There has been considerable debate in the media and other public fora about the broad contours of an ideal civil aviation policy. Issues and concerns of all stakeholders are amplified and taken up effectively at various fora. One important issue that has been so far bypassed is the rights of the air passengers and the responsibilities of the service providers.
What are the remedies that the passengers can avail if the service providers fail in their responsibilities?. Though, tortuous liability under the law of Torts is an accepted doctrine in the Indian legal context, its application is severally limited. Lack of legal resources for claiming the damages are some of the key areas where Indian citizens are relatively less empowered.
Coming to the civil aviation area in India – the segment has ushered in a new era of expansion, driven by factors such as low-cost carriers (LCCs), modern airports, Foreign Direct Investment (FDI) in domestic airlines, advanced information technology (IT) interventions and growing emphasis on regional connectivity. It is reported that the India would be the ninth-largest civil aviation market in the world, with a market size of around US$ 16 billion and is expected to become the third largest aviation market by 2020. In this scenario Indian aviation sector should focus on manufacturers, tourism boards, airlines and global businesses to individual travelers, shippers and businessmen.
According to the reports during May 2016, domestic air passenger traffic rose 21.63 per cent to 8.67 million from 7.13 million during the same month of last year. Passenger traffic during FY 2015-16 increased at a rate of 21.3 per cent to 85.57 million from 70.54 million in the FY 2014-15. In March 2016, total aircraft movements at all Indian airports stood at 160,830, which was 14.9 per cent higher than March 2015. International and domestic aircraft movements increased 10.5 per cent and 16.0 per cent, respectively, in March 2016.Indian domestic air traffic is expected to cross 100 million passengers by FY2017, compared to 81 million passengers in 2015. Also, India is among the five fastest-growing aviation markets globally with 275 million new passengers. The airlines operating in India are projected to record a collective operating profit of Rs 8,100 crore (US$ 1.29 billion) in fiscal year 2016.
Given the growing opportunities in the sector, it is important for us to take every step to protecting the interest in terms of safety, security and comfort of its centre point and consumer of these services i.e the “Passenger”. Can a passenger in India claim damages in the way an American or European can do in their respective countries ? The moot point is how this doctrine is applicable to air passengers in India?
Let us take the case of a lawyer from Delhi going to Mumbai for appearing there at the court to represent his/her client. While disembarking at Mumbai he finds that his checked in baggage which contains his costumes and case file, is missing or misdirected with the result that either he could not appear in the
court or because of the absence of valid documents he could not properly represent his client. Even if the baggage is returned to the person in the gap of few hours or a day, the damage has already been done. Invariably, once the baggage is returned, the airlines do not pay any damage. Even if they pay in certain situations, there are a set rules for such payment, which do not take into consideration the mental and other agonies that the passenger has to undergone during the period of missing or lost baggage.
This situation can be extrapolated to many other eventualities, such as a sick passenger’s medicines stacked in the checked in baggage reaches late, an artist’s aircraft comes late to miss the show he or she has undertaken to perform or a tourist reaches late to find out the itinerary goes for a toss or a business person reaches late for his scheduled meetings with the bankers or clients. In all such situations there is a damage and there is no clear cut guidelines as to how to compensate the passenger in case the delay or the loss or damage of the accompanying baggage has been caused by the negligence of the airlines or concerned authorities.
Though there are no separate figures for misdirected or lost baggage, it can be assumed that their number would have gone up considerably on account of the surge in number of air passengers and new destinations added in the air route. There is no organized way to estimate the misplaced / lost baggage, flight delays and other grievances in turn their economic cost since we do not have an independent common entity which looks in to these issues except the respective airlines’own passengers grievance redressal cells.
The misplaced or lost baggage is mostly on account of the negligence. A deposition before the US Congressional Committee in the recent past listed out the major reasons for the misdirection. Though these figures are more relevant to the US, it can be safely presumed that such causes are not only universal but also cut across the time frame and are relevant even now. According to that 61% of the causes for misdirection is wrong handling at transit points, 15% at the place of origin and ticketing error accounts for 9% of the baggage loss. The rest of the reasons are loading / off loading error, space-weight restrictions, tagging errors and so on.
There are complexities in pointing the liabilities in case of misdirection of baggage. Baggage handling systems differ from one airport to the other. In the United States, baggage handling systems are typically owned and operated by the airlines, rather than the airport. The situation varies from airport to airport and from airline to airline. Some airlines have their own baggage system, some share baggage systems with other airlines, and some hire third party companies to provide a baggage system. In certain situations, airports typically lease baggage handling systems that are then used by all airlines operating at the airport. Multiple agencies involved in the baggage loading, unloading, tagging etc. at various stations make it very difficult to pin point whose negligence has caused the loss or misdirection of the luggage.
It may have to be kept in mind that ‘Law of Torts’ is a common law and there is no statute or abiding rules framed for defining negligence and the quantum of damages the inflicting party is liable for. This branch of law has evolved through decided cases and is often found in developed societies which recognize human freedom and its infringement. For instance, it is
rather compulsory for a doctor to take an insurance cover for the possible tortuous cases that can be leveled at him or her citing negligence in the US or any other developed country. But in India, this branch of law is relatively under developed, though various court decisions have attempted to focus on this area.
Of late, there have been some court decisions which help the affected people to seek damages. Foremost is the doing away with the exemption granted to the sovereign authority for the damages caused to an individual or entity on account of the negligence?
However, application of the tortuous liability in the case of damages caused to the air passengers is certainly tardy. The reasons are not far to seek. One, there is lack of awareness of the common man to seek damages. For instance, an airline due to the negligence of the pilot, overshoots the runway or does a risky landing or take off can be sued by the passengers for the mental agony and discomfiture caused. Two, in India, unlike in the US or any other developed countries, not many legal experts are there specializing in law of torts with the results that there are very few such cases coming up before the over – crowded courts. Three, not many affected parties can afford legal cost involved in fighting the cases. Four, the scant precedence in the Indian situation where the court ruling have gone in favor of the litigant.
In conclusion, it is important for India to catch up with legalities of the lost, missing, late delivered baggage, discomfort in check-in, exit, checked in passenger safety in the airports and airlines, food hygiene, medical exigency, transit flight connectivity, collection of unreasonable user development fee, non refund or late refund of ticket cancellation amount and other hardships caused to the passengers on account of the negligence of the airlines, airports and other stakeholders. Equally important for us is to set up an independent autonomous entity to address these concerns of the air passengers in the country. That should go hand in hand with the development that we are contemplating for the civil aviation sector per se since passengers are the fulcrum of airports as well as airlines, which can make or break the growth trajectory of the sector in the country.