BHARTI AXA GENERAL INSURANCE CO. LTD. versus PRIYA PAUL & ANR.
[2020] 7 S.C.R. 583, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Facts
A
B
C
D
E
F
G
H
583
[2020] 7 S.C.R. 583
583
BHARTI AXA GENERAL INSURANCE CO. LTD.
v.
PRIYA PAUL & ANR.
(Civil Appeal No. 3346 of 2018)
FEBRUARY 07, 2020
[MOHAN M. SHANTANAGOUDAR AND
R. SUBHASH REDDY, JJ.]
Insurance – Aircraft Act, 1934 – Aircraft Rules, 1937 – Claim
filed by respondent no. 1 pertaining to an aviation accident leading
to the death of her son – The appellant-insurer repudiated the claim
on the basis that the deceased was travelling in a motorized glider
for sightseeing and hence was not travelling in a standard aircraft
and was further not a fare-paying passenger in any regular
scheduled airline or air charter company, which excluded the
accident from the purview of the policy – The National Commission
directed the insurer to pay an amount of Rs. 1 crore – On appeal,
held: The fact that the glider was motorized would not imply that it
was not an aircraft – The terms ‘aircraft’ and ‘glider’ have not been
defined within the policy – Even the aviation inspection report of
Transport Safety Board of Canada unequivocally referred to the
glider as an ‘aircraft’ repeatedly – Therefore, glider in question
must be regarded as an aircraft under the policy – The policy itself
does not define what a ‘standard type of aircraft’ is – The 1937
Rules do not maintain any uniform categorisation between powered
and non-powered aircraft, far from terming any of these as ‘standard’
or ‘non-standard’ – The National Commission rightly concluded
that had the insurer really intended to
exclude gliding activity from
the purview of the policy, it could have done so expressly, similar to
the manner in which hang-gliding and para-gliding were excluded
– Similarly, insurer could have defined the phrase ‘standard type
of aircraft’ in the policy, but it chose not to – Now, it is not open to
the insurer to reject a claim by arguing that a glider is not a standard
aircraft by virtue of not principally being a powered aircraft –
International Civil Aviation Organisation defines a chartered flight
as a non-scheduled operation using a chartered aircraft – A charter
is stated to be a contractual arrangement between an air carrier
and an entity hiring or leasing its aircraft – In the instant case,
A
B
C
D
E
F
G
H
584
SUPREME COURT REPORTS
[2020] 7 S.C.R.
offering sightseeing services on a glider plane for a fixed
consideration, the aircraft was given on hire, this practice may
constitute on own-use charter – The Company offering service was
an incorporated Company – Further, policy omitted to define ‘air
charter company’, therefore the benefit of the ambiguity in meaning
will to go the claimant – Insofar as argument that deceased was not
a passenger is concerned, the purpose for the journey was to fly
over various scenic spots, and after completion, the glider was to
return to a designated location, presumably from where it took off –
Thus, the deceased was a fare-paying passenger on the glider in
question – Therefore, the accident out of which the instant claim
arose was completely covered under the ambit of the policy – No
reason to interfere with the impugned judgment – Aeronautics Act,
1985 of Canada.
Dismissing the appeal, the Court
HELD: Whether the glider involved in the accident was an
Aircraft.
1. It becomes important to note that though the glider in
question was equipped with an engine, this was mainly for the
purpose of adding self-launching capacity to the vehicle, as
evident from the Transport Safety Board of Canada (TSBC)
Report. Be that as it may, the fact that the glider was motorised
would not imply that it was not an aircraft at all. Even the TSBC
Report unequivocally refers to the glider as an “aircraft”
repeatedly. Importantly, the terms
“aircraft” and “glider” have
not been defined within the Policy. In such circumstances, this
Court is of the view that the glider in question must be regarded
as an aircraft under the Policy. [Para 8.5][594-D-E]
Whether the glider in question was a standard type of
aircraft.
2. The 1937 Rules do not maintain any uniform
categorisation between powered and non-powered aircraft, far
from terming any of these as “standard” or “non-standard”. It
does not appear to be the case that one set of rules is prescribed
for powered aircraft, and another distinct set for non-powered
aircraft. Thus, no reliance can be placed on the Rules to further
the Appellant’s contention in this respect. [Para 9.8][597-B-C]
A
B
C
D
E
F
G
H
585
3.  In the instant case, this Court agrees with the conclusion
of the National Commission that had the insurer really intended
to exclude gliding activity from the purview of the Policy, it could
have done so expressly, similar to the manner in which hang-
gliding and para-gliding were excluded in Clause 7(xiii) of the
Policy. Similarly, the insurer could have also defined the phrase
“standard type of aircraft” for the purpose of the Policy, but it
chose not to do so. In these circumstances, it is not open to the
insurer to reject a claim arising out of a glider accident by now
arguing that a glider is not a standard aircraft by virtue of not
principally being a powered aircraft. Therefore, regardless of
whether the glider involved in the accident was powered or non-
powered, motorised or non-motorised, it was a “standard type of
aircraft” envisioned in the Policy. [Para 9.11][599-F-G]
Whether the glider in question was duly licensed.
4. On perusal of the business licence on record, as well as
the observation in the TSBC Report that the glider was registered
privately, carrying registration as “C-FHAB”, with serial number
11-016. Moreover, there is the specific finding in the TSBC
Report that the glider was certified, equipped and maintained in
accordance with existing regulations and approved procedures,
and compliant with rules such as the Visual Flight Rules. The
Report further observes that even the pilot of the glider was
certified and qualified for
the flight as per existing regulations,
indicating that such separate glider pilot licence was in accordance
with the legal requirements. Thus, it was rightly held by the
National Commission that the aircraft in question was duly
licensed. [Para 10.1][599-C-D]
Whether the Pemberton Soaring Centre was an air charter
company.
5. In the Manual on the Regulation of International Air
Transport, the ICAO defines a chartered flight as a non-scheduled
operation using a chartered aircraft. At the same time, a charter
is stated to be a contractual arrangement between an air carrier
and an entity hiring or leasing its aircraft. Importantly, reference
is made to the “single-entity charter” or “own use charter”.
[Para 11.4][601-A-B]
BHARTI AXA GENERAL INSURANCE CO. LTD. v.
PRIYA PAUL & ANR.
A
B
C
D
E
F
G
H
586
SUPREME COURT REPORTS
[2020] 7 S.C.R.
6. It is undisputed in the instant case that the glider in
question could seat only two persons. Thus, in offering sightseeing
services on a glider plane for a fixed consideration, the Pemberton
Soaring Centre gave out the entirety of the aircraft on hire for
the duration of the aerial journey, though one seat was reserved
for the pilot. This practice may constitute an own-use charter.
Moreover, there is no dispute that the Pemberton Soaring Centre
was an incorporated company. Keeping in mind that the Appellant
has itself omitted to define what it means by an “air charter
company” in the Policy, this Court is again, for the purposes of
the Policy, inclined to extend the benefit of the ambiguity in the
meaning of the term to the claimant. Thus, this Court affirms the
National Commission’s finding that the Pemberton Soaring Centre
was an air charter company within the meaning of clause 7(xiv) of
the Policy. [Para 11.5][601-D-F]
Whether the deceased was a fare-paying passenger on the
glider in question.
7. This Court finds no force in the Appellant’s contention
that the deceased was not a passenger merely because the
journey was supposed to begin and terminate at the same location;
indeed, this contention was duly dealt with and rejected by the
National Commission. Needless to say, the purpose of the journey
was to fly over various scenic spots, and after completion, the
glider was to return to a designated location,
presumably from
where it took off. As noted by the National Commission, this would
not be dissimilar to how a sightseeing bus might originate and
terminate its journey at the same spot after passing by various
places of interest. This Court finds it difficult to conclude that a
person undertaking such a journey would not amount to a
“passenger”. [Para 12][601-G; 602-A-B]
United India Insurance Co. Ltd. v. Pushpalaya Printers,
(2004) 3 SCC 694 : [2004] 2 SCR 631 – relied on.
Case Law Reference
[2004] 2 SCR 631
relied on
Para 9.10
A
B
C
D
E
F
G
H
587
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3346
of 2018.
From the Judgment and Order dated 22.05.2017 of the National
Consumer Disputes Redressal Commission, New Delhi in Consumer
Complaint No. 79 of 2015.
Joy Basu, Sr. Adv., Navneet Kumar, Kanak Bose, Vikas Bandana,
Mohit Singh, Parijat Kishore, Advs. for the Appellant.
Gaurav Mitra, Vaibhav Mishra, Ms. Aditi Gupta, Ambar
Qamaruddin, Advs. for the Respondents.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J.
1. This appeal arises against the order of the National Consumer
Disputes Redressal Commission (for short “National Commission”) dated
22.05.2017 allowing the insurance claim filed by Respondent No. 1
pertaining to an aviation accident leading to the death of her son.
2. The brief facts leading to the instant appeal are as follows:
2.1 Respondent No. 1 had gone on vacation to Canada along with
her family in June 2013. On 29.06.2013, the family visited the Pemberton
Soaring Centre, a gliding facility at Pemberton in British Columbia. Her
son took the first turn for a sightseeing flight on a two-seater glider plane
(Stemme S10-VT) flown by the pilot at the facility. While airborne, the
glider exploded after colliding with a Cessna 150 aircraft, killing all
occupants of both the glider and the Cessna. Respondent No. 1 filed a
claim with the Appellant based on the Smart-Personal Accident-Individual
Insurance Policy (“the Policy”) taken by the deceased. The claim was
repudiated
on the basis that the deceased was travelling in a motorized
glider for sightseeing, and hence was not travelling in a standard aircraft,
and was further not a fare-paying passenger in any regular scheduled
airline or air charter company, which excluded the accident from the
purview of the Policy. We may refer to the relevant provisions of the
Policy in this regard:
“7. General Exclusions of the Policy
PROVIDED ALWAYS THAT the Company shall not be liable
under this policy for-
…
BHARTI AXA GENERAL INSURANCE CO. LTD. v.
PRIYA PAUL & ANR.
A
B
C
D
E
F
G
H
588
SUPREME COURT REPORTS
[2020] 7 S.C.R.
ix) Any claim in respect of accidental death or permanent
disablement of the Insured/Insured Person:
…
iii) whilst engaging in aviation or ballooning whilst mounting
into, dismounting from or traveling in any aircraft or balloon other
than as a passenger (fare paying or otherwise) in any duly licensed
standard type of aircraft anywhere in the world.
…
xiv) Insured/insured person whilst flying or taking part in aerial
activities (including cabin crew) except as a fare-paying passenger
in a regular scheduled airline or air charter company.”
2.2 A complaint was filed with the National Commission on
3.2.2015, which allowed the same, directing the insurer to pay an amount
of Rs. 1 crore with interest at the rate of 8% per annum. The National
Commission held that a glider was an “aircraft” under Section 2(1) of
the Aircrafts Act, 1934 (“the 1934 Act”) and had not been expressly
excluded under the Policy, unlike activities like hang-gliding and
paragliding. Next, the National Commission held that the glider was a
“duly licensed” aircraft, since the Pemberton Soaring Centre had a licence
to conduct the business of sightseeing glider flights, and there was no
evidence of a licence being required for individual aircraft under law
apart from a private registration, which had been done for the glider in
question, as evident from the aviation inspection report of the Transport
Safety Board of Canada (“the TSBC Report”), which had
also extensively
referred to the glider as an “aircraft”.
2.3 It was also held that the glider was a standard type of aircraft,
placing the onus of bringing the case within an exclusionary clause on
the insurer, who had failed to produce any certificate from the Canadian
or Indian aviation authorities, or rule or regulation which defined a
“standard” aircraft, in the absence of a contractual definition of the term,
and particularly since it was noted in the TSBC report that the glider
was certified, equipped, and maintained in accordance with existing
regulations and approved procedures.
2.4 The Commission was also of the opinion that a person
undertaking a round trip without a destination would also qualify as a
A
B
C
D
E
F
G
H
589
passenger, and that the deceased was a fare-paying passenger on a
sightseeing flight, and had taken the aircraft on hire. Considering the
definition of “charter” in the Black’s Law Dictionary, which includes the
hiring or leasing of a vessel such as an airplane, and the fact that charges
were payable by the deceased for flying in the glider, the Commission
also concluded that the plane was given out on hire by the Pemberton
Soaring Company pursuant to its business, and it was an air charter
company. The Commission declined from placing reliance on alleged
correspondence with the attorney of the owner of the Pemberton Soaring
Company confirming that the accident did not fall into the purview of the
Policy, for being hearsay.
2.5 Aggrieved by this decision, the instant appeal was filed by the
insurer.
3. Before us, learned Counsel appearing for the Appellant-insurer
urged that the accident did not fall within the purview of the Policy for
the following reasons:
3.1 Firstly, Counsel argued that the glider in question was not a
standard aircraft, since it principally relied on aerodynamics to soar,
whereas standard aircraft were powered. It was submitted that though
the glider in question was equipped with an engine, this was solely for
the purpose of take-off and landing and did not change the “non-standard”
nature of the glider, especially when the TSBC Report itself noted that
the glider was operating without power at the time of the accident. To
buttress
his argument, Counsel also referred to the definition of “glider”
under the 1934 Act, and to the Glider Flying Handbook published by the
United States Department of Transportation, Federal Aviation
Administration. He also highlighted that the Pemberton Soaring Company
had advertised itself as offering opportunities for undertaking non-powered
flight; the pilot himself had a separate licence for gliding; the Aircraft
Rules, 1937 (“the 1937 Rules”) distinguished between the licences for
power-driven and non-power driven aircraft; and referred to alleged
correspondence with Mr. Sean Taylor, the lawyer of Ms. Tracey
Rozsypalek, the widow of the pilot and co-owner and operator of the
Pemberton Soaring Centre, affirming that the glider was not a standard
aircraft. He submitted that the definition of “aircraft” under Section 2(1)
of the 1934 Act, which included gliders and even balloons, could not be
relied upon as it militated against the intention of the parties to the Policy
to exclude such vessels from the meaning of “standard type of aircraft”.
BHARTI AXA GENERAL INSURANCE CO. LTD. v.
PRIYA PAUL & ANR. [MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
590
SUPREME COURT REPORTS
[2020] 7 S.C.R.
3.2 Secondly, it was contended that the glider was not duly licensed,
since the licence relied upon by the National Commission was only a
municipal business licence.
3.3 Thirdly, learned Counsel submitted that the National
Commission wrongly ignored that a person undertaking a full-circle flight
could not be held to be a passenger.
3.4 Fourthly, he argued that the Pemberton Soaring Centre was
not a regular scheduled airline or air charter company, again relying on
the alleged correspondence with Mr. Taylor, a report dated 21.05.2018
by the Canadian investigator Diligence International Group (“Diligence”)
highlighting the absence of a charter licence for the Pemberton Soaring
Centre, also placing a sample Canadian charter licence on record for
illustration purposes. He also referred to an email dated 21.10.2013 from
Ms. Rozsypalek enclosing the business licence of the Pemberton Soaring
Centre, to argue that this suggested that the facility in fact had no other
licence, particularly for air charter business.
4. Learned Counsel for Respondent No. 1, on the other hand,
argued in favour of the decision of the National Commission.
4.1 Firstly, he argued that the glider was a duly licensed standard
aircraft. He emphasised that a glider is classified as an aircraft under
the Aircraft Act; and that the failure to expressly exclude gliding activity
from the purview of the Policy, as was done for hang-gliding and para-
gliding,
indicated an intention to the include the same. He submitted that
though the glider was motorised, determining its status as a standard
aircraft depending on whether the engine was on or off during the flight
would unfairly lead to differential rules being applicable to the same
vessel at different times.
4.2 He also highlighted that as per the TSBC Report, the glider, as
well as the Cessna, were registered aircraft governed by the same
Canadian regulations, particularly the Visual Flight Rules; the glider was
privately registered, and was operated by a duly licensed pilot; and the
operator was running under a licence to carry on the business of gliding.
These were the only legal requirements to be satisfied to carry on the
activity of gliding as a business lawfully. It was stressed that the TSBC
Report found that the aircraft was certified, equipped and maintained in
accordance with applicable rules, and no particular rule was urged to
show that the glider was not a standard aircraft. Any such rule could in
A
B
C
D
E
F
G
H
591
any case not have been in the possession of the complainant, and thus
the burden lay on the insurer to produce the same.
4.3 Secondly, learned Counsel argued that the deceased was a
fare-paying passenger at all times during the flight. He submitted that
the glider had been consistently described in the records as having two
seats, one for the pilot and one for the passenger; the National Commission
rightly held so disregarding the fact that the journey was full-circle; and
that the widow Ms. Rozsypalek had herself stated in her email dated
21.10.2013 that the deceased was a fare-paying passenger on the glider
aircraft.
4.4 Thirdly, he contended that the Pemberton Soaring Centre was
an air charter company. To this end, he argued that the term “charter”
implied the hire or lease of a vehicle in its entirety, which was being done
by the facility while offering gliders for sightseeing; the National
Commission rightly rejected evidence to the contrary from the purported
attorney of the Rozsypaleks as hearsay; and that the second report dated
21.05.2018 issued by Diligence for the Appellant-insurer was an event
subsequent to the filing of the complaint and decision of the National
Commission, and hence liable to be disregarded.
5. Heard the learned Counsel on either side and perused the record.
6. We have already referred to the relevant exclusionary clauses
of the Policy, but would like to reproduce it again for the purpose of
convenience:
“7. General
Exclusions of the Policy
PROVIDED ALWAYS THAT the Company shall not be liable
under this policy for-
…
ix) Any claim in respect of accidental death or permanent
disablement of the Insured/Insured Person.
…
iii) whilst engaging in aviation or ballooning whilst mounting into,
dismounting from or traveling in any aircraft or balloon other than
as a passenger (fare paying or otherwise) in any duly licensed
standard type of aircraft anywhere in the world.
…
BHARTI AXA GENERAL INSURANCE CO. LTD. v.
PRIYA PAUL & ANR. [MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
592
SUPREME COURT REPORTS
[2020] 7 S.C.R.
xiv) Insured/insured person whilst flying or taking part in aerial
activities (including cabin crew) except as a fare-paying passenger
in a regular scheduled airline or air charter company.”
6.1 To better appreciate the arguments advanced by the parties, it
is also important to reproduce clause 7(xiii) of the Policy:
“xiii) Insured/insured person whilst engaging in speed contest or
racing of any kind (other than on foot), bungee jumping, parasailing,
ballooning, parachuting, skydiving, paragliding, hang gliding,
mountain or rock climbing necessitating the use or guides of ropes,
potholing, abseiling, deep sea diving using hard helmet and breathing
apparatus, polo, snow and ice sport.”
6.2 Clearly, Clause 7(ix)(iii) excludes accidental death or permanent
disablement suffered by the insured while mounting into, dismounting
from, or travelling in any aircraft or balloon, while engaging in aviation or
ballooning. However, the insurer would be liable if the accident occurred
while such activity was being undertaken by the insured as a passenger
of any aircraft or balloon, whether fare paying or gratuitous, in a duly
licensed, standard type of aircraft anywhere in the world.
6.3 Clause 7(xiv), in comparison, is similarly worded as far as its
exclusion is concerned, inasmuch as it pertains to accidental death or
permanent disablement suffered by the insured while flying or taking
part in aerial activities. This clause
however contemplates that the
accident would be included in the ambit of the Policy if it occurred while
the insured was travelling as a fare-paying passenger in a regular
scheduled airline or air charter company.
6.4 Clause 7 (xiii) excludes claims arising out of a wide variety of
adventure sports and activities that have been specifically mentioned,
such as bungee jumping, parasailing, and ballooning. Notably, though
activities such as paragliding and hang gliding are included, gliding is not
mentioned.
7. There is no dispute that the deceased was engaging in the
activity of gliding, which is an aviation/aerial activity which would fall
within the exclusion envisaged under Clauses 7(ix)(iii) and 7(xiv) of the
Policy. The impugned judgment would be liable to be confirmed if we
determine that the gliding activity in question falls within the exemptions
to the exclusions envisaged under these two clauses, that is to say, the
deceased was travelling in a duly licensed standard type of aircraft,
A
B
C
D
E
F
G
H
593
bringing him out of the exclusion in Clause 7(ix)(iii), and that he was
travelling as a fare-paying passenger in an air charter company or regular
scheduled airline, bringing him out of the scope of the exclusion in Clause
7(xiv). Both these clauses must be satisfied in order to evade exclusion
from the Policy.
7.1 In view of the above, the questions before us for determination
are, firstly, whether the glider involved in the accident was an aircraft;
secondly, whether it was a standard aircraft; thirdly, whether the aircraft
was duly licensed; fourthly, whether the Pemberton Soaring Centre was
an air charter company or regular schedule airline; and fifthly, whether
the deceased was travelling on the glider as a fare-paying passenger.
The fourth question may be further limited to whether the Pemberton
Soaring Centre was an air charter company, since Respondent No. 1
has not disputed that the Pemberton Soaring Centre was not a regular
scheduled airline.
8. On the question of whether the glider is an aircraft, we must
first refer to the definition of “aircraft” under Section 2(1) of the 1934
Act:
“(1) “aircraft” means any machine which can derive support in
the atmosphere from reactions of the air, other than reactions of
the air against the earth’s surface and includes balloons whether
fixed or free, airships, kites, gliders and flying machines” (emphasis
added).
8.1 Reference may also be made to the definition of “aircraft”
under Section 3(1) of the
Aeronautics Act, 1985 of Canada:
“(a) until the day on which paragraph (b) comes into force, any
machine capable of deriving support in the atmosphere from
reactions of the air, and includes a rocket”; (aéronef)
(b) [Repealed before coming into force, 2008, c. 20, s. 3].”
8.2 Evidently, a glider is included in the definition of an aircraft for
the purposes of the relevant Indian and Canadian statutes. Additionally,
the definition of “glider” itself, under Rule 3(26) of the 1937 Rules,
describes the same as an aircraft:
“(26) “Glider” means a non-power-driven heavier-than-air
aircraft, deriving its lift in flight chiefly from aerodynamic reactions
on surfaces which remain fixed under given conditions of flight”
(emphasis added).
BHARTI AXA GENERAL INSURANCE CO. LTD. v.
PRIYA PAUL & ANR. [MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
594
SUPREME COURT REPORTS
[2020] 7 S.C.R.
8.3 Similarly, under the Canadian Aviation Regulations (SOR/96-
433), a glider is defined as “a non-power-driven heavier-than-air
aircraft that derives its lift in flight from aerodynamic reactions on
surfaces that remain fixed during flight”.
8.4 Even the dictionary meanings of the term “aircraft” do not
make any exception for gliders. For instance, the Concise Oxford
Advanced Learner’s Dictionary defines an aircraft as “any vehicle that
can fly and carry goods or passengers”,1 while the Cambridge
Advanced Learner’s Dictionary defines it as “any vehicle, with or
without an engine, that can fly, such as a plane or helicopter”.2 In
turn, the former defines a “glider” as “a light aircraft that flies without
an engine”, while the latter defines it as “an aircraft that has long
fixed wings and no engine and flies by gliding”.
8.5 It becomes important to note at this juncture that though the
glider in question was equipped with an engine, this was mainly for the
purpose of adding self-launching capacity to the vehicle, as evident from
the TSBC Report. Be that as it may, the fact that the glider was motorised
would not imply that it was not an aircraft at all. Even the TSBC Report
unequivocally refers to the glider as an “aircraft” repeatedly. Importantly,
the terms “aircraft” and “glider” have not been defined within the Policy.
In such circumstances, we are of the view that the glider in question
must be regarded as an
aircraft under the Policy.
9. We may next address the question of whether the glider in
question was a standard type of aircraft. We begin by noting that the
Policy itself does not define what a “standard type of aircraft” is, and
we are at a loss to understand the context in which the term has been
employed in the Policy. Much of the argument advanced by the learned
Counsel for the Appellant to distinguish between power-driven and non-
power driven aircraft as being standard and non-standard relies upon
common parlance; however, apart from this submission, learned Counsel
has not been able to explain the exact meaning of the term “standard
type of aircraft”.
9.1 The nature of conventional gliders as not being power-driven
has not been seriously disputed before us. Thus, we find it unnecessary
1 OXFORD ADVANCED LEARNER’S DICTIONARY (Oxford University Press, 9th edition, 2015).
2 CAMBRIDGE ADVANCED LEARNER’S DICTIONARY (Cambridge University Press, 4th edition,
2013).
A
B
C
D
E
F
G
H
595
to refer to the extensive literature relied upon by the Appellant to establish
the mechanics of a glider’s flight. At the same time, since the glider in
question was a motorised glider, being equipped with an engine for self-
launching capacity, it is crucial to determine whether a distinction can be
drawn between “standard” and “non-standard” aircraft on the basis of
the nature of power they run on, whether a glider can be termed as a
“non-standard” aircraft merely on that basis, and whether a motorised
glider would therefore amount to a standard or non-standard aircraft.
9.2 It would be apt to refer to the 1937 Rules in order to determine
whether a distinction of the nature described above is apparent therein.
We would like to particularly refer to the scheme of granting licences
within the rules, since the Appellant has sought to impress upon us that
the 1937 Rules distinguish between the licences for power-driven and
non-power driven aircraft, indicating that non-reliance on a motor engine
for flying may be the basis to conclude that gliders are “non-standard”
aircraft.
9.3 As far as the grant of pilots’ licences are concerned, the 1937
Rules provide for different educational qualifications for issuance of
licences for aeroplanes, helicopters, gliders, balloons, and microlight
aircraft. For instance, as per Paragraph 1(e) of Section E of Schedule
II, the flying experience for a private pilot’s licence for flying aeroplanes
may be accumulated through
the completion of not less than forty hours
of flight time as a pilot of an aeroplane, which shall include:
“(i)
not less than twenty hours of solo flight time;
(ii)
not less than five hours of cross-country flight time in
accordance with para 5(b) of Section A as the sole occupant
of an aeroplane including a flight of not less than one
hundred and fifty nautical miles in the course of which full
stop landings at two different aerodromes shall have been
made;
(iii)
not less than ten hours of solo flight time completed within
a period of twelve months immediately preceding the date
of application for the issue of licence;
(iv)
fifty percent of solo flying experience on microlight aircraft
acquired during the preceding twenty four months from the
date of application subject to a maximum of ten hours, may
be credited towards the total experience required for the
issue of the licence;
BHARTI AXA GENERAL INSURANCE CO. LTD. v.
PRIYA PAUL & ANR. [MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
596
SUPREME COURT REPORTS
[2020] 7 S.C.R.
(v)
fifty percent of solo gliding experience shall count towards
total flying experience requirement subject to a maximum
of ten hours towards total flight time.”
9.4 To take another instance, as per Paragraph 1 of Section F, the
flying experience required for a pilot’s licence for flying microlight aircraft
is completion of not less than forty hours of flight time as a pilot of a
microlight aircraft, which shall include:
“(i) not less than fifteen hours of solo flight time of which not less
than ten hours shall have been completed within a period of twelve
months immediately preceding the date of application for the
licence; and
(ii) not less than five hours of cross-country flight time as the solo
occupant of microlight aircraft including a flight over a distance
of not less than fifty nautical miles from the aerodrome of
departure and at least one full stop landing at a suitable aerodrome
or landing ground other than the aerodrome of departure;
(iii) the holder of a current Private Pilot’s Licence (Aeroplanes)
or a higher category of Licence (Aeroplanes) shall be exempted
from the experience requirements. Such pilots shall, however, be
required to carry out familiarisation flights which shall be followed
by not less than three solo take-offs and landings. The
familiarisation flights shall be carried out under the supervision of
an approved Examiner or a Flight Instructor approved by the
Director-General.”
9.5 On
the other hand, the flying experience required for a glider
pilot’s licence under Paragraph 1(e) of Section I of Schedule II is as
follows:
“(i)
not less than ten hours of flight time of which not less than
five hours shall be solo flight time; and
(ii)
not less than seventy five take-offs and landings of which
not less than twenty five solo take-offs and landings shall
have been completed within a period of six months
immediately preceding the date of application for licence.”
9.6 Thus, it is clear that no uniform requirement of flying
experience is prescribed for one set of aircraft as opposed to another;
on the other hand, different requirements are prescribed for different
types of aircraft.
A
B
C
D
E
F
G
H
597
9.7 Interestingly, there is a distinction maintained under Rule 48
between the fees payable for student pilot’s licences and glider licences
on one hand and remaining licences on the other, for the purpose of
issuance, validation or renewal of licences. It is also relevant to note that
a common student licence is envisaged for aeroplanes, helicopters and
gliders, while separate student licences are prescribed for microlight
aircraft and balloons.
9.8 In our considered opinion, the above scheme shows that the
1937 Rules do not maintain any uniform categorisation between powered
and non-powered aircraft, far from terming any of these as “standard”
or “non-standard”. It does not appear to be the case that one set of rules
is prescribed for powered aircraft, and another distinct set for non-
powered aircraft. Thus, no reliance can be placed on the Rules to further
the Appellant’s contention in this respect.
9.9 As far as the Canadian regime is concerned, no particular
statutory provision was brought to our attention in this regard by either
party. We may observe that the TSBC Report notes that the pilot of the
glider had a private pilot licence for aeroplanes, valid for single-engine
land aircraft, as well as a separate glider pilot licence. However, this
distinction per se does not support the argument of the Appellant, since
a brief perusal of the Canadian Aviation Regulations (SOR/96-433)
reveals that under the Canadian regime as well, a distinction of the
nature
submitted by the Appellant has not been maintained. To take the licence
regime as an example again, the regulations provide for several kinds of
licences, which do not seem to be categorised on the basis of the powered
or non-powered nature of the aircraft. For instance, the regulations
provide for airline transport licences, commercial licences, and private
pilot licences for aeroplanes; airline transport licences, commercial
licences, and private pilot licences for helicopters; glider pilot licences;
and pilot permits for gyroplanes, ultra-light aeroplanes, and so on.
9.10 From the above discussion, it is evident that no rigid distinction
can be culled out between “standard” and “non-standard” aircraft.
Though the Appellant in this case submits that this distinction can be
drawn on the basis of whether the aircraft is power-driven or not, it can
equally be argued that the term “standard” aircraft connotes only
aeroplanes, or only aeroplanes and helicopters, or even includes microlight
aircraft, and so on. The usage of as vague a phrase as “standard type
of aircraft” in the Policy, thus, suggests to us that the same must be
BHARTI AXA GENERAL INSURANCE CO. LTD. v.
PRIYA PAUL & ANR. [MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
598
SUPREME COURT REPORTS
[2020] 7 S.C.R.
construed in a liberal manner so as to benefit the insured. In this regard,
we may fruitfully quote the following observations of this Court in United
India Insurance Co. Ltd. v. Pushpalaya Printers, (2004) 3 SCC 694:
“6. …It is also settled position in law that if there is any ambiguity
or a term is capable of two possible interpretations, one beneficial
to the insured should be accepted consistent with the purpose for
which the policy is taken, namely, to cover the risk on the happening
of certain event. Although there is no ambiguity in the expression
“impact”, even otherwise applying the rule of contra preferentem,
the use of the word “impact” in clause 5 in the instant policy must
be construed against the appellant. Where the words of a
document are ambiguous, they shall be construed against the party
who prepared the document. This rule applies to contracts of
insurance and clause 5 of the insurance policy even after reading
the entire policy in the present case should be construed against
the insurer. A Constitution Bench of this Court in General
Assurance Society Ltd. v. Chandmull Jain [AIR 1966 SC 1644:
(1966) 3 SCR 500] has expressed that (AIR p. 1649, para 11)
“in a contract of insurance there is requirement of uberrima
fides i.e. good faith on the part of the assured and the contract
is likely to be construed contra proferentem, that is, against the
company in case of ambiguity or doubt”.”
9.11 In the
instant case, we agree with the conclusion of the
National Commission that had the insurer really intended to exclude gliding
activity from the purview of the Policy, it could have done so expressly,
similar to the manner in which hang-gliding and para-gliding were
excluded in Clause 7(xiii) of the Policy. Similarly, the insurer could have
also defined the phrase “standard type of aircraft” for the purpose of
the Policy, but it chose not to do so. In these circumstances, it is not open
to the insurer to reject a claim arising out of a glider accident by now
arguing that a glider is not a standard aircraft by virtue of not principally
being a powered aircraft. We are therefore compelled to conclude that
regardless of whether the glider involved in the accident was powered
or non-powered, motorised or non-motorised, it was a “standard type
of aircraft” envisioned in the Policy.
10. We now turn our attention to the issue of whether the glider in
question was duly licensed. In this regard, it may be noted that the National
A
B
C
D
E
F
G
H
599
Commission specifically took note of the Appellant’s submission that the
licence produced before the Commission was only a municipal business
licence to be taken necessarily by any business-owner seeking to conduct
a business in the municipal limits of Pemberton. The Commission went
on to find that there was no evidence of a licence being required in
respect of each aircraft/glider, and the private registration undertaken
with respect to the glider in question, in addition to the municipal business
licence, was sufficient compliance with the requirement of the aircraft
being duly licensed.
10.1 We find ourselves in agreement with the National Commission
in this regard. We have perused the business licence on record, as well
as the observation in the TSBC Report that the the glider was registered
privately, carrying registration as “C-FHAB”, with serial number 11-
016. We are moreover conscious of the specific finding in the TSBC
Report that the glider was certified, equipped and maintained in
accordance with existing regulations and approved procedures, and
compliant with rules such as the Visual Flight Rules. The Report further
observes that even the pilot of the glider was certified and qualified for
the flight as per existing regulations, indicating that such separate glider
pilot licence was in accordance with the legal requirements. Thus, we
conclude that it was rightly held that the aircraft in question was duly
licensed.
11. The fourth issue to be
determined is whether the Pemberton
Soaring Centre was an air charter company. In this respect, we would
first like to deal with the contention of the Appellant that one Mr. Sean
Taylor, the attorney of Ms. Tracy Rozsypalek, the co-owner of the
Pemberton Soaring Centre (who was also the widow of the deceased
glider pilot, the other co-owner) had communicated to the insurance
investigator Diligence that the Pemberton Soaring Centre was not an air
charter company. We are of the view that the National Commission
rightly disregarded this communication, though spoken to by the Managing
Director of Diligence on affidavit, being hearsay evidence in nature. No
affidavit from Mr. Taylor himself was placed on record, and indeed,
there is nothing to show that he in fact was the attorney of
Ms. Rozsypalek. Thus, no reliance can be placed on the alleged
communication with Mr. Taylor.
11.1 The Appellant has also submitted the report dated 21.05.2018
of the investigator Diligence, containing certain records such as
BHARTI AXA GENERAL INSURANCE CO. LTD. v.
PRIYA PAUL & ANR. [MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
600
SUPREME COURT REPORTS
[2020] 7 S.C.R.
communication with Canadian authorities, as well as a database search
of air carrier licences, to show that no licence was possessed by the
Pemberton Soaring Centre authorising it to operate as an air charter
company. The Appellant also seeks to draw our attention to a sample
licence of a Canadian air charter company to argue that no such licence
was held by the Pemberton Soaring Centre. We are inclined to disregard
these records, as the investigation based on which such records were
collected was commissioned by the insurer after the impugned decision
of the National Commission dated 22.05.2017, and more so after
Diligence had already submitted an investigation report prior thereto. As
per the second report itself, the first report was submitted on 03.02.2014,
and the Appellant instructed Diligence to re-open investigation into the
case on 20.02.2018, four years later, specifically on the question of
whether the Pemberton Soaring Centre was an air charter company or
regular scheduled airline. In our considered opinion, the information that
the Appellant now seeks to rely upon could easily have been obtained by
it at the time of the first investigation by Diligence, and could have been
placed before the National Commission. Particularly in view of the long
lapse of time before the second report was commissioned, we are of the
opinion that it is not open to the Appellant to place reliance upon the
same at this stage.
11.2 We are cognizant of the fact that the term “air charter
company” has not been defined within the policy, and the National
Commission, while concluding that the Pemberton Soaring Centre was
an air charter company, relied upon the dictionary meaning of the word
“charter”, which connotes the hiring or lease of the entirety of a vessel.
It appears that such term is not defined within any Canadian or Indian
regulation, and indeed, no material has been placed on record regarding
the regulatory regime governing domestic chartered flights in India,
Canada, or any other jurisdiction. However, to throw light on the scope
of air charter services, we may refer to international materials discussing
the same, referring in particular to the definitions adopted by the
International Civil Aviation Organisation (“the ICAO”).
11.3 Any discussion on charter flights must first begin by
differentiating between scheduled and non-scheduled flights. The ICAO
essentially defines scheduled flights as those which are scheduled and
performed as per a fixed timetable, or are so regular and frequent so as
to constitute a recognizably systematic series, and are open to direct
bookings by members of the public.3
3  Glossary of Terms adopted by the International Civil Aviation Organisation, available
at https://www.icao.int/dataplus_archive/Documents/20130729/GLOSSARY.doc.
A
B
C
D
E
F
G
H
601
11.4 In contrast, non-scheduled services are described as
commercial air transport services performed as other than a scheduled
service.4 In the Manual on the Regulation of International Air
Transport, the ICAO defines a chartered flight as a non-scheduled
operation using a chartered aircraft. At the same time, a charter is
stated to be a contractual arrangement between an air carrier and an
entity hiring or leasing its aircraft. Importantly, reference is made to
the “single-entity charter” or “own use charter”, which is described
in the following terms:
“…the most basic and timeless type, the single entity charter
or own-use charter, one chartered by one entity (e.g. an individual,
corporation, government) solely for its own use for the carriage
of passengers and/or freight, with the cost borne solely by that
entity and not shared directly or indirectly by others.” (emphasis
added)
11.5 It is undisputed in the instant case that the glider in question
could seat only two persons. Thus, in offering sightseeing services on a
glider plane for a fixed consideration, the Pemberton Soaring Centre
gave out the entirety of the aircraft on hire for the duration of the aerial
journey, though one seat was reserved for the pilot. In our considered
opinion, this practice may constitute an own-use charter. Moreover, we
note that there is no dispute that the Pemberton Soaring Centre was an
incorporated company. Keeping in mind that the Appellant has itself
omitted to
define what it means by an “air charter company” in the
Policy, we are again, for the purposes of the Policy, inclined to extend
the benefit of the ambiguity in the meaning of the term to the claimant.
Thus, we affirm the National Commission’s finding that the Pemberton
Soaring Centre was an air charter company within the meaning of clause
7(xiv) of the Policy.
12. The last issue to be determined is whether the deceased was
a fare-paying passenger on the glider in question. We find no force in
the Appellant’s contention that the deceased was not a passenger merely
because the journey was supposed to begin and terminate at the same
location; indeed, this contention was duly dealt with and rejected by the
National Commission. Needless to say, the purpose of the journey was
to fly over various scenic spots, and after completion, the glider was to
4 International Civil Aviation Organisation, The Manual on the Regulation of International
Air Transport (Doc. 9626, 3rd edition, 2016).
BHARTI AXA GENERAL INSURANCE CO. LTD. v.
PRIYA PAUL & ANR. [MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
602
SUPREME COURT REPORTS
[2020] 7 S.C.R.
return to a designated location, presumably from where it took off. As
noted by the National Commission, this would not be dissimilar to how a
sightseeing bus might originate and terminate its journey at the same
spot after passing by various places of interest. We find it difficult to
conclude that a person undertaking such a journey would not amount to
a “passenger”.
12.1 Further, it is evident from the record that the journey on the
glider was undertaken for a fixed consideration, though the ticket for the
same has not been placed on record. Thus, we affirm the National
Commission’s finding that the deceased was a fare- paying passenger
on the glider in question.
13. In view of the above discussion, we find that the accident out
of which the instant claim arose was completely covered under the ambit
of the Policy, since the deceased was travelling in a duly licensed standard
type of aircraft, which brings him out of the exclusion in Clause 7(ix)(iii),
and was travelling as a fare-paying passenger in a flight of an air charter
company, bringing him out of the scope of the exclusion in Clause 7(xiv).
Thus, we find no reason to interfere with the impugned judgment, which
found that the Appellant wrongly repudiated the claim filed by Respondent
No. 1.
14. The instant appeal is therefore dismissed. Ordered accordingly.
Ankit Gyan
Appeal dismissed.