Sri Shyamal Gupta, Member
Present Appeal filed u/s 15 of the Consumer Protection Act, 1986 is directed against the Order dated 10-11-2014 passed by the Ld. District Forum, North 24 Parganas in C.C. No. 71/2014.by which the complaint was allowed in part.
Case of the Complainant, in short, is that on 21-06-2012, he booked an air ticket through the authorized agent of the OP for his scheduled journey on 06-09-2012 to attend a conference. Besides this, he also spent a considerable sum to book hotels at different places. The Complainant was caught by surprise when he received an SMS from the OP on 26-08-2012 intimating him about cancellation of the scheduled flight from Kolkata to Delhi. The Complainant repeatedly asked the OP to make alternative arrangement on the very same day as he was supposed to board another flight on that day from Delhi to Srinagar, but to no avail. So, he served a legal notice upon the OP through his Ld. Advocate on 31-08-2012. However, that too did not yield any positive result. Finding no other alternative, the Complainant booked another air ticket from a different airline at a much higher price. What is worse, as the said airline did not have any official tie up with the LIC authority unlike the OP, the LIC authority refused to reimburse the air fare to him Hence, the case.
In its defence, it is stated by the OP that all passengers are governed by the terms and conditions contained in the e-ticket framed in accordance with the Carriage by Air Act, 1972 and notification regarding application of the carriage. Having agreed to abide by the terms and conditions contained in the e-ticket at the time of purchasing the air ticket, the Complainant cannot dispute such clauses at this stage. Due to operational and technical reasons, the flight from Kolkata to Delhi was cancelled and due intimation in this regard was given to the Complainant to enable him make alternative arrangements. It is further claimed that the Complainant was offered alternative flight, but he refused to accept such offer and as such, booking amount was refunded to the Complainant through the booking agent. As per the ‘Terms of Carriage’, which is a contract binding upon the parties, the OP had an unequivocal and unconditional authority to cancel/delay the flight or divert its route due to bad weather or other technical defects or for further reasons beyond the power and control of the OP, for which the OP could not be made liable. Further case of the OP is that in terms of Rule 3.3.2 of the CAR (Civil Aviation Requirements), the operating airline’s liability for compensation arises only when the passengers have not been informed at least three hours in advance, about the delay or cancellation of the flight, in which they were scheduled to travel. In the present case, the Complainant was intimated about the cancellation of flight 10 days in advance vis-a-vis scheduled date of journey and as such, the OP is not liable to compensate the Complainant.
Decision with reasons
Heard both sides and perused the material on record.
The Respondent, citing different clauses contained in the e-ticket, tried hard to impress upon the fact that in terms of said clauses, it was immune to any financial liability for the cancellation of the flight. We, therefore, propose to advert on the issue first to find out whether the Respondent indeed had no liability towards the Appellant.
It is claimed by the Respondent that the scheduled flight had to be cancelled due to operational and technical reasons. Significantly, the Respondent did not spell out even briefly as to what exactly was operational and technical issues that prompted it to take such drastic step. Since such decision was taken well in advance, it is clear the mechanical/ATC/weather related issues did not fasten the Respondent’s decision. Question, therefore, invariably arises what really was the cause behind abrupt cancellation of the scheduled flight. Answer to this stymie assumes greater importance given the fact the statutory rules banked upon by the Respondents exonerates it from compensating a passenger in case of force majeure clauses only, otherwise not. We are of view, therefore, that the onus of proving the bona fide of its decision vested with the Respondent. We afraid, the claim being not proven beyond all reasonable doubt, simply by attributing the cancellation of flight to operational and technical issues, the Respondent, to our mind, cannot get away with it.
It is though claimed by the Respondent that the e-ticket is a concluded contract between the parties, contents of the stipulations of the e-ticket is binding upon the Appellant, it bears mentioning here that the e-ticket was not booked by the Appellant himself, but by the authorized agent of the Respondent. There is nothing to show that the Appellant put his signature on any document whereby he confirmed the fact that he agreed to abide by the terms and conditions governing the e-ticket. Further, no evidence/cogent documentary proof is furnished from the side of the Respondent to show that the concerned agent duly taken the Appellant into confidence about the salient features of the e-ticket.
It is more often than not seen that in order to avoid computable liability for negligent services, airline companies draft highly unfair, one-sided terms and conditions. It is done for the ostensible purpose of depriving any compensation to a hapless consumer in case of delay or cancellation of flight without appreciating the fact that such terms and conditions are totally against public policy.
The Hon’ble Supreme Court in its celebrity authority in Central Inland Water Transportation Ltd. & Anr. vs. Brojo Nath Ganguly & Anr., reported in 1986 SCR (2) 278 observed thus -
“Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. This principle is that the Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract entered into between parties who are not equal in bargaining power. The above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creating of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however, unfair unreasonable or unconscionable a clause in that contract or form or rules may be. This principle will not apply when the bargaining power of the contracting parties is equal or almost equal. this principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. The Court must judge each case on its own facts and circumstances when called upon to do so by a party under section 31(1) of the Specific Relief Act, 1963. [370 A-G] 290.
In the vast majority of cases, however, such contracts with unconscionable term are entered into by the weaker party under pressure of circumstances, generally economic, which results in inequality of bargaining power. Such contracts will not fall within the four corners of the definition of "undue influence" as defined by section 16(1) of the Indian Contract Act. The majority of such contracts are in a standard or prescribed form or consist of a set of rules. They are not contracts between individuals containing terms meant for those individuals alone. Contracts in prescribed or standard forms or which embody a set of rules as part of the contract are entered into by the party with superior bargaining power with a large number of persons who have far less bargaining power or no bargaining power at all. Such contracts which affect a large number of persons or a group or groups of persons, if they are unconscionable, unfair and unreasonable are injurious to the public interest. To say such a contract is only voidable would be to compel each person with whom the party with superior bargaining power had contracted to go to Court to have the contract adjudged voidable. This would only result in multiplicity of litigation which no Court should encourage and also would not be in public interest. Such a contract or such a clause in a contract ought, therefore, to be adjudged void under section 23 of the Indian Contract Act, as opposed to public policy. [371 C-H].
The Indian Contract Act does not define the expression "public policy" or "opposed to public policy". From the very nature of things, such expressions are incapable of precise definition. Public policy, however, is not the policy of a particular government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the courts and similarly where there has been a well-recognized head of public policy, the courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy. The principles governing public policy must be and are capable on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declares such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority, Indian Courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the Court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution. [372 A-D; 373 C-E].
The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The types of contracts to which the principle formulated in this case applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the Court. They are opposed to public policy and required to be adjudged void”.
It is the settled position of law that where there is no conscious agreement between the parties, the unilateral conditions incorporated in a document (e-ticket) will not be binding on the parties. Accordingly, only because the e-ticket contained a clause to the effect that “the company reserves to itself the right, without assigning any reason, to cancel or delay the commencement or continuance of the flight or to alter the stopping place or to deviate from the route of the journey or to change the type of aircraft in use, without thereby incurring any liability in damages or otherwise to passengers or any other person on any ground, whatsoever”, in absence of tangible proof to show that the Appellant duly apprised of such implications before issuance of the air ticket, to think that by virtue of such mere stipulations, it enjoys total immunity from incurring any financial liability it utter disregard to the fact that cancellation of flight put havoc and causes immense irreparable financial/physical/mental agony to passengers, in our consideration opinion, is nothing but an fallacious thinking for the simple reason that it violates the principles of natural justice and against public policy.
Although it is claimed by the Respondent that the Appellant accepted refund of the air fare without any protest, the copy of letter dated 06-09-2012 of the Respondent speaks otherwise. It appears from the said letter that the Respondent voluntarily refunded the price of the ticket to the account of its booking agent for onward transmission to the Appellant citing reluctance of the Appellant to avail of the alternative flight scheduled to start on the next day, i.e., on 07-09-2012.
Thus, we find that the Respondent has miserably failed to drive home its contention that such cancellation of flight was indeed beyond its control and further that it could not accommodate the Appellant to any flight of other carriers despite its sincere endeavour to do so. Legal implications apart, the Respondent has a moral/ethical responsibility towards passengers so as to ensure that because its own predicament, others do not suffer. There was no dearth of flights of other carriers to Delhi from Kolkata for that particular day. It is unbelievable that all other flights were running to their optimum capacity on that day. Therefore, had the Respondent acted in right earnest, there was no reason why it would not succeed in making alternative arrangement for the Appellant on the scheduled day itself.
It is stated by the Appellant that he suffered a loss of Rs. 25,000/- that the LIC authority did not reimburse as he did not avail of the airline of the Respondent carrier. However, no cogent documentary proof is furnished in this regard to establish the veracity of such claim. Accordingly, by not allowing this amount, to our mind, the Ld. District Forum committed no legal infirmity. It appears that the Ld. District Forum has allowed the cost of ticket amounting to Rs. 8,890/- as per demand of the Appellant which too appears to be in order. Further, in the facts and circumstances of the case, awarding a compensation amount of Rs. 5,000/- also appear to be quite justified. However, it seems that the litigation cost awarded was too conservative. Accordingly, we deem it fit and proper to enhance the litigation cost amount from Rs. 5,000/- to Rs. 10,000/-. The punitive damage awarded being too harsh, the same is also modified as under.
Thus, the Appeal stands allowed in part.
Hence,
O R D E R E D
That A/74/2015 be and the same is allowed on contest against the Respondent. The impugned order shall remain unaltered save and except that the Respondent shall pay a litigation cost of Rs. 10,000/- to the Appellant. The Respondent shall ensure strict compliance of this modified order, i.d., punitive damage in the form of simple interest @ 9% p.a. over the amount of Rs. 8,890/- shall be payable to the Appellant w.e.f.12-02-2014 till full and final payment is made.
