AIR FRANCE vs UNIK TRADERS

AIR carrier is the appellant before us. It is aggrieved by the order of the State Commission awarding compensation to the respondents-complainants for having denied boarding to respondent No.2, employee of respondent No.1, when he was holding a confirmed ticket on a flight to Frankfurt from Delhi and awarding Rs.1.00 lakh as compensation, Rs. 25,000/- as compensation for mental distress and agony and Rs. 5,000/- as costs, in all Rs. 1,30,000/-.

WE partly heard the arguments on 24.5.2002 and adjourned the matter to 30.5.2002 by making the following observations. "This case pertains to denying boarding compensation. Second complainant, Respondent No.2 was an employee of the 1st Complainant/Respondent No.1 and was to go to Frankfurt, Germany to attend a trade fair. It appears that Complainant No.1 which is based at Jaipur, purchased a confirmed air-ticket from the Appellant for travel of its employee, Mr. Krishan Kumar from Delhi to Frankfurt, Germany by Flight No.AF-175 leaving on 7.1.91 at 00.10 hours. It appears that the Krishan Kumar was denied boarding on the ground that perhaps flight was overbooked. He was accommodated in a Hotel and was promised US$ 300 as compensation. Next day he flown to Frankfurt, but his luggage containing personal belongings was not allowed to be carried and it was informed to him that his luggage was being carried in a different flight. His luggage arrived at the Frankfurt airport three hours late. After Krishan Kumar, the employee came back to the Jaipur, a complaint was filed claiming compensation for damages. It is submitted that firstly complaint was filed claiming Rs. 15 lakh but it was restricted to Rs.9,99,999/- to bring it within the jurisdiction of the State Commission. However, State Commission awarded Rs. 1,30,000/- comprising of Rs. 1,00,000/- as compensation, Rs.25,000/- as compensation for mental distress and agony and Rs.5,000/- as cost to the Complainant. Various objections have been raised by Mr. Goburdhun, Id. Counsel for the airlines on lack of jurisdiction, Krishan Kumar not being beneficiary, thus not a consumer and there being no deficiency in service. We have recently given a judgment on the question of denying boarding compensation. Both counsel wants time to study the judgement. Let the matter be listed again on 30.5.02.

In our judgment in Original Petition No.80 of 1997 - Dr. Arun Jain vs. Thai Airways International Ltd. 1986-2002 CONSUMER 6515 (NS) : 2002 CCC 239 (NS) delivered on 21.3.2002 we had occasion to consider the question of denied boarding compensation.

RESPONDENT No. 1-complainant No.1 is dealing in the sale of furnishing material at Jaipur. It wanted to participate in Heim Textile Fair in order to promote Indian Textiles and also its business. It booked a stall in the Fair through Trade Fair Authority and paid Rs.31,050 towards that. Respondent No.1 purchased a ticket from the appellant for travel of its Sales Executive, Krishan Kumar on its flight No.AF-175 leaving Delhi on 7.1.91 for Frankfurt. It was a confirmed ticket. At the appropriate time Krishan Kumar reported for taking the flight but he was told at 11.00 PM on 6.1.1991 that the flight was overbooked and that there is no seat available in the aircraft for him.

RESPONDENTS allege that official of the airlines were told by Krishan Kumar that he had to reach Frankfurt in connection with the Heim Textile Fair on 7.1.1991. Airlines officials expressed their helplessness and booked Krishan Kumar, respondent No.2 for stay in Meridien Hotel, New Delhi and told him that he would be flown to Frankfurt by its flight AF-181. Krishan Kumar was able to get this flight and reached Frankfurt on 9.1.1991 after inauguration of the Heim Textile Fair. His misery did not end, as on reaching the airport it was found that his luggage had not been carried in the aircraft. The luggage came by another flight and which reached at 12.00 noon. Krishan Kumar had to wait at airport for four hours to get his luggage. Krishan Kumar could reach the Fair Ground at about 2.00 PM on 9.1.1991 and since he could not install the stall it is alleged that he was unable to contact the prospective buyers for the goods of the respondent No. 1. Complaint is that the whole purpose of the visit was lost. Respondents for this negligence and deficiency in service of the appellant claimed Rs. 15.00 lakhs as damages. However, airlines was prepared to pay only Rs. US$ 300. However, Complainants reduced the claim to Rs.9,99,999/- to come within the jurisdiction of State Commission and filed complaint in the Rajasthan State Commission. It is not unusual for the international air carriers to overbook their flights. As we have noted in our judgment in the case Dr. Arun Jain, European Union have made regulations and so also law exists in the United States of America in the case of denied boarding compensation. India has yet to make any such law on the subject, but till then it is the contract between the parties which will hold the field and in the absence of any such agreement it would be the Law of Torts. In the latter case we cannot overlook the prevalent international practice of awarding compensation in the case of ''denied boarding compensation''. Considering that there is well recognised practice of overbooking in the aircraft we will not say that the appellant was deficient in service, particularly, when Krishan Kumar was given a stay in the Five Star Hotel and also offered compensation of US$ 300. But then no compensation has been awarded for four hours duration when Krishan Kumar had to wait at Frankfurt Airport to collect his luggage which must have caused him undue anxiety and mental tension. Perhaps at that time offer of a reasonable amount would have been sufficient to overcome this claim. It appears no payment for delay on this account was either offered or paid.

IT was contended by Mr. Goburdhun, learned counsel for the airlines, there was no deficiency in service and yet compensation was awarded by the State Commission which was on the higher side. Considering the whole aspect of the matter we are inclined to agree with Mr. Goburdhun. It was submitted that in pursuance to the impugned order of the State Commission the amount as awarded was paid to the complainant in December, 1995 itself. Mr. Goburdhun, therefore, submitted that direction be issued to the complainant for refund of the balance amount after this Commission directs payment of US $ 300 and reasonable amount for waiting period at the airport. Though we have held that there was no deficiency in service on the part of the airlines, we do not think after 11 years of the cause of action we should direct any refund of the money paid as compensation to the complainant by the airlines.

WE will, therefore, allow this appeal holding that there was no deficiency in service on the part of the airlines, but at the same time would not direct refund of any amount paid by the airlines to the complainant in terms of the award of the State Commission. There shall be no order as to cost.