The Branch Manager Indigo … vs Kalpana Rani Debbarma on 28 January, 2020


Supreme Court of India

The Branch Manager Indigo … vs Kalpana Rani Debbarma on 28 January, 2020

Author: A.M. Khanwilkar

Bench: A.M. Khanwilkar, Hemant Gupta, Dinesh Maheshwari

                                                1

                                                                    REPORTABLE


                              IN THE SUPREME COURT OF INDIA

                               CIVIL APPELLATE JURISDICTION

                                CIVIL APPEAL NOS…778­779/2020
                         (arising out of SLP(C) Nos. 28600­28601 OF 2018)

  The Branch Manager,
  Indigo Airlines, Kolkata & Anr.                                 … Appellants

                                             Versus

  Kalpana Rani Debbarma & Ors.                                     …Respondents



                                        JUDGMENT

A. M. KHANWILKAR, J.

1. Leave granted.

2. The appellants, who are representatives of two different

branches of an aviation company operating low cost air carrier under

the name and style of M/s. Indigo Airlines have filed these appeals,

taking exception to the judgment and order dated 12.9.2018 passed

by the National Consumer Disputes Redressal Commission, New

Delhi (for short, ‘the National Commission’) in Revision Petition Nos.
Signature Not Verified

Digitally signed by
CHARANJEET KAUR

1520­1521/2018. Thereby, the revision petitions filed by the
Date: 2020.01.28
14:09:41 IST
Reason:

appellants came to be rejected and the judgment and order dated
2

22.8.2017 passed by the District Consumer Disputes Redressal

Forum, West Tripura, Agartala (for short, ‘the District Forum’) in Case

No. CC­35/2017, as modified by the Tripura State Consumer

Disputes Redressal Commission, Agartala (for short, ‘the State

Commission’) vide judgment and order dated 22.2.2018 in Appeal

Case Nos. A.53.2017 and A.61.2017, directing the appellants to pay

to the respondents a compensation of Rs.51,432/­ (Rupees fifty one

thousand four hundred thirty two only) within two months failing

which to pay the same alongwith interest at the rate of 9% per

annum, came to be confirmed. Additionally, a cost of Rs.20,000/­

(Rupees twenty thousand only) for filing the revision petitions against

such meagre compensation amount was also imposed.

3. At the outset, the appellants made it clear that they were not so

much concerned about the amount of compensation/cost ordered to

be paid to the respondents, but have serious grievance about the

sweeping observations made by the three fora, which were untenable,

both on facts and in law. The appellants agreed to deposit a sum of

Rs.1,00,000/­ (Rupees one lakh only) in the District Forum, which

was a condition precedent for issuing notice to the respondents vide

order dated 13.11.2018. That amount has been deposited and also

withdrawn by the respondents. The matter, therefore, proceeded with
3

the clear understanding that the appellants will not insist for refund

of the amount, even if the appeals succeed on merits. The

respondents, though entered appearance, the Court requested Mr.

Rajiv Dutta, learned senior counsel to appear as Amicus Curiae to

assist the Court.

4. Briefly stated, the respondents had booked air ticket(s) vide PNR

No. IHRNSE to travel from Kolkata to Agartala on 8.1.2017 i.e.

Sunday in flight No. 6E­861, operated by the appellant­Airlines,

departing at 08:45 a.m. According to the respondents, they had

reported well in time at the check­in counter of the appellant­Airlines

at Netaji Subhash Chandra Bose (Domestic) Airport, Kolkata and after

completing necessary formalities, they were issued boarding passes

for travelling by the stated flight. However, the respondents were left

behind by the ground­staff of the appellant­Airlines and the

concerned flight departed, without any information about its

departure given to the respondents. The respondents then requested

the ground­staff of the appellant­Airlines to accommodate them in the

next available flight for Agartala from Kolkata. Even that request was

turned down, as the respondents did not have requisite funds to

procure the air­tickets for the same. Instead, the ground­staff of the

appellant­Airlines snatched away the boarding passes of the
4

respondents, as a result of which the respondents had no other

option but to stay back at Kolkata in a hotel for two nights, and after

arranging for funds, they left by a flight of the appellant­Airlines on

10.1.2017. Resultantly, the respondents had to incur expenditure for

staying back in a hotel at Kolkata for two nights. They also had to

incur loss of salary, loss of education of the two accompanying

children (respondent Nos. 3 and 4) of respondent Nos. 1 and 2 and

mental agony, harassment, suffering and frustration. Initially, the

respondents sent a legal notice through their Advocate on 28.1.2017

demanding compensation of Rs.3,32,754/­ (Rupees three lakhs

thirty­two thousand seven hundred fifty­four only). As no response

thereto was received, the respondents filed a complaint before the

District Forum reiterating the grievance made in the legal notice and

prayed for direction to the appellants to pay a total sum of

Rs.3,77,770/­ (Rupees three lakhs seventy seven thousand seven

hundred seventy only) alongwith interest at the rate of 12% per

annum. The said complaint was contested by the appellants by filing

written statement raising preliminary objection and also asserting

that the flight in question had to depart after the boarding gate was

closed at 08:58 a.m. By that time, the respondents had not reported

at the boarding gate despite the stipulation that the boarding gate
5

would be closed 25 minutes prior to the departure time as per the

Conditions of Carriage (for short, ‘the CoC’), which were binding on all

concerned, as expounded by this Court in Interglobe Aviation

Limited vs. N. Satchidanand1. The respondents having failed to

report at the boarding gate before its closure for reasons best known

to them, the ground­staff of the appellant­Airlines had no other option

but to treat it as ‘Gate No Show’ in terms of article 8.2 of the CoC and

to facilitate the flight to depart as per the permission given by the Air

Traffic Control (ATC) for departure. The respondents were responsible

for the situation for which the appellants cannot be made liable,

much less on the ground of deficiency in service. As a matter of fact,

the scheduled time of departure was 08:45 a.m. In terms of article

8.2 of the CoC, the boarding gate was supposed to be closed at 08:20

a.m., but as the flight was delayed for some time due to logistical

reasons beyond the control of the appellant­Airlines, the boarding

gate was actually closed at 08:58 a.m. Despite that, the respondents

failed to report at the boarding gate in time, although boarding passes

were issued much earlier at around 07:35 a.m. as asserted by the

respondents. The appellants also asserted that in terms of the

stipulations in the CoC, in the present situation, the appellants were

1 (2011) 7 SCC 463
6

required to merely refund the Government and airport fees and/or

taxes, as applicable and forfeit the ticket amount. Being a case of

‘Gate No Show’, the appellants were not obliged to accommodate the

respondents in the next flight going to Agartala and in any case,

without the respondents offering payment for the fresh air tickets in

that regard. In short, the appellants prayed for dismissal of the

complaint.

5. The District Forum, after analysing the plea taken by both sides

and going through the evidence produced by the parties, allowed the

complaint on the finding that as per clause 8.2 of the CoC, the

ground­staff of the appellant­Airlines was expected to make

subsequent announcements to secure the presence of the

respondents and facilitate them to board the flight. However, no

evidence was forthcoming that such announcements were made by

the ground­staff of the appellant­Airlines. Further, in the e­tickets

issued by the appellants, there is no indication about the fact that the

passengers are required to report at the boarding gate 25 (twenty­five)

minutes prior to the departure of the flight. What is mentioned is

only that the check­in begins 2 (two) hours prior to the flight time for

seat assignment and closes 45 (forty­five) minutes prior to the

scheduled departure. Although the boarding passes were not
7

produced on record, the District Forum went on to observe that in the

boarding pass(es) also, nothing was written to show that the

passenger must report at the boarding gate 25 (twenty­five) minutes

prior to the departure of the flight. In fact, in the same paragraph,

the District Forum has adverted to the plea of the respondents that

the boarding passes were snatched away from them by the ground­

staff of the appellant­Airlines at the airport. It further held that there

was no evidence to show that any assistance was provided by the

ground­staff of the appellant­Airlines to the respondents for reaching

upto the boarding gate in time. Moreover, the ground­staff refused to

take the complaint of the respondents and instead snatched away the

boarding passes from them, leaving them in helpless situation at the

airport and forcing them to stay in a hotel for two days at Kolkata.

On such findings, the District Forum proceeded to award

compensation to the respondents in the sum of Rs.16,432/­ (Rupees

sixteen thousand four hundred thirty two only) towards airfare for

travel to Agartala, Rs.10,000/­ (Rupees ten thousand only) towards

hotel expenditure, Rs.10,000/­ (Rupees ten thousand only) towards

mental agony, harassment and suffering and Rs.5,000/­ (Rupees five

thousand only) towards litigation costs, total amounting to

Rs.41,432/­ (Rupees forty­one thousand four hundred thirty two
8

only) to be paid within two months, failing which to bear interest at

the rate of 9% per annum.

6. The appellants carried the matter in appeal before the State

Commission being Appeal Case No. A.61.2017, assailing the judgment

and order passed by the District Forum. At the same time, the

respondents filed cross­appeal being Appeal Case No. A.53.2017 for

enhancement of compensation. Both the appeals came to be disposed

of by the State Commission by the common judgment and order dated

22.2.2018. The State Commission, more or less affirmed the findings

and conclusions recorded by the District Forum by observing that no

evidence was forthcoming that proper assistance was given to the

respondents to facilitate them to board the flight before the scheduled

departure. It also observed that no oral evidence was produced by

the appellants whatsoever including regarding the announcements

made to invite the attention of the respondents for reporting at the

boarding gate. The State Commission also went on to observe that

after issuing boarding passes, it is the obligation of the airlines to

provide assistance to the passengers to facilitate them to board the

flight before the boarding gate closes. The State Commission,

however, modified the order of the District Forum to the limited extent

of enhancing the awarded amount towards mental agony, harassment
9

and suffering from Rs.10,000/­ (Rupees ten thousand only) to

Rs.20,000/­ (Rupees twenty thousand only) and resultantly, the total

sum of Rs.41,432/­ (Rupees forty­one thousand four hundred thirty­

two only) was enhanced to Rs.51,432/­ (Rupees fifty­one thousand

four hundred thirty­two only).

7. Feeling aggrieved, the appellants carried the matter to the

National Commission by way of Revision Petition Nos. 1520­

1521/2018. The National Commission confirmed the findings and

conclusions recorded by the two consumer fora and dismissed the

revision petitions with observation that the appellants had chosen to

challenge the order(s) providing for meagre compensation and showed

no interest to settle the matter. The revision petitions were dismissed

with costs of Rs.20,000/­ (Rupees twenty thousand only).

8. Feeling aggrieved, the present appeals have been filed by the

appellants, assailing the concurrent findings and conclusions of the

three consumer fora. The principal grievance of the appellants is that

the three consumer fora have failed to consider the principles of

pleadings and burden of proof and have erroneously held that the

appellants were liable for deficiency in service. This conclusion has

been recorded in absence of any pleading or evidence laid before the
10

consumer fora to show that the respondents had reported to the

boarding gate well in time i.e. 25 (twenty­five) minutes prior to the

scheduled departure of the flight in question, as required in terms of

the CoC. They had not even pleaded or adverted to the circumstances

which prevented them from reporting at the boarding gate before the

stipulated time. In fact, it was a case of ‘Gate No Show’ by the

respondents and not one of ‘denied boarding’ as such. Further, the

deficiency in service must be in relation to the contractual obligation

and not on the basis of sympathy and matters extraneous thereto. It

is urged that the respondents had clearly failed to plead and prove

some fault, imperfection, shortcoming or inadequacies in the quality,

nature and manner of performance which was required to be

performed by the appellants or their ground­staff at the airport in

reference to the contract, which was sine qua non for invoking the

remedy before the consumer fora as expounded in Ravneet Singh

Bagga vs. KLM Royal Dutch Airlines & Anr. 2. The respondents

have not pleaded or deposed about their whereabouts and efforts

taken by them between the time when the boarding passes were

issued to them (at 07:35 a.m.) and until the boarding gate was closed

(at 08:58 a.m.) or for that matter, the scheduled departure time (of

2 (2000) 1 SCC 66 (paragraph 6)
11

08:45 a.m.). The airlines is not expected to wait for the passengers

until their arrival at the boarding gate and is obliged to close the

boarding gate as soon as permission to ‘Pushback’ and ‘Start­up’ is

received from the ATC as per the Civil Aviation Requirements (for

short, ‘the CAR’) issued by the Director General of Civil Aviation (for

short, ‘the DGCA’). It is stated that 171 passengers were booked to

travel on the flight in question, out of whom only 7 (seven) including

the 4 (four) respondents were treated as ‘Gate No Show’ and 164

boarded the flight well in time. The thrust of the grievance of the

appellants is that the consumer fora have committed jurisdictional

error in not considering the fact that there was no pleading, much

less tangible evidence produced, by the respondents to substantiate

the fact that it was a case of deficiency in service in respect of the

contractual obligation of the appellants. Thus, the burden of proof

was wrongly shifted on the appellants. Further, the consumer fora

have made sweeping observations which cannot be countenanced in

law.

9. Respondent Nos. 1 and 2 who are also espousing the cause of

respondent nos. 3 and 4 are duly represented by the learned counsel

engaged by them. They have supported the findings and conclusions

recorded by the consumer fora and would contend that no
12

interference is warranted in the present appeals. As this Court had

additionally appointed an Amicus Curiae to assist the Court, he,

besides making oral submissions has submitted written note and a

report suggesting formulation of some guidelines or directions in view

of the increasing demand for air travel because of improved

purchasing capacity of the passengers and their growing need to

achieve timelines including promotional schemes like UDAN (Ude

Desh Ka Naagrik), a flagship scheme of the Government of India

introduced to enable air operations on unreserved routes, connecting

regional and rural areas, thereby making air travel affordable for

masses. The learned Amicus Curiae submits that the DGCA

guidelines should be more humane and passenger­friendly,

considering the fact that the passenger­profile of air passengers has

become more inclusive, covering passengers from hinterlands and

country­side cutting across diverse social and income groups. He has

commended to us to expand the meaning of ‘denied boarding’ to

include the case such as the present one, inasmuch as, the fact that

the passenger is under obligation to report before the scheduled time

at the check­in counter and/or boarding gate, that should not

extricate the airlines’ staff from facilitating passage of the passenger

after issuance of boarding pass and secure his/her presence at the
13

boarding gate before the closure of the boarding gate. He has invited

our attention to stipulation in the CAR, particularly in clause 3.2.1

thereof, which pertains to cases of ‘denied boarding’ due to

overbooking by the airlines or such other operational reasons

including cancellation of flight due to strike at the airport of

departure or extraordinary circumstances such as volcanic eruption

leading to the closure of the airspace, as expounded by the Third

Chamber of Court of Justice of the European Union in Finnair Oyj

vs. Timy Lassooy3 and Denise McDonagh vs. Ryanair Ltd.4. He

has suggested that direction be issued to all air carriers: (a) to bring

in uniformity in closure of check­in counters and boarding gates

across all the air carriers operating in and out of India as per their

domestic/international specifications; (b) to display/highlight on the

boarding pass itself, the necessary details relating to check­in,

boarding, closure of boarding gates, mode of contract etc. in

vernacular and English language if already not done; (c) to widely

display the Charter of Rights to their passengers, as well as,

duties/obligations of the air carriers towards their passengers at the

respective check­in counters and their websites in addition to duly

inform the passengers about the same at the time of issuing air­

3 Decided on 4.10.2012 in Case C-22/11
4 Decided on 31.1.2013 in Case C-12/11
14

tickets; (d) to maintain and keep all the records relating to arrival and

departure of passengers including time of check­in, reportage at

boarding gates, record of communications with the passengers in case

of delay in check­ins, reporting at boarding gate and final warning for

the passengers in cases of non­reporting at check­in

counters/boarding gates and post­factum upto three months i.e.,

from the date and time of departure/arrival of the concerned flight;

and (e) to mandatorily contact those passengers, who are otherwise

late in reporting at the check­in counters/boarding gates through

telephone/mobiles being a secured channel of

communication/interface between the air carrier and its passengers.

10. We have heard Mr. Shyam Divan, learned senior counsel

appearing for the appellants, Mr. Amlan Kumar Ghosh, learned

counsel for the respondents and Mr. Rajiv Dutta, learned Amicus

Curiae.

11. The present appeals emanate from the complaint filed before the

consumer fora. While dealing with such a complaint, the jurisdiction

or the nature of enquiry to be undertaken by the consumer fora is

limited to the factum of deficiency in service and to award

compensation only if that fact is substantiated by the party alleging
15

the same. The expression ‘deficiency in service’ has been defined in

Section 2(1)(g) of the Consumer Protection Act, 1986, to mean any

fault, imperfection, shortcoming or inadequacy in the quality, nature

and manner of performance which is required to be maintained by or

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. This Court in Ravneet Singh Bagga (supra),

therefore, opined as follows:­

“6. The deficiency in service cannot be alleged
without attributing fault, imperfection,
shortcoming or inadequacy in the quality, nature
and manner of performance which is required to be
performed by a person in pursuance of a contract or
otherwise in relation to any service. The burden of
proving the deficiency in service is upon the person
who alleges it. The complainant has on facts, been
found to have not established any wilful fault,
imperfection, shortcoming or inadequacy in the service
of the respondent. The deficiency in service has to
be distinguished from the tortious acts of the
respondent. In the absence of deficiency in service
the aggrieved person may have a remedy under the
common law to file a suit for damages but cannot
insist for grant of relief under the Act for the
alleged acts of commission and omission
attributable to the respondent which otherwise do
not amount to deficiency in service. In case of bona
fide disputes no wilful fault, imperfection, shortcoming
or inadequacy in the quality, nature and manner of
performance in the service can be informed (sic). If on
facts it is found that the person or authority rendering
service had taken all precautions and considered all
relevant facts and circumstances in the course of the
transaction and that their action or the final decision
was in good faith, it cannot be said that there had been
any deficiency in service. If the action of the
16

respondent is found to be in good faith, there is no
deficiency of service entitling the aggrieved person
to claim relief under the Act. The rendering of
deficient service has to be considered and decided
in each case according to the facts of that case for
which no hard and fast rule can be laid down.

Inefficiency, lack of due care, absence of bona fides,
rashness, haste or omission and the like may be the
factors to ascertain the deficiency in rendering the
service.”
(emphasis supplied)

12. Thus, the enquiry in such proceedings is limited to grievance

about deficiency in service, which is distinct from the tortuous acts of

the other party. In this regard, we must immediately notice the

assertion of the respondents in the complaint filed before the District

Forum to ascertain whether the claim of deficiency in service in

relation to the stated contract has been pleaded or otherwise. It will

be useful to advert to paragraph 1 of the complaint, which reads thus:

­

‘‘1. That the Complainant Nos. 1, 2, 3 and 4 are
the same family members of above noted address and
the Complainant No.1 alongwith her husband Sri
Swadesh Debbarma, Complainant No.2 and her two
sons namely Master Albish Debbarma, Complainant
No.3 and Master Alex Debbarma, Complainant No.4
was coming from Kolkata to Agartala through Airlines
of the opposite parties and accordingly the
Complainant No.1 along with her family members i.e.
Complainant Nos. 2, 3 and 4 took air tickets vide PNR
No. IHRNSE under airlines of the opposite parties for
Agartala Airport from Kolkata Subhash Chandra Bose
(Domestic Airport) on 08.01.2017 vide Flight No. 6E
861, departure time 08.45 a.m., Sunday and
accordingly norms of the airlines of the opposite
parties, all are the Complainants reported before the
Airlines Counter of opposite party at Kolkata Airport on
17

08.01.2017 and after observing all formalities the
opposite party No.1 i.e. authority of Indigo Airlines of
Kolkata Airport issued Boarding Pass in favour of all
the Complainants for coming at Agartala Airport from
Kolkata Airport, but the opposite parties Airlines
authority of Kolkata Airport left all the
Complainants at Kolkata Airport and flight of
opposite parties and opposite party No.1 did not
boarded the Complainants in the said flight for
coming at Agartala from Kolkata airport as the
Complainants were inside the Airport building of
Kolkata Airport. But without boarded the
Complainants in the said flight, the flight of the
opposite parties left the Complainants to Kolkata
Airport without giving any information to them. As
a result all the Complainants have fallen with critical
situation. At that time due to left them by the airlines
of the opposite party at Kolkata airport and at that time
the Complainant No.1 and 2 filed a complaint by
written to the office of the opposite party No.1, Kolkata
airport. But the office staff as well as Airport staff of the
Indigo i.e. opposite party No.1 did not accept the
complaint application of the Complainants and at that
time office staff of opposite party No.1 at Kolkata
Airport forcibly snatched away their boarding Pass
which were issued by the Indigo Airlines authority of
Kolkata Airport from their hand of the Complainant
No.1 and 2 and requested the opposite party No.1 to
consider their matter of left them at Kolkata Airport by
the Airlines of opposite party No.1 and the
Complainant No.1 and 2 also requested the opposite
party No.1 to arrange to carry them by next flight of
your Airlines to Agartala Airport from Kolkata Airport,
as at that time no money was in hand of the
Complainants to further purchase air tickets for them
to come to Agartala airport to Kolkata airport. But the
opposite party No.1 did not heed the request of the
Complainants, nor any arrangement to carry the
Complainants from Kolkata Airport to Agartala Airport
in their home town and lastly after failure to come back
to Agartala from Kolkata airport, the Complainants
hopelessly return from Kolkata Airport with very
financial hardship and took a hotel room nearby the
Kolkata Airport for staying purpose along with their
minor two sons and they also stayed in the hotel room
for arranging money for purchasing further air tickets
for coming at Agartala airport from Kolkata Airport.’’
(emphasis supplied)
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On the same lines, the witness examined on behalf of the respondents

has deposed. The question is: whether the averments in the

complaint contain material facts with regard to deficiency in service

complained about? Even on a fair reading of the complaint and the

evidence given on the same lines, all that can be discerned is that the

respondents had reported at the “check­in counter” well in time and

were issued boarding passes for flight No. 6E­861, which was

scheduled to depart at 08:45 a.m., and that the flight took off leaving

them (respondents) at the airport without informing them about the

departure. There is no assertion that no public announcement was

made at the boarding gate or on the T.V. screens displayed across

within the airport before closure of the boarding gate and as to how

they (respondents) were prevented or misled from reporting at the

boarding gate 25 (twenty­five) minutes before the scheduled departure

time (08:45 a.m.) of the flight in question, and moreso before the

boarding gates were actually closed at 08:58 a.m. Be that as it may,

the consumer fora committed manifest error in shifting the burden on

the appellants and drawing adverse inference against them for having

failed to produce evidence regarding announcements having been

made to inform the passengers including the respondents to arrive at

the boarding gate before its closure at 08:58 a.m. The appellants had
19

clearly stated that as per the standard practice, such announcements

are made at the boarding gate itself and the record in that behalf is

not maintained by the Airlines (appellants), but by the airport

authorities. The need to prove that fact would have arisen only if the

respondents had clearly pleaded all relevant material facts and also

discharged their initial burden of producing proof regarding deficiency

in service by the ground­staff of the appellants at the airport after

issuing boarding passes and before the closure of the boarding gate

and departure of the flight.

13. Concededly, boarding passes were issued to the respondents at

07:35 a.m. at the check­in counters, whereafter they entered the

security channel area and like any other prudent passenger, were

expected to proceed towards the concerned boarding gate in right

earnest. The appellants in the additional affidavit dated 30.1.2019

filed before this Court have given graphic description of the layout of

the airport and the area in which the respondents were expected to

move forward towards the boarding gate. The relevant portion of the

said affidavit reads thus:­

‘‘2. I say that for passengers to enter into the
departure terminal of the domestic airport at Kolkata,
there are six (6) terminal departure gates on the first
floor of the airport terminal through which the
passengers can enter the terminal building. The said
20

gates are numbered as Gate Nos. 1A, 1B, 2A, 2B, 3A
and 3B and all passengers booked on various airlines
operating from this terminal can enter the airport
through any of the six gates, subject to verification of
their photo identity by the officials of the Central
Industrial Security Forces (‘‘CISF’’).

3. I further say that there are four (4) portals at
the Kolkata Airport wherein the check in counters of
different airlines are stationed, namely Portals A to D.
The aforesaid four portals are situated at the first floor
of the departure terminal of the Kolkata Airport.
Immediately after the said four portals, there are four
(4) security gates situated inside the Kolkata Airport,
namely security Gate Nos. 1 to 4. I say that these four
security gates are manned by the officials of the CISF
and clearance of all the passengers is subject to the
security frisking undertaken by them. I say that the
time taken by the officials of CISF for security, frisking
and clearance of the passengers and their hand
baggage (including the waiting time) is not within the
control of InterGlobe Aviation Ltd.

4. I say that the check­in counters of
InterGlobe at the Kolkata Airport are stationed at
‘‘Portal B’’ and on one side of ‘‘Portal C’’ in the first
floor of the Airport. I further say that the said
Portals are adjacent to security entry Gate Nos. 1A,
1B, 2A and 2B situated at the first floor of the
Airport.

5. I say that as per the official records of the
Petitioners, Respondents were booked to fly aboard
IndiGo Flight No.6E­861 from Kolkata to Agartala
on 08.01.2017 under PNR No. IHRNSR.

6. I say that to my knowledge, on 08.01.2017
i.e. the scheduled date of travel in the present case,
IndiGo flights departing from Kolkata to Agartala
were allocated boarding gates located at the ground
floor of the Kolkata Airport comprising a total of six
(6) boarding gates i.e. from 23A to 23F.

7. I say that I have prepared a layout plan (not to
scale) of the relevant sections of the Kolkata Airport
and the same is annexed herewith and marked as
‘‘Annexure A’’. From the said layout plan, it would be
evident that:

21

a. the distance from either of the check
in Portals of InterGlobe to the nearest
security gate is only around 10 metres.
b. the distance from any of the security
gates to the escalator/lift leading
towards the boarding gates (which are
on the lower level i.e. on the ground
floor) is only around 5 metres.
c. after traveling aboard the lift/escalator
(which may take maximum upto a
minute), the walking distance from the
touch down point to the last boarding
gate on the ground floor i.e. Gate
No.23­F is only around 125 meters.

Obviously, the walking distance to the
other gates 23­E to 23­A is
progressively lesser.

8. I further say that I am also filing certain
photographs taken at the Kolkata Airport on
03.12.2018 reflecting the location and layout of Portals
B and C, the security gates and the lift/escalator on
the first floor and the boarding gates at the ground
floor. The said photographs are annexed herewith and
marked as Annexure­B (colly).

9. I further say that to my knowledge, the total
capacity of IndiGo Flight No.6E­861 was 180
passengers. I further say that as per passenger
manifesto maintained by the Airline, the total number
of passengers who were booked for travel on
08.01.2017 numbered 171. I also say that out of these
171 passengers, a total of 164 passengers (i.e. around
95% of the passengers) boarded and travelled on
IndiGo Flight No. 6E­861 and only 7 passengers
(including the Respondents herein) did not show up at
the concerned boarding gate within the stipulated time
and were consequently declared as ‘Gate no show’.

10. I further say that to my knowledge, the layout
of the entry gates, check in­portals, security gates,
lift/escalator to all the boarding gates at the ground
floor and the passage from the lift/escalator to the said
boarding gates at the Kolkata Airport, as depicted in
the layout plan (Annexure A), has not undergone any
substantial changes between the date on which the
Respondents were scheduled to travel on Indigo Flight
22

No. 6E­861. i.e. 08.01.2017, and the date of the
present affidavit.’’
(emphasis supplied)

As aforementioned, there is no averment in the complaint or the

evidence of the witness examined by the respondents to even remotely

suggest as to what prevented the respondents, after entering the

security channel area upon issue of boarding passes at 07:35 a.m.,

from reaching at the boarding gate before 08:20 a.m. and in any case

when the boarding gate was actually closed at 08:58 a.m. Further,

there is no averment in the complaint or deposed to by the witness of

the complainants/respondents as to how the ground­staff of the

appellant­Airlines was responsible and that it was not their own acts

of commission or omission. It is not the case of the respondents that

they were prevented, misled or obstructed by the ground­staff of the

appellants from reaching at the boarding gate well in time and until it

was closed treating as ‘Gate No Show’. It is also not the case of

respondents that they had sought assistance of the ground­staff of

the appellants and that was denied to them. In absence of such a

case made out in the complaint or in the deposition and other

evidence produced by the respondents, it is unfathomable as to how

the respondents had substantiated the allegation of deficiency in

service by the ground­staff of the appellants. Such a complaint ought
23

not to proceed further for want of material facts constituting

deficiency in service.

14. The fact that the respondents were not accommodated in the

next flight for Agartala without payment of airfare, per se, cannot be

regarded as deficiency in service in relation to the contract which

stood discharged and accomplished after ‘Gate No Show’ by the

respondents and departure of the flight in terms of Articles 8.2 and

8.3 of the CoC. The same read thus: ­

“8.2 Boarding
In order to maintain schedules, the boarding gate
will be closed 25 minutes prior to the departure
time. The Customers must be present at the boarding
gate not later than the time specified by IndiGo when
they check in or any subsequent announcements made
at the airport. Any Customer failing to report at the
boarding within the aforesaid timelines shall be
treated as a “Gate No Show” and the ticket amount
for such Booking shall be forfeited by the Company.
The Customers are, however, entitled to a refund of
the Government and Airport Fees and/or Taxes (if
applicable).

8.3 Failure to Comply
IndiGo will not be liable to the Customer for any
loss or expense incurred due to their failure to
comply with the provisions of this Article.”
(emphasis supplied)

It is not the case of the respondents that the appellants had refused

to refund the Government and Airport fees and/or taxes, as may be

applicable. As aforesaid, the follow­up event of not accommodating
24

the respondents in the next available flight for Agartala until payment

of air­tickets would be of no avail, in the context of the contractual

obligations of both the parties in terms of the CoC. The appellants at

best were liable only to refund the Government and airport fees

and/or taxes (if applicable) and not liable for any loss caused to the

passenger(s). Had it been a case of ‘denied boarding’, the obligation of

the appellants would have been somewhat different including to

accommodate the passengers without insisting for air­ticket charges

for the next flight available for reaching the desired destination.

Therefore, in case of ‘Gate No Show’, not acceding to the request of

the respondents until they paid air charges for the next flight, may or

may not be a case of tortuous claim which, however, can be

proceeded before any other forum but not consumer fora. For, the

contract relating to travel plan of the respondents upon issue of the

boarding passes at the airport check­in counters, was accomplished

after ‘Gate No Show’ and resultantly closure of the boarding gate at

08:58 a.m. At the cost of repetition, we hold that the deficiency in

service must be ascribed only in respect of the stated contractual

obligations of the parties.

25

15. Indubitably, the CoC is binding on both parties as predicated by

this Court in N. Satchidanand (supra). We may usefully refer to

paragraph 31 of the said decision, where the Court observed thus: ­

“31. The fact that the conditions of carriage contain
the exclusive jurisdiction clause is not disputed. The e­
tickets do not contain the complete conditions of
carriage but incorporate the conditions of carriage by
reference. The interested passengers can ask the
airline for a copy of the contract of carriage or visit
the website and ascertain the same. Placing the
conditions of carriage on the website and referring
to the same in the e­ticket and making copies of
conditions of carriage available at the airport
counters for inspection is sufficient notice in
regard to the terms of conditions of the carriage
and will bind the parties. The mere fact that a
passenger may not read or may not demand a copy
does not mean that he will not be bound by the
terms of contract of carriage. We cannot therefore,
accept the finding of the High Court that the term
relating to exclusive jurisdiction should be ignored on
the ground that the passengers would not have read
it.”
(emphasis supplied)

These observations apply on all fours to the case in hand. However,

the State Commission distinguished this decision on the basis of facts

of the case disregarding the underlying principle expounded in the

aforesaid extracted portion of the judgment of this Court. The

respondents, however, urge that in the present case, the air ticket did

not contain the reference to the CoC. It is, however, not the case of

the respondents (who are well educated, as respondent Nos. 1 and 2

claim to be Engineers working in Government establishment), that
26

the website of the appellant­Airlines does not display the CoC or that

the same was not made available at the airport check­in counter for

inspection, which is the standard operating procedure followed by all

the airlines. No such assertion has been made in the complaint as

filed.

16. In our opinion, the approach of the consumer fora is in complete

disregard of the principles of pleadings and burden of proof. First,

the material facts constituting deficiency in service are blissfully

absent in the complaint as filed. Second, the initial onus to

substantiate the factum of deficiency in service committed by the

ground­staff of the Airlines at the airport after issuing boarding

passes was primarily on the respondents. That has not been

discharged by them. The consumer fora, however, went on to

unjustly shift the onus on the appellants because of their failure to

produce any evidence. In law, the burden of proof would shift on the

appellants only after the respondents/complainants had discharged

their initial burden in establishing the factum of deficiency in service.

17. The appellants have produced a boarding pass issued in the

name of the Advocate for the appellant, to illustrate that the same

contains the relevant information regarding the flight number, date,
27

boarding time, departure time and more importantly, the notification

that boarding gate closes 25 (twenty­five) minutes prior to the

departure time and that boarding gate numbers are subject to

change, which may be seen from the screen(s) displayed at the airport

for latest updates. Admittedly, the boarding passes were issued to

the respondents. Presumably, the same must have set out similar

information being the standard practice followed by all the airlines.

Indeed, the respondents have asserted in the complaint that the

boarding passes were snatched away by the ground­staff of the

appellants at the airport itself. As a matter of fact, this allegation is

blissfully vague and bereft of any material facts. Further, it is crucial

to note that it is not the case of the respondents that after the

boarding passes were issued to them, they did not read the same to

reassure themselves about the relevant information and the departure

time of the flight indicated therein including the reporting time at the

boarding gate. Nor is the case of the respondents that they had read

the boarding pass and it did not contain the relevant information

including regarding the necessity of reporting 25 (twenty­five) minutes

before the departure time at the boarding gate. Nothing of this sort is

either pleaded or stated in the evidence by the respondents. A similar

plea that the boarding passes were snatched away by the ground­staff
28

was taken in the case of The Manager, Southern Region, Air India,

Madras & Ors. vs. V. Krishnaswamy5 decided by the National

Commission on 19.7.1994 in First Appeal No. 445/1992, which came

to be rejected. Even in the present case, the appellant­Airlines has

denied the allegation and also suggested to the witness examined by

the respondents that the complaint was false.

18. Concededly, it is the primary obligation of the passenger, who

has been issued boarding pass to undergo the security­check

procedure and reach at the boarding gate well before (at least 25

minutes before) the scheduled departure time. No doubt, it is said

that the consumer is the king and the legislation is intended to

safeguard and protect the rights and interests of the consumer, but

that does not mean that he is extricated from the obligations under

the contract in question much less to observe prudence and due care.

It is not the case of the respondents that they were delayed during the

security check much less due to the acts of commission or omission

of the ground­staff of the appellants. In fact, nothing has been stated

in the complaint or the evidence as to what activities were undertaken

by the respondents after issue of boarding passes at the check­in

counter at 07:35 a.m. until the departure of the flight and in

5 1994 (2) C.P.C. 171
29

particular, closure of the boarding gate at 08:58 a.m. The

respondents having failed to take any initiative to ensure that they

present themselves at the boarding gate before the scheduled time

and considering the layout of the check­in counter upto the boarding

gate, the respondents cannot be heard to complain about the

deficiency in service by the ground­staff. Notably, the distance

between the check­in counter, where boarding passes were issued,

upto the boarding gate is so insignificant that there could be no just

reason for the respondents not to report at the boarding gate between

07:35 a.m. till 08:58 a.m. The respondents have not offered any

explanation for their inaction nor have mentioned about any act of

commission or omission by the ground­staff of the appellant­Airlines

at the airport during this period.

19. As aforesaid, after boarding pass is issued, the passenger is

expected to proceed towards security channel area and head towards

specified boarding gate on his own. There is no contractual obligation

on the airlines to escort every passenger, after the boarding pass is

issued to him at the check­in counter, up to the boarding gate.

Further, the Airlines issuing boarding passes cannot be made liable

for the misdeeds, inaction or so to say misunderstanding caused to

the passengers, until assistance is sought from the ground­staff of the
30

airlines at the airport well in time. It is not the case of the

respondents that the boarding gate was changed at the last minute or

there was any reason which created confusion attributable to

airport/airlines officials, so as to invoke an expansive meaning of

‘denied boarding’. The fact situation of the present case is clearly one

of ‘Gate No Show’, the making of the respondents and not that of

‘denied boarding’ as such.

20. The National Commission erroneously relied on the dictum in

Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd. 6 to

deny itself of the jurisdiction to entertain the revision petitions despite

the fact that decisions assailed in the revision petitions were

manifestly wrong and suffered from error of jurisdiction. In the fact

situation of the present case, the National Commission ought to have

exercised its jurisdiction and corrected the palpable and manifest

error committed by the two consumer fora below.

21. The State Commission has referred to the observations in

Dr. Bikas Roy & Anr. vs Interglobe Aviation Ltd. (IndiGo) 7 decided

by the Commission taking the view that after issuing boarding pass, it

is the duty of the airlines’ authority to help the passengers, so that

6 (2011) 11 SCC 269
7 Decided on 22.2.2018 in Appeal Case No. A/42/2017
31

they can board the flight well in time on completion of the security

check­up. This is a sweeping observation. We do not agree with the

same. We have already taken the view that there is no obligation on

the airlines to escort every passenger after issuing him/her a

boarding pass at the check­in counter until he/she reaches the

boarding gate. That would be a very tall claim to make. Indeed, in a

given case, if the passenger encounters difficulty or impediment to

report at the boarding gate, he/she is expected to seek assistance of

the ground­staff of the concerned airlines well in time. If such

request is made, there is no reason to presume that the ground­staff

of the concerned airlines will not extend logistical assistance to

facilitate the passenger for reporting at the boarding gate in time.

That, however, would be a matter to be enquired into on case to case

basis. That question does not arise in the present case, as no such

plea has been taken in the complaint or the evidence given on behalf

of the respondents.

22. Additionally, the National Commission has invoked the principle

of right to care of the passengers. The question of due care by the

ground­staff of the appellant­Airlines would arise when the

passengers are physically under their complete control as it had

happened in the case of N. Satchidanand (supra). That is possible
32

after the passengers have boarded the aircraft or may be in a given

case at the operational stage whilst facilitating their entry to the

boarding gate. In the present case, there is no assertion in the

complaint or in the oral evidence produced by the respondents that

they (respondents) had made some effort to take guidance or

assistance of ground­staff of the appellant­Airlines at the airport after

the boarding passes were issued to them for reaching at the boarding

gates and that such assistance was not provided to them.

23. A priori, the decisions of the European Courts referred to by the

National Commission in respect of the principle of right to care of

passengers will be of no avail in the fact situation of this case. For, in

those cases, the flight was cancelled due to strike at the airport of

departure [as held in Finnair Oyj. (supra)] and/or extraordinary

circumstances such as a volcanic eruption leading to the closure of

the airspace [as held in Ryanair Ltd. (supra)]. That principle cannot

be invoked in the fact situation of the present case not being a case of

‘denied boarding’ as referred to in the CAR. Clause 3.2 of the CAR

reads thus: ­

“3.2 Denied Boarding
3.2.1 When the number of passengers, who have
been given confirmed bookings for travel on the flight
and who have reported for the flight well within the
specified time ahead of the departure of the flight, are
33

more than the number of seats available, an airline
must first ask for volunteers to give up their seats so as
to make seats available for other booked passengers to
travel on the flight, in exchange of such
benefits/facilities as the airline, at its own discretion,
may wish to offer, provided airports concerned have
dedicated check­in facilities/gate areas which make it
practical for the airline to do so.

3.2.2 If the boarding is denied due to condition
stated at Para 3.2.1 to passengers against their will,
the airline shall not be liable for any compensation in
case alternate flight is arranged that is scheduled to
depart within one hour of the original schedule
departure time of the initial reservation. Failing to do
so, the airline shall compensate the passengers as per
the following provisions:

a) An amount equal to 200% of booked one­
way basic fare plus airline fuel charge,
subject to maximum of INR 10,000, in case
airline arranges alternate flight that is
scheduled to depart within the 24 hours of
the booked scheduled departure.

b) An amount equal to 400% of booked one­
way basic fare plus airline fuel charge,
subject to maximum of INR 20,000, in case
airline arranges alternate flight that is
scheduled to depart more than 24 hours of
the booked scheduled departure.

c) In case passenger does not opt for
alternate flight, refund of full value of ticket
and compensation equal to 400% of booked
one­way basic fare plus airline fuel charge,
subject to maximum of INR 20,000.

3.2.3 A passenger booked on connecting flights of
the same airline or of the other airline, shall be
compensated by the airline of the first flight for the first
leg in accordance with the provisions of Para 3.2.2 of
this CAR, when he has been delayed at the departure
station on account of denied boarding, but has arrived
at the final destination at least three hours later than
the scheduled arrival time.”

24. Indubitably, the CAR is only executive instructions, which do

not have the force of law. This Court in the case of Joint Action
34

Committee of Airlines Pilots’ Association of India & Ors. vs. the

Director General of Civil Aviation & Ors. 8, had occasion to

consider the question as to whether the CAR is a statute or a

subordinate legislation. The Court concluded that the CAR was only

executive instructions, which has been issued for guidance of the

duty holders/stakeholders and to implement the scheme of the act

and do not have the force of law. Concededly, clause 3.2 if read as a

whole, in no way would apply to a case of ‘Gate No Show’, which is

markedly different than ‘denied boarding’. In the facts of this case, it

is unnecessary to dilate on the argument of the learned Amicus

Curiae that expansive meaning be given to the expression ‘denied

boarding’.

25. As a matter of fact, the coordinate Bench of the National

Commission in the case of The Manager, Southern Region (supra)

has had occasion to observe that it would not be appropriate to cast

an obligation on any airlines to delay the departure of an aircraft

beyond the scheduled time of the departure and to await late arrival

of any passenger, whosoever he may be, howsoever highly or lowly

placed. Even in that case, the complainant had failed to present

himself at the departure lounge in time and there was no kind of

8 (2011) 5 SCC 435
35

negligence or deficiency in service on the part of the airlines. Similar

situation obtains in the present case. The appellant­Airlines cannot

be blamed for the non­reporting of the respondents at the boarding

gate before 08:20 a.m. and in any case before 08:58 a.m., when the

boarding gate was finally closed.

26. That takes us to the suggestions given by the learned Amicus

Curiae for issuing directions to all the airlines to abide by uniform

practice. We refrain from doing so and leave that to the competent

authority (the DGCA) to consider the same and after interacting with

all the stakeholders, take appropriate decision and issue instructions

in that behalf, as may be advised. The competent authority (the

DGCA) may do so within a reasonable time, preferably within six

months from receipt of a copy of this judgment or any representation

in that behalf.

27. In view of the above, the impugned judgments and orders passed

by the District Forum, the State Commission and the National

Commission cannot be sustained and the same are, therefore, set

aside and resultantly, the complaint filed by the respondents stands

dismissed. However, as assured by the appellants, no recovery of the

amount deposited by them as a condition precedent for issuance of
36

notice, which has already been withdrawn by the respondents, need

be made from the respondents.

28. We place on record our word of appreciation for the able

assistance given by the learned Amicus Curiae – Mr. Rajiv Dutta,

learned senior counsel assisted by Mr. Sanjeev Kumar Singh, learned

counsel.

29. The appeals are accordingly allowed in the above terms. There

shall be no order as to costs. Pending interlocutory applications, if

any, shall stand disposed of.

……………………………, J
(A.M. Khanwilkar)

……………………………, J
(Dinesh Maheshwari)
New Delhi;

January 28, 2020.



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