Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short the “Act”) is to the order dated 22.02.2018 passed by the Tripura State Consumer Disputes Redressal Commission, Agartala (for short “the State Commission.”)  in FA No. 53 of 2017, preferred by the Complainants and FA No. 61 of 2017, preferred by the Opposite Party Airlines.  

2.       By the impugned order, the State Commission has dismissed the Appeal preferred by Indigo Airlines and partly allowed the Appeal preferred by the Complainant. 

          Briefly put, it was averred in the Complaint that Complainant Nos. 1,2, 3 & 4 are family members and were returning from Kolkata to Agartala through Opposite Party Airlines (hereinafter referred to as “Indigo Airlines”) and purchased air tickets vide PNR No. IHRNSE.  It was  stated that the subject flight i.e. Flight No. 6E 861 was scheduled to depart on 08.01.2017, at 8.45 a.m. and that all the Complainants reported before the Indigo Airlines Counter at Kolkata Airport on 08.01.2017 and after observing all the formalities, the Airlines issued boarding passes in favour of all the Complainants.  It was pleaded that the Airlines left all the Complainants at Kolkata Airport without informing them despite all the Complainants being in the Airport premises.  A Written Complaint was lodged by Complainants No. 1 and 2 at Indigo Office at Kolkata Airport but the office staff as well as the Airport staff at their counter, did not accept the Complaint Application and forcibly snatched away their boarding passes and further did not pay heed to their request for making alternate arrangements for their flight to Agartala.  The Complainants were forced to return from Kolkata Airport as they did not have sufficient money to purchase fresh tickets and stayed in a hotel room and arranged money for purchasing new air tickets to return to Agartala.

3.       It was averred that the Complainants paid an amount of ₹4,500/- per day for accommodation, ₹3,000/- per day for meals and had to stay at Kolkata on 08.01.2017 and on 09.01.2017 and only on 10.01.2017  the Complainants were able to purchase new tickets vide PNR No. JBHHGW and left to Agartala by Indigo Airlines 6E 861 on 10.01.2017.  It  was stated that the first and second Complainants are Engineers and Government Employees of Tripura and could not attend to their office on 09.01.2017 and on 10.01.2017 for which two days salary was also deducted and that the first and second Complainants were getting salary of ₹1088/- and ₹2081/- per day respectively and the third and fourth Complainants, who are students, could not attend to their respective schools which led to a lot of mental harassment and inconvenience to the Complainants, for which, the Complainants are claiming  compensation. Complainants issued a legal notice dated 28.01.2017 to the Indigo Airlines but received no reply.  Hence the Complainants approached the District Forum seeking directions to Indigo Airlines to pay ₹16,432/- for air tickets; ₹6338/- for two days salary of the first and second Complainants; ₹20,000/- for loss of three days studies of the third and fourth Complainants; ₹15,000/-  for cost of the two days hotel charges and  ₹2,00,000/- towards mental agony, ₹1,00,000/- towards compensation and ₹20,000/- towards costs  along with interest and other reliefs.

4.       Indigo Airlines resisted the Complaint denying all the allegations made in the Complaint but admitted the issuance of the tickets and the boarding passes.  It was averred that the booking under consideration made by the Complainants were governed by ‘Indigo Conditions of Carriage-Domestic’ (hereinafter referred to as “Conditions of Carriage”).  The Conditions of Carriage constitute a binding contractual agreement between the Complainant and the Opposite Party for Air Carriage as has been held in Civil Appeal No. 4925 of 2011, M/s Interglobe Aviation Ltd. Vs. N. Satchidanand, (2011) 7 SCC 463.  As per Article 8.1 of the Conditions of Carriage, passengers travelling with Indigo Airlines are strongly advised to arrive at the check-in counter at least two hours prior to the scheduled time of departure of their flight.  Therefore, the Complainants were advised to arrive at the check-in counter two hours prior to the scheduled time which was 8.45 a.m. and the Complainants reported at the Check-in only at 8.28 a.m. despite the fact that the Indigo Airlines reserves the right to cancel the booking, purely as a service gesture, issued the Complainants their respective boarding passes.  As per Articles 8.2 and 8.3 of the Conditions of Carriage, the Complainants were further obligated to report to the boarding gate no later than the time specified by the Indigo Airlines during check-in or through any subsequent announcements made at the airport and in any case, at least 25 minutes prior to the scheduled departure time of the flight. Any customer failing to report at the boarding gate within the afore-noted time-line schedule are treated as ‘Gate No Show’ and the ticket amount is forfeited by the airlines.  It was averred that the Complainants did not report at the boarding gate before its closure and therefore, were treated as ‘Gate No Show’ in accordance with the Conditions of Carriage.    As a practice, Indigo Airlines offered to accommodate the passengers on the next flight subject to availability of seats and the payment of re-accommodation fees and change fess in accordance with the Conditions of Carriage but for reasons best known to the Complainants, this offer was not accepted by the Complainants.  Thereafter, the Complainants made a separate booking on the same day i.e. 10.01.2017 for a total sum of ₹16,432/-. As per the terms and conditions of refunds contained in the Conditions of Carriage,  it is only upon the failure of the Opposite Party to provide carriage in accordance with the Conditions of Carriage, or on the voluntary request of a passenger to change his arrangements on a flight that the Opposite Party may refund an unused booking or portion thereof in accordance with the Conditions of Carriage. In the instant case there was no breach of the conditions on the part of the Airlines as the Complainants decided to travel on 10.01.17.  Hence it was pleaded that there is no deficiency of service on their behalf. 

5.       The District Forum based on the evidence adduced partly allowed the Complaint directing Indigo Airlines to pay ₹16,432/- which is the cost of tickets incurred by the Complainant, hotel expenses of ₹10,000/-,  ₹10,000/- towards compensation and ₹5,000/- towards costs. 

6.       Aggrieved by the said order, both the Complainant and Indigo Airlines preferred Appeals bearing No. A.53.2017 and A.61.2017 respectively before the State Commission.  The State Commission while concurring with the finding of deficiency of service and partly allowing the Complainants’ Appeal, enhanced the compensation to be paid by Indigo Airlines from ₹10,000/- to ₹20,000/- while confirming the rest of the order of the District Forum. 

7.       The State Commission while holding that there was deficiency of service observed as follows:-

          “There is no doubt that a passenger is bound by the terms and contract of carriage, but here in the instant case, question is not regarding the terms and contract of carriage, but to inadequate help and harassment of the complainants.  Admittedly, they collected their boarding passes as issued by the opposite parties-IndiGo well ahead of the boarding time and thereafter the opposite party took away the boarding pass from them and returned their luggage though booked by them at the time of check-in without any reason.  More so, mere filing of the written statement/reply by way of affidavit of the opposite parties cannot be considered as evidence.  Pleading has to be proved by way of adducing evidence.  Admittedly in the instant case, the opposite parties IndiGo did not examine any witness.  The terms and conditions which were annexed with the reply were also neither proved by the opposite parties nor exhibited.  Therefore, it is very difficult to accept the contention of the opposite parties IndiGo Authorities that there were repeated announcement made for the benefit of the complainants.  For the argument sake, even if it is admitted that the complainants were delayed in check-in, then the question arises as to why the opposite parties allowed them for check-in and issued them boarding passes and subsequently took away the same.  In Dr. Bikas Roy (supra) this Commission held that “………After issuance of boarding pass it is the duty of the airlines authority like opposite parties to help the passengers so that they can board the flight in time on completion of the security check-up.”.  In the instant case, the opposite parties Indigo Airlines admittedly issued the boarding passes and the complainants handed over their luggage to the IndiGo Authority for the scheduled flight, but the opposite parties IndiGo Authority subsequently returned the luggage and also took away the boarding passes, as a result of which, the complainants were in a helpless condition at Kolkata Airport and they had to stay two days in the hotel with their minor children.  We hope and trust that after issuance of the boarding pass when the passengers enter into the security enclosure, the Airlines Authority should help the passengers so that they can board in the scheduled aircraft after completion of the security measures in time.”

8.          Ld. Counsel for the Revision Petitioner vehemently contended that the Airport Manager has stated that there were many announcements at regular intervals and that the Indigo Airlines is not responsible if the passengers did not report at the gate on time.

9.       On a pointed query from the Bench as to whether there was any specific averment in the written version to the effect that boarding to the Complainants was cancelled after “making several announcements”, in order to locate them, as the onus of proof is on the Airline, The Associate Director, AOCS of InterGlobe Aviation Ltd. filed an Affidavit dated 20.07.2018 stating that before closing the boarding gate and the departure of any flight several announcements are made at regular intervals and that the names of the passengers who do not report to the boarding gate are also called out.  It was specifically stated in the Affidavit that there are no records available with the Petitioners of such announcements being made in as much as the equipment used for making announcements is stationed at the relevant boarding gate which is under the exclusive control of Airport Authority of India.  It is evident from the afore-noted Affidavit that there is no documentary evidence to substantiate the contention of the Revision Petitioner that repeated announcements were made in the name of the passengers or that any effort was made to get the relevant evidence from Airport Authority of India. Hence it is held that the Airlines did not discharge this onus. Once the passengers checked in, their movements are restricted to a very limited sensitised area and it is beyond anybody’s comprehension not to report at the gate and hence the assertion that the announcements were made does not hold any water.    More so, when it is not a silent Airport, we are of the considered view that announcements should be made at least in the sensitised waiting area.  When the boarding passes had already been issued, on a pointed query, as to why the Airlines did not make any effort to make a phone call to the Complainants as it was a family of four members, specially when the Airlines specifically asks for a contact number at the time of booking of the tickets, the Ld. Counsel fairly admitted that he has no instructions regarding any phone call having been made to the Complainants.  It is relevant to note that a family of four were left behind after issuance of boarding passes.   The Revision Petitioner is relying on Clause 8.1. which pertains to check-in 2 hours prior to the departure of the flight. In the instant case admittedly boarding passes were already issued to the Complainants.  Therefore, placing reliance on this clause is irrelevant.  It is pertinent to mention that the boarding passes were taken by the Airlines and the same have not been filed here.

10.     Be that as it may, in Clause 8.2 of Conditions of Carriage Passenger & Baggage, Indigo Airlines, under cancellation, change of schedule etc., it is clearly stated that that customers who have not provided valid contact information at the time of booking may not be entitled for any compensation. Additionally, in their terms and conditions of booking of a ticket, in their website, it is clearly given as follows:-

“Is it necessary to provide my mobile phone number while booking a flight on IndiGo?

IndiGo’s preferred method of contact is via mobile phone and it is mandatory to provide your mobile number at the time of flight booking (https://www.goindigo.in/). Customers can provide a residence or business phone number and valid e-mail ID as additional contact information.  Providing IndiGo with your best contact number(s) will help us make contacting you easier.” (Emphasis supplied).

  From the afore-noted conditions specified in their own website it is clear that a contact number has to be given to the Airlines at the time of flight booking.  Therefore, it is not understood as to why there is complete silence on behalf of the Revision Petitioner regarding the availability of the contact number of anyone of the family members and the reasons as to why there was no call made.  In these circumstances placing reliance on Clause 8.2. with respect to boarding is also untenable as it is a specific pleading of the Complainants that they were all within the airport premises and still did not board as no specific announcement was made or any effort extended to inform them.

11.     It is also relevant to mention herein that M/s Indigo Airlines in  paragraph 4 of their written version have stated that they had offered re-accommodation to the passengers on the next flight subject to availability of seats and the payment of re-accommodation fees and change fees in accordance with the Conditions of Carriage and that the offer was not accepted by the Complainants as they were unwilling to pay the applicable charges for re-accommodation. The exact charges or the re-accommodation fees have not been stated in the pleadings nor any documentary evidence was filed to prove that such an offer was indeed made, specially in the light of the contention of the Complainant that the Airlines never made any offer to accommodate them in the next airline or offered them any food/refreshment or hotel stay. 

12.     The basic duty of care for a passenger who has been left behind despite issuance of the boarding passes, when admittedly boarding passes were issued well ahead of the boarding time and the baggage was also boarded on to the Airlines, is to provide meals and refreshments, hotel accommodation in cases where stay of one more night is necessary and the operating carrier should also pay particular attention to the needs of the accompanying family.  In the case of Denise McDonagh vs. Ryanair Ltd.  C 12/11 European Case Law if an Airline fails to provide care and assistance a passenger can claim refund of the expenses incurred in purchasing their own meals, hotel accommodation etc.  In the European Commission Interpretative Guidelines regarding ‘concept of right to care’ it has been clearly stated that the extent of adequate care will have to be assessed on a case to case basis having due regard to the needs of the passengers in the relevant circumstances and the principle of proportionality.  The price paid for the ticket or temporality of the inconvenience suffered should not interfere with the right to care. 

13.     M/s Indigo Airlines ought to have provided appropriate care in order to reduce the inconvenience suffered by the passengers as much as possible, while determining the principle of proportionality.  Particular attention ought to have been given as it was a family of four.  At the cost of repetition, the contention of the Counsel that the re-accommodation was offered on payment basis is totally unsustainable in the light of the fact that there is absolutely no evidence on record to establish what the actual charges of re-accommodation and change fees were.  There is a specific pleading in the Complaint that there was absolutely no offer made by the Airlines and also that the Complainants were forced to purchase tickets from Kolkata to Agartala on 10.01.2017 from the same Indigo Airlines (6E661) by spending an amount of ₹16,432/-.  The callous attitude of the Airline in not even accommodating them with some ­­­­­­special fare in the next flight, which was their own Airline, is deprecated.  Since the duty of care was not taken by the Airline even though it should have been, and the Complainants had to pay for their meals, refreshments, hotel stay, transport etc. and also pay for tickets of the next flights, we are of the considered view that they are entitled to reimbursement of the expenses incurred from Indigo Airlines as what they have claimed is reasonable and appropriate. It is significant to mention that DGCA while specifying the facilities to be provided to passengers by Airlines due to denied boarding, cancellation of flights and delays in flights’ vide circular dated 01.08.2016 has laid down the requirements & procedures regarding refunds and mode of compensation. Additionally, the peculiar facts of the instant case are briefly detailed as hereunder:-

• The Airlines has also not furnished evidence from its record showing the time when the boarding passes were issued to the passengers and when the same were cancelled.

• When the Airline can produce the print-out of screenshot taken on 18.04.2017 about the “no show” in respect of the Complainants they could have also produced the details of the boarding passes issued to the Complainants on 8.1.2017.

• The Airline is silent about the list of passengers who were actually issued boarding passes and that of those who actually travelled.

• The boarding passes were issued by the Airlines after check-in and not a print out taken by the passengers at home and therefore the boarding passes issued by the Airline carries significant weightage and the Airline should have taken care to see that the passengers boarded the plane specially when the baggage was also checked in. Further, the attitude of the Airline in snatching away the boarding pass is deprecated.

The afore-stated peculiar facts and circumstances of the case in hand cannot be put in any such straight-jacket formula.  However, keeping in view the requirements specified in DGCA Guidelines, broadly speaking, in effect, it can be construed to be within the ambit of ‘Denied Boarding’, which warrants providing of meals/refreshments, hotel accommodation and/or accommodation in another flight.   In Finnair Vs. Lassooy C-22/11 European Case Law in fact such cases were also treated as ‘Denied Boarding.’ It was stated that the concept of ‘Denied Boarding’ must be interpreted as relating not only to cases where boarding is denied because of over-booking but also to those where boarding is denied on other grounds.   

14.     It is significant to mention that apart from not only forcibly taking the boarding passes from the Complainants, no effort was made by the Airline to compensate them by arranging for their travel in the next scheduled flight to Agartala.  It is not in dispute that the Complainants were put to lot of mental agony and inconvenience as they had to stay in a hotel for two days and once again travelled by  Indigo Airlines after two days on 10.01.17 after having had to purchase fresh tickets by spending an amount of ₹16,432/-.  Even when the Complainants chose to fly again by Indigo Airlines after two days there was no concession made by way of compensating for the inconvenience caused to the Complainants specially in the light of the fact that there is complete silence regarding the call to be made to the Complainants.

15.     The Complainants were in a hopeless condition stranded at Kolkata airport where they had to stay for two days in a hotel with minor children and the amounts awarded by the Fora below are fairly reasonable and do not warrant any interference. It is even more relevant to note that though both the Fora below gave a concurrent finding of deficiency of service and the State Commission increased the compensation amount from a meagre ₹10,000/- to ₹20,000/-, Indigo Airlines has chosen to challenge the order by way of  this Revision Petition for such a meagre compensation even when the Bench requested the Counsel to take instructions whether they were willing to settle the matter.  We see no grounds to interfere with the well-reasoned orders of both the Fora below and keeping in view our limited revisional jurisdiction as envisaged by Hon’ble Apex Court in Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd.  (2011) 11 SCC 269, we dismiss these Revision Petitions with costs of ₹20,000/- to be paid to the Complainants before the executing Court.