Indian Airlines Ltd. ... Petitioner
Vs
Dr. V.J.Philip ... Respondent

BEFORE
Hon'ble Mr. Justice V.Balakrishna Eradi, President, Hon'ble Mr. Justice S.S.Chadha, Member, Dr.(Mrs.) R.Thamarajakshi, Member, Mr. S.P.Bagla, Member, Hon'ble Mr. Justice C.L.Choudhury, Member.

S.S.Chadha, J. Member

This Revision Petition has arisen out of the Order dated 17th of April, 1995 passed by the Kerala State Commission, at Thiruvanthapurum, dismissing the appeal of the Petitioner herein against the Order passed by the District Forum, Kozhikode, directing the Petitioner herein to pay to the Complainant Rs.11,000/- as compensation.

The facts in brief are these. The Complainant, a Professor in the Department of Botany, University of Calicut, got a confirmed booking from the Indian Airlines for his journey from Calicut to Bombay for onward journey to Los Angles to attend 1991 World Congress on Cell and Tissue Culture to be held during 15th June to 20th June, 1991 as his paper was selected for presentation at 12 Noon on the 16th June. The Complainant was to leave Calicut on 13th June, 1991 by flight No. IC-698 which was scheduled to leave at 11.30 AM and land at Bombay at 13.25 hours. He was scheduled to leave Bombay on 14th June at 3.45 AM by flight No. AI-111 and arrive at New York at 15.45 hours. He was expected to take a flight on 14-6-91 from New York at 19.30 hours to reach Los Angles at 22.16 hours. The Complainant alleged that he reported himself at the check-in counter at the Calicut Airport at 10.30 AM and checked his baggage in and got the security pass and went through the security check in preparation for the departure as evidenced by the boarding pass and cabin baggage tag. The Complainant admitted in his complaint that due to inclement weather and poor visibility, the plane could not land at Calicut as scheduled, that when the condition improved flight No. IC-698 returned to Calicut and landed at 4.40 PM., that the passengers including the Complainant waiting at the airport from 10 AM went up to the plane to board but were turned back when the Pilot refused to take off and that the Complainant had to wait in the airport till 7.00 PM before he could get his ticket cancelled as there was no possibility of connecting the Bombay - New York flight of the 14th at 3.45 AM by taking a seat in the postponed IC-698 at 1.00 PM on the 14th. The Complainant further stated that he got the journey re-booked from Madras via Singapore -Tokyo - Los Angeles which involved an overnight waiting at Singapore airport for the onward journey and 24 hours during the return journey, incurring heavy expenditure as well as physical and mental agony. The Complainant alleged that the cancellation of the flight IC-698 on 13th June, 1991 was largely due to the callous attitude of the Pilot and the Indian Airlines causing the Complainant heavy financial and academic loss, mental agony and physical agony. The Complainant alleged deficiency in service on the part of the Indian Airlines and especially the Pilot and claimed compensation of Rs. 20,000/- in the complaint filed on 14th September 1991.

On being noticed the Indian Airlines denied the various allegations. It was pleaded that the carriage of passengers on Indian Airlines is subject to Indian Airlines Non-International Carriage (Passenger and Baggage) Regulations, 1989 and particularly invited attention to Clauses 3 and 9 of the Regulations. It was also explained in the reply that the flight IC-697 that operates between Bombay and Calicut turns around as IC-698 that operates between Calicut and Bombay and that scheduled time of departure and arrival of IC-698 on 13th June, 1991 was 11.30 and 13.25 hours respectively. It was pleaded that the weather at Calicut was inclement and accordingly estimated time of departure of flight IC-697 was fixed at 10.00 hours due to bad weather and consequently estimated time at Calicut was revised to 11.35 hours, that consequently estimated time of departure of IC-698 from Calicut to Bombay was fixed for 12.15 hours, that the counter was opened for the scheduled time of departure and accordingly the Complainant had checked in and that the weather however, worsened and IC-697 had to be diverted to Bangalore as it could not land at Calicut. It was also pleaded that when the meteorological clearance was given, IC-697 left Bangalore at 16.00 hours and arrived at Calicut at 16.50 hours, that approximately 40-50 minutes turn round time is given for A-320 Aircraft and accordingly IC-698 could have left Calicut only at 17.30 hours. It was also explained that the maximum Flight Duty Time Limitation (FDTL) for Pilots during the period of Jet operation is 9-1/2 hours, however, that as per the scheme no Pilot can be rostered for flights in excess of the above limitation and that in the event of delays and diversions due to bad weather if a Pilot had to extend this limit of flight, due to time limitation, this can only be for one hour extension. It was pointed out that in the present case departure time of IC-697 out of Bombay was 09.15 hours, that the FDTL commenced at 08.40 hours, and the limitation was up to 17.40 hours, that with one hour extension of FDTL which is the maximum 
limit the Pilot concerned should have at Bombay by 18.40 hrs., that IC-698 could not be operated as the flying time between Calicut and Bombay is 1 hour 35 minutes and that hence the flight in question was postponed to operate on 14-6-1991 at 13.00 hours as due to safety requirements a complete day inspection was to be carried out on the Aircraft.

The District Forum Kozhikode in its Order dated 16th September, 1992 held that there was negligence on the part of the Indian Airlines in as much as the FDTL of Pilot would have been known to the Indian Airlines in Bangalore itself before the diverted flight IC-697 left Bangalore for Calicut and that the Indian Airlines could not take shelter under the provisions of Non-International Carriage (Passenger and Baggage Regulations) 1989. The District Forum awarded a sum of Rs. 10,000/- as compensation and Rs. 1,000/- for mental agony and suffering. Thus a total sum of Rs. 11,000/- was awarded to the Complainant. The Indian Airlines filed an appeal before the Kerala State Commission and urged that due to FDTL of the Pilot even with one hour extension flight could not be operated which was beyond the control of the Indian Airlines and that the flight had to be postponed to comply with safety requirements and to carry out mandatory checks by Engineers and hence scheduled time of departure was fixed at 13.00 hours on 14-6-1991. The application of Non-International Carriage (Passengers and Baggage) Regulations, 1989 was reiterated. The State Commission, however, dismissed the appeal after upholding the finding of the District Forum.

We have heard Shri Lalit Bhasin, learned counsel for the Petitioner and have carefully gone through the records as the Respondent did not choose to put in appearance. The Complainant himself admitted in the complaint that due to inclement weather and poor visibility, the plane could not land at Calicut as scheduled and that when the conditions improved, Flight No. IC-698 returned to Calicut and landed at 4.40 PM. The carriage of passengers on Indian Airlines is subject to Indian Airlines Non-International Carriage (Passenger and Baggage) Regulations, 1989. Clause 3 of these Regulations reads as follows:

" The Corporation 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 places 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 the passengers or any other person on any ground whatsoever."

Clause 5 of the said Regulations reads as follows:

"The corporation is not liable for damage occasioned by delay in the carriage by air of passengers or baggage. Similar conditions are also mentioned in the ticket and it will form part of the contract between the parties."

It is clearly specified in the above quoted provisions that Indian Airlines would not be responsible for any damage due to cancellation of flights. There was no basis for the Fora below to observe that situation like bad weather and poor visibility and consequent delays of flights especially during monsoon season is also a matter which often happens and well within the knowledge of the Opposite Party and it is the duty of the Opposite Party to take such measures as are necessary not to put the passenger into difficulty. Situation like bad weather and poor visibility are not within the control of the Indian Airlines and are unforeseen circumstances and therefore, no negligence could be attributed to them. It is unnecessary to dwell in more detail on that respect as the Complainant's case in the complaint is that cancellation of flight on 13th June. was largely due to callous attitude of the Pilot and the Indian Airlines. As already noticed above, that due to inclement weather and poor visibility the flight which was due to land at Calicut at 10.50 AM could not land and ultimately landed at 4.40 PM after the same had been diverted to Bangalore. The power to award compensation to a consumer of service is only if there is negligence on the part of the Opposite Party and loss is suffered by the Complainant on account of negligence of the Opposite Party. Due to FDTL of the Pilot with one hour extension, the flight could not be operated and this was beyond the control of the Indian Airlines at Calicut. The finding of the Fora below that the situation which arose in the instant case could have been avoided by making available another Pilot or at least announcing cancellation of flight well in time to enable the Complainant to resort to other modes of conveyance, is not supported by any material on record. The State Commission as well as the District Forum failed to realise that the flight duties are rostered well in advance and each Pilot had already been rostered to fly a particular aircraft and it is not possible for a Pilot to be suddenly called to fly another plane, particularly at the station Calicut. Compensation can be awarded to a consumer only if there is any loss or injury found to have been suffered by him due to negligence of Opposite Party. The consumer has to establish negligence which has not been established on record. The inference drawn by the Fora below is a mere surmise not supported by any reasoning. The orders of the District Forum as well as the State Commission suffer from serious irregularity and illegalities in exercise of jurisdiction in wrongly attributing negligence to the Indian Airlines in not taking measures as are necessary not to put the passengers into difficulty. The flight duty time limitation for the Pilots is as per the scheme drawn by National Industrial Tribunal and no Pilot can be rostered for a flight in excess of the limitation set in therein. The time limitation is put for the safety of the passengers and strictly adhered to by the Indian Airlines for which they cannot be faulted.

For the above reasons the Revision Petition is allowed. The impugned Orders of the State Commission as well as the District Forum are set aside and the complaint dismissed leaving the parties to bear their own costs.