State Consumer Disputes Redressal Commission
Ashok Gupta vs Indian Airlines Limited on 2 December, 2008
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 ) Date of Decision: 02-12-2008 Appeal No. A-100/2004 (Arising from the order dated 30-12-2003 passed by District Forum-II, Udyog Sadan, Institutional Area, (Behind Qutab Hotel), New Delhi in complaint case No. 2832/2001) 1. Sh. Ashok Gupta &, -Appellants 2. Mrs. Manju Gupta, Both residing at A-20, Panchwati, Azadpur, Delhi-110033. Versus 1. M.D./Chairman, Indian Airlines -Respondent No.1 Limited, Safdarjung Airport, New Delhi. 2. Union of India, -Respondent No.2 through the Secretary to Govt. of India, Ministry of Civil Aviation, Rajiv Gandhi Bhavan, New Delhi-110003. CORAM: Mr. Justice J.D.Kapoor President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) How much havoc a narrow, literal, pedantic construction or interpretation of a statute or term of a contract particularly of beneficial nature that may even otherwise be inconsistent with the object of the law can cause a human suffering is demonstrated by this highly unfortunate event that not only shook the political life of this country but also put a big question mark as to the security of citizens in general and passengers travelling by air in particular.
2. This appeal arises from the ill-fated and now notorious Indian Airlines Flight No. IC 814 from Kathmandu to New Delhi which was hijacked by terrorists and taken to Kandhar, Afghanistan where about 160 passengers and crew were kept hostages continuously for eight days under the constant pall of death.
Appellants who are husband and wife were amongst the unfortunate passengers. They sought compensation for damages from the Indian Airlines on account of having suffered physical and mental injuries and psychological trauma and injuries including those of mind, heart, brain and other palpitating organs. According to them they suffered due to the negligence of the Indian Airlines as had the Airline been not negligent in proper check up of these passengers, the unfortunate event could have been avoided and this negligence tantamount to deficiency in service, for which the appellants are entitled to be compensated.
3. Claim of the appellants was denied by the Indian Airlines by invoking mainly Rule 17 contained in Chapter III of First Schedule to the Carriage by Air Act 1972 (hereinafter referred to as Rule 17) providing that the carrier is liable for damage sustained in the event of death or wounding of a passenger or any other bodily or personal injury suffered by a passenger and since there was no bodily injury which means injury to skin, bone or body or other tissues of the body sustained by the appellants they were not entitled for any damages. In other words had the terrorists hit or hurt or killed any or all of them only then they would have been entitled for damages. Consequently appellants filed the instant complaint before the District Forum seeking compensation of Rs. 4 lacs each by way of damages.
4. Vide impugned order dated 30-12-2003 complaint was dismissed on the ground that the appellants, in terms of Rule 17 are not entitled to compensation, there being no bodily injury to them and personal injury also refers to bodily injury and further that the claim was barred by limitation as aircraft ought to have arrived on 24-12-99 but it was hijacked and was taken to Kandhar on the night between 24-12-99 and 25-12-99 where the carriage stopped, hence, the limitation started from 25-12-99 and the complainants should have filed the claim on or before 24-12-2001 that is within the prescribed period of two years whereas the present claim was filed on 26-12-2001 and even otherwise as per Rule 29 of the Schedule I to the Carriage by Air Act 1972, the right for damages, if any, got extinguished after two years.
5. Let us visualize the horrifying and sordid scenario of that unfortunate event as projected by the appellants. The appellants Ashok Gupta and his wife Manju Gupta travelled from Delhi to Kathmandu on 19-12-1999 and on 24-12-1999 from Kathmandu Airport for their back journey to Delhi, by flight No. IC 814 of Indian Airlines.
They were allotted seats Nos. 20G and 20H, after complete security check up. The said aeroplane was hijacked while it was near Lucknow by extremists on the point of arms and ammunition and was later taken to Amritsar where it was allowed to fill in fuel and then it landed at Kandhar where the appellants along with other passengers and crew remained captives for more than 8 days. The whole of this period was a nightmare for them, their hearts throbbing heavily being in the situation between life and death, shock waves going down their spines.
Their sufferance cannot be described in words and can well be imagined. There was no proper food to eat. Always a fear engulfed them as to when a bullet would pierce them. They were even not permitted to raise their heads and were made to sit with their heads down in their knees. Threats of terrorists to get their demands fulfilled were not hollow as two of the passengers were killed and thus they were waiting for some miracle to happen to save them.
6. Main question that calls for determination at the outset is whether personal injury or bodily injury or wounding of passenger as contemplated by Rule 17 can be strictly and literally confined to injury to skin or body or bone or other tissues of the body and excludes mental injury or torture or injury to mind, brain and heart or psychological nightmarish trauma like living constantly under threat of death as a captive for eight long days in the aircraft as every Airline is liable to compensate a consumer for damage sustained in the event of death or wounding of a passenger or any other bodily or personal injury suffered during embarking or disembarking or inside the aircraft.
7. To start with Rule 17 of Schedule I to the Carriage by Air Act, 1972 needs to be reproduced. It reads as under:-
17. The carrier is liable for damage sustained in the event of 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 operations of embarking or disembarking.
8. Another relevant provision, in this regard, is Prohibited Clause and Security Regulation clause appearing on the jacket of the ticket as it speaks of personal injury also. It reads as under:-
If the passengers journey involves an ultimate destination or stop in a country other than the country of departure the Warsaw Convention may be applicable and the Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss or damage to baggage.
9. According to the respondents the expression, bodily or personal injury appearing in the rule and on the jacket of the ticket has to be read in a way that would include injury only to the skin, bone and other tissues of the body and excludes any injury affecting the mind, brain and metabolism of human body, psyche and other complications in the form of emotional strain or emotional suffering or having any effect on the heart by palpitation.
10. As against this, contention of learned counsel for appellants in nutshell is that though the phrase personal injury mentioned in the jacket of the ticket does include mental injury and psychological trauma yet connotation bodily injury can also be extended to mental injury, physical discomfort, psychological trauma, shock and tremor affecting heart, mind, spine and brain depending upon the facts and circumstances.
11. While canvassing the proposition that bodily injury excludes mental injury and psychological trauma or tremor and unless one suffers bodily injury, he cannot avail the benefit of Rule 17 for the purpose of compensation, learned counsel for respondent-Airlines has relied upon the decision of House of Lords in Morris Vs. K.L.M. royal Dutch Airlines (2002) AUER Sts as Article 17 of Warsaw Convention 1929 as amended at the Hague in 1955 and set out in the Sch. I to the Carriage by Air Act, 1961 of England which speaks of bodily injury was subject of interpretation.
12. The decision in the case of Morris decided two appeals. In one appeal, the claimant had been flying as an unaccompanied minor on a long distance flight. After falling asleep, she had woken to discover her thigh being caressed by the man sitting next to her. Although she suffered no physical illness or injury, she was very disturbed and was subsequently diagnosed as suffering from clinical depression amounting to a single episode of a major depression illness.
13. In the second appeal, the pursuer had been a passenger on a helicopter which had taken off in poor weather from the helideck of a floating platform in a North Seal Oil field. Shortly after take off, two of the helicopters engines flamed out, there was a loud bang and the helicopter descended rapidly, landing heavily on the helideck. The pursuer did not sustain any physical injury but was extremely frightened and developed several psychiatrics conditions as a result of the accident, including a moderate post-traumatic stern distrace. The stress led to the onset of proptic ulcer disease.
14. House of Lords held that where a mental injury or illness lacked a physical cause or origin, it could not cause a bodily injury within the meaning of Art. 17 of the Convention, but that term did cover physical manifestation of a mental injury and psychiatric disorders arising from injury to the brain or a nervous system. Further that the use of the adjective bodily suggested that Art. 17 had not been intended to cover everything that might possibly be described as an injury to the passenger sustained on board the aircraft or in the course of embarking or disembarking. It was further observed that the word corporelle in the French text directed attention to physical changes in the body rather than to something that affected the mind, and it had been chosen to qualify and thus restrict the meaning of the word lesion and the phrase was therefore to be read in a way that would confine its application to the skin bones, or other tissues of the body and exclude mental injury.
15. On the face of it, the difference in facts involved in the KLM Airlines case and the instant case sticks out for miles. None of the facts are either congruent or akin or near in similarity or likeness.
16. As is apparent the interpretation of Rule 17 has been mainly confined to the use of adjective bodily suggesting that Rule 17 had not been intended to cover everything that might possibly be described as an injury to the passenger sustained on board the aircraft or in the course of embarking or disembarking and that bodily injury means injury to skin, bone and other tissues of the body and excludes mental injury, but at the same time House of Lords has observed that description bodily injury also covers physical manifestation of a mental injury and psychiatric disorders arising from injury to the brain or a nervous system.
17. Let us accept for the sake of argument the decision and view of the House of Lords as to the import of Rule 17 which mainly excludes personal injury and confines to bodily injury, an injury to the skin, bones or other tissues of the body. However, as term of contract i.e. Jacket of Ticket includes personal injury meaning of personal injury also becomes relevant.
18. We shall, at first instance, confine to the concept and connotation of words bodily injury from the viewpoint of beneficial contract of travel by Airlines and rights of passengers and liability of Airlines qua them during embarking or disembarking or while on board the aircraft.
19. The first and foremost and elementary rule of construction or interpretation of a statute is to find out the intention of the Legislature while enacting the law and what they had meant and what they actually expressed. The object of the interpretation is thus to discover the intention of the Parliament.
20. Another universally accepted rule of interpretation of beneficial legislation or beneficial contract like contract of service of Airlines is that such a law or contract has to be provided and receive beneficial interpretation or meaning which should serve the interests of those for whom it is meant and promote its object. If there are two or more constructions possible, construction which is beneficial and protects the interests and favour those for whom the law was made is to be followed.
21. So much so rule of relaxation of strictly literal principles of interpretation known as beneficial construction postulates that even where the usual meaning of the words falls short of the object of the law, a more extended meaning may be attributed to them, if they are fairly susceptible of it. In other words where one is faced with choice between a wide meaning which carries out what appears to have been the object of the law more fully, and a narrow meaning which carries it out less fully or not at all one has to choose the former.
22. Beneficial construction is a tendency rather than rule.
So much so even provision of any statute can be extended to new things which were not known and could not have been contemplated when the Act, that is, the law was passed, as the Act deals with genus and the thing which afterwards comes into existence is a species of it. (Maxwell on Interpretation of Statute).
23. Consumer Protection Act, 1986 is a highly beneficial and benevolent legislation and seeks better protection of interests of consumers as a class and was brought on the statute book pursuant to Consumer Protection Resolution passed by the U.N. General Assembly on April 9, 1985 for achieving and maintaining adequate protection for the population as consumers and maintaining high levels of conduct and standard for those engaged in the production and distribution of goods and providing various kinds of services to the consumers.
24. Let us interpret Rule 17 which is of beneficial nature by applying the above universally accepted principles of Interpretation of Statute particularly beneficial statutes like Carriage by Air Act, 1972 and Consumer Protection Act, 1986.
25. Websters Seventh New Collegiate Dictionary defines the word bodily to mean, relating to the body and its comforts and organs.
26. Blacks Law Dictionary (Sixth Edition) defines the word bodily as pertaining or concerning the body, of or belonging to the body or the physical constitution, not mental but corporeal.
27. Injury has been defined as any wrong or damage done to another, either in his person, rights, reputation or property. The invasion of any legally protected interest of another.
28. Further more, words personal injury mentioned in the jacket of the ticket envisages even the mental suffering as per legal definition.
Personal injury has been defined as under:-
In a narrow sense, a hurt or damage done to mans person, such as a cut or bruise, a broken limb, or the like, as distinguished from an injury to his property or his reputation. The phrase is chiefly used in this connection with actions of Tort for negligence and under workers compensation statutes. But the term is also used in a much wider sense, and as including any injury which is an invasion of personal rights, and in this signification it may include such injuries to the person as libel or slander, criminal conversation, malicious prosecution, false imprisonment and mental suffering.
29. It is also contended by the learned counsel for respondent No.1 that the liability of international carrier was applicable by all the high-contracting parties because of the object and structure of the Warsaw Convention without reference to their own domestic law providing exclusive cause of action and sole remedy for a passenger who claimed for loss injury and damage in the course of or arising out of international carriage by air notwithstanding that, that might leave the claimants without a remedy.
Respondent No.1-Indian Airlines has also abjured its liability by raising the plea that in the first instance this matter is to be governed exclusively by the provisions of the Carriage by Air Act, 1972 (a statutory ratification by India of the Warsaw Convention), which is a special Act defining the rights and liabilities of air carriers, viz-a-viz, its passengers. The only provision in the Act which provides for liability on the part of the carrier is Rule 17. The Act itself reiterates the point of exclusivity in Rule 24, which prescribes as under:-
24(1) In the cases covered by rules 18 and 19 (which deal with cargo and delay respectively) any action for damages, however founded, can only be brought subject to the conditions and limits set out in these rules (words in brackets ours).
(2) In the cases covered by rule 17, the provisions of the proceeding sub-rule also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.
30. According to him the appellants were asked by respondents Solicitors to furnish details of any bodily injury which may have been suffered by them as a result of the hijacking no response whatever was forthcoming and on the contrary the appellants only contended that they were entitled to compensation as the ticket on which they travelled contained the expression personal injury which according to them covered mental injury as well.
31. We have accorded our careful consideration to the aforesaid contentions of the respondent. Though the Parliament might not have imagined the hijacking of planes by terrorists which is a recent phenomenon and keeping the passengers as hostages for several days under constant threat to kill them while making Rule 17 and for that purpose Rule 24 but the object of the Rule was to make the Airlines liable for the damages sustained in the event of death or wounding of a passenger or any other bodily or personal injury suffered by the passenger if the incident which caused the damage so sustained takes place on board the aircraft or in the course of any of the operation of embarking or disembarking.
32. In the given facts of the case and in respect of beneficial law or term of contract, we have to apply principles of relaxation of strictly literal and narrow interpretation of a statute and beneficial construction consistent with the object of the law and attributing the extended meaning to the words that fall short of the object of the law and expanding the law of Carriage by Air Act to new things which were not known and could not have been contemplated when the Carriage by Air Act was passed as the law deals with genus and the thing which afterwards comes into existence is a species of it.
33. The word bodily relates to the body and its comforts and organs. It is only in contrast to the word spiritual but has somatic mean of or relating to the human body and which effects the body. It includes both Physical and Corporeal aspects of the human body. Bodily injury does not only mean the peeling of skin and fracture of a bone.
Somatic means relating to or affecting the body especially as distinguished from the germ plasm or the psyche. The condition of sufferings of the appellants during the course of entire episode under consideration had led them to the sufferance of a heart, mind and brain.
34. In much wider sense personal injury is invasion of personal rights and includes tortuous nature of physical discomfort like making the people sit with their heads down their knees and not to raise their heads for eight long days without any proper food, psychological trauma of living under the constant threat of death.
35. In our view, greater suffering results from psychological causes than bodily harm and such suffering endangers life, limb and health including mind, brain, heart and other organs. Words personal or bodily injury have wide connotation and embrace in their fold each and every injury including mental, psychological, fear of death, deprivation of daily needs, physical discomfort which in this case continued for eight long days.
36. Thus the injuries suffered by the appellants and co-passengers were bodily as well as personal and not hypothetical. They had suffered injuries and shock in the brain which is palpitating part and a most important organ of the body. They suffered shocks and fears in the spinal chord which too is part of the body. They suffered nightmarish psychological trauma and tremors for eight long days in captivity which beg description. Their hearts throbbed and they lived every moment under the fear of death as to when a bullet would be pumped in waiting for providential intervention. They were held captive and hostages for eight long days. They had no proper food to eat. They were not allowed to raise their heads and were made to sit with their heads down their knees and waiting some providential intervention to save them.
37. Thus to say that they did not suffer injury much less the bodily or personal injury is highly far-fetched and preposterous as mind, brain, heart and all other such parts are parts of human body and get affected by shock, physical torture, mental suffering and psychological trauma and slender thread of life and death.
38. There cannot be a worst case of all encompassing sufferings including mental, physical, bodily and personal injuries than this. Mere flash of the incident in their and other passengers mind sends shivers and constant fear and fright to travel by Air.
39. Thus for the purpose of invoking Rule 17 and clause 8 on the jacket of the ticket connotation bodily or personal injury has to be provided meaning that includes mental injury, emotional distress, psychological trauma, physical discomfort and psychological shock affecting mind, brain, heart and all other such parts of the body and more so the threat of death looming large every moment sending shivers in the spine and tremors in the mind and is not confined to injury only to skin or body or bone or other tissues of the body.
40. Ld. Counsel has also contended that the right to claim damages if any was available under the Carriage by Air Act, 1972 and not under the Consumer Protection Act 1986. In support of this contention the Ld. Counsel for the respondent has relied upon the case law laid down by the House of Lords in Sidhu v. British Airways Plc (1997) 1 All E.R. 193, wherein the following observations were made:-
Having regard to the objects and structure of the Convention, which was to achieve a uniform international code in those areas with which it dealt, including the liability of the international carrier, which could be applied by all the High Contracting Parties without reference to the rules of their own domestic law, Schedule 1 provided the exclusive cause of action and sole remedy for a passenger who claimed for loss, injury and damage sustained in the course of or arising out of international carriage by air notwithstanding that might leave the claimants without a remedy. Accordingly, where the Convention did not provide a remedy, no remedy was available.
41. Reliance has also been placed on the decision of the Supreme Court of South Australia (reported in Shawcross & Beaumont Law Reports) in Timney v. British Airways on the point that the provisions of the Carriage by Air Act provided for a new right of action in substitution of any existing civil liability of the carrier under any other law. If the case did not fall within those provisions, there could be no remedy under any other domestic law.
42. We are afraid, all the aforesaid decisions are not applicable so far as the remedy to a passenger under the Consumer Protection Act, 1986 is concerned. Section-3 of this Act specifically provides that the remedy under this Act is in addition to and not in derogation of any other law for the time being in force including International Convention, Warsaw Convention or for that purpose Hague Convention etc. The object and structure of these Conventions was only to achieve a uniform international code in those areas in which it dealt with including the carriage by international airline.
43. There is an unvarying judicial unanimity emanating from various decisions of the Supreme Court of India that even if there is a remedy available to a consumer under any other law and even if there are Forums for such remedy and even if there is a liability under any other law, still the consumer has a right and remedy under the Consumer Protection Act to seek compensation arising from the deficiency in service or sale of defective or hazardous goods etc. In this regard following decisions are of great significance:-
JURISDICTION OF CONSUMER FORUM/ COMMISSIONS
(i) Lucknow Development authority Vs. M.K. Gupta, 1994 (1) SCC 243-
On the question of jurisdiction it is stated that the forums under the Act have jurisdiction to entertain a complaint despite the fact that other forums/courts would also have jurisdiction to adjudicate upon the list.
Remedies that are available to the aggrieved party under the 1986 Act are wider.
For instance in addition to granting a specific relief the forums under the 1986 Act have jurisdiction to award compensation for the mental agony, suffering etc. which possibly could not be given under the Act in relation to any other dispute under any other law.
SCOPE OF SECTION 3 OF ACT 1986
(i) Secretary, Thirumurugan Coo-operative Agricultural Credit Society Vs. M. Lalitha (Dead) through LRS and Ors.
Civil Appeal No. 92 of 1998 decided on 11-12-2003.
Reported in S.C. & N.C. Consumer cases (1996-2005).
10. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to an not in derogation of the provisions of any other law for the time being in force.
From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide better protection of the interest of the consumer and for that purpose to provide better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principle of a specific nature and to award, whenever appropriate compensation to the consumers and to impose penalties for non-compliance of their orders.
(ii) Fair Air Engineers Pvt. Ltd. and Anr. Vs. N.K. Modi, 1996 (6) SCC 385.
It would, therefore be clear that the legislature intended to provide a remedy in addition to the consequent arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure.
In view of the object of the Act and by operation of section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.
(iii) Smt. Kalawati and others Vs. M/s United Vaish Co-operative Thrift and Credit Society Ltd. R.P. No. 823 to 826 of 2001, SC & NC Consumer Law Cases (1886-2005) 275, wherein the National Commission observed that
4. Section 3 is worded in widest terms and leaves no one in doubt that the provisions of CPA shall be in addition and not in derogation of any other law for the time being in force. Thus even if any other Act provides for any remedy to litigant for redressal by that remedy a litigant can go to Dist. Forum if he is a consumer under CPA.
That remedy exists in any other law which creates the right is no bar to District Forum assuming jurisdiction.
44. Thus the remedy under the provisions of Consumer Protection Act 1986 is independent of the liability under the laws governing international carrier or domestic carrier like Carriage by Air Act. Under the Consumer Protection Act, the liability arises from the offence of deficiency in service as defined by Sec. 2(1)(g) of the Act and that is why Sec.3 provides that the remedy is in addition to and not in derogation of any other law for the time being in force. Even if a remedy is available under any other legal forum or court still the remedy under the Consumer Protection Act can be availed independently. The reason is simple. The consumer is entitled for compensation in addition to his actual loss or limited liability under any law, for mental agony, harassment, expected loss, emotional suffering, humiliation, physical discomfort, insult etc. arising from the negligence of the opposite party and deficiency in service.
45. The Supreme Court has elaborated the concept of compensation under the C.P. Act, 1986 in Ghaziabad Development Authority Vs Balbir Singh-(2004) 5 Supreme Court Cases 65 as under:-
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
46. Next question is as to the liability of the respondent-Airlines. Respondent-Airlines has abjured its liability on the premise that it was an international airline and the airport authority or the civil aviation authority of the country from where the flight was to take off was supposed to be responsible for the external security on the ground and internal security in the aircraft.
47. Parties are always governed by the terms of contract. In the instant case PROHIBITED CLAUSE and Security Regulations clause printed with jacket of the ticket provide that carriage of dry cell, batteries, knives, scissors, sharp instruments, tools, fire arms, ammunition, toy replicas, is prohibited in the passenger cabin.
According to appellants these were the conditions precedent to the boarding of aircraft laid down by the Airline itself, and that a passenger was supposed to be aware of what has been stated in the Ticket Jacket. Further that the checking-in security checks of each and every passenger is conducted by the Airline staff. The Air Port Authority or the Civil Aviation Authority of any country at any Air Port in the world, assessable to Warsaw Convention, is not supposed to be responsible for the internal security of the Air craft.
Internal Security starts immediately at embarking or even at pre-embarking stage.
48. In our view, the inclusion of embarking stage in Rule-17 of the First Schedule to the Carriage by Air Act, 1972 read with security regulation clause makes it incumbent upon the carrier to ensure that no passenger or unauthorized person boards the aircraft and if the airline fails in their duty they and they alone have to be held liable for the said negligence or deficiency in service as safety of the property and person of the passengers till they reach the destination is the most important ingredient of the contract for which the carriers are paid as is mentioned on the jacket of the Ticket which is a term of contract.
49. According to the security regulations the passengers are advised to declare before checking in if carrying any arms or explosives substance.
Concealment is an offence under Aircraft Act and Rules. In the next clause, prohibited articles include carriage of dry cell batteries, knives, scissors, sharp instruments, tools, fire arms, ammunition, toy replicas etc. Next to it, the pictorial diagrams of the dangerous articles in the baggage have been shown.
50. Even if we admit it was the responsibility of Civil Aviation authority of Nepal to take care of all anti-hijacking measures at the said airport, including pre-embarking security checks, access control to terminal building, operational areas, perimeter security etc. and the respondents were not supposed to make any additional security arrangement, still the fact remains that as per Warsaw Convention the airport authority or the civil aviation authority of any country at any airport in the world is not supposed to be responsible for the internal security of the aircraft. Internal security starts immediately at the stage of embarking the aircraft.
51. It is the Airlines own staff that conducts check in security and thereafter issues boarding pass. Even if we accept that some other agency was to conduct checks at the embarking stage, the said arrangements are always between the Airlines and the said agency with which the passengers have no concern. Once any passenger enters into any contract with the airline for availing their services, he places himself at the disposal of the Airlines for safe journey to his destination for which he pays the consideration.
52. In the ticket jacket it was nowhere mentioned that the security at the stage of embarking and inside the aircraft was not their responsibility and that the airlines will not be responsible for any mishap inside the aircraft while the passengers are on board except in case of death or bodily injury sustained on board the aircraft or in the course of operation of embarking or disembarking.
53. Thus any kind of lapse or negligence at the stage of embarking resulting in the boarding of an unauthorized person that too with arms and ammunition endangering the safety of passengers and their property in any manner till they reach the destination amounts to deficiency in service on the part of the Air Lines.
54. Word deficiency as defined by Section 2(1)(d) of the Consumer Protection Act, 1986 means 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.
55. The Supreme Court, in a case of Railway services as a carrier, has in Sumati Devi M. Dhanwantay v Union of India II (2004) CPJ 27 (SC), while dealing with the concept of deficiency in service and liability, held that the railway administration was expected to take reasonable steps to safeguard the interests of passengers against any incident of theft by unauthorized passengers. In this case, the lady passenger was traveling from Nagpur to Bombay by Howrah Bombay Mail and was carrying luggage which included gold, pearl, silver and diamond jewellery and other valuables valued at Rs. 1,11,756/- While she was traveling she was assaulted by some unauthorized passengers and her gold, silver, pearl, diamond and other valuables were taken away forcibly. This incident occurred on 4-12-1991. Thousands of persons entered into the compartment and assaulted the passengers, including the appellant. The crowd was so violent that they broke the doors, windows, glass panels, seats, berths and toilets etc. The crowd committed so many other illegal acts of assaulting the bona fide passengers. They molested the women and even raped the young girl passengers. The appellant pulled the alarm chain three times as a result of which the train stopped at Igatpuri station. She along with other bona fide passengers got down at that station and approached the railway authorities for protection but without any assistance. On reaching Bombay, she lodged a complaint with the police about the incident and approached the Consumer Disputes Redressal Commission, claiming compensation of Rs. 9,32,256/-
56. The railway administration denied its liability as to the theft, injury suffered by her. The only contention of the railway administration was that it was not responsible for the loss of luggage and injuries cause to the passenger. All these pleas were repelled by the Maharashtra State Commission. On identical parameters Sec. 124A of the Railway Act, 1989 was referred. Under this provision of Railway Act it was held that the railway administration cannot escape the liability having regard to the facts and circumstances of the case and in the light of the incident that had taken place.
57. Thus, respondent No.1 -Airlines can be safely held guilty for deficiency in service as the hijackers were permitted to board IC 814 flight as regular passengers at Kathmandu Airport. They were not properly checked for security at the stage or point of embarking, which was an inherent duty of the Airline, with the result that these hijackers were capable of carrying the arms and ammunition in the Aircraft. Had the Airline be not negligent in proper check up of these passengers at the time of actual boarding in the aircraft, the unfortunate event could have been avoided.
58. As regards the ground that the complaint was barred by limitation in terms of Rule 29, as after expiry of two years, the right of appellants got extinguished on 25th December 2001 the learned counsel for respondent ahs contended that that the arrival of the appellants in Delhi on 31st December 1999 is of no relevance as the same was by a different flight on a special aircraft which was sent for the purpose, the Flight IC-814 having ended or stopped on 25th December 2001. Further that the words arrival at the destination can only mean arrival of the aircraft at destination. We are afraid the learned counsel has misread the provisions of Rule-29 as nature of remedy under Rule 17 of Carriage by Air Act is altogether different than the remedy under the Consumer Protection Act and therefore it is provision of section 24-B of Consumer Protection Act which is applicable for the purpose of limitation which prescribes two year from the cause of action.
59. Even if we apply Rule 29 of Carriage by Air Act, still the right of appellants did not extinguish by efflux of time. For the purpose of calculating the period of limitation District Forum has reckoned the date of stopping of the aircraft as 25-12-1999, the date when the aircraft had landed at Kandhahar which was never the destination of the airline. The destination was India and therefore the date of landing of the plane in India was the only date that could be reckoned. The circumstances were such that even if there was delay by few days it was to be condoned. But in this case there was no such delay. The complaint was filed on 14-12-2001 and not on 24-1-2001.
Even otherwise the nature of grievance was such and the liability of the airlines was such that it would have taken time for the appellants to seek remedy from the Airlines. Till their grievances were redressed the cause of action continued and was of subsisting nature.
60. Even on facts the objection of the respondent Airlines that the appeal is barred by limitation has no force. The certified copy of the Order was prepared on 30-12-2003 and the same was delivered to the appellants on 19-01-2004 and the appeal was therefore filed well within time. Even if there is delay of few days the same could be condoned in view of the peculiar facts of the case.
61. As regards the liability of Ministry of Civil Aviation (respondent No.2) it has taken the stand that they had no role to play with regard to the security at Kathmandu airport as all anti-hijacking measures at the said airport, including pre-embarking security checks, access control to terminal building, operational areas, perimeter security etc. was under the control and responsibility of the Civil Aviation authority of Nepal and even otherwise in every country it is the government of the country at the respective airports of such countries and, therefore, the occasion for any additional security arrangement to be made by the ministry of civil aviation of India did not arise till such incident. We are in complete agreement with the stand of respondent No.2-Ministry of Civil Aviation.
62. In our view there was no negligence on the part of respondent No.2 as alleged. As regards security aspect, respondent No.2 had no role to play in regard to the same at Kathmandu airport as all anti-hijacking measures at the said airport, including pre-embarking security checks, access control to terminal building/operational area, perimeter security, etc., was under the control and responsibility of the Civil Aviation Authority of Nepal. That in every country it is the governmental authority of that country which is primarily concerned with the security arrangements at the respective airports of such countries and that therefore, the occasion for any additional security arrangements to be made by this respondent did not arise at the time of such incident.
63. Foregoing reasons persuade us to allow the appeal, qua the respondent No.1-Airlines only as the sole liability for the security and safety of their persons and property was that of the respondent No.1-Indian Airlines.
64. Consumer Protection Act 1986 is a unique law. It even protects the interests of consumers to such an extent that even those who do not approach the Consumer Fora for seeking compensation as to the loss or injury suffered by them due to the negligence of the service provider or trader can be paid compensation even if one of them files a complaint before the Consumer Fora if Forum or Commission is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently. This is what has been provided by section 14 (1) (hb) which reads as under:-
14. Finding of the District Forum (1) if, after proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer form any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely:-
(a)
(b) (c )
(d) ...
(hb) to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently;
Provided that the minimum amount of sum so payable shall not be less than five percent of the value of such defective goods sold or services provided, as the case may be, to such consumers;
Provided further that the amount so obtained shall be credited in favour of such person and utilized in such manner as may be prescribed.
65. Bare provision makes it clear that ever person who suffers the same injury or loss as suffered by the person who has filed complaint before Consumer Forum/Commission is to be treated as an individual complaint for the purpose of compensation.
66. It is a settled law that appeal is continuation of a suit under Code of Civil Procedure and complaint u/s 12 of the Consumer Protection Act being in the words of Supreme Court a suit, a generic term this provision can be invoked in appeal also. For passing order u/s 14(1 (hb) opposite party or respondent need not be put on notice as there is no such requirement of law. The only requirement of the law is that if the District Forum or for that purpose State Commission or National Commission is of the opinion that the loss or injury has been suffered by a large number of consumers who are not identifiable conveniently compensation as may be determined by the District Forum/State Commission/National Commission can be paid to all such sufferers.
67. In a similar case we had awarded compensation of Rs. 10,000/- u/s 14 (1) (hb) to all those passengers who were to travel by Go Airlines after finding Go Airlines guilty for deficiency in service for wrongfully cancelling the flight. Without challenging the powers of the State Commission to pay such sum as may be determined by it if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently Go Airlines obtained stay from Delhi High Court merely on the plea that Go Airlines should have been put on notice as it had appealed the State Commission against an ex-parte order passed by the District Forum and that State Commission did not discuss the plea of the Airlines having been wrongly proceeded ex-parte as the Airlines was never served with the notice of the complaint issued by the District Forum. This is not the case here. Both the parties participated in the proceedings not only before the District Forum but also in the appeal before this Commission.
68. There cannot be nor is there any stay against the operation of the relevant provisions of law or Act empowering the Consumer Fora to order for payment of compensation to those consumers who are neither conveniently identifiable nor have filed complaints, who in the opinion of the District Forum or State Commission or National Commission as the case may be suffered the same loss or injury as suffered by the complainants.
69. In the instant case one need not stretch ones imagination that all the passengers who were in the aircraft had suffered the same injury and agony as suffered by the appellants. We are of the opinion that provision of Section 14 (1) (hb) was introduced for meeting out such eventualities. This is a fit case where every passenger who was on board on the ill-fated aircraft is entitled for compensation treating every one of them as an individual complainant.
70. In nutshell our conclusions are as under:-
(i) Once any passenger enters into any contract with the Airline for availing its services, he places himself at the disposal of the Airlines for safe journey to his destination for which he pays the consideration.
(ii) As per Warsaw Convention the Airport Authority or the Civil Aviation Authority of the country at any Airport in the world is not supposed to be responsible for the internal security of the Aircraft. Internal security starts immediately from the stage of embarking the Aircraft.
(iii) The inclusion of embarking stage in Rule 17 of the First Schedule to the Carriage by Air Act, 1972 read with security regulation clause makes it incumbent upon the carrier to ensure that no passenger or unauthorized person boards the Aircraft and if the Airline fails in their duty it and it alone have to be held liable for the said negligence or deficiency in service as safety of the property and person of the passengers till they reach the destination is the most important ingredient of the contract for which the carriers are paid as is mentioned on the jacket of the Ticket which is also one of the terms of contract.
(iv) While making Rule 17 and for that purpose Rule 24 the object was to make the Airlines liable for the damages sustained in the event of death or wounding of a passenger or any other bodily or personal injury suffered by the passenger if the incident which caused the damage so sustained takes place on board the aircraft or in the course of any of the operation of embarking or disembarking.
(v) In respect of beneficial law or term of contract we have to apply principles of relaxation of strictly literal and narrow interpretation of a statute and provide beneficial construction consistent with the object of the law and attributing the extended meaning to the words that fall short of the object of the law and expanding the law like Carriage by Air Act to new things which were not known and could not have been contemplated when the Act was passed as the law deals with genus and the thing which afterwards comes into existence is a species of it.
(vi) Thus the reference of bodily or personal injury in Rule 17 of Schedule I of Carriage by Air Act, 1972 and clause 8 in the Jacket of the ticket has to be provided meaning that includes mental injury, emotional distress, psychological trauma, physical discomfort and psychological shock affecting mind, brain, heart and all other such parts of the body and more so the threat of death looming large every moment sending shivers in the spine and tremors in the mind and does not confine to injury to skin or bone or other tissues of the body.
(vii) In much wider sense personal injury is invasion of personal rights and includes tortuous nature of physical discomfort like making the people sit with their heads down their knees and not to raise their heads for eight long days without any proper food, psychological trauma of living under constant threat of death.
(viii) Greater suffering results from psychological causes than bodily harm and such suffering endangers life, limb and health including mind, brain, heart and other organs. Words personal or bodily injury have wide connotation and embrace in their fold each and every injury including mental, psychological, fear of death, deprivation of daily needs, physical discomfort which in this case continued for eight long days.
(ix) The injuries suffered by the appellants and co-passengers were bodily as well as personal and not hypothetical. They had suffered injuries and shock in the brain, mind and heart that are palpitating parts and most important organs of the body. They suffered shocks and fears in the spinal chord which too is part of the body. They suffered nightmarish psychological trauma and tremors for eight long days in captivity which begs description. Their hearts throbbed and they lived every moment under the fear of death as to when a bullet would be pumped in waiting for providential intervention. They were held captive and hostages for eight long days. They had no proper food to eat. They were not allowed to raise their heads and were made to sit with their heads down their knees and waiting some providential intervention to save them.
(x) Any kind of lapse or negligence at the stage of embarking resulting in the boarding of an unauthorized person that too with arms and ammunition endangering the safety of passengers and their property in any manner till they reach the destination amounts to deficiency in service on the part of the Airlines.
(xi) Respondent No.1 -Airlines can be safely held guilty for deficiency in service as the hijackers were permitted to board IC 814 flight as regular passengers at Kathmandu Airport. They were not properly checked for security at the stage or point of embarking, which was an inherent duty of the Airline, with the result that these hijackers were capable of carrying the arms and ammunition in the Aircraft. Had the Airline be not negligent in proper check up of these passengers at the time of actual boarding in the aircraft, the unfortunate event could have been avoided.
(xii) The remedy under the provisions of Consumer Protection Act 1986 is independent of the liability and remedy under the laws governing international carrier or domestic carrier like Warsaw Convention, Hague Protocol etc. including Carriage by Air Act or any other law for the time being in force. Under the Consumer Protection Act, the liability arises from the offence of deficiency in service as defined by section 2(1)(g) of the Act and that is why section 3 provides that the remedy is in additional to and not in derogation of any other law for the time being in force.
(xiii) Even if a remedy is available before any other legal forum or court, still the remedy under the Consumer Protection Act can be availed independently. The reason is simple. The consumer is entitled for compensation in addition to his actual loss or limited liability under any law, for mental agony, harassment, expected loss, emotional suffering, humiliation, physical discomfort, insult etc. arising from the negligence of the opposite party and deficiency in service.
(xiv) It is provision of Section 24-B of Consumer Protection Act which is applicable for the purpose of limitation which prescribes two year from the cause of action.
(xi) Consumer Protection Act is a unique law. It even protects the interests of consumers to such an extent that even those who do not approach the Consumer Fora for seeking compensation as to the loss or injury suffered by them due to the negligence of the service provider or trader can be paid compensation even if one of them files a complaint before the Consumer Fora if Forum or Commission is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently and every such person has to be treated as an individual complainant for the purpose of compensation.
71. In the result the appeal is allowed with the following directions to respondent No.1-Airlines who alone is held liable for deficiency in service :-
(a) Respondent No.1-Indian Airlines shall pay Rs. 1 lac to each of the appellants as compensation for mental agony, emotional stress, psychological trauma, physical, mental sufferings and injuries to mind, body, heart, brain and the whole body and for other losses as they remained in captivity for eight long days arising from deficiency in service in not properly checking the passengers from security point of view at the point of embarking the aircraft resulting in the boarding of persons in possession of arms and ammunitions. They shall collectively be paid Rs. 25,000/-
towards litigation cost.
(b) Respondent No.1-Airlines shall pay Rs. 1 lac each to all the passengers who were on the aircraft for having suffered the same loss and injury as suffered by the appellants by calling upon them to receive the same from its office. Those who were killed, Rs. 5 lacs each shall be paid to their legal heirs.
(c) Directorate General of Civil Aviation/Ministry of Civil Aviation is directed to issue instructions to all the Airlines to undertake security check of all the passengers at the time of embarking the aircraft in spite of multi-layers security check
72. Payments shall be made within one month from the date of receipt of this order.
73. Appeal is allowed and disposed of in aforesaid terms.
74. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
75. Copy be sent to Director General of Civil Aviation.
76. Announced on 2nd December, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj