Pallav Mongia vs Union Of India & Anr
2018 Latest Caselaw 788 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) 12006/2015 & C.M. No. 31848/2015

        PALLAV MONGIA                            ..... Petitioner
                    Through Mr Ashish Virmani, Mr Pankaj Singh,
                    Mr Sabyasachi Bhandari, Advocates along with
                    petitioner in person.
                    versus

        UNION OF INDIA & ANR                             ..... Respondents

                          Through Mr Anurag Ahluwalia, CGSC with
                          Mr Rohit Thakur, Deputy Director,
                          Mr Deevyendra Ameta, Asst. Director, for UOI.
                          Mr Simranjeet Singh, Ms Gunjan Sinha
                          Jain, Advocates for Respondent No. 2/Air India.

        CORAM:
        HON'BLE MR. JUSTICE VIBHU BAKHRU
                     ORDER

        %            02.02.2018
VIBHU BAKHRU, J

1. The petitioner has filed the present petition, inter alia, impugning paragraph 3.2 of the Civil Aviation Requirement dated 06.08.2010 (hereafter „the impugned CAR‟) issued by respondent no.3 (Director General of Civil Aviation - hereafter „DGCA‟).

2. The petitioner claims that he was scheduled to travel from Delhi to Patna on 12.12.2015 and was due to return on 13.12.2015. He, accordingly, booked tickets with respondent no.2 (Air India) well in advance on 28.10.2015. The petitioner claims that he reached the airport on time on

12.12.2015 but was denied boarding by Air India on account of overbooking of flights. Thus, despite having confirmed tickets, the petitioner could not travel to Patna as scheduled.

3. The petitioner claims that paragraph 3.2 of the impugned CAR permits overbooking of flights which, according to the petitioner, cannot be permitted.

4. Before proceeding further, it is relevant to refer to paragraph 3.2 and 3.5 of the impugned CAR which read as under:-

"3.2 Denied Boarding 3.2.1 When the number of passengers, who have been given confirmed bookings for travel on the flight and who have reported for the flight well within the specified time ahead of the departure of the flight, are more than the number of seats available, an airline must first ask for volunteers to give up their seats so as to make seats available for other booked passengers to travel on the flight, in exchange of such benefits/facilities as the airline, at its own discretion, may wish to offer, provided airports concerned have dedicated check-in- facilities/gate areas which make it practical for the airline to do so.

3.2.2 If the boarding is denied to passengers against their will, the airline shall as soon as practicable compensate them in accordance with the provisions of Para 3.5 in addition to refund of air ticket.

3.2.3 Airlines overbook their scheduled flights to a limited extent in order to reduce the possibility of flights departing with unoccupied or empty seats because of „No shows‟ by booked passengers i.e. passengers who do not report for travel despite firm bookings before the time limit stipulated by the airline. Under the provisions of this CAR, airlines shall be liable to pay compensation

to passengers who are denied boarding. Hence, in order to minimize „No Shows‟, the airlines will be allowed to levy appropriate „No Show‟ penalties in relation to the Fare as defined under rule 135 of the Aircraft Rules 1937. This penalty will be deducted from the Fare paid by the passenger.

3.5 Compensation 3.5.1 The financial compensation indicated below shall be given only if the amount of tickets costs is higher than the compensation amount:

a) Rs. 2,000/- or the value of the ticket whichever is less for flights having a block time of upto and including one hour

b) Rs.3,000/- or the value of the ticket whichever is les for flights having block time of more than one hour and upto and including two hours.

c) Rs. 4,000/- or the value of the ticket whichever is less forflights having a block time of more than two hours. If the cost of the ticket is less than the amount of compensation indicated above, the airline will be liable to compensate an amount equivalent to the ticket cost in addition to refund of air ticket.

3.5.2 The compensation referred to in Para 3.5.1 shall be paid in cash, by bank transfer or with the signed agreement of the passenger in the form of travel vouchers, in accordance with CAR Section 3, Series M, Par II. 3.5.3 Additionally, the passenger shall be offered the choice between the following:

a) Refund of air ticket at the price it was purchased.

                 b)      A flight to the first point of departure.
                 c)      Alternate transportation under comparable/alternate

mode of transport (whenever applicable), tothe final destination.

d) Alternate transportation under comparable/alternate mode of transport (whenever applicable), to their final destination at a later date at the passengers' convenience, subject to availability of seals. 3.5.4 The affected passenger shall be offered compensation alternatives listed in Para 3.5.1 and Para 2.5.3 above and once the option has been selected the affected passenger will not have the option to switch to another form compensation.

3.5.5 In case of foreign carriers, the amount of compensation paid to the passengers shall be as contained in the regulations of their country of origin or as given in para 3.5.1 of this CAR, whichever is higher."

5. A plain reading of paragraph 3.2 indicates that the DGCA has recognized that certain airlines follow the practice of overbooking flights; however, the same cannot be read to mean that the DGCA has permitted the airlines to do so. And, it certainly cannot mean that such practice has the sanction of law.

6. Mr Ahluwalia, the learned counsel appearing for the DGCA also confirms that the petitioner has completely misread the impugned CAR to mean that the DGCA has countenanced such practice. He submits that the DGCA had issued the impugned CAR, inter alia, to ensure that the passengers, who are denied boarding, are paid immediate compensation and necessary arrangements for their travel are made by the concerned airline. He clarified that this did not mean that the DGCA had permitted the airlines to adopt the said practices.

7. Mr Virmani, the learned counsel appearing for the petitioner further contended that the compensation payable to the passengers who are denied boarding despite holding confirmed bookings, has been restricted by the

impugned CAR. According to him, this is without jurisdiction. He contended that the DGCA has no power to issue directions restricting the compensation payable to such passengers. In this regard, Mr Ahluwalia clarified that the impugned CAR could in no manner be read so as to cap the liability of various airlines. He stated that the direction to pay compensation as provided under the impugned CAR was for the benefit of the passengers. He states that the amount of compensation as mentioned in the impugned CAR indicated only the immediate relief that the airlines were required to provide to the passengers who had been denied boarding. He stated that this did not bind the passengers in any manner and they were not precluded from taking any action to recover further compensation as available in law.

8. In view of the above stand of the DGCA, it is not necessary to examine the question whether the DGCA had the jurisdiction to issue the impugned CAR.

9. The learned counsel appearing for the Air India also submitted that the compensation payable to the passengers, who were not permitted to board the flight on account of overbooking, was not limited by the impugned CAR. He fairly conceded that not permitting a passenger holding confirmed tickets to board a flight would amount to deficiency of service. And, the passenger would have the right to seek compensation/damages for such deficiency of service. He also referred to the various decisions rendered by the National Consumer Disputes Redressal Commission, New Delhi where the Commission had granted compensation to the passengers who were denied the flight despite having confirmed booking (Jet Airways (India) Ltd. v. Varaderajan Muruga : First Appeal No. 1194/2014, decided on

02.02.2016; Radha Kinkari Kejriwal v. Jet Airways (India) Ltd. & Ors. : Revision Petition No. 2194/2013, decided on 13.02.2017; Station Manager Air India, Lengpui Airport Aizwal, Mizoram v. Dr. K. Vanlalzami D/O K. Lalthanmawia, Zebawk-Il, Lunglei : Revision Petition No. 1183/2016, decided on 17.05.2016).

10. He contended that the petitioner‟s right to claim compensation/damages was not restricted by the impugned CAR and the present petition was thus misconceived. He also stated that the petitioner had not made any claim from Air India on account of him not being permitted to travel from Delhi to Patna on 12.12.2015.

11. In view of the unequivocal stand of the DGCA and the Air India, it is not necessary to examine the question whether the DGCA had the jurisdiction to issue the impugned CAR.

12. The petitioner does not seek to press any further relief. The petition and the pending application are, accordingly, disposed of. The parties are left to bear their own costs.

VIBHU BAKHRU, J FEBRUARY 02, 2018/pkv