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
M/s. Gulf Air & Anr. Respondents
HONBLE MR. JUSTICE D.P. WADHWA,
MRS. RAJYALAKSHMI RAO, MEMBER.
MR. B.K. TAIMNI, MEMBER.
HONBLE 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
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 planes
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 BAs 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
international code in those areas with which it dealt, including the liability of the
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
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  1 All ER 944 (  1 QB 326) a view was taken that in absence of express
provision in the Convention excluding the owners 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 OLoghlen Ltd.  2 NZLR 225.
House of Lords, however, did not think it appropriate to the reasoning in Gatewhite case and
left the matter at that. Shidus 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 passengers lawyer does not want the Conventions 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 Tsengs 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 Tsengs 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. Tsengs 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 17s compass had occurred; in the Court of Appeals view, the Convention drafters did not aim to impose close to absolute liability for an individuals 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 Als 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 Als 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 passengers 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
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.
(K.S. GUPTA )