Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4925 OF 2011 [Arising out of SLP [C] No.21108 of 2010]

InterGlobe Aviation Ltd. … Appellant

vs.

N.Satchidanand … Respondent

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted. Heard.  

2. The appellant,  an aviation company operating an air  carrier  under the  

name  and  style  of  IndiGo  Airlines has  filed  this  appeal  aggrieved  by  the  

judgment of the Andhra Pradesh High Court dated 31.12.2009 dismissing its  

writ petition challenging the decision of the Permanent Lok Adalat for Public  

Utility  Services,  Hyderabad,  dated  18.9.2009  awarding  Rs.10,000  as  

compensation and Rs.2,000 as costs to the respondent herein.  

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Facts found to be not in dispute

3. The respondent and eight others were booked to travel on Indigo flight  

No.6E-301 from Delhi to Hyderabad on 14.12.2007 scheduled to depart at 6.15  

a.m. The respondent reached the airport, obtained a boarding pass and boarded  

the flight at around 5.45 a.m. Due to dense fog, bad weather and poor visibility  

at Delhi airport the flight was delayed. An announcement was made that the  

flight was unable to take off due to dense fog and poor visibility, and that the  

flight will take off as and when a clearance was given by ATC. As appellant  

was a ‘low cost carrier’ neither snacks nor beverages were offered. However  

sandwiches were offered for sale and the respondent purchased a sandwich by  

paying Rs.100. Around 11.15 a.m. an announcement was made that flight No.  

6E-301 was cancelled and the passengers were given the following options: (a)  

refund of air fare; or (b) credit for future travel on IndiGo; or  (c) rebooking  

onto an alternative IndiGo flight at no additional cost. As an extension of the  

third option, willing passengers were permitted to undertake the journey on the  

next flight, by combining the said flight (Flight No.6E-301) with the next flight  

(Flight No. 6E-305) which was scheduled to depart at 12.15 p.m., subject to  

improvement  in  weather  conditions  and  clearance  by  Air  Traffic  Control  

(‘ATC’ for short).

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4. As the same aircraft was to be used for the combined flight, several of the  

passengers including respondent took the third option, and opted to continue the  

journey on the combined flight, by the same aircraft by remaining on board.  

Several  other  passengers,  who opted for refund of  their  airfare  or  obtaining  

credit for future travel or for re-booking on subsequent flights of their choice,  

left the aircraft.  

5. In  view  of  the  cancellation  of  flight  No.6E-301  and  the  DGCA  

regulations prescribing maximum duty hours for the crew, the crew of 6E-301  

was replaced by the fresh crew of flight No.6E-305. Even the combined flight  

No.6E  305  could  not  take  off  on  schedule  as  the  ATC  did  not  give  the  

clearance.  Several  announcements  were made about the delay on account of  

inclement weather conditions and the piling up of delayed flights queuing for  

take off. In the meanwhile on account of cancellation of flights and delaying of  

several  flights,  the  airport  was  getting  overcrowded  and  congested.  As  a  

consequence, the airport authorities advised the flights which had completed  

boarding but had not taken off for want of ATC clearance, not to send back the  

boarded passengers to the airport lounge, but retain them in the aircraft itself, as  

the airport was not capable of handling the additional load. The respondent and  

some other passengers, who had opted for travel in the combined later flight by  

the same aircraft, protested about the delay and demanded lunch/refreshments  

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as  they  were  held  up  inside  the  aircraft.  Each  of  the  affected  passengers,  

including the respondent, was provided with a sandwich and water, free of cost  

around noon time. A further offer of free sandwiches was made around 3.00  

p.m. However as vegetarian sandwiches were exhausted, the second offer by  

the  crew was  of  chicken sandwiches.  Respondent  and others,  who declined  

chicken sandwiches, were offered biscuits and water free of cost. Finally the  

ATC clearance was given at 4.20 p.m. and the flight departed at 4.37 p.m. and  

reached Hyderabad around 7 p.m.

6. When  the  flight  reached  Hyderabad,  the  respondent  and  some  other  

passengers were detained at the Hyderabad Airport for more than an hour in  

connection with an enquiry by the Security Personnel of IndiGo, in regard to a  

complaint by the on-board crew that they had threatened and misbehaved with  

the air hostesses when the flight was delayed.  

The complaint and the response

7. The  respondent  filed  a  complaint  against  the  appellant  before  the  

Permanent Lok Adalat for Public Utility Services, claiming a compensation of  

Rs.Five  lakhs  for  the  delay  and  deficiency  in  service  resulting  in  physical  

discomfort,  mental  agony  and  inconvenience.  The  respondent  listed  the  

following reasons for the claim:  

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(a) confinement to the aircraft seat from 5.45 a.m. (time of boarding) to  

4.37 p.m. (time of departure of flight) for nearly 11 hours leading to  

cramps in his legs;

(b) failure to provide breakfast, lunch, tea in the aircraft in spite of the  

fact that the respondent was detained in the aircraft for eleven hours  

(from 5.45 a.m. to 4.37 p.m.) before departure;

(c) failure to provide access to medical facilities to the respondent who  

was a diabetic and hyper tension patient;

(d) illegal detention from 7 p.m. to 8.30 p.m. at Hyderabad airport upon a  

false complaint by the crew of the aircraft;

(e) inability to celebrate his birthday on 15.12.2007, on account of the  

traumatic experience on the earlier day, apart from being prevented  

from  attending  court  on  14.12.2007  and  being  prevented  from  

attending office till 19.12.2007.   

8. The respondent contended that the airlines failed to take necessary care  

of the passengers and failed to act reasonably by not resorting to the remedial  

steps in regard to following matters:  

(a) In view of the foggy conditions and inclement weather,  instead of  

issuing boarding passes,  the passengers should have been asked to  

wait in the airport lounge itself until the weather/visibility improved,  

so  that  they  could  have  had  breakfast  and  lunch  in  the  airport  

restaurant without being confined to the aircraft for a total period of  

eleven hours;

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(b) When the flight could not take off due to bad weather for a long time  

(nearly eleven hours), the appellant ought to have brought back the  

passengers from the aircraft to the terminal so that they could have  

avoided confinement to their narrow seats in the aircraft and at the  

same time had access to breakfast and lunch, proper toilet facilities, if  

necessary, medicines;  

(c) Though the appellant was a low cost carrier with no provision for  

serving food, in the extraordinary circumstances of detention of the  

passengers in the aircraft for 11 hours (before departure), it should  

have provided breakfast and lunch of their choice and beverages, free  

of cost, on board.

(d) The  respondent  being  a  diabetic  and  hyper-tension  patient  was  

required to have timely meals and medicines, which he was denied.  

Though a free sandwich was provided around 12.30 p.m., at around  

3.00 p.m. when second round of frees snacks were offered, he was  

offered  a  chicken  sandwich  which  he  could  not  accept  being  a  

vegetarian. Offering a few biscuits with water as an alternative was  

wholly insufficient.  

(e) Since  the  toilets  were  being  constantly  used  by  the  cooped  up  

passengers  in  the  aircraft  for  several  hours,  and  as  there  was  no  

proper air circulation, the air was unbreathable apart from the foul  

smell from the toilet leading to nausea and dizziness.

9.  The  appellant  resisted  the  claim of  the  respondent  on  the  following  

grounds :

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(a) The  Permanent  Lok  Adalat  at  Hyderabad  had  no  jurisdiction  to  

entertain the complaint.  Having regard to the jurisdiction clause in  

the contract of carriage, only the courts at Delhi had jurisdiction. Any  

complaint or case had to be filed only at Delhi.

(b) The delay was for reasons beyond the control of the airlines and its  

employees,  due  to  dense  fog  and  bad  weather.  As  the  visibility  

dropped to less than around 15 meters, flights could not take off and  

the consequential congestion at the airport led to further delay. Even  

after the fog had cleared, the Air Traffic Control clearance for take  

off was given only at 4.20 p.m. The delay was not on account of any  

negligence or want of care or deficiency in service on the part of the  

airlines,  but  due  to  bad  weather  conditions  and  want  of  ATC  

clearance, which were beyond the control of the airlines and therefore  

it was not liable to pay any compensation.

(c) The  respondent  was  given  the  option  of  either  re-booking  in  a  

different flight, or receive the refund of the airfare, or continue the  

journey in the same aircraft  by taking the next combined flight to  

depart as per ATC clearance. The respondent opted for continuing the  

journey in the combined flight and he stayed in the aircraft. If he had  

opted for  re-booking  or  refund,  he  could  have  left  the  aircraft  by  

12.00 Noon.  

(d) The respondent did not disclose his alleged physical condition (about  

diabetes and hyper tension) either at the time of purchasing the ticket  

or during the period he was on board. If he was suffering from any  

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ailment  he  ought  to  have  given  advance  notice  or  ought  to  have  

accepted the offer for rebooking or refund and left the aircraft as was  

done by several other passengers.  

(e) Being a flight operated by a low cost carrier, the appellant did not  

have any provision to serve any food or beverages. Only sandwiches  

and some other snacks were available on sale basis. In spite of it, in  

view  of  the  delay,  arrangements  were  made  for  supply  of  free  

sandwiches and water, once around 12.30 p.m. and again around 3.00  

p.m. The toilets  were  also functional  all  through the period.  Thus  

there was no deficiency in service or want of care on its part.  

10. In  regard  to  the  detention  of  respondent  at  Hyderabad  Airport,  the  

appellant  submitted  that  the  respondent  and  some  of  his  fellow passengers  

became agitated and furious when the announcement regarding cancellation of  

flight No.6E 301 was made and started abusing and misbehaving with the crew  

using extremely vulgar and threatening language; that the respondent also threw  

the biscuits offered, at one of the crew members; and that a complaint was made  

against the respondent and other members by the crew and consequently when  

the  flight  reached  Hyderabad  there  was  an  inquiry  by  appellant’s  Assistant  

Manager  (Security).  It  was  further  submitted  that  during  enquiry,  the  crew  

decided not  to press the matter  in the interests  of customer relations and to  

avoid unnecessary complications; and therefore, even though CISF personnel  

advised that a written complaint may be given in regard to the misbehaviour, a  

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written complaint was not given and the respondent and others were permitted  

to  leave.  The  allegation  of  wrongful  confinement  and  harassment  was  thus  

denied.  

11. The Permanent Lok Adalat, by award dated 18.9.2009 held that it had  

territorial jurisdiction. It further held that the delay was due to poor visibility  

and bad weather  conditions,  reasons  beyond the  control  of  the  appellant.  It  

further held: (a) though the claim of the respondent that he was confined in the  

aircraft  without  providing food was not  established,  and though the airlines  

being a low cost carrier, was not bound to provide any food to its passengers, as  

the  passengers  were detained in  the  aircraft  for  long,  not  providing food of  

passenger’s choice caused inconvenience and suffering to the passengers; (b)  

though there  was  no evidence to  show that  the  respondent  had notified the  

airlines  that  he  was  a  diabetic  and  it  was  not  possible  to  hold  the  airlines  

responsible  in  any  manner,  the  fact  that  he  suffered  on  account  of  being  a  

diabetic could not be ignored; and (c) though the relevant rules might not have  

permitted the passengers who had boarded the aircraft to return to the airport  

lounge, in view of the unduly long delay, the rules should have been relaxed  

and the airlines was under a moral duty to take the passengers to the lounge and  

keep them there till the flight was permitted to take off and failure to do so was  

inexcusable.  The  Permanent  Lok  Adalat  did  not  examine  the  grievance  

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regarding wrongful confinement at the Hyderabad airport for an hour and half  

stating that criminal offences were not within its purview. The Permanent Lok  

Adalat held that there was laxity and deficiency in service on the part of the  

appellant and consequently awarded Rs.10000 as compensation and Rs.2500 as  

costs.  

12. The said decision of the Permanent Lok Adalat was challenged by the  

appellant by filing a writ petition. The High Court dismissed the writ petition by  

the impugned judgment dated 31.12.2009. In regard to jurisdiction the High  

Court held as follows:

“Most of the passengers, who took tickets or most of the passengers who buy  tickets  in Indigo counters seldom, read the terms and conditions regarding  jurisdiction of Court in case of disputes. In such a situation, the jurisdiction  aspects  of the contract  between IndiGo and passenger must receive liberal  approach by the Courts or else the consumerism would be at peril.”

The High Court did not interfere with the award of the Permanent Lok Adalat  

on the following reasoning:  

“Whatever be the reason and whatever be the justification, for Indigo in not  operating Flight 6E-301 as per schedule, it certainly caused inconvenience to  the passenger who is admittedly a diabetic patient. Therefore, he should at  least receive nominal damages for the deficiency of service. This was what  was  precisely done by learned Permanent  Lok Adalat  in  an  unexceptional  manner.  We  do  not  see  any  strong  reason  to  exercise  our  extraordinary  jurisdiction to find fault with the same.”

 13. The said order is under challenge in this appeal by special leave. On the  

contentions urged the following questions arise for consideration:

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(i) Whether the Permanent Lok Adalat at Hyderabad did not have territorial  jurisdiction?

(ii) When  a  flight  is  delayed  due  to  bad  weather,  after  the  boarding  of  passengers is completed, what are the minimum obligations of an air carrier in  particular a low cost carrier, to ensure passenger comfort?

(iii) When  there  is  delay  for  reasons  beyond  the  control  of  the  airlines,  whether failure to provide periodical lunch/dinner or failure to take back the  passengers to the airport lounge (so that they can have freedom to stretch their  legs, move around and take food of their choice) can be termed as deficiency in  service or negligence?

(iv) Whether the award of compensation of Rs.10,000/- with costs calls for  interference?     

Re: Question (i) : Jurisdiction of Permanent Lok Adalat

14. The Indigo Conditions of Carriage, containing the standard terms which  

govern the contract between the parties provide as follows: “All disputes shall  

be  subject  to  the  jurisdiction  of  the  courts  of  Delhi  only.”  The  appellant  

contends  that  the  ticket  related  to  the  travel  from Delhi  to  Hyderabad,  the  

complaint  was in regard to delay at Delhi and therefore the cause of action  

arose at Delhi; and that as the contract provided that courts at Delhi only will  

have jurisdiction,  the  jurisdiction of  other  courts  were  ousted.  Reliance was  

placed on ABC Laminart v. A.P. Agencies [1989 (2) SCC 163] where this court  

held:

“So long as the parties to a contract do not oust the jurisdiction of all  the  Courts which would otherwise have jurisdiction to decide the cause of action  

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under the law it cannot be said that the parties have by their contract ousted  the  jurisdiction  of  the  Court.  If  under  the  law several  Courts  would  have  jurisdiction and the parties have agreed to submit to one of these jurisdictions  and not to other or others of them it cannot be said that there is total ouster of  jurisdiction. In other words, where the parties to a contract agreed to submit  the disputes arising from it to a particular jurisdiction which would otherwise  also be a proper jurisdiction under the law, their agreement to the extent they  agreed not to submit to other jurisdictions cannot be said to be void as against  public policy. If on the other hand, the jurisdiction they agreed to submit to  would not otherwise be proper jurisdiction to decide disputes arising out of the  contract it must be declared void being against public policy.

……From the foregoing decisions it can be reasonably deduced that where  such an ouster clause occurs, it is pertinent to see whether there is ouster of  jurisdiction  of  other  Courts.  When  the  clause  is  clear,  unambiguous  and  specific accepted notions of contract would bind the parties and unless the  absence of ad idem can be shown, the other Courts should avoid exercising  jurisdiction,  As  regards  construction  of  the  ouster  clause  when words  like  'alone',  'only,  'exclusive'  and  the  like  have  been  used  there  may  be  no  difficulty. Even without such words in appropriate cases the maxim 'expressio  unius est exclusio alterius' -expression of one is the exclusion of another may  be applied. What is an appropriate case shall depend on the facts of the case.  In such a case mention of one thing may imply exclusion of another. When  certain jurisdiction is specified in a contract an intention to exclude all others  from  its  operation  may  in  such  cases  be  inferred.  It  has  therefore  to  be  properly construed.”

15. The ‘exclusive jurisdiction clause’, as noticed above is a standard clause  

that is made applicable to all contracts of carriage with the appellant, relating to  

passengers, baggage or cargo anywhere in the country, irrespective of whether  

any part of the cause of action arose at Delhi or not. If for example a passenger  

purchases a ticket to travel from Mumbai to Kolkata, or Chennai to Hyderabad,  

which involved travel without touching Delhi and if such ticket was purchased  

outside Delhi, obviously the Delhi courts will not have territorial jurisdiction as  

no part of the cause of action arises in Delhi. As per the principle laid down in  

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ABC Laminart,  any  clause  which  ousts  the  jurisdiction  of  all  courts  having  

jurisdiction  and  conferring  jurisdiction  on  a  court  not  otherwise  having  

jurisdiction would be invalid. It is now well settled that the parties cannot by  

agreement confer jurisdiction on a court which does not have jurisdiction; and  

that  only  where  two  or  more  courts  have  the  jurisdiction  to  try  a  suit  or  

proceeding, an agreement that the disputes shall be tried in one of such courts is  

not  contrary  to  public  policy.  The  ouster  of  jurisdiction  of  some  courts  is  

permissible so long as the court on which exclusive jurisdiction is conferred,  

had jurisdiction.  If the clause had been made to apply only where a part  of  

cause of action accrued in Delhi, it would have been valid. But as the clause  

provides that irrespective of the place of cause of action, only courts at Delhi  

would have jurisdiction, the said clause is invalid in law, having regard to the  

principle laid down in  ABC Laminart. The fact that in this case, the place of  

embarkation  happened  to  be  Delhi,  would  not  validate  a  clause,  which  is  

invalid.  

16. There is another reason for holding the said clause to be invalid. A clause  

ousting jurisdiction of a court,  which otherwise would have jurisdiction will  

have to be construed strictly. In this case, we are concerned with a clause which  

provides that all disputes shall be subject to the jurisdiction of the  courts at   

Delhi only. But in this case, the respondent did not approach a “court”. The  

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claim was filed by the respondent before a  Permanent Lok Adalat  constituted  

under Chapter VI-A of the Legal Services Authorities Act, 1987 (‘LSA Act’ for  

short). Section 22C provides that any party to a dispute may, before the dispute   

is brought before any court, make an application to the Permanent Lok Adalat   

for settlement of the dispute. When the statement, additional statements, replies  

etc.,  are filed in an application filed before it,  the Permanent  Lok Adalat is  

required to conduct  conciliation proceedings between the parties, taking into   

account, the circumstances of the dispute and assist the parties in their attempt   

to reach an amicable settlement of the dispute. If the parties fail to reach an  

agreement, the  Permanent Lok Adalat  is  required to decide the dispute.  The  

Permanent Lok Adalats  are authorized to deal with and decide only disputes  

relating to service rendered by notified public utility services provided the value  

does not exceed Rupees Ten Lakhs and the dispute does not relate to a non-

compoundable offence. Section 22D provides that the  Permanent Lok Adalat   

shall, while conducting the conciliation proceedings or deciding a dispute on  

merit  under  the  LSA  Act,  be  guided  by  the  principles  of  natural  justice,  

objectivity,  fair  play,  equity  and other  principles  of  justice  and shall  not  be  

bound by the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872.  

Section 22E provides that every award of the  Permanent Lok Adalat  shall be  

final and binding on the parties and could be transmitted to a civil court having  

local jurisdiction for execution. Each and every provision of Chapter VIA of  

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LSA Act emphasizes that is the  Permanent Lok Adalat is a Special Tribunal  

which is not a ‘court’.  As noted above, Section 22C of the LSA Act provides  

for an application to the Permanent Lok Adalat in regard to a dispute before the  

dispute is brought before any court and that after an application is made to the  

Permanent Lok Adalat, no party to the application shall invoke the jurisdiction  

of any court in the same dispute, thereby making it clear that Permanent Lok  

Adalat is distinct and different from a court. The nature of proceedings before  

the Permanent Lok Adalat is initially a conciliation which is non-adjudicatory  

in nature.  Only if the parties fail  to reach an agreement by conciliation,  the  

Permanent  Lok  Adalat  mutates  into  an  adjudicatory  body,  by  deciding  the  

dispute. In short the procedure adopted by  Permanent Lok Adalats  is what is  

popularly  known  as  ‘CON-ARB’  (that  is  “conciliation  cum arbitration”)  in  

United States, where the parties can approach a neutral third party or authority  

for conciliation and if the conciliation fails, authorize such neutral third party or  

authority to decide the dispute itself, such decision being final and binding. The  

concept of ‘CON-ARB’ before a Permanent Lok Adalat is completely different  

from the concept of judicial adjudication by courts governed by the Code of  

Civil Procedure. The Permanent Lok Adalat not being a ‘court’, the provision in  

the contract relating to exclusivity of jurisdiction of courts at  Delhi will  not  

apply.  

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17. The  appellant  next  contended  that  even  if  the  jurisdiction  clause  is  

excluded  from  consideration,  only  courts  and  tribunals  at  Delhi  will  have  

jurisdiction as the cause of action arose at Delhi and not at Hyderabad. The  

appellant  contended that  the  respondent  boarded  the  flight  at  Delhi  and the  

entire incident relating to delay and its consequences took place at Delhi and  

therefore courts at Delhi alone will have jurisdiction. This contention is wholly  

untenable.  The  dispute  was  with  reference  to  a  contract  of  carriage  of  a  

passenger from Delhi to Hyderabad. The ticket was purchased at Hyderabad  

and consequently the contract  was entered into at  Hyderabad.  A part  of the  

cause of action also arose at Hyderabad as the respondent clearly alleged as one  

of the causes for claiming compensation, his illegal detention for an hour and  

half at the Hyderabad Airport by the security staff of the appellant when the  

flight landed. Therefore the courts and tribunals at Hyderabad had jurisdiction  

to  entertain  the  claims/disputes.  Section  22B  provides  that  permanent  Lok  

Adalats shall be established for exercising jurisdiction in respect of one or more  

public utility services for such areas as may be specified in the notification. It is  

not  disputed  that  the  Permanent  Lok  Adalat  for  public  utility  services,  

Hyderabad was constituted for the area of Hyderabad and transport services by  

way of carriage of passengers by air is a public utility service. Therefore we  

hold that the Permanent Lok Adalat at Hyderabad had jurisdiction to entertain  

the application against the appellant.  

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18. One of the reasons assigned by the High Court to hold that Permanent  

Lok  Adalat  at  Hyderabad  had  jurisdiction  was  that  the  term in  the  IndiGo  

conditions of carriage that only courts at Delhi will have jurisdiction should be  

ignored as most of the passengers buying tickets from IndiGo may not read the  

terms and conditions regarding jurisdiction of courts and therefore, the court  

should adopt a liberal approach and ignore such clauses relating to exclusive  

jurisdiction. The said reasoning is not sound. 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 web-site and ascertain  

the same. Placing the conditions of carriage on the web-site and referring to the  

same in the e-ticket 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.  

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19. We may also at this juncture refer to the confusion caused on account of  

the term  Permanent Lok Adalat  being used to describe two different types of  

Lok Adalats. The LSA Act refers to two types of Lok Adalats. The first is a Lok  

Adalat constituted  under  Section  19  of  the  Act  which  has  no  adjudicatory  

functions or powers and which discharges purely conciliatory functions.  The  

second is a Permanent Lok Adalat established under section 22B(1) of LSA Act  

to  exercise  jurisdiction  in  respect  of  public  utility  services,  having  both  

conciliatory  and  adjudicatory  functions.  The  word  Permanent  Lok  Adalat   

should refer only to Permanent Lok Adalats established under section 22B(1) of  

the LSA Act and not to the Lok Adalats constituted under section 19. However  

in many states, when Lok Adalats are constituted under section 19 of LSA Act  

for regular or continuous sittings (as contrasted from periodical sittings), they  

are  also  called  as  Permanent  Lok  Adalats even  though  they  do  not  have  

adjudicatory functions. In  LIC of India vs. Suresh Kumar - 2011 (4) SCALE  

137, this court observed: “It is needless to state that Permanent Lok Adalat has  

no jurisdiction or authority vested in it to decide any lis, as such, between the  

parties even where the attempt to arrive at an agreed settlement between the  

parties has failed”. The said decision refers to such a ‘Permanent Lok Adalat’  

organized  under  section  19  of  the  Act  and  should  not  be  confused  with  

Permanent Lok Adalats constituted under section 22B(1) of the Act. To avoid  

confusion, the State Legal Services Authorities and the High Courts may ensure  

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that  Lok  Adalats other  than  the  Permanent  Lok  Adalats established  under  

section 22B(1) of the Act in regard to public utility services, are not described  

as Permanent Lok Adalats. One way of avoiding the confusion is to refer to the  

Lok Adalats constituted under section 19 of the Act on a regular or permanent  

basis as ‘Continuous Lok Adalats’. Be that as it may.

Re : Question (ii) to (iv)

Low cost carrier vis-a-vis full service carrier

20. The appellant is a low cost carrier. It is necessary to bear in mind the  

difference between a full service carrier and a low cost carrier, though both are  

passenger  airlines.  Low cost  carriers  tend to  save on overheads,  operational  

costs and more importantly on the services provided. Low cost carriers install  

the maximum number of seats possible in their aircraft, and attempt to operate  

the aircraft to optimum levels and fill the seats to capacity. The passengers, who  

prefer to travel on budget fares, when opting for low cost carriers know fully  

well that they cannot expect from them, the services associated with full service  

carriers. From the passenger’s view point, the important difference between the  

two  classes  of  airlines  lies  in  the  on-board  service  offered  to  them by  the  

airlines. While full service carriers offer several services including free food  

and beverages on board, low cost carriers offer the minimal ‘no-frills’ service  

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which does not include any free food or beverages except water. But the fact  

that  an  airline  is  a  low  cost  carrier  does  not  mean  that  it  can  dilute  the  

requirements relating to safety, security and maintenance. Nor can they refuse  

to  comply with  the  minimum standards  and requirements  prescribed  by  the  

Director General of Civil Aviation (‘DGCA’ for short). The fact that it offers  

only ‘no- frills’ service does not mean that it can absolve itself from liability for  

negligence, want of care or deficiency in service. Both types of carriers have  

clauses either excluding or limiting liability in respect of certain contingencies.  

The disclaimers by low cost carriers will be more wider and exhaustive when  

compared to full service carriers. DGCA and other authorities concerned with  

licensing low cost carriers, shall have to ensure that the terms of contract of  

carriage of low cost carriers are not unreasonably one sided with reference to  

their disclaimers. This becomes all the more necessary as the terms of contract  

of  carriage  are  not  incorporated  in  the  tickets  that  are  issued  and  usually  

passengers, who purchase the tickets, will not be able to know the actual terms  

and conditions of contract of carriage unless they visit the website of the airline  

or  seeks  a  copy  of  the  complete  terms  of  contract  of  carriage.  All  that  is  

required to be noted in the context of this case is that travel by a low cost carrier  

does not mean that the passengers are to be treated with any less care, attention,  

respect or courtesy when compared to full service carriers or that there can be  

dilution in the minimum standards of safety, security or efficiency.  

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Relevant statutory provisions and DGCA directives  

21. The  Carriage  of  Air  Act,  1972  gives  effect  to  the  convention  for  

unification  of  certain  rules  relating  to  international  carriage  by  air,  and  

amendments  thereto,  to non-international  carriage  by air.  Section 8 provides  

that the Central Government may by notification in the official gazette apply  

the rules contained in the first schedule to the Act and any provision of section  

3  or  section  5  or  section  6  to  such  carriage  by  air,  not  being  international  

carriage by air, as may be specified in the notification, subject, however, to such  

exceptions,  adaptations,  modifications  as  may  be  so  specified.  Notification  

No.SO.186E  dated  30.3.1973  issued  under  section  8  of  the  Act  applies  to  

sections 4, 5 and 6 and the rules contained in the second schedule to the Act to  

all  carriages  by  air  (not  being  an  international  carriage)  and  also  modified  

several rules in the second schedule to the Act apart from amending sections 4  

and 5 and omitting section 6 of the Act.  Chapter III of the Second Schedule to  

the  said  Act  relates  to  “liability  of  the  carrier”  and  clause  19  thereof  (as  

amended by Notification No.SO.186(E) dated 30.3.1973 issued under section  

8(2) of that Act) is extracted below:-

“19. In the absence of a contract to the contrary, the carrier is not to be  liable for damage occasioned by delay in the carriage by air of passengers,  baggage or cargo.”  

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22. Rule 134 of the Aircraft Rules 1937 provides that no person shall operate  

any scheduled air transport services except with the permission of the Central  

Government. Rule 133A of the said Rules provides that the special directions  

issued by the Director General of Civil Aviation (‘DGCA’ for short) by way of  

circulars/notices to aircraft owners relating to operation and use of aircraft shall  

be complied with by the persons to whom such direction is issued. The Director  

General of Civil  Aviation, Govt.  of India,  issued a circular No.8/2007 dated  

5.12.2007,  containing  the  guidelines  for  Aircraft  operations  during  Low  

Visibility  Conditions  (Fog  management)  at  IGI  Airport,  Delhi  which  were  

applicable on the relevant date (14.12.2007). Clauses 31, 32, 35 and 36 thereof  

are extracted below :  

“31) Airlines shall augment their ground staff and position them at the airport  with proper briefing for handling various passenger facilitation processes in  co-ordination with the other airport agencies.

32)  Airlines  shall  inform  their  passengers  of  the  delay/rescheduling/cancellation of their flights in through mobile/SMS/other  communication mean to avoid congestion at the airport.

35)  Airlines  shall  ensure  progressive  boarding  of  the  passengers  out  of  security hold area in order to avoid congestion in the security hold. Passenger  after  check-in  shall  be  made  to  proceed  for  security  by  the  airlines  after  ensuring  that  the  flight  is  ready  to  depart/is  on  ground.  If  delayed,  after   boarding, appropriate facilitation to be given by Airlines on board.

36)  The Airlines,  particularly  LCC shall  provide  facilitation  in terms of   tea/water/snacks  to  the  passenger  of  their  delayed  flights. The  coupon  scheme  extended  by  DIAL  may  be  availed  by  airlines  for  the  passenger  facilitation purpose.”   

[emphasis supplied]

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Other directives referred by way of comparison

23. We may, by way of comparison also refer to the following provisions of  

the  subsequent  circular/CAR (Civil  Aviation Requirements)   dated 6.8.2010  

issued by DGCA in regard to the facilities  to be provided to passengers by  

airlines due to denied boarding, cancellation or delays in flights, which came  

into effect from 15.8.2010.  

“Introduction

x x x

1.4 The operating airline would not have the obligation to pay compensation  in cases where the cancellations and delays have been caused by an event(s)  of force majeure i.e. extraordinary circumstance(s) beyond the control of the  airline,  the impact  of which lead to the cancellation/delay of flight(s),  and  which could not have been avoided even if all reasonable measures had been  taken  by  the  airline.  Such  extraordinary  circumstances  may  in  particular,  occur due to political  instability,  natural  disaster,  civil  war,  insurrection or  riot, flood, explosion, government regulation or order affecting the aircraft,  strikes  and labour  disputes  causing cessation,  slowdown or  interruption  of  work or any other factors that are beyond the control of the airline.  

1.5 Additionally, airlines would also not be liable to pay any compensation  in  respect  of  cancellations  and delays  clearly  attributable  to  Air  Traffic   Control  (ATC),  meteorological  conditions,  security  risks,  or  any  other  causes  that  are  beyond the  control  of  the  airline  but  which affect  their   ability to operate flights on schedule.  

Extraordinary circumstances should be deemed to exist where the impact of  an air traffic management decision in relation to a particular aircraft or several  aircraft on a particular day, gives rise to a long delay or delays, an overnight  delay, or the cancellation of one or more flights by that aircraft, and which  could  not  be  avoided  even  though  the  airline  concerned  had  taken  all  reasonable measures to avoid or overcome of the impact of the relevant factor  and, therefore, the delays or cancellations.

x x x x x x x x x

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3.4 Delay in Flight

3.4.1 The airlines shall provide facilities in accordance with Para 3.6.1 (a) if   the passenger has checked in on time,  and if the airline expects a delay   beyond its original announced scheduled time of departure or a revised time  of departure of:  

a) 2 hours or more in case of flights having a block time of up to 2 ½ hrs; or

b) 3 hours or more in case of flights having a block time of more than 2 ½ hrs  and up to 5 hours; or

c) 4 hours or more in case of flights not falling under sub-para (1) and (b) of  Para 3.4.1.  

3.4.2. When the reasonably expected time of departure is more than 24 hours,  after the scheduled time of departure previously announced, the airline shall  provide facility to the passengers in accordance with the provisions of para  3.6.1(b) hereunder.  

3.4.3 An operating airline shall  not be obliged to adhere to Para 3.6 if the  delay is caused due to extra ordinary circumstances as defined in Para 1.4 and  Para 1.5 which could not have been avoided even if all reasonable measures  had been taken.  

x x x x x x x x x

3.6 Facilities to be offered to Passengers  

3.6.1 Passengers shall be offered free of charge the following:  

a) Meals and refreshments in relation to waiting time.  

b) Hotel Accommodation when necessary (including transfers).  

3.6.2  Airlines  shall  pay  particular  attention  to  the  needs  of  persons  with  reduced mobility and any other person (s) accompanying them.  

3.8 General  

3.8.1  The  airlines  shall  display  their  policies  in  regard  to  compensation,  refunds and the facilities that will be provided by the airline in the event of  denied boardings, cancellations and delays on their respective websites as part  of their passenger Charter of Rights. Passengers shall be fully informed by the  airlines of their rights in the event of denied boarding, cancellations or delays  of their flights so that they can effectively exercise their rights provided at the  time  of  making  bookings/ticketing,  they  have  given  adequate  contact  

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information to the airline or their agents. The obligation of airlines to fully  inform the passenger(s) shall be included in ticketing documents and websites  of the airlines and concerned third parties (GDS and travel agents) issuing  such documents on airlines’ behalf. ”

(emphasis supplied)

24. We may also  refer  to  Regulation  (EC)  No.261/2004 of  the  European  

Parliament and of the Council, establishing common rules on compensation and  

assistance to passengers in the event of denied boarding and of cancellation or  

long delay of  flights,  to know the European standards.    Clause (17) of the  

preamble thereto provides thus :   

“(17)  Passengers whose flights are delayed for a specified time should be   adequately  cared for and  should  be  able  to  cancel  their  flights  with  reimbursement  of  their  tickets  or  to  continue  them  under  satisfactory  conditions.”

(emphasis supplied)

Article 6 deals with delay, Article 8 deals with reimbursement and Regulation 9  

deals with passengers’ right to care. We extract below the relevant regulations :  

“Article 6 (Delay)

1. When an operating air  carrier  reasonably expects a  flight  to be delayed  beyond its scheduled time of departure:

(a) for two hours or more in the case of flights of 1,500 kilometres or less; or

(b) for three hours or more in the case of all intra-Community flights of more  than  1,500  kilometres  and  of  all  other  flights  between  1,500  and  3,500  kilometres; or

(c) for four hours or more in the case of all flights not falling under (a) or (b),  

Passengers shall be offered by the operating air carrier:

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(i) the assistance specified in Article 9(1)(a) and 9(2); and

(ii) when the reasonably expected time of departure is at least the day after  the time of departure previously announced, the assistance specified in Article  9(1)(b) and 9(1)(c); and  

(iii) when the delay is at least five hours, the assistance specified in Article  8(1)(a).

2. In any event, the assistance shall be offered within the time limits set out  above with respect to each distance bracket.

Article 8 (Right to reimbursement or re-routing)

xxxx

Article 9 (Right to care)

1. Where reference is made to this Article, passengers shall be offered free   of charge:

(a) meals and refreshments in a reasonable relation to the waiting time;

(b) hotel accommodation in cases — where a stay of one or more nights becomes necessary, or —  where  a  stay  additional  to  that  intended  by  the  passenger  becomes  necessary;

(c) transport between the airport and place of accommodation (hotel or other).

2. In addition, passengers shall be offered free of charge two telephone calls,  telex or fax messages, or e-mails.”

(emphasis supplied)

Liability for damages for delay

25. Rule 19 of Second Schedule to Carriage by Air Act, makes it clear that  

the carrier is not liable for damage occasioned by delay in the carriage by air of  

passengers. The position would be different if under the contract,  the carrier  

agrees to be liable for damages. On the other hand, the IndiGo Conditions of  

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Carriage  categorically  state  that  the  carrier  will  not  be  liable  to  pay  any  

damages for delays, rescheduling or cancellations due to circumstances beyond  

the control of IndiGo. There is no dispute that in this case, the delay was for  

reasons  beyond  the  control  of  the  carrier.  The  guidelines  show  that  the  

operating air carrier would not be liable to pay compensation to a passenger, in  

respect of either cancellation or delays attributable to meteorological conditions  

(weather/fog  etc.,)  or  air  traffic  control  directions/instructions,  which  are  

beyond the control of the air  carrier.  The Permanent Lok Adalat recorded a  

finding of fact that delay was due to dense fog/bad weather and want of ATC  

clearance due to air traffic congestion, which were beyond the control of the air  

carrier and as a consequence rightly held that the air carrier was not liable for  

payment of any compensation for the delay as such. We may note this was the  

position as on the date of the incident (14.12.2007) and even subsequently, after  

the issue of the guidelines dated 6.8.2010 by the DGCA.

Liability to provide facilitation during delay

26. The issue of responsibility for delay in operating the flight is distinct and  

different  from  the  responsibility  of  the  airline  to  offer  facilitation  to  the  

passengers  grounded  or  struck  on  board  due  to  delay.  If  the  obligation  to  

provide  facilitation  to  the  passengers  is  legally  recognized,  either  based  on  

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statutory  requirements  or  contractual  obligations  or  recognized  conventions,  

failure to provide the required minimum facilitation may, depending upon the  

facts of the case,  amount to either breach of statutory/contractual  obligation,  

negligence, want of care or deficiency in service on the part of the operating  

airline entitling the passengers for compensation.  

27. We  may  consider  whether  there  was  any  such  obligation  to  provide  

facilitation to passengers by the appellant on 14.12.2007. As per the DGCA’s  

guidelines dated 5.12.2007 which were in force on 14.12.2007, there was such  

obligation on the part of the carrier. Clause 35 provided if the flight is delayed,  

after boarding, appropriate facilitation has to be given by the Airlines on board.  

Clause 36 provides  that  the Airlines,  even low cost  carriers,  had to provide  

facilitation  in  terms  of  tea/water/snacks  to  the  passengers  of  their  delayed  

flights.  

28. Under  the  CAR  circular  dated  6.8.2010  which  came  into  effect  on  

15.8.2010,  in  the  event  of  delays  attributable  to  air  traffic  control  or  

meteorological  conditions,  the  operating  Airlines  shall  have  to  offer  to  the  

passengers free of cost, meals and refreshment in relation to waiting time, vide  

clause  3.6.1(a)  read  with  clause  3.4.1.  Facilitation  of  passengers  who  are  

stranded after boarding the aircraft on account of delays is an implied term of  

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carriage of passengers, accepted as an international practice, apart from being a  

requirement to be fulfilled under DGCA’s directives. Such facilitation which  

relates to the health, survival and safety of the passengers, is to be provided, not  

only by full service carriers, but all airlines including low cost carriers. This  

obligation has nothing to do with the issue of liability or non-liability to pay  

compensation  to  the  passengers  for  the  delay.  Even  if  no  compensation  is  

payable for the delay on account of bad weather or other conditions beyond the  

control of the air carrier, the airline will be made liable to pay compensation if  

it  fails  to  offer  the  minimum  facilitation  in  the  form  of  

refreshment/water/beverages, as also toilet facilities to the passengers who have  

boarded the plane,  in the event of delay in departure,  as such failure would  

amount to deficiency in service. At the relevant point of time (14th December  

2007), in the event of delay, passengers on-board were to be provided by the air  

carriers,  including  low cost  carriers,  facilitation  by  way  of  snacks/water/tea  

apart from access to toilet. [Note: The facilitation requirement was subsequently  

revised  and  upgraded  with  effect  from  15.8.2010  as  “adequate  meals  and  

refreshments” due during the waiting period].  

29. We may at this juncture refer to the decision of this Court in  Ravneet   

Singh Bagga vs. KLM Royal Dutch Airlines  – 2000 (1) SCC 66, wherein the  

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distinction between a deficiency in service and negligence is brought out. This  

Court held:  

“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 willful fault, imperfection,  shortcoming or inadequacy in the service of the respondent. The deficiency in  service has to be distinguished from the tortuous 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…... 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 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 bonafide, rashness, haste or  omission  and  the  like  may  be  the  factors  to  ascertain  the  deficiency  in  rendering the service.”

Effect of IndiGo Conditions of Carriage on the liability for facilitation  

30. The  next  question  is  whether  the  exclusion  clause  in  the  IndiGo  

Conditions of Carriage can absolve liability to provide facilitation to passengers  

affected by delay. The relevant clause in the Indigo conditions of carriage is  

extracted below :  

“Flight Delays, Reschedule or Cancellations

IndiGo reserves the right to cancel, reschedule or delay the commencement or  continuance of a flight or to alter the stopping place or to deviate from the  

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route of the journey or to change the type of aircraft in use without incurring  any liability in damages or otherwise to the Customers or any other person  whatsoever. Sometimes circumstances beyond IndiGo’s control result in flight  delays,  reschedule or cancellations.  In such circumstances,  IndiGo reserves  the  right  to  cancel,  reschedule  or  delay  a  flight  without  prior  notice. Circumstances  beyond  IndiGo’s  control  can  include,  without  limitation, weather; air traffic control; mechanical failures; acts of terrorism;  acts  of  nature;  force  majeure;  strikes;  riots;  wars;  hostilities;  disturbances;  governmental  regulations,  orders,  demands  or  requirements;  shortages  of  critical  manpower,  parts  or  materials;  labour  unrest;  etc. IndiGo  does  not  connect  to  other  airlines  and is  not  responsible  for any losses  incurred by  Customers  while  trying  to  connect  to  or  from  other  airlines.

If an IndiGo flight is cancelled,  rescheduled or delayed for more than  two/three hours (depending on the length of  the journey),  a Customer  shall have to right to choose a refund; or a credit for future travel on  IndiGo; or re-booking onto an alternative IndiGo flight at no additional  cost subject to availability.  

x x x x x x x x x

Please note that in the event of flight delay, reschedule or cancellation,  IndiGo does not provide compensation for travel on other airlines, meals,  lodging or ground transportation.”

(emphasis supplied)   

31. The said exclusion clause no doubt states that in the event of flight delay,  

IndiGo would not provide any “meals”.  But it  can apply to passengers who  

have not boarded the flight and who have the freedom to purchase food in the  

airport or the freedom to leave. It will not apply to passengers who are on board  

and the delay in the flight taking off, denies them access to food and water. In  

the  extra-ordinary  situation  where  the  passengers  are  physically  under  the  

complete care and control of the airline, as it happens when they have boarded  

the aircraft  and have no freedom to alight from the aircraft,  the duty of the  

airlines to protect and care for them, and provide for basic facilitation would  

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prevail over any term of the contract excluding any facilitation (except where  

the carrier itself  cannot access food due to emergency situations).  No public  

utility service can say that it is not bound to care for the health, welfare and  

safety of the passengers because it is a low cost carrier. At all events, the said  

clause in question stood superseded, in so far as flights taking off from IGI  

Airport, Delhi, having regard to the guidelines relating to Aircraft operations  

during low visibility conditions at IGI Airport,  Delhi, which provide that all  

airlines  including  low  cost  carriers  shall  provide  facilitation  in  terms  of  

tea/water/snacks to the passengers of delayed flights. (The DGCA directives in  

force from 15.8.2010 clearly provide that passengers shall be offered free of  

cost  meals  and refreshment  in  relation  to  the  waiting time).  What  we have  

stated above is with reference to the passengers on board, in delayed flights  

which have not taken off. Subject to any directives of DGCA to the contrary,  

the exclusion clause will be binding in normal conditions, that is, during the  

flight  period,  once  the  flight  has taken off,  or  where  the  passenger  has  not  

boarded.

What was the period of delay?

32. The respondent’s complaint is about the inordinate delay of eleven hours  

after  boarding.  The  question  is  whether  there  was  a  delay  of  nearly  eleven  

hours,  as  contended  by  the  respondent.  It  is  true  that  the  respondent  was  

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confined to the aircraft for nearly eleven hours on account of the delay. But a  

careful examination of the facts will show that the delay in a sense was not of  

11 hours (from 5.35 a.m. to 4.37 p.m). The respondent first took flight No.6E-

301 which was scheduled to depart at 6.15 a.m. and boarded that flight at 5.45  

a.m. When that flight was unduly delayed on account of the bad weather around  

11.15 a.m. the said flight was cancelled and was combined with subsequent  

flight  No.6E-305  due  to  depart  at  12.15  p.m.  When  flight  No.6E-301  was  

cancelled all its passengers were given the option of refund of the fare or credit  

for future travel or re-booking on to an alternative Indigo flight. Because the  

delayed flight was combined with the subsequent flight and the same aircraft  

was to be used for the subsequent flight that was to take off at 12.15 p.m., the  

respondent and some others, instead of opting for refund of the air fare or re-

booking on a subsequent flight, opted to continue to be in the aircraft and took  

the combined flight which was scheduled to depart  at  12.15 p.m. subject  to  

ATC clearance.  In so far as flight  No.6E-301 is  concerned,  after  a delay of  

about five hours it was cancelled and the passengers could have left the aircraft  

as many did. If the respondent continued to sit in the aircraft, it was because of  

his voluntary decision to take the later flight which was a combination of flight  

No.6E-301 and 6E-305 which was due to depart at 12.15 p.m. (subject to ATC  

clearance) and that was delayed till 4.37 p.m. Therefore the delay in regard to  

the combined flight which was due for departure at 12.15 p.m. was four hours  

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and twenty minutes.  

    33. The respondent  was  offered the  choice of  refund of  fare,  credit  for  a  

future travel on IndiGo or rebooking in a subsequent IndiGo flight. The third  

option was further extended by giving the option to remain on board by taking  

the  subsequent  combined  flight  using  the  same  aircraft  subject  to  ATC’s  

clearance. The respondent consciously opted for the third choice of continuing  

in the combined flight and remained in the aircraft. Therefore, the stay of eleven  

hours in the aircraft was a voluntary decision of the respondent, as he could  

have left the aircraft much earlier around 11.00 a.m. by either opting to obtain  

refund of the air fare or by opting for credit for future travel or by opting for an  

IndiGo  flight  on  a  subsequent  day.  Having  opted  to  remain  on  board  the  

respondent could not make a grievance of the delay, or non-availability of food  

of his choice or medicines.   

Whether the airline failed to provide facilitation to respondent?

34. It is not in dispute that during the initial period of delay, when it was not  

known  that  there  would  be  considerable  delay,  the  respondent  purchased  a  

sandwich  in  the  normal  course.  When  flight  No.6E-301  was  cancelled  and  

combined  with  the  subsequent  flight  No.6E-305,  the  on-board  passengers  

including respondent who opted to continue in the flight were offered snacks  

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(sandwiches) and water free of cost, around 12 noon. As the combined flight  

(No.6E-305) was also delayed, a second free offer of sandwiches and water was  

made around 3 p.m. But the second time, what was offered to respondent was a  

chicken sandwich and as the respondent who was a vegetarian refused it, he  

was offered biscuits and water, instead. It is not the case of the respondent that  

toilet  facilities were denied or not made available.  In the circumstances,  the  

appellant  being  a  low  cost  carrier,  the  facilitations  offered  by  it,  were  

reasonable and also met the minimum facilitation as per the DGCA guidelines  

applicable at the relevant point of time.

35. In the absence of prior intimation about the preference in regard to food  

and in  emergency conditions,  the  non-offer  of  a  vegetarian  sandwich in  the  

second round of free snacks cannot be considered to be a violation of basic  

facilitation.  While the dietary habits or religious sentiments of passengers in  

regard to food are to be respected and an effort should be made to the extent  

possible to cater to it, in emergency situations, non-offer of the preferred diet  

could not be said to be denial of facilitation, particularly when the airline had no  

notice of passengers’ preference in food. In fact, the appellant being a low cost  

carrier, there was also no occasion for indicating such preferences. We however  

note  that  in  the  subsequent  DGCA guidelines  which  came into  effect  from  

15.8.2010, the facilitation to be provided has been appropriately upgraded by  

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directing  that  the  delayed  passengers  are  to  be  provided  with  meals  and  

refreshment as and when due depending upon the period of delay.  

36. There is nothing to show that respondent requested for any treatment or  

medicines during the period when he was on board. He had also not notified the  

Airlines  that  he  was  a  patient  suffering  from  an  ailment  which  required  

medication or treatment. Therefore, the respondent could not expect any special  

facilitation, even if his condition would have added to his physical discomfort  

on account of delay.  

Whether  respondent  is  entitled  to  compensation  for  detention  at  Hyderabad?

37. The next question that arises for consideration is whether the appellant is  

liable to compensate the respondent for the detention for nearly one and half  

hours  after  disembarkation  at  Hyderabad.  The  appellant’s  version  is  that  

respondent  started  abusing  and  misbehaving  with  the  crew  members  using  

vulgar and threatening language, that he threw the biscuits offered on a crew  

member,  that  he  was  detained  for  the  purpose  of  enquiry  by  the  Assistant  

Manager of the appellant at Hyderabad on the complaint of the crew members,  

but to avoid unnecessary complications and good customer relations, the crew  

members decided not to give written complaint and therefore he was permitted  

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to leave after some time. The respondent’s version is that the complaint by the  

crew was false and this was proved by the fact that they did not give a written  

complaint.  There is  no evidence as  to what transpired and the two versions  

remained  unsubstantiated.  But  the  undisputed  facts  show  he  was  asked  to  

remain in view of a complaint  by the crew, that  CSIF personnel  stated that  

unless there was written complaint, no action could be taken, that the crew did  

not  give  written  complaint  and the  respondent  was  permitted  to  leave  after  

about an hour of disembarkation. On the facts and circumstances this cannot be  

termed to be unnecessary or deliberate harassment by the airlines. While the  

airlines ought to have been sensitive to the travails of the passengers who were  

cooped up in the aircraft for more than thirteen hours without adequate food or  

other facilities,  the airlines also could not ignore any complaint by the crew  

about any unruly behaviour of any passenger. Be that as it may. In this case  

neither the Permanent Lok Adalat, nor the High Court has recorded any finding  

of wrongful or vexatious detention or harassment.  Therefore the question of  

awarding compensation under this head also does not arise.

Whether the appellant is liable to pay damages?

38. The Permanent Lok Adalat has held that when there was an inordinate  

delay after completion of boarding, the airlines had a moral duty, irrespective of  

rules  and  regulations,  to  take  back  the  passengers  to  the  airport  lounge  by  

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obtaining necessary approvals from the airport/ATC authorities and keep the  

passengers in the lounge till the clearance for the flight to take off was given  

and failure to do so was an unexcusable and unbecoming behaviour on the part  

of  the  airline.  We  agree  that  the  carrier  should  take  steps  to  secure  the  

permission of the Airport and ATC authorities to take back the passengers who  

had already boarded to the airport lounge when there was an inordinate delay.  

But the assumption that the rules and regulations had to be ignored or without  

the consent and permission of the airport and ATC authorities, the airline crew  

ought to have taken back the passengers to the airport lounge, is not sound. The  

admitted position in this case is that the airlines made efforts in that behalf, but  

permission was not granted to the airlines to send back the passengers to the  

airport lounge, in view of the heavy congestion in the airport. The airport and  

the ATC authorities are not parties to the proceedings. If permission was not  

granted for the passengers to be taken to the airport lounge, the airlines cannot  

be  found  fault  with.  Therefore,  the  observation  that  failure  to  take  the  

passengers to the airport lounge was unexcusable and unbecoming behaviour on  

the part of the airlines, was not warranted on the facts and circumstances of the  

case.  

39. The High Court has justified the award of damages on the ground that as  

appellant did not operate IndiGo flight No.6E-301 as per schedule and caused  

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inconvenience  to  a  passenger  who  is  a  diabetic  patient,  he  was  entitled  to  

nominal  damages  for  deficiency  in  service.  Where  the  delay  is  for  reasons  

beyond the control of the airlines as in this case due to bad weather and want of  

clearance from ATC, in the absence of proof of negligence or deficiency in  

service the airlines cannot be held responsible for the inconvenience caused to  

the passengers on account of the delay. The justification for damages given by  

the High Court does not find support either on facts or in law.

Conclusion  

40. There  can  be  no  doubt  that  the  respondent,  like  any  other  passenger  

forced to sit in a narrow seat for eleven hours, underwent considerable physical  

hardship and agony on account of the delay. But, it was not as a consequence of  

any deficiency in service, negligence or want of facilitation by the appellant.  

Consumer fora and Permanent Lok Adalats can not award compensation merely  

because there was inconvenience or hardship or on grounds of sympathy. What  

is relevant is whether there was any cause of action for claiming damages, that  

is  whether  there  was  any  deficiency  in  service  or  whether  there  was  any  

negligence in providing facilitation. If the delay was due to reasons beyond the  

control of the airline and if the appellant and its crew have acted reasonably and  

in a bona fide manner, the appellant cannot be made liable to pay damages even  

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if there has been some inconvenience or hardship to a passenger on account of  

the delay.  

41. If a flight had remained on tarmac without taking off, for eleven hours,  

after  boarding  was  completed,  and  if  permission  was  refused  to  send  the  

passengers to the Airport lounge, the Airport and ATC authorities have to be  

blamed for requiring the passengers to stay on board. Normally if the aircraft  

has remained on tarmac for more  than two or  three  hours  after  boarding is  

closed, without the flight taking off, the passengers should be permitted to get  

back to the airport lounge to get facilitation service from the airline. Whenever  

there is such delay beyond a reasonable period (say three hours), the passengers  

on  board  should  be  permitted  to  get  back  to  the  airport  lounge.  If  for  any  

unforeseen  reason,  the  passengers  are  required  to  be  on  board  for  a  period  

beyond three hours or more, without the flight taking off, appropriate provision  

for food and water should be made, apart from providing access to the toilets.  

Congestion in the airport on account of the delayed and cancelled flights can  

not be a ground to prevent the passengers on board from returning to the airport  

lounge  when  there  is  a  delay  of  more  than  two  hours  after  completion  of  

boarding. While the guidelines issued by the DGCA cover the responsibilities  

of the airlines, DGCA and other concerned authorities should also specify the  

responsibilities of the airport and the ATC authorities to ensure that no aircraft  

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remains on tarmac for more than three hours after the boarding is closed and  

that if it has to so remain, then permit the passengers to return to the airport  

lounge from the aircraft, till the aircraft is ready to take off. DGCA shall also  

ensure that the conditions of carriage of all airlines in India is in consonance  

with its Civil Aviation Directives.  

42. In  view  of  our  findings,  this  appeal  is  allowed.  The  order  of  the  

Permanent Lok Adalat affirmed by the High Court awarding damages and costs  

to  the  respondent  is  set  aside  and  the  application  of  respondent  for  

compensation  is  rejected.  We  place  on  record,  our  appreciation  for  the  

assistance rendered by Shri V. Giri, senior counsel, as amicus curiae.  

..………………………J. (R V Raveendran)

New Delhi;       ……………………….J. July 4, 2011.   (A K Patnaik)

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