneet
Singh Bagga vs. KLM Royal Dutch Airlines - 2000 (1) SCC 66, wherein the
30
distinction between a deficiency in service and negligence is brought out. This
Court held:
"6. The deficiency in service cannot be alleged without attributing fault,
imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be performed by a person in pursuance of a
contract or otherwise in relation to any service. The burden of proving the
deficiency in service is upon the person who alleges it. The complainant has,
on facts, been found to have not established any willful fault, imperfection,
shortcoming or inadequacy in the service of the respondent. The deficiency in
service has to be distinguished from the tortuous acts of the respondent. In the
absence of deficiency in service the aggrieved person may have a remedy
under the common law to file a suit for damages but cannot insist for grant of
relief under the Act for the alleged acts of commission and omission
attributable to the respondent which otherwise do not amount to deficiency in
service...... If on facts it is found that the person or authority rendering service
had taken all precautions and considered all relevant facts and circumstances
in the course of the transaction and that their action or the final decision was
in good faith, it cannot be said that there had been any deficiency in service. If
the action of the respondent is found to be in good faith, there is no deficiency
of service entitling the aggrieved person to claim relief under the Act. The
rendering of deficient service has to be considered and decided in each case
according to the facts of that case for which no hard and fast rule can be laid
down. Inefficiency, lack of due care, absence of bonafide, rashness, haste or
omission and the like may be the factors to ascertain the deficiency in
rendering the service."
Effect of IndiGo Conditions of Carriage on the liability for facilitation
30. The next question is whether the exclusion clause in the IndiGo
Conditions of Carriage can absolve liability to provide facilitation to passengers
affected by delay. The relevant clause in the Indigo conditions of carriage is
extracted below :
"Flight Delays, Reschedule or Cancellations
IndiGo reserves the right to cancel, reschedule or delay the commencement or
continuance of a flight or to alter the stopping place or to deviate from the
31
route of the journey or to change the type of aircraft in use without incurring
any liability in damages or otherwise to the Customers or any other person
whatsoever. Sometimes circumstances beyond IndiGo's control result in flight
delays, reschedule or cancellations. In such circumstances, IndiGo reserves
the right to cancel, reschedule or delay a flight without prior
notice. Circumstances beyond IndiGo's control can include, without
limitation, weather; air traffic control; mechanical failures; acts of terrorism;
acts of nature; force majeure; strikes; riots; wars; hostilities; disturbances;
governmental regulations, orders, demands or requirements; shortages of
critical manpower, parts or materials; labour unrest; etc. IndiGo does not
connect to other airlines and is not responsible for any losses incurred by
Customers while trying to connect to or from other airlines.
If an IndiGo flight is cancelled, rescheduled or delayed for more than
two/three hours (depending on the length of the journey), a Customer
shall have to right to choose a refund; or a credit for future travel on
IndiGo; or re-booking onto an alternative IndiGo flight at no additional
cost subject to availability.
x x x x x x x x x
Please note that in the event of flight delay, reschedule or cancellation,
IndiGo does not provide compensation for travel on other airlines, meals,
lodging or ground transportation."
(emphasis supplied)
31. The said exclusion clause no doubt states that in the event of flight delay,
IndiGo would not provide any "meals". But it can apply to passengers who
have not boarded the flight and who have the freedom to purchase food in the
airport or the freedom to leave. It will not apply to passengers who are on board
and the delay in the flight taking off, denies them access to food and water. In
the extra-ordinary situation where the passengers are physically under the
complete care and control of the airline, as it happens when they have boarded
the aircraft and have no freedom to alight from the aircraft, the duty of the
airlines to protect and care for them, and provide for basic facilitation would
32
prevail over any term of the contract excluding any facilitation (except where
the carrier itself cannot access food due to emergency situations). No public
utility service can say that it is not bound to care for the health, welfare and
safety of the passengers because it is a low cost carrier. At all events, the said
clause in question stood superseded, in so far as flights taking off from IGI
Airport, Delhi, having regard to the guidelines relating to Aircraft operations
during low visibility conditions at IGI Airport, Delhi, which provide that all
airlines including low cost carriers shall provide facilitation in terms of
tea/water/snacks to the passengers of delayed flights. (The DGCA directives in
force from 15.8.2010 clearly provide that passengers shall be offered free of
cost meals and refreshment in relation to the waiting time). What we have
stated above is with reference to the passengers on board, in delayed flights
which have not taken off. Subject to any directives of DGCA to the contrary,
the exclusion clause will be binding in normal conditions, that is, during the
flight period, once the flight has taken off, or where the passenger has not
boarded.
What was the period of delay?
32. The respondent's complaint is about the inordinate delay of eleven hours
after boarding. The question is whether there was a delay of nearly eleven
hours, as contended by the respondent. It is true that the respondent was
33
confined to the aircraft for nearly eleven hours on account of the delay. But a
careful examination of the facts will show that the delay in a sense was not of
11 hours (from 5.35 a.m. to 4.37 p.m). The respondent first took flight No.6E-
301 which was scheduled to depart at 6.15 a.m. and boarded that flight at 5.45
a.m. When that flight was unduly delayed on account of the bad weather around
11.15 a.m. the said flight was cancelled and was combined with subsequent
flight No.6E-305 due to depart at 12.15 p.m. When flight No.6E-301 was
cancelled all its passengers were given the option of refund of the fare or credit
for future travel or re-booking on to an alternative Indigo flight. Because the
delayed flight was combined with the subsequent flight and the same aircraft
was to be used for the subsequent flight that was to take off at 12.15 p.m., the
respondent and some others, instead of opting for refund of the air fare or re-
booking on a subsequent flight, opted to continue to be in the aircraft and took
the combined flight which was scheduled to depart at 12.15 p.m. subject to
ATC clearance. In so far as flight No.6E-301 is concerned, after a delay of
about five hours it was cancelled and the passengers could have left the aircraft
as many did. If the respondent continued to sit in the aircraft, it was because of
his voluntary decision to take the later flight which was a combination of flight
No.6E-301 and 6E-305 which was due to depart at 12.15 p.m. (subject to ATC
clearance) and that was delayed till 4.37 p.m. Therefore the delay in regard to
the combined flight which was due for departure at 12.15 p.m. was four hours
34
and twenty minutes.
33. The respondent was offered the choice of refund of fare, credit for a
future travel on IndiGo or rebooking in a subsequent IndiGo flight. The third
option was further extended by giving the option to remain on board by taking
the subsequent combined flight using the same aircraft subject to ATC's
clearance. The respondent consciously opted for the third choice of continuing
in the combined flight and remained in the aircraft. Therefore, the stay of eleven
hours in the aircraft was a voluntary decision of the respondent, as he could
have left the aircraft much earlier around 11.00 a.m. by either opting to obtain
refund of the air fare or by opting for credit for future travel or by opting for an
IndiGo flight on a subsequent day. Having opted to remain on board the
respondent could not make a grievance of the delay, or non-availability of food
of his choice or medicines.
Whether the airline failed to provide facilitation to respondent?
34. It is not in dispute that during the initial period of delay, when it was not
known that there would be considerable delay, the respondent purchased a
sandwich in the normal course. When flight No.6E-301 was cancelled and
combined with the subsequent flight No.6E-305, the on-board passengers
including respondent who opted to continue in the flight were offered snacks
35
(sandwiches) and water free of cost, around 12 noon. As the combined flight
(No.6E-305) was also delayed, a second free offer of sandwiches and water was
made around 3 p.m. But the second time, what was offered to respondent was a
chicken sandwich and as the respondent who was a vegetarian refused it, he
was offered biscuits and water, instead. It is not the case of the respondent that
toilet facilities were denied or not made available. In the circumstances, the
appellant being a low cost carrier, the facilitations offered by it, were
reasonable and also met the minimum facilitation as per the DGCA guidelines
applicable at the relevant point of time.
35. In the absence of prior intimation about the preference in regard to food
and in emergency conditions, the non-offer of a vegetarian sandwich in the
second round of free snacks cannot be considered to be a violation of basic
facilitation. While the dietary habits or religious sentiments of passengers in
regard to food are to be respected and an effort should be made to the extent
possible to cater to it, in emergency situations, non-offer of the preferred diet
could not be said to be denial of facilitation, particularly when the airline had no
notice of passengers' preference in food. In fact, the appellant being a low cost
carrier, there was also no occasion for indicating such preferences. We however
note that in the subsequent DGCA guidelines which came into effect from
15.8.2010, the facilitation to be provided has been appropriately upgraded by
36
directing that the delayed passengers are to be provided with meals and
refreshment as and when due depending upon the period of delay.
36. There is nothing to show that respondent requested for any treatment or
medicines during the period when he was on board. He had also not notified the
Airlines that he was a patient suffering from an ailment which required
medication or treatment. Therefore, the respondent could not expect any special
facilitation, even if his condition would have added to his physical discomfort
on account of delay.
Whether respondent is entitled to compensation for detention at
Hyderabad?
37. The next question that arises for consideration is whether the appellant is
liable to compensate the respondent for the detention for nearly one and half
hours after disembarkation at Hyderabad. The appellant's version is that
respondent started abusing and misbehaving with the crew members using
vulgar and threatening language, that he threw the biscuits offered on a crew
member, that he was detained for the purpose of enquiry by the Assistant
Manager of the appellant at Hyderabad on the complaint of the crew members,
but to avoid unnecessary complications and good customer relations, the crew
members decided not to give written complaint and therefore he was permitted
37
to leave after some time. The respondent's version is that the complaint by the
crew was false and this was proved by the fact that they did not give a written
complaint. There is no evidence as to what transpired and the two versions
remained unsubstantiated. But the undisputed facts show he was asked to
remain in view of a complaint by the crew, that CSIF personnel stated that
unless there was written complaint, no action could be taken, that the crew did
not give written complaint and the respondent was permitted to leave after
about an hour of disembarkation. On the facts and circumstances this cannot be
termed to be unnecessary or deliberate harassment by the airlines. While the
airlines ought to have been sensitive to the travails of the passengers who were
cooped up in the aircraft for more than thirteen hours without adequate food or
other facilities, the airlines also could not ignore any complaint by the crew
about any unruly behaviour of any passenger. Be that as it may. In this case
neither the Permanent Lok Adalat, nor the High Court has recorded any finding
of wrongful or vexatious detention or harassment. Therefore the question of
awarding compensation under this head also does not arise.
Whether the appellant is liable to pay damages?
38. The Permanent Lok Adalat has held that when there was an inordinate
delay after completion of boarding, the airlines had a moral duty, irrespective of
rules and regulations, to take back the passengers to the airport lounge by
38
obtaining necessary approvals from the airport/ATC authorities and keep the
passengers in the lounge till the clearance for the flight to take off was given
and failure to do so was an unexcusable and unbecoming behaviour on the part
of the airline. We agree that the carrier should take steps to secure the
permission of the Airport and ATC authorities to take back the passengers who
had already boarded to the airport lounge when there was an inordinate delay.
But the assumption that the rules and regulations had to be ignored or without
the consent and permission of the airport and ATC authorities, the airline crew
ought to have taken back the passengers to the airport lounge, is not sound. The
admitted position in this case is that the airlines made efforts in that behalf, but
permission was not granted to the airlines to send back the passengers to the
airport lounge, in view of the heavy congestion in the airport. The airport and
the ATC authorities are not parties to the proceedings. If permission was not
granted for the passengers to be taken to the airport lounge, the airlines cannot
be found fault with. Therefore, the observation that failure to take the
passengers to the airport lounge was unexcusable and unbecoming behaviour on
the part of the airlines, was not warranted on the facts and circumstances of the
case.
39. The High Court has justified the award of damages on the ground that as
appellant did not operate IndiGo flight No.6E-301 as per schedule and caused
39
inconvenience to a passenger who is a diabetic patient, he was entitled to
nominal damages for deficiency in service. Where the delay is for reasons
beyond the control of the airlines as in this case due to bad weather and want of
clearance from ATC, in the absence of proof of negligence or deficiency in
service the airlines cannot be held responsible for the inconvenience caused to
the passengers on account of the delay. The justification for damages given by
the High Court does not find support either on facts or in law.
Conclusion
40. There can be no doubt that the respondent, like any other passenger
forced to sit in a narrow seat for eleven hours, underwent considerable physical
hardship and agony on account of the delay. But, it was not as a consequence of
any deficiency in service, negligence or want of facilitation by the appellant.
Consumer fora and Permanent Lok Adalats can not award compensation merely
because there was inconvenience or hardship or on grounds of sympathy. What
is relevant is whether there was any cause of action for claiming damages, that
is whether there was any deficiency in service or whether there was any
negligence in providing facilitation. If the delay was due to reasons beyond the
control of the airline and if the appellant and its crew have acted reasonably and
in a bona fide manner, the appellant cannot be made liable to pay damages even
40
if there has been some inconvenience or hardship to a passenger on account of
the delay.
41. If a flight had remained on tarmac without taking off, for eleven hours,
after boarding was completed, and if permission was refused to send the
passengers to the Airport lounge, the Airport and ATC authorities have to be
blamed for requiring the passengers to stay on board. Normally if the aircraft
has remained on tarmac for more than two or three hours after boarding is
closed, without the flight taking off, the passengers should be permitted to get
back to the airport lounge to get facilitation service from the airline. Whenever
there is such delay beyond a reasonable period (say three hours), the passengers
on board should be permitted to get back to the airport lounge. If for any
unforeseen reason, the passengers are required to be on board for a period
beyond three hours or more, without the flight taking off, appropriate provision
for food and water should be made, apart from providing access to the toilets.
Congestion in the airport on account of the delayed and cancelled flights can
not be a ground to prevent the passengers on board from returning to the airport
lounge when there is a delay of more than two hours after completion of
boarding. While the guidelines issued by the DGCA cover the responsibilities
of the airlines, DGCA and other concerned authorities should also specify the
responsibilities of the airport and the ATC authorities to ensure that no aircraft
41
remains on tarmac for more than three hours after the boarding is closed and
that if it has to so remain, then permit the passengers to return to the airport
lounge from the aircraft, till the aircraft is ready to take off. DGCA shall also
ensure that the conditions of carriage of all airlines in India is in consonance
with its Civil Aviation Directives.
42. In view of our findings, this appeal is allowed. The order of the
Permanent Lok Adalat affirmed by the High Court awarding damages and costs
to the respondent is set aside and the application of respondent for
compensation is rejected. We place on record, our appreciation for the
assistance rendered by Shri V. Giri, senior counsel, as amicus curiae.
.............................J.
(R V Raveendran)
New Delhi; ............................J.
July 4, 2011. (A K Patnaik)
