Punjab-Haryana High Court
Smt.Naraini Devi Etc vs Hissar Aviation Club Etc on 18 March, 2024
Neutral Citation No:=2024:PHHC:038607
RSA-639-1993 (O&M). -1- 2024:PHHC:038607
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH.
135
RSA-639-1993 (O&M).
Date of Decision: 18.03.2024.
SMT. NARAINI DEVI AND OTHERS
... Appellants
Versus
HISSAR AVIATION CLUB, HISSAR AND OTHERS
... Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
Present: Mr. Deepak Suri, Advocate,
for the petitioners.
None for the respondents.
VINOD S. BHARDWAJ, J (ORAL).
Appellants-plaintiffs have preferred the present Regular
Second Appeal against the judgment and decree dated 20.05.1988 passed by
the Court of Sub Judge First Class, Hisar, in Civil Suit No.10-3 instituted on
25.11.1982 as well as the subsequent dismissal of Civil Appeal No.23 of
1988 vide judgment and decree dated 01.10.1992.
2 Briefly summarized, the facts of the present case are that one
Inderjeet Singh, the son of the appellant-plaintiff No.1 had died in an
Aircraft accident on 26.11.1981. The appellants-plaintiffs filed a suit for
grant of compensation under the Fatal Accidents Act, 1855. It was stated
that Inderjeet Singh (since deceased) was Pilot in Pushpak Aircraft-VT-
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DYC of Hisar Flying Club, Hisar. He was authorized by Pilot Instructor
Incharge to do cross country flight (He was to overfly Rewari-Bhiwani-
Hisar). The Flying Club Hisar had to provide the arrangement for swinging
the propeller of the aircraft at Bhiwani to start the same. The Pilot Instructor
Incharge sent one Anurag Jain in the aircraft to swing the propeller at
Bhiwani for starting the same. The aircraft took off from Hisar at 11:30
hours IST and flow over to Charkhi Dadri town enroute Rewari from Hisar
at about 13:00 hours. The said aircraft VT-DYC went out of order due to
technical defects in the machinery. The aircraft was also very old and its
date of expiry was also approaching near. Further, the aircraft was not
having fitness certificate/air worthiness certificate. The aircraft hit the kacha
ground close to Janta College Area. The occupants i.e. Inderjeet Singh and
Anurag Jain were taken out from the aircraft by the persons of the locality
and were got admitted in Civil Hospital, Charkhi Dadri. Both were given
first-aid and thereafter they were taken to Rohtak Medical College on the
recommendation of the attending doctor. Anurag Jain succumbed to the
injuries on the way to the Rohtak Medical College while Inderjeet Singh
passed away after reaching the Medical College, Rohtak, for want of proper
medical aid and negligence of the doctors. It was further averred that the
Post-mortem of the deceased Inderjeet Singh was conducted showing that
the death occurred due to fatal injuries received on account of accident of
aircraft for technical and mechanical defect in the said aircraft including its
engine being old and the certificate of registration not being valid. It was
further averred that the aircraft was also not having flight release certificate
on 26.11.1981. The authorities i.e. the respondent Hisar Aviation Club,
Hisar was hence negligent. It was also pointed out that the aircraft had
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logged flights to its maximum hours since last overhauling of the aircraft
and that the auxiliary tank of the fuel was also out of order. There was
defect in the wall of the carburetor. Both the blades of propeller had been
broken and the engine was not developing power prior to the accident.
Various other technical defects were pointed out along with an averment
that Anurag Jain, the flying instructor was not authorized to fly on flight
right seat. Further, it was averred that the deceased Inderjeet Singh was
maintaining good health and would have been alive for another 70 years.
The appellants-plaintiffs were entirely dependent on the earnings and
prospective earning of deceased Inderjeet Singh and that they have suffered
a huge pecuniary loss on account of untimely death of Inderjeet Singh.
3 Written statement was filed on behalf of respondents-
defendants. The factual aspects as regards the flight aircraft and the
occupants thereof were not disputed. However, it was denied that there was
any defect in the maintenance and/or the status of the aircraft. It was also
denied that Flying Club Hisar had to make an arrangement for swinging the
propeller of the aircraft at Bhiwani and that deceased Inderjeet Singh had
made his own arrangement for swinging the propeller. Further, the pilot
instructor incharge had not sent Anurag Jain in the aircraft Pushpak-VT-
DYC for swinging the same. Deceased Inderjeet Singh and Anurag Jain
were course-mates and that he was taken as a passenger on the flight and
after seeking permission of the pilot instructor, which was granted since
Anurag Jain was an experienced trainee and also in the knowhow as to how
to start the propeller. It was also denied that the aircraft was old and was not
having the fitness certificate. It was also averred that after the accident, the
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engine of the aircraft was removed from the aircraft by the Investigating
Inspector of the Director General of Civil Aviation (hereinafter referred to
as 'DGCA') and was examined by the technical department. The same was
found in a normal condition and that the accident in question took place on
account of an intentional low flying and negligence of the pilot himself as
per the report of the DGCA. Further, the registration certificate of the
aircraft was issued on 26.11.1981 by the license engineer and that the
aircraft was also issued the flight release certificate as per law as established
from the report of the DGCA. The fuel tank of the aircraft was also found to
be in a perfect condition and had in fact broken on account of the accident.
As the aircraft did not catch any fire at the time of accident, hence, the
possibility of malfunctioning of the fuel line was entirely ruled out. It was
also averred that Inderjeet Singh was authorized by a pilot incharge to fly at
2000' above the ground level. However, deceased Inderjeet Singh flew the
plane below the passed flight plan, before obtaining clearance from New
Delhi for this flight. An entry was also made in register of the institute in
own handwriting which was an essential and required duty on the part of the
deceased Inderjeet Singh to stick to his flight plan and to maintain safe
flight operations at all costs. Hence, there was an actual knowledge of the
flight plan. It was alleged that the breach was solely attributable to Inderjeet
Singh for which respondents-defendants Aviation Club Hisar cannot be
faulted with. It is claimed that there is no occasion for the grant of
compensation rather, the Hisar Aviation Club, Hisar is entitled to seek
recovery of the loss caused to the aircraft on account of the negligence of
Inderjeet Singh himself.
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4 On completion of pleadings, the following issues were
framed:-
"1. Whether the plaintiffs are entitled to claim compensation
on account of death of Inderjit under the provision of Fatal
Accident Act, 1855? If so to what amount ?OPP
2. Whether the claim is maintainable in the present form?
OPD.
3. Whether the suit is bad for mis-joinder of parties? OPD
4. Whether the suit is not within time? OPD.
5. Whether no valid and legal noticle under Section 80 CPC
has been served by the plaintiff? If so its effect?OPD
6. Whether accident took place due to technical defect n the
Aircraft? OPD
7. Relief.
5 Evidence was led by the respective parties to establish their
case. Upon consideration of the pleadings, evidence and the rival arguments
advanced by the parties, the Sub Judge recorded a specific finding that even
though the plaintiffs have claimed that there was lapse on the part of the
respondent Hisar Aviation Club, however, the sole attribution made by the
appellants-plaintiffs against respondents-defendants is that they were to
make arrangement for swinging of the propeller at Bhiwani. It was noticed
that the said occasion did not even arise in the present case since the
accident took place prior to the landing of the aircraft at Bhiwani. It was
also noticed that there was no evidence brought on the basis whereof
negligence on the part of the respondents-defendants could be claimed to
have been established, rather, the evidence established that the negligence
was entirely attributable to deceased himself. The investigation into the
aircraft accident was carried out by the Investigating Inspector V.K.
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Chandana from the office of DGCA, New Delhi and his report has been
proved on file as Ex.PW.4/1 which clearly shows that there was no
technical or mechanical defect in the aircraft which could have led to the
accident and that the same was on account of mishandling of the aircraft by
the pilot himself due to low flying. The statement of V.K. Mittal-PW-5,
further established that the aircraft was inspected before it took off and that
it was in order before flying. It was noticed by the Sub Judge First Class
that compensation under Section 1 (1) of the Fatal Accidents Act, 1855, can
only be awarded when death is caused by wrongful act, negligence or
default on the part of the defendants and since the said aspect could not be
established, the liability could not be fastened on the respondents-
defendants,.
6 Aggrieved thereof, an appeal had been preferred by the
appellants-plaintiffs before the District Judge, Hisar. On consideration of
the arguments advanced by the appellants-plaintiffs, the said appeal was
also dismissed by the Additional District Judge, Hisar, vide judgment and
decree date 01.10.1992 leading to filing of the present Regular Second
Appeal.
7 Learned counsel appearing for the appellants-plaintiffs has
reiterated the arguments that had been noticed by both the Courts. He
asserts that the deceased was having dual flying experience of 37.20 hours
and a solo flying experience of 77.55 hours and had flown 23.20 hours in
the last 30 days. It is contended that he was an experienced pilot and was
duly authorized to do cross country flight and was also authorized by the
pilot Instructor Incharge A.S. Bhati of Hisar Flying Club. The flight was
cleared at a height of 2000' AGL. The weather was clear. The co-passenger
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Anurag Jain was also having a private pilot's license No.2956 which was
valid upto 10.11.1981 and he had total flying experience of 148.35 hours
and dual flying experience of 36 hours and solo flying experience was of
112.35 hours. He submits that the trial Court as well as the Appellate
Court failed to consider the technical and latent defects in the aircraft and its
machinery and that the said aircraft was very old. Even the date of expiry
and the airworthiness of the aircraft was also approaching near and that the
falling of the aircraft itself suggests that it was not being maintained
properly. He further submits that the respondent Aviation Club should not
have allowed the cross country flights taking into consideration the
airworthiness of the said aircraft and that the report submitted by the Officer
in the Department of DGCA was based on conjectures and hypothesis and
is required to be disregarded.
8 No other argument has been raised.
9 I have heard learned counsel appearing for the appellants and
have gone through the documents available on the record.
10 While the emphasis of the counsel for the appellants-plaintiffs
is that the aircraft was not fit for flying and that the report submitted by the
Officer designated to investigate into aviation accident is required to be
discarded being based on hypothesis, however, he has not been able to refer
to any evidence on the basis whereof the hypothesis and the conclusions
drawn by the Investigators can be said to be misconceived or misplaced. It
is not out of place to mention that in relation to aviation accidents,
investigations are required to be conducted by the DGCA. Once an officer,
who is duly competent to inquire into the matter, has concluded the
investigation as regards the airworthiness and the fitness of the aircraft, the
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same cannot be disbelieved merely on the basis of a self serving statement
of the plaintiff-appellant. It was also concluded by the Investigator that the
accident in question took place on account of a lapse by the pilot himself
since he was flying at a low altitude and did not stick to the site plan of
2000' required to be maintained. No evidence has also been led by the
appellants-plaintiffs to controvert the said finding to establish that deceased
Inderjeet Singh had struck to the site plan as approved by the competent
authority. The submission of the appellants-plaintiffs cannot be accepted
ignoring the investigation conducted by the competent authority. In the
absence of any material or evidence to suggest that the conclusions drawn
by the Investigator deputed by the DGCA were not correct or that the
Investigator was not competent and did not hold the requisite certificate for
carrying out the investigation into the aviation accident, the said report
would go a long way to establish as to whether the respondents had been
negligent or there was deficiency in maintaining the aircraft.
11 Even though the accident in question can be said to be an
unfortunate incident in which two persons lost their lives, however, the
mandate of Fatal Accidents Act, 1855, is to provide for compensation in the
event where an accident has resulted in fatal consequences due to lapse on
the part of the respondent. Hence, the aspect of negligence and defect by the
respondents-defendants has to be established before any liability can be
fastened on them. As civil consequences are to flow, causing huge financial
liability on the respondents, the same cannot be fastened merely out of
sympathy. An objective consideration of the evidence is required to be
undertaken before any person is burdened with financial obligations.
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12 In the absence of any evidence brought before the Court to
disregard the report submitted by the officer deputed by the DGCA which
such report had been duly exhibited on record and has stood the test of
cross-examination, I fail to find myself in agreement with the appellants-
plaintiffs.
13 Both the Courts below have also recorded a concurrent finding
of fact after appreciation of the evidence and it cannot be said that the
findings suffered from any illegality; impropriety; perversity or based on
misreading of evidence. Consequently, the present appeal is dismissed. The
judgments and decrees passed by the Courts below are affirmed.
March 18, 2024. (VINOD S. BHARDWAJ
raj arora JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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