||On account of late
running of the flight, the District Forum has vide impugned order dated
18.08.1999 held the appellant guilty for deficiency in service and directed it
to pay Rs.5,000/- as compensation and Rs.1,000/- as cost.
the appellant has preferred this appeal.
||There is no dispute
that the respondent booked himself by Flight No.ICCD 421 scheduled to leave Delhi on 26.09.1996 at 10.10 hours for Jammu and when he
reached the airport for check in, he was informed that flight shall leave at
12.00 hours, whereas it actual took off at 14.00 hours and therefore he
suffered physical discomfort, mental agony by waiting for about six hours and
as a result he could not reach Jammu in time nor could he attend the meeting at
Jammu, for which he was going there.
||In its defence the
appellant took the plea that the flight in question was clubbed with flight
No.IC423 as one of the aircrafts was grounded at Khajurao due to technical reasons and the flight No.407 that had reached Khajurao at 8.30 a.m on
25.09.1996 could not proceed further due to failure of Hydrologic system and
therefore the respondent had to perform the journey on 26.09.1996 and
late running of the flight was announced on public address system and as
such there was no deficiency on the part of the appellant in terms of Consumer
Protection Act 1986 as delay was beyond its control.
||In this regard the
counsel for the appellant has relied upon the rule 3(1)
and rule 3(3) of Non International Carriage (Passenger and Baggage) Regulations
Act 1992. These rules are as under: -
Rule31): The passenger ticket issued by
the Corporation will be valid only for the service for which it is issued and
shall not be transferable.
Rule3(3): The Corporation reserves to
itself the right, without assigning any reason to cancel or delay the
commencement or continuance of the flight or to alter the stopping place or
places or to deviate from the route of the journey or to change the type of
aircraft in use without thereby incurring any liability in damages or otherwise
to the passengers or any other person on any ground whatsoever. The Corporation
also reserves to itself the right to refuse to carry any person whom it
considers unfit to travel or who in the opinion
of the Corporation may constitute risk to the aircraft or to the person on
||On the premise of
aforesaid rule, the counsel for the appellant has also placed reliance upon
judgement of National Commission 1-1991(1) CPR page 46 – Indian Airlines Vs Rakesh Kumar Upadhyay. Relevant para reads as under:
||Flights may get
delayed due to various causes such as poor visibility in the airfield, bad
weather, bird hits, tyre burst while landing or take off, sudden strike by any
crucial section of Airlines staff etc. all of which may be factor beyond the
control of the Airlines. In such case the delay cannot ordinarily be attributed
to negligence on the part of the Airlines. There may however be other instances
where the delay in operating a flight might have been caused by reason of
negligence on the part of the Airlines staff.
||Another judgment relied
upon by the counsel for the appellant is I(1992) CPJ 5
(NC) P. Gopinath Vs The Chairman, Air India, which reads as under:
It often happens that
flights of Airlines are delayed due to various reasons as have been time and
again stated by them. The consumer should have made enough allowance for such a
||In this regard we deem
it necessary to refer to the legal provisions framed for the agencies like the
appellant that does not absolve them from any such kind of deficiency, which
has been explained and taken resort to in the instant case. Relevant rules
in this regard are as under:-
||Second Schedule of
Chapter-III – Carriage by Air Act
the carrier is liable for damage occasioned by delay in the carriage by air
of passengers, baggage or cargo.
||The carrier is not liable if he proves that he
and his servants or Agents have taken all necessary measures to avoid the
damage or that it was impossible for him or them to take such measures.
||There is no doubt that
no service provider can be held guilty for deficiency in service, if the
shortcoming, fault or imperfection is the result of circumstances which are
beyond its control particularly the circumstances that are acts of nature or
||So far as the aforesaid
rules cited by the counsel are are concerned these
are administrative rules and do not bind the consumers vis-à-vis the service
Rules are binding on the passenger if the relevant terms of such contract are
printed on the ticket. The terms only printed on the ticket are the terms of
the contract, which are applicable and binding and not
the booklet or plethora of Rules printed in the shape of book. No consumer is
expected or supposed to purchase the book of National or International Carriage
Rules before purchasing the ticket or undertaking the flight.
||If the negligence is
man made a consumer is entitled to compensation as in that eventuality any kind
of fault, imperfection, shortcoming, inadequacy in the quality and manner of
performance which is required to be maintained by provider of service it verges
on the offence of deficiency in service as defined by Section 2(1)(g) of the Consumer Protection Act 1986 which is as under:
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 undertake to be performed by a person in pursuance
of a contract or otherwise in relation to any service.
||The word ‘deficiency’
defined by the legislature prescribes very high standard of service which means
that railways, airlines or for that purpose any transport service should be in
very prefect and flawless manner particularly as to schedule of time or
departure or arrival of flights.
||If the argument and the
contention of the counsel is accepted as it is, then
every service provider will take one excuse or the other and stereotype excuse
of technical snag or any other such excuse. Such an insensitivity or casual or
indifferent attitude shall always leave the consumer high and dry and suffer
immensely. If such excuses are allowed then whole object and purpose of
bringing the Consumer Protection Act 1986 on the statute book would be rendered
nugatory and meaningless. It was for keeping such service providers on
tenterhook and to protect the interests of the consumers that very stern
standards of ‘service’ and ‘deficiency’ were provided.
||Not only that, remedy
under the Consumer Protection Act 1986 is irrespective of any immunity provided
to the service provider under any law as it is an additional and independent
remedy and as per section 3 of the Act is not in derogation of any other law
for the time being in force. Main component of this remedy is an amount of
compensation as to the actual loss or injury, which includes mental agony,
emotional suffering, harassment and physical discomfort due to negligence or
deficiency in service on the part of the service provider. Such a relief is
available to the consumer by virtue of Section 14 of the Consumer Protection
Act 1986, which provides as under:
||14(1) If, after the
proceeding conducted under section 13, the District Forum is satisfied that the
goods complained against suffer from any of the defects specified in the
complaint or that any of the allegations contained in the complaint about the
services are proved, it shall issue an order to the opposite party directing
him to 2[do] one or more of the following things, namely:—
||to pay such amount as may be awarded by
it as compensation to the consumer for any loss or injury suffered by the
consumer, due to the negligence of the opposite party;
||Term ‘Compensation’ has
wide connotation. Supreme Court in Ghaziabad Development Vs Balbir Singh reported as1986-2004
Consumer 8287 (NS) has widened this term.
||“The word compensation
is of a very wide connotation. It may constitute actual loss or expected loss
and may extend to compensation for physical, mental or even emotional
suffering, insult or injury or loss. The provisions of the Consumer Protection
Act enable a consumer to claim and empower the Commission to redress any
injustice done. The Commission or the Forum is entitled to award not only value
of goods or services but also to compensate a consumer for injustice suffered
by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then
determine amount for which the authority is liable to compensate the consumer
for his sufferance due to misfeasance in public office by the officers. Such
compensation is for vindicating the strength of law.”
||Every act of omission
or commission by the service provider has to be ascertained on the anvil of
definition of ‘deficiency’ as provided by section 2(1)(g)
of the Act and not on any other premise. Thus from this aspect also service
provider like the appellant cannot take advantage of either rule 3 or any other
rule or law as to its liability qua the consumer.
||Proceeding on that
premise, the non-maintenance or the poor maintenance of carrier or any other
reasons viz. technical snag or failure of mechanism itself amounts to
deficiency in service as it is the duty of the service provider to see that
these are always kept in perfect order in order to observe and adhere timing of the flights. If they cannot preserve these
services in perfect manner it is likely to result in cancellation of flight,
inordinately long delay in the flight or the train. Only saviour to these
services providers is the act of nature or God like bad weather, poor
visibility, bird hits etc. and no other excuse. Every other plea or defence has
to be proved by way of convincing evidence.
||Consumer is not
concerned what action the service provider may take against its maintenance
staff for failure of the system, which is well within the human control. So far
as consumer is concerned, he has to be compensated adequately for cancellation
of the flight or its late running unless until the said cause is beyond the
control of human being and is result of an act of nature or God.
||To keep a consumer
waiting for hours together without any valid reason and without any direct
proof by the service provider that the service could not be provided well in
time as per contract due to reasons which were beyond their control.
suffering, physical discomfort, loss of business, time and occupation consumer
suffers is not assessable in terms of money. Though compensation in terms of
money cannot be taken as panacea but it does mitigate the mental agony or
suffering of person. In our view the reasons given by the appellant for the
delay in the flight was not such a reason, which was beyond its control or act
||Here the consumer was
kept waiting for six hours whereas he had already left for the airport two
hours before the scheduled time. The District Forum has taken very conservative
view while awarding paltry compensation of Rs.5,000/-
as the mental agony, physical discomfort and emotional sufferings were
persuade us dismiss the appeal being devoid of merit.
||Late running and
cancellation of flights, offloading of consumers with confirmed status of
tickets, traffic congestion in the Air and on the ground is becoming order of
the day. Since there are large number of consumers who suffer enormously in
terms of time, mental agony, harassment and physical sufferings and discomfort
by missing professional or business meetings and connecting flights, we by this
general order give the following directions:
||That every Airlines operating from Delhi shall pay
minimum compensation of Rs.10,000/- to every domestic passenger in case there
is delay in departure and arrival of two hours or more than the schedule time
and Rs.20,000/- in case of International flights of Airlines of this Country,
if delay is more than four hours or so. Condition is that such a delay should
not be the result of bad weather or act of nature, poor visibility, tyre burst
or bird hits and the like as every other cause of delay is man made and is
within the control of human being.
||We have passed this
general order in terms of Section 12, read with Section 14(h b) of the Consumer
Protection Act 1986, where numerous and potential consumers have similar
interests and sufferings and are not conveniently identifiable. In case no such
payment is made and consumer approaches the Consumer Forum, the Airlines shall
be visited with heavy punitive damages.
||Bank Guarantee/FDR, if
any, furnished by the appellant be returned forthwith.
||Copies of this order be sent to the Chairman/Managing Director of all the
National/International Airlines of the Country Viz. Air Sahara, Indian
Airlines, Jet Airways, Kingfisher Airlines, Air Deccan etc.
||A copy of this order as
per the statutory requirements be forwarded to the
parties free of charge and also to the concerned District Forum and thereafter
the file be consigned to Record Room.
||Copy be sent to all the National dailies for the information of services providers and
benefit of the consumers.
Announced today on 28th day of November 2006.
(Justice J.D. Kapoor)