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Compensation in Civil Aviation Sector in India

This article was submitted by Sayantani Datta from Rajiv Gandhi School Of Intellectual Property Laws, IIT Kharagpur for National Legal Writing Competition,2016.

Aviation sector holds a major chunk of beneficiaries in the service providing sector. Delay in service, injury to passengers or sudden cancellation or delays of flights are very common practices with regard to deviation from their duties. Air crash, missing of airplanes and many other such incidents are the usual headlines of our life today. A person either loses his life or is injured either temporarily or permanently in such similar incidents.

The introduction of National Civil Aviation Policy 2016 states that Indian Civil Aviation sector ranks 10th in the world in terms of number of passengers. The main vision of this policy is to make flying affordable for masses.[1] This vision can’t be achieved only if the cost of ticketing is reduced both in domestic as well as international routes. Since the inception of life on earth common instinct of any organism is to protect himself, his family and property to set a secure future for them, human beings hold no exception to this rule. Life and property (be it in cash or kind) both are equally important to all. Any kind of loss in either of these two cases can never be compensated by any way, but the compensation awarded to the victim or the family is just a way of telling SORRY! Well many of us regularly travel by flight but we are unaware of our rights in case any loss happens to us. This article highlights few areas in the civil aviation sector to know our existing rights with an expectation that the readers will not waive them off henceforth.

INDIAN AVIATION SECTOR AND INTERNATIONAL CONVENTIONS

Indian aviation sector at different points of time through different legislative enactments at different points of time made it evident that India is a signatory of various international conventions like Warsaw Convention 1929, Hague Protocol 1955 and Montreal Convention 1999, and had also followed it in the domestic legislations with regard to various welfare provisions for the consumers of this sector. Recently, Montreal Convention is the law that has overruled both Warsaw Convention and Hague Protocol. India had already signed Montreal Convention in 2007 and had amended its domestic law i.e., Carriage by Air Act, 1972 as Carriage by Air (Amendment) Act 2009. The main amendments brought in this line are insertion of the third schedule in the Act. The highlights of the third schedule are Rules 17, 20, 21, 22, 26 and 28. This amendment introduces the two tier liability formula of the carrier in case of death or bodily injury; this can be read under the provision of section 5 read with Rule 17 and 21 of the Act. However, Montreal Convention recognizes the compensation in SDR units (Special Drawing Rights) which is to be converted into Indian Currency as Rupees at the rate of exchange prevailing on the date on which amount is to be paid as damages by the carrier under section 6A of the Act. Rule 20 of the 3rd Schedule provides for a saving clause to the carriers which states that if the carrier proves that the damage was caused due to contributory negligence or other wrongful act or omission of the person claiming compensation then the Carrier can either wholly or partially be exonerated from the liability under rule 17 and 21 of the third schedule.

The main intention of the legislature to bring such amendments in the existing aviation law is to deviate from the Maxim “Actio personalis moritur cum persona” which means that a personal action dies with the person who has suffered the damages. With the passage of time the traditional jurisprudence of personal action has changed into Survivors action and this had laid the womb for the birth of survival statutes. Another important concept of victimology that is relief to the victim of the wrong doer is also a reason behind the compensation system by the carriers. The person or the family suffering loss shall be compensated to make a good for the loss they had suffered.

WHEN CAN A CARRIER BE HELD LIABLE?

As per the Montreal Protocol and Rule 17 of the Third Schedule of the Act, any passenger suffering any bodily injury or death of the passenger due to an accident that had occurred on board the aircraft or in course of any operations of embarking or disembarking. In case of luggage it is destruction, loss or damage caused, that took place within the period when the checked baggage was under the responsibility of the carrier. Delay of baggage after the expiration of twenty one days after the date on which it is ought to arrive, calls for the liability of the carrier. Not only in cases of damage caused under Rule 17 but, a passenger can also claim for damages or compensation when the boarding is denied or the flight is delayed. As stated above the liability is a two tier liability formula, the first tier is strict liability applied for damage upto 1,00,000 SDR , and the carrier cannot exclude or limit his liability even if he is not at fault. The second tier talks about the damages exceeding One lakh SDR is unlimited.

KNOW YOUR RIGHTS: LEGISLATIVE PROVISIONS AND JUDICIAL TRENDS

  1. Delaying or Cancellation of Flights

 If the case of delay or cancellation of flights is beyond two hours the carrier has to pay an amount of Rs. 10,000 to every passengers suffering loss due to the delay or cancellation of the flights. The rule says that the passengers should be informed about any such changes at least two weeks prior to the scheduled date to board flights. In deviance of this rule any agony suffered by the passenger it is the duty of the airlines to offer an offer alternate departing within two hours of their booked scheduled time of departure. However this has two exceptions too, the first exception provides for a saving clause to the airlines, in case of natural calamities, human disasters or war or any other situations beyond their control to carry on with their aviation services, no carrier can be held liable. Second exception waives off the responsibilities of the carriers if the passenger has not provide any adequate contact information at the time of entering into a contract with the carrier. In respect of such passengers, the airlines will either refund the ticket prices or make reasonable endeavor to make alternate travel arrangements as per the choice of the passengers. [2]

  1. Denial of Passengers to Board the Flight

Passengers having confirmed tickets but were denied boarding the flight is eligible for a compensation of sum 20,000 rupees from the domestic carriers. However the airlines can waive off the compensation liability in case an alternate facility to travel within one hour of the scheduled departure time of the initial flight. On contrary of the specified facility the carrier holds the liability to pay an amount equal to 200 per cent of booked one-way basic fare plus airline fuel charge, subject to a maximum of Rs 10,000, in case airline arranges alternate flight that is scheduled to depart within the 24 hours of the booked scheduled departure.[3]

  1. Death or Bodily Injury to the Passengers

Under Rule 21 of the Act, in case of death or bodily injury an individual is eligible to claim damages of amount One Lakh SDR. This claim can only be made if all the three conditions of Rule 17 (1) of the Act are in accordance. However, this is not the minimum limit of compensation and every passenger is has the right to get this amount in case of death or bodily injury.  This amount is not to calculated by any means as per the parameters of calculation of compensation in MACT cases to waive off the liability up to One Lakh SDR.[4]

  1. Loss or Delay in Delivery of Baggage

The carrier is liable to pay an amount of 1 crore in case of loss or inordinate delay in baggage.

  1. Miscellaneous

Rs.200 per ticket that used to be the refund processing fees is not supposed to be charged by the airlines. For foreign nationals compensation will be payable based on the regulation of their respective country of origin. No female passenger should be placed with two unknown male passengers. In case of any sexual assault the carrier will be liable[5]. In case of terrorist attacks the carrier is liable for compensation.

CONCLUSION

The author through this paper had intended to create awareness among the passengers of the aviation industry. More passengers should forward to claim their compensation in case of any damage they suffered. Compensation or consumer rights in aviation sector is untouched, with an expectation that the National Civil Aviation Policy will change the scenario in the claim of rights by the consumers in this service providing sector this paper rests.

REFERENCE

[1] National Civil Aviation Policy 2016, available at https://www.civilaviation.gov.in/sites/default/files/Final_NCAP_2016_15-06-2016-2_1.pdf visited on August 13, 2016.

[2] ENS Economic Bureau, Economic Times, July 20, 2016, Aviation Reforms: Hefty compensations for passengers on boarding denial, flight cancellations available at https://indianexpress.com/article/business/aviation/aviation-reforms-hefty-compensations-for-passengers-on-boarding-denial-flight-cancellations-2924811/ visited on August 13, 2016

[3] Ibid note2

[4] S. Abdul Salam v. Union of India, Kerala High Court, WP(C). No. 32550 of 2010; MANU/KE/2054/2011

[5] Brandi Wallace v. Korean Air 214 F3d 293 (2nd Cir 2000)

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