Air Crash; National Aviation Company Vs. Abdul Salam [Kerala High Court, 25-08-2011]

Carriage by Air Act, 1972 – Liability of a carrier for damages – Limitations and Disabilities on Air Companies – Claims of compensation – Injury or death of passengers – general law on tort – damages.

# 2011 (4) KLT 72 : 2011 (4) KLJ 235 : ILR 2011 (4) Ker. 4 : 2011 (3) KHC 761

IN THE HIGH COURT OF KERALA AT ERNAKULAM

The Hon’ble MR. Justice C.N.RAMACHANDRAN NAIR and The Hon’ble MR. Justice P.S.GOPINATHAN

Dated this the 25th day of August, 2011

W.A. No. 1197 of 2011; W.A. No. 1237 of 2011

For Petitioner : Joseph Kodianthara (Sr.); For Respondent : P. Parameswaran Nair, ASG of India

J U D G M E N T

C.N. Ramachandran Nair, J.

An Air India Express on an International Flight from Dubai crashed on landing at the Bajpe International Airport at Mangalore on 22.5.2010 killing 158 and injuring the remaining 10 of the people on board including crew. The cause of the air crash is found to be pilot error and the National carrier does not dispute their liability for payment of compensation to the victims irrespective of whether claim is based on negligence of the carrier or not. Air crash victims on International flights are paid compensation based on International Conventions held periodically and India is a signatory to all such Conventions. The provisions of the last Convention which is the Montreal Convention of 1999 are also adopted in India by incorporation of the same as Third Schedule to the

# Carriage by Air Act, 1972

(hereinafter called “the Act”) and by making necessary amendments to the said Act which came into force from 1.7.2009. The Montreal Convention of 1999 which is now Third Schedule to the Act unlike the previous Conventions namely, the Warsaw Convention 1929 and the Hague Protocol 1955 covered by Schedules I and II of the Act respectively does not fix any upper limit of liability for the carrier towards compensation payable for death or injury suffered by a passenger.

2. The provisions of the Act though make the Air Carrier liable for compensation, no special Forum is constituted under the Act or Rules to determine compensation or to settle dispute between the claimants and the Air Carrier. However, the National carrier which has suffered few air crashes in the past have evolved a mechanism to settle claims through negotiated settlement by engaging qualified Attorneys. Following the practice in the past, the National carrier engaged their Attorneys M/s.Mulla & Mulla and Craigie Blunt and Caroe for receiving claim petitions in the format prescribed by Air India, for negotiations with the claimants and their Lawyers and for settlement of liability. Based on Rule 28 of the Third Schedule to the Act, Air India gave advance compensation of Rs.10 lakhs to the claimants of each of the deceased adult passenger and Rs.5 lakhs to the claimants of each child died in the air crash. As of now, the Attorneys engaged by Air India has been able to settle the claims of 62 of the victims, of which 56 are cases of death and 6 cases of injury. It is seen from the chart furnished by them that the minimum compensation paid for death is Rs.25 lakhs and the average compensation paid for death is Rs.80 lakhs per person, and in the case of death of 10 well employed persons the settlement made is on payment of compensation of above Rs.1 crore per passenger, of which the award for three ranges from Rs.3 crores to Rs.7.757 crores. The highest compensation of Rs.7.757 crores is said to have been paid to the legal heirs of a Cardiologist who died in the crash. It is seen that handsome compensation is given for injury sustained also and in most cases compensation for injury paid is above Rs.10 lakhs and in one case it goes up to Rs.45.7 lakhs. From the information furnished, it is seen that atleast 6 more cases of death are partly settled and negotiation is said to be continuing for final settlement in respect of claims pertaining to them and the compensation so far paid to each of them ranges from Rs.15 lakhs to Rs.1.4 crores. The statement furnished by Air India shows that as of now above Rs.50 crores is paid thereby settling claims for 62 victims finally and partly settling the claims pertaining to another 6. Counsel for the Air carrier has informed us that negotiations are going on for the settlement of remaining claims. Of course wherever there is no settlement, claimants can file suits in appropriate civil courts in India.

3. Party respondents in Writ Appeal No.1197/2011 who are the appellants in the connected Writ Appeal, are the legal heirs being parents and siblings of Sri.Mohammed Rafi, an unmarried youngster aged 24 who died in the air crash. He was employed in U.A.E. as a salesman on a monthly salary of 2000 Dirhams (around Rs.25,000/-) and met with the tragic end on his return journey to his house in Kerala. Respondent-claimants filed claim petition claiming compensation for the death of Sri.Mohammed Rafi, and towards advance compensation under Rule 28 of the Third Schedule Appellant-Air Carrier initially paid Rs.10 lakhs and thereafter they paid a further sum of Rs.10 lakhs making total advance paid at Rs.20 lakhs. In the course of negotiations, the appellant-Air Carrier offered to settle liability at Rs.35 lakhs. However, the respondent claimants without bargaining for higher amount, approached this court by filing Writ Petition under Article 226 of the Constitution for declaration and direction that in the case of death of a passenger in the air crash, irrespective of age, income, loss of dependency or other factors otherwise relevant in the determination of compensation in tort, the claimants are entitled to be paid a minimum compensation of 1 lakh SDRs. Special Drawing Rights is defined in terms of basket of currencies including US Dollars, Euro, Japanese Yen and British Pound and under the current exchange rate 1 lakh SDR is equivalent of around Rs.70 lakhs. The appellant-Air Carrier raised objection before the learned Single Judge stating that Third Schedule to the Act does not prescribe any minimum and the compensation for death or injury provided therein is without any ceiling limit but on actual proof of damage caused or injury suffered. The learned Single Judge however through a detailed judgment upheld the claim of the respondents holding that minimum compensation payable for the death of a passenger in the air crash is 1 lakh SDRs irrespective of age, income, loss of dependency or other factors otherwise relevant to determine liability for death in accident cases. It is against this judgment of the learned Single Judge, the appellant-Air Carrier has filed this Writ Appeal contending that the 3rd Schedule to the Act incorporating Montreal Convention of 1999 does not provide for any minimum compensation either for death or for injury of passengers in air crash. Appellant’s grievance is that insurance coverage is only for compensation legally payable to victims of the accident, and so much so, payments not authorised by the Act and Rules will not be reimbursed by the Insurance Company. They also apprehend adverse impact on premium payable for fresh insurance coverage based on the Single Bench declaring minimum compensation for death of every passenger at 1 lakh SDRs.

4. Party respondents have filed the connected Writ Appeal for enhancement of minimum compensation ordered to be paid by the learned Single Judge vide the impugned judgment from 1 lakh SDRs to 1,13,100 SDRs, which is the revised limit adopted in England which according to the claimants is payable to them under Rule 24(1) of the Third Schedule to the Act. In other words, while the prayer in the Writ Appeal filed by the Air Carrier is to quash the direction issued by the learned Single Judge to pay minimum compensation of 1 lakh SDRs, the prayer in the appeal filed by the claimants is to enhance the minimum compensation ordered by the learned Single Judge from 1 lakh SDRs to 1,13,100 SDRs in terms of the decision taken by the British Parliament, which is in line with the provisions of the Montreal Convention, the principle of which is adopted in Rule 24(1) of the Third Schedule, though the Government of India has not amended Rule 21(1) substituting the amount.

5. We have heard Shri.Joseph Kodianthara, learned Senior counsel appearing for the appellant-Air Carrier, Shri.Kodoth Sreedharan, learned counsel appearing for the claimants, and the learned Assistant Solicitor General appearing for Union of India.

6. After hearing learned counsel appearing for both sides, and on going through the judgment of the learned Single Judge, what we find is that the controversy is in a narrow region i.e. whether Rule 21 (1) fixes a minimum no fault or strict liability on the Air Company to pay compensation of 1 lakh SDRs in the case of death of each passenger, irrespective of actual damage suffered. The appellant-Air Company however concedes that the Montreal Convention incorporated in the Third Schedule to the Act is a deviation from the Warsaw Convention 1929 and Hague protocol 1955 incorporated in Schedules I & II of the Act limiting the maximum liability of carrier for every passenger at 1.25 lakh and 2.50 lakh gold francs respectively, the liability under the Montreal Convention incorporated in the Third Schedule to the Act for death or injury of passengers is unlimited. However, the Air Company has a specific case that no minimum liability either for death or for injury is prescribed under the Third Schedule to the Act. It is further clarified on behalf of the Air Company that even though minimum is not prescribed under the Third Schedule to the Act, as a matter of practice the Attorneys have adopted norms to give a minimum of Rs.25 lakhs for the death of a child and Rs.30 lakhs for the death of an adult. They have also referred to the statement containing the details of compensation paid to 62 settled cases of death and injury, brief details of which are stated above, and submitted that the negotiators are very reasonable, if not very liberal, in awarding compensation whether it be for death or for injury of passengers.

7. The learned Single Judge has traced the history of development of international law on compensation payable to air crash victims. There is no need to go into all these because Montreal Convention is made law of the land through amendment to the Act in 2009 (S. 4A) and incorporation of Third Schedule which applies to all claims pursuant to accidents in International flights. Further, Government of India in exercise of powers conferred under Section 8 of the Act notified the provisions of the Act and Third Schedule to it applicable to domestic flights as well. So much so, the decision of this court on the scope of the provisions of the Act including Third Schedule to it has not only application for settling claims arising in accidents in International flights but applies to domestic flights also.

8. Since the provisions of Third Schedule to the Act are the provisions of the Montreal Convention, the same apply to claims for or by Indians and Foreigners who perished or survived with injuries in the crash and therefore, the judgment of this Court will apply to other claimants including foreigners. Keeping this in mind we proceed to consider the scope of the relevant provisions and the correctness of the conclusions drawn by the learned Single Judge. For easy reference we extract hereunder the relevant provisions namely, Section 5 of the Act and Rules 17(1), 20, 21,23, 24, 26, 28 and 29 of the Third Schedule to the Act:

# S.5. Liability in case of death

(1) Notwithstanding anything contained in the Fatal Accidents Act, 1855 or any other enactment or rule of law in force in any part of India, the rules contained in the First Schedule, the Second Schedule and the Third Schedule shall, in all cases to which those rules apply, determine the liability of a carrier in respect of the death of a passenger.

(2) The liability shall be enforceable for the benefit of such of the members of the passenger’s family as sustained damage by reason of his death.

Explanation.- In this sub-section, the expression “member of a family” means wife or husband, parent, step-parent, grand parent, brother, sister, half-brother, half-sister, child, step- child and grand-child:

R.17(1) The carrier shall be liable for damages sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

R.20. If the carrier proves that the damages was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This rule applies to all the liability provisions of these rules, including sub-rule (1) of rule 21.

R.21.(1) For damages arising under sub-rule (1) of rule 17 not exceeding one lakh Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.

(2) The carrier shall not be liable for damages arising under sub-rule (1) of rule 17 to the extent that they exceed for each passenger one lakh Special Drawing Rights if the carrier proves that–

(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.

R.23. The sums mentioned in terms of Special Drawing Right in these rules shall be deemed to refer to the Special Drawing Right as defined by the International Monetary Fund and its conversion into national currencies shall, in case of judicial proceedings, be made in accordance with the method of valuation applied by the International Monetary Fund, in effect at the date of the judgment, for its operations and transactions.

R.24.(1) Without prejudice to the provisions of rule 25 and subject to sub-rule (2), the limits of liability prescribed in rules 21, 22 and 23 shall be reviewed by the depository at five-year intervals, the first such review to take place at the end of the fifth year following the date of coming into force of these rules. The measure of the rate of inflation to be used in determining the inflation factor shall be the weighted average of the annual rates of increase or decrease in the Consumer Price Indices of the States whose currencies comprise the Special Drawing Right mentioned in rule 23.

R.26. Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in these rules shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of these rules.

R.28. Notwithstanding anything contained in any other law for the time being in force, where the aircraft accident results in death or injury of passengers, the carrier shall make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments shall not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.

R.29. In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under these rules or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in these rules without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”

9. As already stated, the only controversy is whether the Air Carrier is liable to pay minimum compensation of 1 lakh SDRs to the claimants in the case of death of a passenger irrespective of actual damage suffered. The learned Single Judge interpreting Rule 21(1) held that no fault liability or strict liability of the Air Carrier by way of minimum compensation payable for death of a passenger is 1 lakh SDRs irrespective of age, income, loss of dependency or other factors of the deceased otherwise applicable for determining liability in tort. However, the contention raised by the appellant-Air Carrier is that there is no minimum or maximum compensation payable under any of the provisions of the Third Schedule and the peculiar feature of Montreal Convention incorporated in the Third Schedule to the Act is that there is no upper limit for liability of the Air Carrier for compensation payable to the victims and on proof of damage, the compensation payable for death or injury is without limit. We have already noticed that the deviation made in the Montreal International Convention from the two previous International Conventions held at Warsaw and at Hague is the removal of upper ceiling limit in regard to compensation payable to victims of air crashes. While the Warsaw Convention fixed the maximum limit at 1.25 lakhs Gold Francs, the Hague Protocol increased it to 2.50 lakhs Gold Francs. In other words, no one could claim compensation from the carrier in excess of the limits prescribed in the Conventions, no matter actual proved damages is more than the said amount. However, in supersession of these provisions, the Montreal Convention lifted the ceiling and declared that liability of the carrier is unlimited.

10. What is clear from sub-section (1) of Section 5 of the Act is that inspite of applicability of general law on tort and Fatal Accidents Act for claiming compensation against Air Carrier for death of a passenger in an air accident, the claim for compensation against the Carrier has to be made only in accordance with the provisions of the Act and the relevant Schedule to the Act which in this case is the Third Schedule. What is stated in sub-section (2) of Section 5 which is very significant for the purpose of this case is that the claim shall be enforceable by members of the passenger’s family who sustained damage by reason of his death. This provision pre-supposes that the members of the passenger’s family would suffer damage on account of death of the passenger and what is to be claimed is the actual damages for the loss sustained by members of the family. This provision certainly excludes the concept of a minimum liability on the Air Carrier for the death of a passenger. Rule 17(1) can certainly be treated as the provision that creates statutory liability on the Air Carrier for the damages sustained in the form of death or bodily injury of a passenger. This Rule explains the scope of an air accident in which damages could be claimed for the loss suffered. The only condition for eligibility for compensation for death or bodily injury of a passenger is that the accident leading to the claim should be caused while the passenger was on board the air craft or was in the course of any of the operations of embarking or disembarking from the plane. There is no issue in this case on the scope of this provision because the Air Carrier admits liability to pay actual compensation to the respondents-claimants and their contest is only against the direction of the learned Single Judge to grant minimum compensation of 1 lakh SDRs under Rule 21(1), no matter the actual compensation payable going by the age, income and other relevant factors applicable to the deceased may be less. Therefore, what we have to now examine is whether minimum compensation of 1 lakh SDRs is payable in the case of death of a passenger under Rule 21(1) of the Third Schedule as held by the learned Single Judge. In the first place, what we notice is that Rule 21 (1) talks about compensation payable under Sub-rule (1) of Rule 17 which as already stated above provides for compensation not only for death but for bodily injury of a passenger. Therefore, if at all Rule 21 (1) provides for minimum compensation of 1 lakh SDRs, then it applies not only for death of the passenger, but for bodily injury as well. Going by the interpretation placed by the learned Single Judge on Rule 21(1) read with Rule 17(1) minimum compensation of one lakh SDRs is payable to every passenger even for injury sustained, however minor it may be. We are unable to uphold the findings of the learned Single Judge in regard to liability of the Air Carrier to pay minimum compensation of 1 lakh SDRs under Rule 21(1) because the said Rule in the first place does not explicitly provide for it. Secondly, sub-rule (1) of Rule 21 has to be understood with sub-rule (2) thereunder and with reference to other Rules of the Third Schedule. Sub-rules (1) and (2) of Rule 21 make it clear that in any claim for compensation, whether it be for death or injury of the passenger, made under Rule 17 (1) which is in excess of 1 lakh SDRs, the Air Carrier has a defence which is by establishing that the damage was not due to negligence or other willful act or omission of the carrier or it’s servants or agents or that such damage was due to negligence or other wrongful act or omission of a third party. Therefore, what is covered by these provisions is that the claimants need not plead or prove any negligence on the Air Carrier for claiming compensation upto any amount. However, if claim made is in excess of 1 lakh SDRs, then Air Carrier can resist the claim over 1 lakh SDRs by pleading and proving the satisfaction of clauses (a) or (b) of Rule 21(2) explained above. Here again, in order to avoid payment of compensation claimed for death or injury of a passenger in excess of 1 lakh SDRs., the burden of proof to establish want of negligence on the part of itself, it’s agents or servants or the proof of negligence or wrong act or omission on the part of a third party causing the accident is on the Air Carrier. So much so, Rule 21 only puts an embargo against the Air Carrier from raising a defence of want of negligence on their side or negligence of third parties causing the accident to resist any claim of compensation for death or injury to a passenger upto 1 lakh SDRs. Even though the learned Single Judge has not considered the scope of Rule 20, what we notice is that sub-rule (1) of Rule 21 is subject to Rule 20, the second part it clearly states that Air Carrier can wholly or partly claim exoneration from liability, if it proves that the damage was caused or contributed by the negligence or other wrongful act or omission of the passenger in respect of whom claim is made. Of course Rule 20 has no application in the case of an air crash where the passenger has no role. Probably this Rule has application in the case of a solitary accident happening to a passenger while on board or while boarding or disembarking the plane for his own fault. However, the position is such that in an appropriate case the Air Carrier has a right to plead and prove contributory negligence, if they want to resist compensation payable under Rule 21(1) even upto 1 lakh SDRs. However, we reiterate that this issue does not arise in this case and we have stated it only for the sake of completeness of the scope of application of the Rules.

11. Rule 28, in our view, also throws some light on the scope of Rule 21(1) because what it provides is payment of advance compensation to meet the immediate economic needs of the victim’s family. What is more significant in Rule 28 is that there is a specific statement that advance payment of compensation shall not be treated as a recognition of liability and the advance payments made will be adjusted against damages finally determined. This Rule makes it clear that damages payable is to be determined based on sound principles of law and there is no concept of minimum compensation payable because if minimum is payable, then certainly Rule 28 could have provided for minimum payment as advance compensation and there is no scope for providing set off of minimum amount against final award. So much so, in our view, the learned Single Judge committed an error in holding that in all cases of death of a passenger irrespective of age, income, status, loss of dependency or other conditions of the deceased passenger, the Air Carrier is liable to pay minimum compensation of 1 lakh SDRs.

12. Counsel for the appellant-Air Carrier has relied on the findings and observations of the United States District Court on the scope of Montreal Convention in the case of BRIGITTE UGAZ, which is as follows:

“Though, the Court has found no “accident” in this case, if the Montreal Convention applies and an “accident” were actually found to have occurred, then carriers are essentially held liable for proven damages up to “100,000 Special Drawing Rights”. See Montreal Convention, art. 21. This amounts to approximately $135,000. Montreal Convention, Letter of Transmittal to the Senate, President William J. Clinton, Sept. 6, 2000. However, if damages arising under Article 17 are “not due to the negligence or other wrongful act or omission of the carrier or its servants or agents”, then carriers are not liable over that amount. Montreal Convention, art. 21. This provision of the Montreal Convention diverges from the Warsaw Convention and imposes a new legal standard for damages above the Special Drawing Rights, See

# Kruger v. United Airlines, Inc., 481 F. Supp. 2d 1005, 1008 (N.D. Cal 2007).

13. It is seen from the above that the American District Court also understands the provisions of the Montreal Convention as providing for payment of damages proved up to 1 lakh SDRs without any defence to the carrier to escape from liability. The learned Single Judge has referred to the no fault liability provided under Section 140 of the Motor Vehicles Act, 1988 and also several Court decisions pertaining to award of compensation for road accidents. The principles of law on tort are the same for determining compensation arising out of road accident or railway accident or air accident. The exception to this in the case of air accident victims is that for claims for death or personal injury upto 1 lakh SDRs, cause of accident has no relevance or in other words, negligence need not be looked into. However, unlike the provisions of Motor Vehicles Act and Railway Act which provide for no fault liability of the statutorily fixed minimum amount for death of passengers, the provisions of the Carriage by Air Act and the Third Schedule thereunder do not fix any minimum compensation payable for death of a passenger. So much so, we do not think there is any need for us to go into the decisions or the law discussed on compensation payable to road accident victims. The only decision pertaining to air crash considered by the learned Single Judge is the one rendered by the learned Single Judge of the Andhra Pradesh High Court in

# K. Bharathi Devi and Others v. GIC,, reported in AIR 1988 AP 361

wherein the issue raised and decided was on IInd Schedule to the Act which is Hague Protocol. Moreover, the question raised was whether the amount received by the claimants under the Personal Accident Insurance Policy could be set off against compensation payable under the Act for damages, and the learned Single Judge of the Andhra Pradesh High Court negatived the plea raised by the Insurance Company. We do not find this issue arising in this case, and so much so, there is no scope for considering the correctness or otherwise of this judgment more particularly because it is not on Third Schedule or on Montreal Convention. In our view, the provisions of the Act including the Third Schedule though imposes certain limitations and disabilities on Air Companies in their defence against claims of compensation made for injury or death of passengers the general law on tort based on which damages has to be determined, is not dispensed with. In other words, subject to the limitations of carrier stated above, compensation has to be claimed by claimants of or by victims of air crash based on sound principles of law on tort applicable in the determination of compensation such as age, income, loss of dependency and all other principles relevant in the determination of compensation for injury or death suffered in air accident.

14. From the discussions above, we draw our conclusions on the scope of the provisions of the Act and Rules contained in the Third Schedule as follows:-

(1) The liability of the carrier for damages payable for the loss suffered on account of death or injury of a passenger in an air accident is unlimited. However, the carrier is liable to pay only actual damages proved by the claimants in the case of death and by the victims in the case of injury. The liability so payable can be determined through negotiated settlement or by civil court of competent jurisdiction.

(2) Rule 21(1) of the Third Schedule to the Act or any other provisions of the Act or Rules does not provide for payment of any minimum compensation by the air company for death or injury of a passenger in an air accident. However, we feel the carrier as a matter of goodwill as in this case should offer a reasonable minimum, even if the actual damages payable in law may be low, so that unnecessary litigation is avoided through settlement.

(3) Actual damages payable has to be claimed and proved by the injured or by the claimants for the death of passengers before the Civil Court if no settlement is reached between the claimants and the Air Company.

(4) The carrier is entitled under Rule 20 to plead and prove that the accident is caused on account of contributory negligence of the passenger as defence against damages claimed under Rule 21(1) for injury or for death of such passenger, which of course does not apply to the claims arising from this air crash.

(5) Irrespective of whether the accident is due to the negligence of the carrier or their servants or agents or not, or the accident is caused by third party, the carrier is liable to pay actual proved damages upto 1 lakh SDRs to the claimants of the deceased passenger or to the passenger injured in the accident. Where damages claimed is above 1 lakh SDRs, the carrier can resist the claim in excess of 1 lakh SDRs by pleading and proving that the accident was not caused on account of the negligence of the carrier or their employees or agents or that the accident was caused by the negligence or other wrongful act or omission of a third party.

This is subject to the further condition that burden of pleading and establishing this defence is on the carrier, in the absence of which, there will be a presumption of negligence against the carrier entitling the claimant for actual damages irrespective of limit.

15. In view of the findings above, we allow W.A. No.1197/2011 filed by the Carrier by setting aside the judgment of the learned Single Judge and leaving the matter to be settled through negotiations, if possible. However, if settlement is not reached in negotiations, it is up to the claimants to file suit before appropriate Court claiming actual damages. We however direct the Appellant-Air Carrier to pay compensation reasonably estimated by the Attorneys as payable to respondents and to all other claimants, irrespective of whether there is settlement or not, so that suit if any filed by the claimants in Court is limited to disputed claim amount. In other words, the Appellant-Air Carrier through their Attorneys should determine and pay compensation reasonably payable based on sound principles of law of tort based on details of the victims furnished by the claimants.

In view of our above findings in the Writ Appeal filed by the Air Carrier that respondents are not entitled to minimum damages of 1 lakh SDRs awarded by the learned Single Judge, their claim for payment of minimum compensation at 1,13,100 SDRs as against 1 lakh SDRs awarded by the learned Single Judge based on Rule 24(1) is not tenable. So much so, W.A.No.1237/2011 filed by the claimants lacks any merit and is dismissed. However, the appellant-claimants are free to pursue negotiations with the Attorneys of the Carrier to reach a settlement on actual damages payable, and in the event of failure, they are free to accept the compensation offered by the Carrier and then file suit before appropriate Civil Court for getting higher compensation, if eligible under law.

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