Kerala High Court

Mohammed Sareef vs Union Of India on 7 April, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

   WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                       WP(C).No.8789 OF 2021(W)


PETITIONERS:

               MOHAMMED SAREEF
               AGED 39 YEARS
               S/O.ABU, R/AT OSSARU VEETTIL, PERUMPADAPPU, AYIROOR
               P.O., MALAPPURAM - 679582.

               BY ADVS.
               SRI.KODOTH SREEDHARAN
               SRI.K.P.MUHAMMAD ARIF
               SHRI.ABDUL JALEEL.U.K

RESPONDENTS:

      1        UNION OF INDIA
               REPRESENTED BY ITS SECRETARY, MINISTRY OF CIVIL
               AVIATION, NEW DELHI - 110 001.

      2        AIR INDIA EXPRESS LIMITED
               REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
               CORPORATE OFFICE, AIR INDIA EXPRESS LTD., DH ROAD,
               ERNAKULAM, KOCHI - 682 016.



               ASGI.SRI.P.VIJAYAKUMAR,
               SRI.V.ABRAHAM MARKOS,SC

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.04.2021, ALONG WITH WP(C).7460/2021(F), WP(C).8614/2021(B), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)Nos.8789, 8614
& 7460 of 2021
                                     2


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

   WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                          WP(C).No.7460 OF 2021(F)


PETITIONERS:

               MOHAMMED SAHIN PUTHEN PEEDIYEKKAL
               AGED 40 YEARS
               R/AT PUTHEN PEEDIYEKKAL HOUSE, PERUMBAL, NANNAMUKKU
               P.O, MALAPPURAM - 679575.

               BY ADVS.
               SRI.KODOTH SREEDHARAN
               SRI.ARUN FRANCIS
               SHRI.ABDUL JALEEL.U.K
               SRI.K.P.MUHAMMAD ARIF

RESPONDENTS:

       1       UNION OF INDIA
               REPRESENTED BY ITS SECRETARY, MINISTRY OF CIVIL
               AVIATION, NEW DELHI - 110001.

       2       AIR INDIA EXPRESS LIMITED
               REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
               CORPORATE OFFICE AIR INDIA EXPRESS LTD, DH ROAD,
               ERNAKULAM, KOCHI - 682016.

               R1   BY   SRI.GIRISH KUMAR.V., CGC
               R2   BY   ADV. SRI.JOSEPH KODIANTHARA (SR.)
               R2   BY   ADV. SRI.V.ABRAHAM MARKOS
               R2   BY   ADV. SRI.ABRAHAM JOSEPH MARKOS
               R2   BY   ADV. SRI.ISAAC THOMAS
               R2   BY   ADV. SRI.P.G.CHANDAPILLAI ABRAHAM
               R2   BY   ADV. SHRI.ALEXANDER JOSEPH MARKOS
               R2   BY   ADV. SHRI.SHARAD JOSEPH KODANTHARA

               ASGI.SRI.P.VIJAYAKUMAR

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.04.2021, ALONG WITH WP(C).8614/2021(B), WP(C).8789/2021(W),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)Nos.8789, 8614
& 7460 of 2021
                                   3


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

   WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                        WP(C).No.8614 OF 2021(B)


PETITIONERS:

               ABBAS THEKKETHIL
               AGED 49 YEARS
               S/O. KUNHAMMED THEKKETHIL, R/AT. THEKKETHIL HOUSE,
               KALLADIPATTA P.O, PATTAMBI VIA, PALAKKAD - 679313.

               BY ADVS.
               SRI.KODOTH SREEDHARAN
               SRI.K.P.MUHAMMAD ARIF
               SHRI.ABDUL JALEEL.U.K

RESPONDENTS:

       1       UNION OF INDIA
               REPRESENTED BY ITS SECRETARY, MINISTRY OF CIVIL
               AVIATION, NEW DELHI - 110001.

       2       AIR INDIA EXPRESS LIMITED
               REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
               CORPORATE OFFICE, AIR INDIA EXPRESS LIMITED, DH
               ROAD, ERNAKULAM, KOCHI - 682016.


               ASGI.SRI.P.VIJAYAKUMAR,
               SRI.V.ABRAHAM MARKOS, SC

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.04.2021, ALONG WITH WP(C).7460/2021(F), WP(C).8789/2021(W),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)Nos.8789, 8614
& 7460 of 2021
                                        4




                                 JUDGMENT

Dated this the 07th day of April 2021

In all these Writ Petitions, petitioners were

passengers who got injured in the accident which

occurred on 07.08.2020 at the Karippur International

Airport, Kozhikode during landing of the Air India

Express Dubai - Kozhikode Flight IX-1344, an

international air carrier.

2. The petitioners have prayed for a direction

to the respondents to offer compensation as

required under Rule 25 to 29 and Rule 22(6) of

Schedule 3 of the Carriage by Air Act, 1972 at the

similar range and level of compensation fixed as in

Exts.P11 and P11(a), laid down in Paragraph 49 of

the judgment in National Insurance Co. Ltd. V M/s.

Bhogura Polyfab Pvt. Ltd. [(2009(1) SCC 267)] and

also to grant them liberty to approach the Consumer

Forum for the balance amount. They have also prayed

for a direction to the respondents to pay the

liability of One Lakh (now enhanced to 1,38,000) W.P.(C)Nos.8789, 8614 & 7460 of 2021

Special Drawing Right as injury compensation and

loss of baggage under Rule 21(1) and 22(1) of the

Third Schedule of the Act and cargo and baggage

claim.

3. The 2nd respondent has filed preliminary

counter affidavit in these Writ Petitions,

explaining the procedure followed till this time.

The learned Senior Counsel submits that offer

letters have not been issued in two of these Writ

Petitions.

4. Learned counsel for the petitioners points

out that an offer is made to the petitioner in

WP(C) No.7460 of 2021 by the respondents.

5. The learned Senior counsel for the 2nd

respondent also submits that the claims would be

considered in accordance with the priority with

reference to the nature of injuries sustained by

the passengers. In the case of all the petitioners,

who have submitted claims, that will be considered

in accordance with the very same priority. It is

also submitted that offer letters would be issued W.P.(C)Nos.8789, 8614 & 7460 of 2021

at the earliest and as and when such offer letters

are issued, respective petitioners can appear

before the respondents for negotiation, which would

be considered on the basis of materials. It is also

pointed out that the offer would be made as

without prejudice letters and petitioners would be

free to attend the negotiation. It is also

submitted that in case petitioner in WP(C) No.7460

of 2021 submits his fresh/revised claim that would

also be looked into.

6. A similar case was already disposed of by

Ext.P11 judgment dated 27.01.2021 in W.P.

(C).No.27970/2020 with the following direction:-

"In the circumstances, this writ petition is disposed of directing the 2nd respondent to disburse the amount of ₹1,51,08,234/- in respect of compensation offered in respect of the 2nd petitioner, to the petitioners forthwith, in accordance with law. If the petitioners are aggrieved/dissatisfied by the offer made by the 2nd respondent in respect of compensation for the death of Sharafudeen or for the injury of the 1st petitioner, it is made clear that the petitioners will be at liberty to approach this Court or any other appropriate legal forum for redressal of their grievances, in accordance with law."

These writ petitions are also disposed of, in

the light of the aforesaid direction, making it

clear that the petitioners would be at liberty to W.P.(C)Nos.8789, 8614 & 7460 of 2021

approach this Court or any other appropriate legal

forum for redressal of their grievances in

accordance with law, in case they are dissatisfied

with the offer, which would be made by the 2nd

respondent.

Sd/-

P.V.ASHA JUDGE DM W.P.(C)Nos.8789, 8614 & 7460 of 2021

APPENDIX OF WP(C) 8789/2021 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WP(C) NO.32550/10 DATED 20/07/2011 REPORTED IN 2011(3) KHC 199 (ABDUL SALAM VS. UNION OF INDIA).

EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WA NO.1197/2011 DATED 25/08/2011 REPORTED IN 2011(3) KHC 761 (NATIONAL AVIATION COMPANY VS. ABDUL SALAM).

EXHIBIT P3 TRUE COPY OF THE TEXT OF THE SPEECH DT.

30/4/2008 OF THE MINISTER FOR CIVIL AVIATION.

EXHIBIT P4 TRUE COPY OF THE WORKING PAPER BY INTERNATIONAL CIVIL AVIATION ORGANIZATION DATED 27/9/2010.

EXHIBIT P5 TRUE COPY OF THE RELEVANT PORTION OF THE PREPARATORIES IN THE INTERNATIONAL CONFERENCE WHICH LED TO THE MONTREAL CONVENTION DATED 14/5/1999.

EXHIBIT P6 TRUE COPY OF THE ORDER IN WP(C) NO.23097/2011 DATED 5/9/2011.

EXHIBIT P7 TRUE COPY OF THE COMMON JUDGMENT IN WP(C) NO.23097/2011 AND WA NO.1380/2011 DATED 29/9/2011.

EXHIBIT P8 TRUE COPY OF THE FILLED IN FORMAT GIVEN TO THE 2ND RESPONDENT DATED 08/01/2021.

EXHIBIT P9 TRUE COPY OF THE SETTLEMENT VOUCHER PREPARED BY THE 2ND RESPONDENT DT. 7/8/20.

EXHIBIT P10 TRUE COPY OF THE MEDICAL RECORD DT.

25/3/2021 OF THE PETITIONER.

EXHIBIT P10(A) TRUE COPY OF THE MEDICAL RECORD DT.

29/1/2021 OF THE PETITIONER.

EXHIBIT P10(B) TRUE COPY OF THE MEDICAL RECORD DT.

22/3/2021 OF THE PETITIONER. W.P.(C)Nos.8789, 8614 & 7460 of 2021

EXHIBIT P10(C) TRUE COPY OF THE MEDICAL RECORD DT.

19/12/202O OF THE PETITIONER.

EXHIBIT P10(D) TRUE COPY OF THE MEDICAL RECORD DT.

6/10/2020 OF THE PETITIONER.

EXHIBIT P10(E) TRUE COPY OF THE MEDICAL RECORD DT.

19/1/2021 OF THE PETITIONER.

EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN WP(C) 27970/2020 DATED 27/01/2021 BY THIS HON'BLE COURT.

EXHIBIT P11(A) TRUE COPY OF THE OFFER VOUCHER IN THE NAME OF AMEENA SHERIF DT. 7/8/20.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO.2914/2019 DT. 3/3/2020. W.P.(C)Nos.8789, 8614 & 7460 of 2021

APPENDIX OF WP(C) 7460/2021 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WP(C) NO.

32550/2010 DATED 20.07.2011 REPORTED IN 2011(3) KHC 199(ABDUL SALAM VS. UNION OF INDIA).

EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WA NO.

1197/2011 DATED 25.08.2011 REPORTED IN 2011(3) KHC 761 (NATIONAL AVIATION COMPANY VS. ABDUL SALAM)

EXHIBIT P3 TRUE COPY OF THE TEXT OF THE SPEECH DATED 30.4.2008 OF THE MINISTER FOR CIVIL AVIATION.

EXHIBIT P4 TRUE COPY OF THE WORKING PAPER BY INTERNATIONAL CIVIL AVIATION ORGANIZATION DATED 27/9/2010.

EXHIBIT P5 TRUE COPY OF THE RELEVANT PORTION OF THE PREPARATORIES IN THE INTERNATIONAL CONFERENCE WHICH LED TOT HE MONTREAL CONVENTION DATED 14.05.1999.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WP(C) NO.

23097/2011 DATED 5.09.2011.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WA NO.

1380/2011 DATED 29.09.2011.

EXHIBIT P8 TRUE COPY OF THE FILLED IN FORMAT GIVEN TO THE 2ND RESPONDENT DATED 17.02.2020.

EXHIBIT P9 TRUE COPY OF THE SETTLEMENT VOUCHER PREPARED BY THE 2ND RESPONDENT AND HANDED OVER TO ONE OF THE CLAIMANTS FOR SIGNATURE.

EXHIBIT P10 TRUE COPY OF THE MEDICAL RECORDS OF THE PETITIONER.

EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN WP(C) 27970/2020 DATED 27.01.2021 BY THIS HON'BLE COURT.

W.P.(C)Nos.8789, 8614 & 7460 of 2021

EXHIBIT P11(A) TRUE COPY OF THE OFFER VOUCHER IN THE NAME OF AMEENA SHERIF.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO. 2914/2019 DATED 3.3.2020. W.P.(C)Nos.8789, 8614 & 7460 of 2021

APPENDIX OF WP(C) 8614/2021 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WP(C) NO.

32550/2010 DATED 20.07.2011 REPORTED IN 2011(3) KHC 199(ABDUL SALAM VS. UNION OF INDIA).

EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WA NO.

1197/2011 DATED 25.08.2011 REPORTED IN 2011(3) KHC 761(NATIONAL AVIATION COMPANY VS. ABDUL SALAM)

EXHIBIT P3 TRUE COPY OF THE TEXT OF THE SPEECH DATED 30.04.2008 OF THE MINISTER FOR CIVIL AVIATION.

EXHIBIT P4 TRUE COPY OF THE WORKING PAPER BY INTERNATIONAL CIVIL AVIATION ORGANIZATION DATED 27.09.2010.

EXHIBIT P5 TRUE COPY OF THE RELEVANT PORTION OF THE PREPARATORIES IN THE INTERNATIONAL CONFERENCE WHICH LED TO THE MONTREAL CONVENTION DATED 14.05.1999.

EXHIBIT P6 TRUE COPY OF THE ORDER IN WP(C) NO.23097/2011 DATED 05.09.2011.

EXHIBIT P7 TRUE COPY OF THE COMMON JUDGMENT In W.P.

(C)NO.23097/2011 AND WA NO. 1380/2011 DATED 29.09.2011.

EXHIBIT P8 TRUE COPY OF THE FILLED IN FORMAT GIVEN TO THE 2ND RESPONDENT DATED 19.12.2020.

EXHIBIT P9 TRUE COPY OF THE SETTLEMENT VOUCHER PREPARED BY THE 2ND RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE MEDICAL RECORDS OF THE PETITIONER.

EXHIBIT P11 TRUE COPY O THE JUDGMENT IN WPC(C) 27970/2020 DATED 27/01/2021 BY THIS HON'BLE COURT.

EXHIBIT P11(A) TRUE COPY OF THE OFFER VOUCHER IN THE NAME W.P.(C)Nos.8789, 8614 & 7460 of 2021

OF AMEENA SHERIF.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO.2914/2019 DATED 3/3/2020

RESPONDENTS EXHIBITS: NIL

//TRUE COPY//