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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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

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

Versus

Kalpana Rani Debbarma & Ors.           …Respondents

J U D G M E N T

A. M. KHANWILKAR, J.

1. Leave granted.

2. The appellants, who are representatives of two different

branches of an aviation company operating low cost air carrier under

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

taking exception to the judgment and order dated 12.9.2018 passed

by the National Consumer Disputes Redressal Commission, New

Delhi (for short, ‘the National Commission’) in Revision Petition Nos.

1520­1521/2018.   Thereby, the revision petitions filed by the

appellants  came to be rejected and the  judgment and order  dated

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22.8.2017 passed by the District Consumer Disputes Redressal

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

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

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

Commission’) vide judgment  and  order  dated  22.2.2018  in  Appeal

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

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

thousand  four  hundred thirty two only)  within two months failing

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

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

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

such meagre compensation amount was also imposed.

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

much concerned about the amount of compensation/cost ordered to

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

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

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

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

was a condition precedent for issuing notice to the respondents vide

order dated 13.11.2018.   That amount has been deposited and also

withdrawn by the respondents.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

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the clear understanding that the appellants will not insist for refund

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

respondents, though entered  appearance, the  Court requested  Mr.

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

assist the Court.

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

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

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

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

reported well in time at the check­in counter of the appellant­Airlines

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

completing necessary formalities, they were issued boarding passes

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

behind by the ground­staff of the appellant­Airlines and the

concerned flight departed, without any information about its

departure given to the respondents.  The respondents then requested

the ground­staff of the appellant­Airlines to accommodate them in the

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

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

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

appellant­Airlines snatched away the boarding passes of the

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

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

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

10.1.2017.  Resultantly, the respondents had to incur expenditure for

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

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

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

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

respondents sent a legal notice through their Advocate on 28.1.2017

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

thirty­two thousand seven hundred fifty­four only).   As no response

thereto  was received, the respondents filed a  complaint  before the

District Forum reiterating the grievance made in the legal notice and

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

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

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

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

written statement raising  preliminary objection  and  also asserting

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

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

at the boarding gate despite the stipulation that the boarding gate

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

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

concerned, as expounded by this Court in  Interglobe Aviation

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

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

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

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

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

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

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

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

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

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

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

reasons  beyond the  control  of the  appellant­Airlines, the  boarding

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

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

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

respondents.   The appellants also asserted that in terms of the

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

1 (2011) 7 SCC 463

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

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

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

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

without the respondents offering payment for the fresh air tickets in

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

complaint.   

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

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

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

ground­staff of the appellant­Airlines was expected to make

subsequent announcements to secure the presence of the

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

evidence was forthcoming that such announcements were made by

the ground­staff of the appellant­Airlines.   Further, in the e­tickets

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

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

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

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

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

scheduled departure.   Although the boarding passes were not

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

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

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

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

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

the boarding passes were snatched away from them by the ground­

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

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

ground­staff of the appellant­Airlines to the respondents for reaching

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

take the complaint of the respondents and instead snatched away the

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

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

On such findings, the District Forum proceeded to award

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

sixteen thousand four hundred thirty two only) towards airfare  for

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

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

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

thousand only) towards litigation costs, total amounting to

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

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

the rate of 9% per annum.   

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

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

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

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

enhancement of compensation.  Both the appeals came to be disposed

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

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

and conclusions recorded by the District Forum by observing that no

evidence  was  forthcoming  that  proper  assistance  was  given  to the

respondents to facilitate them to board the flight before the scheduled

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

the  appellants  whatsoever including regarding the  announcements

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

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

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

provide assistance to the passengers to facilitate them to board the

flight before the boarding gate closes.   The State Commission,

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

of enhancing the awarded amount towards mental agony, harassment

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

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

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

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

four hundred thirty­two only).   

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

National Commission by way of Revision Petition Nos. 1520­

1521/2018.   The National Commission confirmed the  findings and

conclusions recorded by the two consumer fora and dismissed the

revision petitions with observation that the appellants had chosen to

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

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

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

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

appellants, assailing the concurrent findings and conclusions of the

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

the three consumer fora  have failed to consider the  principles of

pleadings and burden of  proof  and have erroneously held that the

appellants were liable for deficiency in service.   This conclusion has

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

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consumer fora to show  that the respondents  had reported to the

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

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

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

which prevented them from reporting at the boarding gate before the

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

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

deficiency in service must be in relation to the contractual obligation

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

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

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

nature and manner of performance which was required to be

performed by  the appellants or their  ground­staff  at the airport  in

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

remedy before the consumer fora as expounded in  Ravneet Singh

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

have  not  pleaded  or  deposed  about their  whereabouts  and  efforts

taken  by them between the time  when the  boarding  passes  were

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

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

2 (2000) 1 SCC 66 (paragraph 6)

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

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

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

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

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

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

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

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

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

appellants  is that the consumer fora have committed  jurisdictional

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

less tangible evidence produced, by the respondents to substantiate

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

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

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

have made sweeping observations which cannot be countenanced in

law.

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

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

engaged by them.  They have supported the findings and conclusions

recorded by the consumer fora and would contend that no

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

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

besides making oral submissions has submitted written note and a

report suggesting formulation of some guidelines or directions in view

of the increasing demand for air travel because of improved

purchasing capacity of the passengers and their growing  need to

achieve timelines including promotional schemes like UDAN (Ude

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

introduced to enable air operations on unreserved routes, connecting

regional and rural areas, thereby  making  air travel affordable for

masses.   The learned Amicus Curiae  submits that the DGCA

guidelines should be more humane and passenger­friendly,

considering the fact that the passenger­profile of air passengers has

become  more inclusive, covering passengers from hinterlands  and

country­side cutting across diverse social and income groups.  He has

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

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

the passenger is under obligation to report before the scheduled time

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

extricate the airlines’ staff from facilitating passage of the passenger

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

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

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

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

overbooking by the airlines or such other operational reasons

including cancellation of flight due to strike at the airport of

departure or extraordinary circumstances such as volcanic eruption

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

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

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

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

in  uniformity in closure of check­in counters and  boarding gates

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

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

boarding pass itself, the necessary details relating to check­in,

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

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

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

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

respective check­in counters and their websites in addition to duly

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

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

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

departure of passengers including time of check­in, reportage at

boarding gates, record of communications with the passengers in case

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

the passengers in cases of non­reporting at check­in

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

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

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

late in reporting  at the check­in counters/boarding  gates through

telephone/mobiles being a secured channel of

communication/interface between the air carrier and its passengers.

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

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

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

Curiae.

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

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

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

limited to the factum of deficiency in service and to award

compensation only if that fact is substantiated by the party alleging

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

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

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

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

under any law for the time being in force or has been undertaken to

be performed by a person in pursuance of a contract or otherwise in

relation to any service.  This Court in Ravneet Singh Bagga (supra),

therefore, opined as follows:­

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

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respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”  

(emphasis supplied)

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

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

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

assertion of the respondents in the complaint filed before the District

Forum to ascertain whether the claim of deficiency in service in

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

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

­

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

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

(emphasis supplied)

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On the same lines, the witness examined on behalf of the respondents

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

complaint contain material facts with regard to deficiency in service

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

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

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

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

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

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

departure.   There is no assertion that no public announcement was

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

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

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

boarding gate 25 (twenty­five) minutes before the scheduled departure

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

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

the consumer fora committed manifest error in shifting the burden on

the appellants and drawing adverse inference against them for having

failed to produce evidence regarding announcements having been

made to inform the passengers including the respondents to arrive at

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

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clearly stated that as per the standard practice, such announcements

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

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

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

respondents had clearly pleaded all relevant material facts and also

discharged their initial burden of producing proof regarding deficiency

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

issuing boarding passes and before the closure of the boarding gate

and departure of the flight.

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

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

security  channel  area and  like any other  prudent  passenger,  were

expected to  proceed towards the  concerned  boarding  gate in right

earnest.   The appellants in the additional affidavit dated 30.1.2019

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

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

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

said affidavit reads thus:­

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

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

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

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

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

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

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

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a. the distance from either of the check in Portals of InterGlobe to the nearest security gate is only around 10 metres.

b. the distance from any of the security gates to the escalator/lift leading towards the boarding gates (which are on the  lower  level i.e.  on the ground floor) is only around 5 metres.  

c. after traveling aboard the lift/escalator (which may take maximum upto a minute), the walking distance from the touch down point to the last boarding gate on the ground floor i.e. Gate No.23­F is only around 125 meters. Obviously, the walking distance to the other gates 23­E to 23­A is progressively lesser.  

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

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

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

22

No. 6E­861. i.e. 08.01.2017, and the date of the present affidavit.’’

(emphasis supplied)

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

evidence of the witness examined by the respondents to even remotely

suggest as to  what prevented the respondents, after entering the

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

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

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

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

the complainants/respondents as to how the ground­staff of the

appellant­Airlines was responsible and that it was not their own acts

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

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

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

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

respondents that they had sought assistance of the ground­staff of

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

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

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

the respondents had substantiated the allegation of deficiency in

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

23

not to proceed further for want of material facts constituting

deficiency in service.

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

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

regarded as deficiency in service in relation  to the  contract  which

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

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

8.3 of the CoC.  The same read thus: ­

“8.2 Boarding

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

8.3 Failure to Comply

IndiGo will  not be liable to the Customer for any loss or expense incurred due to their failure to comply with the provisions of this Article.”    

(emphasis supplied)

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

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

applicable.   As aforesaid, the follow­up event of not accommodating

24

the respondents in the next available flight for Agartala until payment

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

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

best were liable only to refund the Government and airport fees

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

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

the appellants would have been somewhat different including to

accommodate the passengers without insisting for air­ticket charges

for the next flight available for reaching the desired destination.

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

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

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

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

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

boarding passes at the airport check­in counters, was accomplished

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

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

service  must  be  ascribed only in  respect  of the  stated contractual

obligations of the parties.

25

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

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

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

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

(emphasis supplied)

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

the State Commission distinguished this decision on the basis of facts

of the case disregarding the underlying principle expounded in the

aforesaid extracted portion of the judgment of this Court.   The

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

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

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

claim to be Engineers working  in Government establishment), that

26

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

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

inspection, which is the standard operating procedure followed by all

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

filed.

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

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

the material facts constituting deficiency in service are blissfully

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

substantiate the factum of  deficiency in service committed  by the

ground­staff of the Airlines at the airport after issuing boarding

passes was primarily on the respondents.   That has not been

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

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

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

appellants only after the respondents/complainants had discharged

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

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

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

contains the relevant information regarding the flight number, date,

27

boarding time, departure time and more importantly, the notification

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

departure time and that boarding gate numbers are subject to

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

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

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

information being the standard practice followed by all the airlines.

Indeed, the respondents have asserted in the complaint that the

boarding passes were snatched away by the ground­staff of the

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

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

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

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

reassure themselves about the relevant information and the departure

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

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

the  boarding  pass  and  it  did  not  contain the  relevant information

including regarding the necessity of reporting 25 (twenty­five) minutes

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

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

plea that the boarding passes were snatched away by the ground­staff

28

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

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

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

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

denied the allegation and also suggested to the witness examined by

the respondents that the complaint was false.

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

has been issued boarding pass to undergo the security­check

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

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

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

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

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

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

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

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

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

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

by the respondents  after issue of  boarding passes at the  check­in

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

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

29

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

respondents having failed to take any initiative to ensure that they

present themselves at the boarding gate before the scheduled time

and considering the layout of the check­in counter upto the boarding

gate, the respondents cannot be heard to complain about the

deficiency in service by the ground­staff.   Notably, the distance

between the check­in counter,  where boarding passes were  issued,

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

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

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

explanation for their inaction nor have mentioned about any act of

commission or omission by the ground­staff of the appellant­Airlines

at the airport during this period.

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

expected to proceed towards security channel area and head towards

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

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

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

Further, the Airlines issuing boarding passes cannot be made liable

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

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

30

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

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

there was any reason which created confusion attributable to

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

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

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

‘denied boarding’ as such.

20. The National Commission erroneously relied on the dictum in

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

deny itself of the jurisdiction to entertain the revision petitions despite

the fact that decisions assailed in the revision petitions were

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

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

exercised its jurisdiction  and corrected the  palpable and  manifest

error committed by the two consumer fora below.

21. The State Commission has referred to the observations in

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

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

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

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

31

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

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

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

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

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

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

given case,  if the passenger encounters difficulty or  impediment to

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

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

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

of the concerned airlines will not extend logistical assistance to

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

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

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

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

of the respondents.

22. Additionally, the National Commission has invoked the principle

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

ground­staff of the appellant­Airlines would arise when the

passengers are physically under their complete control as it had

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

32

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

case at the operational stage  whilst facilitating their entry to the

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

complaint or in the oral evidence produced by the respondents that

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

assistance of ground­staff of the appellant­Airlines at the airport after

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

gates and that such assistance was not provided to them.   

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

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

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

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

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

circumstances such as a volcanic eruption leading to the closure of

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

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

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

reads thus: ­

“3.2 Denied Boarding

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

33

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

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

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

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

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

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

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

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

34

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

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

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

subordinate legislation.  The Court concluded that the CAR was only

executive instructions,  which has  been  issued for  guidance  of the

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

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

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

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

is unnecessary to dilate on the argument of the learned  Amicus

Curiae  that  expansive  meaning  be  given to the  expression ‘denied

boarding’.

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

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

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

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

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

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

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

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

8 (2011) 5 SCC 435

35

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

situation obtains in the present case.   The appellant­Airlines cannot

be blamed for the non­reporting of the respondents at the boarding

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

boarding gate was finally closed.

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

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

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

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

all the stakeholders, take appropriate decision and issue instructions

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

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

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

in that behalf.

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

by the District Forum, the State Commission and the National

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

aside and resultantly, the complaint filed by the respondents stands

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

amount deposited by them as a condition precedent for issuance of

36

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

be made from the respondents.

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

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

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

counsel.

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

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

any, shall stand disposed of.

................................., J     (A.M. Khanwilkar)       

................................., J       (Dinesh Maheshwari)    

New Delhi; January 28, 2020.