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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 ..... t 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). 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 trave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 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 airpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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 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, arrangem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 interf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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', ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 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 publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 flight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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