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
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/