The contract between the parties was one of international carriage. Carriage was defined in the First Schedule of the Carriage by Air Act, 1972. Section 3 of the Carriage by Air Act, 1972 laid down that the rules contained in the First Schedule would have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage. Section 4 made the amended convention applicable to India. Chapter III of the First Schedule of the Carriage by Air Act, 1972 laid down the liability of the carrier. Rule 19 specified that the carrier was liable for damages occasioned by delay in the carriage by air of passenger, luggage or goods. In Rule 20 it was provided that, the carrier was not liable if he proved that he or his agents took measures. Rule 21 specified that in the event the carrier proved that the damage was caused by or contributed to by the negligence of the injured person the Court may exonerate the carrier wholly or partly from his liability.
Calcutta High Court
Sudipto Sarkar vs Air India Limited on 11 April, 2014
Citation;AIR 2014calcutta 186
The plaintiff, an eminent lawyer, sued the defendant for damages on breach of a contract of carriage.
The plaintiff was travelling to Dubai for legal work fixed on July 9, 1989 and July 10, 1989. The plaintiff entered into a contract of carriage with the defendant. The defendant agreed to carry the plaintiff from Kolkata to Dubai and back. The agreed onward journey was that, the defendant would carry the plaintiff from Kolkata to Delhi by flight AI 165A on July 9, 1989 departing Kolkata at 0500 hours and arriving at Delhi at 0650 hours, and from Delhi to Dubai by flight EK 701 departing Delhi at 0930 hours and arriving at Dubai at 1115 hours on July 9, 1989. The agreed return journey was from Dubai via Muscat and Mumbai on July 10, 1989 arriving at Kolkata on the morning of July 11, 1989. The passenger ticket issued by the defendant to the plaintiff was to such effect.
On July 9, 1989 the flight of the defendant from Kolkata was considerably delayed. The plaintiff made enquiries with the defendant as to whether the defendant would be in a position to facilitate the plaintiff to board the connecting flight at Delhi. On such enquiry, the defendant represented that they would assist the plaintiff in securing the connecting flight at Delhi. On such representation the plaintiff boarded the flight AI 165A at Kolkata. The flight left Kolkata at 0700 hours and arrived at Delhi at 0855 hours.
On arrival at Delhi, the plaintiff was not provided with any assistance by the defendant to avail of the connecting flight. The plaintiff was not permitted to board the connecting flight EK701 as the boarding for the flight was closed. The plaintiff was informed that there was no alternative flight available till July 11, 1989.
The conduct of the defendant at Delhi was contrary to the representations made by the defendant at Kolkata. The defendant did not make any arrangement for the stay of the plaintiff at Delhi. The plaintiff was constrained to make arrangements for travel from Delhi to Kolkata on his own.
The plaintiff suffered mental anguish, strain and tension apart from physical strain. The plaintiff claimed a sum of Rs.1,05,000/- as damages and in the alternative an enquiry into the loss and damages suffered by the plaintiff and a degree for such sum as may be found due upon such enquiry.
The defendant filed written statement and denied the allegations. The defendant denied that the contract of carriage was an international carriage all through within the meaning of Carriage by Air Act, 1972. The defendant admitted the mode of travel of the plaintiff. According to the defendant, on July 9, 1989 the Air India flight number AI 165A was delayed by 1 hour and 55 minutes due to the late arrival of the flight from Delhi. Since flight AI 165A was operating 1 hour 55 minutes behind schedule an employee of the defendant checked with the plaintiff and expressed doubt that the plaintiff would not be in a petition to avail of the connecting flight out of Delhi. Such employee brought the matter to the attention of the duty officer who was of the same view. The plaintiff was put on notice. The plaintiff preferred to take the risk and travelled to Delhi. On receipt of the complaint from the plaintiff the defendant checked with the staff attending to flight AI 165A and understood that none of the staff of the defendant received any request from the plaintiff for sending any message to Delhi regarding his arrival as a domestic passenger to avail of the connecting flight to Dubai. The defendant enquired into the complaint made by the plaintiff and did not find any negligence on their part. The late arrival of the defendant's flight on July 9, 1999 was beyond the control of the defendant. The plaintiff did not have sufficient time to avail of the connecting flight without any fault on the part of the defendant. The defendant refunded the unutilised coupons to the plaintiff on August 4, 1989 after it received a request for such refund on July 17, 1989. The defendant claimed that it was not liable or responsible for the failure of the plaintiff to avail of the connecting flight.
The plaintiff produced himself as the witness. The defendant produced it's the then traffic Assistant as a witness. Eight documents were marked as exhibits on behalf of the plaintiff while seven documents were marked as exhibits on behalf of the defendant.
On behalf of the plaintiff it was contended that, the defendant agreed to carry the plaintiff from Kolkata to Dubai and back. The contract of carriage agreed between the parties was a composite contract. The passenger ticket for such contract was deemed to be an undivided International carriage under the Carriage by Air Act, 1972. The defendant, therefore, was liable and obliged to the plaintiff in respect of the entire travel from Kolkata to Dubai and back. The defendant was obliged to ensure that the plaintiff could avail of the connecting flight from Delhi once he boarded the flight at Kolkata. At the very least, the defendant was obliged to render adequate facilities and assistance to the plaintiff once it was not possible for the plaintiff to avail of the connecting flight at Delhi.
The plaintiff boarded the flight at Kolkata on July 9, 1989 despite the flight being delayed almost by 2 hours solely on the assurance given on behalf of the defendant that the defendant would ensure that the plaintiff would be able to take the connecting flight from Delhi to Dubai on the same day. The plaintiff relied on the defendant to render assistance for availing the connecting flight. The defendant did not render any assistance at Delhi. The defendant did not make any arrangement for the plaintiff to return to from Delhi. The plaintiff arranged for the air ticket for his return by using his credit card. The defendant did not make any arrangement for the plaintiff to stay at Delhi during the time when he missed the connecting flight and his return flight to Calcutta.
On behalf of the plaintiff the correspondence between the parties between July 17, 1989 and March 14, 1990 were relied upon. It was contended that the defendant admitted negligence. Since the defendant did not settle the matter amicably the plaintiff was constrained to file the instant suit.
On the contention of the defendant that under Passenger Tariff Number 1, General Rules and Regulations, the defendant would not be held responsible for errors of omission in timetables or representations of the schedules and that schedules were subject to change without notice and that the carrier would have no responsibility for making connection, it was submitted on behalf of the plaintiff that the same would have no applicability. Similar contention of the plaintiff was made with regard to clause 9 of the conditions of contract printed on the passenger ticket. It was contended on behalf of the plaintiff that clause 9 of the conditions of contract or Rule 9 of the General Rules and Regulations did not apply since in this case it was not a change of schedule but an admitted case of delay.
On behalf of the plaintiff, reliance was placed on Chapter I, Rule 1(3) and (4) and Chapter II of the Rules of the First Schedule as well as Chapter II Rules 3(2) and Chapter III Rule 19 of the Second Schedule of the Carriage by Air Act, 1972. It was contended that, the defendant as the carrier was liable for damages occasioned by delay.
On the maxim of res ipsa loquitor on behalf of the plaintiff reliance was placed on All India Reporter 1962 Calcutta page 544 (Sm. Madhuri Chaudhuri & Ors. v. Indian Airlines Corporation). On behalf of the plaintiff it was submitted that, the Court need not enter into minute details to calculate the quantum of damages and reliance was placed on 1995 Volume 1 Supreme Court Cases page 551 (R.D. Hattangadi v. Pest Control (India) Pvt. Ltd.) and 1977 Volume 2 Calcutta Law Journal page 108 (Sree Gopal Khaitan v. Scandinavian Air Lines System) in that regard.
In support of the contention that the plaintiff need not establish the damages reliance was placed on All India Reporter 1963 Calcutta page 163 (Gambhirmull Mahabirprasad v. The Indian Bank Ltd. & Anr.), 1999 Volume 3 Supreme Court Cases page 500 (Dwaraka Das v. State of M.P. & Anr.), 1984 Volume 4 Supreme Court Cases page 59 (M/s. A.T. Brij Paul Singh & Ors. v. State of Gujarat).
On behalf of the defendant it was contended that, no issues were framed in the suit. However on the query from the Court whether by not framing issues was the proceedings in the suit vitiated, the learned Counsel for the defendant did not reply.
It was contended on behalf of the defendant that, the flight arriving at Calcutta was delayed consequently the flight leaving from Kolkata was delayed. The delay was beyond the control of the defendant. The plaintiff was aware of the delay and the time available to avail of the connecting flight at Delhi. The plaintiff being aware of the risks chose to avail the flight from Kolkata to Delhi. No assurance was given to the plaintiff as claimed by the plaintiff. The plaintiff availed the flight from Kolkata on his own risk.
The defendant was not responsible in the plaintiff's missing the connecting flight. Exhibit '1' was relied upon. The defendant was concerned with the domestic portion of the travel of the plaintiff. The defendant did not have any control over the International carrier. The loss and damages if any suffered by the plaintiff was at the instance of the International carrier and on the international portion of the journey of the plaintiff. The defendant, therefore, could not be held responsible for the alleged misdeeds of another carrier.
The defendant contended that, there was no privity of contract between the plaintiff and the defendant with regard to the international portion of the journey. There being no privity of contract the plaintiff was not entitled to claim any damages from the defendant.
It was submitted on behalf of the defendant that, the decision reported at All India Reporter 1962 Calcutta page 544 (Sm. Madhuri Chaudhuri & Ors. v. Indian Airlines Corporation) was not relevant and in any event was overruled by All India Reporter 1965 Calcutta page 252 (Indian Airlines Corporation v. Sm. Madhuri Chowdhuri & Ors.).
It was submitted on behalf of the defendant that, the monsoon set in the month of July. The flight from Delhi to Kolkata was delayed due to poor visibility.
According to the defendant, the plaintiff was required to establish absence of cause for delay. The plaintiff did not do so. Therefore, the plaintiff was not entitled to claim any compensation by way of damages.
I considered the respective pleadings, the evidence on record and the submissions on behalf of the parties.
That the defendant agreed to carry the plaintiff from Kolkata to Dubai via Delhi as the outward journey and from Dubai to Kolkata via Muscat to Mumbai on the return journey was an admitted fact. The fact that the flight from Kolkata to Delhi departed late was also undisputed. Few questions arose on the late departure of the flight from Kolkata to Delhi. Late departure of the flight from Kolkata to Delhi necessarily meant that the time available to the parties for the plaintiff to avail the connecting flight to Dubai was lessened. The parties knew when the plaintiff was boarding the flight at Kolkata that he would have that much less time at New Delhi to avail of the connecting flight. It was the duty of the defendant to ensure that the plaintiff was adequately informed that he would be at risk of not availing the connecting flight due to the delayed departure of the Kolkata flight to Delhi.
The defendant did not establish that, they informed the plaintiff that, the plaintiff would not be able to avail of the connecting flight at Delhi due to the delayed departure of the Kolkata flight. In the written statement it was claimed that one employee of the defendant who checked with the plaintiff on July 9, 1989 expressed his doubt about the plaintiff's catching the connecting flight out of Delhi. The defendant in the written statement also claimed that such employee brought the matter to the attention of the duty officer who allegedly concurred with the view of the first employee of the defendant. Nothing in evidence established such claim of the defendant. The witness of the defendant stated that he was on duty on July 9, 1989. However, he went on to say that he did not remember the incidents of July 9, 1989.
The defence that the defendant was not responsible for change in schedule and that the defendant was entitled to change schedule without notice and without any responsibility was not available to the defendant in the facts and circumstances on this case. True the late arrival of the flight from Delhi forced the defendant to delay the departure of the Kolkata flight to Delhi. However, when the plaintiff was allowed to board for Kolkata to Delhi flight, the defendant knew of the time period required for a passenger of a Kolkata Delhi flight to avail of the connecting flight to Dubai from Delhi and the requirements of such passenger to avail of such connecting flight. The defendant could not be allowed to take the defence that, it was entitled to change schedules without notice and without responsibility. The defendant in the facts of this case allowed a passenger knowing fully well the entire length of his journey to avail of a flight in spite of the late departure of the Kolkata to Delhi flight.
The contract between the plaintiff and the defendant was one and it was an undivided international carriage within the meaning of The Carriage by Air Act, 1972. The defendant was liable and obliged to the plaintiff in respect of the entire travel form Kolkata to Dubai and back including the obligations to ensure the plaintiff could avail of the connecting flight once the plaintiff boarded the flight at Kolkata. Rule 1(3) of the First Schedule as well as Rule 1(3) of the Second Schedule to The Carriage by Air Act, 1972 defined 'international carriage'. The definition of international carriage under The Carriage by Air Act, 1972 amongst others, required carriage of a person from two sovereign states even if such sovereign states were not a high contracting party within the meaning of the said Act. The ingredients for the contract of carriage in the instant case to be termed as an international carriage within the meaning of The Carriage by Air Act, 1972 were satisfied. The plaintiff was travelling from India to United Arab Emirates, two sovereign nations, with the defendant agreeing to carry the plaintiff from Kolkata to Dubai and back with the breaks as agreed.
The defendant owed the plaintiff a duty of reasonable care. As a carrier the defendant was obliged to carry the plaintiff from Kolkata to Dubai and back as contracted. It was claimed by the defendant that the delayed departure of the Kolkata flight prevented the defendant from carrying the plaintiff from Kolkata to Dubai and back as contracted. Assuming that the version of the defendant to be correct, that the plaintiff boarded the flight at Kolkata after being informed that he would not be in a position to avail of the connecting flight, even then the defendant owed the plaintiff the minimum care of assisting the plaintiff to avail of the connecting flight and on the failure of the plaintiff to avail of the connecting flight to make arrangements for his travel by an alternative carrier and in the event of such failure to make arrangements for his travel to the port of origin being Kolkata. In evidence the plaintiff established that, the defendant did not discharge such obligations also. The plaintiff established that no assistance was rendered to him to avail of the connecting flight although it was possible that, had the defendant rendered the assistance to the plaintiff to avail of the connecting flight the plaintiff could avail of the same. The failure of the defendant stood magnified when the plaintiff established that, the Kolkata office did not put in any request with the Delhi office to render assistance to the plaintiff to avail of the connecting flight. The plaintiff established that, the personnel of the defendant at Delhi airport did not know that the plaintiff as an international passenger was to avail of connecting flight to Dubai. This failure of the defendant was abject.
The defendant undertook to carry the plaintiff from Kolkata to Dubai. The contract was between the plaintiff and the defendant. It was not available to the defendant to contend that the international portion of the journey was the concern of another air line. The contract between the plaintiff and the defendant was one of international carriage within the meaning of The Carriage by Air Act, 1972. The privity of contract was between the parties for the entire portion of the journey. It was the obligation of the defendant to ensure that the plaintiff could travel from Kolkata to Dubai and back.
The failure of the defendant to discharge its obligations did not end with the failure of the defendant to facilitate the plaintiff to avail of the connecting flight at New Delhi. It continued thereafter. The plaintiff established that, the defendant did not make any arrangement for the plaintiff to take any other flight from Delhi to Dubai nor did the defendant make any arrangement for the defendant to fly to Kolkata. The defendant was such negligent as not to render any assistance to the plaintiff for his stay in New Delhi. The plaintiff was without money and was in agony suffering the breaches committed by the defendant.
As a carrier the defendant failed to discharge its rudimentary obligations. When the defendant accepted the plaintiff as a passenger travelling from Kolkata to Dubai via New Delhi it was the obligation of the defendant to provide all facilities to the plaintiff, first to avail of the connecting flight and then in the eventuality of the failure to do so, to try and put the plaintiff on the next available flight to Delhi and in the event the plaintiff not being able to travel at all, to facilitate his return to Kolkata and ensure his convenience in the interregnum. None of these were discharged by the defendant. The treatment meted out by the defendant was not desirable to say the least.
The contract between the parties was one of international carriage. Carriage was defined in the First Schedule of the Carriage by Air Act, 1972. Section 3 of the Carriage by Air Act, 1972 laid down that the rules contained in the First Schedule would have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage. Section 4 made the amended convention applicable to India. Chapter III of the First Schedule of the Carriage by Air Act, 1972 laid down the liability of the carrier. Rule 19 specified that the carrier was liable for damages occasioned by delay in the carriage by air of passenger, luggage or goods. In Rule 20 it was provided that, the carrier was not liable if he proved that he or his agents took measures. Rule 21 specified that in the event the carrier proved that the damage was caused by or contributed to by the negligence of the injured person the Court may exonerate the carrier wholly or partly from his liability.
In the instant case the plaintiff could not avail of the connecting flight due to the delayed departure of the flight from Kolkata to Delhi. The time of the year was such that monsoon intervened. The aircraft from New Delhi arrived late. The flight from Kolkata to New Delhi could not take off within time. The delay was beyond the control of the defendant. The defendant was, therefore, not liable. In addition thereto the defendant claimed that, the plaintiff travelled at his own risk and responsibility.
The defendant did not establish that, as a carrier it took measures to avoid the damages within the meaning of Rule 20 of the First Schedule or the Second Schedule to the Carriage by Air Act, 1972. The defendant did not put the plaintiff on notice that, the plaintiff would be availing of the Kolkata to Delhi flight at his risk and that the defendant would not be in a position to render any assistance to the plaintiff at Delhi for the purpose of the plaintiff availing of the connecting flight. On the contrary the plaintiff established in evidence that, the defendant agreed to render assistance to the plaintiff to facilitate his availing of the connecting flight. The plaintiff also established that, on his arrival at New Delhi contrary to the assurances given by the employees of the defendant at Kolkata, no facility or arrangement was in place in New Delhi to facilitate the plaintiff to avail of the connecting flight. In fact, there was no communication from the Kolkata unit to the Delhi unit putting such request in place for the plaintiff.
The facts did not disclose that the defendant took any measure to avoid damages. The defendant was, therefore, liable.
The question then arose as to the quantum of liability. The plaintiff claimed a sum of Rs.1,05,000/- as damages. In the alternative the plaintiff claimed inquiry for the loss and damages. On behalf of the plaintiff reliance were placed on Sm. Madhuri Chaudhuri & Ors. (supra), R.D. Hattangadi (supra), Sree Gopal Khaitan (supra).
Sm. Madhuri Chaudhuri & Ors. (supra) was overruled in All India Reporter 1965 Calcutta page 252 (Indian Airlines Corporation v. Sm. Madhuri Chowdhuri & Ors.). In R.D. Hattangadi (supra) the Supreme Court was concerned with claim for compensation under the Motor Vehicles Act by a lawyer who met with an accident on the highway. In the facts of the case the Supreme Court held that, while fixing an amount of compensation payable to a victim by an accident, the damages were required to be assessed separate as pecuniary damages and special damages. Pecuniary damages were those which the victim incurred and were capable of being calculated in terms of money. Non-pecuniary damages were those which were incapable of being assessed by arithmetic calculation. The Supreme Court was of the view that different circumstances could be taken into account to compute the amount of compensation to be awarded.
In Sree Gopal Khaitan (supra) this Hon'ble Court held that a sufferer was always entitled to damages for mental shock, sufferings and pain caused by the negligence of the wrong-doer irrespective of any physical injury suffered by him. A sufferer was always entitled to general and not to nominal damages for physical inconvenience, pain, discomfort and other ailments. It was not possible to measure such damages precisely in terms of money. It would depend on particular or special facts and circumstances of the case.
In Gambhirmull Mahabirprasad (supra) it was held that, the fact that damages were difficult to estimate and could not be assessed with certainty or precision did not relieve the wrong- doer of the necessity of paying damages for breach of duty and was not a ground for awarding only nominal damages.
In Dwaraka Das (supra) the Supreme Court dealt with power of correction of mistakes or errors of judgment, orders or decrees under Sections 151 and 152 of the Code of Civil Procedure, 1908. Adverting to the facts of the case the Supreme Court was of the view that damages could be claimed under Section 73 of the Contract Act, 1872 when it was proved that the other party committed breach by improperly rescinding the contract. In such a situation for estimating the cost of damages the Court should make a broad evaluation instead of going into minute details.
In A.T. Brij Paul Singh (supra) the Supreme Court was of the view that while estimating the loss of profit for the breach of contract it would be unnecessary to go into the minute details in view of the value. Breach evaluation would be sufficient. On the point of assessing the damages suffered by the plaintiff and the compensation to be payable to the plaintiff in respect thereof the Court was not required to go into the minute details. The Court must give a finding that the plaintiff suffered damages, such damages was caused by the breach of the contract by the defendant. Both the aforesaid grounds were established in the instant case. The plaintiff having established both the grounds was, therefore, entitled to compensation as damages.
The plaintiff was no doubt the sufferer. As the sufferer the plaintiff was entitled to compensation in terms of the ratio Sree Gopal Khaitan (supra). Damages suffered by the plaintiff could be contended as difficult to estimate. Difficulty in estimation would, however, not disentitle the plaintiff to receive compensation nor would it relive the defendant of the necessity to pay damages. Difficulty in estimating the damages also was not a ground for awarding nominal damages. Some sort of quantification was, therefore, required. Authorities cited at the bar did not require the Court to go into minute details. Breach evaluation was held to be sufficient.
The claim of the plaintiff was for Rs.1,05,000/- only. Given the stature of the plaintiff and the nature of the work that he contemplated to discharge it could not be said that the claim of the plaintiff was not reasonable. The plaintiff was flying out of Kolkata to Dubai for professional reasons. The plaintiff could not attend to his professional duties by reason of the failure of the defendant. Such ground alone was sufficient to allow the plaintiff the compensation of Rs.1,05,000/- as claimed by him. In addition thereto the plaintiff underwent mental anxiety, physical discomfort apart from losing his fees and reputation.
At the end of his submissions the learned Counsel for the defendant submitted, surely on a lighter vein, that, the plaintiff being of such a stature, might just as well give up the claim of Rs.1,05,000/-. True, the sum claimed by the plaintiff was far less than his entitlement according to his stature. However, I am passing a decree of the sum of Rs.1,05,000/- as claimed by the plaintiff against the defendant on the hope that the management of the defendant would take notice of the quality of service that it was rendering to its customers and attempted remedial measures. A far more courteous behaviour towards the plaintiff and all other customers of the defendant were expected of the defendant as the national carrier. It owed a greater duty to its customers in consonance with the high standards of hospitality that Indians are known for. The facts of the instant case depicted that the plaintiff was dealt with in a manner which was far from being courteous and certainly not in consonance with the high standards of Indian hospitality.
C.S. No. 727 of 1977 is decreed accordingly. There will be, however, no order as to costs.
[DEBANGSU BASAK, J.]
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