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LAW MANTRATHINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 2321-6417)





Consumer Protection Act and Air Carriage
*Shailendra Kumar, PhD Scholar,
West Bengal National University of J uridical Sciences

Introduction
Air carriage has emerged as one of the major transport modes of the modern time. It is
comparatively safe and fast for travelling any distance. The air carriage has proved its
importance in connecting remote areas such as the North East. Nowadays travelling by air is
as cheap as travelling by train. Earlier the air carriage was preferred by the elite class of
people, however, this scenario has changed and now common man uses air transportation for
his destination. These changes were introduced during the economic liberalisation of India
and monopoly of the Government owned company was removed by the Government. Thus
Indian air transport industry was privatised and worked on competitive basis which ultimately
has been benefitting to the passengers.
The domestic air carriage in India was not regulated by the any specific law; however it was
governed by the Law of Contract and Law of Tort; it should be noted that Consumer
Protection Act was not there until 1986. Until 1972, any dispute related to air carriage was
challenged and adjudicated by the civil court under Contact Act
1
because it prescribes
general law of contract and in absence of specific law Contract Act governs contract of
carriage between parties of the contract i.e. passenger and carrier. Although there was law
regulating international air carriage but it was not applicable on the domestic air carriage.
Air Carriage Law in India
There are two sets of laws governing air carriage in India, Carriage by Air Act 2009 and
Carriage by Air 2009 Applicable to Carriage by Air, not being International Carriage. The
first one is applicable for the international air carriage while the second one is applicable for
the domestic air carriage. Both of these laws provide common remedies while air travelling


1
Section 23 of Contract Act
in case of death or wounding of the passenger, delay to the passenger or cargo and loss or
destruction of the checked and unchecked baggage. As per the Carriage by Air Act, and its
schedule, compensation will be calculated according to the respective schedules of the
Carriage by air Act in case of international air carriage. The Carriage by Air 2009 Applicable
to Carriage by Air, not being International Carriage, governs the domestic air carriage and it
makes same provisions as Third schedule of the Carriage by Air Act 2009; with lower
compensation. It is worthwhile to mention that law relating to domestic air carriage was
changed recently in 2014
2
as per the third Schedule of the Carriage by Air Act 2009.
Consumer Protection Act and Carriage by Air Act
The Consumer Protection Act 1986, was enacted for better protection of the interests of
consumers
3
. It includes goods and services and defines consumer; consumer means any
person who buys any goods for consideration
4
or hires or avails of any services for
consideration
5
where transport is considered as services and it is included under the
Consumer Protection Act
6
. Thus air carriage is transport services within the Consumer
Protection Act because it applies on all goods and services
7
. However, Section 5 of the
Carriage by Air Act 2009, prohibits the application of the any other law with regard of the air
carriage which are governed by the three schedules of the Carriage by Air Act
8
.
Despite of the of prohibition by the Carriage by Air Act, Consumer Protection Act will be
applicable because Section 3 says that Consumer Protection Act is in addition to provisions
of any other law and it does not derogate any law, time being enforced. The Consumer
protection Act clearly does not derogate, what it does is provides additional remedies to
consumer, this has been also confirmed by the Supreme Court. The Apex Court held that,
protection provided under the CP Act to consumers is in addition to the remedies available

2
Notification by Ministry of Civil Aviation regarding applicability of the third schedule of the Carriage by air
Act, Date 17 January 2014. for detail see notification http://dgca.nic.in/aic/AIC02_2014.pdf
3
Preamble of The Consumer Protection Act 1986.
4
Section 2 (c) (vi) (i)
5
Section 2 (c) v) (ii)
6
Section 2 (o) define the services as, "service" means service of any description which is made available to
potential users and includes, but not limited to, the provision of facilities in connection with banking, financing
insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing
construction, entertainment, amusement or the purveying of news or other information, but does not include
the rendering of any service free of charge or under a contract of personal service;
7
Section 1(4) of Consumer Protection Act 1986
8
Section 5 (1) of Carriage by Air Act , Notwithstanding anything contained in the Fatal Accidents Act, 1855 (13
of 1855) or any other enactment or rule of law in force in any part of India, the rules contained in the First
Schedule, the Second Schedule a[and the Third Schedule] shall, in all cases to which those rules apply,
determine the liability of a carrier in respect of the death of a passenger
under any other Statute. It does not extinguish the remedies under another Statute but
provides an additional or alternative remedy
9
. The question arises that what remedy is
provided by the Consumer Protection Act if there is already law to govern air carriage.
Consumer Protection Act provides all remedies which are not included under the Carriage by
Air Act and respective Schedules. Consumer Protection Act usually provides remedies for the
deficiency of the services which is defined by the Consumer Protection Act, as deficiency;
meaning, any fault, imperfection, shortcoming or inadequacy in the quality, nature and
manner of performance which is required to be maintained by law or needs to be 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
10
.
Air Carriage and Deficiency in Services
The question arises on what constitutes deficiency of services, it depends on the nature of
the cases, in the recent case
11
National Consumer Forum upheld the decision of the State
Commission warding for deficiency in services and mental agony. In this matter, dead body
of the respondents father was booked from Bangalore to Port Blair with the Appellant air
carrier. As per the contract of carriage, the dead body had to be delivered the same day
which was scheduled for the funeral ceremony. The respondent was also travelling in the
same flight but when he arrived at destination, he found out that his fathers dead body was
not there because it was not loaded in the same flight. However the dead body arrived the
next day and accordingly was delivered to the respondent. The respondent filed complaint
against the air carrier for deficiency in services and mental agony. The National Commission
held that it is virtually impossible to measure in monetary terms the value of emotions and
sentiments, particularly so when a person is already grieving over the demise of a loved
one. Timely customary cremation is one of the basic rights of an individual
12
. The

9
Trans Mediterranean Airways V.S M/S. Universal Exports & Anr, MANU/SC/2011

10
Section 2 (g) of Consumer Protection Act
11
Jet Airways v.s Vijay Kumar, National Consumer Commission 2013, full case is available on
http://164.100.72.12/ncdrcrep/judgement/00131029160216963FA%20No%20438%20of%202011.htm
12
Ibid, Para 11
cumulative effect of delay was mental agony and delayed performance of the last rituals of
the respondent father. The delay of the dead body was due to the deficiency of the services.

National Commission, in the revision petition
13
, held decision of the District Forum where
the passenger had suffered injury. In this matter the passenger was reportedly hit by the
suitcase which was kept on the hatch, which fell down on the head of the passenger. After the
incident, passenger was advised by (the attending) air hostess to get admitted in to the
hospital which the passenger refused and carried on with his journey. However, the passenger
claimed $5000 Canadian at a later date for medical expert and care which was refused by the
respondent. The District Forum, accepted plea of the deficiency of the services and awarded
compensation to complainant along with litigation cost. This revision petition was filed for
increase of compensation on ground of Rule 21 of the third schedule of Carriage by Air Act
2009, which was denied by the National Forum. It should be noted that Third Schedule of the
Carriage by Air Act offers higher compensation in case of death or injury
14
. Even though
quantum of the compensation under the Carriage by Air 2009, is high but problem arises that
how the compensation will be calculated because, in case of the death of the passenger it is
easy to provide compensation but in case of injury it is difficult, reason being that
compensation is to be provided according to the injury, gravity of injury, major injury or
minor injury which is not defined by the Carriage by Air Act. During the air travel, passenger
can suffer injury but merely due to the injury compensation cannot be provided equaling to
death. However in this matter national forum leaves discretion to passenger to initiate
proceeding under Carriage by Air Act. It means, injury during the air travel can be
compensated on ground of the deficiency of the services.

13
Surinder Jathau V.s Emirates India/Nicolete, Revision Petition no. 2325 OF 2013, Order dated 26 August
2013
14
Rule 17 (1) The carrier shall be liable for damages sustained in case of death or bodily injury of a passenger
upon condition only that the accident which caused the death or injury took place on board the aircraft or in
the course of any of the operations of embarking or disembarking.
21. (1) For damages arising under sub-rule (1) of rule 17 not exceeding one lakh Special Drawing Rights for
each passenger, the carrier shall not be able to exclude or limit its liability.
In the matter of Air Emirates V/s Dr. Rakesh Chopra
15
, State commission awarded Rs. 2.00
Lakh compensation to the complainant for deficiency of services where checked luggage
containing clothing and other important thing was misplaced by the air carrier further, while
returning from journey his two luggage locks were tampered and the bags were missing some
important documents along with gifts. The National Commission without interfering with the
judgement of the State Commission held that airlines who were entrusted with the safe
custody and delivery of the passengers luggage admittedly failed to do so causing the
Respondent/complainant, who is a well-known Oncologist, to undergo mental tension,
harassment, loss of professional face apart from the monetary loss.
The Consumer Protection Act, 1986 has been enacted to give relief to consumers for
deficiency in service, unfair trade practice etc. by service providers, traders, manufacturers
etc. There was deficiency in service on the part of Appellant Airlines in losing and
mishandling the Respondents luggage, which caused him harassment, agony, mental tension
and loss of professional face apart from monetary loss, he is entitled to compensation for this
deficiency in service on Appellants part as per the provisions of the Consumer Protection
Act, 1986
16
. The National commission held that the compensation amount of Rs 2.00 Lakh
is in addition to the settlement under the Carriage by air Act 1972
17
. The question is what
remedies were available under the Carriage by Air Act 1972, when this matter was filed,
Second Schedule of Carriage by Air Act was applicable; according to it, for damage or delay
of the registered baggage air carrier would be liable 250 Francs per/Kg
18
. It should be noted

15
Appeal No 204 of the 2008, Order date 11 April 2013 NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION. For detail see http://164.100.72.12/ncdrcrep/judgement/00130411095236884FA20408.html
16
Ibid Para 9
17
Ibid Para 10
18
Second Schedule of the Carriage by Air Act, 18. (1) The carrier is liable for damage sustained in the event of
the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which
caused the damage so sustained took place during the carriage by air
Rule 22(2) (a) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum
of 250 francs per kilogram, unless the passengers or consignor has made, at the time when the package was
handed over to the carrier, a special declaration of interest in delivery at destination and has paid a
supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the
declared sum, unless he proves that that sum is greater than the passengers or consignors actual interest in
delivery at destination.
Rule 22 (2)(b) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object
contained therein, the weight to be taken into consideration in determining the amount to which the carriers
that Second Schedule of Carriage by Air Act is applicable only in case of international air
carriage.
In the matter of Pakistan International Airline V/s Bhagwan Dutt
19
State Commission
provided compensation to complainant/respondent where air carrier did not complete
journey, hence complainant/ respondent suffered financial loss. The complainant purchased
air ticket for journey Riyadh-Karachi-Delhi-Karachi-Riyadh but he could not make his entire
journey because Air carrier cancelled his flight at Karachi, due to that complainant had been
delayed nine days and because of this complainant suffered financial loss as to pay entry fee
in to foreign country and lost his job. The appellant air carrier denied his liability and also
challenged jurisdiction of the State Commission on ground that ticket was purchased in
Riyadh and technically he was in transit in Delhi. However appellant could not support his
argument by evidence or by record, it was proved by the respondent that the ticket was
purchased in Delhi from the air carrier ticket counter, even though the whole journey began
from Riyadh as starting point and place of destination. National Commission as well as State
Commission held that cancellation of flight and not giving refund or making appropriate
alternative flight for complainant was deficiency of services and thus air carrier was liable for
paying compensation.

It should be noted that under the Carriage by Air Act, air carrier cannot be held responsible
for the mental agony unless it is substantiated by physical injury; however, Consumer Forum
has provided compensation for the mental agony almost in every case where deficiency of
services has been proved. In the matter of Susant Kumar Baral vs The Airport Manager
20
, the
air carrier challenged compensation on the ground of mental agony
21
. However, State Forum

liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the
loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects
the value of other packages covered by the same baggage check or the same air waybill, the total weight of
such package or packages shall also be taken into consideration in determining the limit of liability

19
Appeal no 735/2007,NCDRC, For detail of case visit
http://164.100.72.12/ncdrcrep/judgement/00111020120429868FA73507.htm
20
C.D. CASE NO.72 OF 2004, STATE CONSUMER DISPUTES REDRESSAL COMMISSION,ORISSA, for detail see,
http://164.100.72.12/ncdrcrep/judgement/30C.D.%20Case%20No.72%20of%202004.htm
21
Ibid, Para 6
rejected this contention of the air carrier and held that Court is not debarred from awarding
compensatory damages to a passenger for sufferings and mental agony under common
law. In law the injured party is entitled to claim reasonable compensation for sufferings and
mental agony. A Court or Forum quantifies damage on sound principles. A person is entitled
to receive compensation for any loss or damage which arose naturally from the event. In
estimating the actual loss the Court or Forum takes into account only such loss as may be
fairly and reasonably considered to have arisen naturally and in usual course of things from
the violation of obligation
22
Second Schedule Rule 22 (4)
23
of Carriage by Air Act 1972.
However second schedule of the Carriage by Air is not applicable any more for domestic air
carriage because of the Third schedule of the Carriage by Air is applicable since 17 January
2014. The law applicable to govern domestic air carriage also makes same provision under
Rule 22 (6)
24
which say that, The limits prescribed in Rule 21 and in this rule shall not
prevent the court from awarding, in accordance with its own law, in addition, the whole or
part of the court costs and of the other expenses of the litigation incurred by the plaintiff,
including interest. The foregoing provision shall not apply if the amount of the damages
awarded; excluding court costs and other expenses of the litigation, does not exceed the sum
which the carrier has offered in writing to the plaintiff within a period of six months from the
date of the occurrence causing the damage, or before the commencement of the action, if that
is late.
Rule 22 (4) and 22 (6) grant wide power to adjudicate air carriage fairly and deliver justice to
the passengers, in case of air transport services. Whether liability of air carrier is prescribed
or not under the Carriage by air Act 2009, Court or Forum have wide power to adjudicate
matter. In absence of the clear law regulating air carrier liability in case of domestic air

22
Ibid Para 7
23
Second Schedule Rule 22 (4) The limits prescribed in this rule shall not prevent the Court from awarding, in
accordance with its own law, in addition, the whole or part of the Court costs and of the other expenses of the
litigation incurred by the plaintiff. The foregoing provision shall not apply if the amount of the damages
awarded, excluded Court cost and other expenses of the litigation, does not exceed the sum which the carrier
has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the
damage, or before the commencement of the action, if that is later
24
Carriage by Air 2009 Applicable to Carriage by Air, not being International Carriage
carriage or international air carriage, Consumer Forumcan grant relief to the complainant
under Consumer Protection Act 1986.

Conclusion
The air carriage has become common mode of the transportation and during the air travel if
passengers face any difficulties during journey he can claim compensation form air carrier
for every act of denial of adequate services during air travel and its comes under the
deficiency of services. It has been seen that foreign air carriers particularly State owned
companies plea for State immunities regarding their liability towards air carriage, and tries to
avoid their liability, however, Supreme Court has clearly said that state cannot seek State
immunity for business or commercial transaction for contractual or commercial activities
25
in
India. Consumer Forum has wide power to protect interest of the consumer/passenger
whether there is law or not; if there is no law then transaction will be governed by general
principle of law in case travel relation has been accomplished between the carrier and
passengers, it will be governed by the Air carriage Act2009 and Consumer Protection
Act1986.











25
Ethiopian Airlines vs Ganesh Narain Saboo, SC, 2011. Para 72 and 73, for detail judgment please see
http://indiankanoon.org/doc/33826647/