Kerala High Court

Shamsuddeen Thalekunnel vs Union Of India on 29 March, 2021

WP(C).7542/2021 & WP(C).7578/2021
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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

                           WP(C).No.7542 OF 2021(P)


PETITIONER/S:

                SHAMSUDDEEN THALEKUNNEL
                AGED 49 YEARS
                S/O.AHAMMEDKUTTY, RESIDING AT KAVUNGAL HOUSE,
                VAZHAKKAD P.O., MALAPPURAM-673 640.

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

RESPONDENT/S:

      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.

                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

OTHER PRESENT:

                SRI.P.VIJAYAKUMAR,ASGI

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.03.2021, ALONG WITH WP(C).7578/2021(V), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).7542/2021 & WP(C).7578/2021
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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

                           WP(C).No.7578 OF 2021(V)


PETITIONER/S:

                ASHIK PUTHEN PEEDIYEKKAL
                AGED 41 YEARS,S/O.MOIDUNNI
                R/AT PUTHEN PEEDIYEKKAL (H), KALURMA, PERUMBAL,
                NANNAMUKKU P.O., MALAPPURAM - 679 575.

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

RESPONDENT/S:

      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.

                R2   BY   ADV.   SRI.JOSEPH KODIANTHARA (SR.)
                R2   BY   ADV.   SRI.ISAAC THOMAS
                R2   BY   ADV.   SRI.P.G.CHANDAPILLAI ABRAHAM
                R2   BY   ADV.   SHRI.ALEXANDER JOSEPH MARKOS

OTHER PRESENT:
             SRI.P.VIJAYA KUMAR,ASGI

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.03.2021, ALONG WITH WP(C).7542/2021(P), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).7542/2021 & WP(C).7578/2021
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                                   JUDGMENT

[ WP(C).7542/2021, WP(C).7578/2021 ]

Dated this the 29th day of March 2021

In both 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) 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 WP(C).7542/2021 & WP(C).7578/2021

followed till this time. The learned Senior Counsel submits that

offer letters have not been issued in both these Writ Petitions.

4. Learned counsel for the petitioners points out that the

petitioner in WP(C) No.7578 of 2021 is undergoing another

surgery and therefore his claim has to be considered separately

taking note the same.

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 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.7578 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 WP(C).7542/2021 & WP(C).7578/2021

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 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

rkc JUDGE WP(C).7542/2021 & WP(C).7578/2021

APPENDIX OF WP(C) 7542/2021 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC 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 DATED 30.04.2008 OF THE MINISTER FOR CIVIL AVIATION.

EXHIBIT P4 TRUE COPY OF THE WORKING PAPER BY INTERNATIONAL CIVIL AVIATION ORGANISATION 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 WPC 23097/2011 DATED 05.09.2011.

EXHIBIT P7 TRUE COPY OF THE COMMON JUDGMENT IN WPC 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 12.03.2021.

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 OF THE JUDGMENT IN WPC 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.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO.2914/2019 DATED 03.03.2020.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R2 A TRUE COPY OF THE JUDGMENT DATED 08.03.2021 OF THIS HONOURABLE COURT IN WPC NO.4872 OF 2021 AND CONNECTED CASES.

WP(C).7542/2021 & WP(C).7578/2021

APPENDIX OF WP(C) 7578/2021 PETITIONER'S/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 TAXT 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 OF REGISTRATION OF CLAIM FORMAT GIVEN TO THE 2ND RESPONDENT DATED 17/12/2020.

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 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.

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