1.      The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (“the Act”) against the Order dated 23.07.2018 passed by the State Consumer Disputes Redressal Commission, Punjab, (“the State Commission”), in Consumer Complaint No. 820 of 2017, wherein the Complaint filed by the Complainants (Respondent No. 1 herein) was allowed.

2.      For convenience, the parties in this Appeal will be referenced as per the Complaint filed before the Ld. State Commission.

3.      The brief facts of the case, as per the complainants, are that the complainants consisting of a mother and two minor children are persons of Indian origin settled in Canada. They faced a series of unfortunate events during their journey from Chandigarh to Toronto on 02.09.2017. They had booked return tickets from Chandigarh to Toronto by Jet Airways and Air Canada. The journey from Mohali to Delhi was with Jet Airways, and from Delhi to Toronto was with Air Canada. On 02.09.2017, after boarding the Jet Airways flight from Chandigarh to Delhi, they faced issues obtaining boarding passes for the Delhi-Toronto flight. Upon reaching Delhi Airport, they had to wait for several hours before being issued Air Canada boarding passes. Once onboard the Air Canada flight, the washrooms were locked and emitting foul smell. It caused the minor daughter to vomit. This has led to rude behavior and mistreatment by the cabin crew. They were ultimately deboarded from the plane, left without their luggage or essential items, and faced significant distress and humiliation. They filed a complaint with the State Commission, alleging grave deficiency in service, unfair trade practices, and violations of human and child rights due to the behaviour of the airline staff.

4.      In response, Jet Airways and other Opposite Parties (OPs) filed their joint reply, raising preliminary objections. They contended that the State Commission lacked territorial jurisdiction, that the complaint involved separate contracts of service for different segments of the journey, and that complicated questions of law and facts required a more detailed legal process than the summary proceedings under the Act. They argued that Air Canada was responsible for the segment where the alleged incident occurred, thus absolving Jet Airways of any liability. Air Canada, in its reply, contended that the complainants were not its consumers as the tickets were booked through Jet Airways. They were deplaned for safety reasons due to the illness of the minor daughter. They challenged the jurisdiction of the State Commission and denied discrimination of any sort by their staff. The replies of Jet Airways and Air Canada indicated denial of any responsibility for the incident and suggest procedural and jurisdictional defenses to counter the complaint.

5.      The Ld. State Commission, vide Order dated 23.07.2018 in CC. No.820 of 2017 allowed the complaint with the following directions: -

1. Opposite parties No.1 to 4 are directed, jointly and severally, to pay lump sum compensation of ₹35,00,000/- for mental agony, tension, harassment, misbehaviour humiliation and hardships suffered by the complainants at the hands of the crew staff of the opposite parties; and to pay ₹22,000/- as litigation expenses.
2. Opposite parties No.5 & 7, being senior officers, are directed to pay ₹10,000/- each, as compensation, to the complainants; and
3. Opposite party No.6 is directed to pay ₹5,000/- as compensation to the complainants.

6.      Being aggrieved by the impugned order dated 23.07.2018, the Appellant /OP-1 filed Appeal No. 1841 of 2018 seeking the following:

“a. Allow the present first appeal and set aside the impugned order dated 23.07.2018 of the State Consumer Disputes Redressal Commission, Punjab, Chandigarh;

b. Hold the Appellant Airline not guilty of deficiency of service and/or unfair trade practices.

c. Pass any further orders as this Hon'ble Commission may deem fit in the facts and circumstances of the case.”

7.      It needs to be mentioned here that M/s Jet Airways (India) Ltd., had also filed F.A. No.1855 of 2018 against the impugned order dated 23.07.2018 in CC. No.820 of 2017 and the said First Appeal was dismissed for non-prosecution vide order dated 23.02.2024.

8.      In the instant First Appeal No.1841 of 2018, the Appellant/OP-1 mainly raised the following issues:

A. The State Commission failed to appreciate that the deplaning of the Complainants was only due to sickness of one of them, being a minor child of 11 years and it was in their best interest that the Complainants including the sick passenger did not continue on such a long-haul flight. They were accordingly requested to deplane immediately before takeoff, so that the sick passenger could get medical assistance and treatment in Delhi itself.

B. The State Commission failed to appreciate that it was a long and non-stop flight of 15 hours. There was every apprehension that the health of the sick passenger could deteriorate during the long flight which would have resulted in grave risk and problems to the sick passenger, being one of the joint Complainant.

C. There is no procedure and possibility for the crew to take a sick passenger out of the plane just before its take off for medical treatment and wait for him/her to become fit for flying. It would result in inordinate flight delay and inconvenience to the large number of other passengers travelling in the flight.

D. The Complainants carried out immigration departure procedure and their passports were stamped with departure stamp. As they had to be deplaned due to sickness of the child, they had to go through reverse immigration procedures and the departure stamp on the passport had to be cancelled by the immigration officials at the departure section of the airport, which would take its explanation and time. The OPs cannot be held liable.

E. Complainant No.2 (minor daughter of Complainant No.1) vomited in the aisle of the aircraft itself while heading towards the washroom, even before reaching the washroom. It cannot be said that she felt nausea and vomited due to foul smell allegedly coming from the washroom.

F. There is neither any system nor possibility for the cabin crew to take the minor Complainant to the dispensary in the airport, which is outside the area where the passengers remain after security and immigration procedures. Even otherwise, the same would have been possible only after exiting from the area, after carrying out customs/immigration/security formalities. It would have invariably resulted in inordinate delay in the departure of the flight, causing inconvenience to large number of other passengers. The cabin crew/flight attendants acted professionally in the best interest of the complainants by requesting them to deplane, as there would have been risk to the sick child if her health was to deteriorate during the long flight.

G.  There is no scope for the cabin crew to ascertain whether the minor child was really sick and get her screened and an opinion of the Doctor of the airport dispensary should have been taken.

H. Mere fact of the minor child vomited even before takeoff clearly shows that she was sick and that the underlying cause of such vomiting displays a serious risk of sickness and it was deemed appropriate and well-advised to proceed with deplanement.

9.      In response to the notice on Appeal, Respondent No. 1/ Complainant appeared and filed written synopsis. However, vide order dated 05.01.2024, last opportunity was granted to Respondent Nos. 2,3 and 4 to file a reply, within a period of three weeks and brief synopsis within a period of two weeks thereafter. However, none appeared for them on 23.02.2024. Therefore, Respondent Nos. 2,3, and 4 were proceeded ex-parte vide order dated 23.02.2024. Moreover, Ld. Counsel for the complainant has stated that no claim against these respondents would be pressed. Also, both the parties agreed to dispense with the presence of Respondent Nos. 5, 6 and 7 vide order dated 05.01.2024.

10.    The Learned Counsel for the Appellant/OP-1 reiterated several key grounds of appeal and essential facts of the case. He emphasized the following that it is undisputed fact that the minor child Respondent No. 1(a) vomited immediately on boarding the aisle before reaching the washroom. Multiple washrooms were available, but none were accessible due to sudden illness of the child. The cabin crew and pilot are not trained medical professionals and cannot provide medical testing or advanced care in flight. They acted to the best of their training and ability, assessing the situation to ensure safety of all passengers. Given the non-stop 14-hour flight, with 6 hours over the sea, and the potential for health deterioration, the crew decided to deplane the sick child to avoid situations of emergency landing. The decision was made in the interest of safety and security. The learned counsel argued that as a result of deplaning, three seats remained empty for the journey. The passengers were given fresh tickets at no extra cost, which imposed a financial loss on the Airlines. The reverse immigration process required thorough documentation and coordination with multiple departments. The staff involved were not of Air Canada but were from a Ground Handling Service Provider. He asserted that the allegation that the child vomited due to a foul smell from the washroom is false. The flight originated from Delhi, ensuring all facilities, including toilets, were checked and maintained. The deplaning due to visible illness does not constitute "deficiency in service." The decision was based on safety considerations, not neglect or poor service. The learned counsel for the Appellants/ OPs cited Carriage by Air Act, 1972 and contended that the Act enforces the Warsaw Convention, Hague Protocol, and Montreal Convention in India. The rules under these conventions provide guidelines for carrier liability and compensation limits. He asserted that the State Commission did not justify why it ignored these guiding principles while awarding compensation, resulting in an award exceeding the specified limits without evidence or explanation. She also relied on Tokyo Convention Act, 1975 which empowers aircraft commander to take necessary measures, including disembarking a passenger, to maintain safety and discipline onboard. The actions taken by the crew were within their legal rights under the Tokyo Convention, aiming to protect all passengers' safety. The State Commission's observations and directions regarding fundamental rights, child rights, and international conventions on human rights exceeded the scope of a consumer forum's jurisdiction. The compensation awarded by the State Commission lacked a rational basis or discussion of relevant evidence. The claim for mental torture and agony was not substantiated with material evidence. She conte4nded that the cases referred by the Respondent's counsel do not apply to the present case. The judgments in British Airways vs Mukesh Mehra and Air France vs OP Shrivastava are distinguishable and do not support the impugned order and compensation. The learned counsel argued that the decision to deplane the passengers was justified and in compliance with safety regulations. The State Commission's award of compensation is excessive, unsupported by evidence, and beyond its jurisdiction. The Appellant seeks to overturn the Impugned Order on these grounds.  She relied upon the following judgments:

A. Charan Singh Vs Healing Touch Hosp & Ors (2000)7 SCC 668.

B. Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines and Ors., (2000) 1 SCC 66 and MANU/SC/0707/1999;

C. OP Thakur vs. Shimla Municipal Corporation & Ors., NCDRC, MANU/CF/0678/2019;

D. Air France vs. OP Shrivastava, NCDRC, MANU/ CF/0239/2018;

E. Inter Globe Aviation Ltd Vs N Satchidanad MANU/SC/0799/ 2011

F. New India Assurance Co. Ltd. Vs. Sun Steel Industries (P) Ltd., NCDRC, MANU/CF/0100/1997.

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11.    The learned Counsel for the Respondents/Complainants reiterated the facts of the complaint and argued in favour of the impugned order passed by the State Commission. He contended that the provisions of 1972 Act and the Montreal Convention do not, in any way, preclude the award of damages under the 1986 Act for deficiencies in service, unfair trade practice and resulting violations of human rights. He sought to dismiss the instant First Appeal with exemplary costs. He has relied upon the following citations:

A. Trans Mediterranean Airways vs. Universal Exports and Anr., (2011) 10 SCC 316;

B. Air France Vs. OP Srivastava, FA No.310 of 2008, decided on 22.03.2018 by the NCDRC;

C. British Airways Vs. Dr. Mukesh Mehra, F.A. No.360 of 2012, decided on 22.01.2014 by State Commission Delhi;

D. Harsharn Kaur Dhaliwal Vs. Lufthansa German Airlines & Anr., FA No.702/ 2021, decided on 16.01.2023 by the NCDRC;

E. Charan Singh Vs. Healing Touch Hospital and Ors., (2000) 7 SCC 668;

F. Powerware India Pvt. Ltd. vs. Economic Transport Organization And Anr., 2006 (2) C.P.J. 269;

G. Dr. Brijesh Kumar Misra and Anr. Vs. State Consumer Disputes Redressal Commission, U.P. & Anr., 2008 SCC OnLine All 550;

H. Manmohan Lal Sarin Vs. M/s. Emirates, New Delhi, 2010 (1) R.C.R. (Civil) 170.

12.    I have examined the pleadings and associated documents placed on record and rendered thoughtful considerations to the arguments advanced by the learned counsels for both the parties.

13.    The fundamental allegation which is the root cause of the whole issue is that the Complainant No. 2 who was the passenger had boarded the aircraft along with her mother and sibling and vomited within the seats area, allegedly, due to foul smell emanating from the toilet of the aircraft. It is undisputed position that the said Air Canada aircraft was made ready for departure from New Delhi to Toronto for 14 hours of non-stop flight. All passengers, including the complainants boarded the aircraft as part of the prescribed procedure. In normal course, it is unlikely the washrooms of an aircraft will be dirty and emanate foul smell at the very departure stage itself. While the complainants have repeatedly asserted this aspect, however, no evidence was brought out to establish the same. It is also an admitted position that the child had vomited within the seats area of the aircraft, and it entailed immediate action to clean and sanitize the spot, which the cabin crew have immediately done.

15.    In furtherance of the same, the crew also examined the condition of the child to appreciate the reasons as to why she vomited and considered it appropriate to deplane the child, and thus the other two passengers as well, so as to get her medical assistance as the OP cabin crew considered her continued travel for 14 hours non-stop flight, including six hours over the seas, to be not in the interest of the health of the child. They were deplaned, necessary reverse immigration, security and other procedures were done by the Airlines and medical assistance was also accorded to the child.

16.    While, without doubt, the children and the mother were put to inconvenience due to unscheduled and deplane from the aircraft, it is also undisputed position that three seats booked for the said three complainants went unoccupied. Further, OP Airlines provided three free tickets for the complainants for travel from New Delhi to Toronto. Therefore, the action of the Airlines in deboarding the passengers after considering the condition of the child, entailed financial liability as well as responsibility towards reverse immigration, security check and other necessary documents as well as providing child medical assistance at the airport. Therefore, evidently this was not intentional or negligent action on the part of the crew of Air Canada, which is a commercial entity. The decision taken by the cabin crew, notwithstanding financial implications and the ensued administrative tasks were evidently with concern towards the health of the minor child. At the same time, it also deserves to be considered that the mother and her two minor children were put to inconvenience through sudden and unexpected deplaning from the aircraft due to vomiting of her child, which she strongly believed to be due to foul smell from the washroom of the aircraft. Notwithstanding the reasons stated by the OP Airlines, the sudden and unexpected inconvenience suffered by the mother and to her minor children on 02.09.2017 also deserves its due.

17.    With due regard to the facts and circumstances of the case, clearly, the compensation awarded by learned State Commission verges to being disproportionate to the facts emerged. After due evaluation of the same, I consider appropriate to award a lump sum compensation of Rs.3,00,000 towards unexpected inconvenience, tension and harassment suffered by all the three Complainants. The Opposite Parties are jointly and severely directed to pay Rs.3,00,000 Complainant No. 1 within a period of one month from the date of this order. In the event of delay beyond one month, the OPs are liable to pay 12% simple interest for such period.

18.    With the above directions, the impugned order dated 23.07.2021 in C.C. No.18/2021 passed by the State Commission is modified and the First Appeal No. 1841 of 2018 is disposed of accordingly.

19.    There shall be no orders as to costs.  All pending applications, if any, also stand disposed of accordingly.

20.    The Registry is directed to release the Statutory deposit amount, if any due, in favor of the Appellant after the compliance of the above order.