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TMI Blog2011 (7) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... llenging 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. 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 addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound 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: (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 pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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). Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nited 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. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the passengers would not have read it. 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 jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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. Relevant statutory provisions and DGCA directives 21. The Carriage of Air Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reschedule or delay the commencement or continuance of a flight or to alter the stopping place or to deviate from the 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was a delay of nearly eleven hours, as contended by the respondent. It is true that the respondent was 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 rebooking 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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