Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS…778779/2020
(arising out of SLP(C) Nos. 2860028601 OF 2018)
The Branch Manager,
Indigo Airlines, Kolkata & Anr. … Appellants
Versus
Kalpana Rani Debbarma & Ors. …Respondents
J U D G M E N T
A. M. KHANWILKAR, J.
1. Leave granted.
2. The appellants, who are representatives of two different
branches of an aviation company operating low cost air carrier under
the name and style of M/s. Indigo Airlines have filed these appeals,
taking exception to the judgment and order dated 12.9.2018 passed
by the National Consumer Disputes Redressal Commission, New
Delhi (for short, ‘the National Commission’) in Revision Petition Nos.
Signature Not Verified
Digitally signed by
CHARANJEET KAUR
Date: 2020.01.28
14:09:41 IST
Reason:
15201521/2018. Thereby, the revision petitions filed by the
appellants came to be rejected and the judgment and order dated
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22.8.2017 passed by the District Consumer Disputes Redressal
Forum, West Tripura, Agartala (for short, ‘the District Forum’) in Case
No. CC35/2017, as modified by the Tripura State Consumer
Disputes Redressal Commission, Agartala (for short, ‘the State
Commission’) vide judgment and order dated 22.2.2018 in Appeal
Case Nos. A.53.2017 and A.61.2017, directing the appellants to pay
to the respondents a compensation of Rs.51,432/ (Rupees fifty one
thousand four hundred thirty two only) within two months failing
which to pay the same alongwith interest at the rate of 9% per
annum, came to be confirmed. Additionally, a cost of Rs.20,000/
(Rupees twenty thousand only) for filing the revision petitions against
such meagre compensation amount was also imposed.
3. At the outset, the appellants made it clear that they were not so
much concerned about the amount of compensation/cost ordered to
be paid to the respondents, but have serious grievance about the
sweeping observations made by the three fora, which were untenable,
both on facts and in law. The appellants agreed to deposit a sum of
Rs.1,00,000/ (Rupees one lakh only) in the District Forum, which
was a condition precedent for issuing notice to the respondents vide
order dated 13.11.2018. That amount has been deposited and also
withdrawn by the respondents. The matter, therefore, proceeded with
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the clear understanding that the appellants will not insist for refund
of the amount, even if the appeals succeed on merits. The
respondents, though entered appearance, the Court requested Mr.
Rajiv Dutta, learned senior counsel to appear as A micus Curiae to
assist the Court.
4. Briefly stated, the respondents had booked air ticket(s) vide PNR
No. IHRNSE to travel from Kolkata to Agartala on 8.1.2017 i.e.
Sunday in flight No. 6E861, operated by the appellantAirlines,
departing at 08:45 a.m. According to the respondents, they had
reported well in time at the checkin counter of the appellantAirlines
at Netaji Subhash Chandra Bose (Domestic) Airport, Kolkata and after
completing necessary formalities, they were issued boarding passes
for travelling by the stated flight. However, the respondents were left
behind by the groundstaff of the appellantAirlines and the
concerned flight departed, without any information about its
departure given to the respondents. The respondents then requested
the groundstaff of the appellantAirlines to accommodate them in the
next available flight for Agartala from Kolkata. Even that request was
turned down, as the respondents did not have requisite funds to
procure the airtickets for the same. Instead, the groundstaff of the
appellantAirlines snatched away the boarding passes of the
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respondents, as a result of which the respondents had no other
option but to stay back at Kolkata in a hotel for two nights, and after
arranging for funds, they left by a flight of the appellantAirlines on
10.1.2017. Resultantly, the respondents had to incur expenditure for
staying back in a hotel at Kolkata for two nights. They also had to
incur loss of salary, loss of education of the two accompanying
children (respondent Nos. 3 and 4) of respondent Nos. 1 and 2 and
mental agony, harassment, suffering and frustration. Initially, the
respondents sent a legal notice through their Advocate on 28.1.2017
demanding compensation of Rs.3,32,754/ (Rupees three lakhs
thirtytwo thousand seven hundred fiftyfour only). As no response
thereto was received, the respondents filed a complaint before the
District Forum reiterating the grievance made in the legal notice and
prayed for direction to the appellants to pay a total sum of
Rs.3,77,770/ (Rupees three lakhs seventy seven thousand seven
hundred seventy only) alongwith interest at the rate of 12% per
annum. The said complaint was contested by the appellants by filing
written statement raising preliminary objection and also asserting
that the flight in question had to depart after the boarding gate was
closed at 08:58 a.m. By that time, the respondents had not reported
at the boarding gate despite the stipulation that the boarding gate
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would be closed 25 minutes prior to the departure time as per the
Conditions of Carriage (for short, ‘the CoC’), which were binding on all
concerned, as expounded by this Court in
Interglobe Aviation
1
Limited vs. N. Satchidanand . The respondents having failed to
report at the boarding gate before its closure for reasons best known
to them, the groundstaff of the appellantAirlines had no other option
but to treat it as ‘Gate No Show’ in terms of article 8.2 of the CoC and
to facilitate the flight to depart as per the permission given by the Air
Traffic Control (ATC) for departure. The respondents were responsible
for the situation for which the appellants cannot be made liable,
much less on the ground of deficiency in service. As a matter of fact,
the scheduled time of departure was 08:45 a.m. In terms of article
8.2 of the CoC, the boarding gate was supposed to be closed at 08:20
a.m., but as the flight was delayed for some time due to logistical
reasons beyond the control of the appellantAirlines, the boarding
gate was actually closed at 08:58 a.m. Despite that, the respondents
failed to report at the boarding gate in time, although boarding passes
were issued much earlier at around 07:35 a.m. as asserted by the
respondents. The appellants also asserted that in terms of the
stipulations in the CoC, in the present situation, the appellants were
1 (2011) 7 SCC 463
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required to merely refund the Government and airport fees and/or
taxes, as applicable and forfeit the ticket amount. Being a case of
‘Gate No Show’, the appellants were not obliged to accommodate the
respondents in the next flight going to Agartala and in any case,
without the respondents offering payment for the fresh air tickets in
that regard. In short, the appellants prayed for dismissal of the
complaint.
5. The District Forum, after analysing the plea taken by both sides
and going through the evidence produced by the parties, allowed the
complaint on the finding that as per clause 8.2 of the CoC, the
groundstaff of the appellantAirlines was expected to make
subsequent announcements to secure the presence of the
respondents and facilitate them to board the flight. However, no
evidence was forthcoming that such announcements were made by
the groundstaff of the appellantAirlines. Further, in the etickets
issued by the appellants, there is no indication about the fact that the
passengers are required to report at the boarding gate 25 (twentyfive)
minutes prior to the departure of the flight. What is mentioned is
only that the checkin begins 2 (two) hours prior to the flight time for
seat assignment and closes 45 (fortyfive) minutes prior to the
scheduled departure. Although the boarding passes were not
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produced on record, the District Forum went on to observe that in the
boarding pass(es) also, nothing was written to show that the
passenger must report at the boarding gate 25 (twentyfive) minutes
prior to the departure of the flight. In fact, in the same paragraph,
the District Forum has adverted to the plea of the respondents that
the boarding passes were snatched away from them by the ground
staff of the appellantAirlines at the airport. It further held that there
was no evidence to show that any assistance was provided by the
groundstaff of the appellantAirlines to the respondents for reaching
upto the boarding gate in time. Moreover, the groundstaff refused to
take the complaint of the respondents and instead snatched away the
boarding passes from them, leaving them in helpless situation at the
airport and forcing them to stay in a hotel for two days at Kolkata.
On such findings, the District Forum proceeded to award
compensation to the respondents in the sum of Rs.16,432/ (Rupees
sixteen thousand four hundred thirty two only) towards airfare for
travel to Agartala, Rs.10,000/ (Rupees ten thousand only) towards
hotel expenditure, Rs.10,000/ (Rupees ten thousand only) towards
mental agony, harassment and suffering and Rs.5,000/ (Rupees five
thousand only) towards litigation costs, total amounting to
Rs.41,432/ (Rupees fortyone thousand four hundred thirty two
8
only) to be paid within two months, failing which to bear interest at
the rate of 9% per annum.
6. The appellants carried the matter in appeal before the State
Commission being Appeal Case No. A.61.2017, assailing the judgment
and order passed by the District Forum. At the same time, the
respondents filed crossappeal being Appeal Case No. A.53.2017 for
enhancement of compensation. Both the appeals came to be disposed
of by the State Commission by the common judgment and order dated
22.2.2018. The State Commission, more or less affirmed the findings
and conclusions recorded by the District Forum by observing that no
evidence was forthcoming that proper assistance was given to the
respondents to facilitate them to board the flight before the scheduled
departure. It also observed that no oral evidence was produced by
the appellants whatsoever including regarding the announcements
made to invite the attention of the respondents for reporting at the
boarding gate. The State Commission also went on to observe that
after issuing boarding passes, it is the obligation of the airlines to
provide assistance to the passengers to facilitate them to board the
flight before the boarding gate closes. The State Commission,
however, modified the order of the District Forum to the limited extent
of enhancing the awarded amount towards mental agony, harassment
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and suffering from Rs.10,000/ (Rupees ten thousand only) to
Rs.20,000/ (Rupees twenty thousand only) and resultantly, the total
sum of Rs.41,432/ (Rupees fortyone thousand four hundred thirty
two only) was enhanced to Rs.51,432/ (Rupees fiftyone thousand
four hundred thirtytwo only).
7. Feeling aggrieved, the appellants carried the matter to the
National Commission by way of Revision Petition Nos. 1520
1521/2018. The National Commission confirmed the findings and
conclusions recorded by the two consumer fora and dismissed the
revision petitions with observation that the appellants had chosen to
challenge the order(s) providing for meagre compensation and showed
no interest to settle the matter. The revision petitions were dismissed
with costs of Rs.20,000/ (Rupees twenty thousand only).
8. Feeling aggrieved, the present appeals have been filed by the
appellants, assailing the concurrent findings and conclusions of the
three consumer fora. The principal grievance of the appellants is that
the three consumer fora have failed to consider the principles of
pleadings and burden of proof and have erroneously held that the
appellants were liable for deficiency in service. This conclusion has
been recorded in absence of any pleading or evidence laid before the
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consumer fora to show that the respondents had reported to the
boarding gate well in time i.e. 25 (twentyfive) minutes prior to the
scheduled departure of the flight in question, as required in terms of
the CoC. They had not even pleaded or adverted to the circumstances
which prevented them from reporting at the boarding gate before the
stipulated time. In fact, it was a case of ‘Gate No Show’ by the
respondents and not one of ‘denied boarding’ as such. Further, the
deficiency in service must be in relation to the contractual obligation
and not on the basis of sympathy and matters extraneous thereto. It
is urged that the respondents had clearly failed to plead and prove
some fault, imperfection, shortcoming or inadequacies in the quality,
nature and manner of performance which was required to be
performed by the appellants or their groundstaff at the airport in
reference to the contract, which was sine qua non for invoking the
remedy before the consumer fora as expounded in Ravneet Singh
2
. The respondents
Bagga vs. KLM Royal Dutch Airlines & Anr.
have not pleaded or deposed about their whereabouts and efforts
taken by them between the time when the boarding passes were
issued to them (at 07:35 a.m.) and until the boarding gate was closed
(at 08:58 a.m.) or for that matter, the scheduled departure time (of
2 (2000) 1 SCC 66 (paragraph 6)
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08:45 a.m.). The airlines is not expected to wait for the passengers
until their arrival at the boarding gate and is obliged to close the
boarding gate as soon as permission to ‘Pushback’ and ‘Startup’ is
received from the ATC as per the Civil Aviation Requirements (for
short, ‘the CAR’) issued by the Director General of Civil Aviation (for
short, ‘the DGCA’). It is stated that 171 passengers were booked to
travel on the flight in question, out of whom only 7 (seven) including
the 4 (four) respondents were treated as ‘Gate No Show’ and 164
boarded the flight well in time. The thrust of the grievance of the
appellants is that the consumer fora have committed jurisdictional
error in not considering the fact that there was no pleading, much
less tangible evidence produced, by the respondents to substantiate
the fact that it was a case of deficiency in service in respect of the
contractual obligation of the appellants. Thus, the burden of proof
was wrongly shifted on the appellants. Further, the consumer fora
have made sweeping observations which cannot be countenanced in
law.
9. Respondent Nos. 1 and 2 who are also espousing the cause of
respondent nos. 3 and 4 are duly represented by the learned counsel
engaged by them. They have supported the findings and conclusions
recorded by the consumer fora and would contend that no
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interference is warranted in the present appeals. As this Court had
additionally appointed an A micus Curiae to assist the Court, he,
besides making oral submissions has submitted written note and a
report suggesting formulation of some guidelines or directions in view
of the increasing demand for air travel because of improved
purchasing capacity of the passengers and their growing need to
achieve timelines including promotional schemes like UDAN (Ude
Desh Ka Naagrik), a flagship scheme of the Government of India
introduced to enable air operations on unreserved routes, connecting
regional and rural areas, thereby making air travel affordable for
masses. The learned A micus Curiae submits that the DGCA
guidelines should be more humane and passengerfriendly,
considering the fact that the passengerprofile of air passengers has
become more inclusive, covering passengers from hinterlands and
countryside cutting across diverse social and income groups. He has
commended to us to expand the meaning of ‘denied boarding’ to
include the case such as the present one, inasmuch as, the fact that
the passenger is under obligation to report before the scheduled time
at the checkin counter and/or boarding gate, that should not
extricate the airlines’ staff from facilitating passage of the passenger
after issuance of boarding pass and secure his/her presence at the
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boarding gate before the closure of the boarding gate. He has invited
our attention to stipulation in the CAR, particularly in clause 3.2.1
thereof, which pertains to cases of ‘denied boarding’ due to
overbooking by the airlines or such other operational reasons
including cancellation of flight due to strike at the airport of
departure or extraordinary circumstances such as volcanic eruption
leading to the closure of the airspace, as expounded by the Third
Chamber of Court of Justice of the European Union in
Finnair Oyj
3 4
vs. Timy Lassooy and Denise McDonagh vs. Ryanair Ltd. . He
has suggested that direction be issued to all air carriers: (a) to bring
in uniformity in closure of checkin counters and boarding gates
across all the air carriers operating in and out of India as per their
domestic/international specifications; (b) to display/highlight on the
boarding pass itself, the necessary details relating to checkin,
boarding, closure of boarding gates, mode of contract etc. in
vernacular and English language if already not done; (c) to widely
display the Charter of Rights to their passengers, as well as,
duties/obligations of the air carriers towards their passengers at the
respective checkin counters and their websites in addition to duly
inform the passengers about the same at the time of issuing air
3 Decided on 4.10.2012 in Case C-22/11
4 Decided on 31.1.2013 in Case C-12/11
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tickets; (d) to maintain and keep all the records relating to arrival and
departure of passengers including time of checkin, reportage at
boarding gates, record of communications with the passengers in case
of delay in checkins, reporting at boarding gate and final warning for
the passengers in cases of nonreporting at checkin
counters/boarding gates and postfactum upto three months i.e.,
from the date and time of departure/arrival of the concerned flight;
and (e) to mandatorily contact those passengers, who are otherwise
late in reporting at the checkin counters/boarding gates through
telephone/mobiles being a secured channel of
communication/interface between the air carrier and its passengers.
10. We have heard Mr. Shyam Divan, learned senior counsel
appearing for the appellants, Mr. Amlan Kumar Ghosh, learned
counsel for the respondents and Mr. Rajiv Dutta, learned Amicus
Curiae .
11. The present appeals emanate from the complaint filed before the
consumer fora. While dealing with such a complaint, the jurisdiction
or the nature of enquiry to be undertaken by the consumer fora is
limited to the factum of deficiency in service and to award
compensation only if that fact is substantiated by the party alleging
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the same. The expression ‘deficiency in service’ has been defined in
Section 2(1)(g) of the Consumer Protection Act, 1986, to mean any
fault, imperfection, shortcoming or inadequacy in the quality, nature
and manner of performance which is required to be maintained by or
under any law for the time being in force or has been undertaken to
be performed by a person in pursuance of a contract or otherwise in
relation to any service. This Court in Ravneet Singh Bagga (supra),
therefore, opined as follows:
“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 wilful fault,
imperfection, shortcoming or inadequacy in the service
of the respondent. The deficiency in service has to
be distinguished from the tortious 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. In case of bona
fide disputes no wilful fault, imperfection, shortcoming
or inadequacy in the quality, nature and manner of
performance in the service can be informed (sic). 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
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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 bona fides,
rashness, haste or omission and the like may be the
factors to ascertain the deficiency in rendering the
service .”
(emphasis supplied)
12. Thus, the enquiry in such proceedings is limited to grievance
about deficiency in service, which is distinct from the tortuous acts of
the other party. In this regard, we must immediately notice the
assertion of the respondents in the complaint filed before the District
Forum to ascertain whether the claim of deficiency in service in
relation to the stated contract has been pleaded or otherwise. It will
be useful to advert to paragraph 1 of the complaint, which reads thus:
‘‘1. That the Complainant Nos. 1, 2, 3 and 4 are
the same family members of above noted address and
the Complainant No.1 alongwith her husband Sri
Swadesh Debbarma, Complainant No.2 and her two
sons namely Master Albish Debbarma, Complainant
No.3 and Master Alex Debbarma, Complainant No.4
was coming from Kolkata to Agartala through Airlines
of the opposite parties and accordingly the
Complainant No.1 along with her family members i.e.
Complainant Nos. 2, 3 and 4 took air tickets vide PNR
No. IHRNSE under airlines of the opposite parties for
Agartala Airport from Kolkata Subhash Chandra Bose
(Domestic Airport) on 08.01.2017 vide Flight No. 6E
861, departure time 08.45 a.m., Sunday and
accordingly norms of the airlines of the opposite
parties, all are the Complainants reported before the
Airlines Counter of opposite party at Kolkata Airport on
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08.01.2017 and after observing all formalities the
opposite party No.1 i.e. authority of Indigo Airlines of
Kolkata Airport issued Boarding Pass in favour of all
the Complainants for coming at Agartala Airport from
Kolkata Airport,
but the opposite parties Airlines
authority of Kolkata Airport left all the
Complainants at Kolkata Airport and flight of
opposite parties and opposite party No.1 did not
boarded the Complainants in the said flight for
coming at Agartala from Kolkata airport as the
Complainants were inside the Airport building of
Kolkata Airport. But without boarded the
Complainants in the said flight, the flight of the
opposite parties left the Complainants to Kolkata
Airport without giving any information to them . As
a result all the Complainants have fallen with critical
situation. At that time due to left them by the airlines
of the opposite party at Kolkata airport and at that time
the Complainant No.1 and 2 filed a complaint by
written to the office of the opposite party No.1, Kolkata
airport. But the office staff as well as Airport staff of the
Indigo i.e. opposite party No.1 did not accept the
complaint application of the Complainants and at that
time office staff of opposite party No.1 at Kolkata
Airport forcibly snatched away their boarding Pass
which were issued by the Indigo Airlines authority of
Kolkata Airport from their hand of the Complainant
No.1 and 2 and requested the opposite party No.1 to
consider their matter of left them at Kolkata Airport by
the Airlines of opposite party No.1 and the
Complainant No.1 and 2 also requested the opposite
party No.1 to arrange to carry them by next flight of
your Airlines to Agartala Airport from Kolkata Airport,
as at that time no money was in hand of the
Complainants to further purchase air tickets for them
to come to Agartala airport to Kolkata airport. But the
opposite party No.1 did not heed the request of the
Complainants, nor any arrangement to carry the
Complainants from Kolkata Airport to Agartala Airport
in their home town and lastly after failure to come back
to Agartala from Kolkata airport, the Complainants
hopelessly return from Kolkata Airport with very
financial hardship and took a hotel room nearby the
Kolkata Airport for staying purpose along with their
minor two sons and they also stayed in the hotel room
for arranging money for purchasing further air tickets
for coming at Agartala airport from Kolkata Airport.’’
(emphasis supplied)
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On the same lines, the witness examined on behalf of the respondents
has deposed. The question is: whether the averments in the
complaint contain material facts with regard to deficiency in service
complained about? Even on a fair reading of the complaint and the
evidence given on the same lines, all that can be discerned is that the
respondents had reported at the “checkin counter” well in time and
were issued boarding passes for flight No. 6E861, which was
scheduled to depart at 08:45 a.m., and that the flight took off leaving
them (respondents) at the airport without informing them about the
departure. There is no assertion that no public announcement was
made at the boarding gate or on the T.V. screens displayed across
within the airport before closure of the boarding gate and as to how
they (respondents) were prevented or misled from reporting at the
boarding gate 25 (twentyfive) minutes before the scheduled departure
time (08:45 a.m.) of the flight in question, and moreso before the
boarding gates were actually closed at 08:58 a.m. Be that as it may,
the consumer fora committed manifest error in shifting the burden on
the appellants and drawing adverse inference against them for having
failed to produce evidence regarding announcements having been
made to inform the passengers including the respondents to arrive at
the boarding gate before its closure at 08:58 a.m. The appellants had
19
clearly stated that as per the standard practice, such announcements
are made at the boarding gate itself and the record in that behalf is
not maintained by the Airlines (appellants), but by the airport
authorities. The need to prove that fact would have arisen only if the
respondents had clearly pleaded all relevant material facts and also
discharged their initial burden of producing proof regarding deficiency
in service by the groundstaff of the appellants at the airport after
issuing boarding passes and before the closure of the boarding gate
and departure of the flight.
13. Concededly, boarding passes were issued to the respondents at
07:35 a.m. at the checkin counters, whereafter they entered the
security channel area and like any other prudent passenger, were
expected to proceed towards the concerned boarding gate in right
earnest. The appellants in the additional affidavit dated 30.1.2019
filed before this Court have given graphic description of the layout of
the airport and the area in which the respondents were expected to
move forward towards the boarding gate. The relevant portion of the
said affidavit reads thus:
‘‘2. I say that for passengers to enter into the
departure terminal of the domestic airport at Kolkata,
there are six (6) terminal departure gates on the first
floor of the airport terminal through which the
passengers can enter the terminal building. The said
20
gates are numbered as Gate Nos. 1A, 1B, 2A, 2B, 3A
and 3B and all passengers booked on various airlines
operating from this terminal can enter the airport
through any of the six gates, subject to verification of
their photo identity by the officials of the Central
Industrial Security Forces (‘‘CISF’’).
3. I further say that there are four (4) portals at
the Kolkata Airport wherein the check in counters of
different airlines are stationed, namely Portals A to D.
The aforesaid four portals are situated at the first floor
of the departure terminal of the Kolkata Airport.
Immediately after the said four portals, there are four
(4) security gates situated inside the Kolkata Airport,
namely security Gate Nos. 1 to 4. I say that these four
security gates are manned by the officials of the CISF
and clearance of all the passengers is subject to the
security frisking undertaken by them. I say that the
time taken by the officials of CISF for security, frisking
and clearance of the passengers and their hand
baggage (including the waiting time) is not within the
control of InterGlobe Aviation Ltd.
4. I say that the checkin counters of
InterGlobe at the Kolkata Airport are stationed at
‘‘Portal B’’ and on one side of ‘‘Portal C’’ in the first
floor of the Airport. I further say that the said
Portals are adjacent to security entry Gate Nos. 1A,
1B, 2A and 2B situated at the first floor of the
Airport.
5. I say that as per the official records of the
Petitioners, Respondents were booked to fly aboard
IndiGo Flight No.6E861 from Kolkata to Agartala
on 08.01.2017 under PNR No. IHRNSR.
6. I say that to my knowledge, on 08.01.2017
i.e. the scheduled date of travel in the present case,
IndiGo flights departing from Kolkata to Agartala
were allocated boarding gates located at the ground
floor of the Kolkata Airport comprising a total of six
(6) boarding gates i.e. from 23A to 23F.
7. I say that I have prepared a layout plan (not to
scale) of the relevant sections of the Kolkata Airport
and the same is annexed herewith and marked as
‘‘Annexure A’’. From the said layout plan, it would be
evident that:
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a. the distance from either of the check
in Portals of InterGlobe to the nearest
security gate is only around 10 metres.
b. the distance from any of the security
gates to the escalator/lift leading
towards the boarding gates (which are
on the lower level i.e. on the ground
floor) is only around 5 metres.
c. after traveling aboard the lift/escalator
(which may take maximum upto a
minute), the walking distance from the
touch down point to the last boarding
gate on the ground floor i.e. Gate
No.23F is only around 125 meters.
Obviously, the walking distance to the
other gates 23E to 23A is
progressively lesser.
8. I further say that I am also filing certain
photographs taken at the Kolkata Airport on
03.12.2018 reflecting the location and layout of Portals
B and C, the security gates and the lift/escalator on
the first floor and the boarding gates at the ground
floor. The said photographs are annexed herewith and
marked as AnnexureB (colly).
9. I further say that to my knowledge, the total
capacity of IndiGo Flight No.6E861 was 180
passengers. I further say that as per passenger
manifesto maintained by the Airline, the total number
of passengers who were booked for travel on
08.01.2017 numbered 171. I also say that out of these
171 passengers, a total of 164 passengers (i.e. around
95% of the passengers) boarded and travelled on
IndiGo Flight No. 6E861 and only 7 passengers
(including the Respondents herein) did not show up at
the concerned boarding gate within the stipulated time
and were consequently declared as ‘Gate no show’.
10. I further say that to my knowledge, the layout
of the entry gates, check inportals, security gates,
lift/escalator to all the boarding gates at the ground
floor and the passage from the lift/escalator to the said
boarding gates at the Kolkata Airport, as depicted in
the layout plan (Annexure A), has not undergone any
substantial changes between the date on which the
Respondents were scheduled to travel on Indigo Flight
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No. 6E861. i.e. 08.01.2017, and the date of the
present affidavit.’’
(emphasis supplied)
As aforementioned, there is no averment in the complaint or the
evidence of the witness examined by the respondents to even remotely
suggest as to what prevented the respondents, after entering the
security channel area upon issue of boarding passes at 07:35 a.m.,
from reaching at the boarding gate before 08:20 a.m. and in any case
when the boarding gate was actually closed at 08:58 a.m. Further,
there is no averment in the complaint or deposed to by the witness of
the complainants/respondents as to how the groundstaff of the
appellantAirlines was responsible and that it was not their own acts
of commission or omission. It is not the case of the respondents that
they were prevented, misled or obstructed by the groundstaff of the
appellants from reaching at the boarding gate well in time and until it
was closed treating as ‘Gate No Show’. It is also not the case of
respondents that they had sought assistance of the groundstaff of
the appellants and that was denied to them. In absence of such a
case made out in the complaint or in the deposition and other
evidence produced by the respondents, it is unfathomable as to how
the respondents had substantiated the allegation of deficiency in
service by the groundstaff of the appellants. Such a complaint ought
23
not to proceed further for want of material facts constituting
deficiency in service.
14. The fact that the respondents were not accommodated in the
next flight for Agartala without payment of airfare, per se , cannot be
regarded as deficiency in service in relation to the contract which
stood discharged and accomplished after ‘Gate No Show’ by the
respondents and departure of the flight in terms of Articles 8.2 and
8.3 of the CoC. The same read thus:
“ 8.2 Boarding
In order to maintain schedules, the boarding gate
will be closed 25 minutes prior to the departure
. The Customers must be present at the boarding
time
gate not later than the time specified by IndiGo when
they check in or any subsequent announcements made
at the airport. Any Customer failing to report at the
boarding within the aforesaid timelines shall be
treated as a “Gate No Show” and the ticket amount
for such Booking shall be forfeited by the Company.
The Customers are, however, entitled to a refund of
the Government and Airport Fees and/or Taxes (if
applicable) .
8.3 Failure to Comply
IndiGo will not be liable to the Customer for any
loss or expense incurred due to their failure to
comply with the provisions of this Article .”
(emphasis supplied)
It is not the case of the respondents that the appellants had refused
to refund the Government and Airport fees and/or taxes, as may be
applicable. As aforesaid, the followup event of not accommodating
24
the respondents in the next available flight for Agartala until payment
of airtickets would be of no avail, in the context of the contractual
obligations of both the parties in terms of the CoC. The appellants at
best were liable only to refund the Government and airport fees
and/or taxes (if applicable) and not liable for any loss caused to the
passenger(s). Had it been a case of ‘denied boarding’, the obligation of
the appellants would have been somewhat different including to
accommodate the passengers without insisting for airticket charges
for the next flight available for reaching the desired destination.
Therefore, in case of ‘Gate No Show’, not acceding to the request of
the respondents until they paid air charges for the next flight, may or
may not be a case of tortuous claim which, however, can be
proceeded before any other forum but not consumer fora. For, the
contract relating to travel plan of the respondents upon issue of the
boarding passes at the airport checkin counters, was accomplished
after ‘Gate No Show’ and resultantly closure of the boarding gate at
08:58 a.m. At the cost of repetition, we hold that the deficiency in
service must be ascribed only in respect of the stated contractual
obligations of the parties.
25
15. Indubitably, the CoC is binding on both parties as predicated by
this Court in (supra). We may usefully refer to
N. Satchidanand
paragraph 31 of the said decision, where the Court observed thus:
“31. 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 website and ascertain the same. Placing the
conditions of carriage on the website and referring
to the same in the eticket 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.”
(emphasis supplied)
These observations apply on all fours to the case in hand. However,
the State Commission distinguished this decision on the basis of facts
of the case disregarding the underlying principle expounded in the
aforesaid extracted portion of the judgment of this Court. The
respondents, however, urge that in the present case, the air ticket did
not contain the reference to the CoC. It is, however, not the case of
the respondents (who are well educated, as respondent Nos. 1 and 2
claim to be Engineers working in Government establishment), that
26
the website of the appellantAirlines does not display the CoC or that
the same was not made available at the airport checkin counter for
inspection, which is the standard operating procedure followed by all
the airlines. No such assertion has been made in the complaint as
filed.
16. In our opinion, the approach of the consumer fora is in complete
disregard of the principles of pleadings and burden of proof. First,
the material facts constituting deficiency in service are blissfully
absent in the complaint as filed. Second, the initial onus to
substantiate the factum of deficiency in service committed by the
groundstaff of the Airlines at the airport after issuing boarding
passes was primarily on the respondents. That has not been
discharged by them. The consumer fora, however, went on to
unjustly shift the onus on the appellants because of their failure to
produce any evidence. In law, the burden of proof would shift on the
appellants only after the respondents/complainants had discharged
their initial burden in establishing the factum of deficiency in service.
17. The appellants have produced a boarding pass issued in the
name of the Advocate for the appellant, to illustrate that the same
contains the relevant information regarding the flight number, date,
27
boarding time, departure time and more importantly, the notification
that boarding gate closes 25 (twentyfive) minutes prior to the
departure time and that boarding gate numbers are subject to
change, which may be seen from the screen(s) displayed at the airport
for latest updates. Admittedly, the boarding passes were issued to
the respondents. Presumably, the same must have set out similar
information being the standard practice followed by all the airlines.
Indeed, the respondents have asserted in the complaint that the
boarding passes were snatched away by the groundstaff of the
appellants at the airport itself. As a matter of fact, this allegation is
blissfully vague and bereft of any material facts. Further, it is crucial
to note that it is not the case of the respondents that after the
boarding passes were issued to them, they did not read the same to
reassure themselves about the relevant information and the departure
time of the flight indicated therein including the reporting time at the
boarding gate. Nor is the case of the respondents that they had read
the boarding pass and it did not contain the relevant information
including regarding the necessity of reporting 25 (twentyfive) minutes
before the departure time at the boarding gate. Nothing of this sort is
either pleaded or stated in the evidence by the respondents. A similar
plea that the boarding passes were snatched away by the groundstaff
28
was taken in the case of The Manager, Southern Region, Air India,
5
decided by the National
Madras & Ors. vs. V. Krishnaswamy
Commission on 19.7.1994 in First Appeal No. 445/1992, which came
to be rejected. Even in the present case, the appellantAirlines has
denied the allegation and also suggested to the witness examined by
the respondents that the complaint was false.
18. Concededly, it is the primary obligation of the passenger, who
has been issued boarding pass to undergo the securitycheck
procedure and reach at the boarding gate well before (at least 25
minutes before) the scheduled departure time. No doubt, it is said
that the consumer is the king and the legislation is intended to
safeguard and protect the rights and interests of the consumer, but
that does not mean that he is extricated from the obligations under
the contract in question much less to observe prudence and due care.
It is not the case of the respondents that they were delayed during the
security check much less due to the acts of commission or omission
of the groundstaff of the appellants. In fact, nothing has been stated
in the complaint or the evidence as to what activities were undertaken
by the respondents after issue of boarding passes at the checkin
counter at 07:35 a.m. until the departure of the flight and in
5 1994 (2) C.P.C. 171
29
particular, closure of the boarding gate at 08:58 a.m. The
respondents having failed to take any initiative to ensure that they
present themselves at the boarding gate before the scheduled time
and considering the layout of the checkin counter upto the boarding
gate, the respondents cannot be heard to complain about the
deficiency in service by the groundstaff. Notably, the distance
between the checkin counter, where boarding passes were issued,
upto the boarding gate is so insignificant that there could be no just
reason for the respondents not to report at the boarding gate between
07:35 a.m. till 08:58 a.m. The respondents have not offered any
explanation for their inaction nor have mentioned about any act of
commission or omission by the groundstaff of the appellantAirlines
at the airport during this period.
19. As aforesaid, after boarding pass is issued, the passenger is
expected to proceed towards security channel area and head towards
specified boarding gate on his own. There is no contractual obligation
on the airlines to escort every passenger, after the boarding pass is
issued to him at the checkin counter, up to the boarding gate.
Further, the Airlines issuing boarding passes cannot be made liable
for the misdeeds, inaction or so to say misunderstanding caused to
the passengers, until assistance is sought from the groundstaff of the
30
airlines at the airport well in time. It is not the case of the
respondents that the boarding gate was changed at the last minute or
there was any reason which created confusion attributable to
airport/airlines officials, so as to invoke an expansive meaning of
‘denied boarding’. The fact situation of the present case is clearly one
of ‘Gate No Show’, the making of the respondents and not that of
‘denied boarding’ as such.
20. The National Commission erroneously relied on the dictum in
6
to
Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd.
deny itself of the jurisdiction to entertain the revision petitions despite
the fact that decisions assailed in the revision petitions were
manifestly wrong and suffered from error of jurisdiction. In the fact
situation of the present case, the National Commission ought to have
exercised its jurisdiction and corrected the palpable and manifest
error committed by the two consumer fora below.
21. The State Commission has referred to the observations in
7
Dr. Bikas Roy & Anr. vs Interglobe Aviation Ltd. (IndiGo) decided
by the Commission taking the view that after issuing boarding pass, it
is the duty of the airlines’ authority to help the passengers, so that
6 (2011) 11 SCC 269
7 Decided on 22.2.2018 in Appeal Case No. A/42/2017
31
they can board the flight well in time on completion of the security
checkup. This is a sweeping observation. We do not agree with the
same. We have already taken the view that there is no obligation on
the airlines to escort every passenger after issuing him/her a
boarding pass at the checkin counter until he/she reaches the
boarding gate. That would be a very tall claim to make. Indeed, in a
given case, if the passenger encounters difficulty or impediment to
report at the boarding gate, he/she is expected to seek assistance of
the groundstaff of the concerned airlines well in time. If such
request is made, there is no reason to presume that the groundstaff
of the concerned airlines will not extend logistical assistance to
facilitate the passenger for reporting at the boarding gate in time.
That, however, would be a matter to be enquired into on case to case
basis. That question does not arise in the present case, as no such
plea has been taken in the complaint or the evidence given on behalf
of the respondents.
22. Additionally, the National Commission has invoked the principle
of right to care of the passengers. The question of due care by the
groundstaff of the appellantAirlines would arise when the
passengers are physically under their complete control as it had
happened in the case of (supra). That is possible
N. Satchidanand
32
after the passengers have boarded the aircraft or may be in a given
case at the operational stage whilst facilitating their entry to the
boarding gate. In the present case, there is no assertion in the
complaint or in the oral evidence produced by the respondents that
they (respondents) had made some effort to take guidance or
assistance of groundstaff of the appellantAirlines at the airport after
the boarding passes were issued to them for reaching at the boarding
gates and that such assistance was not provided to them.
23. A priori, the decisions of the European Courts referred to by the
National Commission in respect of the principle of right to care of
passengers will be of no avail in the fact situation of this case. For, in
those cases, the flight was cancelled due to strike at the airport of
departure [as held in Finnair Oyj. (supra)] and/or extraordinary
circumstances such as a volcanic eruption leading to the closure of
the airspace [as held in (supra)]. That principle cannot
Ryanair Ltd.
be invoked in the fact situation of the present case not being a case of
‘denied boarding’ as referred to in the CAR. Clause 3.2 of the CAR
reads thus:
“ 3.2 Denied Boarding
3.2.1 When the number of passengers, who have
been given confirmed bookings for travel on the flight
and who have reported for the flight well within the
specified time ahead of the departure of the flight, are
33
more than the number of seats available, an airline
must first ask for volunteers to give up their seats so as
to make seats available for other booked passengers to
travel on the flight, in exchange of such
benefits/facilities as the airline, at its own discretion,
may wish to offer, provided airports concerned have
dedicated checkin facilities/gate areas which make it
practical for the airline to do so.
3.2.2 If the boarding is denied due to condition
stated at Para 3.2.1 to passengers against their will,
the airline shall not be liable for any compensation in
case alternate flight is arranged that is scheduled to
depart within one hour of the original schedule
departure time of the initial reservation. Failing to do
so, the airline shall compensate the passengers as per
the following provisions:
a) An amount equal to 200% of booked one
way basic fare plus airline fuel charge,
subject to maximum of INR 10,000, in case
airline arranges alternate flight that is
scheduled to depart within the 24 hours of
the booked scheduled departure.
b) An amount equal to 400% of booked one
way basic fare plus airline fuel charge,
subject to maximum of INR 20,000, in case
airline arranges alternate flight that is
scheduled to depart more than 24 hours of
the booked scheduled departure.
c) In case passenger does not opt for
alternate flight, refund of full value of ticket
and compensation equal to 400% of booked
oneway basic fare plus airline fuel charge,
subject to maximum of INR 20,000.
3.2.3 A passenger booked on connecting flights of
the same airline or of the other airline, shall be
compensated by the airline of the first flight for the first
leg in accordance with the provisions of Para 3.2.2 of
this CAR, when he has been delayed at the departure
station on account of denied boarding, but has arrived
at the final destination at least three hours later than
the scheduled arrival time.”
24. Indubitably, the CAR is only executive instructions, which do
not have the force of law. This Court in the case of Joint Action
34
Committee of Airlines Pilots’ Association of India & Ors. vs. the
8
, had occasion to
Director General of Civil Aviation & Ors.
consider the question as to whether the CAR is a statute or a
subordinate legislation. The Court concluded that the CAR was only
executive instructions, which has been issued for guidance of the
duty holders/stakeholders and to implement the scheme of the act
and do not have the force of law. Concededly, clause 3.2 if read as a
whole, in no way would apply to a case of ‘Gate No Show’, which is
markedly different than ‘denied boarding’. In the facts of this case, it
is unnecessary to dilate on the argument of the learned Amicus
Curiae that expansive meaning be given to the expression ‘denied
boarding’.
25. As a matter of fact, the coordinate Bench of the National
Commission in the case of (supra)
The Manager, Southern Region
has had occasion to observe that it would not be appropriate to cast
an obligation on any airlines to delay the departure of an aircraft
beyond the scheduled time of the departure and to await late arrival
of any passenger, whosoever he may be, howsoever highly or lowly
placed. Even in that case, the complainant had failed to present
himself at the departure lounge in time and there was no kind of
8 (2011) 5 SCC 435
35
negligence or deficiency in service on the part of the airlines. Similar
situation obtains in the present case. The appellantAirlines cannot
be blamed for the nonreporting of the respondents at the boarding
gate before 08:20 a.m. and in any case before 08:58 a.m., when the
boarding gate was finally closed.
26. That takes us to the suggestions given by the learned Amicus
Curiae for issuing directions to all the airlines to abide by uniform
practice. We refrain from doing so and leave that to the competent
authority (the DGCA) to consider the same and after interacting with
all the stakeholders, take appropriate decision and issue instructions
in that behalf, as may be advised. The competent authority (the
DGCA) may do so within a reasonable time, preferably within six
months from receipt of a copy of this judgment or any representation
in that behalf.
27. In view of the above, the impugned judgments and orders passed
by the District Forum, the State Commission and the National
Commission cannot be sustained and the same are, therefore, set
aside and resultantly, the complaint filed by the respondents stands
dismissed. However, as assured by the appellants, no recovery of the
amount deposited by them as a condition precedent for issuance of
36
notice, which has already been withdrawn by the respondents, need
be made from the respondents.
28. We place on record our word of appreciation for the able
assistance given by the learned Amicus Curiae – Mr. Rajiv Dutta,
learned senior counsel assisted by Mr. Sanjeev Kumar Singh, learned
counsel.
29. The appeals are accordingly allowed in the above terms. There
shall be no order as to costs. Pending interlocutory applications, if
any, shall stand disposed of.
................................., J
(A.M. Khanwilkar)
................................., J
(Dinesh Maheshwari)
New Delhi;
January 28, 2020.