The Covid-19 outbreak has suddenlyovernight disrupted everyone’s lives globally be it personal or professional. Due to this global pandemic, economies and businesses all over the world have been badly impacted. One of the worst hit sectors as a result of this unforeseen spread of coronavirus has been aviation, with airspaces remaining closed for almost two months and passengers remaining confined to the four walls of their homes due to lockdowns prevailing in most jurisdictions. Thus article shall thus focuson whyespecially in the light of Covid-19, there is all the more need in India to enact a dedicated law for air passenger protection similar on the lines of the Regulation (EC) No 261/2004 prevailing in the European Union.
Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 was enacted that established common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.1 Protections provided to passengers include inter aliareducing the number of passengers denied boarding against their will by requiring air carriers to call for volunteers to surrender their reservations, in exchange for benefits, instead of denying passengers boarding, and by fully compensating those finally denied boarding.2 The Regulation states that passengers who are denied boarding against their will should be able either to cancel their flights, with reimbursement of their tickets, or to continue them under satisfactory conditions, and should be adequately cared for while awaiting a later flight.3
It furthermore also provides forvolunteers to be able to cancel their flights, with reimbursement of their tickets, or continue them under satisfactory conditions, since they face difficulties of travel similar to those experienced by passengers denied boarding against their will.4 This regulation is thus dedicated to reducingthe trouble and inconvenience to passengers caused by the cancellation of flights. Regulation 261/2004 endeavours to achieve this by inducing carriers to inform passengers of cancellations before the scheduled time of departure and in addition to offer them reasonable rerouting, so that the passengers can make other arrangements.5 Article 14 of Regulation 261/2004 makes it obligatory for the air carriers to inform passengers of their rights. Passengers should be fully informed of their rights in the event of denied boarding and of cancellation or long delay of flights, so that they can effectively exercise their rights. The only exception provided with respect to air carriers compensating passengers if they fail to do the aforesaid is when the cancellation occurs in extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.6
In ordinary circumstances passengers whose flights are cancelled should be able either to obtain reimbursement of their tickets or to obtain re-routing under satisfactory conditions, and should be adequately cared for while awaiting a later flight.7 However the Regulations also give some leeway to air carrier by stating that as under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.8 Airlines can hence resort to the aforesaid exceptions in situations such as the present Covid one to argue against compensating passengers in case of cancellation of flights.
At present, the only law prevailing in India is the Consumer Protection Act, 1986. This Act was repealed and in place of this, the Consumer Protection Act 2019 was enacted. However, this newly enacted Act has not yet been notified by the Government of India to be in force. While both these legislations i.e. 2019 and 1986, deal with deficiency of services in general, neither of them has any dedicated provisions pertaining to the protection of the air passenger as such. Furthermore, the definition of consumer under both the 2019 and 1986 Acts excludes from its purview any person purchases goods or avails of services for any commercial purposes.9 This means that any passenger who files a consumer dispute against an airline has to also pass the muster that the service availed of by the passenger from the airline was not towards any commercial purpose. For example, if a person sues a builder for delayed possession of a flat, he/her only has locus to file a consumer dispute if the flat has been bought in his/her name and is for his/her personal use. If the flat is bought in the name of his/her company or has been purchased with a purpose to rent it out, it would be considered as a commercial purpose and person would not have a remedy under the Consumer Protection law.
The Ministry of Civil Aviation, Government of India in February 2019, published a Passenger Charter dealing with air passengers’ rights. This charter includes passenger’s rights pertaining to inter alia (a) flight delays; (b) flight denied boarding due to over-booking; (c) flight cancellation; (d) flight diversion; (e) cancellation charges etc. Airlines could argue however that this document does not have any legal statutory backing and is only a mere ‘charter’. There is a Civil Aviation Requirement10 (“CAR”) issued by the Directorate General of Civil Aviation that does though deal with refund of airline tickets to passengers of public transport undertakings. The CAR has legal sanctity as it has been issued in public interestas per Rule 133 Aircraft Rules, 1937 which in turn were formulated by the Indian Government in consonance with the Aircraft Act, 1934.
In this regard, I would like to submit that the CAR only deals with (a) delay in refund of unused tickets; (b) the amount which is refunded by the airlines against cancelled tickets and (c) policy of not to refund the ticket amount but to adjust against tickets to be purchased by the passenger for future travel in the same airline that too valid for a limited period of time. This CAR only prescribes the minimum requirements for a refund of tickets purchased by persons/passengers with respect to air transport undertakings including scheduled domestic/non-scheduled operators/foreign carriers operating to/from India. The CAR does not, on the other hand, prescribe the aforesaid passenger’s rights that are provided for in the Passenger Charter and as well as in the EC Regulation 261/2004. The Carriage by Air Act, 1972 as amended in 2009 is based on the Montreal Convention, 1999 and deals with liability and compensation as specified in the Montreal and Warsaw Conventions. The case of Air India Ltd. V. Tej Shoe Exporters Pvt. Ltd. decided by the Hon’ble Delhi High Court11 deals with various provisions of the aforesaid Act such as limitation and calculation of compensation.
A question that could arise is that when there already exists the Carriage by Air Act, 1972, then is there is any further requirement for another dedicated legislation dealing with the protection of an air passenger’s rights. I would answer this in the affirmative. Both the Montreal Convention whose principles are incorporated in the Carriage by Air Act, 1972 and the EC Regulation 261/2004 were set up to protect passenger rights and accordingly set out rules providing for and limits to the liability of air carriers. A bare perusal of the Montreal Convention would show that it provides passengers with compensation in case of damages because of death or bodily injury if the accident that caused it occurred in-flight or during embarking/disembarking. Furthermore, this Convention also offers compensation in case of a flight delay leading to damages and problems pertaining to baggage.12 On the other hand, the EC Regulation also provides for the protection of passenger rights for the inconvenience caused by a flight disruption which is not dealt with in the Montreal Convention.13
Today with the Covid-19 crises prevalent globally including in India, flights in India have not been permitted since 25.03.2020 by the Indian government. This has forced all domestic air carriers to suspend all flight activities within India and abroad as well as international air carriers to suspend their flight operations to and from India. The Ministry of Civil Aviation, India issued a clarification regarding the cancellation and subsequent refund of domestic and international air tickets booked and for which the payments were received by airline within the first (25.04.2020-14.04.2020) and second (15.04.2020-03.05.2020) lockdown periods.14 Furthermore, the Directorate General of Civil Aviation issued a circular dated 19.04.2020 preventing any airlines from booking tickets even beyond 04.05.2020.15 However, no circular has been issued by the Government regarding the refund of tickets booked prior to when flight operations were suspended i.e. 25.03.2020 for travel thereafter. A public interest litigation has been filed against the Indian Government before the Hon’ble Supreme Court of India stating that the aforesaid clarification issued by the Government regarding the refund is discriminatory as it does not cover the scenario where tickets were booked prior to 25.03.2020 for travel thereafter which had to be cancelled as flight operations were suspended due to the nationwide lockdown imposed by the Government. The Apex Court observing that this does seem arbitrary has issued notice to the Government in this regard vide order dated 27.04.2020.
Hence in my opinion, it is imperative that the rights afforded for protection of passengers in the EC Regulation including those mentioned in the Air Passenger Charter are also provided by way of either (i) enactment of a new legislation on protection of air passenger rights; or (ii) inclusion by way of an amendment in the Carriage by Air Act, 1972; or (iii) through the publication of a new Civil Aviation Requirement by the Indian Government. This step shall remove any ambiguity regarding the rights available to air passengers which is especially the need of the hour today during the ongoing Covid-19 crisis.