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Jagrut Nagrik & Another v/s The Secretary, Ministry of Civil Aviation & Others

Company & Directors' Information:- A K AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200MH2007PTC176382

Company & Directors' Information:- S V V AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200KA2008PTC046264

Company & Directors' Information:- S R C AVIATION PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071383

Company & Directors' Information:- M AND C AVIATION INDIA PRIVATE LIMITED [Active] CIN = U63013KA2006PTC039002

Company & Directors' Information:- S. A. AVIATION PRIVATE LIMITED [Active] CIN = U63040DL2012PTC234038

Company & Directors' Information:- AVIATION INDIA PRIVATE LIMITED [Strike Off] CIN = U63033DL1996PTC077267

Company & Directors' Information:- S K AVIATION PRIVATE LIMITED [Strike Off] CIN = U63090WB1999PTC089940

Company & Directors' Information:- P AND M AVIATION PRIVATE LIMITED [Active] CIN = U35999KA2021PTC143523

Company & Directors' Information:- S. S. AVIATION PRIVATE LIMITED [Active] CIN = U35300KA2007PTC043583

Company & Directors' Information:- R. S. INDIA AVIATION PRIVATE LIMITED [Active] CIN = U62100DL2006PTC153980

Company & Directors' Information:- J D M AVIATION INDIA PRIVATE LIMITED [Active] CIN = U63040PB2013PTC038242

Company & Directors' Information:- J T AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200DL2011PTC216080

    Consumer Case No. 13 of 2008

    Decided On, 14 August 2015

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appearing Parties: P.V. Moorjani, AR, Sanjay Gupta, Anand Jain, Rajeev Mehra, Sr. Advocate, Divyam Agarwal, Manish Jha, Shruti, Swati Mehta, Ramji Srinivasan, Sr. Advocate, Manish Jha, Divyam Agarwal, Swati Mehta, Rahul, U.A. Rana, Himanshu Mehta, Sanjay Pal, Advocates.

Judgment Text

V.K. Jain, Presiding Member

The complainant No.1 Jagrut Nagrik is a Public Trust, registered under the Bombay Public Trust and Societies Act and is stated to be working as a Voluntary Consumer Association, providing legal help to the consumers and undertaking activities for their awakening. According to the complainants, airlines have been advertising sale of tickets on throwaway prices, ranging from Rs.0/- to Rs.999/- while in fact, charging much much more than the price advertised by them. The respondent airlines, according to the complainant, are thereby misrepresenting the passengers, through misleading advertisements, as regard the fare being charged by them. This is also the case of the complainants that the airlines are charging fuel surcharge, congestion charges and transaction fee, which is much higher than their actual cost in this regard. The aforesaid action of the airlines, according to the complainants amounts to unfair trade practice and deficiency in the services to the passengers. The complainant are therefore before this Commission, seeking Rs.10,00,00,000/- as punitive charges from each of the respondent airlines. They are also seeking direction to the Government of India and Director of Civil Aviation to take appropriate action against the aforesaid airlines for giving misleading advertisements and illegally collecting fuel surcharge, congestion charges and transaction fee from the passengers.

2. In their reply, respondents No.1 and 2 have inter-alia stated that the tariff for domestic air transportation is not regulated by the Government and the same is left to be determined by the market forces of demand and supply. It is further stated that they have advised the airlines to clarify the tax components as well as the details of the fare, surcharges etc., and accordingly all airlines are now showing basic fare, fuel charges, congestion fee, passengers service fee and transaction fee (if the ticket is booked through a point of purchase other than the website of the airlines) separately.

3. Some of the respondents have filed reply opposing the complaint. Jet Airways (I) Ltd. while, disputing the locus-standi of the complainants to maintain the instant complaint has denied that the advertisements issued by it were misleading the passengers. As regards, fuel surcharges and congestion charges, it is claimed that they are additional expenses incurred by the airlines due to steep increase in Air Traffic Fuel (ATF) and air congestion at the Airport. It is further alleged in the reply that only and applicable taxes are collected and remitted to the Government. It is also pointed out in the reply that there are no legal restrictions on the airlines collecting fuel charges and congestion charges from the passengers.

4. In their reply, Kingfisher Airlines and Deccan Aviation Ltd. have inter-alia stated that their advertisements clearly states that Rs.500/- was the basic fare and transaction fee, fuel surcharge, congestion charges etc., will be charged extra and terms and conditions would apply. It is further stated that the entire information with respect to the break-up of the air fare is available on the website of the Airlines. It is also stated that Rule 135 (4) of the Aircraft Rules permit the Director General of the Civil Aviation to issue directions, in case he satisfied that any operator has established excessive tariff or indulged in oligopolistic practice. It is also pointed out in the reply that the cost of the ATF would be same, irrespective of number of passengers on a particular flight and normally there is congestion at several airports, which results in consumption of fuel while the aircraft is awaiting landing permission.

5. National Aviation Company India Ltd. (Owners of Air India), while denying issue of any misleading advertisements, has claimed that their fare structure is based on rational economic decisions and they are neither levying any congestion charges nor collecting transaction fee from the passengers. According to them, they are only collecting applicable surcharge from the passengers as per their pricing policy structure.

6. As regards quantum of the fuel charges, congestion charges and transaction fee being added to the basic fare, in our view, the issue cannot be agitated before a Consumer Forum. The Government has clearly stated in its reply that the tariff for domestic air transportation is not regulated and is left to be determined by the market forces of demand and supply. Rule 135 of the Aircraft Rules, 1937, to the extent it is relevant reads as under:

(1) Every air transport undertaking operating in accordance with sub-rules (1) and (2) of rule 134, shall establish tariff having regard to all relevant factors, including the cost of operation, characteristics of service, reasonable profit and the generally prevailing tariff.

(2) Every air transport undertaking shall cause to be published the tariff established by him under sub-rule (1) in his website or two daily newspapers, and shall display such tariff in a conspicuous part of his office and in the office of his agent, if any.

(2A) The tariff to be published under sub-rule (2) or advertised in any other way shall show the following particulars, namely:-

a. The total amount payable by a passenger; and

b. A complete break-up of the total amount, indicating the fare, tax, fees or any other charge, if any separately.

For the purpose of this sub-rule –

a. Tax means the amount payable to the Government; and

Fees means the amount payable to the service providers for provision of any service or facility to the passengers.

(2B) The particulars mentioned in sub-rule (2A) shall also be mentioned in the passenger ticket.

4. Where the Director-General is satisfied that any air transport undertaking has established excessive or predatory tariff under sub-rule (1) or has indulged in oligopolistic practice, he may, by order, issue directions to such air transport undertaking.

5. Every direction issued under sub-rule (4) shall be complied with by such air transport undertaking'.

Thus the carriers are permitted, by law, to fix tariff for the flight operated by them. If the said tariff is displayed on the website of the concerned airline, that by itself, will be a sufficient compliance with Sub-Rule (2). Of course, the information available on the website must necessarily give complete break-up of the total amount payable by the passenger for a particular journey. If a person is aggrieved on account of such tariff being excessive or predatory or feel that the carrier, by way of fixing its tariff, has indulged in oligopolistic practice, he can approach the Director General of Civil Aviation, who is competent to issue appropriate directions which are binding upon the concerned carrier. A Consumer Forum therefore, cannot go into justification or otherwise, of the charges such as fuel surcharge, congestion charges and transaction fee etc., added by a carrier to the basic fare.

7. The next question which comes up for our consideration in this complaint is as to whether the advertisements which do not disclose even the whole of minimum amount payable by a passenger to the carrier issuing the advertisements and thereby seeks to draw the potential travellers/consumers to its website by advertising only a part of the total amount payable by them, constitutes unfair trade practice or not. The term ‘unfair trade practice’ has been defined in Section 2(1)(r) of the Consumer Protection Act. To mean a trade practice, which for the purpose of promoting, inter-alia the provisions of any service adopts any unfair method or unfair or deceptive practice, including the practices enumerated in sub-clauses (i) to (x) of the said provision. One of the specific practices enumerated as unfair or deceptive trade practice or method is ‘materially misleading the public concerning the price at which the services have been or are provided’. It is not in dispute that the advertisements issued by the respondents Jet Airways and Deccan Aviation did not disclose even the minimum amount, which a passenger had to pay to the aforesaid carriers for travelling on any sector on which flights were operated by them at the relevant time. The advertisements issued by the Deccan Airways sought to attract the customers by declaring the basic fares starting at Rs.500/- on Bangalore-Coimbatore, Bangalore-Pune, Bangalore-Vijayawada and Bangalore-Hyderabad Sectors, though admittedly, the minimum amount payable by a passenger for travelling on any of the above referred four sectors was much higher. The aforesaid advertisements does disclose that the passenger service fee / transaction fee / fuel surcharge would be extra but the said disclosure is at the bottom of the advertisement in very small letters and gives no indication of the amount payable as passenger service fee, transaction fee, fuel surcharge etc. The advertisement issued by Jet Airways giving publicity to its celebration fares on the occasion of celebrating the travel of 75 million passengers proclaimed the fare to be Rs.500/-, without even disclosing that in addition to the aforesaid fare, the passenger will also have to pay charges such as passenger service fee, transaction fee and fuel surcharge. Even the fact that the basic fare of Rs.500/- was the minimum fare available on any sector, can be ascertained only from a careful scrutiny of the advertisement since the word ‘onwards’ has been printed in very small letters, which an ordinary reader is not even likely to notice, considering the much much bigger size of the letters used for printing the amount of Rs.500/-. Admittedly, the total amount payable by a passenger travelling on any sector of Jet Airways was much more the aforesaid amount of Rs.500/-.

8. The advertisements disclosing only the minimum basic fare to the potential consumers is to say the least misleading, when viewed in the light of the fact that the other charges payable by a passenger, far exceed the said minimum basic fare. The obvious purpose behind issuing such misleading advertisements is to lure the customers to the website of the carrier by misrepresenting to them that they would be able to travel on payment of the fare advertised by the carrier whereas, in fact, they have to pay much much more than the said minimum basic fare. Though, the whole of the fare including its break up into different components would be known to the passengers before he books a ticket on the website of the carrier, the ulterior motive behind issue of such advertisements is duly served by that time, since having gone to the website of the carrier not all the potential consumers would retract without booking tickets. Having taken the trouble of accessing the website of the concerned carrier, some of them are likely to book the tickets, despite the fact, that the total amount payable by them is much higher than the amount advertised by the carrier. Such advertisements also serve the purpose of increasing the number of persons visiting the website of the carrier since not all of them would visit if they are not allured by the promise of the travelling on fare which is much much below the actual fare payable by the passengers.

9. For the reasons stated hereinabove, we hold that issue of advertisements such as those issued by Deccan Aviation and Jet Airways whether in newspapers or otherwise, constitutes unfair trade practice as defined in Section 2(1)(r) of the Consumer Protection Act, 1986.

10. In our opinion, the persons who, attracted by such misleading advertisements are drawn to the website of the concerned carriers would certainly feel disappointed and dejected on finding that the actual fare being charged by the airlines was much more than what it had advertised. Their harassment and the loss of their precious time on account of such advertisements, in our opinion, can hardly be disputed, though it is not possible to identify all such persons. Section 14 (1) (hb) therefore enables this Commission to direct the concerned service

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provider to pay such compensation as may be determined by it. Moreover, Section 14 (1) (d) also empowers this Commission to grant punitive damages in appropriate cases. This Commission is also competent to direct the concerned service provider to issue corrected advertisements to neutralize the effect of misleading advertisements at their own cost. 11. For the reasons stated hereinabove, we direct the respondent Kingfisher Airline, which is the successor in interest of Deccan Aviation and the respondent Jet Airways India Ltd., to deposit Rs.5,00,000/- and Rs.25,00,000/- respectively as compensation in the Consumer Welfare Fund of Government of India, Ministry of Consumer Affairs . The amount so deposited by the aforesaid two carriers shall be used by respondents No.1 and 2 for the spread and awareness of consumer rights amongst the public at large. We also direct the aforesaid carriers to refrain from issuing advertisements which do not disclose even the minimum total amount payable by a passenger on any sector of the said carrier. We recommend to the respondents No. 1 & 2 issue guidelines, which will ensure a strict compliance of this judgment by all the airlines, so that there is no occasion to file such a complaint against any other carrier. The compensation, in terms of this order, shall be deposited within six weeks from today.