India has the fastest growing number of air passengers in the world. The various problems viz., denial of boarding despite holding confirmed ticket, delay, re-scheduling, cancellation of flight without due intimation, refunds, misguidance by travel agents, failure of Airlines to provide lodging, medical facilities etc., to stranded travelers, deficiency in food service in flight, deficiency in handling the visa, passport documents, poor facilities at airports, and unfair trade practices by Airlines/agents are some examples where the passengers/consumers are exploited for lack of awareness of their rights.
Whether the provisions of consumer Protections Act, 1986 is having any relevance to tackle the problems faced by this civil aviation industry?
The Consumer Protection Act is an additional Legislation to the existing laws i.e., which is in addition to remedies available under the other Acts.
The Warsaw Convention is an international convention which regulates liability for international carriage of persons, luggage or goods performed by aircraft for reward.
This convention limits a carrier’s liability to at most:
250,000 Francs or 16,600 Special Drawing Rights (SDR) for personal injury;
17 SDR per kilogram for checked luggage and cargo, or $20USD per kilogram for non-signatories of the amended Montreal Protocols. …..
5,000 Francs or 332 SDR for the hand luggage of a traveller.
Under the Montreal Convention, air carriers are strictly liable for proven damages up to 100,000 Special Drawing Rights (SDR), and liability of airlines for lost baggage to a fixed amount 1000 SDR
Carriage by Air Act, 1972. Article 17 of the II Schedule of this Act makes the carrier liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operation of embarking or disembarking.
As per Rule 22(1) further provides that in the carriage of persons the liability of the carrier for each passenger is limited to the sum of 2,50,000 Francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
Consumer in relation to Air Services:
Section 2 of the Consumer Protection Act, 1986 provides for definition of the term ‘consumer’, in relation to goods purchased or services availed by him for any consideration.
The consumer protection act, 1986 has covered many areas in the airline operations viz., flight left prior to scheduled time, denial of boarding, fight route changed without intimation/notice, allotment of faulty seat for entire journey, flight cancellation, Non-operation of flight and Emigration clearance etc., are some of the areas where commonly the passengers are faced on their travel.
Flight passenger, who has hired the service of Airlines for consideration is a consumer. The passenger who have hired the service of Airlines for consideration, with the purchase of air tickets is undisputedly a consumer in terms of Sec.2(d) (ii) and the carriage of passenger and goods by airline is surely a service of transport in terms of sec.2(o) of the Consumer Protection Act, 1986.
Cancellation of confirmed ticket by Airlines is deficiency in service, and liable to refund. Breach of promise to provide facilities in flight Business class passenger given seat which was not reclinable, passenger entitled to difference of fare.
AIR CANADA V/s S.K. MALHOTRA AND OTHERS: They had confirmed booking of tickets with Air Canada, from Delhi to Baltimore on 30.4.2005 as also for their return journey to Delhi from Baltimore to Delhi via Toronto. When the couple reached Baltimore on 17.6.2005, they were informed that the flight from Toronto to Delhi had been rescheduled from 17.6.2005 to 19.6.2005. In the absence of any prior intimation, the complainants had to stay at Toronto for two days where the petitioner – Airline had not provided any accommodation. The District Forum, held that the opposite party deficient in rendering service and directed the airline to pay Rs.1 lakh as compensation to the complainants and in addition awarded a sum of Rs.10,000/- towards the cost of litigation.
In Gururaj Joshi vs. Gulf Air Co. & Anr. Case the National Forum has decided the case for pilfered baggage.
He booked nine parcel all weighing 210 kgs Jeddah to Bangalore. He was given delivery of 8 parcels and ninth parcel could be traced after 1/1/2 months. Respondents were directed to pay Rs.4800/- towards refund of demurrage charges collected from the complainant and further sum of Rs.1,520/- being the proportionate freight charges collected for 17.6 kgs. of goods. A sum of Rs.5,000/- was also awarded to the complainant towards cost of the appeal. It was further directed that the amounts as ordered shall be paid within six months of the order failing which interest @ 15% shall be leviable till realisation.
In a case Punjab National Bank V/s K B Shetty – II (1991) CPJ 639
The complainant purchased the ticket from the travel agency, by paying Rs. 48, 570/- for travel to U S A and back. The agency failed to purchase the ticket and finally returned the money by cheque which, however was dishonoured. The complainant filed a case against the Agency before the Metropolitan Magistrate, as also before the State Commission to recover the money with compensation. The agency contended that since the criminal complaint about dishonouring of cheque was pending the complaint was not maintainable.
The National Commission relied upon an earlier judgment of the Commission in a similar case when it was held that the criminal case filed by the complainant was no bar to the maintainability of the complaint before them.
A popularly known as “Delhi Airport escalator’s death case”. Death of little girl while trapped in Airport escalator at the New Delhi Airport, by Air India flight on 13.12.1999. Passengers or visitors who use amenities provided in Airport are consumers and complaints are maintainable under the Consumer Act. AAI is liable to pay compensation. On this issue the Supreme Court upholds the order of National Commission awarding Rs.1.7 crore as compensation for death of girl in escalator.
In a case Mrs Anita Bhatia &Ors V/s Kenyan Airways I (2004) CPJ 58 (NC) Kenyan Airways between Bombay and Nairobi- Compensation payable in the case of air accidents should be arrived at as per the law of the country.
On account of the death of a passenger, in the air crash which occurred on 30.01.2000, from Bombay to Nairobi when it crashed into the sea of Ivory Coast, resulting in his death and other passengers. His Legal Representatives claimed Rs.2,22,91,066/- as compensation, in addition to Rs. 30,95,968- received earlier, by way of settlement.
In a case Luftansa German Airlines V/s Rish Bajoria & Others – I (2007) CPJ 333 (NC): The complainants were on filing of Luftansa German Airlines from Amsterdam to Frankfurt. They alleged that the food served to them contained good number of glass pieces embedded therein. The National Commission held that the deficiency in rendering air travel services stood proved on account of failure to serve proper, healthy and safe meal fit for human consumption and confirmed compensation of Rs 5 Lakhs.
Conclusion and suggestion:
The consumers are at liberty to approach the Consumer Forum by filing a consumer complaint through the consumer protection Act, 1986, which is in addition to remedies under the other Acts, and is sufficient to tackle all sort of issues related to the civil aviation and have relevance with civil aviation industry.
Thus, I suggest setting up a separate tribunal for dealing all the cases in respect of air transportation, like Railway Tribunal, and also appoint members who have special qualification and experience in the aviation Industry, for bringing Speedy relief to the passengers in particular and also to all those persons who are all connected with this aviation Industry…