A passenger on his honeymoon flight to Goa attacked a co-pilot after 13 hours of waiting. Frayed nerves in north India’s airports are on display in social media exchanges. Was this chaos inevitable or was it avoidable? Since flights are man-made, the chaos was hardly an act of God.
That fog would smother northern India and Delhi’s airports every winter is expected. This is not an exceptional year, even though this fog seems to have been irritatingly insensitive and persistent, compounded by heavy pollution. If India wants to fly, our population needs CAT-III ILS systems at airports working during the fog season. We need both of the IGI Delhi runways to be operational. The CAT-III system seems to have failed and one runway was and continues to be “under repair”. The extent of “inconvenience” caused to passengers had no limits. Passengers were made to wait well beyond the standard two-hour window. Kept waiting for 13 hours, passengers would have reached their destinations faster by train.
Airlines often resort to the phrase “extraordinary circumstances” or factors stated to be “beyond the control of the airline”, but what exactly constitutes such extraordinary circumstances has never been identified with any degree of certainty. If you want redressal on account of a cancelled flight, you may look for guidance from the Office of the Director General of Civil Aviation (DGCA) in what are called the Civil Aviation Requirements (CARs). A significant CAR is the one made effective on August 6, 2010 and revised on February 15, 2023 (Facilities to be provided to passengers by airlines due to denied boarding, cancellation of flights and delays in flights). A 2016 draft amended CAR and would have penalised the airline industry with compensation per passenger of Rs 5,000 for delays of more than three hours, Rs 10,000 for delays of more than four hours upto 12 hours and Rs 20,000 for delays of more than 12 hours. But those amendments were never implemented.
For more than seven years, the DGCA has been ruminating as to whether or not they should come down heavily on the airlines and fine them for delays “due to airlines fault (excluding force majeure)”. Decision-making simply escaped the attention of the (un)concerned Ministry of Civil Aviation of “MoCA” and its officers. Meanwhile, in the European Union, EC Regulation No. 261 of 2004 has been in operation for nearly two decades (since February 11, 2004). Whenever passengers have been inconvenienced through cancellations or delays, they have a “Right to Compensation” starting at Euro 250 and continuing upto Euro 600. There is also a right to reimbursement or rerouting and a “Right to Care” through refreshments and hotel accommodation. India has presently only picked up the idea of offering meals and refreshments in relation to waiting time and, after a 24-hour delay, hotel accommodation “when necessary”.
Sadly, these provisions are out of step with today’s fares and airline earnings. There is hardly any special arrangement made for disabled, old, infirm or even business/first class passengers who pay three-four times the fare and are subjected to exactly the same treatment (possibly with a wider seat and lounge access). No airline wants to pay compensation at these rates multiplied by, say, 160 passengers per flight every time there is a delay. Of course, this gives rise to litigation and more consumer cases, but even if the fines were imposed by law, the only way to implement them would be through an efficient machine-driven mechanism monitored by the regulator.
A consumer/passenger knows better than to sue an airline for the grand sum of Rs 5,000 which will be disputed, ending up in a consumer forum. That dispute will be answered with an airline reply filed weeks or months later. It will become a test case that is decided after a long time. No sensible consumer/passenger would file and pursue such a dispute. Even activists would be reluctant to find all the passengers on a particular flight and sue the airline for the amount of Rs 5 to 20,000 per passenger.
As an example, in the consumer case of Chandrikaben J Patel, decided in 2019, the National Commission awarded a sum of Rs. 30,000 to aggrieved senior citizen passengers for a delayed flight ordeal after more than six years of litigation. Further problems also emerge once the airline responds saying that the delay was not their fault and was caused by some external cause, like an act of god. This would call for evidence for the cause of delay and may take another year or more to be decided by the concerned consumer forum. Consumer forums and courts cannot ordinarily award compensation to non-parties, meaning people who did not go to court for redressal.
The DGCA has previously stepped in, imposing fines that benefit the MoCA but not the suffering passengers. There is no mechanism for distributing fines collected by the DGCA/MoCA to the affected passengers who suffer delays, indignity and harassment. This calls for amendment and a change of law to bring in a smooth mechanism of redressal, involvement of the regulator in that mechanism and automatic distribution to passengers affected.
The state of the law and regulations reflects a clearly unpalatable situation for India’s consumers and passengers, yet airlines tend to say that it is one of the most regulated and taxed aviation markets in the world. Good airlines have struggled to stay afloat. Jet Airways, Kingfisher, Go First, etc., stand out as examples of those who couldn’t stay airborne. Perhaps the Ministry of Civil Aviation should revisit aviation regulations and the civil aviation requirements to make the system fair to both passengers and airlines. Given our new abilities to track weather conditions, forecast the impact of fog, availability of Instrument Landing Systems and CAT-III runways, all major airports must now be enabled with such technology. Many of us have waited endlessly at an airport that does not have a CAT-III facility for visibility to extend beyond 5,000 metres (so that the aircraft can take off). Perhaps the time has come for India to appreciate the need to reduce its dependence on god and change its policies towards technology, science and transparent regulatory practices.
The writer is a senior aviation lawyer and Managing Partner and Founder of the law firm International Law Affiliates. Views are personal
This is not an exceptional year, even though this fog seems to have been irritatingly insensitive and persistent, compounded by heavy pollution. (ANI) 
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