IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 WP(C).No. 32550 of 2010(P) --------------------------------------- PETITIONER(S): ------------------------- 1. S.ABDUL SALAM, AGED 48 YEARS, S/O.SABAN, FISHERMAN, R/AT BALEYAPURA, ARIKKADIKADAVATH, P.O.KUMBALA, KASARAGOD DISTRICT. 2. RAMLA, W/O.ABDULSALAM, R/AT BALEYAPURA,ARIKKADIKADAVATH, P.O.KUMBALA, KASARAGOD DISTRICT. 3. RAIHANATH, D/O.ABDULSALAM, R/AT BALEYAPURA,ARIKKADIKADAVATH, P.O.KUMBALA, KASARAGOD DISTRICT. 4. RASHEEDA,D/O.ABDULSALAM, R/AT BALEYAPURA,ARIKKADIKADAVATH, P.O.KUMBALA, KASARAGOD DISTRICT. 5. NASSIR, S/O. ABDULSALAM, R/AT BALEYAPURA,ARIKKADIKADAVATH, P.O.KUMBALA, KASARAGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): --------------------------- 1. UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF CIVIL AVIATION, NEW DELHI 110001. 2. NATIONAL AVIATION COMPANY OF INDIA LTD., (FORMERLY AIR INDIA CORPORATION) REPRESENTED BY ITS CHAIRMAN AND THE MANAGING DIRECTOR, CORPORATE OFFICE, AIR INDIA HOUSE, NARIMAN POINT, BOMBAY,THROUGH ITS STATION MANAGER, AIR INDIA, REPRESENTATIVE OFFICE AT M.G.ROAD,ERNAKULAM, COCHIN - 682 016. R1 ADV. SRI.P.PARAMESWARAN NAIR,ASST.S.G. OF INDIA R2 BY SRI. JOSEPH KODIANTHARA,SENIOR ADVOCATE, BY ADVS. SRI. H.D. NANAVATI SRI. BINU MATHEW, SRI.B.J.JOHN PRAKASH, SRI.TOM THOMAS (KAKKUZHIYIL) SRI. MATHEWS K.UTHUPPACHAN, SRI.TERRY.V.JAMES. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2011, THE COURT ON 20/07/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.32550/2010 P APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REQUEST MADE BY THE PETITIONERS CLAIMING COMPENSATION IN THE FORMAL SUPPLIED TO THE PETITIONERS DTD. NIL. P2: COPY OF THE FIR BEFORE THE JFCM COURT, MANGLORE DATED 22/05/2010. P2(A): COPY OF THE DEATH CERTIFICATE DTD. 1/06/2010 ISSUED BY STATE OF KARNATAKA. P2(B): COPY OF THE CERTIFICATE ISSUED BY THE ARIKKADY KADAVATH JAMA-ATH COMMITTEE CONFIRMING THE CREMATION DTD. 31/05/2010. P3: COPY OF THE NEWS PAPER REPORT PUBLISHED BY THE TIMES OF INDIA DTD. 17/08/2010. P4: COPY OF THE ORDER OF THE NATIONAL COMMISSION REPORTED IN 2004 CPJ 106 NC DTD. 5/08/04. P5: COPY OF THE MONTREAL CONVENTION SIGNED BY THE SIGNATORIES TO THE CONVENTION DTD. 28/05/1999. P6: COPY OF THE THE CARRIAGE BY AIR ACT 1972. P7: COPY OF THE STATUTORY INSTRUMENT ADOPTED IN THE UNITED KINGDOM PURSUANT TO THE REVISION OF THE STANDARDS IN THE MONTREAL CONVENTION DTD. 30/12/2009. P8: COPY OF THE JUDGMENT REPORTTED IN AIR 1988 AP 361 DTD. 18/07/87. P9: COPY OF THE NEWS PAPER REPORT PUBLISHED BY THE INDIAN EXPRESS DTD. 19/07/2010. P9(A): COPY OF THE NEWS PAPER REPORT PUBLISHED BY THE HINDU DTD. 29/07/2010. P9(B): COPY OF THE NEWS PAPER REPORT PUBLISHED BY THE INDIAN EXPRESS DTD. 14/09/2010. P9(C): COPY OF THE NEWS ITEM AND COMMENTS APPEARING IN THE WEBSITE OF SOME OF THE RELATIVE OF THE VICTIMS DTD. 14/09/10. P9(D): COPY OF THE NEWS PAPER REPORT PUBLISHED BY THE INDIAN EXPRESS DTD. 3/09/2010. P9(E): COPY OF THE NEWS RELATING TO THE AGITATION DTD. 9/09/2010 IN THE HINDU. Kss ..2/- ..2.... WPC.NO.32550/2010 P P9(F): COPY OF THER NEWS ITEM IN NDTV. P9(G): COPY OF THE GENERAL CONDITIONS OF CARRIAGE OF AIR INDIA. P9(H): COPY OF THE DESCRIPTION OF GOLD FRANC APPEARING IN WIKEPEDIA. P9(I): COPY OF THE DESCRIPTION OF SPECIAL DRAWING RIGHTS APPEARING IN WIKEPEDIA. P10: COPY OF THE MEDIA REPORTS IN REVEALING THE CONTENTS OF THE FLIGHT DATA RECORDER DTD. 17/11/10 REPORTED BY DAKSHIN TIMES. P11: COPY OF THE SPEECH OF THE MINISTER FOR CIVIL AVIATION WHILE PLOTING THE BILL RESULTING THE CARRIAGE BY AIR ACT DTD.30/04/08. P12: COPY OF THE RELEVANT PAGES OF THE COMMENTARIES BY DICEY AND MORRIS IN THE CONFLICT OF LAWS 11TH EDITION FROM 1453 TO 1467. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE CLAIM FORM ALONG WITH ANNEXURES FOR ASSESSMENT OF THE FINAL COMPENSATION SUBMITTED BY THE PETITIONERS. R2(B): COPY OF RELEVANT EXTRACT OF PROVISIONS CONTAINED IN THE MONTREAL CONVENTION, 1999. R2(C): COPY OF THE REPORT OF THE PARLIAMENTARY STANDING COMMITTEE ON THE CARRIAGE BY AIR (AMENDMENT) BILL 2007. /TRUE COPY/ P.S.TO JUDGE Kss (CR) P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No.32550 OF 2010 ......................................................................... Dated this the 20th July , 2011 J U D G M E N T Does the law reckon the poor folk travelling in an ill- fated plane and losing their lives in an accident,along with mighty rich, as the 'Children of a Lesser God', with regard to the eligibility to obtain the statutory compensation payable under the Carriage by Air Act 1972, as amended by the Carriage by Air (Amendment) Act, 2009 (Act 28 of 2009) incorporating the relevant provisions under the III Schedule in conformity with the Montreal Convention adopted on 28.05.1999, is the point involved. 2. The history of civil aviation industry in the world is said as traceable to the 18th century, when a hot air balloon was designed, proclaiming the starting of balloon flights, followed by construction of airships in the 19th century and the 'first flight' by the Wright Brothers in 1903. The concept of Air crafts and Air travel however was not alien to Indian society, in view of the reference to 'Pushpaka Vimana' in the 'Ramayana' by Saint Valmiki, though it was beyond the dreams of the rest of the W.P.(C) No.32550 OF 2010 2 world, till then. India also joined hands with the West, when the Tata's historic flight from Karachi to Mumbai was inaugurated on 15.10.1932. In the course of developments in all spheres, India made her presence felt, by subscribing her signature to various international instruments governing the liability of Air Carriers for injury or death of passengers or destruction, loss or damage of baggage or cargo and losses caused by delay in international carriage of passengers, baggage and cargo, ratifying the Warsaw Convention on 1929, the Hague Protocol 1955 and lastly, the Montreal Convention 1999, giving effect to the same by way of appropriate legislations, such as, Indian Carriage by Air Act 1934, The Carriage by Air Act 1972 and Act 28 of 2009 introducing the 3rd Schedule and other amended provisions to the existing Act. 3. The petitioners are 'members of the family' of the deceased Mohammed Rafi, who lost his life in the Air crash occurred at the Bajpei International Airport, Mangalore, Karnataka State on 22.05.2010 involving an International W.P.(C) No.32550 OF 2010 3 Carrier belonging to the second respondent, a Government Company owned by the first respondent/Union of India. In fact, the deceased was working in the United Arab Emirates and was returning home, in the ill-fated 'Air India Express' plane owned by the erstwhile Air India Corporation Ltd., now the second respondent National Aviation Company of India Ltd (pursuant to the merger with the Indian Airlines). The international flight originated from Dubai International Airport, UAE and the destination was the International Airport, Mangalore in India. It was a Boeing 737 8HG (Registration VT-AXB) performing the flight IX-812, which took off in the early hours on 22.05.2010 and during the course of landing at the 'Table-top runway' of the International Airport, Mangalore, overshot the runway and fell into a gorge sustaining the crash. 158 persons carried in the Aircraft, out of the total 160 passengers and 8 crew, sustained a horrifying death and the deceased involved in this case was one among them. The local police registered a crime and submitted FIR to the JFCM Court, Mangalore on W.P.(C) No.32550 OF 2010 4 22.05.2010. Enquiry and investigation by different authorities including those under the Air Craft Act, 1934 was set in motion. 4. While settling the compensation for lives and limbs of the passengers and damage sustained to the property, the petitioners who are the parents and sisters/brothers of the deceased submitted a claim in the prescribed form for the due amount payable under the Act. The second respondent disbursed a sum of Rs.10 lakhs by way of 'Interim Compensation' as contemplated under Rule 28 of the the III Schedule and negotiations were going on with regard to the balance payable. The petitioners, like many others, stood for the satisfaction of the minimum statutory liability of 'One lakh SDR'-(Special Drawing Rights) as provided under Rule 21(1), read with and 17(1) of the Third Schedule and Section 5(1) of the Act. It is contended that the second respondent put forth an unconscionable demand, allegedly at the instance of their Insurers, to come to a settlement for a total sum of Rs.35 lakhs “in full and final settlement” of the claim and asked the petitioners to sign on the W.P.(C) No.32550 OF 2010 5 dotted lines, which was not palatable to them. They chose to approach this Court by filing this writ petition for declaration and enforcement of their rights, referring to the mandate of the Montreal Convention. 5. The crux of the contentions in the writ petition is that the Air crash was solely on account of the lapse on the part of the Pilot ( who is indicated as snoring at the relevant time, when the plane was about to land) and in turn, the sheer negligence on the part of the Second respondent Airlines. As such, strict liability is sought to be established upon the Airlines, in view of the relevant provisions of law, however stating that the claim of the petitioners would stand confined to the statutory extent. 6. The second respondent has filed a counter affidavit virtually conceding the factual position, that the matter has to be dealt with as per the provisions of the Carriage by Air Act, 1972, as amended by the Montreal Convention of 1999 (incorporated under the III Schedule to the Act), to the exclusion of all other law in force in India. The scope of the W.P.(C) No.32550 OF 2010 6 relevant provision, particularly with regard to the extent of liability under the Rule 21(1) of the III Schedule, providing for an amount of 'One lakh SDR' stipulated therein is sought to be interpreted as not the minimum amount of compensation payable, but the maximum limit 'upto which' the liability can be cast upon the Carrier. It is contended that the compensation payable is 'not equal' in all cases and that, it is subject to proof as to the 'extent of damage sustained'. Referring to the fact that the deceased was aged 24 years and was employed as a 'salesman' in a Super Market, earning a salary of 2000 AED (Rs.25000/- per month), the maximum compensation payable was contended as much below Rs.35 lakhs and accordingly, Rs.35 lakhs was offered as the compensation payable in “full and final settlement”, which was not acceptable to the petitioners. Explaining the scheme of the provisions in the Act/Rules, it is pointed out that the liability of the Carrier, as specified under Rule 21 has been bifurcated, whereby it has been stipulated in sub-rule(1) that, upto a compensation limit of 'One W.P.(C) No.32550 OF 2010 7 lakh SDR', the Carrier will not be eligible to set up any defence referring to the absence of negligence, while such a defence is possible in respect of the extent of compensation payable above 'One lakh SDR', as given under sub-rule (2). This, according to the second respondent, does not mean that the amount of 'One lakh SDR' payable in the case of death or bodily injury under sub rule (1) of Rule 21 is automatic and contends that the same is payable only subject to proof of the damage sustained because of the injury/death of the person concerned. Viewed in the said circumstance, the amount of Rs.35 lakhs offered to be paid to the petitioners is stated as reasonable and a 'just compensation', simultaneously adding that many of the cases have already been settled by paying the eligible compensation varying from case to case, some of which stand above 'One lakh SDR', based on the facts and circumstances. 7. The petitioners have filed a reply affidavit, mostly reiterating the contentions raised in the writ petition, however producing some additional documents including the 'Speech' of W.P.(C) No.32550 OF 2010 8 the Minister for Civil Aviation, Govt. of India, while piloting the Bill dated 30.04.2008 resulting in the amendment of Carriage by Air Act. Referring to the contents of 'FDR' and 'CVR' (Flight Data Recorder and Cockpit Voice Recorder respectively), it is stated in the said reply affidavit that the enquiry/investigation conducted by the competent authorities revealed that the mishap was only because of the culpable negligence on the part of the Pilot and as such, the second respondent/Airlines cannot shirk its liability and responsibility with regard to compensation payable under any circumstance. The manner of interpretation, as sought to be adopted by the second respondent with regard to the extent and instance of liability, referring to the 'proof of damages', is stated as unfounded, with reference to the relevant provisions of law and judgments, asserting that the respondents cannot compel the petitioners to issue a discharge voucher accepting a sum of Rs.35 lakhs offered “in full and final satisfaction” and that the aforesaid amount, which forms the admitted liability, might be ordered to be disbursed forthwith. W.P.(C) No.32550 OF 2010 9 8. In the course of the proceedings, pursuant to a query raised by this Court as to the basis on which compensation would be assessed by the second respondent in the event of the death of a 'child or a non-earning member', in any given case following an Air accident, a 'Brief Note' was submitted (dated NIL) signed by the learned Counsel for the second respondent, which, among other things, makes a reference to the manner of fixation of compensation under the M.V. Act and the decision rendered by the Apex court in Arunkumar Agarwal & another vs. National Insurance Co. Ltd. (JT 2010 (7) SC 304 ) granting Rs. 6 lakhs as compensation payable in the case of death of a 'Housewife', treating her notional income as Rs.5000/- per month, which is stated as not on the higher side. Para 5 of the said Note reads as follows: “Nevertheless in the present case, having regard to the fact that already a sum of Rs.10,00,000 had been given as interim compensation under Article 28 of the Montreal Convention to enable the family members to get over their immediate needs (Rs.5,00,000/- in the W.P.(C) No.32550 OF 2010 10 case of children under 12) and bearing in mind that some ad hoc figure would necessarily have to be given (since in such cases there would be no data to ascertain the financial loss) it was recommended by the lawyers representing Air India and its insurers that in no case should the total compensation payable in this case (inclusive of the interim payment) be less than an ad hoc sum of Rs.25,00,000, and this recommendation was accepted by Air India and its insurers” In view of acceptance of the proposal, stated as made by Air India, that in no case should the total compensation payable including the interim payment be less than Rs.25 lakhs, pursuant to further deliberations, the second respondent was fair enough to disburse an additional sum of Rs.10 lakhs to the petitioners by way of interim payment, which is stated as received by the learned counsel for the petitioners as well. 9. The circumstances contemplated under different International Conventions, such as Warsaw Convention 1929, Hague Protocol and Montreal Convention, 1999, coupled W.P.(C) No.32550 OF 2010 11 with the different enactments made by the Govt. of India at different points of time, were explained by Mr.Kodoth Sreedharan, the learned Counsel for the petitioners. Reference was also made to several judicial precedents rendered by the Apex Court and the High Courts in India (though not on the specific point) and also the decisions rendered by the Courts of foreign countries. Similarly, Mr.Joseph Kodianthra, the learned Sr. Counsel appearing for the second respondent sought to explain the scope of the relevant provisions of law and the inference made by the Indian and Foreign Courts with reference to the related/relevant aspects. This Court had also the privilege of hearing Mr. H.D. Nanavathi, the learned Counsel from M/s.Mulla and Mulla, Mumbai, who is stated as having participated in the negotiations representing the second respondent throughout and whose name has been referred to in various proceedings forming part of the materials on record. 10. The learned Counsel appearing for the second respondent very fairly conceded in the course of arguments, that W.P.(C) No.32550 OF 2010 12 the plea as to the 'absence of negligence', set forth in the counter affidavit, is not pressed any further, in the light of the subsequent events/developments and that the actual extent of liability under Section 5(1), read with the relevant Rules of the Third Schedule, particularly Rules 17 and 21, ie., the quantum of compensation payable alone is disputed. 11. The learned Counsel appearing on behalf of both the sides are of the same opinion, that the issue to be resolved depends solely upon the interpretation to be made as to the mandate of Rule 21(1), whether the amount of 'One lakh SDR' stated as payable to each passenger in respect of death under Rule 17(1) is the 'minimum' and whether the claimants are absolved from the liability to substantiate the 'damage sustained' (following the death of the passenger) with reference to various aspects such as age, employment, dependency and other relevant factors. As such, no fact adjudication is found necessary in this case; nor does the factum of Negligence becomes relevant to fix the liability, as the same stands W.P.(C) No.32550 OF 2010 13 admitted. 12. For solving the issue as above, it has become necessary to probe into the evolution of law with regard to the liability of Carriers at an international level and legislations made by the Govt. of India at different points of time, to conform to the law. Even in the early decades of the 20th Century, the liability of an Air Carrier in respect of 'International carriage' of passengers, baggage and cargo was a subject matter of active consideration of many countries, including India (though under British Rule at that time). Taking note of the requirements of the relevant aspects and the law prevailing in different countries for transportation of passengers and cargo through Air across nations, it was felt essential to evolve some common norms to be accepted and acted upon by such countries to promote such transport in furtherance to the development of business and to maintain stronger relationships. It was accordingly, that the 'Warsaw Convention' of 1929 was given shape to and India turned to be a signatory to the same . The said Convention was W.P.(C) No.32550 OF 2010 14 given effect to in India by enactment of the Indian Carriage by Air Act, 1934 (Act 20 of 1934) in regard to international carriage and the provisions of the Act were extended to the 'domestic carriage' as well, subject to certain exceptions, adaptations and modifications as per the Notification issued in 1964. The Convention provided that, when an accident occurred during international carriage by Air, causing damage to a passenger or the cargo, there was a presumption of liability on the Carriers, who, however could not be held liable, if they proved that they or their agents had taken all necessary measures to avoid damage or that it was impossible for them to take such measures. Striking a balance, the extent of liability on such presumption was fixed on the Carrier, limiting the same to '1,25,000 Gold Francs' in respect of death of each passenger; while there was no limitation of liability, if the damage was caused by the wilful misconduct of the Carrier. 13. While so, a diplomatic conference was convened at 'Hague' in September 1955 at the instance of the International W.P.(C) No.32550 OF 2010 15 Civil Aviation Organisation, whereby the provisions of Warsaw Convention 1929 were amended and the extent of presumed liability mulcted on the Carrier was enhanced from 1,25,000 Gold Francs, per passenger, to 2,50,000 Gold Francs, per passenger ; besides providing for simplification of the documents for carriage and also making the Carrier liable, where the damage was caused by an error in piloting or in handling the Air Craft or in navigation. On ratifying the Hague Protocol, by the required number of States, the same was brought into force among the ratifying States on 01.08.1963. It was in furtherance to the steps taken by the Govt. of India to give effect to the 'Hague Protocol' as well, being a signatory to the same, Act 69 of 1972 (Carriage by Air Act, 1972) was brought into force w.e.f. 15.05.1973, after receipt of the assent of the President of this Republic on 19.12.1972. 14. Drastic changes were later brought about in the international sector of Civil Aviation with regard to liability to pay compensation in respect of damage caused to the person and W.P.(C) No.32550 OF 2010 16 property of the passengers, as per 'Montreal Convention'. Though, several countries realized the necessity to have such changes to promote transport in furtherance to developmental measures and became signatory to Montreal Convention and though India was a signatory to both the earlier conventions - i.e. Warsaw Convention and Hague Protocol, it took nearly two decades for India to take a firm decision to subscribe to the Montreal Convention and to bring forth necessary legislation to give effect to the same. After realizing the facts and figures, the necessity to take a positive step in this regard was felt, lest, the Indian citizens/passengers undertaking such international travel should be adversely affected and stand discriminated. It was accordingly, that the Carriage by Air (Amendment) Bill, 2007 was introduced in the Lok Sabha on 04.05.2007, which was referred to the concerned Committee constituted for examination and reporting. The Committee considered the Bill and finalized the report, after hearing the views of various stakeholders and the nodal Ministry i.e. Ministry of Civil Aviation. The Bill was W.P.(C) No.32550 OF 2010 17 sought to enable the Government to accede to the Montreal Convention for the unification of certain Rules for International Carriage by Air; so that, India was put at par with major countries of the world in this regard, particularly since the existing provisions as to the limits of liability were found to be totally inadequate and a 'Socio - economic study' conducted by the International Civil Aviation organizations revealed the necessity to have revised levels of compensation, modernizing the existing liability provisions. 15. By virtue of the Montreal Convention, a 'two-tier' liability regime was introduced for the first time, providing compensation in terms of 'SDR' (Special Drawing Rights). As per the first tier, in the case of death or bodily injury, the liability of the Carrier was limited to 'One Lakh SDR', per passenger, making the Carrier subject to strict liability, regardless of fault. For proven damages above 'One lakh SDR', though there was no pre- specified limits of liability, the Carrier was declared as not liable to such extent, if it was proved that the damage was not caused W.P.(C) No.32550 OF 2010 18 by its negligence or other wrongful act or omission. Simultaneously, enhancement was also made on the compensation in respect of damage caused to baggage / cargo. 16. The earlier Convention, i.e. Warsaw System, provided 'four choices' of jurisdiction for filing a claim by the passenger or legal heirs, namely, (1) the place where the ticket was issued or the contract of carriage was made (2) principal place of business of Carrier, (3) the place of destination of the passenger, and (4) the place of the domicile of the Carrier. The Montreal Convention 1999, added a '5th jurisdiction', i. e the 'place of domicile of the passenger', provided the Airline had a presence there. This fact highlighted in the Bill enabled an Indian National to file his claim in India, even if the journey was undertaken outside India and the ticket was purchased outside India, provided the Carrier had a presence in India. It provided for simplified and modernised documents of carriage (passenger ticket and way bill); thus enabling utilization of electronic data processing in the Air Transport Industry. The Montreal W.P.(C) No.32550 OF 2010 19 Convention 1999 sought to establish much needed uniformity and predictability of the Rules relating to the international carriage of passengers, baggage and cargo, protecting the interest of passengers by introducing the modern 'two-tier' liability system and providing for the swift recovery of proven damages,