Air Craft Act; Abdul Salam Vs Union of India [Kerala High Court, 20-07-2011]

Carriage by Air Act, 1972 – S. 5 – Carriage by Air (Amendment) Act, 2009 – Indian Carriage by Air Act, 1934 – Fatal Accidents Act, 1855 – Motor Vehicle Act, 1939 & 1988 – Workmens’ Compensation Act, 1923 – ‘No fault liability’ – Compensation – Aircraft Accidents – Impact of international conventions on India.

2011 (3) KLJ 662 : ILR 2011 (3) Ker. 457 : 2011 (3) KHC 199

IN THE HIGH COURT OF KERALA AT ERNAKULAM

The Hon’ble the Chief Justice MR.J.CHELAMESWAR and The Hon’ble MR. Justice P.R.RAMACHANDRA MENON

Dated this the 20th July , 2011

W.P. (C) No. 32550 of 2010 (P)

For Petitioner: Kodoth Sreedharan; For Respondent: P. Parameswaran Nair, Asst. Solicitor, H.D. Nanavati (Sr.) SC, Joseph Kodianthara (Sr.) SC, Binu Mathew, E.K. Nandhakumar, Mathews K. Uthuppachan (Sr.). Terry. V. James.

J U D G M E N T

P.R. Ramachandra Menon, J.

Does the law reckon the poor folk travelling in an ill- fated plane and losing their lives in an accident,along with mighty rich, as the ‘Children of a Lesser God’, with regard to the eligibility to obtain the statutory compensation payable under the

Carriage by Air Act 1972,

as amended by the Carriage by Air (Amendment) Act, 2009 (Act 28 of 2009) incorporating the relevant provisions under the III Schedule in conformity with the Montreal Convention adopted on 28.05.1999, is the point involved.

2. The history of civil aviation industry in the world is said as traceable to the 18th century, when a hot air balloon was designed, proclaiming the starting of balloon flights, followed by construction of airships in the 19th century and the ‘first flight’ by the Wright Brothers in 1903. The concept of Air crafts and Air travel however was not alien to Indian society, in view of the reference to ‘Pushpaka Vimana’ in the ‘Ramayana’ by Saint Valmiki, though it was beyond the dreams of the rest of the world, till then. India also joined hands with the West, when the Tata’s historic flight from Karachi to Mumbai was inaugurated on 15.10.1932. In the course of developments in all spheres, India made her presence felt, by subscribing her signature to various international instruments governing the liability of Air Carriers for injury or death of passengers or destruction, loss or damage of baggage or cargo and losses caused by delay in international carriage of passengers, baggage and cargo, ratifying the Warsaw Convention on 1929, the Hague Protocol 1955 and lastly, the Montreal Convention 1999, giving effect to the same by way of appropriate legislations, such as, Indian Carriage by Air Act 1934, The Carriage by Air Act 1972 and Act 28 of 2009 introducing the 3rd Schedule and other amended provisions to the existing Act.

3. The petitioners are ‘members of the family’ of the deceased Mohammed Rafi, who lost his life in the Air crash occurred at the Bajpei International Airport, Mangalore, Karnataka State on 22.05.2010 involving an International Carrier belonging to the second respondent, a Government Company owned by the first respondent/Union of India. In fact, the deceased was working in the United Arab Emirates and was returning home, in the ill-fated ‘Air India Express’ plane owned by the erstwhile Air India Corporation Ltd., now the second respondent National Aviation Company of India Ltd (pursuant to the merger with the Indian Airlines). The international flight originated from Dubai International Airport, UAE and the destination was the International Airport, Mangalore in India. It was a Boeing 737 8HG (Registration VT-AXB) performing the flight IX-812, which took off in the early hours on 22.05.2010 and during the course of landing at the ‘Table-top runway’ of the International Airport, Mangalore, overshot the runway and fell into a gorge sustaining the crash. 158 persons carried in the Aircraft, out of the total 160 passengers and 8 crew, sustained a horrifying death and the deceased involved in this case was one among them. The local police registered a crime and submitted FIR to the JFCM Court, Mangalore on 22.05.2010. Enquiry and investigation by different authorities including those under the Air Craft Act, 1934 was set in motion.

4. While settling the compensation for lives and limbs of the passengers and damage sustained to the property, the petitioners who are the parents and sisters/brothers of the deceased submitted a claim in the prescribed form for the due amount payable under the Act. The second respondent disbursed a sum of Rs.10 lakhs by way of ‘Interim Compensation’ as contemplated under Rule 28 of the the III Schedule and negotiations were going on with regard to the balance payable. The petitioners, like many others, stood for the satisfaction of the minimum statutory liability of ‘One lakh SDR’-(Special Drawing Rights) as provided under Rule 21(1), read with and 17(1) of the Third Schedule and Section 5(1) of the Act. It is contended that the second respondent put forth an unconscionable demand, allegedly at the instance of their Insurers, to come to a settlement for a total sum of Rs.35 lakhs “in full and final settlement” of the claim and asked the petitioners to sign on the dotted lines, which was not palatable to them. They chose to approach this Court by filing this writ petition for declaration and enforcement of their rights, referring to the mandate of the Montreal Convention.

5. The crux of the contentions in the writ petition is that the Air crash was solely on account of the lapse on the part of the Pilot ( who is indicated as snoring at the relevant time, when the plane was about to land) and in turn, the sheer negligence on the part of the Second respondent Airlines. As such, strict liability is sought to be established upon the Airlines, in view of the relevant provisions of law, however stating that the claim of the petitioners would stand confined to the statutory extent.

6. The second respondent has filed a counter affidavit virtually conceding the factual position, that the matter has to be dealt with as per the provisions of the Carriage by Air Act, 1972, as amended by the Montreal Convention of 1999 (incorporated under the III Schedule to the Act), to the exclusion of all other law in force in India. The scope of the relevant provision, particularly with regard to the extent of liability under the Rule 21(1) of the III Schedule, providing for an amount of ‘One lakh SDR’ stipulated therein is sought to be interpreted as not the minimum amount of compensation payable, but the maximum limit ‘upto which’ the liability can be cast upon the Carrier. It is contended that the compensation payable is ‘not equal’ in all cases and that, it is subject to proof as to the ‘extent of damage sustained’. Referring to the fact that the deceased was aged 24 years and was employed as a ‘salesman’ in a Super Market, earning a salary of 2000 AED (Rs.25000/- per month), the maximum compensation payable was contended as much below Rs.35 lakhs and accordingly, Rs.35 lakhs was offered as the compensation payable in “full and final settlement”, which was not acceptable to the petitioners. Explaining the scheme of the provisions in the Act/Rules, it is pointed out that the liability of the Carrier, as specified under Rule 21 has been bifurcated, whereby it has been stipulated in sub-rule(1) that, upto a compensation limit of ‘One lakh SDR’, the Carrier will not be eligible to set up any defence referring to the absence of negligence, while such a defence is possible in respect of the extent of compensation payable above ‘One lakh SDR’, as given under sub-rule (2). This, according to the second respondent, does not mean that the amount of ‘One lakh SDR’ payable in the case of death or bodily injury under sub rule (1) of Rule 21 is automatic and contends that the same is payable only subject to proof of the damage sustained because of the injury/death of the person concerned. Viewed in the said circumstance, the amount of Rs.35 lakhs offered to be paid to the petitioners is stated as reasonable and a ‘just compensation’, simultaneously adding that many of the cases have already been settled by paying the eligible compensation varying from case to case, some of which stand above ‘One lakh SDR’, based on the facts and circumstances.

7. The petitioners have filed a reply affidavit, mostly reiterating the contentions raised in the writ petition, however producing some additional documents including the ‘Speech’ of the Minister for Civil Aviation, Govt. of India, while piloting the Bill dated 30.04.2008 resulting in the amendment of Carriage by Air Act. Referring to the contents of ‘FDR’ and ‘CVR’ (Flight Data Recorder and Cockpit Voice Recorder respectively), it is stated in the said reply affidavit that the enquiry/investigation conducted by the competent authorities revealed that the mishap was only because of the culpable negligence on the part of the Pilot and as such, the second respondent/Airlines cannot shirk its liability and responsibility with regard to compensation payable under any circumstance. The manner of interpretation, as sought to be adopted by the second respondent with regard to the extent and instance of liability, referring to the ‘proof of damages’, is stated as unfounded, with reference to the relevant provisions of law and judgments, asserting that the respondents cannot compel the petitioners to issue a discharge voucher accepting a sum of Rs.35 lakhs offered “in full and final satisfaction” and that the aforesaid amount, which forms the admitted liability, might be ordered to be disbursed forthwith.

8. In the course of the proceedings, pursuant to a query raised by this Court as to the basis on which compensation would be assessed by the second respondent in the event of the death of a ‘child or a non-earning member’, in any given case following an Air accident, a ‘Brief Note’ was submitted (dated NIL) signed by the learned Counsel for the second respondent, which, among other things, makes a reference to the manner of fixation of compensation under the M.V. Act and the decision rendered by the Apex court in