Flight protections need legal upgrade

Consumer rights have been one of the most debated topics in the aviation industry in recent times. Be it legal consequences arising out of flight delays, flight cancellations, baggage damage, lost baggage, or denied boarding, these are all issues that can be an airline’s nightmare as a result of air travellers – the consumers – wanting to exercise their legal rights and hold the airline accountable.

While a jurisdiction like the EU has a robust legal mechanism in place to protect consumer rights vis-à-vis the aviation industry, India lacks such a dedicated regime. This article focuses on the prevailing legislation in India to protect air passenger rights, and why there is a need to enact a dedicated law for air passenger protection, similar to Regulation (EC) No. 261/2004 in the EU.

EU compensation rules

Regulation (EC) No. 261/2004 was enacted on 11 February 2004, and established common rules on compensation and assistance to passengers in the event of denied boarding, flight cancellations or long delays. This included, among other things, reducing the number of passengers denied boarding against their will by requiring air carriers to first call for volunteers to surrender their reservations in exchange for benefits, instead of denying boarding outright, and by fully compensating those finally denied boarding.

Under this regulation, passengers denied boarding against their will should be able either to cancel their flights with reimbursement of their tickets, or to continue their journeys under satisfactory conditions and be adequately cared for while awaiting a later flight. The regulation also provides that volunteers should be entitled either to cancel their flights with reimbursement or to continue them under satisfactory conditions, since they face difficulties similar to those experienced by passengers denied boarding against their will.

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This regulation is dedicated to air passenger protection within the EU, with article 14 making it obligatory for air carriers to inform passengers of their rights. Carriers must also inform passengers of cancellations before the scheduled time of departure and offer them reasonable rerouting so that they can make other arrangements. The only exception to air carriers compensating passengers for cancellations is when the cancellation results from extraordinary circumstances that could not have been avoided, even if all reasonable measures had been taken.

Present legal position

The only law prevailing in India is the Consumer Protection Act, 2019. While this legislation deals with the deficiency of services in general, it lacks any dedicated provisions pertaining to the protection of air passengers.

The definition of consumer under this act excludes from its purview any person who purchases goods or avails of services for any commercial purpose. This means that any passenger who files a consumer dispute against an airline must also establish that the service availed from the airline was not for any commercial purpose.

For example, if a person sues a vehicle manufacturer for a defect in a vehicle purchased from the manufacturer, they can only file a consumer dispute if the vehicle was bought in their name and for their personal use. If the vehicle was bought in the name of their company or for company-related work, it would be considered a commercial purpose, and the person would not have a remedy under the Consumer Protection law.

Be that as it may, notable features of the act in its present form include:

1. Concept of an “unfair contract”, which includes those contracts that favour manufacturers or service providers and are against consumer interest.

2. Establishment of a Central Consumer Protection Authority (CCPA) to regulate, protect and enforce the interest of the consumers and matters related to unfair trade practices.

3. Concept of “product liability” – which has been defined as the responsibility of a product manufacturer or product seller – of any product or service is related to the product to compensate for any harm caused to a consumer by such defective product manufactured or sold or by deficiency in services relating to the product.

4. Ensuring speedy resolution of disputes by providing for the referral of the disputes to mediation. It is, however, pertinent to note that rule 4 of the Consumer Protection (Mediation) Rules, 2020, framed there explicitly provides for certain matters not to be referred to mediation implying that only a certain category of matters can be referred to mediation.

5. The 2019 act also provides for filing of complaints before the district forums electronically in accordance with the rules as and when prescribed by the government.

6. The CCPA – having the power to impose a penalty in respect of any false or misleading advertisement by a manufacturer or an endorser – may, by order, impose on the manufacturer or endorser a penalty, which may extend to INR1 million (USD11,400).

The Ministry of Civil Aviation, in February 2019, published a Passenger Charter dealing with air passengers’ rights. This charter includes passenger rights pertaining to, among other things: (1) flight delays; (2) denied boarding due to overbooking; (3) flight cancellations; (4) flight diversions; and (5) cancellation charges. A major drawback of this Passenger Charter is that this document does not have any legal statutory backing.

There is a civil aviation requirement (CAR), issued by the Directorate General of Civil Aviation, which has legal sanctity and deals with the refund of airline tickets to passengers of public transport undertakings. However, the CAR only deals with: (1) the delay in refund of unused tickets; (2) the amount refunded by the airlines against cancelled tickets; and (3) the policy of not refunding the ticket amount but adjusting it against future tickets to be purchased by the passenger for future travel on the same airline, valid only for a limited period of time.

This CAR prescribes only the minimum requirements for the refund of tickets purchased by passengers with respect to air transport undertakings, including scheduled domestic operators, non-scheduled operators, and foreign carriers operating to/from India. It does not, however, prescribe the above-mentioned passenger’s rights provided in the Passenger Charter and in 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. However, several legal issues affecting air passenger protection, such as denied boarding – which has recently been on the rise, according to media reports – are not addressed in the Carriage by Air Act.

Analyses

An important question to consider is whether, when there already exists the Carriage by Air Act, there is any further need for dedicated legislation dealing with the protection of an air passenger’s rights. The answer would be yes.

Both the Montreal Convention, whose principles are incorporated in the Carriage by Air Act and the EC Regulation were set up to protect passenger rights. So then, where is the difference?

The Montreal Convention sets out rules providing for, and limited to, the liability of air carriers, and provides passengers with compensation in case of damages arising from death or bodily injury if the accident that caused it occurred in-flight or during embarking or disembarking.

This convention also offers compensation in cases of a flight delay leading to damages and problems pertaining to baggage. The EC Regulation, on the other hand, provides for the protection of passenger rights for the inconvenience caused by flight disruption, which is not provided for in the Montreal Convention.

Hence, it is of utmost importance that the rights afforded for the protection of passengers in the EC Regulation, including those mentioned in the Passenger Charter, are also provided either: (1) through the enactment of new legislation on the protection of air passenger rights; (2) through inclusion by way of an amendment to the Carriage by Air Act; or (3) through the publication of a new civil aviation requirement by the Indian government. Such a step would remove any ambiguity regarding the rights available to air passengers and is the need of the hour.

Vikrant Pachnanda is an advocate-on-record at the Supreme Court of India and an aviation attorney.

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