WP/27754/2009 of Managing Director, Indigo Airlines, Level, 1 Tower C Vs N.Satchidanand on 31 December 2009

Conclusion

THE HON’BLE SRI JUSTICE V.V.S. RAOAND

THE HON’BLE SRI JUSTICE B.N.RAO NALLA

WRIT PETITION No.27754 of 2009

31.12.2009

Between:

Managing Director, Indigo Airlines, Guraon And others … Petitioner

AND

N.Satchidanand, S/o.C.V.Nagarjan

…Respondent

THE HON’BLE SRI JUSTICE V.V.S. RAOAND

THE HON’BLE SRI JUSTICE B.N.RAO NALLA

WRIT PETITION No.27754 of 2009

ORDER: (Per Hon,ble Sri Justice V.V.S.Rao)

The Managing Director, Indigo Airlines, Gurgaon, Haryana,their Branch Manager, Hyderabad, and M/s.Inter Globe AviationLimited, are the petitioners. The writ petition is filed invoking Certiorarijurisdiction of this Court to quash the award dated 18.9.2009 of thePermanent Lok Adalat for Public Utility Services, Hyderabad (PLA, forbrevity) under Section 22-E of Legal Services Authorities Act, 1987(the Act, for brevity). By impugned award, petitioners herein (hereafter,Indigo) were directed to pay a sum of Rs.10,000/- towardscompensation and Rs.2,500/- towards costs to the respondent herein(hereafter, passenger). Writ of Certiorari is sought mainly on theground that PLA, Hyderabad, suffers from inherent lack of territorialjurisdiction and that findings recorded are unsustainable in the face ofrecord. We have considered these aspects and came to theconclusion that the writ petition deserves to be dismissed in limine forthe reasons as below.

The passenger, who is a practicing advocate, purchased returnticket from New Delhi to Hyderabad on 14.12.2007 by Indigo flightNo.6E-301 scheduled to depart at 06.15 am. The passenger reportedon time but the flight did not take off on schedule due to bad light, thickfog and reduced visibility. Ultimately the passenger and others weremade to sit in the aircraft from 05.40 am till 04.00 pm when the flighttook off and landed at Hyderabad at 07.00 pm. The passengeralighted at Hyderabad but he was not allowed to go out of theterminal. The Deputy Manager and security officer of Indigo detainedon a oral complaint of misbehaviour by a female crewmember. Whenthe passenger insisted upon for supply of a copy of crewmember’scomplaint, he was allowed to go. He filed Case No.5903 of 2008claiming Rs.5,00,000/- as damages for detention in the aircraft from06.40 am till 07.00 pm confined to the seat, denying refreshmentswhile sitting in the aircraft creating situation where being a diabeticpatient he was not allowed to take medicine from the baggage in thecargo, for illegally detaining on false complaint from 07.00 pm to 08.30

pm, for not being able to attend the Court on 14[th] December 2007, andfor medical treatment for four days for mental and physical agony. Indigo opposed the case for PLA objecting the territorial jurisdiction. They contended that as per the conditions of the ticket, PLA,Hyderabad, lacks jurisdiction. They also justified the delay indeparture of flight 6E-305 on the ground of low runway visibility. Indigoalso alleged that passenger misbehaved with crew as well asairhostess throwing biscuits at her, which was reported orally. Theyfurther asserted that the delay was beyond control of the airlinesoperator and the matter of vis major.

The PLA commenced conciliation proceedings under ChapterVI-A of the Act. Both the parties requested PLA for deciding thedispute on merits in accordance with Section 22(7) of the Act. Accordingly, learned PLA considered various aspects of the matterand came to the conclusion that the suffering of the passenger needsto be compensated. The plea of territorial jurisdiction was decided infavour of passenger. Insofar as the delay on the part of Indigo andretaining the passengers for more than 10 hours in the aircraft withoutcanceling the same, PLA observed as under.

With regard to the third contention, undisputedly adisturbed programme and a prolonged stay over a boardresulting in helplessness causes agony to any person. It isclaimed by the petitioner that the respondents ought to havetaken appropriate steps within a reasonable time by eithersetting the boarded passengers free to launch till theclearance is received or ought to have made arrangements tothe comfort of passengers. Neither the respondents took anysteps to take back the passengers from the abroad launchnor provided the required food to the passengers. No doubtthere exists the rules but the rules are made on a regularcircumstances and the continuance that arises in a presentcase cannot be guided by strict rules. The exigency of thesituation ought to have rendered by the respondents and theyare under the moral duty to take back the passengers to thelaunch and keep them by obtaining a necessary approvalsfrom the authorities. This failure is un-excusable. The entireproblem of the case is obviously un-connected and in differentconduct on the part of the respondents. This is un-becomingbehaviour of the respondent airlines needs to be correctedfrom all human values. In view of these circumstances thepetitioner who suffered needs to be compensated.

Counsel for Indigo raised two limbs of arguments. The first limbpertains to territorial jurisdiction of PLA to entertain the complaint of thepassenger. Second limb deals with the findings recorded by PLA andbasis for the same. Insofar as second limb of argument is concerned, having regard to the finding of facts recorded by PLA, we do not feel tocountenance in all the submissions, especially when it is admitted thatthe passengers boarded the aircraft at 5.40 am on 14.12.2007 andwere made to sit in aircraft till 4.00 pm on the same day, one can wellimagine the physical and mental condition of the passengersespecially diabetic patients to sit in a confined seat in aircraft in Delhiwinter. The physical and mental damage the passenger suffers in suchinclement whether without proper attendance or without supply ofrefreshments can be real and not remote. Therefore, we do not find anystrong reason to interfere with the order of the learned PLA. Counselfor Indigo submits that as per Indigo’s Passenger Rules, all disputesare amenable to the jurisdiction of Delhi Courts and legal fora. According to him, notwithstanding the indisputable fact that thepassenger purchased the ticket at Hyderabad, that he alighted atHyderabad and he was detained for some time at Hyderabad after7.00 pm on 14.12.2007, it is only the Delhi Courts and legal fora, whichcan entertain any complaint. We are afraid we cannot accept thesubmissions.

Facts

The counsel for Indigo relies on ABC Laminart Private Limitedv A.P.Agencies, Salem[[1]],Kusum Ingots & Alloys Limited v Unionof India[[2]]and Eastern Coalfields Limited v Kalyan Banerjee[[3]], insupport of the contention that cause of action or part of cause of actiondoes not arise in Hyderabad. The submission is misconceived. It isincorrect to assume that Section 20(c) of Code of Civil Procedure,1908 (CPC) is attracted to the facts of the case. In our consideredopinion, it is Section 19, which is directly attracted when the passengerwho suffered injury due to deficiency service by Indigo seeks toenforce his remedy. Even otherwise, as the passenger purchasedticket at Hyderabad, part of cause of action has arisen and PLA,Hyderabad has jurisdiction. Be that as it is, as per Section 19 of CPCwhen the case is for compensation for wrong done to the person, if thewrong was done within the legal limits of jurisdiction of one Court, andthe defendant resides or carries on business within the legal limits ofjurisdiction of another Court, such case can be instituted at the optionof the injured person in either of the Courts. Therefore, PLA does notsuffer from inherent lack of jurisdiction.

Whether the conditions printed on the ticket and thejurisdictional rule of Indigo oust the jurisdiction of Hyderabad Courts orlegal fora, the question is no more res integra. Even if the partiesagreed to the jurisdiction of a particular Court, if the legal Court’sjurisdiction is not ousted under the Statute, both the Courts canentertain the cause. A reference may be made to Hakam Singh v Gammon (India) Limited[[4]]and ABC Laminart Private Limited vA.P.Agencies, Salem[[5]]. In Hakam Singh (supra), it was held asunder.

By Clause 13 of the agreement it was expresslystipulated between the parties that the contract shall bedeemed to have been entered into by the parties concerned inthe City of Bombay. In any event the respondent have theirprincipal office in Bombay and they were liable in respect of acause of action arising under the terms of the tender to besued in the Courts at Bombay. It is not open to the parties byagreement to confer by their agreement jurisdiction on a Courtwhich it does not possess under the Code. But where twocourts or more have under the CPC jurisdiction to try asuit or proceeding an agreement between the parties thatthe dispute between them shall be tried in one of suchCourts is not contrary to public policy. Such anagreement does not contravene Section 28 of theContract Act.

(emphasis supplied)

In ABC Laminart Private Limited (supra), under an agreementABC Laminart having its registered office at Udyog Nagar in Gujaratwithin the jurisdiction of District Court of Kaira, agreed to supplymetallic yarn to respondent having business at Salem in Tamil Nadu. Clause 11 of the agreement provided that disputes shall be subject toKaira jurisdiction. When the disputes arose, respondent filed a suitbefore Subordinate Judge, Salem, for recovery of certain amounts,which was opposed, inter alia, on the ground of lack of jurisdiction. The trial Judge dismissed the suit agreeing with defendant but, appealwas allowed by High Court of Madras against which ABC Laminartpreferred civil appeal by special leave. Apex Court dismissed theappeal following Hakam Singh (supra). The cause of action isexplained by the Supreme Court as follows.

A cause of action means every fact, which, iftraversed, it would be necessary for the plaintiff to prove inorder to support his right to a judgment of the Court. In otherwords, it is a bundle of facts which taken with the lawapplicable to them gives the plaintiff a right to relief against thedefendant. It must include some act done by the defendantsince in the absence of such an act no cause of action canpossibly accrue. It is not limited to the actual infringement ofthe right sued on but includes all the material facts on which itis founded It does not comprise evidence necessary to provesuch facts, but every fact necessary for the plaintiff to proveto enable him to obtain a decree. Everything which if notproved would give the defendant a right to immediatejudgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by thedefendant nor does it depend upon the character of the reliefprayed for by the plaintiff.

It was further held as follows.

So long as the parties to a contract do not oust thejurisdiction of all the Courts which would otherwise havejurisdiction to decide the cause of action under the law itcannot be said that the parties have by their contract oustedthe jurisdiction of the Court. If under the law several Courtswould have jurisdiction and the parties have agreed to submitto one of these jurisdictions and not to other or others of themit cannot be said that there is total ouster of jurisdiction. Inother words, where the parties to a contract agreed tosubmit the disputes arising from it to a particularjurisdiction which would otherwise also be a properjurisdiction under the law their agreement to the extentthey agreed not to submit to other jurisdictions cannot besaid to be void as against public policy. If on the otherhand the jurisdiction they agreed to submit to would nototherwise be proper jurisdiction to decide disputesarising out of the contract it must be declared void beingagainst public policy.

(emphasis supplied)

It is commonplace that due to free sky policy of Government ofIndia, access is provided to airline routes in India promptingproliferation of private players operating airlines. All of them encouragepassengers to book the tickets online on the Internet to reduce thecosts involved in maintaining the ticket booking infrastructure andorganizational staff. Indeed, some of these private airlines offer heftydiscount to those who book the tickets on internet. Most of thepassengers, who book tickets or most of the passengers to buy ticketsin Indigo counters seldom, read the conditions and conditionsregarding jurisdiction of Court in case of disputes. In such a situation,the jurisdiction aspects of the contract between Indigo and passengermust receive liberal approach by the Courts or else the consumerismwould be at peril. Whatever be the reason and whatever be thejustification, for Indigo in not operating Flight 6E- 301 as per schedule,it certainly caused inconvenience to the passenger who is admittedly adiabetic patient. Therefore, he should at least receive nominaldamages for the deficiency of service. This was what was preciselydone by learned PLA in an unexceptional manner. We do not see anystrong reason to exercise our extraordinary jurisdiction to find fault withthe same.

In the result, for the above reasons, the writ petition is dismissed in limine. There shall be no order as to costs.

December 31, 2009.

YS

[1](1989) 2 SCC 163 : AIR 1989 SC 1239[2](2004) 6 SCC 254[3](2008) 3 SCC 456

[4](1971) 1 SCC 286 : AIR 1971 SC 740

[5](1989) 2 SCC 163 : AIR 1989 SC 1239

_______________

(V.V.S.RAO,J)

______________________

(B.N.RAO NALLA,J)