Delhi High Court
Namrata Singh & Ors. vs Director General Civil Aviation ... on 25 January, 2016
Author: Rajiv Shakdher
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 29.10.2015
% Judgment delivered on: 25.01.2016
+ WP(C) 1867/2012
NAMRATA SINGH & ORS. ..... Petitioners
Versus
DIRECTOR GENERAL CIVIL AVIATION
(DGCA) & ORS. ..... Respondents
WP(C) 1880/2012
NIRMAL & ANR. ..... Petitioners
Versus
DIRECTOR GENERAL CIVIL AVIATION
(DGCA) & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr Arun Khatri & Mr Anshul Sharma, Advocates
For the Respondents: Mr Arun Bhardwaj, CGSC with Ms Gunjan Bansal, Adv. for R-
1 & 2.
Mr Ratan K. Singh, Mr. D.D. Singh, Mr Raghvendra Bajaj, Mr
Navdeep Singh, Mr Vipul Agrawal, Mr Udit Chauhan, Mr
Vinay Vats & Mr Raghav Alok, Advocates for R- 3 & 4.
Mr A.K. De, Mr Rajesh Dwivedi & Mr Zahid Ali, Advocates
for R-5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J.
Prefatory Facts :
1. These, are two writ petitions, filed by the legal representatives of,
one, Capt. Harpreet Singh Sekhon and Capt. Manjeet Kataria. Capt.
Harpreet Singh Sekhon and Capt. Manjeet Kataria died in an air crash, on
25.05.2011. The legal representatives claim various reliefs including
compensation and damages for loss of life.
1.1 The first writ petition, in order of seriatum, being: WP(C)
1867/2012 was initially instituted by the wife (i.e. petitioner no.1) and the
minor child (i.e. petitioner no.2) of Capt. Harpreet Singh Sekhon; to
which, his mother (i.e. Mrs Jagjit Kaur) was added as a party-respondent
no.6 vide order dated 11.12.2013, passed in CM No. 1260/2013, and
thereafter, transposed as petitioner no.3 vide order dated 22.05.2015. The
transposition of Mrs Jagjit Kaur was not opposed by petitioner no.1either
in her own individual capacity or in her the capacity as the guardian of
petitioner no.2.
1.2 In so far as the Second writ petition is concerned, being: WP(C)
1880/2012, it has been instituted by the mother (i.e. petitioner no.1) and
the unmarried brother (i.e. petitioner no.2) of Late Capt. Manjeet Kataria.
2. These writ petitions were sought to be amended only to the extent
of seeking relief qua respondent no.5 i.e. United India Insurance
Company Ltd. (hereafter referred to as UICL). Amendments to both writ
petitions were allowed, albeit vide two separate orders. Amendment to
WP(C) 1880/2012 was permitted vide order dated 09.03.2015. In so far as
WP(C) 1867/2012 was concerned, amendment was allowed on
29.05.2015. Since, the amendment was directed towards UICL, the said
entity was permitted to file an additional counter affidavit to the amended
writ petition. The UICL has, instead, only filed an additional affidavit,
that too, in WP(C) 1880/2012.
3. I may also note that respondent no.1 i.e. the Director General of
Civil Aviation (in short DGCA) and respondent no.2, effectively, the
Union of India, which is sued via the concerned ministry, had initially
indicated, in the hearing held on 04.10.2012, that they did not wish to file
a counter affidavit; a position which was revisited after it was indicated in
the hearing held on 20.08.2015 that they should in the very least file a
written submission in the matter. Accordingly, upon a counter affidavit
having been filed on behalf of DGCA, the same was permitted to be taken
on record vide order dated 28.09.2015, having regard to the nature of the
matter. With the counter affidavit, the DGCA, placed on record certain
documents which were not brought on record by the other respondents
including UICL.
3.1 In so far as respondent no. 3, 4 & 5 are concerned, they have filed
their counter affidavits. As a matter of fact, respondent no. 4 also filed an
additional affidavit dated 26.07.2013, which effectively brought on record
certain crucial documents, to which I will be making a reference during
the course of my deliberation. The petitioners have filed their rejoinder(s)
qua the stand taken in the counter affidavits.
3.2 This is in so far as the main claim in the petition, and the state of
the pleading is concerned.
BACKGROUND
4. The bare bones of the case are as follows:
4.1 On 25.05.2011, the services of respondent no.3 were requisitioned
for enabling a medical evacuation of a critically ill patient in Patna.
Respondent no.3 thus, lent its aircraft for the said purpose, albeit, on hire
charges. The type and model of the aircraft, deployed for this purpose,
was a Pilatus: PC-12/45, bearing the registration number: VT-ACF (in
short the Aircraft).
4.2 On the aforementioned date, the Aircraft took off from Delhi, with
a crew of two pilots, a medical team comprising of two doctors and a
male nurse. The flight to Patna was uneventful. On return flight, the
patient, and one attendant, were taken on board.
4.3 Evidently, the Aircraft encountered a thunderstorm on its approach
to Delhi, at a point in time when, it was approximately ten minutes away
from landing. The Aircraft crashed over Parvatia Colony in Faridabad.
The resultant crash, led to the death of all seven occupants on board the
aircraft, which included the two crew members i.e. the pilot and the co-
pilot.
4.4 The crash, also, resulted in the death of three persons on the
ground, and damage to immovable property i.e. house nos. 1254, 1253
and 1255. The first two properties suffered extensive damage, while the
third, suffered minor damages. The Aircraft was completely wrecked.
4.5 Post, the crash of the Aircraft, the DGCA, set up a Committee of
Inquiry (in short the Committee). The Committee, inter alia, held vide its
report that: "....the probable cause of the accident could be attributed to
the departure of the aircraft from controlled flight due to an external
weather related phenomenon, mishandling of controls, spatial
disorientation or a combination of the three....".
4.6 This apart there were recommendations made to the DGCA and
the UOI as well, to which, I will make a reference towards the end of my
discussion. as this is an aspect relating to public weal which require
issuance of separate directions.
4.6 The petitioners, in the meanwhile, triggered their claim for
compensation by sending legal notices to the respondents herein. In so
far as petitioners in WP(C) 1867/2012 are concerned, they sent a legal
notice on 23.08.2011, followed by an email dated 28.12.2011. Both, the
legal notice and the e-mail were directed against respondent no.3. The
petitioners in the other writ petition i.e. WP(C) 1880/2012 sent the legal
notice on 03.10.2011. The legal notice was directed against all
respondents. While no reply was received to either the legal notice dated
23.08.2011 or the e-mail dated 28.12.2011, which were sent by
petitioners in WP(C) 1867/2012, a reply was sent by respondent no. 3 and
4, which was dated 19.10.2011 to the legal notice dated 03.10.2011, sent
by petitioners in WP(C) 1880/2012. By virtue of this response,
respondent no.3 denied its liability to pay an amount more than that
which was deposited with the Workmen Compensation Commissioner. It
was indicated that a sum of Rs. 7,00,840/- was deposited, after adjusting a
sum of Rs. 1.90 lacs, apparently, paid in cash till October, 2011 to
petitioner no.2 i.e. Mr Amanjeet Kataria in WP(C) No. 1880/2012. The
respondent no.3 though accepted the fact that they had received monies
towards damage caused to the aircraft in the accident. The exact amount
received, was, however, not disclosed. Pertinently, this information was
obtained through RTI route via a third party. In response dated
14.02.2012 to an RTI query, UICL disclosed that it had paid to
respondent no.3 on 14.07.2011 a sum of Rs. 13,49,90,000/-.
5. It is in this background, that the aforementioned writ petitions were
moved, in this court, on 30.03.2012. Notices were issued in the writ
petition, and thereupon, as indicated above, pleadings stand completed.
Arguments on behalf of the petitioners have been advanced by Mr.
Khatri, while DGCA and UOI have been represented by Mr. Bhardwaj.
On behalf of respondent no.3 and 4 arguments were advanced by Mr.
D.D. Singh, followed by Mr Ratan Singh. UICL was represented by Mr.
De.
Submissions of Counsels
6. Mr Khatri, on behalf of the petitioners, made the following broad
submissions:
(i) The DGCA being the regulator qua the aviation industry, is
empowered under powers under Rule 133A of the Aircraft Rules, 1937
(in short the 1937 Rules) to issue, what is, ubiquitously known as Civil
Aviation Requirement (in short the CAR) vis-a-vis the aircraft owners.
(ii) In exercise of its powers on 01.06.2010, a CAR was issued which,
under clause 10.10 appearing in Section 3, Air Transport Series C, Part
III, Issue II, required an aircraft operator to maintain current insurance for
an amount adequate to cover its liability, inter alia, towards crew.
(iii) The provisions made in CAR being the minimum requirements for
grant of permit, to operate Non-Scheduled Air Transport Services, any
violation thereto, should lead to cancellation of the Non-Scheduled
Operator's Permit (NSOP). The apparent failure to insure the pilot and
the co-pilot, which was, otherwise mandatory under clause 10.10 of CAR,
should lead to necessary consequences i.e. cancellation of NSOP. This
fact was evident upon perusal of the stand taken by the UICL in its
pleadings. UICL has specifically averred that respondent no.3 had
obtained only a Hull All Risk Policy, which insured the aircraft and
covered third party liability, including passengers, sans the crew. As per
UCIL, the legal liability towards the passengers was limited to Rs. 50
per passenger; the total cover being limited to Rs. 270 crores, with a
maximum liability qua damage to the Aircraft being restricted to Rs.
13.50 cores.
(iv) The statutory minimum compensation for death in an air crash, as
per Montreal Convention is 1 lac Special Drawing Rights (in short
SDRs). For this purpose, reliance was placed on Rule 21(1) of the Third
Schedule to the Carriage by Air Act, 1972 (in short the 1972 Act).
(v) Furthermore, if it was a case of willful misconduct, the liability, is
unlimited. In this case, since, respondent no. 3 and 4 failed to maintain
an insurance cover of 1 lac SDRs, their liability is unlimited over and
above the statutory minimum of 1 lac SDRs. Reliance in this regard was
placed on Rule 17(1) of the Third Schedule to the 1972 Act.
(vi) Reference was also made to Rule 50 of Chapter VI of the Third
Schedule to the 1972 Act, based on which, it was submitted, that it was
the State's obligation to ensure that carriers maintained adequate
insurance to cover their liability under the provisions of the 1937 Rules.
(vii) Since, India was signatory to the Montreal Convention, which was
signed in May, 1999 and came into force on 30.06.2009, the Third
Schedule to the 1972 Act would be applicable. For this purpose, reliance
was placed on Section 4A of the 1972 Act.
(viii) The amendments brought about by virtue of notification dated
17.01.2014 to the Third Schedule, will have no application, as it cannot
apply to an accident which occurred on 25.05.2011.
(ix) Both DGCA and the UOI have failed to discharge their regulatory
functions, in as much as they failed to ensure that respondent no. 3 and 4
maintained adequate coverage which was a pre-requisite for issuance of a
NSOP.
7. Mr Bhardwaj, on behalf of respondent no.1, accepted the fact that
NSOP holder had to comply with clause 10.10 of the CAR, referred to by
Mr Khatri. Mr Bhardwaj further submitted that the DGCA had carried
out a verification while renewing the NSOP, prior to the date of the
accident, and found that respondent no.3 had obtained an insurance policy
which covered the crew. For this purpose, learned counsel relied upon
the document appended as Annexure B to its counter affidavit, which
made a specific endorsement with regard to the inclusion of the crew.
7.1 Furthermore, the learned counsel contended that in terms of Section
5 and Rule 17 of First, Second and Third Schedule of the 1972 Act, the
air carrier/ operator, was liable for damage sustained in the event of death
or wounding of a passenger.
7.2 As per Mr Bhardwaj, the crew were thus, covered under the policy
dated 16.01.2011, issued by UICL. Mr Bhardwaj, in no uncertain terms,
submitted that the DGCA's reading of the insurance policy, was that if,
the endorsement made at the instance of the insured (i.e. respondent no.3)
is read along with the proposal, there can be no ambiguity that the crew
were covered under the insurance policy issued by the UICL, as was the
requirement under clause 10.10 of the CAR.
8. Mr D.D. Singh and Mr. Ratan Singh, on behalf of respondent no. 3
and 4 argued that the liability of the employer was restricted to
compensation stipulated under the Employee's Compensation Act, 1923
(in short the 1923 Act). The respondent no.3, having deposited the
requisite compensation with the concerned authority, under the said Act,
no further liability could be imposed upon it. The crew, were to be
treated as workmen under the said Act, and therefore, their legal
representatives i.e. petitioners, were not entitled to compensation greater
than that which is provided under the statute. To bring home the point
that the pilots were workmen, reliance was placed on the following
judgements: (i) Judgement dated 23.02.2012, passed in LPA No. 3/2009,
titled: Capt. R. Khosla vs Jet Lite India Ltd 2012 SCC Online Del. 1997;
(ii) Mathur Aviation vs Lt. Governor & Ors. 1978 (36) FLR 7 (Del.);
(iii) Cedric D'Silva vs Union of India 2008 (I) LLJ 483 (Bom); and (iv)
judgement dated 12.02.2013, passed in WP(C) No. 664/2010, titled: King
Airways vs Capt. Pritam Singh.
8.1 The learned counsels further submitted that respondent no.3 had
submitted a proposal for seeking an insurance cover for the two crew
members i.e. the pilot and the co-pilot for a sum of Rs. 50 lacs each.
UICL, based on its proposal, had issued the policy. Therefore, if at all,
the liability, if any, was that of UICL.
8.2 Even though the maximum compensation that was payable under
the 1972 Act, was Rs. 7.5 lacs, and that, which was payable under the
1923 Act was Rs. 9 lacs, respondent no.3 had got an insurance cover for
the pilots for a sum of Rs. 50 lacs each. To demonstrate that the pilots
were covered, the learned counsels relied upon the final survey report
dated 15.11.2011, issued by the surveyor appointed by the UICL. It was
submitted that a binding contract came into existence on the basis of the
proposal form submitted by respondent no.3, which was accepted by
UICL. Reliance in this behalf was placed on the judgement of the
National Consumer Disputes Redressal Commission dated 19.03.2007,
passed in Original Petition No. 375/1997, in the case titled: Orient
Treasures Private Ltd. vs United India Insurance Co. Ltd.
8.3 It was further submitted that the ambiguity, if any, as contended by
UICL, could only go against it, as an insurance policy is, like any other
commercial contract, which had to be construed as "contra-proferentem"
i.e. against the maker of the document in the event of any ambiguity or
doubt arising in ascertainment of its scope and effect. In this behalf,
reference was also made to the judgement of the Supreme Court in the
case of: General Assurance Society Ltd. vs Chandumull Jain & Anr.
1966 (3) SCR 500 and United India Insurance Co. Ltd. vs Pushpalaya
Printers (2004) 3 SCC 694. This legal submission was sought to be
supported by placing reliance on Reference on paragraph 70, under the
heading "Formation of Contract‖, appearing in Halsbury (Volume 25:
Insurance; p.57)
9. Mr De, who appeared for the UICL, contended that the crew were
not covered under the insurance policy. The learned counsel, however,
accepted the fact that the compensation had been paid to respondent no.3
for damage to the aircraft. It was affirmed that a sum of Rs.
13,49,90,000/- had been paid to respondent no.3 in that behalf. Learned
counsel contended that no direction whatsoever could be issued to UICL
to pay Rs. 50 lacs each, on account of death of the crew members, in view
of the fact that the policy did not cover the crew as contended.
9.1 Mr De further submitted that the petitioners were entitled to
compensation either under the 1923 Act or the 1972 Act. Learned
counsel relied upon the notification dated 30.03.1973, issued under the
1972 Act, to contend that the maximum compensation which was payable
under the 1972 Act, was 7.50 lacs, which, according to him, had been
enhanced vide notification dated 17.01.2014 to Rs. 20 lacs.
9.2 Learned counsel stated that since respondent no.3 had already paid
more than Rs. 7.50 lacs, no further monies were payable to the
petitioners. Learned counsel also made it a point to contend that the issue
as to whether or not the pilots were covered under the extant policy, was a
disputed question of fact, which could not be adjudicated upon by this
court, while exercising writ jurisdiction and, that too, on behalf of the
petitioners, who had no privity of contract with UICL.
REASONS
10. Having heard the learned counsel for the parties and perused the
record, according to me, the principal issues which arise for consideration
are as follows :-
(i). Whether or not the petitioners are entitled to compensation?
(ii). If, the petitioners are found to be entitled to compensation, can they
claim compensation under the 1972 Act?
(iii). In case the answer to issue no.(ii) is in the affirmative, what would
be the quantum of such compensation?
(iv). Are the petitioners entitled to compensation, over and above that
which is provided in the 1972 Act by virtue of their employment contract,
with respondent no.3?
(v). In the event the answer to issue no.(iv) is in the affirmative, is
respondent no.3's liability towards the petitioners covered under the
Insurance Contract executed between itself and UICL?
(vi). If, the answer to issue no.(v) is in the affirmative, to what extent
would UICL be liable?
(vii). What should be the final relief, if any, in the instant case?
Issue no.(i)
11. The fact that the pilot and the co-pilot died in an air crash on
25.05.2011, is not disputed by any of the respondents. The pilot, Capt.
Harpreet Singh Sekhon at the time of his death, was aged 29 years, while
the Co-pilot, Capt. Manjeet Kataria, was aged 21 years. On the date of
his death, Capt. Harpreet Singh Sekhon was drawing a salary in the sum
of Rs. 2,00,000/- alongwith perquisites, while Mr. Manjeet Kataria was
drawing a salary in the sum of Rs. 40,000/- alongwith perquisites.
11.1 That their death resulted in both pecuniary and non-pecuniary
injury and loss to the members of their family is also not disputed by any
of the respondents.
11.2 The fact that the petitioners are close relatives of the deceased is
also not disputed before me, by any of the respondents.
11.3 Therefore, according to me, in so far as issue no.(i) is concerned, it
clearly, has to be answered in favour of the petitioners. The petitioners
are entitled to compensation. The question is: how much and by whom.
Issue no.(ii)
11.4 Which brings me to the next issue, i.e. issue no.(ii). The 1972 Act
was preceded by the Carriage by Air Act, 1934 (in short, 1934 Act). The
1934 Act preceded by the Warsaw Convention dated 12.10.1929. The
1972 Act was thus, enacted to bring about unification of Rules pertaining
to international carriage by air as provided in the Warsaw Convention and
Hague Protocol. The Warsaw Convention was amended by the Hague
Protocol on 28.09.1955. This brought about the enactment of the 1972
Act which, replaced the 1934 Act.
11.5 On its own, the 1934 Act applied only to international carriage of
goods and passengers. The position was no different qua the 1972 Act.
Both the 1934 Act and the 1972 Act were made applicable to domestic
carriage, with the issuance of necessary notification by the Government of
India (GOI). In so far as the 1934 Act was concerned, a notification to
that effect was issued on 17.12.1963.
11.6 Similarly, after the enactment of the 1972 Act, the Government of
India, in exercise of powers under Section 8(2) of the said Act, issued a
notification dated 30.03.1973, bearing no. S.O.186(E), whereby, it
directed that with effect from 01.04.1973, Section 4, 5 and 6 and the
Rules contained in the Second Schedule to the said Act, shall apply to all
carriage by air, not being international carriage, as defined in the Second
Schedule irrespective of the nationality of the aircraft performing the
carriage subject to the exceptions, adaptations and modifications provided
therein. Thus, by virtue of 30.03.1973 notification, the Government of
India (in short GOI), expressly superseded its earlier notification dated
17.12.1963 save and except for things done or omitted to be done under
it.
11.7 The changes which were brought about in 1972 Act and, are
necessary for the adjudication of the instant case, are as follows:
(i). In Section 4, 5 and 6, the following changes were brought about :
―..In section 4,--
(i) sub-section (1), (2) and (3) shall be omitted;
(ii) in sub-section (4) after the words ‗Second Schedule' the
words ―as applicable to carriage by Air, not being international
carriage by air' shall be inserted;
2. in section 5,--
(i) in sub-section (1) for the words ‗on the First Schedule and the
Second Schedule', the words ―in the Second Schedule as
applicable to carriage by air not being international carriage by
air‖, shall be substituted;
(ii) in sub-section (5) for the portion beginning with the words
‗of the First Schedule' and ending with the words ‗passenger in
question', the words ―of the Second Schedule as applicable to
carriage by air, not being international carriage by air' shall be
substituted;
3. section 6 shall be omitted..‖
(ii). As regards Rule 22 of the Second Schedule is concerned, the
following change was brought about :-
―(p) in rule 22,--
(i) for sub-rule (1) the following sub-rules shall be substituted,
namely:-
*―(1) In the event of death of a passenger, or any bodily injury
or wound suffered by a passenger which results in a permanent
disablement incapacitating him from engaging in or being
occupied with his usual duties or business or occupation, the
liability of the carrier for each passenger shall be Rs.7,50,000, if
the passenger is 12 or more years of age, and Rs.3,75,000, if the
passenger is below 12 years of age on the date of the accident.
Provided that by special contract, the carrier and the passenger
may agree to a higher limit of liability.
(1A) In the event of wounding of a passenger or any bodily
injury suffered by the passenger which results in a temporary
disablement entirely preventing an injured passenger from
attending to his usual duties or business or occupation, the
liability of the carrier for each passenger shall be limited to a
sum calculated at the rate of Rs.750 per day, the period during
which the continues to be so disabled or a sum of Rs.1,50,000,
whichever is less.‖
* (S.O. 659 (E) dated 22nd August, 1989)
(ii) in clause (a) of sub-rule (2) for the figures and words ―250
francs‖ the words ―rupees four hundred fifty be substituted;
(iii) in sub-rule (3) for the figures and words ―5,000 francs‖, the
words ―rupees four thousand‖ shall be substituted;
(iv) sub-rule (5) shall be omitted..‖
11.8 Pertinently, no change was brought about in Rule 17 of the Second
Schedule.
11.9 On 28.05.1999, the Montreal Convention was signed which, led to
amendments being made in the 1972 Act, with the enactment of The
Carriage By Air (Amendment) Act, 2009. This enactment received the
assent of the President, on 20.03.2009 and was brought into force, on
01.07.2009.
12. With the 2009 Amendment, several changes were brought about in
the Act. Amendments were made to not only the long title but also to
Section 2, 3, 4, 5 and 8 of the 1972 Act.
12.1 Furthermore, two new Sections were inserted i.e. Section 4A and
6A. In addition to the above, the 2009 amendment inserted a new
Schedule i.e. the Third Schedule to the 1972 Act.
12.2 The effect of the 2009 amendment was that the rights and liabilities
of carriers, passengers were governed by Rules contained in the Third
Schedule, which were, in effect, the provisions of the Montreal
Convention.
12.3 The GOI by a notification bearing no. SO 142(E) dated 17.01.2014;
as on previous occasions, in exercise of its powers conferred upon it,
under Section 8(3) of the 1972 Act, directed that from the date of the
application of the said notification in the official Gazette, the provisions
of Section 5 of the 1972 Act and the Rules contained in the Third
Schedule of that Act would apply to all carriage by air not being
international carriage by air as defined in the said Schedule subject to the
exceptions, adaptation, and modifications set out herein. The GOI,
expressly superseded the preceding notification dated 30.03.1973 save
and except with respect to things done or omitted to be done before the
such supersession.
12.4 By virtue of this notification, the GOI brought about changes in the
Third Schedule and in particular, the following changes in Rule 21 and
22.
―..(f). In Rule 21, in sub-rules (1) and (2) for the words ―one
lakh Special Drawing Rights‖ the words ―rupees twenty lakh‖
shall be substituted;
(g). In rule 22, -
(i). In sub-rule (1), for words ―four thousand one hundred
and fifty Special Drawing Rights‖ the words ―rupees eighty
thousand‖ shall be substituted;
(ii). In sub-rule (2), for the words ―one thousand Special
Drawing Rights‖ the words ―rupees twenty thousand‖ shall be
substituted;
(iii). In sub-rule (3) for the words ―seventeen Special Drawing
Rights‖ the words ―rupees three hundred fifty‖ shall be
substituted..‖
12.5 Therefore, since the accident occurred on 25.05.2011, which was
after the issuance of the 30.03.1973 notification, and 2009 amendment but
prior to the 17.01.2014 notification, the applicable provisions in the
present case would be the Second Schedule to the 1972 Act. Though, the
17.01.2014 notification superseded 30.03.1973 notification, it has saved
all those acts which had been done or omitted to be done.
12.6 Having regard to the above, it would have to be said that the
provisions of Section 51 of the 1972 Act read with Rule 17 and Rule 22 of
the Second Schedule as amended by the 30.03.1973 notification, would
apply in this case. Section 5 of the 1972 Act, provides that
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
passengers 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:
Provided that in deducing any such relationship as aforesaid any illegitimate person
and any adopted person shall be treated as being, or as having been, the legitimate
child of his mother and reputed father or, as the case may be, of his adopters.
(3) An action to enforce the liability may be brought by the personal representative of
the passenger or by any person for whose benefit the liability is under sub-section (2)
enforceable, but only one action shall be brought in India in respect of the death of
any one passenger, and every such action by whomsoever brought shall be for the
benefit of all such persons so entitled as aforesaid as either are domiciled in India or
not being domiciled there express a desire to take the benefit of the action.
(4) Subject to the provisions of sub-section (5), the amount recovered in any such
action, after deducting any costs not recovered from the defendant, shall be divided
between the persons entitled in such proportion as the Court may direct.
(5) The Court before which any such action is brought may, at any stage of the
proceedings, make any such order as appears to the Court to be just and equitable in
view of the provisions of the First Schedule or the Second Schedule [or the Third
Schedule], as the case may be, limiting the liability of a carrier and of any proceedings
which have been or are likely to be commenced outside India in respect of the death
of the passenger in question.
notwithstanding anything contained in the Fatal Accident Act, 1855 or
any other enactment or Rule in force, the Rules contained in the (Second
Schedule) in all cases to which those Rules apply determine the liability
of a carrier in respect of death of a passenger. The sub-Section (2) of
Section 5 makes it clear that law shall be enforceable for the benefit of
such members of the passenger's family who has sustained damage by
reason of his death. The explanation expounds that the expression
‗members of a family' would, inter alia, mean, the wife, parent or even
the brother.
12.7 Similarly, Rule 17 2 of the Second Schedule enunciates that the
carrier will be liable for damage sustained, inter alia, in the event of death
of a passenger if, the accident which caused the damage so sustained took
place on board the aircraft.
12.8 Rule 223* provides for quantification of liability. The extent, to
17. The carrier is liable for damage sustained in the event of the death or wounding of a passenger or
any other bodily injury suffered by a passenger if the accident which caused the damage so sustained
took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
22. (1) In the carriage of persons the liability of the carrier for each passenger is limited to the sum of
2,50,000 francs. Where in accordance with the law of the Court seized of the case, damages may be
awarded in the form of periodical payments the equivalent capital value of the said payments shall not
exceed 2,50,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a
high limit of liability.
(2) (a) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum
of 250 francs per kilogram, unless the passengers or consignor has made, at the time when the package
was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a
supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not
exceeding the declared sum, unless he proves that that sum is greater than the passenger's or
consignor's actual interest in delivery at destination.
(b) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object
contained therein, the weight to be taken into consideration in determining the amount to which the
carrier's liability is limited shall be only the total weight of the package or packages concerned.
Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an
object contained therein, affects the value of other packages covered by the same baggage check or the
same air waybill, the total weight of such package or packages shall also be taken into consideration in
determining the limit of liability.
(3) As regards objects of which the passenger takes charge himself the liability of the carrier is limited
to 5,000 francs per passenger.
(4) The limits prescribed in this rule shall not prevent the Court from awarding, in accordance with its
which it has been amended, has, already been referred to in the foregoing
paragraphs. The liability in the event of death of a passenger has been
pegged qua each such passenger at Rs.7,50,000/- if, the passenger is 12
years or more years of age. However, if, the passenger is below 12 years
of age on the date of the accident, the liability stands scaled down to
Rs.3,75,000/-. Rule 22(1) contains a caveat, which is, that by a special
contract, the carrier and the passenger may agree to a higher limit of
liability.
12.9 Clearly, if the pilot and co-pilot fall in the definition of a passenger
then they would be entitled to compensation as stipulated under the 1972
Act. The reason, I have come to this conclusion, is that, Section 5 opens
with a non-obstante clause, and therefore, provides for determination of
liability in terms of the Second Schedule in respect of death of a
passenger notwithstanding the provisions of either the Fatal Accidents
Act, 1855 or any other enactment or Rule of law, in force, in any part of
India.
13. To my mind, Section 5 read with Rule 17 of the Second Schedule
makes it clear that the liability of the carrier qua the passenger is
determinable only under the provisions of the 1972Act and the attendant
rules, and for this, no other Act or enactment or Rule need be brought into
play. The factors such as age, future prospects and employment, etc. have
own law, in addition, the whole or part of the Court costs and of the other expenses of the litigation
incurred by the plaintiff. The foregoing provision shall not apply if the amount of the damages
awarded, excluded Court cost and other expenses of the litigation, does not exceed the sum which the
carrier has offered in writing to the plaintiff within a period of six months from the date of the
occurrence causing the damage, or before the commencement of the action, if that is later.
(5) The sums mentioned in francs in this rule shall be deemed to refer to a currency unit consisting of
sixty-five and a half milligrams of gold of millesimal fineness nine hundred. These sums may be
converted into national currencies in round figures. Conversion of the sums into national currencies
other than gold shall, in case of judicial proceedings, be made according to the gold value of such
currencies at the date of the judgement.
Note:3* Read Rule 22 with amendments.
no bearing upon the liability of the carrier. The principle, which appears
to form the bedrock of the statute is that once you are on board the aircraft
and if, the accident which caused the damage takes place, while the
passenger is on board the aircraft, the carrier will be liable.
13.1 As a matter of fact, Rule 17 of the Second Schedule extends the
liability to an accident which takes place even in the course of operations
of embarking or disembarking. The question therefore is: would the
liability be restricted under the 1972 Act only to a passenger? There is no
definition of the term ―passenger‖ in the 1972 Act. The ordinary meaning
of the word passenger, according to me, should apply. In common
parlance, when a person says that a vehicle is a four-passenger car, it
includes not only those who are carried but also the operator of the
vehicle. In other words, both the occupants as well as the operator of the
vehicle are compendiously included under the term ‗passenger'. There is
nothing in the 1972 Act, which would have me hold, that the word
‗passenger', should be given a restricted meaning.
13.2 To my mind, unless expressly excluded by the statute, the word
‗passenger' ought to include all those who are on board the aircraft.
Therefore, the answer to issue no.(ii), in my opinion, will have to be in
the affirmative. The petitioners would thus, be entitled to compensation
under the 1972 Act.
Issue no.(iii).
13.3 In so far as this issue is concerned, one is required to determine the
quantum of compensation that would be payable to the petitioners. As
discussed above, since the 30.03.1973 notification would be applicable in
the instant case, the petitioners, in the two writ petitions, would be
entitled to a compensation of Rs.7,50,000/- each as on the date of the
accident, the pilot and the co-pilot were more than 12 years of age. This
position in the instant qua the petitioners has changed as Respondent no.3
arrived at contract with the crew to provide for a higher liability; an
aspect which I discussed hereafter.
Issue no.(iv).
13.4 As regards as to whether the petitioners are entitled to
compensation, over and above the 1972 Act, by virtue of the employment
contract, the answer would depend upon the express and / or implied
provisions of the said contract. The reason I have used the expression
express or implied provisions of the contract is on account of the fact that
while in the terms of engagement of Capt. Harpreet Singh Sekhon (as
evidenced by the letter of appointment dated 25.11.2010), there is an
express term, which provides that he would be covered for ground
hospitalization / Personal Accident Insurance, this clause, is missing in
Capt. Manjeet Kataria's letter of appointment dated 31.03.2011.
13.50 The letter of appointment issued to Capt. Manjeet Kataria,
however, provides that he would be governed by rules, which are
prevailing or amended from time to time. As to what were those rules, is
an aspect, which has not been brought fore by respondent no.3.
Notwithstanding the above, it is the stand of respondent no.3 that it had
entered into an insurance contract qua the crew. The proposal dated
11.01.2011, which was accepted by UICL, clearly stated that respondent
no.3 had offered to pay a premium, which would not only cover the said
respondent against risks with respect to the aircraft and third party
liability, but also, vis-à-vis risks qua the crew (i.e. the pilot and the co-
pilot) and the passengers on board the aircraft. The relevant extract of the
proposal which adverts to this aspect of the matter is referred to
hereinbelow :-
Details of insurance
Required
Section II
Combined Single Limit INR 2500000000/-
required (Two Hundred Fifty
four crore & fifty two
lacs only)
Section III
If answer is YES, please
provide the Sum Insured
Passenger Liability required Yes
Amount of Liability per INR 50,00,000/- Each
passenger For 9 Passengers
Third Party Liability Limit Yes
Required
Limit of liability INR 250,00,00,000
Baggage liability required Yes
Limit per passenger INR 25,000/- Each for 9
Passengers
Do you require hull war risk Yes
cover
Do you Require PA for Yes, INR 50,00,000/-
Pilots
Do you require LOL for No
Pilots
___ Flight to be covered Yes
13.6 There was thus, it appears, in the given circumstances an implied
term in the contract obtaining between Capt. Manjeet Kataria and
respondent no.3 that the latter would obtain an insurance cover for the
former.
13.7 In view of the aforesaid clause, respondent no.3, to my mind, had
entered into an employment contract which required it to insure Capt.
Harpreet Singh Sekhon and Capt. Manjeet Kataria against death or
bodily injury.
13.8 In these circumstances, in my view, there can be no doubt that
under the employment contract, the petitioners would be entitled to
compensation over and above that, which is, provided in the 1972 Act.
Issue no.(v)
13.9 This brings me to issue no.(v), which is, as to whether respondent
no.3's liability towards the petitioners is covered under the insurance
contract executed between the said respondent and UICL. UICL has
vigorously disputed its liability in so far as the crew is concerned.
Admittedly, UICL has paid to respondent no.3, a sum of
Rs.13,49,90,000/- towards the damage to the aircraft. Furthermore, as per
the final report of its surveyor, which is dated 15.11.2011, UICL was
requested to pay a sum of Rs.1,50,00,000/-, on account of the death of
persons on ground and a sum of Rs.9,93,510/- towards damage caused to
two houses due to the crash. In addition, UICL has also requested to pay
compensation amounting to Rs.2,50,00,000/- in respect of passengers on
board, which includes the two doctors, male nurse and the legal heir of
the patient who died in the crash. As to whether the report of the
surveyor has been accepted or not by UICL, is not known. The only
ground, on which, UICL resists payment of compensation in respect of
the crew (i.e. the pilot and the co-pilot) is, that the crew, according to it,
would not fall within the ambit of the term ―passenger‖.
14. In view of the discussion above, in my opinion, if an ordinary
meaning is given to the word ‗passenger', the crew, would clearly stand
covered.
14.1 However, notwithstanding the aforesaid line of reasoning, since, an
insurance contract is a special contract between insured and the insurer, I
would also like to examine and/or deal with terms of the policy so as to
rule out any express or implied exclusion of ―crew‖, as is sought to be
argued by UCIL.
14.2 In this context, I may note that it is a well accepted principle of
law that, in a case, where there is any ambiguity in the provisions of a
contract of such nature (in this case an insurance contract) then, the
ambiguity, in the contract, is held to be against the maker of the contract.
The doctrine of contra-proferentem would apply, in such circumstances.
In this context, I may also note that the surveyor employed by the
insurance company in his final survey report dated 15.11.2011, clearly
opined, that the crew were covered by the insurance contract i.e. the
policy. The relevant extract of that opinion of the surveyor is set out
hereinbelow :-
―..6. xxxxx
(a) x x x x x
(b) x x x x x
(c) x x x x x
(d) Loss of Life of Pilots : The loss of life of both the pilots
is covered as per the policy terms and conditions. Copies of
appointment letters and death certificates of both pilots are
attached as Annexure XXI & XXII. The endorsement
no.AVN 74 attached to the policy refers in this regard. The
policy has the coverage for total ten persons on board i.e. 08
(Eight) passengers and 02(two) pilots.
In the present case, there were total 07 (seven) persons on
board i.e. 02 (Two) Pilots and 05 (Five) Passengers. Refer
para 24a and 24b of the report..‖
(emphasis is mine)
14.3 Besides the aforesaid, the DGCA, in its counter affidavit in
paragraph 6, unambiguously takes the same stand. As a matter of fact,
the DGCA has stated, in no uncertain terms that it renewed the NSOP qua
respondent no.3 only after it had satisfied itself that there was an
adequate insurance cover in place, inter alia, qua the crew. That DGCA,
was obliged to ensure adequacy of insurance cover vis-à-vis the crew, as
well, flows from clause 10.10 of the CAR, Section 3, Series C, Part-III;
which, in turn, is issued by it, in exercise of powers under Section 133 A
of the 1937 Rules. The said clause (i.e. clause 10.10) for the sake of
convenience is extracted hereinbelow :-
―..10.10. The operator shall maintain a current insurance for
an amount adequate to cover its liability towards passengers
and their baggage, crew, cargo, hull loss and Third party risks
in compliance with requirements of the Carriage by Air Act,
1972, or any other applicable law...‖
14.4 The Clause 10.10 of CAR, Section 3, Series C, Part-III, clearly
obliged respondent no.3 to have in place an adequate insurance cover for
liability which may arise either under the 1972 Act or any other
applicable law. In the instant case, the Contract Act, 1872 would apply.
Under the employment contract executed with the crew, respondent no.3
had, as discussed above, agreed to take out a personal insurance policy
qua the deceased pilot and the co-pilot. The DGCA avers that it
examined the policy to ensure that it covered the crew. As a matter of
fact, the DGCA, with its counter affidavit, brought on record the
document dated 12.05.2011 (i.e. the NSOP), and the endorsement dated
31.01.2011 issued by UCI; the latter was generated after the initial
policy dated 14.01.2011, had been already issued. The endorsement
dated 31.01.2011 (which is in fact an amendment to the initial policy),
when, read with initial (i.e. the original) policy - especially, that part of it,
which adverts to, what is the extent and nature of the ―risks covered‖ is,
suggestive of the fact that crew were covered by the policy or, at least, not
expressly or even impliedly excluded. The relevant extract of the
document dated 31.01.2011 and original policy reads as follows :-
―..Insured's Request / Reference Date : 30/01/2011 Number :
ENDORSEMENT CAUSE :
CORRECTION IN SEATING CAPACITY
ENDORSEMENT WORDING :
IT IS HEREBY DECLARED AND AGREED THAT ON THE
REQUEST OF THE INSURED AND E-MAIL OF CHIEF
ADMINISTRATOR D.G.C.A. THE SEATING CAPACITY
OF THE AIRCRAFT IS TO BE READ AS, 2 (CREW) +
UPTO 9 (NINE PASSENGERS) AND NOT AS MENTIONED
IN THE POLICY.
ALL OTHER TERMS AND CONDITIONS REMAIN
UNALTERED..‖
14.3 The relevant extract of the original policy reads as follows :-
―..Policy Period : 00:00 Hrs on 16/01/2011 To Midnight of 15/01/2012
Receipt Date & No. : 14/01/2011 040600/B1/10/0000001823
Net Premium : 278920 RUPEES TWO LAKH SEVENTY EIGHT
THOUSAND NINE HUNDRED TWENTY ONLY
UTIC 040600 : 1001
Srl. Description Sum Insured (Rs.)
No.
1 HULL ALL RISK, (TOTAL PREMIUM 13,50,00,000.00
UNDER THE POLICY IS
RS.12,30,595/- INCLUDING TAX
PAYABLE IN 4 EQUAL
INSTALMENT
2. HULL WAR RISK LIABILITY 13,50,00,000.00
3. THIRD PARTY LIABILITY 2,70,00,00,000.00
INCLUDING PASSENGER LEGAL
LIABILITY OF RS.50 LACS PER
PASS. & BAGGAGE
LEGAL LIAB of RS.25,000/- PER
PASS
TOTAL SUM INSURED (RS.) Rs. 2,97,00,00,000.00
TOTAL SUM INSURED (IN WORDS) : RUPEES TWO HUNDRED
NINETY SEVEN CRORE ONLY.
Risks Covered : HULL ALL RISKS FOR NON SCHEDULED
CHARTER TYPE-FIXED WING, MAKE-PILATUS PC-12/45
MODEL 2005, SITTING CAPACITY 8+2 TURBINE ENGINE, RED.
NO.N386F..‖
(emphasis is mine)
14.4 When the endorsement is read with the original policy, it is noticed
that the expression seating capacity falls under the head ‗Risks Covered'.
Furthermore, when these two documents are read with proposal filed by
respondent no.3, there can only be one conclusion, which is, that it was
always intended by the insured and insurer to cover the crew. At the risk
of repetition, I may point out that, under the heading ―passenger seating
capacity‖, the number given is: 2 + 9, that is, 2 crew and 9 passengers;
which is in line with the endorsement dated 31.01.2011.
14.5 As would be noticed the risks covered included the risk to the Hull
and other risks including qua persons on board the aircraft. The seating
capacity in the aircraft was amended to clearly indicate that it included
the crew. Therefore, unless any exclusionary clause was incorporated in
the policy, one cannot deprive the crew of the insurance cover. As noted
above, the surveyor also read the policy in the manner which according to
his opinion covered the crew. In contracts dealing with insurance, the
Supreme court in the following cases has applied the principle of contra
proferentem and has ruled against the insurance companies. See :
General Assurance Society Ltd. Vs. Chandmull Jain and Anr., and also,
a case involving UICL, that is, United Insurance Company Ltd. Vs.
Pushpalaya Printers. The observations of the Supreme Court in the case
of General Assurance Society Ltd. Vs Chandmull Jain & Anr. being
apposite are extracted hereinbelow:
"....in a contract of insurance there is requirement of
uberrima fides i.e. good faith on the part of assured and the
contract is likely to be construed contra proferentem, that
is, against the company in case of ambiguity or doubt...."
14.6 These observations were approved in the latter judgement of the
Supreme Court in the case of United Insurance Company ltd. Vs
Pushpalaya Printers at pages 698-699 in paragraph 6.
14.7 The issue as to whether the crew are covered under the policy can
be looked at from another angle, to which, I have made a reference while
discussing the scope and the ambit of the term, ‗passenger' appearing in
the 1972 Act. UICL has clearly admitted that passengers were covered
under the subject insurance policy. Its contention, however, was that
passenger would not include crew. For the very same reasons, based on
which I came to the conclusion that the term ‗passenger' would include
crew should apply with equal force to the term ―passenger‖ in the policy.
There is, as indicated above, no specific exclusion of crew from the
expression ‗passenger'. Therefore, notwithstanding the argument
advanced by Mr. De on behalf of UICL that the endorsement dated
31.01.2011, only recognised the change in the seating capacity and did
not recognise the inclusion of the crew in the policy, the crew, to my
mind, stand included.
14.8 At this stage, I must also bring to fore a very disturbing aspect,
which emerged, during the course of the proceedings. Both UICL as well
as respondent no.3, for reasons best known to them, to begin with, did not
place before me the endorsement dated 31.01.2011. As noticed during
the earlier part of my discussion, this document was brought on record
only when DGCA/ UOI was given an opportunity to file a counter
affidavit in the matter. Furthermore, in order to ascertain as to whether
or not crew were covered under the insurance policy, I had persistently
queried Mr. De that if, it was the stand of UICL that the crew was not
covered by the subject insurance policy then, what would be the
difference in the premium, if any. In other words, was the premium
payable by respondent no.3 to UCIL different from that, which it would
have paid had the crew been included. I was neither provided with any
answer nor was any material qua the money paid by respondent no.3,
towards premium, placed on record. Furthermore, there was no material
brought on record which would suggest that the proposal of respondent
no.3 was either not accepted or even varied by UICL. Consequently, to
my mind, the contract between respondent no.3 and UICL was formed as
soon as the proposal sent by the former was accepted and premium
demanded was remitted. In this context, I may only advert to the
following statement of law appearing in the Halsbury at page 57 in
paragraph 70:
".... (2) FORMATION OF A CONTRACT TO INSURE
70. Necessity for offer and acceptance....... The
proposer, by completing, signing and submitting the form,
commits himself to those terms and undertakes to pay
whatever the insurers may charge by way of premium.
When considering the proposal in such a case, where the
insurers wish to make variations in their usual form of
policy, whether by way of addition or subtraction, they
must submit the variations to the proposer in the form of a
counter offer before they have committed themselves to an
unequivocal acceptance of the proposal...."
14.9 Having regard to these circumstances, I can only say that an
adverse inference has to be drawn qua UICL, which is that, the crew
were covered by the policy and that requisite premium in that behalf was
paid and accepted by UICL.
14.10 Therefore, according to me, the petitioners would be covered, any
which way, under the insurance policy.
Issue no.(vi)
15. In view of the answer given to issue no.(v), one would have to hold
in consonance with the provisions of the policy that the liability towards
the petitioners in the two writ petitions would be restricted to a sum of
Rs.50 lakhs each.
16. Before I conclude, I must deal with the submission raised on behalf
UICL by Mr. De, which is, that the matter involved disputed issues of
fact, and therefore, a writ petition was not an appropriate remedy in the
matter. In my view, this argument, in the instant case is completely
untenable. A substantial part of the facts arising in the matter are not in
dispute. The primary dispute in the matter pivots around the
interpretation, scope and effect of the subject insurance policy. Having
said so, it is not as if, where disputed questions of facts arise, a writ court
cannot adjudicate upon the matter. It is a rule of discretion, which a court
applies, in matters where it appears to the court that prolix material by
way of evidence may have to be tendered by parties. Pleadings backed by
affidavits, in matters, like the present one, can form a base for a full, final
and complete adjudication of the dispute. In this behalf, the observations
of the Supreme Court in the case of ABL International Ltd. And Anr. Vs.
Export Credit Guarantee Corporation of India Ltd. And Ors., (2004) 3
SCC 553, being apposite, are extracted hereafter :-
16. A perusal of this judgment though shows that a writ
petition involving serious disputed questions of facts which
requires consideration of evidence which is not on record, will
not normally be entertained by a court in the exercise of its
jurisdiction under Article 226 of the Constitution of India. This
decision again, in our opinion, does not lay down an absolute
rule that in all cases involving disputed questions of fact the
parties should be relegated to a civil suit. In this view of ours,
we are supported by a judgment of this Court in the case of Smt.
Gunwant Kaur & Ors. vs. Municipal Committee, Bhatinda and
Ors. [1969 (3) SCC 769] where dealing with such a situation of
disputed questions of fact in a writ petition this Court held :
"14. The High Court observed that they will not determine
disputed question of fact in a writ petition. But what facts were
in dispute and what were admitted could only be determined
after an affidavit in reply was filed by the State. The High
Court, however, proceeded to dismiss the petition in limine. The
High Court is not deprived of its jurisdiction to entertain a
petition under Article 226 merely because in considering the
petitioner's right to relief questions of fact may fall to be
determined. In a petition under Article 226 the High Court has
jurisdiction to try issues both of fact and law. Exercise of the
jurisdiction is, it is true, discretionary, but the discretion must
be exercised on sound judicial principles. When the petition
raises questions of fact of a complex nature, which may for their
determination require oral evidence to be taken, and on that
account the High Court is of the view that the dispute may not
appropriately be tried in a writ petition, the High Court may
decline to try a petition. Rejection of a petition in limine will
normally be justified, where the High Court is of the view that
the petition is frivolous or because of the nature of the claim
made dispute sought to be agitated, or that the petition against
the party against whom relief is claimed is not maintainable or
that the dispute raised thereby is such that it would be
inappropriate to try it in the writ jurisdiction, or for analogous
reasons.
15. From the averments made in the petition filed by the
appellants it is clear that in proof of a large number of
allegations the appellants relied upon documentary evidence
and the only matter in respect of which conflict of facts may
possibly arise related to the due publication of the notification
under Section 4 by the Collector.
16. In the present case, in our judgment, the High Court was
not justified in dismissing the petition on the ground that it will
not determine disputed question of fact. The High Court has
jurisdiction to determine questions of fact, even if they are in
dispute and the present, in our judgment, is a case in which in
the interests of both the parties the High Court should have
entertained the petition and called for an affidavit in reply from
the respondents, and should have proceeded to try the petition
instead of relegating the appellants to a separate suit."
17. The above judgment of Smt. Gunwant Kaur (supra) finds
support from another judgment of this Court in the case of
Century Spinning and Manufacturing Company Ltd. & Anr. vs.
The Ulhasnagar Municipal Council & Anr. [1970 (1) SCC 582]
wherein this Court held :
"Merely because a question of fact is raised, the High
Court will not be justified in requiring the party to seek
relief by the somewhat lengthy, dilatory and expensive
process by a civil suit against a public body. The
questions of fact raised by the petition in this case are
elementary.‖ (emphasis is mine)
16.1 Mr. De was not able demonstrate as to which part of the
dispute required UICL to lead oral evidence.
16.2 Before I close let me first deal with the submission advanced by
Mr. Kataria as well, which is that, the Montreal Convention, which
appears in the Third Schedule of the 1972 Act would govern the matter
even for domestic carriage. The Third Schedule was inserted in the 1972
Act with effect from 01.07.2009 with a corresponding amendment in the
main Act whereby, Section 4A was included in the very same Act (i.e. the
1972 Act). This was done to give effect to the Montreal Convention.
Therefore, to begin with the Third Schedule only dealt with international
carriage. It is only after the GOI issued the notification dated 17.01.2014,
that the Third Schedule became applicable to domestic carriage as well,
as discussed hereinabove. For this purpose, GOI vide notification dated
17.01.2014 brought about amendments in Section 5 and some of the
Rules contained in the Third Schedule. More specifically, since an
amendment was brought about in the sub-Rules (1) and (2) of Rule 21 of
the Third Schedule the word 1 Lakh SDRs got replaced with Rs.20 Lakhs,
and therefore, the compensation for domestic carriage got restricted to
Rs.20 Lakhs. However, as noticed above, this amendment would not
inure to the benefit of the petitioners as not only the crash took place on
25.05.2011, that is, the date prior to the institution but also the
notification itself clearly saved all things done or omitted to be done
under the previous notification i.e. notification dated 30.03.1973.
Therefore, this submission of Mr. Khatri cannot be accepted.
16.3 Furthermore, I must note that Messrs D.D.Singh/ Ratan Singh had
relied upon the judgements which are referred to in paragraph 8 herein
above to emphasise the point that since crew are considered as workmen,
their liability was that which is provided in the 1923 Act. A part of this
argument, I have already dealt with while adverting to Section 5 of the
1972 Act. To recapitulate, Section 5 of the 1972 Act clearly expounds
that those who are covered under the provisions of the said Act and the
schedules, the liability of the carrier in respect of death of a passenger
would be governed by the provisions of the aforementioned Act. The
opening words of Section 5 makes that amply clear by use of the
expression: ―Notwithstanding anything contained in the Fatal Accidents
Act, 1885 or any other enactment or rule of law in force in any part of the
India, the rules contained in the first schedule, the second schedule and
the third schedule shall......‖ determine the liability of the carrier.
Therefore, the liability of the carrier under the 1972 Act is in addition to
the liability under the 1923 Act with the caveat, that any payment made
under the 1923 Act will have to be adjusted qua the liability determined
under the 1972 Act. Furthermore, Rule 22(1) clearly provides that a
carrier by a special contract may agree to a higher limit qua its liability.
In the instant case, as discussed in the foregoing paragraphs, I have
reached a conclusion that a special contract obtained between the crew
and respondent no.3, whereby, it had undertaken a higher liability which
it sought to secure by obtaining an insurance cover from UCIL. Thus the
judgements cited on behalf of the respondent no.3, to stress the point that
the crew being classified as workmen would not be entitled to
compensation beyond what is provided under the 1923 Act, in my view,
will not impact the conclusion reached herein above, by me.
Issue no.(vii) - Relief
16.4 Having regard to the fact that respondent no.3 has already
deposited , a sum of Rs.10 Lakh each in respect of the set of petitioners
under orders of this court dated 29.10.2015, UICL will pay the balance
sum of Rs.40 Lakhs each to the two set of petitioners.
16.5 In so far as WP(C) 1867/2012 is concerned, 2/3rd of the total sum
of Rs.40 Lakhs would be paid to petitioner no.1 and 2, while 1/3rd will be
paid to the mother of Late Capt. Harpreet Singh Sekhon i.e. petitioner
no.3.
16.6 In so far as WP(C) 1880/2012 is concerned, the entire sum of Rs.40
Lakh would be paid by UICL in equal-half to the petitioners arrayed
therein.
16.7 Furthermore, UICL will make payments to the petitioners, as
indicated above, within two weeks from today, failing which, simple
interest at the rate of 12% p.a will run on the outstanding amount after the
expiry of the aforementioned timeframe. In so far as the money deposited
by respondent no.3 is concerned, the registry will forthwith release the
same, with accrued interest, if any, in favour of the petitioners in WP(C)
No. 1867/2012 and WP(C) No.1880/2012 or their authorised
representatives, via banking instruments in the same ratio as indicated qua
payments to be made by UICL.
16.8 Since, respondent no.3 has paid Rs.10 Lakh to each of the two set
of petitioners, in the aforementioned writ petitions, it shall be open to it to
take recourse to an appropriate remedy to recover the same from UICL.
16.9 As far as DGCA/ UOI is concerned, what has come to fore during
the adjudication of the captioned petitions, is that, recommendations
were made by the Committee constituted to inquire into the reasons for
the crash. The counter affidavit filed by the DGCA/ UOI does not touch
upon the aspect as to whether any action was taken on the
recommendations made by the Committee. The reason, perhaps, was
that the lis between the petitioners and the respondents, essentially,
related to payment of compensation. Since, during the adjudication of
the writ petition, it has been found, as evidenced by the report submitted
by the Committee, that the crash of the subject aircraft resulted in the
death of not only of persons on board, but also of persons on ground
besides damage to immovable property, there is a palpable public interest
in knowing as to the action that the DGCA and/or UOI has taken with
respect to the recommendations made by the said Committee. Therefore,
the DGCA/ UOI shall file an Action Taken Report (ATR), within four
weeks from today, with regard to the safety recommendations made by
the Committee via its report. List for compliance only on this aspect on
18.03.2016.
17. For all other purposes the writ petitions are disposed of, in the
aforesaid terms. Costs in the petitions are fixed at Rs. 15,000/- each. The
UICL will pay the two sets of costs to the petitioners in the ratio set out in
paragraphs 16.5 & 16.6 above.
RAJIV SHAKDHER, J
JANUARY 25, 2016
kk/yg
