PATEL RAMUBHAI SHANKERLAL vs Indian Airlines Corporation

THE complainant is a practicing Chartered Accountant and is a frequent traveler by the Air Craft belonging to Indian Air Lines Corporation, Opposite Party herein. THE complainant was the Vice-Chairman of WICAA of the Institute of the Chartered Accountants and sitting member of the said Institute at New Delhi since 1988 and Vice-Chairman of the Taxation Committee. He is also holding several other positions and on that account, according to the complainant, he had to undertake repeated travels for going to various places and, particularly on Ahmedabad-Delhi Section of the Indian Air Lines Corporation (opposite party for short). THE opposite party is a monopoly concern for operating Air Lines throughout India and declaring the Flight Schedules and time table for outgoing and incoming flights at the places where it touches the Air Ports.

THE complainant has alleged that from his repeated experience, he has learnt that the Opposite Party is not operating the Flights well in time and majority of flights are being delayed either because of the negligence of the staff, or on the ground of technical snag which leads to the inference that the Air Crafts which are being operated on Ahmedabad-Delhi Section, are defective one and the same are being run at the inconvenience and risk of the passengers. The complainant has then averred that the Indian Air Lines Corporation is a commercial venture of the Government of India, having monopoly for the entire of India and has fallen to the prey of bureaucrats, resulting into carelessness and rack less management, paying no attention to the complaints of the travellers, whose valuable life is being put to jeopardy and danger. According to the complainant, as a usual phenomena, the complaints are welcome by the opposite party but no redressal to such complaints is found to the extent of showing courtesy even to acknowledge for the same.

After this complaint was filed, the complainant had some more occasions to travel by the Air-Craft of the opposite party and, therefore, he placed by way of amendment, some incidents on record instead of bringing a new complaint The amendment has been allowed by us to shorten the litigation. The complainant had narrated (7) seven incidents regarding the defective services of the opposite party, resulting into loss and damage on account of negligence on the part of the opposite party, we will refer to the incident date wise, which are as under:- (i) On December 15, 1989, flight No. IC/864 was to take off at 16.45 hours from Ahmedabad; but the same was delayed by twelve hours. No information was available regarding the correct time of departure and the complainant had to wait for 8 to 9 hours and ultimately when the Air-Craft came at 11.00P.M., while taking off, the Tyre was found to have been deflated. The passengers were brought back from the Air-Craft to the Terminal and were informed by the authority that unless the tyre and the technical staff comes from Delhi, the flight would not take off. Thus, in the uncertain situation, the complainant had to get his ticket cancelled.

(ii) On February 1, 1990, on Ahmedabad-Delhi Morning Flight, there was a delay of 1-1/2 hours, but the reason for delay was starting, in as much as, after the doors were closed, the Captain could not start the Engine and ultimately 3-4 staff members were found running from the Terminal basement; doors were again opened, stair-case was placed. But in the meantime, the technical staff started making the engine running by working below the Air-Craft. It is the case of the complainant that it was a matter of surprise as to how the engine could not start at the last moment. Corollary thereof, according to the complainant, could be very clear that the opposite party does not have the method of routine checking before the nights take-off.

(iii) The most hopeless experience, the complainant had, is that on February 10, 1990, when he was travelling by Flight No. 861 from Delhi to Ahmedabad, before some 10 to 15 Minutes of the Plane landing at Ahmedabad Air-Port, the cabin crews were found running here and there without any announcement. However, when the complainant inquired from one of the staff members so running, he was informed that the Hydraulic system had failed and hence emergency landing was to be made, Thereafter, immediately within 2/3 minutes, the staff member informed the passengers of emergency landing without any announcement. Accordingly, all the passengers including the cabin staff had taken emergency landing position. After about 5 to 10 minutes, the Captain made announcement that the Hydraulic system had started working and there was no cause of worry and, within a minute thereafter the Plane safely landed at the Air Port and by the grace of God, the history of October, 1988 when the aircraft had crashed, did not repeat.

THE complainant''s case is that, inspite of that, to the surprise of the complainant, no emergency services were found ready anywhere on the Runway. THE Fire Bridge and emergency van were found parked at their normal places far from the run away and on inquiry, it was found that there was no message for emergency landing at the Terminal. THE incident was reported in the local newspaper on February 11, 1990, and xerox copy of the newspaper cutting has been produced by the complainant. THE significance of this event, according to the complaint, is that within four days, i.e. on 13.2.1990, the Indian Air Line owned Air Bus met with disaster and loss of lives at Bangalore Airport and as many as 90 passengers lost their lives. This shows how racklessly and carelessly the Indian Air Lines are being operated. On account of this horrible situation of emergency according to the complainant, he had suffered great mental set back and nerve tension due to improper working of the nerve system accompanied with memory loss and has, therefore, claimed a total compensation of Rs. 9,50,000/by way of damages. By way of amendment, the complainant has narrated further incidents as under : (i) THE complainant had booked for himself and his wife on 6th March, 1990, for Bombay-Bhuvaneswar flight and when the complainant reached Bombay Air Port, he found that the Flight was cancelled. THE opposite party never bothered to inform that the Flight was cancelled. He was ultimately put to Bombay-Calcutta Flight as no seat was available by Bombay-Delhi-Bhuvaneshwar flight from Calcutta. From Calcutta, , however, he had to travel by Train without any reservation, undergoing unbearable mental torture and pain for the whole night.

(ii) THE complainant had booked his ticket by Ahmedabad-Delhi Flight on 30th May, 1990. When he reached the Air Port, he found that the flight was delayed by 5 hours. THE complainant had to get his ticket cancelled as the Meeting with the Chairman of the Review Committee of Test Audit was fixed at 1.00 P.M.

(iii) THE complainant was booked by Ahmedabad-Delhi IC 462 Flight, on June 6, 1990 and the scheduled departure stated in the ticket was 8.30 A.M. Complainant reported at the Air Port at 7.10 A.M. and at that time, he found that his seat was already allotted to a waiting list passenger. THE counter was also closed as the real departure was 7.30 A.M. He missed the flight and had to go by evening flight and as a consequence thereof, he missed the Executive Council Meeting of the-'' Institute of Chartered Accounts.

(iv) THE further experience of the complainant was that on 9th September, 1990, when he was coming from Delhi to Ahmedabad by IC 437 Flight, whose scheduled departure was 6.40 P.M. the flight was delayed by 1-1/2 hour and, instead of taking the flight directly at Ahmedabad, it was first taken to Baroda. THE complainant had a horrible experience of worst landing at Baroda when Air Craft touched with great impact on the run-way. Fortunately, nothing happened and the plane arrived and landed at Ahmedabad at 11.30 hours, that is to say, three hours late than the scheduled arrival.

Mr. S.R. Joshi, the Station Manager attached to Ahmedabad office of the opposite party, has filed the affidavit-in-reply dated March 28, 1990 and thereafter, on the amendment of the complaint, Mr. Joshi has filed additional affidavit-in-reply on July 5, 1990. Mr. R.S. Patel, the complainant, has also filed his Affidavit on July 11, 1990, in support of his original complaint as also the amended complaint.

MR. K.V. Mody, who has filed his Affidavit and who was the Captain of Flight No. 1C 861, was present in Court. The Complainant had requested for permission for his cross-examination which could normally be allowed after the evidence of the complainant would be over, but since Captain Mody was serving at Calcutta, by consent of the parties, his oral evidence was recorded first. Affidavit filed by Captain Mody was treated as his examination-in-chief and MR. Soparkar was permitted to cross-examine Captain K.P. Mody. Thereafter, at the request of the learned Counsel for the opposite party, the complainant was offered for cross-examination, treating his affidavit, filed earlier, as examination-in-chief. The Indian Air Lines produced second witness, namely Mr. Rakesh Bhatia, the Traffic Manager, whose deposition was recorded. The deposition of Station Manager, Mr. Suresh Joshi, was also recorded. Affidavit of Mr. Shakti Lumba, the Commandant of 1C 417 was taken on record. The affidavit of Advocate Mr. Shirish Sanjanwalla produced in support of the complaint, was taken on record. The matter was thereafter argued by both the learned Counsels and was kept CAV for Judgment. In the meanwhile, since Mr. Mayank Buch, the learned Counsel for the opposite party, wanted to produce Rules framed under the Carriage by Air Lines Passengers and Cargo Act, 1952, he wanted to argue the matter further, which request was objected to by the complainant. We permitted both the parties to make further submissions and the matter was accordingly heard again.

THE opposite party had denied the liability regarding delay as well as deficiency in service on various counts as explained by the staff member in his affidavit, supported by oral as well as affidavit evidence which we will deal with at the appropriate stage.

THE grievances of the complainant are;- (i) that, regularly, there is delay in flight, either on account of technical effect or because of indifferent and easy-going attitude on the part of the opponent; (ii) that, the services of the opposite party are defective because of the bureaucratic approach, lack of awareness and defective fleet of Air-Craft. We will take up, first, the grievance regarding delay in operating the flight, ignoring the scheduled time table.

The first of such incident as narrated by the complainant is dated December 15, 1989. there was a delay of 12 hours. This incident is not denied by the opposite party. The explanation put forward by Mr. Joshi, the Station Manager, in his affidavit-in-reply is that the Flight IC 615 operates between Bombay and Ahmedabad and the same Air-Craft then operates between Ahmedabad and Delhi as Flight IC 864 and from Delhi to Ahmedabad being known as Flight IC 863. The very same Air craft goes to Bombay from Ahmedabad as Flight IC 616. Mr. Joshi has produced various arrival and departure timings of respective Flight by the same Air craft. He has further staled that this routine is subject to change as per the requirements of the Corporation. With respect to the flight in question causing delay, according to Mr. Joshi, on that day. instead of one air-craft, two separate air-crafts were operated as Bombay-Ahmedabad-Bombay and Delhi-Ahmedabad-Delhi as Flight IC 863 had been operated as per Schedule at Delhi and it arrived at Ahmedabad Air Port at 20.30 hours. This arrangement was duly announced. However, on arrival of IC 863, the Ground Engineer had inspected their air-craft and carried out necessary checking. Passengers were thereafter permitted to board the plane. However, when the plane was loaded with cargo and all the passengers had boarded the plane, ground engineer had again inspected the air-craft and at that time, he found that one of the two nose-wheel tyre was found deflated and informed the pilot that the air-craft cannot go and the passengers were requested to alight from the air-craft. As stated by Mr. Joshi, the passengers were informed that since that mechanic and material for replacement of the deflated tyre were being called from Delhi, as soon as the relief air-craft would arrive, the same would be replaced and flight IC 863 can take off thereafter. The passengers were also informed that they would be accommodated in the next day morning flight or they can get their tickets cancelled and that the complainant had got his ticket cancelled. The relief air-craft carrying men and material had arrived at 2.00 hours, the deflated tyre was replaced and thereafter flight IC 863 took off at 2.50 hours for Delhi with the passengers who opted to travel. According to Mr. Joshi, the deflation in the tyre can only be noticed when the air-craft would be fully loaded with cargo and passengers.

With respect to the information, Mr. Joshi had stated that the passengers were informed about the deflation of the tyre and they were also informed about the estimated departure time which solely depended on the arrival of the relief air-craft from Delhi. Mr. Joshi has, therefore, denied the allegations made in the complaint on this count. Mr. Joshi had admitted that Ahmedabad is one of the major Air Ports of Gujarat State and comes about 10th or 12th in traffic-wise and operation-wise.

IT appears that there is no facility available for replacement of tyre or spare-parts at Ahmedabad Air-Port. Ahmedabad is linked with Delhi for this facility and, therefore, even for a change of tyre, the Indian Air-Line has to send a special air-craft with mechanic and tyre. The explanation for previous incident of delay of 7 hours is not convincing. On the contrary, on that day, instead of the same air craft operating between Delhi-Bombay-Delhi and back services, there were two aircrafts. The record regarding the delay is not produced and we have to reply on the bare statement of Mr. Joshi. Admittedly, the Indian Air Line Corporation has the monopoly to operate this service. The principle on which the Corporation is given monopoly is to cater better services to the travellers with least trouble. The State indulges into commercial services to ensure better services and greater protection with service motive. But, unfortunately, a delay of as many as 12 hours is not very convincing on the fact and circumstances of the case. This is not a solitary instance that one may over-look the same. There are other instances of delay which have also been referred to by the complainant, and the explanation thereto has been given by Mr. Joshi without producing the original record which again is not convincing.

THE question, however, arises is whether this Commission can grant any relief on account of delay in operating the Air-services. Mr. Buch, the learned Advocate appearing for opposite party has relied upon the relevant Regulation, extract whereof has been printed on the passengers ticket issued by the Indian Air Lines, which clearly says that: (3) THE Corporati0n is not liable for damage occasioned by delay in the travel by air of passenger or baggage. This Regulation appears to have come up for consideration before the Hon''ble National Commission in First Appeal No. 10 of 1989 in the case of Indian Air Lines and Rajesh Kumar Upadhyaya. THE State Commission had in that case awarded a sum of Rs. 200/- for the loss of time on account of delay of four hours and sixteen minutes in starting the flight from Lucknow. On appeal by the Indian Air Lines, the National Commission had observed in para 12 as under: - "It is not the law that mere fact that a flight is operated late will ipso-facto render the airline liable for payment of compensation to the passengers. Section 5(e) of the Non-International Carriage (Passage & Baggage) Regulations, 1980 framed in accordance with the power conferred by clause (g) of Sub-section (2) of Section 45 of the Air Corporation Act, 1971 inter alia lays down that the Corporation is not liable for damage occasioned by delay in carriage by air of passengers or baggages. This condition forms an essential part of the contract of carriage of Indian Air Lines with its passengers as it is printed on the jacket of the ticket issued to them".

Again, in para 13, the National Commission had observed that the Forums constituted under the C.P. Act are invested with jurisdiction under Section 14(3) of the Act to award compensation to the consumer only for any loss or injury suffered by the consumer".... due to a negligence of the opposite party...." Proof that there was negligence and that it caused particular injury, is a sine-qua-non for the award of compensation under this provision. Where there is no such proof, compensation cannot legally be awarded under Section 14(d) of the Act In all the instant cases where the complaint is regarding the delay, the Opposite Party has tried to explain the delay without producing the record which, in our view, is not very satisfactory. However, the burden to prove that the delay was occasioned on account of the negligence, lies upon the complainant and, in our opinion, this burden had not been discharged by the complainant by producing positive evidence on record. The incident of 15th December, 1989 regarding delay partly occasioned on account of the deflated tyre, was beyond the control of the opposite party, though it would have been ideal for the Corporation to keep spare tyres and other arrangements at such a big Air-Port like Ahmedabad. However, since we are not aware of the technical difficulties, we do not consider this as an act of negligence. The complainant has not proved the negligence of the Corporation in other incidents also, and on that account, the grievances of the complainant for compensation on account of alleged delay cannot be entertained.

THE other causes of grievance of the complainant are with regard to the incident of February 7, 1990 where Hydraulic system of the Air Craft was declared to have gone out of order. THE Corporation has examined Captain K.V. Mody who was in charge of Flight IC 861 on that day. Captain Mody has the experience of flying 320 Air Buses and other different types of Air-Crafts right from Dacotta to Boeing 737. Captain Mody has explained how the Hydraulic system works and he has specifically stated that he noticed the Hydraulic low quantity warning finished on the computer system which meant that the Hydraulic oil quantity level was reduced from operational level and in consequence thereof, he undertook the checking by check list and took all steps necessary to be taken if the question of any emergency landing arises. Captain Mody has also stated that with the loss of this system, it would cause or require half-braking with other available system which is required increased landing distance. It was a sort of emergency. Captain Mody has also stated that he himself had made an announcement to the passengers informing them that they may be making emergency landing. THEre was no cause of tension: they may only get slight jerks and the Captain would be able to land the air-craft. He admitted that he had no documentary evidence to support his say regarding the announcement. He has then stated that after having checked the entire system, he did not find any problem and had landed safely and normally. According to him, he had relayed the information before 5 to 6 minutes prior to the actual landing: that in his opinion, he found that he would be able to land safely and no problem will arise because, at the time, he found the system to be operating normally.

IT is true that on account of the release of information of emergency landing, the passengers might have received great shock and mental disturbance; but at the same time, even on a smallest doubt, it was the duty of the Captain of the Air-Craft to acquaint the passengers of the situation that if real emergency may arise, they can get prepared, resulting into lesser calamity. This information appears to have been released also by the control. We have found the evidence of Captain Mody to be very specific and trust worthy and we accept his evidence in toto. What steps were taken by the Air Port Authorities are not very clear and have not been properly explained by Mr. Joshi. However, we are not holding that there was any negligence on the part of the Corporation authorities for the said incident of failure of any particular system during actual flight and, therefore, for this incident also, we reject the claim of the complainant for any compensation. With regard to the incident of 6th March, 1990 of the alleged cancellation of Bombay-Bhuvaneshwar flight, Mr. Joshi, in para 4 of his Affidavit-in-reply has stated that the complainant was never booked by Flight dated 6.3.1990, because no flight operated from Bombay to Bhuvaneshwar on that day. Immediately thereafter, he has stated that the scheduled Flight IC 129/130 operated from Bombay-Nagpur-Bhuvaneshwar and back which was re-scheduled, operative from Nagpur-Bhuvaneshwar, effective from 6th March, 1990. and this scheduled change was notified to all Travel Agents of the Corporation. He has further stated that the Corporation has a right to change the scheduled flight without any prior notice and without assigning any reason, etc. and this particular condition forms part of the condition of contract embodied on the jacket of the passenger ticket. Mr. Joshi has further stated that the travel agent through whom Mr. Patel may have got his ticket booked, must have informed him about the change of the scheduled flight. According to Mr. Joshi, the complainant was booked on March 5, 1990 and due to re-scheduling of flights, he was re-issued the ticket for IC 274 Bombay-Calcutta, without collecting any additional charges.

The complainant Mr. Patel, in his deposition has stated that 6th March, 1990 was a typographical mistake; the flight for which he was booked, was for 5th March, 1990; but the ticket that was issued, was per Bombay-Nagpur-Bhuvaneshwar flight and he has complained that his flight was cancelled, for which no prior intimation was given to him. when he had reported at the Air Port but on going via Calcutta, he had to stay for two days at Calcutta though he was in urgent need to reach Bhuvaneshwar. He has further stated that another flight was going through Bombay-Calcutta, Bhuvaneshwar but he was not given room on the ground that the flight was fully booked.

AFTER the evidence of the complainant was over, Mr. Joshi, the Station Manager, was cross-examined. In his cross-examination, Mr. Joshi stated that he had no personal knowledge about the contents of para 4 of his affidavit which refers to this incident of Bhuvaneshwar flight The question, therefore, arises is whether the issuance of the Air-Ticket per Bombay-Calcutta flight wherein the passengers had to stay for two days at Calcutta for going to Bhuvaneshwar in place of Bombay-Nagpur-Bhuvaneshwar flight, can be said to be re-scheduled so as to get the benefit of the notice printed on the jacket which according to the Corporation is one of the conditions for air journey.

THERE is no doubt that there was a contract of service between the complainant and the opposite party Air Lines Corporation for a consideration under which opposite party was obliged to carry the complainant and his wife from Bombay to Bhuvaneshwar. Under the provisions of the Exception clause, the Corporation has the power to reschedule the flight but such re-scheduling, according to our opinion, should be: (i) By the flight which carries the passengers from Bombay to Bhuvaneshwar, either directly or through any other route, but the contract is to land the complainant and his wife at Bhuvaneshwar and not to any other city between Bombay and Bhuvaneshwar, (ii) Such re-scheduled flight should be similar to the original route without causing unreasonable inconvenience to the passengers;

Now, in the instant case, no doubt the complainant and his wife were granted rescheduled tickets for Bombay-Calcutta flight free of any charge; but it should be borne in mind that they had already paid the charges upto Bhuvaneshwar. Therefore, it cannot be said that they were granted free-tickets. The flight was upto Calcutta, whereas the contract was upto Bhuvaneshwar. No other explanation is given as to by which flight the complainant and his wife were to be carried upto Bhuvaneshwar. On this point, the Corporation is silent. However, assuming that the complainant and his wife were to be carried to Bhuvaneshwar in the flight which was made available after two days, it cannot be said to be a ''re-scheduled'' flight without unreasonable inconvenience. It is very well-known that the passengers travel by air to reach the destination in the shortest time and it is for reaching within a short time only that the passengers pay much more transport charges than the other mode of road transport charges which otherwise takes longer time. In these circumstance, we are of the opinion that offering tickets on Bombay-Calcutta route in place of Bombay-Nagpur-Bhuvaneshwar route cannot be said to be a "rescheduled" flight. Even if we accept that the complainant was also to be given air-ticket free of charge from Calcutta to Bhuvaneshwar after interval of two days, we are of the view that such type of service cannot be said to be a "re-scheduled" flight without unreasonable inconvenience. We may not lose sight of the fact that the Corporation has a monopoly of Air-service and there is no other private Air-Service Operators available to the passengers within the Indian territory. The power to re-schedule the flight is a rare power which causes great hardship and inconvenience. That power should therefore, be strictly construed, and if the Corporation exceeds that power, the Corporation should be considered to be negligent and hence it should be held liable to bear damages. No doubt, the Corporation, according to Mr. Joshi, had offered further journey from Calcutta to Bhuvaneshwar, but the Corporation could not give room since the flight for Bhuvaneshwar was full. In these circumstances, we are of the opinion that the Corporation is responsible and negligent in causing great inconvenience besides mental tension, etc., to the complainant and his wife. The Corporation is held liable to pay damages to the complainant for causing great hardship mental tension and expenses.

THE next question then arises as to what damages should be awarded to the complainant on this count. THE complainant has not been able to lead specific evidence regarding damages and, therefore, we have to assess the same having regard to the facts and circumstances of the case appearing on record. After giving our anxious consideration to the circumstances, we assess the damage at Rs. 2,000/- for each ticket, i.e. total at Rs. 4,000/- on this count

THE next incident referred to by the complainant on the point of negligence is in respect of wrong time of departure of Flight No. IC 462 on Ahmedabad-Delhi route. THE air-ticket for the said flight was admittedly issued by M/s. Vyas Travels who are the travel agents of the Opposite Party. It is not in dispute that it was a ticket issued by the authorised agent and binding on the Corporation. THE air-ticket admittedly shows the time of departure of the said Flight IC 462, at 8.30 A.M. THE Complainant had reached and had reported himself at the Ahmedabad Air Port at 7.00 A.M. According to the Corporation, the said Flight was leaving at 7.30 A.M. and not at 8.30 A.M. and when the Complainant reached the Air Port, the passengers had already taken their seats in the plane and the entrance door had been closed and the ladder, taken away. THE Corporation Authority could not accommodate Mr. Patel though requested and he had to waste the whole day and had to go by the evening flight. THE evening flight was also full and according to Mr. Patel, he had to wait for clearance. In our opinion, issuing of air-tickets showing wrong departure time is clearly a case of negligence and Vyas Travels being the authorised agents of the Corporation, who had issued the ticket on behalf of the Corporation, the same is binding to the opposite party. That being so, the Corporation is responsible for the negligence for this incident also. We are, therefore, of the opinion that the Corporation is bound to pay damages to the complainant for this incident of negligence. Here also, the complainant has not led evidence in respect of the damages. Mr. Patel has specifically deposed that he has filed this complaint, not to get damages although he has suffered heavily, his attempt is only for bringing into the light before the public, the indifferent and careless attitude of the Corporation in discharging their function.

Considering the facts and circumstances of the case as also the mental tension in which the complainant was placed because of this incident, we assess the damages at Rs. 1,000/-.

THUS, the complainant is held entitled to get damages at Rs. 5,000/- for the aforesaid two incidents. His grievances with regard to other incidents are rejected. Since we allow the complaint partly, fair order is to direct the parties to bear their own costs. Complaint partly allowed.