NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
Dr. Arun Jain … Complainant
Vs.
Thai Airways International Ltd. … Opposite Party
BEFORE:
HON’BLE
MR. JUSTICE D.P. WADHWA,
PRESIDENT
HON’BLE
MR. JUSTICE J.K. MEHRA, MEMBER.
MRS.
RAJYALAKSHMI RAO, MEMBER.
MR.
B.K. TAIMNI, MEMBER.
Travel - International Airlines- denied
boarding compensation (DBC) - principle as to payment of compensation.
For the complainant : Mr. S.C. Singhal, Advocate.
For the opposite party : Ms. Shipra Mathur, Advocate
For Mr. Lalit Bhasin, Advocate.
O R D E R
DATED THE 21st
March, 2002.
JUSTICE D.P. WADHWA, J.(PRESIDENT)
Complainant was denied boarding by opposite party-Airlines though he was holding a valid confirmed ticket. The case pertains to what is known as ‘Denied Boarding Compensation’ (DBC). There is no law in our country which prescribes amount of compensation in the case of DBC and it would depend on the contract between the passenger and the Airlines. In case of there being no such contract passenger will be awarded compensation under the Law of Torts. Consumer Courts in our country, even Courts in England, have in consumer disputes awarded damages for mental distress, upset, disappointment and injured feelings. But we have to approach this area cautiously.
During the course of argument our attention was drawn to newspaper clipping of February 12, 2001 of Hindustan Times, New Delhi edition on the subject how to tackle Airlines ‘off loading’. It mentions that Air India, national carrier of this country, gives US $ 300 to passengers offloaded from US- bound flights. Lufthansa offers vouchers worth Euro 600 as compensation for offloaded passengers which can be redeemed the next time the passenger flies and in case the passenger demands cash, he gets only half of this the amount. British Airways also offers a cash compensation to offloaded passengers apart from taking full care of them till they board the next available flight. Some Airlines do not offer any compensation at all for offloaded passengers.
European Union Council Regulation (EEC) No.295/ of 4th February, 1991 establishes the common rules for denied boarding compensation system in scheduled air transport. It may not be convenient to set out all the Aticles of regulations but we may refer to Articles 4 and 6 which read as under:
“Article 4
1. In the event of boarding being denied, a passenger shall have the choice between:
. reimbursement without penalty of the cost of the ticket for the part of the journey not made, or
. re-routing to his final destination at the earliest opportunity, or’
. re-routing at the later date at the passenger’s convenience.
2. Irrespective of the passenger’s choice mentioned in the case referred to in paragraph 1, the air carrier shall, immediately after boarding has been denied, pay minimum compensation, without prejudice to paragraphs 3 and 4, amounting to:
. ECU 150 for flights of up to 3500 km,
. ECU 300 for flights of more than 3500 km,
. having regard to the final destination specified in the ticket.
3. Where the air carrier offers re-routing to the final destination on an alternative flight, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked by two hours for flights of up to 3500 km, and by four hours for flights of more than 3500 km, the compensation provided for in paragraph 2 above may be reduced by 50%.
4. The amounts of compensation need not exceed the price of the ticket in respect of the final destinations.
5. The compensation shall be paid in cash or, in agreement with the passenger, in travel vouchers and/or other services.
6. If, on an overbooked flight, a passenger agrees to be placed in a class lower than that for which a ticket has been purchased, he shall be entitled to reimbursement of the difference in price.
7. The distances given in paragraphs 2 and 3 shall be measured by the great circle track method (great circular route).
Article 6:
1. Apart from the minimum compensation amounts set out in Article 4, the air carrier shall offer free of charge to passengers who are denied boarding:
a. the expenses for a telephone call and/or telex/fax message to the point of destination;
b. meals and refreshments in a reasonable relation to the waiting time;
c. hotel accommodation in cases where an additional stay of one or more nights is necessary.
2. When a town, city or region is served by several airports and an air carrier offers a passenger, who has been denied boarding, a flight to an airport other than the destination airport that the passenger had booked, the cost of travelling between the alternative airports or to an alternative close-by destination, agreed with the passengers, shall be borne by the air carrier.”
Earlier to the European Union Regulations provisions for DBC also existed in the United States of America in the Code of Federal Regulations (Title 14 – Aeronautics and Space). These Rules even provide for boarding priority rules and where request is made by the Airlines to ‘volunteers’ for denied boarding. As to who is volunteer has also been defined. Rules prescribes how much amount is to be paid to the volunteer and also to those passengers who are denied boardings involuntarily. (The regulations of the European Union and the rules of the United States can be accessed through their respective websites.)
It would appear that the Central Government is also contemplating to assume power to prescribe the law of air carriers. It is submitted that the Civil Aviation Act, 2000 of which draft has been put on the internet, it is Chapter XI which deals with law of carriers. Section 103 in the proposed draft legislation concerns denied boarding compensation (DBC) and we may set out the same:
“103. Compensation schemes for passengers relating
to grievances like denied boarding etc.
(1) The Central Government may formulate schemes for payment of suitable compensation by carriers to passengers who are denied boarding, in specified circumstances, on flights from India to any point outside India, or on flights within India, for which they have confirmed reservations, or for any other kinds of passenger grievances which in the opinion of the Central Government have assumed significant level of public dissatisfaction.
(2) The compensation schemes under sub-section (1) shall be formulated after holding consultations with the carriers and shall be notified in the Official Gazettee before implementation.
(3) Any compensation scheme notified by the Central Government in the Official Gazette under sub-section (2) shall be binding on the carriers, and any contravention thereof shall be punishable with fine which may extend to one lakh rupees.
Complainant in the present seeks damages for Rs. US $ 1,00,000/- equivalent to Rs.35.00 lakhs on account of denied seat in the aircraft of the opposite party-Airlines though holding a valid confirmed ticket from Delhi to Bangkok. This complaint was filed in March, 1997. Complainant is a holder of degree of Bachelor of Medicine and Bachelor of Surgery (MBBS) from Agra University, having passed his examination in 1993. For his further attainments in medicines and also for practising in the United States of America, complainant was required to take examination prescribed by the United States called United States Medical Licensing Examination which is conducted in two Parts I & II. Examination is held in Bangkok in Thailand. Complainant cleared his Part-I examination and he had to go to Bangkok to take Part-II examination on 5/6th March, 1996. For this purpose, complainant wanted to reach Bangkok on the early morning of 3.3.1996. He was having a confirmed ticket for travel to Bangkok by the Thai Airlines of the opposite party leaving on the morning of 3.3.1996 at 2.15 AM. Complainant says that he reached Indira Gandhi International Airport much before the reporting time. At the counter of the airlines he was given baggage identification ticket and was also charged US $ 15 as Passenger Service Charges at the Airport. However, complainant was not issued the boarding card as he was told that the flight was over booked. The ground staff present there expressed their helplessness . When the complainant told them of his urgent need to reach Bangkok he was accommodated in a hotel in Delhi by the Airlines. His ticket was endorsed to that of Indian Airlines leaving for Bangkok via Calcutta. Complainant did go to Bangkok by Indian Airlines flight on 3.3.1996 itself but his complaint is that he reached 12 hours late than the time he wanted to reach there to prepare for the examination. Complainant says the result was that when he reached Bangkok his hotel booking had been cancelled and with great difficult he was able to get hotel accommodation. All this put a great pressure on the mind of the complainant with the result he could not clear Part-II examination though marginally. He, therefore, could not go to United States to practice there and earn more money.
On 7.8.96 complainant served a notice on the Airlines demanding Rs.35.00 lakhs as compensation for deficiency in service on its part in not allowing him to take the flight in spite of his holding a valid confirmed ticket and his consequential losses. This notice was replied by the Airlines who denied the allegations and said that the complainant did not reach the airport at the scheduled time of departure and stated that since the procedure of checking in is protracted, the issue of boarding pass is closed about 45 minutes before the schedule time of departure. Airlines said that complainant reported very late and meanwhile all the passengers had been checked in and by that time the flight was full. Yet Airlines helped him and arranged to send him by Indian Airlines via Calcutta and at the same time providing him hotel accommodation for the night. Airlines says that all this service was rendered ex-gratia and out of goodwill. Since the complainant reached the airport late he was only entitled to the next flight of the Airlines.
In the affidavit filed by the complainant in support of his complaint, he stated that he reached the airport at 9.30 PM on 2.3.95 and even at that time people had come to know that flight was overbooked and they were running here and there. Complainant referred to the baggage identification ticket issued to him at the airport and also charging of US $ 15 as Passengers Service Charges at the airport to substantiate his contention that he had reached on time. He said that if he was late how could the Airlines issue him baggage identification ticket as well as charged him US $ 15 towards Passenger Service Charges.
Written version of the Airlines is supported by the affidavit of its Manager Liaison & Customer Services. It had been stated that the complainant reached late and by that time checked in counter had been closed. It is submitted that the passengers are required to report within the stipulated time which is three hours so that there is sufficient time to complete necessary pre-flight formalities and also so that in case of last minute cancellation or in case of any of the passengers with confirmed tickets are unable to take the flight due to ‘No Show’ or any other reason whatsoever the Airlines or for that matter, any other Airlines is able to accommodate wait listed passengers. In the present case, it is stated that six passengers who were in the waiting list were accommodated as passengers with confirmed tickets had not checked in within the time frame. In support of its contention, Airlines had filed its passengers manifest which shows that 324 passengers boarded the plane , flight TG-913 dated 3.3.96 and out of that six were on the waiting list.
It is difficult to accept the stand of the complainant that he had reached the airport at 9.30 PM almost five hours before the departure time and yet he could not get into the aircraft and even at that time he had come to know that the flight was overbooked. This contention of the complainant defies logic. Not only that airlines had pointed out that baggage identification ticket referred to by the complainant was not of the opposite party-Airlines but was of the Singapore Airlines and that this pertained to the baggage identification ticket issued to the complainant at the Singapore airport for the flight from Singapore to Delhi. It was also pointed out that the amount of. US $ 15 as Passenger Service Charges at the Airport were paid at Singapore airport and not at Delhi. When we see the air ticket of the complainant it is Delhi-Bangkok-Singpore-Delhi. Obviously complainant on his way back took Singapore Airlines flight from Singapore to Delhi. We ourselves have seen the photo copy of the baggage identification ticket and the receipt of payment of US $ 15 filed by the complainant and the stand of the airlines appears to be correct. It is difficult to understand why complainant should have made such an attempt to mislead the National Commission. Written version of the Airlines was filed as far back in July, 1997 pointing out that baggage identification ticket was of the Singapore Airlines and the US $ 15 were paid as Passenger Service Charges at the Singapore airport. Even in the affidavit filed by the Airlines it was so asserted. Yet the complainant took no steps to contradict this stand of the Airlines which shows that the complainant is not truthful both as regards his reaching the airport and his having been issued the baggage identification ticket and his paying US $ 15 as Passenger Services Charges.
Preliminary objection was also raised by the Airlines that complainant had by-passed the District Forum and even the State Commission by making a claim of Rs.35.00 lakhs which is out of all proportion to any alleged deficiency in service on the part of Airlines. In the circumstances of the case we agree with the Airlines that to get jurisdiction of the National Commission Complainant inflated his claim to Rs.35.00 lakhs as compensation which on the face of it is irrational if not ludicrous. We disapprove this type of practice on the part of any consumer. Rather such type of complaint making preposterous claims should be thrown out at the threshold unless complainant is prepared to correct the mistake and makes a claim which is reasonable and realistic.
Claim of the complainant that had he reached Bangkok twelve hours earlier he would have passed Part-II examination and then would have earned in terms of US dollars in the United States is too remote to take into consideration. This is on no account can be termed as consequential losses on the alleged deficiency in service on the part of opposite party – Airlines. Had the case of the complainant true we might have considered his claim for compensation under the well-known international term ‘Denied Boarding Compensation’ (DBC). However, we hold that there was no deficiency in service on the part of the Airlines. There is no merit in this complaint. It is dismissed with cost of Rs.5000/-.
………………………………………J
(JUSTICE D.P. WADHWA)
PRESIDENT
………………………………………J
(J.K. MEHRA)
MEMBER
………………………………………
(RAJYALAKSHMI RAO)
MEMBER
………………………………………
(B.K. TAIMNI)