NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
(From the order
dated 15.5.2001 in Complaint Case No.112/95
of the State
Commission Delhi)
U.S. Awasthy
… Appellant
Vs.
M/s. Gulf Air
& Anr.
… Respondents
BEFORE:
HON’BLE MR. JUSTICE D.P. WADHWA,
PRESIDENT
MRS. RAJYALAKSHMI RAO, MEMBER.
MR. B.K. TAIMNI, MEMBER.
HON’BLE MR. JUSTICE K.S. GUPTA, MEMBER
Carriage
by Air Act -
incident giving rise to filing of a
complaint occurred outside the country
– non -provision of a reclining seat in business class in the aircraft –
case if covered by Article 17 of Schedule-II
to the Carriage by Air Act, 1972. – judgments of House of Lords and US Supreme
Court considered – raising of
substantial questions of international law
– amicus curiae appointed.
For the
appellant
:
Mr. Thomas Joseph, Advocate
For the
respondent
:
Mr. M. Wadhwani, ADvocate
DATED THE 23rd JANUARY, 2003.
JUSTICE D.P.
WADHWA, J.(PRESIDENT)
It is the complainant who is in appeal before us.
His claim for damages against the respondents-Gulf Air, an international carrier was dismissed by the State Commission. His complaint was
that he was a business class passenger and in the flight of Gulf Air between the Sector Bahrain –
Istanbul he was given a seat which was fixed and was
not a reclinable on account of which he suffered great inconvenience and discomfort for 6-1/2 hours journey. He had not bargained for such a treatment of an
international airlines when he had purchased a business class ticket which was much higher in value than an economy class ticket. Complainant, therefore, claimed Rs.5.00 lakhs as damages for the agony caused to him. In fact, the ticket was for travel from ‘Delhi-Doha-Bahrain-Istanbul-Dubai-Delhi’.
There is no dispute about the purchase
of business class air ticket by the complainant and
the
seat which was
provided to him by the airlines during the journey from Bahrain to Istanbul was a fixed
seat ant
not a reclinable one.
When the complainant found the seat to be fixed he complained to the staff of the
airlines
for change of
the seat. It was not agreed to as he was told
that the aircraft was full and alternate seat was
not available.
In its reply airlines stated that
there were 16 first class, 12 business class
and 95 economy
class seats and
all the seats were occupied. Ticket issued to the complainant was subject to various
conditions and
condition No. 2 was put forward to deny the
claim of the complainant. This condition No.2
reads as under.
“Carrier
does not undertake to provide an particular seat in the aircraft. The passenger agrees to accept any seat that
may be allotted to him on the flight in the
class of service for which his ticket has been issued”.
It was stated that otherwise seat given to the complainant was wide, well cushioned
and was comfortable to sit and business class
facilities were provided. Claim of the
complainant was, therefore, denied.
State Commission was impressed by the argument of the airlines that the seat was
near
the emergency
exit door of the aircraft and in case
of emergency one can jump of these seats to
use the emergency exit.
State Commission was of the view that
the aforesaid condition of the carrier was
binding on all
the passengers and there was no violation of the terms and conditions by the airlines and
since
there was no alternative reclining seat was available
complainant had no case. We are afraid
State
Commission has missed the core issue. For a
passenger condition No.2 would mean that all the seats
are of same
type. A business class ticket is of much
higher value than the economy class. It is
not disputed
that in
business class there are reclining chairs and as
a matter of fact even economy class seats are
also reclining. As a matter of fact when the seat was
allotted to the complainant he should have been told
at that time
that it would be a fixed seat and not reclining one.
Airlines cannot treat business class
passengers
differently than other business class passengers and they all have to be provided same type of
seats and business class facilities. Condition No.2
which has been quoted by the airlines in its
defence was not applicable to the facts of the present case and has no meaning unless of course the business class passenger is informed before hand that no other reclining seat is
available. As to what is the necessity of
fixed chair is
of no concern
to a passenger who had paid for business class fare
and expect a
reclining chair with of
course facilities like other business class passengers. It is not the case of the airlines that when
a particular
seat was allotted to the complainant he was told that
it was a fixed seat for him to accept or not to
accept or
choose a different flight for the journey.
Could it be that a fare charged for
reclining seat
would be
different than that of fixed seat which,
without any argument would certainly mean discomfort
for a
journey of
6-1/2 hours.
Mr. Wadhwani learned counsel for the airlines said that complaint itself was not maintainable.
In support of his plea he raised the following questions for consideration:
(i)
Claim was not
covered under Article 17* of Schedule-II to the Carriage by Air Act, 1972 which
Act incorporates Warsaw Convention as
amended by the Hague Protocol and further that
cases covered by Article 17 can only be brought
subject to the condition and limitations set
out in Article 24* of the Convention.
(ii) This Commission
has no extra territorial jurisdiction to try the present case.
(ii)
No
compensation could be awarded for acute
misery and discomfort in absence of the
complainant having suffered any bodily injury.
(iii)
Complainant
is not entitled to any compensation in absence
of any economic loss suffered by
him. It would appear that none of these points
were raised before the State
Commission as
they do not find mention in the impugned judgment of the State Commission.
In support of his submission in regard
to Article 17 aforesaid Mr. Wadhwani referred
to
various
judgment of foreign Courts. It is not
necessary for us to refer to all these
decisions
except to
note a few of them.
_____________________________________________________________
*Article
17: The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other
bodily injury suffered by a passenger, if the accident which caused the damage so
sustained took place on board the aircraft or in the course of any of the operations of
embarking or disembarking.
Article
24: (1) In the cases
covered by Articles 18* and 19* any action for
damages, however, founded, can only be brought subject to the conditions and limits
set out in these rules.
(2) In the cases
covered by Article 17 the provisions of the preceding sub paragraph 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.
In Eastern Airlines, Inc. v. Floyd et
al. – 23 Aviation Law Reports 17,367, Supreme Court of United
States was
considering Article 17 of the Warsaw
Convention. In this case on May 5, 1983
an Eastern
Airlines flight
departed from Miami, bound for the Bahamas. Shortly
after takeoff, one of the plane’s
three jet
engines lost oil pressure. The flight
crew shut down the failing engine and turned the plane around to
return to
Miami. Soon thereafter, the second and
third engines failed due to loss of oil pressure.
The plane
losing altitude rapidly, and the passengers were informed that the
plane would be ditched in the Atlantic
Ocean. Fortunately, after a period of descending flight
without power, the crew managed to restart an engine
and land the
plane safely at Miami International Airport. Respondents,
a group of passengers on the flight
brought separate complaints against petitioner, Eastern
Airlines, Inc. (Eastern), each claiming damages
solely for
mental distress arising out of the incident. The District Court entertained each complaint
in a consolidated proceeding.
Eastern conceded that ___________________________________________________________
Article
18: (1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of
damage to, any
registered baggage or any cargo, if
the occurrence which caused the damage so
sustained took place during the carriage by
air
(2) The carriage by
air within the meaning of the preceding paragraph comprises the period during which the
baggage or cargo is in charge of the carrier, whether in an aerodrome or on board an
aircraft, or, in the case of landing outside an aerodrome, in any place whatsoever.
(3) The period of
the carriage by air does not extend to any
carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the
performance of a contract for carriage by air, for the purpose of loading,
delivery or transhipment, any damage is
presumed, subject to proof to the contrary, to have been
result of an event which took place during the carriage
by air.
Article
19: The carrier is liable for damage occasioned by delay in the carriage by
air of passengers, baggage or cargo.
the engine
failure and subsequent preparations for ditching the plane amounted to an accident’ under Article
17 of the
Convention but argued that Article 17 also makes
physical injury a condition of liability.
The
District Court
concluded that mental anguish was not alone compensable under Article 17. The
Court of
Appeals for the
Eleventh Circuit reversed, holding that the phrase ‘lesion corporelle’( bodily
injury) in the
authentic
French text of Article 17 encompasses purely
emotional distress. After
examining the French
legal meaning
of the term ‘lesion corporelle’ the
concurrent and subsequent history of the Warsaw convention
and the cases
interpreting Article 17 Supreme Court of
United States held:
“We
conclude that an air carrier cannot be held liable under Article 17 when an accident has
not caused a passenger to suffer death,
physical injury, or physical manifestation of injury.
Although Article 17 renders air
carriers liable for ‘damage sustained in the event of’ (‘dommage survenu en
cas de’) such injuries, see 49 Stat.
3005, 3018, we express no view as to whether passengers can recover for mental injuries
that are accompanied by physical injuries. That
issue is not presented here because respondents do not allege physical injury or physical
manifestation of injury. See App.3-9.
Eastern
urges us to hold that, the Warsaw Convention provides
the exclusive cause of action for
injuries sustained during international air transportation.
The Court of Appeals did not address this question, and we did not grant certiorari
to consider it. We therefore decline to reach
it here”.
It would be seen that the Supreme Court of United States did not go into the
question if
Warsaw
Convention provided exclusive cause of action for injuries
sustained during international transportation
House of Lords in the case of in the
case of Sidhu & Ors. vs. British Airways – (1997)
All ER 193
struck a different note. We take the facts of the case and statement of law
from the head note
which we quote:
“The
appellants (the three plaintiffs and the pursuer) were
passengers on a scheduled international
flight operated
by the respondent airline (BA) which left London on 1 August, 1990 for Malaysia via
Kuwait. On 2nd August the aircraft landed in
Kuwait for refuelling several hours after Iraqi forces had
begun to invade
Kuwait at the commencement of the Gulf War. While
the passengers were in the
airport
terminal, the airport was attacked by Iraqi
forces who took them prisoner and later removed
them to
Baghdad. The appellants were released
several weeks later and returned to the United
Kingdom. On 30 July 1993, which was outside the two-year time limit allowed
by art 29 of the
Warsaw
Convention, as set out in Sch 1 to the Carriage by Air Act 1961, for bringing an action
for
damages but
inside the three year time limit prescribed for common law negligence, the plaintiffs
brought an
action against BA in the country court claiming damages for personal injury alleging
that by reason
of BA’s negligence in landing the
aircraft in Kuwait after hostilities had started they
had suffered
physical and psychological damage and
they also claimed for lost baggage. The
judge dismissed their claim on the ground that the plaintiffs’ sole remedy was under the convention and
that any rights
they might have had against BA were extinguished
by virtue of art 29 of the convention
since they had
not issued proceedings within the two-year
time limit.
The Court of Appeal upheld
the decision and the plaintiffs appealed to the
House of Lords. The pursuer brought her
action in the
Court of
Session in Scotland claiming, inter alia damages at common law for breach of an implied
condition of
the contract that BA would take reasonable care for
her safety. The Lord Ordinary held
that the
convention excluded recourse to any common law remedy
and dismissed her action. The
pursuer reclaimed but the Inner House of the Court of
Session dismissed her reclaiming motion
and she
appealed to the House of Lords.
Held: 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, Sch. I 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 that might leave
claimants without a remedy. Accordingly,
where
the convention
did not provide 193 a remedy, no remedy was
available. The appeals would therefore
be
dismissed”.
In this case House of Lords referred
to other judgments of other jurisdictions. In an unreported
judgement in
the case of Ismail
A. Mohamed v British Airways plc
the incident was the same as
was before
the House of Lords in the case of
Sidhu & Ors. v. British Airways. In this case the
passengers
were all French nationals and they claimed
damages from British Airways for
the consequences
of the same event. The Tribunal de Grande
Instance de Paris reached the view
on the facts
that the damages claimed were not linked with disembarkation operations as such, and
that they
could not be linked to 211 those risks
inherent in
aerial navigation as provided by the
Warsaw
Convention. In these circumstances the
court felt free to determine the law
applicable, on the
view that the
consequential damages claimed were not covered by the field of application of the
convention. French law was applied, and the plaintiffs
were found entitled to damages unrestricted
by the limits
set by art 22 of the convention. House of
Lords in the case before it did not follow the
judgement of
the French Court as it was of the view that
the case in the French Court did not
a
close analysis of the
Warsaw Convention nor was there any reference to previous decision in the
issue in the French Court or elsewhere. It is also noticed that an appeal was pending
against the
order of the
Tribunal. There was another case of Gatewhite Ltd. v. Iberia Lineas Aereas de
Espana SA [1989] 1 All ER 944 ( [1990] 1 QB 326) a view was taken that in absence of express
provision in
the Convention excluding the owner’s
right of action, the owner of goods damaged or lost
by a carrier was entitled to sue in his own name in
accordance with the lex fori and accordingly, that
the plaintiffs were entitled to damages to be
assessed at common law. It is stated that
coming to
this conclusion the English Court was attracted by the reasoning in a case of New Zealand ,
it
being Tasman
Pulp and Paper Co. Ltd. v. Brambles J B
O’Loghlen Ltd. [1918] 2 NZLR 225.
House of Lords, however, did not think it appropriate to the reasoning
in Gatewhite case and
left the
matter at that. Shidu’s case was referred by
the Supreme Court of United States in the case of
El Al Israel
Airlines, Ltd. v. Tsuiyuan Tseng . In this
case there is a dissenting judgement of one
Judge (Justice Stevens)
but that is limited to only one aspect of the matter given by majority and that
is a treaty
like an Act of Congress, should not be construed to preempt state law unless its intent to
do
so is clear.
While the
United States Supreme Court in the case El Al Israel Ltd. vs.
Tsui Yuan Tseng before it held that the claim was barred by the Convention under Article 17 read
with Article 24 it was not disputed before it
the incident which was the basis of the claim
that occurred in international transportation in the course of embarking and Supreme Court
also accepted that such of the plaintiff at
that time was not a ‘accident’
within the meaning of Article 17. As regards
to amendment to Article 24 brought out by Montreal Protocol** the Court observed that it
did not alter the situation as existed earlier and the amendment was merely
clarificatory in nature. Court was also of the view that the wording of Article 17 as it existed was certainly subject
to divergent interpretation. We may also
note that in the judgment of Unites State
Supreme Court there is an extract from a legal treatise,
The Warsaw Convention Annotated : A Legal Handbook 55 (1988) by L. Goldhirsch which we extract:
“If the
passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: (a) prove
the Convention does not apply because his client was not a passenger in international
transportation as defined in Article 1; or b) if
the Convention is applicable, that the limits are unavailable because the carrier failed
to deliver a ticket as provided by Article 3; or
c) the carrier was guilty of wilful misconduct (Article 25*) or d) there was no ‘accident’”.
______________________________________________________________
Article
25: The
limits of liability specified in Article 22 shall not apply if it is proved that the damage
resulted from an act or omission of the carrier, his servants or agents, done with intent
to cause damage or recklessly and with knowledge that damage would probably result;
provided that, in the case of such act or
omission of a servant or agent, it is also proved that he was acting within the scope of
his employment.
When the claim was first instituted by Tsui Yuan Tseng in the District Court it was dismissed on account of the Convention but on appeal; Court of Appeals for Second Circuit ruled otherwise. It was the view of Circuit Appeal Court that where a plaintiff did not qualify for the relief under the Convention he could seek relief under local law for an injury sustained in the course of international travel. Supreme Court of United States reversed this judgment of the Second Circuit Appeal Court. We now note the facts of the case as under:
On May 22, 1993, Tsui Yuan Tseng arrived at John F. Kennedy International Airport (hereinafter JFK) to board an El Al Israel Airlines flight to Tel Aviv. In conformity with standard El Al preboarding procedures, a security guard questioned Tseng about her destination and travel plans. The guard considered Tseng’s responses ‘illogical’, and ranked her as a ‘high risk’ passenger. Tseng was taken to a private security room where her baggage and person were searched for explosives and detonating devices. She was told to remove her shoes, jacket, and sweater, to lower her blue jeans to midhip. A female security guard then searched Tseng’s body outside her clothes by hand and with an electronic security wand.
______________________________________________________________
**It may be noticed that Montreal Protocol which to some extent modified Warsaw Convention has been ratified by the Senate
of United States but not by our country. Article 24 as amended
by Montreal Protocol as it exists in
Warsaw Convention and amended by Montreal Protocol,
in relevant part reads ‘ in the carriage of passengers …., any action for
damages …. only be brought subject to the conditions and limits set out
in this Convention…”
After the search, which lasted 15 minutes, El Al personnel decided that Tseng did not pose a security threat and allowed her to board the flight. Tseng later testified that she ‘was really sick and very upset’ during the flight, that she was ‘emotionally traumatized and disturbed’ during her month-long trip in Israel, and that, upon her return, she underwent medical and psychiatric treatment for the lingering effects of the body search.
Tseng filed suit against El Al in 1994 in a New York state court of first instance. Her complaint alleged a state law personal injury claim based on the May 22, 1993 episode at JFK. Tseng’s pleading charged, inter alia, assault and false imprisonment, but alleged no bodily injury. E1 Al removed the case to federal court.
The Second Circuit Appeal Court, had concluded first that no ‘accident’
within the Article 17’s compass had occurred; in the
Court of Appeals’ view, the Convention drafters did not ‘aim to impose close to absolute liability’ for an individual’s ‘personal reaction’ to ‘routine
operating procedures.’ Measures that , although ‘inconvenient and
embarrassing,’ are the ‘price
passengers pay for … airline safety.’
In some tension with that reasoning, the Second Circuit next concluded that the Convention does not shield the very same ‘routine operating
procedures’ from assessment under the diverse laws of signatory nations governing
assault and false imprisonment.
Article 24 of the Convention, the Court
of Appeals said, ‘clearly states that resort to local law is precluded only where the
incident is ‘covered’ by Article 17, meaning where there has been an accident, either on the plane or in the course of
embarking or disembarking, which led to death wounding or other bodily injury.
US Supreme Court accepted that El
Al’s search of Tseng was not an
‘accident’ within the meaning of Article 17,
as the parties did not place that Court of Appeals
conclusion at issue. The Court accepted again though only for purposes of
this decision, that El Al’s actions did not constitute ‘wilful misconduct’
under Article 25 of the Convention. The court noted that the
parties did not dispute that the ‘episode-in-suit’ occurred in international transportation in the
course of embarking.
In Air France v. Saks, 470 U.S. 392 a
view has been taken that an ‘accident’ under Article 17 is ‘an unexpected or unusual event or
happening that is external to the
passenger’. The United States Court
observed that this definition should ‘be
flexibly applied after assessment of
all the circumstances surrounding a passenger’s injuries’
In the case of M/s. Greenseas Shipping Company Pvt. Ltd.
vs. Chairman & Managing
Director,
Indian Bank (Original Petition No.264/96, decided on 23rd November, 2001) this
commission has
taken a view that
when a dispute falls within the four corners of the Consumer Protection Act, 1986 relief
can be granted
which can be enforced, there is no reason why a
Consumer Forum will not exercise its
jurisdiction. Simply because the
discomfort was during part of the journey which was outside the country
cannot be
ground to reject the claim of the complainant. The question of jurisdiction of Consumer
Forums
as presently
raised was not examined with reference to the
Carraige by Air Act, 1972 and so the
Warsaw
Convention.
We do not find any substance in the argument that
since no bodily injury was caused
to the complainant or that since he did not suffer
any economic loss he is not entitled to any
claim.
We, therefore, overrule objections (iii)
and (iv)
raised by Mr. Wadhwani as aforesaid.
We, however, find that substantial issues have been raised by Mr. Wadhwani with respect
to objection
Nos. (i) and (ii) aforesaid. We would like to
hear further arguments on these two objections.
We will request Mr.
C.S. Vaidyanathan, Senior Advocate [M-20,
Jangpura Extension, Telephone No.24311586
& 24313200] , to assist us in the matter. He shall be instructed by Mr. Avinash Modi and
Astha Tyagi
Advocates who shall be paid
Rs.2500/- each by the NCDRC Bar
Association (Legal Aid) to meet their
out of pocket expenses.
Registry is directed to send complete set of
paper book each to senior counsel
and instructing counsel.
To come up for hearing on 20.2.2003.
………………………………………J
(D.P. WADHWA)
PRESIDENT
………………………………………
(RAJYALAKSHMI
RAO)
MEMBER
………………………………………
(B.K. TAIMNI)
………………………………………J
(K.S. GUPTA )
MEMBER