Case: THE BRANCH MANAGER INDIGO AIRLINES KOLKATA Vs. KALPANA RANI DEBBARMA

The question of due care by the ground-staff of the appellant-Airlines would arise when the passengers are physically under their complete control as it had happened in the case of N. Satchidanand (supra). That is possible 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 ground-staff of the appellant-Airlines 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 Ryanair Ltd. (supra)]. That principle cannot 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 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 check-in 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 one-way 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 Committee of Airlines Pilots Association of India & Ors. vs. the Director General of Civil Aviation & Ors. (2011) 5 SCC 435 , had occasion to 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 The Manager, Southern Region (supra) 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 negligence or deficiency in service on the part of the airlines. Similar situation obtains in the present case. The appellant-Airlines cannot be blamed for the non-reporting 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 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 service12. Thus, the enquiry in such proceedings is limited to grievance about deficiency in service, which is distinct from the tortuous acts of the other partyEven 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 check-in counter well in time and were issued boarding passes for flight No. 6E-861, 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 (twenty-five) 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 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 ground-staff of the appellants at the airport after issuing boarding passes and before the closure of the boarding gate and departure of the flight13. Concededly, boarding passes were issued to the respondents at 07:35 a.m. at the check-in 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 earnestAs 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 ground-staff of the appellant-Airlines 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 ground-staff 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 ground-staff 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 ground-staff of the appellants. Such a complaint ought not to proceed further for want of material facts constituting deficiency in service14. 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 CoCIt 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 follow-up event of not accommodating the respondents in the next available flight for Agartala until payment of air-tickets 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 air-ticket 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 check-in 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 parties15. Indubitably, the CoC is binding on both parties as predicated by this Court in N. Satchidanand (supra)We may usefully refer to 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 e-ticket and making copies of conditions of carriage available at the airport counters for inspection is sufficient notice in regard to the terms of conditions of the carriage and will bind the parties. The mere fact that a passenger may not read or may not demand a copy does not mean that he will not be bound by the terms of contract of carriage. We cannot therefore, accept the finding of the High Court that the term relating to exclusive jurisdiction should be ignored on the ground that the passengers would not have read itThese 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 the website of the appellant-Airlines does not display the CoC or that the same was not made available at the airport check-in counter for inspection, which is the standard operating procedure followed by all the airlines. No such assertion has been made in the complaint as filed16. 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 ground-staff 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 service17. 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, boarding time, departure time and more importantly, the notification that boarding gate closes 25 (twenty-five) 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 ground-staff 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 (twenty-five) 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 ground-staff was taken in the case of The Manager, Southern Region, Air India, Madras & Ors. vs. V. Krishnaswamy 1994 (2) C.P.C. 171 decided by the National Commission on 19.7.1994 in First Appeal No. 445/1992, which came to be rejected. Even in the present case, the appellant-Airlines has denied the allegation and also suggested to the witness examined by the respondents that the complaint was false18. Concededly, it is the primary obligation of the passenger, who has been issued boarding pass to undergo the security-check 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 ground-staff 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 check-in counter at 07:35 a.m. until the departure of the flight and in 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 check-in counter upto the boarding gate, the respondents cannot be heard to complain about the deficiency in service by the ground-staff. Notably, the distance between the check-in 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 ground-staff of the appellant-Airlines at the airport during this period19. 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 check-in 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 ground-staff of the 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 such20. The National Commission erroneously relied on the dictum in Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd. (2011) 11 SCC 269    to 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 below21. The State Commission has referred to the observations in Dr. Bikas Roy & Anr. vs Interglobe Aviation Ltd. (IndiGo) (Decided on 22.2.2018 in Appeal Case No. A/42/2017) 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 they can board the flight well in time on completion of the security check-up. 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 check-in 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 ground-staff of the concerned airlines well in time. If such request is made, there is no reason to presume that the ground-staff 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 respondents22. Additionally, the National Commission has invoked the principle of right to care of the passengers. The question of due care by the ground-staff of the appellant-Airlines would arise when the passengers are physically under their complete control as it had happened in the case of N. Satchidanand (supra). That is possible 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 ground-staff of the appellant-Airlines 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 them23. 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 Ryanair Ltd. (supra)]. That principle cannot be invoked in the fact situation of the present case not being a case of denied boarding as referred to in the CAR24. Indubitably, the CAR is only executive instructions, which do not have the force of law. This Court in the case of Joint Action Committee of Airlines Pilots Association of India & Ors. vs. the Director General of Civil Aviation & Ors. (2011) 5 SCC 435 ,  had occasion to 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 boardingappellant-Airlines cannot be blamed for the non-reporting 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 closed26. 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.