Mohit S. Shah, J.@mdashThese appeals arise from the judgment and decree dated 24th March 2003 rendered by City Civil Court, Ahmedabad in Civil Suit No. 5510 of 1992, which was filed by the widow and two sons of Shirishbhai who died while travelling as a passenger in an Indian Airlines flight which crashed near the Ahmedabad Airport on 19.10.1988. The compensation claimed was Rs. 27,15,000/-. The trial Court awarded compensation of Rs. 8,90,000/- with interest at the rate of 6% per annum and held the Indian Airlines Corporation ("Indian Airlines" for short) and the Airport Authority of India ("Airport Authority" for short) liable to pay the compensation in ratio of 70 : 30 respectively.
The following Index to this Judgment should be useful:
|
|
Paras |
|
Basic Facts & Controversies |
02 to 12 |
|
Report of Court of Inquiry headed by Hon''ble Mr Justice AK Mathur |
13 to 17 |
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Admissibility of Report & its Evidentiary Value |
18 to 29 |
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Negligence & Res Ipsa Loquitur |
30 to 34 |
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Causes of Accident I to VI Indian Airlines [a] to [c] Airport Authority |
36 to 41 42 to 59 |
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Statutory Provisions on Liability of Airlines |
60 to 63 |
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Rule 25 - Act/Omission of Airlines & its Pilots Done Recklessly with Knowledge & |
64 to 89 |
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Joint & Several Liability |
90 to 99 |
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Quantum of Compensation |
100 to 118 |
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Final order |
119 |
2. The aircraft involved in the accident was a basic series Boeing 737 Aircraft VT-EAH and was on its daily scheduled flight IC-113 from Bombay to Ahmedabad in the morning of 19th October 1988. The aircraft was carrying on board 135 persons i.e. 6 crew members (pilot, co-pilot and 4 cabin crew) and 129 passengers (124 adults and 5 children). The flight took off from Bombay at 0605 IST in the morning. The pilot reported overhead of Ahmedabad at 0647 IST. The aircraft crashed on the outskirts of village Chiloda - Kotarpur, near Noble Nagar Housing Society, near Ahmedabad. The plane crashed at a distance of 2540 metres from the beginning of runway 23 on extended central line of the runway in a paddy field at about 0653 IST. In this air crash 124 passengers and 6 crew including pilot and co-pilot lost their lives on the spot. 5 passengers escaped with serious injuries, but 3 of them succumbed to the injuries later on in the hospital. 2 passengers survived, viz. Mr. Vinod Rewa Shankar Tripathi and Mr. Ashok Agarwal. Thus in all, out of 135 persons on board, 133 persons lost their lives.
3. The above numbered suit was one of the civil suits filed for compensation claimed in respect of death of 35 passengers and injuries to one passenger, who were travelling in the said flight. The defendants were -
(1) Indian Airlines Corporation
(2) Airport Authority of India
(3) Union of India in the Ministry of Civil Aviation,
(4) Director General of Civil Aviation.
The suits filed in different Courts in the years 1989 and 1990 were ordered to be tried by the City Civil Court at Ahmedabad.
4. The issues finally cast by the trial Court and the findings given are as under:
(i) Whether the plaintiffs prove that the Flight No. IC.113 from Bombay to Ahmedabad crashed near Ahmedabad on 19th October 1988, on account of acts or omissions on the part of the defendants or either of them ? (amended as per order below Ex.81)
Finding - In affirmative, on account of negligence of defendant No. 1 (Indian Airlines) and defendant No. 2 (Airport Authority of India)
(ii) Whether the plaintiffs prove that the accident occurred due to negligence of the pilot as mentioned in the Carriage by Air Act, 1972 ?
Finding - In affirmative
(iii) Whether the defendant No. 1 Indian airlines proves that the liability of defendant No. 1 Corporation is limited to two lacs as alleged ?
Finding - In negative
(iv) Whether the plaintiffs prove that the defendants are liable to pay damages for the injuries sustained by the passenger and/or for the death in the air crash jointly and severally due to composite negligence of the defendant No. 1 Indian Airlines and defendant No. 2 Airport Authority as alleged ?
Finding - As per final order
(v) Whether the plaintiffs are entitled to recover the damages ? If yes, from whom and what amount ?
Finding - First part in affirmative
Second part as per final order
(vi) What order and decree.
Finding - As per final order
5. The trial Court held that the accident took place on account of the composite negligence of the Indian Airlines and its employees on the one hand and the Airport Authority and its employees on the other hand in the ratio of 70 : 30 respectively. The trial Court held that Union of India and the Director General of Civil Aviation were not liable. After giving this common finding, the trial Court rendered separate judgments in all the suits quantifying the amounts of compensation and apportioning the same amongst different heirs of the deceased passengers and awarded the plaintiffs interest at the rate of 6% per annum. The separate judgments of the trial Court, therefore, gave rise to appeals by the Indian Airlines as well as appeals by the Airport Authority and also appeals/cross objections filed by the plaintiffs for enhancement of the compensation amount and/or for enhancing the rate of interest and also for costs of the suits and costs of the appeals.
6. First Appeal No. 1346 of 2004 is filed by the Airport Authority. First Appeal No. 1822 of 2004 is filed by the original plaintiffs and First Appeal No. 91 of 2005 is filed by the Indian Airlines Corporation which, during pendency of the appeals, has become National Aviation Company of India Ltd. and the memorandum of appeals were amended accordingly as per order dated 19.03.2008.
7. In the appeals filed by the Airport Authority, at the time of admission of the appeals, interim stay against execution of the decrees was granted upon condition of depositing the amounts for which the trial Court had fixed its liability. The condition was complied with.
8. As far as the Indian Airlines is concerned, its stand is that its liability for damage sustained in the event of death of or injury to a passenger is limited to a sum of Rs. 2 lakhs under Rules 17 and 22 of the Second Schedule to the Carriage by Air Act, 1972 read with the notification dated 5.7.1980 issued by the Ministry of Tourism and Civil Aviation, Government of India u/s 8(2) of the said Act. According to the Indian Airlines, in order to obtain any higher compensation, the plaintiffs have to prove under Rule 25 of the said Schedule that the damage resulted from an act or omission of the Airline done recklessly and with knowledge that damage would probably result, so as to render the limit of liability (Rs. 2 lakhs) inapplicable. In view of this stand, the Indian Airlines paid a sum of Rs. 2 lakhs for the death of each passenger and to each of the two survivors. Most of the plaintiffs accepted the amount under protest and without prejudice to their claim for higher amounts.
In all the appeals challenging the decrees of the trial Court, the Indian Airlines prayed for interim stay against execution. This Court granted interim stay with a condition to deposit the decretal amounts. The interlocutory orders came to be challenged by the Indian Airlines. The Apex Court granted unconditional stay and requested this Court to hear the appeals expeditiously. Hence, all the appeals were taken up for final hearing.
9. In the appeal filed by the Airport Authority, it is contended that the accident did not take place on account of any negligence on the part of the Airport Authority or any of its employees and, therefore, the trial Court erred in passing the decree against the Airport Authority. In the alternative, it is also contended that the trial Court erred in attributing negligence to the Airport Authority to the extent of 30% and that the percentage could not have been so high. It is also contended that in any view of the matter, the trial Court erred in awarding the compensation as decreed.
10. In the appeal filed by the Indian Airlines, it is contended that the accident did not take place on account of any recklessness on the part of the Indian Airlines or any of its employees but on account of negligence on the part of the Airport Authority at Ahmedabad. Hence, the trial Court erred in passing the decree against the Indian Airlines. In the alternative, it is also contended that the trial Court erred in attributing negligence to the Indian Airlines to the extent of 70% and that that percentage could not have been so high. It is also contended that in any view of the matter, the trial Court erred in awarding the compensation as decreed.
11. In the appeals/cross objections filed by the claimants, it is contended that this was a clear case for invoking the doctrine of res ipsa loquitur and that the accident could not have taken place but for the composite negligence of the Indian Airlines and its employees, the Airport Authority and its employees and also the negligence on the part of the Meteorological Department of Union of India. It is also contended that the trial Court erred in not awarding higher compensation and further erred in awarding interest only at the rate of 6% per annum, instead of awarding interest at the rate of 15% per annum or at least 12% per annum. It is further contended that in any view of the matter, the trial Court ought to have fastened the joint and several liability on the Indian Airlines as well as the Airport Authority and ought not to have restricted their liability to pay the decretal amounts in the ratio of 70 : 30. The plaintiffs have also prayed for costs of the suits and costs of all these appeals.
12. In each of the appeals, therefore, the following broad issues arise for our consideration:
I. Question of negligence /recklessness and the burden of proof including the question whether Rule 25 in the Second Schedule to the Carriage by Air Act, 1972 is applicable to the facts of this accident.
II. Joint and several liability or not:
Whether the concerned defendants are liable to pay the amount of compensation with interest and costs to the plaintiffs under the principle of joint and several liability or whether each of the concerned defendants is liable to pay only such percentage of compensation as is proportionate to the degree of its negligence as may be determined by this Court ?
III. Quantum of compensation:
What amount of compensation are the plaintiffs entitled to get?
IV. Rate of interest:
What rate of interest the plaintiffs are entitled to get ?
V. Costs:
Whether the plaintiffs are entitled to get costs of the suit as well as the costs of the appeals from the concerned defendant/s held liable to pay the compensation ?
REPORT OF COURT OF INQUIRY
13. The calamity shocked the nation as a whole and, therefore, the Government of India appointed the Court of Inquiry u/s 7 of the Aircraft Act, 1934 read with Rule 75 of the Aircraft Rules, 1937 by notification dated 27.10.1988. The Court of Inquiry was under the Chairmanship of Hon''ble Mr Justice A.K. Mathur of the Rajasthan High Court (His Lordship later on was appointed as the Chief Justice of the Madhya Pradesh High Court, the Chief Justice of the Calcutta High Court and thereafter elevated as a Judge of the Hon''ble Supreme Court of India). The Government of India also appointed three Assessors to assist the Court of Inquiry.
14. The Court of Inquiry submitted their report dated January 31, 1989 i.e. within a period of 3 months and 11 days. The following basic and undisputed facts about "History of the flight and Factual information" are taken from Part I (Introduction) and Part II (Factual Information Para 1.1). It needs to be clarified that the Report refers to findings in terms of UTC, the difference between UTC and Indian Standard Time (IST) being 0530 hours (Page G of the Report). For the sake of convenience, reference is made to IST.
14.1 The aircraft involved in the accident was a basic series Boeing 737 aircraft VT-EAH and was on its daily scheduled flight IC-113 from Bombay to Ahmedabad in the morning of October 19, 1988. The aircraft was carrying on board 135 persons including 6 crew members (pilot, co-pilot and 4 cabin crew) and 124 + 5 passengers. The aircraft had laden weight of 46536 kgs. also loaded with 3543 kgs of baggage and freight and was also carrying 6800 kgs. of fuel and sector fuel being 2320 kgs. The aircraft weight was within the limits.
14.2 Flying time was 40 minutes and the aircraft had endurance of 02.15 hours. The scheduled time of departure from Bombay was 05.45 (Indian Standard Time IST). The flight was delayed by 20 minutes at Bombay due to one ''no show'' passenger. IC-113 was cleared by the Bombay tower and took off from Bombay at 0605 IST. After take off, normal messages were exchanged between the Air Traffic Control (ATC) at Bombay and the aircraft. The aircraft contacted Ahmedabad Approach Control at 06-20. Ahmedabad weather as per Metar of 05-40 IST was passed to the aircraft and again at 06-25 IST weather of 06-10 IST was passed to the aircraft when visibility was reducing from 6 kms. to 3 kms. Clearance to descend to FL 150 was given at 0632 IST and the aircraft was advised to report at 1700 over Ahmedabad VOR and "Speci" of 0640 IST was transmitted to the aircraft as per the same the winds were calm. Visibility 2000 M in haze and QNH was 1010. QNH was correctly read back by the aircraft. The pilot decided to carry out localizer-DME approach for runway 23 and reported overhead Ahmedabad at 0647 IST. The aircraft went outbound and reported turning inbound at O650 IST. This was the last transmission from the aircraft and thereafter contact with the ATC, Ahmedabad was lost at 0120.53 UTC (0650.53 IST). During the transmissions with ATC, Ahmedabad, the aircraft did not report any emergency or problem.
14.3 The ATC Officer tried to look up the aircraft but in fact the aircraft crashed on the outskirts of village Chiloda-Kotarpur near Noble Nagar Housing Society, near Ahmedabad. The aircraft crashed at a distance of 2540 meters from the beginning of runway 23 i.e. 2.6 DME approximately, on extended central line of the runway in a paddy field at about 0653 IST. Impact and fire destroyed the aircraft. 124 passengers and 6 crew including two pilots lost their lives on the spot, 5 passengers escaped with serious injuries but 3 of them succumbed to the injuries later on in the hospital. 2 passengers survived, namely , Mr Vinod Rewa Shankar Tripathi and Mr Ashok Agarwal.
14.4 The Ahmedabad Fire Brigade received the message about mishap at about 07.05 hours and the City Police Control Room also received the message of mishap at 07.13 hours. The Chief Fire Officer, Ahmedabad Municipal Corporation along with his contingent and fire fighters reached the spot at 07.18 hours where the Fire Brigade staff and the police took up the relief work. When the Police Inspector on receiving the message at 07.13 hours of the plane crash immediately contacted the Air Traffic Control on Hot Line, the Inspector was informed that IC-113 was missing, but the Police Inspector informed that the aircraft had crashed. The Indian Airlines and the Airport authorities received the message about the plane crash from Police Sub Inspector of Ahmedabad Airport Security.
14.5 Mr AK Chopra, Regional Controller of Air Safety, Delhi, Inspector of Accidents rushed to the scene of occurrence and took up the investigation on 19.10.1988 at 11.30 AM and retrieved the CVR (Cockpit Voice Recorder) and FDR (Flight Data Recorder) along with the instrument panel.
15. The Court of Inquiry gave various findings and arrived at the following conclusion:
The cause of the accident is error of judgment on the part of the Pilot-in-command as well as the Co-pilot associated with poor visibility which was not passed to aircraft.
The Court of Inquiry also made recommendations to avert such accidents in future.
After receiving the report of Court of Inquiry on 31.1.1989, the Government of India appointed a Committee to evaluate the report in consultation with the National Transportation and Safety Board. The Government of India then accepted the report of Court of Inquiry with the following modification:
Cause of Accident : The Court has concluded the cause of the accident as under:
The cause of the accident is error of judgment on the part of the Pilot-in-command as well as the Co-pilot associated with poor visibility which was not passed to aircraft.
After considering the Court''s findings and other relevant material, the Government felt that the ''cause of the accident'' be reworded as follows:
The cause of the accident is error of judgment on the part of the Pilot-in-command as well as the Co-pilot due to non-adherence to laid down procedures, under poor visibility conditions.
This alteration, the Government feels, would give a more correct assessment of the cause of accident, consistent with the observations of the Court of Inquiry, in the text of the report.
16. We may note at this stage that the plaintiffs submitted application Exh. 91 before the trial Court with a prayer that Union of India be directed to produce the report of Court of Inquiry headed by Hon''ble Mr Justice Ashok Kumar Mathur. After hearing the learned Counsel for the parties, by order dated 26.02.1999, the trial Court directed Union of India to produce the report of the Court of Inquiry headed by Hon''ble Mr Justice Ashok Kumar Mathur. The Court gave last opportunity to Union of India on 05.09.2000 to produce the report by 12.09.2000. In compliance with the said directions, the learned Standing Counsel for Union of India produced a copy of the Report dated 31.01.1989 (hereinafter referred to as "the Report") and also stated that the original Report and the material produced before the Court of Inquiry was difficult to be produced.
Thereafter by order dated 17.10.2000, the trial Court directed that the report of the Court of Inquiry headed by Hon''ble Mr Justice Ashok Kumar Mathur be exhibited as Exh. No. 97.
17. At the trial of the suits, the plaintiffs in all the suits relied upon the aforesaid report of the Court of Inquiry and none of the parties to the suits led any oral or documentary evidence other than the aforesaid report of the Court of Inquiry in relation to the question of negligence and apportionment of liability amongst the defendants. Out of two surviving injured passengers (total 133 persons died), one (Mr Ashok Agarwal) had sustained substantial degrees of physical disabilities and mental incapacity. The trial Court held that no negligence was attributable to Government of India and the Director General of Civil Aviation, but the Indian Airlines and its employees on the one hand and the Airport Authority of India and its employees on the other hand were both negligent. That the attitude of the pilots was indifferent and casual and that there was negligence in taking a decision to land when the runway was not sighted. Recklessness could be inferred from lack of diligence shown by the pilots, from the degree of error of judgment found in the report, and knowledge could be imputed because the pilot ought to have known of the risk and damage. It was also held that poor visibility was not passed on to the pilots. The composite negligence of the Indian Airlines and the Airport Authority was apportioned in the degree of 70 : 30 respectively.
The plaintiffs, of course, led their evidence in separate suits on the question of quantum of compensation, which will be dealt with at an appropriate stage in the respective appeals.
ADMISSIBILITY OF REPORT OF COURT OF INQUIRY & ITS EVIDENTIARY VALUE
18. At the outset, we may deal with the contentions urged on behalf of the Indian Airlines about admissibility of the report of Court of Inquiry. Mr Mihir Joshi with Mr GN Shah and Ms Minoo Shah for the Indian Airlines raised the following contentions in this behalf:
(i) No evidence was led by the plaintiffs to establish that the damage resulted from an act or omission of the Airlines done recklessly and with knowledge that damage would probably result.
(ii) The report of Court of Inquiry cannot be considered to be legal evidence on the basis of which any finding about negligence of the Airlines could have been arrived at by the trial Court.
(iii) The report was not properly admissible at all since it was not produced in the original and no evidence had been led to prove the same.
(iv) The said report could not have been relied upon for the purposes of the suits, since the Court of Inquiry had itself indicated that the fundamental purpose of the Inquiry was to determine "the probable cause" of the aircraft accident so that necessary remedial measures could be undertaken (page 97 of the report) and that normal rules of evidence were not applicable to the Inquiry (page 28) and, therefore, the findings recorded therein were not definitive at all.
(v) The evidence before the Court of Inquiry in the form of statements, site reports, investigation results, affidavits/replies of parties before the Court of Inquiry, factual data placed before the Court of Inquiry including meteorological information etc. was not placed before the trial Court. Mere excerpts thereof or opinion of the Court of Inquiry upon analysis of such evidence could not have been relied upon by the trial Court.
(vi) The report of Court of Inquiry in any case does not support any finding about any act or omission of the Airlines done recklessly and with knowledge that damage would probably result.
19. The Airport Authority of India (AAI) has not in terms accepted the report of Court of Inquiry as evidence but Mr Raju has submitted that even if the Report is accepted as evidence, there is nothing on record to suggest that AAI is negligent. AAI has also submitted that the modification made by the Government of India to the conclusion of the Court of Inquiry gives a more correct assessment of the cause of accident. AAI has also submitted in its written submissions as under:
The AAI submits that though the negligence, recklessness of the Indian Airlines does not concern the AAI who has not been negligent and whose acts have not caused the accident, it is pertinent to bring to the Court''s notice some of the negligent acts of Indian Airlines which could have been a cause of the fatal accident. Here the acts of Indian Airlines include the acts of Airlines as a whole and not just of the pilots.
20. Mr ND Nanavaty and Mr Prashant G Desai, learned Senior Advocates for some of the plaintiffs and Mr Subhash Barot learned advocates for the plaintiffs in most of the appeals as well as Mr Mehd for Consumer Education and Research Centre vehemently submitted that in the facts of the case the doctrine of res ipsa loquitur was clearly applicable. It is submitted that day-in and day-out for the last more than 40 years, the Indian Airlines and various other Airlines in the world have been carrying on their operations and hundreds and thousands of flights take off and land all over the world every day, but such an air crash during the course of taking off or landing is very rare. Mr Subhash Barot has placed on record the data of various Airlines for the last 20 years (January 1988 to December 2007) from http://www.planecrashinfo.com/rates.htm .
It is submitted that hence the accident in question could not and would not have taken place but for the recklessness and gross negligence of the defendants with knowledge that such damage was bound to result.
21. For the present, we are not dealing with the question whether acts or omissions on the part of the Indian Airlines or their employees or the acts and/or omissions on the part of the Airport Authority of India or their employees amount to negligence or recklessness. We are only examining the contention urged on behalf of the Indian Airlines whether the trial Court was justified in examining the issues raised in the suit on the basis of the contents of the report of Court of Inquiry. For the purpose of dealing with this contention, we find it necessary to note the following features of the Court of Inquiry:
(1) Statutory provisions
(2) Composition of the Court of Inquiry
(3) Approach of the Court of Inquiry
(4) The manner in which the proceedings of Court of Inquiry were conducted.
STATUTORY PROVISIONS FOR COURT OF INQUIRY
22. Section 7 of the Aircraft Act, 1934 empowers the Central Government to make rules providing for investigation of an accident or incident arising out of or in the course of the navigation in or over India of any aircraft, or anywhere of aircraft registered in India. Sub-rule (1) of Rule 75 of the Aircraft Rules, 1937 empowers the Central Government to appoint the Court for holding a formal investigation of an accident and also to appoint persons possessing legal, aeronautical, engineering or other special knowledge to act as assessors. Sub-rule (2) further provides as under:
The Court shall hold the investigation in open Court in such manner and under such conditions as the Court may think fit for ascertaining the causes and circumstances of the accident and for enabling it to make the report mentioned....
Sub-rule (3) provides that the Court shall have for the purpose of the investigation all the powers of a Civil Court under the Code of Civil Procedure, 1908 and also confers upon the Court the power of entry or inspection and also powers to enforce the attendance of witnesses and compel the production of documents and material objects and every person required by the Court to furnish any information shall be deemed to be legally bound to do so within the meaning of Section 176 IPC. Sub-rule (4) further provides that the investigation shall be conducted in such manner that, if a charge is made or likely to be made against any person, that person shall have an opportunity of being present and of making any statement or giving any evidence and producing witnesses on his behalf.
COMPOSITION OF COURT OF INQUIRY
23. By Government of India (Ministry of Civil Aviation & Tourism) notification dated October 27, 1988, in exercise of the power conferred by Rule 75 of the Aircraft Rules, the Central Government appointed Hon''ble Mr Justice Ashok Kumar Mathur of the Rajasthan High Court (as His Lordship then was) to hold a formal investigation of the air crash and also appointed the following persons to act as Assessors in the said investigation:
(i) Mr KB Ganesan, ex-Director General of Civil Aviation,
(ii) Mr JK Mehra, Chairman & Managing Director, National Projects Construction Corporation Ltd., who was earlier also associated with Court of Inquiry.
(iii) Wing Commander Mr RPS Garcha, from the Indian Air Force.
APPROACH OF COURT OF INQUIRY
24. In Part III of their Report dated January 31, 1989, the Court of Inquiry indicated the object and approach of the formal investigation in the following terms (page 78):
The object of a formal investigation of an accident to an aircraft by a Court of Inquiry appointed under Sub-rule (1) of Rule 75 of the Rules is to determine the cause of the accident. This is in the nature of a domestic Inquiry and in domestic Inquiry normal rules of evidence are not applicable, but the basic principles of laws of evidence are followed in the conduct of Inquiry. One of the axiomatic principle which is constantly followed is that the principle of natural justice. The material can be collected from any source but whatever material relating to the Inquiry is collected from various sources should be put to the parties who appear before the Court in fairness so that their reaction to the material collected from various sources could be made known. In other words, the principles of natural justice should be followed.
MANNER IN WHICH PROCEEDINGS OF COURT OF INQUIRY WERE CONDUCTED.
25. In Part III of the Report, the Court of Inquiry also indicated the manner in which the Court proceedings were conducted.
25.1 The modalities of the Court of Inquiry were decided at a meeting where the participants included not only the Senior Administrative Officers and Senior Technical Officers of Ministry of Civil Aviation and Regional Controller of Air Safety, Delhi but also Mr GT Pais, Managing Director Indian Airlines (page 82). The manner of conducting the Inquiry is described in the following terms:
The question is now that as to how the matter should be approached. It was decided that evidence may be taken by affidavits and if it is considered desirable then some witnesses may be called for the purpose of oral examination. In view of the urgency of the matter it was thought desirable to distribute the work amongst the various groups and call for their reports. Thereafter, the same may be distributed to all the participants and then they may file their returns along with affidavits and other evidence by way of affidavit. If still it is desirable, then certain witnesses may be examined orally.
25.2 It was decided at the meeting that various groups be formed in order to investigate various aspects of the accident (page 83).
(i) Wreckage Examination and Engineering Group - with one representative from Indian Airlines (Mr Awasthi)
(ii) Operation group comprising Deputy Director General of Civil Aviation, Regional Controller of Air Safety, Delhi and Capt. SK Bhatia of Indian Airlines.
(iii) CVR and FDR Analysis Group to analyse Cockpit Voice Recorder and Flight Data Recorder under the Regional Controller of Air Safety, Bombay.
(iv) Later on one more group was also formed which was called the Air Traffic Services (ATS) Meteorological Group to look into ATC, Airport and Navigational facilities and meteorological aspects. This group was headed by Assistant Director of Air Safety (page 87).
25.3 On 13.11.1988, the Flight Data Recorder (FDR) and Cockpit Voice Recorder (CVR) were opened at the office of the Director, Research and Development, Technical Centre of the Air India Limited by two technical employees of Indian Airlines, Delhi - (i) Chargeman of Radio Workshop and (ii) Instrument Technician. Thereafter they were handed over to the Officer heading CVR and FDR Analysis group for detailed analysis. The same evening, the Court of Inquiry visited the Localiser and VOR sites at Palam, New Delhi. On the next day, the Court of Inquiry inspected the site of crash at Ahmedabad. The Regional Controller of Air Safety, Delhi was directed to seal the instrument panels and engines, rest of the wreckage were directed to be collected and kept at a safe place. The engines were sent to the Engine Workshop of Air India at Bombay and the instrument panels were sent to the Instrument Workshop at Delhi Airport. The Altimeter was opened by a Technical Employee of Air India at Air India Instrument Workshop at Bombay (page 92).
On 21.11.1988, two engines of the ill fated aircraft were inspected by the Court of Inquiry along with Assessors accompanied inter alia by Acting Regional Director, Indian Airlines and Capt. SK Bhatia, Deputy Manager, Flight Safety, Indian Airlines (page 87). On 22 and 23 November 1988, the Court along with the Assessors visited the Central Training Establishment at Hyderabad to carry out the exercise on simulator. Various profiles were fed to the simulator in order to understand the probable cause of the accident. The Court of Inquiry also visited the National Aeronautics Laboratory, Bangalore on 26.12.1988 to hear the CVR tape (Cockpit Voice Recorder) played on the NAL equipment (page 92).
25.4 In view of the nature of the controversy raised by the Indian Airlines at the hearing before the Court of Inquiry, about five flights to Ahmedabad were carried out - special flight was undertaken on 31.12.1988, two special flights were carried out on 8.1.1989 and one special flight was carried out of 23.1.1989. The flight to Ahmedabad on 23.1.1989 was undertaken by the Court of Inquiry along with the Assessors and Capt. SK Bhatia of the Indian Airlines.
25.5 Secretary of the Court of Inquiry issued a public notice in various national newspapers that whoever had knowledge and desire to make a representation concerning the circumstances or cause of the accident may do so in the form of an affidavit.
In the proceedings before the Court of Inquiry, the following persons / associations appeared and were permitted to participate in the proceedings.
(i) Indian Airlines appeared through their advocate Mr Lalit Bhasin;
(ii) National Airports Authority appeared through their counsel Mr Anand;
(iii) Director General of Civil Aviation appeared through their counsel Mr RK Anand and Mr Dalveer Bhandari
(iv) The Indian Commercial Pilots Association (ICPA) through their counsel Mr Vijay Bahuguna.
(v) All India Aircraft Maintenance Engineers Association also appeared.
(vi) Airlines Radio Officers and Flight Operation Officers Association also appeared;
(vii) Consumer Education and Research Centre, Ahmedabad appeared through Professor DN Saraf;
All the representatives were supplied with the reports of various groups which had conducted the investigation in the matter (page 89). An application filed on behalf of Indian Airlines to send CVR to National Transportation Safety Board, USA on 21.12.1988 was not pressed (page 91).
25.6 The Court of Inquiry also examined various witnesses:
CW1 Capt. Ms Saudamini Deshmukh, a pilot of the Indian Airlines;
CW2 Mr SN Tripathi, Meteorologist
CW3 Mr AK Chopra, Regional Controller of Air Safety and Inspector of Accidents, Delhi who was the first officer to visit the site of the air crash on 19.10.1988 itself.
CW4 - Mr SL Bali was the expert from the Central Training Establishment, Indian Airlines, Hyderabad for correlating the FDR and CVR.
CW5 - Mr Vinod Tripathi was one of the two surviving passengers. Mr Tripathi deposed about the poor visibility.
CW6 - Capt. DP Singh was Instructor on Boeing 737 and
CW7 - Capt. ST Dev, Director of Operation and Training, Indian Airlines who had undertaken test flights to Ahmedabad on 24.12.1988 and 8.1.1989 to see whether the so called non-aeronautical lights could be mistaken for the approach lights or not.
CW8 - Mr GK Warrier, was the Officer on Special Duty with the National Airport Authority.
CW9 - Mr George Thomas was Meteorological Officer on duty at Ahmedabad airport on the date of the accident.
CW10 - Mr BJ Alika, Senior Observer, Meteorological Department was working as Metar Observer at Ahmedabad airport on the date of the accident.
CW11 - Mr RS Bhagwat was the Controller of the Aerodrome at the relevant time.
The witnesses were also permitted to be cross-examined by the counsel of the parties which had participated in the proceedings.
The video tape which was taken at the crash site was also played in the Court for benefit of all the parties.
All the parties were permitted to submit their arguments through their counsel or representatives.
26. Looking to composition of the Court of Inquiry headed by a sitting Judge of the High Court of Rajasthan, the approach of the Court of Inquiry and the above particulars, it is clear that the Court of Inquiry had conducted a detailed Inquiry in an impartial, fair and judicious manner, where each of the defendants to the suit was permitted to participate, witnesses were examined in their presence and the witnesses were also permitted to be cross-examined and the counsel were also permitted to submit their arguments.
FURTHER DISCUSSION ON ADMISSIBILITY
27. In the above backdrop, for the reasons that follow, we are of the view that the trial Court rightly accepted the report of Court of Inquiry in evidence and in holding it as admissible.
27.1 Certain admitted facts are required to be kept in mind. Out of 135 persons on board, except two passengers nobody survived, all the 6 crew members including the pilot and the co-pilot died on the spot. Out of the two surviving passengers, Mr Ashok Agarwal - plaintiff in one of the suits (5671/92) is not in a position to even physically or mentally manage himself. The other surviving passenger Mr Vinod Tripathi did not file any suit, but he was examined as a witness before the Court of Inquiry. The evidence of both the surviving passengers was treated as a part of evidence. A copy of the report of Court of Inquiry headed by Hon''ble Mr. Justice Mathur appointed under Rule 75 of the Aircraft Rules was brought on record by Union of India, as per the order dated 26.2.1999 passed by the trial Court in Civil Suit No. 5510 of 1992. After hearing all concerned, the trial Court passed order dated 17.10.2000 below application Exh.91 and ordered the report to be exhibited at Exh.97. In order not to burden the record by producing the same report separately in different suits, the report was also treated as part of the evidence in all the matters with consent of the learned advocates for the parties. The trial Court then considered the evidentiary value of the report and considered the contention of the defendants as to whether only that part of the evidence before the Court of Inquiry can be considered where the same witnesses were also examined and cross-examined before the trial Court.
27.2 In
In the present case also, all the requirements referred to in the judgment of the Calcutta High Court were duly complied with. The only difference is that instead of Ministry of Communications in 1965 now it is Ministry of Civil Aviation and the report is produced by the learned Standing counsel for Union of India pursuant to the direction given by the trial Court. Thus the report was produced from proper custody and there is no dispute about the fact that the report is genuine and relevant and duly proved. The report was certainly admissible in evidence and the only aspect to be considered was the evidentiary value of the report.
27.3 Once the report is accepted as genuine, relevant and admissible, it cannot be said that the report does not fall within the ambit of Section 35 of the Evidence Act, inasmuch as it is a public or official book or record. Section 35 of the Evidence Act, reads as under:
Relevancy of entry in public record made in performance of duty - An entry in any public or other official book, register or record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specifically enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.
The Report thus forms a part of the public record as contemplated by Section 35 of the Evidence Act.
27.4 We may now deal with the decision of the Apex Court in
No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in any civil or criminal proceeding except a prosecution for giving false evidence by such statement.
It was in view of the above specific provision in the Commissions of Inquiry Act that the Apex Court held that the report of the Commission of Inquiry had no evidentiary value in the trial of a criminal case.
Rule 75 of the Aircraft Rules under which the Court of Inquiry was appointed in the instant case, does not provide that the report rendered by the Court of Inquiry is not to be considered in any civil proceeding. The said Rules are framed under the Aircraft Act, 1934. In the Aircraft Act, in the Aircraft Rules or in the Carriage by Air Act, 1972, which is a complete code enacted to give effect to the Warsaw Convention as amended by the Hague Protocol there is no provision similar to Section 6 of the Commissions of Inquiry Act.
27.5 The decision of the Apex Court in
The question in that case was whether the Commission of Inquiry appointed under the Commissions of Inquiry Act, 1952 is a "Court" within the meaning of Section 195 Cr PC. The Court considered the change of law, particularly insertion of Sub-section (3) of Section 195 which specifically provides that the term "Court" in Sub-section (1)(d) of Section 195 Cr PC means a civil , revenue or a criminal Court and includes a Tribunal constituted by an Act, if declared by that Act to be a Court for the purposes of Section 195. The statutory amendment, therefore, settled the controversy about interpretation of the term "Court" in Section 195(1) Cr PC. Since the Commissions of Inquiry Act, does not make such a specific declaration, the Apex Court held that the legislative intent was clear.
27.6 Coming to the decision of National Consumer Disputes Redressal Commission in Desh Bandhu Gupta and Ors. v. Indian Airlines Ltd. and Ors. 2001 (3) CPR 1 (NC), reliance is placed by Indian Airlines upon the said decision in support of the contention that the report of Court of Inquiry u/s 7 of the Aircraft Act, 1934 read with Rule 75 of the Aircraft Rules is inadmissible in evidence and that the report is merely an opinion of the Court of Inquiry in the form of recommendations to the Central Government as to the causes of the accident and remedial steps to be adopted, but it is not a substantive piece of evidence to hold that the accident was caused due to negligence of the pilots of the aircraft or poor management or maintenance of the airport by the Airport Authority.
The above decision was rendered in a case involving a fatal accident to the Indian Airlines flight from Aurangabad to Bombay on 26.4.1993. The Government of India appointed the Court of Inquiry headed by Justice V.A. Mohta who gave the report dated 25.12.1993 with the following conclusion:
C.2 CAUSE OF ACCIDENT:
(i) Pilots'' error in initiating late relation and following wrong rotation technique.
(ii) Failure of the NAA to regulate the mobile traffic on the Beed road during the flight hours.
The National Commission held the report to be inadmissible, inter-alia, because the Indian Airlines was sought to be held vicariously liable without the pilots being party in the complaint and the report of Court of Inquiry was sought to be used against the Airlines when it had no opportunity to cross examine the witnesses with reference to circumstances mentioned in Rule 25 of Second Schedule of the Carriage by Air Act. The National Commission also relied on the decision of the Apex Court in
We have already explained in the preceding sub-para that the decision of the Apex Court in Kehar Singh''s case was rendered in the context of the Commissions of Inquiry Act and that the same is not applicable to the report of Court of Inquiry under the Aircraft Act and Rule 75 there under. Secondly, the report of Court of Inquiry considered by the National Commission was rendered without giving the Indian Airlines an opportunity to cross-examine the witnesses with reference to circumstances mentioned in Rule 25 of Second Schedule to the Carriage by Air Act, that is where any act or omission of the Indian Airlines or its pilots was done recklessly or with knowledge that damage would probably result. However, in the instant case, as already indicated in paragraphs 22 to 26 hereinabove, the Court of Inquiry headed by Hon''ble Mr Justice AK Mathur had not only consulted the Managing Director of the Indian Airlines for deciding the manner of conducting the inquiry, but had also associated representatives from Indian Airlines with various groups formed to investigate various aspects of the accident and had also given ample opportunity to the Indian Airlines and the Indian Commercial Pilots Association as well as the Airport Authority, amongst others, to participate in the inquiry and even to cross-examine the witnesses examined before the Court of Inquiry and to submit their arguments. We are, therefore, of the view that the decision of the National Consumer Disputes Redressal Commission, does not carry the case of the Indian Airlines any further.
EVIDENTIARY VALUE OF REPORT
28. Once the report is admitted in evidence, it is the discretion of the Court to decide about evidentiary value and the probative value of the contents of the Report.
28.1 The contention urged on behalf of the Indian Airlines that the report cannot be accepted unless the same witnesses who appeared before the Court of Inquiry depose before the Court, cannot be accepted. As indicated above and also noted by the trial Court, before the Court of Inquiry headed by Hon''ble Mr Justice AK Mathur, parties were represented by lawyers, witnesses including expert witnesses were examined and cross-examined and on the basis of the detailed analysis and scrutiny of such evidence and after detailed analysis and discussion on all the technical aspects, the Report Exh.97 was given by the Court of Inquiry. Apart from the fact that requiring the witnesses who appeared before the Court of Inquiry again to appear before the Civil Court would not only be duplication of recording evidence by the Civil Court but the situation is required to be considered in light of the statement which was made by the then learned Standing Counsel Mr JD Ajmera for Union of India that the original report and material produced before the Court of Inquiry was difficult to be produced (para 39 of the judgment of the trial Court). Even Mr YN Ravani, learned Standing Counsel for the Union of India appearing before us was not in a position to produce any such material before us.
28.2 In the peculiar facts and circumstances of the case where the Pilot as well as Co-pilot and 4 cabin crew, all of whom were employees of the Indian Airlines, died on the spot and out of 129 passengers, 124 passengers died on the spot and out of the 5 passengers who escaped with serious injuries, 3 died later in the hospital and out of the 2 surviving passengers, Mr Ashok Agarwal had sustained substantial degree of physical disabilities and mental incapacity , the plaintiffs could not have led any evidence to prove recklessness on the part of the Indian Airlines or its employees or the Airport Authority or its employees. The conversations between the Pilot and the Co-pilot as well as the conversation between the Pilot/Co-pilot on the one hand and the Air Traffic Control on the other hand were recorded in the CVR/FDR. The Court of Inquiry in Report dated 31.01.1989 set out verbatim the conversations and exchange of information between Pilot and the Co-pilot as well as the conversation between the Pilot/Co-pilot on the one hand and the Air Traffic Control on the other hand on minute to minute and second to second basis. The plaintiffs had no access on their own to such conversation or information and, therefore, the plaintiffs had no other material except the Report of Court of Inquiry.
28.3 The Court of Inquiry referred to the entire material placed before it including the documents, such as NOTAMS issued by the Airport Authority, Ahmedabad communicating to Indian Airlines and the communication of such NOTAMs and other information by the Indian Airlines to the pilots who flew the Indian Airlines aircraft from Bombay to Ahmedabad in the morning of 19th October 1988. None of the defendants, neither Airport Authority of India at Ahmedabad nor Indian Airlines Corporation (both of which were at the relevant time instrumentalities of the Union of India) have ever doubted the genuineness or relevance of the material placed before the Court of Inquiry and considered by the Court of Inquiry headed by the then sitting Judge of the High Court of Rajasthan. The learned Counsel for Union of India had also stated before the trial Court that it was difficult for the Union of India to produce the material which was placed before the Court of Inquiry. In this background, this Court is unable to appreciate the contentions urged on behalf of the Indian Airlines Corporation (now National Aviation Company of India Ltd.) contending that the report of Court of Inquiry headed by a sitting Judge appointed by the Union of India cannot be considered in evidence at the trial of civil suits filed for claiming compensation for the death of the passengers who were travelling in their aircraft and died in the air crash.
28.4 As already indicated hereinabove, the Court of Inquiry had noted in Part III of the Report that the object of the Inquiry was "to determine the cause of accident". While a person cannot be convicted of a criminal offence merely on the basis of such report of Court of Inquiry without anything more, it does not follow that the report of Court of Inquiry would have no value in a civil proceeding for determining the liability to pay compensation for the loss caused to the heirs and dependents of deceased passengers or for the injuries caused to a surviving passenger. The Court of Inquiry was conscious of this aspect and, therefore, the following observations were made in Part IV of the Report:
The nature of the Inquiry into an aircraft accident is not accusatory and its object is to take remedial rather than punitive action.
The trial Court has not imposed any liability on any of the defendants to pay any punitive damages nor do we propose to impose any such damages. Like the trial Court, we only propose to consider the liability, if any, of the defendants to pay compensatory damages for the loss suffered by heirs and dependents of the deceased passengers and compensation for loss suffered by one surviving passenger, if the accident is found to have resulted from an act or omission of any one or more of the defendants and their agents and servants which amounted to negligence or recklessness with knowledge that damage would probably result.
28.5 In Baker v. Market Harborough Industrial Co-operative Society Ltd. (1953) 1 WLR 1472 and in Roe v. Ministry of Health (1954) 2 All E.R. 131 (137), Denning L.J. speaking for the Court of Appeal laid down the following general proposition "
If an injured person shows that one or other or both of two persons injured him, but cannot say which of them it was, then he is not defeated altogether. He can call on each of them for an explanation.
In the above decision, the Court of Appeal held that when the defendants are the best persons to tell the story of the accident, they cannot by withholding evidence defeat the plaintiff on the abstract doctrine of burden of proof where the circumstances of the accident point to the negligence of the defendants who are the best persons to say how it occurred and if they on their part do not place any material before the Court to absolve them of the responsibility for the act, it must be held that both are negligent.
29. For the reasons aforesaid, this Court is of the view that the trial Court was fully justified in accepting the report of Court of Inquiry in evidence and in deciding the issue of negligence and recklessness on the basis of the Report of Court of Inquiry headed by Hon''ble Mr Justice AK Mathur.
NEGLIGENCE
30. Having gone through the report of Court of Inquiry and the judgment of the trial Court and also having heard the learned Counsel for the parties, we find that on the question of negligence/recklessness which caused the accident in question, the plaintiffs had alleged recklessness and negligence on the part of the Indian Airlines Corporation, Airport Authority of India and the Union of India in the Meteorological Department. We may also note that the observations made by the Court of Inquiry on the issue of negligence are required to be read in the context of the three angles from which the Court of Inquiry examined the matter:
(i) Whether the cause of accident was sabotage
(the answer was in the negative)
(ii) Was it a structural failure i.e. mechanical failure
(while the answer was substantially in the negative, the debate regarding co-pilot''s pressure altimeter is required to be discussed separately).
(iii) Was it on account of human failure and if the answer is yes, than what contributed to human failure.
31. On the question of human failure, the following aspects were placed before the Court of Inquiry and consequentially before the trial Court:
(A) As far as Indian Airlines is concerned, the plaintiffs and the Airport Authority highlighted the following aspects to show not only negligence but also recklessness on the part of Indian Airlines and its employees with knowledge that damage would probably result:
Overutilisation of aircraft, lack of suitable training, fatigue of the crew, sending inexperienced co-pilot with not very Senior pilot in command, defect in the pressure altimeter of the co-pilot, proper briefing was not carried out by the pilot, the pilot and the co-pilot were not aware of availability of VASI lights and non-availability of the approach lights at the Ahmedabad Airport, the pilots did not seek any permission or clearance for landing, Standard call outs were not given out by the pilot and the co-pilot after 1000'' that is after they had descended upto 1000'' above the ground level, the speed was 160 kts. which was higher than the prescribed speed, the pilots should not have descended below 500 ft. MDA unless they had sighted the runway. There was no panic or any failure of structure or instrument. Both the pilots were unaware of the altitude of the aircraft and were desperate to land at the Ahmedabad Airport in spite of adverse weather conditions and poor visibility. The pilot and the co-pilot were keen to land the aircraft anyhow, even though there was sufficient fuel even to wait for getting landing clearance or to fly back.
(B) The Indian Airlines and the plaintiffs highlighted the following aspects to show negligence on the part of the Airport Authority:
(i) The Airport Authority did not provide proper landing facilities like approach lights and instrument landing system ILS at Ahmedabad which was an alternative international airport, alternative to Bombay
(ii) the Airport Authority permitted non-aeronautical lights in the approach funnel
(iii) there was over-reading of the DME at the airport
(iv) in spite of adverse weather condition and poor visibility at the Ahmedabad airport, the ATC did not pass on the correct weather report and visibility report to the aircraft.
(v) there was poor fire fighting facility and other rescue facilities at the Ahmedabad Airport.
(C) The case of the Airport Authority is that the Ahmedabad Airport is in operation for nearly two decades for jet operation and that last six months record indicate that daily flights were operating at the Ahmedabad Airport and no accident had taken place and, therefore, the accident in question took place only on account of negligence/ recklessness on the part of the Indian Airlines.
(D) As far as Union of India is concerned, since the Meteorological Department is under Union of India, the plaintiffs have also alleged negligence on the part of the Meteorological office for having given wrong meteorological report.
On behalf of all the defendants, however, it was contended that the burden was on the plaintiffs to lead evidence and to prove that the accident took place on account of the negligence/recklessness on the part of the concerned defendant/s. That takes us to the principle of res ipsa loquitur vehemently invoked on behalf of the plaintiffs.
DOCTRINE OF RES IPSA LOQUITUR
32. Res ipsa loquitur literally means the thing speaks for itself. The maxim means that an accident may by its nature be more consistent with its being caused by negligence for which the defendant is responsible than by other causes, and that in such a case the mere fact of the accident is prima facie evidence of such negligence. The maxim res ipsa loquitur has been considered by the Hon''ble Supreme Court in a number of cases. Ordinarily, mere proof that an event or accident, the cause of which is unknown, has happened is no proof of negligence. The maxim applies to cases where the peculiar circumstances constituting the event or accident proclaim that the negligence of somebody is the cause of the event or accident. In the first place, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have management and control use due care; secondly, it must also be shown that the event or thing which caused the accident was within the defendant''s control. Res ipsa loquitur is in essence no more than a common sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances. It means that a plaintiff prima facie establishes negligence where (i) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident, but (ii) on the evidence as it stands, i.e. in the absence of any evidence from the defendant, it is more likely than not that the effective cause of the accident, whatever it may have been, was some act or omission of the defendant or of someone for whom the defendant was responsible, which act or omission constitutes a failure to take proper care for the plaintiff''s safety. The application of res ipsa loquitur is not necessarily excluded merely because there has been a possibility of outside interference with the things through which the accident happened. The principle of res ipsa loquitur only shifts the onus of proof, in that a prima facie case is assumed to be made out, throwing on the defendant the task of proving that he was not negligent.
33. Even when road accidents are not at all considered rare events, the Apex Court has made some relevant observations on application of the principle "res ipsa loquitur". In
The doctrine of res ipsa loquitur is a rule of evidence which in reality belongs to the law of Torts....
It would thus appear that res ipsa loquitur is a rule of evidence which may not be very easily invoked in case of civil liability of professionals and can never be applied to prove a criminal offence, but on account of the fact that a motor vehicle being driven with reasonable care would ordinarily not meet with an accident, the rule of res ipsa loquitur as a rule of evidence is being invoked in motor accident cases with greater frequency than in ordinary civil suits.
34. At this stage, we may refer to the following data placed by Mr Subhash Barot, learned advocate for the plaintiffs derived from http://www.planecrashinfo.com/rates.htm indicating the number of flights and the number of fatal accidents in the last 20 years between January, 1987 and December, 2007:
Sr. Airlines Flights Fatal Events Last Fatal
No. Accident
1 Delta Airlines 16.50 million 2 1996
2 South-West Airlines 14.85 " 0 None
3 North-West Airlines 11.01 " 2 1993
4 Continental Airlines 11.84 " 3 1987
5 US Airways 13.46 " 4 1994
6 America Airlines 17.02 " 5 2001
7 America West Airlines 4.10 " 0 None
8 United Airlines 13.85 " 6 2001
9 Alaska Airlines 5.28 " 1 2000
10 United Express 8.95 " 3 1996
EUROPE
11 Lufthansa 7.76 million 1 1993
12 British Airways 5.45 " 0 1985
13 SAS Scandinavian 5.76 " 1 2001
Airlines
14 Air France 5.92 " 4 2000
ASIA - AUSTRALIA
15 All Nippon 3.86 million 0 (1971)
Airways
16 Japan Airlines 2.47 " 0 (1985)
17 Qantas Airways 2.27 " 0 (1951)
18 Air New Zealand 1.17 " 0 (1979)
19 Malaysia Airlines 3.18 " 1 1995
20 Hanin Airlines 1.11 " 0 None
21 Cathay Pacific 0.97 " 0 (1972)
Airways
22 Air India 0.47 " 0 1985
23 Air China 2.33 " 1 2002
24 Asian Airlines 1.42 " 1 1997
25 China Southern 3.04 " 2 2000
Airlines
26 China Eastern 2.14 " 3 2004
Airlines
27 Garuda Indonesian 1.53 " 4 2007
28 Korean Air 2.32 " 4 1997
29 Philippine Airlines 0.90 " 4 1994
30 Thai Airways 1.73 " 3 1998
International
31 Pakistan 1.18 " 3 2006
International
Airlines
32 Indian Airlines 1.70 " 5 1999
33 China Airlines 0.75 " 5 2002
SOUTH/CENTRAL AMERICA - MEXICO - CARIBBEAN
34 Aeromaxico 2.05 million 0 1986
35 Mexicana Airlines 1.96 " 0 1986
36 Aerolineas Argentinas 1.00 " 0 1986
37 Varig 2.38 " 2 1997
It is thus clear from the above table that while there are many airlines which have never had any fatal accident inspite of more than a million flights, even in case of Indian Airlines with 1.70 million flights, there were only five fatal accidents and, therefore, out of every 3.40 lacs flights, only one flight had a fatal accident. Similarly, it is the case of the Airport Authority that for the last 20 years before the accident in question, flights have been taking off and landing at Ahmedabad Airport round the year including winter season and that no such fatal accident had ever taken place.
After considering the above figures of fatal air accidents and having regard to the above observations made by the Apex Court in
Once Union of India placed on record Report of Court of Inquiry, headed by a sitting Judge of a High Court which Court of Inquiry had conducted the inquiry within 3 months and 11 days of the accident, clearly indicating that the accident was not the result of any sabotage or an act of God, but only on account of human error, a very heavy burden lay on the defendants, particularly the Indian Airlines and the Airport Authority to prove that the air crash was not the result of any negligent/reckless act/omission on their part.
We, therefore, find considerable substance in the submissions made on behalf of the plaintiffs that the doctrine of res ipsa loquitur has to be invoked in the facts of the present case.
35. We will now deal with each of the factors indicated in para 31 hereinabove, which were also discussed by the Court of Inquiry in the Report dated 31.01.1989.
I OVERUTILISATION OF AIRCRAFT
36. The plaintiffs and the Airport Authority contend that there was over-utilization of the aircraft in question which was being used since December 1970 i.e. for 18 years (page 15 of the Report).
36.1 As per the findings given in the report, Aircraft had done 42,831 hours and 47647 landings till the time of accident. The certificate of airworthiness was valid at the time of accident. During last six months, the aircraft operated for 1320 hours and made 1749 landings i.e. 7 hours per day. Appendix I to the Report also shows that in the last six months before the air crash, Boeing 737 Aircraft VT EAH was involved in five incidents/ accidents like tyre burst, after landing while taxing, tyre decapping incident during transit checks noticed, fire warning while taxing etc.. In the last six months before the air crash, the air craft also had 11 repetitive snags like pressurisation snag, left wing body overheat light snag, APU EGT Gauge fluctuating, No. 2 fuel tank quantity guage sticky etc. These incidents/ snags are indicated in Appendix I and II of the report of Court of Inquiry.
36.2 The Report also confirms that both the engines of the aircraft were in order and there was no serious defect in the aircraft.
36.3 In view of the above facts, it cannot be said that the accident took place on account of over-utilization of the aircraft.
II ALTIMETER
37. It is contended on behalf of the plaintiffs and the Airport Authority that having seen the altitude at the time of the crash, (page 48 of the Report) it would appear that the plane crashed at 345 ft. This is not possible because the site of the crash is not shown to be at altitude of 345 ft. and the site is at ground level.
37.1 Regarding Altimeter, the Court of Inquiry, gave the following finding in Part II of the Report (Factual Information) (page 21).
The only controversy raised was regarding co-pilot''s altimeter, which was showing an over-reading by 320''. The co-pilots altimeter.... was installed on aircraft VT-EAH on 25.5.1988 after the overhaul. Since then it has done 1030:05 hours. This unit has done 19674:35 hours since new.... Defects reported were pointer movement jerkey and getting struck at 200''/300''. Both the times defect was confirmed during shop check. Records do not reveal any major assembly having been replaced during last overhaul. No snag was reported....
(The altimeter was opened at Air India International Workshop - page 22)
The unit was found without any impact or heat damage. Gas was intact. Altimeter was, as-it-is, put on test bench and was found to be responding to the pressure changes....
After setting QFE altimeter was found to be over reading by 320'' and with QNH setting altimeter reading at Delhi was 1040'' thus confirming earlier observations of over reading by 320'' at all barometric settings. Unit was not dismantled....
Similarly, Appendix III to the report showing co-relation chart of accident from the Flight Data Recorder and Cockpit Voice Recorder shows that at the time of the crash, the altitude of the aircraft was not shown to be 0'' but above 300''.
37.2 In Part IV of the report containing analysis of various data placed before the Court of Inquiry, the following observations are made (page 102):
The only debatable issue was regarding co-pilot''s pressure altimeter. The pressure altimeter when it was checked at Ahmedabad, showing 320'' plus. The electrical altimeter of the Captain was showing at the time of impact 180 AMSL, i.e. there was a difference between both the altimeters. The co-pilot''s pressure altimeter was further examined at the Instrument Shop of the Air India and after opening the altimeter it was found that there was no sign of burning, there was no sign of any damage to the internal parts and it was found in an absolutely intact condition...we gave our anxious thought to this over-reading and after considerable debate we are of the opinion that this over-reading could not have caused the accident...from the evidence available on the record it appears that this altimeter was installed in this aircraft on May 25, 1988 and since May 25, 1988 no pilot at any point of time has recorded anywhere in his de-briefing about this over-reading.... If the altimeter was showing a high reading at Bombay, it is unthinkable that it could have escaped the notice of the Pilot. Normally, it is expected of the Pilot, before he takes over the command, to go for a pre-flight briefing and thereafter when he sits in the seat of the Pilot-in-command to check all the parameters and if such a grave mistake had come to his notice, he would have certainly reported the same to the Engineers before taking off from Bombay itself.... There is another additional reason for eliminating the possibility of altimeter being one of the cause of the accident.... The FDR tape shows that at 9.57 minutes before impact when the aircraft reached 1700 ft. the altimeter was not malfunctioning...upto 9.57 minutes before impact there was no malfunctioning or defect found in the altimeter.... Thus, till 9.55 minutes before impact no malfunctioning with the altimeter was found. From the survey of these datas it can be inferred that altimeter over-reading could not attribute to the cause of accident.
37.3 While altimeter over-reading by itself would not cause the accident, the fact that there were earlier also observations of altimeter over-reading by 320 ft. made (pages 21 and 22 of the Report) do support the case of the plaintiffs as well as the Airport Authority that over-reading in the co-pilot''s pressure altimeter could be one of the causes of co-pilot being mislead about the height of the aircraft when they thought that the aircraft had descended upto 500 ft. MDA without realizing that they were only 180 to 200 ft. above the ground and therefore, it was then not possible for the pilots to take a missed approach which is possible only at 500 ft. and above. III HISTORY OF PILOTS & REST/FATIGUE FACTOR
38.1 Capt. OM Dalaya the pilot-in-command of the ill-fated aircraft was born on 18.01.1951 and had obtained pilot licence on 18.03.1972. He obtained his commercial pilot licence on 25.09.1974. In the year 1976 during his licence renewal medical check, he was advised to improve his body weight by 5 kgs.. Capt. Dalaya joined Indian Airlines on 28.08.1978. He obtained Senior Commercial Pilot Licence on 21.11.1981. He was issued pilot-in- command training on F-27 aircraft w.e.f. 29.09.1982. Capt. Dalaya was involved in an accident while operating flight of an F-27 aircraft on Guwahati-Calcutta sector on 08.06.1983, when he had total flying experience of 5985 hours out of which 1781 hours on Boeing 737 aircraft (596 as Captain and 1184 as co-pilot). Capt. Dalaya underwent training on Boeing 737 aircraft from 5 to 14th March 1986. He was released to fly as co-pilot on Boeing 737 aircraft with effect from 1.4.1986. He had undergone pilot-in-command training on Boeing 737 aircraft from 5.4.1987 to 10.8.1987 and he cleared the pilot-in-command test by day on 17.7.1987 where his proficiency was found to be standard. The Court of Inquiry has further observed as under (page 11):
While carrying out pilot-in-command test by night on 19th July 1987, the examiner (Capt. R.L. Kapur) made the following observations while recording overall assessment of Capt. O.M. Dalaya.
1. Two engine MDA circuit below standard. Approached at 200 feet AGL over the threshold.
2. S/Engine "go- around procedure below standard.
3. Tends to forget descent approach checks.
4. Has a tendency to approach high initially on the final approach.
The Court of Inquiry further noted that thereafter Capt. Dalaya was given corrective training on 9.8.1987 on the simulator as well as on the aircraft by night. The trainer noted that the deficiencies observed earlier were corrected and were found within limits and Capt. Dalaya''s proficiency was assessed as standard and he was cleared in the night check on 9th and 10th August 1987. On 10.09.1987, Capt. Dalaya was cleared to fly as pilot-in-command on Boeing 737 aircraft. Three routine checks of Capt. Dalaya were also carried out between 15th June and 4th July 1988 and in all the three checks, Capt. Dalaya was found fit to fly as pilot-in-command in monsoon.
38.2 Capt. Deepak Nagpal was the co-pilot of the ill fated aircraft. He was born on 30.07.1962. He obtained his commercial pilot licence on 01.12.1986. He joined Indian Airlines in 1987 and started his training on Boeing 737 aircraft on 06.04.1987. He was cleared to fly as co-pilot on Boeing 737 aircraft on 11.05.1988. At the time of accident, Capt. Nagpal had a total flying experience of 467 hours out of which 179 hours were on Boeing 737 aircraft.
38.3 The Court of Inquiry observed as under on page 158 of the Report:
It appears that Capt. Nagpal (the co-pilot) was too junior person to stand with the emergent situation which cropped up due to poor visibility condition. In fact, he was not being of great assistance to Capt. Dalaya. If sufficiently experienced, co-pilot had assisted Capt. Dalaya, perhaps he would have been of great help to Capt. Dalaya in negotiating the situation like the present one.
38.4 It is submitted on behalf of Indian Airlines that this was not the first time that Capt. Nagpal was flying as co-pilot on Boeing 737 aircraft and looking to his flying experience, the finding that co-pilot was not experienced enough to assist the pilot effectively was not justified. REST PERIOD & FATIGUE
38.5 The report of Court of Inquiry indicates that pilot Capt. OM Dalaya had rest period of about 13 hours before he was taken up at 0430 hours in the morning of 19th March 1988. At 14.36 minutes before the accident, Capt. Dalaya had stated "I am not well" (page 39 of the Report). At 1423 minutes before the air crash, Capt. Dalaya spoke to the co-pilot as under (as recorded in Cockpit Voice Recorder page 39):
Oh ... during night, I was sweating and suddenly got cold. I was getting intermittent sleep. It happens. It''s O.K. - will do something. As it is, I have to get up at quarter to four.
38.6 Co-pilot Capt. Nagpal had a rest period of about 43 hours prior to being taken up at 0450 hours and, therefore, there was no fatigue.
38.7 Having carefully considered the above aspects, it appears that when the Court of Inquiry assisted by Technical Officers like Ex-Director General of Civil Aviation and Wing Commander from the Indian Air Force considered the co-pilot as not sufficiently experienced, such observation cannot be lightly brushed aside. However, this fact by itself would not be the major cause of the accident, but when taken in conjunction with the facts that the pilot-in-command was not well had disturbed sleep and was otherwise also not happy with having had to get up at quarter to 4 in the morning, would have some relevance on the inference to be drawn about the keenness on the part of the pilots to land in spite of inability to see the runway due to poor visibility. IV FLIGHT PLAN
39. On behalf of the plaintiffs and the Airport Authority, it is submitted that the pilots did not take proper briefing before flying. This is evident from the fact that the pilots did not know the minimum visibility of the Ahmedabad Airport. They were also not aware of the approach lights not being available even though the flight in question was a scheduled and daily flight.
39.1 Relevant extracts from the report of Court of Inquiry are required to be noted in this behalf (page 106):
A perusal of CVR tape (Cockpit Voice Recorder) clearly shows that proper let down briefing was not carried out by the Captain and it appears that they were also not aware of the approach lights not being available at Ahmedabad. This is substantiated by the fact that the crew was insisting for the minimum visibility requirement at Ahmedabad being 1200 M. which was in fact the minimum visibility required provided the approach lights being available. If the approach lights were not available the minimum visibility required was 1600 M.
39.2 The Court of Inquiry also made the following observations (page 133):
During the course of Inquiry a discussion also came up regarding the role played by the flight despatchers. It was pointed out that flight despatcher does not give a proper assistance to the pilot. It is a standard practice of the Indian Airlines that the pilot shall report for duty before 35 minutes of the departure and he will collect the flight plan from the flight despatcher. A grievance has been raised by the ICPA that no proper briefing is given by the flight despatchers nor they properly notify the NOTAMS. It is alleged that flight despatchers just pull out the flight plan and hand over the same to the pilot without properly briefing. The duties of the flight despatchers, namely, Flight Operations Officers have been defined under item 1.3.12 of the Indian Airlines Operations Manual Chapter I wherein it has been mentioned that on arriving of the flight how the flight operations officers shall brief the pilot-in-command.
FLIGHT OPERATIONS OFFICERS : Duties and responsibilities of Flight Operations Officer:
The Flight Operations Officer approved by DGCA to act as Flight Despatcher shall:
...
collect the relevant information and Notams for briefing pilot-in- command.
...
obtain signatures of the pilot-in-command/FO; in the Register for having obtained briefing about all essential aspects of the flight wherever applicable.
We have summoned the original flight despatcher''s register from Bombay and we found that the flight plan was given to Capt. O.M. Dalaya. But the signatures obtained against that does not appear to be of Capt. Dalaya. But one thing is clear that a proper register is maintained and the pilot-in-command has to sign that register in lieu of obtaining the flight plan. The flight plan was also shown to us and we found that it contains all the necessary information regarding Ahmedabad airport.
Mr. Rajendra Dhawan, learned Counsel for airlines Radio Officers & Flight Operations Officers Association submitted that the flight despatchers are no where involved in the failure to discharge their duties. He specifically invited our attention to the statement of Mr. A.K. Banerjee, who was flight despatcher at Bombay airport at the relevant time and he has deposed before the Inspector of Accidents that he has supplied the flight plan to Capt. Dalaya. He has gone to the extent of saying that it would be proper that the flight despatcher should be licenced by the DGCA. In view of the fact that duties have already been properly defined, we do not want to discuss this subject any more. But only want to add that some times it becomes very difficult for one flight despatcher to cope with work at an airport operating several flights in quick succession like Bombay in the morning of briefing every individual pilot in detail. It is true that briefing merely does not mean the handing over of the papers, but it certainly involves the feeding of important and relevant information orally also. But briefing is not a one way traffic. It is a two way traffic. If the pilot does not want to be briefed and he collects the papers from the flight despatcher then it is difficult for a person like a flight despatcher who is a very junior officer in the ladder to argue with the pilot and insist for oral briefing. If the pilot wants himself to be orally briefed from the flight despatcher on significant points then he can certainly seek the oral briefing from the flight despatcher. Thus, it is a two way traffic and in the present situation it is not remotely connected with the cause of the accident.
39.3 From the above, it is clear that Mr AK Banerjee, Flight Despatcher at Bombay Airport had supplied the flight plan to Capt. Dalaya who was the pilot-in-command of the flight in question. The flight plan contained all the necessary information regarding the Ahmedabad Airport such as availability of VASI lights, non-availability of ILS and non-operational condition of approach lights.
V SPEED
40 It is submitted on behalf of the Airport Authority and the plaintiffs that the aircraft was travelling at a faster speed than was required.
40.1 It is submitted that on page 43 of the Commission Report at time 1.44 minutes before the crash, the second pilot says "Approaching 6 DME". Therefore, he was at the distance of 6 nautical miles from the runway. If pages 52-54 are seen, then the average speed of the aircraft was 160 knots/hour. Therefore 6 knots would be covered in 2 minutes and 15 seconds i.e. 135 seconds. However after reaching DME he has crashed in about 100 seconds. Therefore he must have travelled 4.44 knots at the average speed of 160 knots/hour. So he would still be short of the runway by 1.55 knots. That is about 2.8 kms.
40.2 The defence of the Airlines is that there is no finding of the Court of Inquiry that the speed was excessive or that it was flying at a speed which would render the landing unsafe.
40.3 The Court of Inquiry has mentioned on page 106 of the report that the speed was 160 knots which was more than the prescribed speed. Since it transpires from the report and particularly the flight data recorder and the cockpit flights recorder that the pilots did not make use of the VASI (Visual Approach Slow Indicator) lights, descending the aircraft at an excessive speed and at a wrong angle could possibly have resulted into nose diving of the aircraft 2.6 kms before the runway. The function of VASI lights is explained hereinafter in para 42 of this judgment. Had the aircraft been on the correct approach angle, the pilots would have seen the lights as white and red. If the pilot had not seen such lights as white and red, the aircraft should not have been descended below the MDA of 500 ft. above the aerodrome elevation.
VI CALL OUTS & LANDING WITHOUT CLEARANCE
NO MISSED APPROACH
41. It is submitted on behalf of the plaintiffs and the Airport Authority that the pilots did not give the proper call outs after the approach and that they did not seek any clearance for landing. After descending, the pilots can always take a flying aircraft up, so long as the aircraft does not descend below 500 ft. from the ground (500 ft. is therefore considered as the Minimum Descent Altitude - MDA). In the instant case, since the pilots descended the aircraft below 500 ft. MDA without sighting the runway, the aircraft crashed 2.6 kms before the runway.
41.1 In this connection, the Court of Inquiry has made the following observations:
In the present case, he (co-pilot) has reported overhead Ahmedabad VOR and proceeding outbound. The last transmission with the ATC has been when he has reported "turning inbound", will check field in sight." The flight crew did not seek any permission or clearance for landing nor did they give standard call outs after 1000''. The standard call outs have been given in the flight crew training manual....
Furthermore, it clearly shows that standard call outs were not given by the co-pilot after 1000 ft. above field elevation, the speed was 160 kts. which was more than the prescribed speed. He should not have descended below 500 ft. MDA unless he has sighted the runway. There was no panic nor any failure of structure or instrument whatsoever. This is also affirmed from correlation chart of CVR & FDR, Appendix-3. - (page 106)
41.2 The defence of the Indian Airlines is as under:
Firstly, it is not established that the radio link between the aircraft and ATC continued to be operational. Secondly, giving standard call outs by itself would not result in corrective steps being advised by ATC in the absence of any precision approach radar being available at Ahmedabad (p. 33) and the consequent inability of ATC to cross check the data. Thirdly, the let down procedure was followed by the Captain, even if the standard call outs had not been given, which is evident from the Transcript of CVR: 10,000 ft. AMSL - reduce air speed - see at 14:41, 14:36 (p. 39); Localiser alive - see at 3:16 (p.43). 1000/500 ft. over field elevation-altimeter, instrument and flag cross check-see at 2:14 and 1:03 (p.43). Minimum Descent Height call out was not given but it is evident that aircraft had not descended below MDA (500 ft.) without a visual reference / sighting (see Transcript of CVR at 0:39 - p.44 and Item 31 of Altitude Values - p.49).
The aircraft requested descend clearance (see Transcript of ATC tape at 0102 (p.143)). Such clearance was granted by ATC after reporting negative traffic (ATC tape at 0102 (p. 143)). Aircraft was cleared to descend to Minimum Safe Altitude (ATC tape at 0111 (p.144)). Therefore, it cannot be concluded that the pilots attempted to land the aircraft without seeking clearance. In any case this breach of procedure, assuming there was one, is not stated to have resulted in the accident or contributed to it in any manner.
41.3 We have no manner of doubt that the pilots did not give the standard call outs after descending upto 1000'' above the aerodrome elevation. After descending upto 1000'', the pilots not only did not give any standard call outs nor did they seek any permission or clearance for landing, but at least after descending upto 500'' above the aerodrome elevaton, the aircraft should not have descended below 500'' MDA without clearly sighting the runway. When the defence of the Indian Airlines is poor visibility and, therefore, if the pilots had not clearly sighted the runway, they had to go for missed approach as per the standard procedure about which is there is no dispute.
41.4 We also find that the defence on behalf of the Indian Airlines is misleading. The clearance granted by 80C after reporting negative traffic (80C tape at 0102 page 143) was given at 632 IST and that was not for landing but only for descending from much higher altitude at which the aircraft was flying at 632 IST. The aircraft was cleared to descend the MDA at 0111 (page 144) i.e. at 641 IST only to descend to 1700 ft. and not below 1000 ft.. The aircraft reached 1000 ft. above aerodrome elevation only at about 652 IST (1.03 minutes before the crash [page 43]).
41.5 From the conversation between the pilot and the co-pilot, it appears that both were actually keen to see the runway and they had mentally made up their mind to go for such a landing and in their anxiety to see the field, they lost track of height. Instead of the pilot in command concentrating on the instruments, both the pilot-in-command and the co-pilot were both looking out trying to sight the runway without paying necessary attention to the altimeter and lost completely track of the height. (page 130)
(A) NAVIGATIONAL AIDS
42. Navigational aids at the airport are to be provided by the Airport Authority of India. We would now refer to the availability / non-availability of various navigation aids at the Ahmedabad Airport. According to the Airport Authority, navigation is the art of determining the position of an aircraft over the earth''s surface and guiding its progress from one place to another. The following navigation aids were available at the Ahmedabad Airport on 18th and 19th October, 1988 -
VOR - This is short for VHF Omni Directional Range which is a type of radio navigational system for the aircraft. It broadcasts a VHF Radio signal encoding both the identity of the station and the angle to it, telling the pilot in what direction he lies from the VOR station.
DME - This is short for Distance Measuring Equipment. Its function is to provide continuous distance information from the touch down point to a landing aircraft.
Localizer - The localizer is used for information to aircraft regarding its position to the centre line of runway. It also provides information as to whether the aircraft is offset towards the left or right of the central line to enable the pilot to align with the central line.
VASIS lights - The VASI (Visual Approach Slope Indicator System) provides the pilot with visual approach slope angle information while on final approach. The VASI system consists of twelve light boxes with three lights in each box. There is one complete system for each end of the runway. Each light box projects a beam of light which is white in its upper part and red in its lower part. The lights are arranged so that the pilot, during the approach sees all of the lights as red when below the correct approach angle. When on the correct approach angle, the pilot sees the lights as white and red. When above the correct approach angle, the pilot sees the lights as white.
43. According to the Airport Authority, the above navigational aids were sufficient to enable the pilot to make safe landing and that for years the pilots flying the aircraft to Ahmedabad and various other airports in the country were able to make safe landings with these navigational aids in Ahmedabad and other airports. It was only the bigger airports like Bombay and Delhi which were having other navigational aids but the above navigational aids were sufficient. Navigation is the art of determining the position of an aircraft over the earth''s surface and guiding its progress from one place to another. Though to accomplish this art, some sort of aids are required and are made available to the pilots, it is usually the skill of the pilot and his ability to make use of the aids that is pivotal in navigation.
44. The case of the Airport Authority as accepted by the Court of Inquiry is that non-availability of the following navigational aids was already reported to the Indian Airlines (pages 33 and 34 of Report):
(A) Approach Lights : These are lights which are installed at the approach end of the airport and help the pilot to visually identify the runway environment. Absence of Approach lights was notified by NOTAM A 548 dated 31.8.1988 (page 33).
(B) Instrumental Landing System consists of two components localizer and glide path. Though localizer was available, glide path was not available. Therefore ILS was not fully operational at Ahmedabad Airport, but it was partially functional.
(i) Glide path : The glide path provides information regarding aircraft position relative to a specified angle of approach. The glide path transmits a navigational signal which establishes a glide path plane along the specified glide angle. This was not available. NOTAM A548 dated 31.8.1988 to this effect was issued (page 34) .
(ii) Markers and locators : The function of locators installed co-located with the marker beacons is to guide the aircraft to begin an ILS approach. Since the ILS was not available, this was also not available. NOTAM A 548 dated 31.8.1988 to this effect was issued (page 34).
45. According to the Airport Authority VASIS lights, VOR, DME and Localizer were available at the airport. Only approach lights and glide path were not available. The available navigational aids were sufficient to enable a safe landing.
It is vehemently submitted on behalf of the Airport Authority that prior to and after the fateful accident aircrafts were able to land despite non-availability of navigational aids like, approach lights, glide path or markers and locators. That the existing landing system at Ahmedabad Airport ie. VASIS lights, VOR, DME and localizer were sufficient to enable a pilot to safely land at the Ahmedabad Airport even with visibility at 1600 M. The NOTAMS about non-availability of Approach lights, glide paths and markers and locators were notified by NOTAM A 548 on 31.8.1988. The pilots had never communicated any difficulty due to non-availability of approach lights, glide path and markers and locators. Without prejudice to the above submissions, it is the case of the Airport Authority that in any case the mandatory requirement is that the pilot should be able to see the runway from 500 ft. MDA. If not the pilot has to carry missed approach. That means if the pilot had seen the runway from 500 ft. MDA, the pilot would have landed on the runway and if the pilot had not seen the runway from 500 ft. MDA, he should have not made any effort for landing at all i.e. to carry a missed approach. The very fact that the aircraft crashed at a distance of 2.6 kms. away from the Airport clearly indicates that the pilot had not sighted runway. The pilot should have, therefore, not descended the aircraft below 500 ft. MDA if he had not actually seen the runway. It cannot therefore be said that lack of navigational aids caused the accident.
46. The Court of Inquiry has made the following observations on the question of navigational aids:
Ahmedabad airport is not equipped with ILS. In fact, the outer-marker, middle marker and glide slope had already been installed but whole of the ILS could not be commissioned on account of a minor problem namely not getting a proper power connection for the outer-marker.... CW8 Mr GK Warrier, Officer on Special Duty with the National Airports Authority has also admitted that ILS, in such a poor weather condition would have been of a tremendous help.... Ahmedabad airport on the fateful day was having VOR, DME, localizer and locator. It is true that nobody prior to the accident has reported any malfunctioning of the localiser or DME or VOR though subsequently number of objections have been raised regarding improper functioning of the DME by 1 kt. and it has also come to the notice that this malfunctioning showed earlier for some time, and thereafter, it was functioning normally. But the fact remains that nobody had made any complaint to the ATC for the last quite some time that there was any misreading on the DME. So far as the absence of ILS in the present context was a great handicap. .... Thus, it was incumbent on the National Airports Authority to have commissioned the ILS. It could not be commissioned merely on account of lethargy and inaction on the part of the authorities. ..... (page 137)
Much debate was also generated on the question that the National Airports Authority did not rectify the approach lights for quite some time and an explanation was given by Mr GK Warrier CW8 that earlier some theft took place and their executing agency i.e. CPWD could not replace it in time. They requested the CPWD to change it, but unfortunately no heed was paid by them. It was unfortunate that the National Airports Authority has been established to do away with the sub-agency like CPWD which is evident from the Statement of Objects and Reasons of the Act for 1985 itself. But still they persist in getting their word through CPWD.- (page 139)
47. Mr SV Raju, learned Counsel for the Airport Authority vehemently submitted that in the present case what landing facilities were available at the relevant time on runway 23 at Ahmedabad was known to all pilots flying to Ahmedabad airport because information regarding the same was given. Therefore, it cannot be said that there was breach of duty. The learned Counsel for the Airport Authority then posed this question and proceeded to give his answer:
The Question is what exactly is the duty of the AAI? Is it their duty that it should have or it should have had all the modern landing system or is the duty that all landing systems should be operational or is it the duty that if all modern landing systems are not there or some parts of the installed landing systems are not operational, to inform the person landing that such landing systems are not installed or operational especially when the aircraft can land safely despite the non-availability of these landing systems though they might be required to adhere to different standards when approaching the runway.
It is nobody''s case that with the existing landing systems at Ahmedabad airport, the planes could not land safely even if they were informed about the absence of the concerned landing equipments in advance.
47.1 Mr Raju also submitted that existence in law of duty of care in the present case means intimation of landing facilities available at the airport as already indicated in para 44 hereinabove. Once this is done, non-installation of non-operation of certain additional facilities cannot constitute breach of duty to care. Mr Raju further submitted that the pilot made use of VOR and, therefore, was able to know in which direction the VOR station lies. That is why the pilot was able to make inbound and outbound turns on the fateful day also. Localizer would have enabled the pilot to make a perfect landing as it would enable him to align with the central line of the runway. Since the aircraft crashed at the extended central line of the runway, the pilot had used this navigational aid. The DME enables the pilot to be continuously aware of the distance he is from the touch down point. The fact that the pilot crashed more than 2 kms. away from the runway indicates that the pilot did not make use of this very important navigational aid called DME. The pilot did not make use of the VASI system either. This inference is supported by the fact that there is no mention of VASI lights by the pilot in the black box. On proper use, the VASI system would have indicated the correct angle of descent to the pilot. If the pilot had used the VASI lights the aircraft would not have crashed.
47.2 Mr Raju for the Airport Authority has also relied on the provisions of Section 29 of the National Airports Authority Act, 1985, which reads as under:
29. Protection of action taken in good faith . - No suit, prosecution or other legal proceeding shall lie against the Authority or any member or any officer or other employee of the Authority for anything which is in good faith done or intended to be done in pursuance of this Act or of any rule or regulation made there under or for any damage sustained by any aircraft or vehicle in consequence of any defect in any of the aerodromes, civil enclaves, aeronautical communication stations or other things belonging to or under the control of the Authority.
47.3 Rule 83 of the Aircraft Rules, 1937, in so far as is relevant, contains the following provisions regarding safety of Aircraft operations to be provided by the aerodrome licensee i.e. the Airport Authority of India:
83. Conditions governing the grant of licence. - (1) An aerodrome licence shall be granted or renewed subject to such conditions as the Director General considers necessary to ensure compliance with the Convention and the safety of aircraft operations.
(5) The licensee shall maintain the aerodrome in a fit state for use by aircraft and adequately marked to the satisfaction of the Director General during the whole period of the currency of the licence and shall, if the aerodrome become unserviceable, immediately inform the Director General.
48. Having heard the learned Counsel for the parties at length on the above aspect of non-availability of certain navigational aids, the observations of the Court of Inquiry quoted in para 46 hereinabove do make painful reading, but no legal liability can be fastened on the Airport Authority on that basis. In the first place, our attention is not invited to any condition of the licence granted to the Airport Authority to provide for Instrumentation Landing System or approach lights as conditions for the licence to run and manage airport at Ahmedabad. The question then is whether the Court should hold that under the duty of care required to be taken by the Airport Authority for safety of aircraft operations, it was necessary to provide the ILS and approach lights in operational condition. In the facts and circumstances of the case and particularly the fact that the airport at Ahmedabad was being used by the Indian Airlines for last more than 20 years before the accident without the Instrumentation Landing System, it is not possible to hold the Airport Authority to be negligent on this aspect. The Airport Authority had sent NOTAMs dated 31st August 1988 and the Airlines and its pilots were aware about the non-availability of the ILS and non-operational condition of the approach lights and availability of VOR, DME, Localiser and VASIS lights referred to in para 42 hereinabove. We may also refer to the legal position against imposing a duty to take affirmative action in an action based on negligence of the defendant.
49. In the Law of Torts by Ratanlal & Dhirajlal, 25th Edition, Chapter XIX, the following principle is culled out by the authors:
The Courts are reluctant to impose a duty to take affirmative action and, therefore, omissions less frequently attract liability as compared to acts. While omissions incur legal liability there is a duty to act, such a duty will in most legal systems will be an exception rather than a rule for it would be unduly oppressive and restrictive to subject man to perform positive acts.
Two decisions of the Apex Court are rendered on the basis of the above principle.
49.1 In
49.2 In the case of Union of India v. United India Insurance Co. Ltd. AIR 1998 SC 640, a case of an accident due to bus collision with a train because of unmanned railway crossing, the Supreme Court has held "But failure to do so (keep a railway crossing unmanned in violation of Section 13 of Railways Act, 1890) is not by itself an act of negligence provided that the railway had taken other steps sufficient in those circumstances to caution effectively a passerby of average alertness and prudence. At a reasonable distance on either side, prominently written boards can be affixed as the road-users to beware of trains...- (at page 649).
50. As regards the provisions of the National Airports Authority Act, 1985, the suit is not for any damage sustained by any aircraft or vehicle. The Airport authority is a statutory body established under the National Airports Authority Act, 1985. The protection granted by Section 29 is in respect of anything which is in good faith done or intended to be done in pursuance of the Act or of any rule or regulation made there under. This protection cannot be extended to any negligent act like not obtaining Runway Visual Range (RVR) from the officers of the Meteorological Department who were available at the airport, which is discussed hereinafter.
51. It is also contended on behalf of the Indian Airlines that there was a defect in the Distance Measuring Equipment (DME) at the Airport. So far as DME is concerned, it indicates a slant range measurement of distance to runway. The aircraft crashed at 1.4 DME as per NAA (and not 2.6 as recorded in the Report). The DME was incorrect by 1.0 knot and therefore it was probably indicating 0.4 to the aircraft, which distance seems to be broadly commensurate with the height of 320 ft. indicated by the altimeter.
The Airport authority has denied this allegation and submitted that function of DME is to provide continuous distance information from the touch down point to a landing aircraft. If the DME meter was not functioning properly by 1 knot as suggested, then the question that arises is where would the aircraft have crashed ? If actual distance was 7 DME and not 6 DME as shown in the meter then the aircraft would have crashed 1 knot still away from the runway i.e. 2.55 knots which would be 4.59 kms. away from the runway. If the actual distance was 5 knots and not 6 knots as stated in the DME meter then the crash would have taken place at a distance of 0.55 knots from the runway i.e. approximately 0.99 or 1 km. from the runway. Since the crash has not taken place either at 0.99 kms. or 4.59 kms the DME meter was working properly.
In our view, nothing has been brought on record to show that any such alleged defect in the DME at the Airport authority was brought to the notice of the Airport authority earlier (page 137). Otherwise also in view of the above submission of Airport Authority, it is not possible to give any finding against the Airport Authority on this aspect.
(B) FALSE LIGHTS
52. One factor which was very much sought to be highlighted on behalf of the Indian Airlines was presence of non-aeronautical lights near the Airport which, according to the Airlines, could have confused the pilot. Reference was made to the statement of Capt. Saudamini Deshmukh who stated that non-aeronautical lights appeared like approach lights.
52.1 Rule 66 of the Aircraft Rules, 1934 provides that there should not be any false lights within a radius of 5 kms. of the aerodrome so as to mislead pilots that they are aeronautical ground lights or an aeronautical beacon. If any such false lights or beacon are noticed, the Central Government may call upon the owner/occupier of the place with such lights to remove or screen such lights. It is the contention of the Indian Airlines that in the instant case, the Airport Authority failed in its duty to bring such lights to the notice of the Central Government.
52.2 Having gone through the Report of Court of Inquiry, we are not inclined to accept the above contention for the following reasons:
(i) The Court of Inquiry recorded the following finding (page 109):
There is no direct evidence available on the record that what kind of actual lights were in approach funnel of runway 23 at that time so as to mislead pilot. Therefore, in order to examine this aspect we have to assume the existence of non-aeronautical lights in approach funnel of runway 23. The Ahmedabad airfield is in operation for nearly more than 2 decades for jet operation. Last six months record from crash does not show that the pilots at any point of time had ever reported to the ATC about any non-aeronautical lights in approach path.
(ii) Capt. Saudamini Deshmukh herself stated that she was not confused by non-aeronautical lights because she was aware of the NOTAM which stated that approach lights were not available. The pilot and co-pilot of the aircraft in question were supposed to familiarize themselves with the NOTAMS which were notified by the Ahmedabad Airport (page 117).
(iii) The non-aeronautical lights would have only one colour whereas VASI lights which were available at the Airport had two colours - red and white. Hence the pilot could not have been misled to assume that the non-aeronautical lights are VASI lights. VASI lights have very high wattage of 2000 watts and small non-aeronautical lights with 200 or 300 watts cannot be confused for VASI lights or approach lights (page 124).
(iv) Apart from five other test flights on 19th and 21st November, 24th December in 1988 and two flights on 8th January 1989, the Court of Inquiry itself (accompanied by Capt. SK Bhatia of Indian Airlines) had taken a chartered flight to Ahmedabad in the evening of 21st January 1989 and it was found that no light or surface of municipal tank could confuse the Court for approach lights or runway respectively. Hence the so-called non-aeronautical lights on the municipal tank could not have confused an experienced and competent pilot.
The Court of Inquiry found that looking to the runway lights and VASI lights, a layman cannot get confused if he has a little knowledge about the configuration of VASI lights and runway lights with the non-aeronautical lights. VASI lights were visible from 30 kms. and runway lights were visible from about 20 kms. from threshold of runway 23. During the flight, the Court of Inquiry had also got the approach lights and VASI Lights switched off to see whether any non-aeronautical lights would be confused with runway lights but the few construction bulbs in the approach funnel could not confuse the Court of Inquiry. Similarly, surface of municipal tanks could not mislead the Court of Inquiry for runway (page 125).
(v) CW6 - Captain DP Singh was an Instructor on Boeing 737. He had undertaken two flights on 24.12.1988 and 8.1.1989 to see whether the non-aeronautical lights could be mistaken for VASI or approach lights. He had deposed that on 8.1.1989, the visibility was the same as on the date of the accident and in that he could see threshold lights, VASI lights as well as runway lights along with false lights from 6 DME (page 121).
Having carefully considered the rival submissions and the report of Court of Inquiry, we are of the definite view that the accident in question was not caused by any non-aeronautical lights near the airport.
(C) VISIBILITY
53. On the issue of visibility, the Court of Inquiry made the following observations (page 129):
In the present case, there is no two opinion in the matter that no that day the weather was not very good. As per the weather report and the statements of CW 10 BJ Alika and CW 9 George Thomas, the visibility reported at that time was 2000 M from the end of runway. The visibility was definitely poor in the sense that the eye-witnesses, i.e., CW 5 Vinod Tripathi one of the survivors himself deposed that before the touch down he could not see anything outside. This fact was also proved from the statements recorded by the Inspector of Accidents at the site soon after the accident as well as from the statements recorded by the Police during investigation that it was very difficult to see from a very short distance. Above all CVR transcript clearly shows that Captain was asking co-pilot that can you see properly. Therefore, there is no two opinion in the matter that he visibility on that day was very poor. It is a separate aspect that weather was correctly given or not to which we will advert later on. But the fact of the matter is that the visibility at that particular time was definitely bad.
54. Regarding the meteorological data supplied by the ATC to the aircraft, the Court of Inquiry made the following observations:
On the date of the accident CW10 Mr BJ Alika was Senior Observer, Meteorological Department, was working as Metar Seat Observer at the Ahmedabad airport, CW9 Mr George Thomas was Meteorological Officer on duty at the Ahmedabad airport. On that particular day, Mr Alika went out 10 minutes prior, out of office, around the observatory and saw the visibility in all the four sectors and gave the visibility 2000 M. He reported the visibility to the Duty Officer, Mr George Thomas. Mr Alika further stated that they did not go for RVR on their own but they go for RVR (Runway Visual Range) on the request by ATC when the visibility is poor i.e. less than 2000 M. No RVR was sought by the ATC on that day. When asked for RVR, a transport is asked for from the ATC and the observer goes out to the runway end to read the RVR. (pages 131-132).
Mr SN Tripathi, CW2 the expert from the Meteorological Department of Government of India found that the observations of the Meteorological Officer on duty had not correctly described the prevailing weather from the data available, it appears that there was a definite trend of falling visibility and that in such a trend, the RVR is a very useful aid for departing and arriving aircraft. The Court of Inquiry then made the following observations:
From the survey of the testimony regarding meteorological datas supplied by the ATC to the aircraft, it appears that necessary care was not bestowed as there was a trend showing the failling of visibility. In this background ATC should have given RVR to pilot so that he would have known the weather condition right from the end of the runway....
It is equally not a very happy situation to note that there is no land-marks showing the visibility from 2200 metres i.e. Maya Theatre to 800 meters, i.e. RS/RW building. There is a considerable gap between 2200 meters to 800 meters. There should be some more land-marks between these two distances so as to give accurate visibility. Secondly, it is also necessary to decide a proper place from where the correct visibility reading of the airfield can be taken. - (page 133)
The Court of Inquiry further made the following observations :- (page 142)
ATC who collects the meteorological information and pass it to the aircraft has not performed its duty satisfactorily. It is the duty of the ATC to have given a RVR reading when they knew that the visibility was fast deteriorating, but a casual attitude was taken while passing the visibility to the aircraft.
55. It is submitted on behalf of the Indian Airlines that visibility was very poor and the correct visibility was not passed on to the pilot. Mental perception is inoperative at the distance of 1600 M. in flying the aircraft. In case of fog, objects may appear to be large and further away than they are (page 126 to 128)
56. As regards visibility, the defence of the Airport Authority is that visibility cannot be poor because the pilots could see huts (page 43). This was at 2:23 minutes before the crash when the aircraft was at around 1100 feet (page 49). Similarly about 7:50 minutes before the crash the pilots could see the runway. At 0:39 minutes before the crash, the pilots stated that they could see.
It is also the case of the Airport Authority that the information that was passed on by the Meteorological department to the Air Traffic Control (ATC) was passed on by the ATC to the aircraft as will be clear from pages 26 and 29 of the Report with page 37 (Item at 28:50) and page 39 (Item at 13:10). It is vehemently submitted by Mr Raju for the Airport Authority that if the meteorological department had read the weather wrongly or was unable to correctly predict the weather, it cannot be considered the responsibility of the Airport Authority because the meteorological department is an agency of the Central Government and is not under the control of the Airport Authority.
It is also the contention of the Airport Authority that in view of the navigational aids available minimum visibility required on the fateful day was 1600 M. As stated on page 29 of the Report, the trend forecast at 0110 (6.40 IST) was that "visibility was not expected to fall to 1500 M or below in the next 2 hours" as predicted by the Meteorological Department. Hence the RVR was not called for. It is also contended that prior to the above forecast at 0610 IST, the Meteorological Department had sent a trend forecast stating that "TEMPO VISION 1500 M" which was also communicated to the aircraft (page 37 item at 28:50).
57. Having considered the rival submissions and having carefully gone through the Report, we do find that in view of the definite trend of falling visibility, the Airport Authority did commit the breach of its duty of care by not giving the Runway Visual Range (RVR) to the pilot-in-command of the aircraft. It was possible for the Airport Authority and its employees to provide such RVR to the pilot with the existing facilities available at the airport and the Airport Authority and its employees could not have avoided its duty of giving the latest report about the weather condition merely by stating that at 0640 IST the visibility was not expected to fall to 1500 M or below in the next two hours as predicted by the Meteorological Department. The need to give RVR to the pilot was required to be decided on the basis of the actual weather conditions and particularly visibility condition at the airport. In view of the fact that the aircraft had contacted Ahmedabad Approach Control Tower at 0620 and was expected to arrive between 0645 and 0700 IST, all that was required to be done was sending a vehicle to the office of the Meteorological Department at the airport with request to get the RVR and intimate the same to the pilot-in-command of the incoming aircraft.
58. While the above negligence on the part of the employees of the Airport Authority did contribute to the accident, the accident was caused mainly by the negligence on the part of the pilots. We find that in spite of such visibility condition, as noted by the Court of Inquiry, both the pilot and the co-pilot were keenly looking out for runway 23 at Ahmedabad when the co-pilot asked, "Sir, what is the matter ? - the pilot answered, "once we have commenced, where is the question. It is a minor problem" (pages 42, 129). The Court of Inquiry, therefore, rightly inferred that both the pilot and the co-pilot were actually keen to see the runway 23 and they had mentally made up their mind to go for such a landing and in their anxiety to see the airfield they lost the track of the height. The conversation between the two indicated their mental perception that "both were looking for approach, whereas it was not there. If both, pilot and co-pilot were vigilant and the co-pilot who was asked to look out has given proper feed back to the pilot and the pilot had concentrated on the instruments, then perhaps he would have come to know the correct picture. The co-pilot who was too in-experienced and has only done more than 150 hours flying on Boeing 737 aircraft and could not give the pilot-in-command the correct inputs under adverse weather conditions and the Captain also instead of concentrating on the instrument also looked out for the runway and completely lost the track of the height, as a result of this calamity appears to have happened. It is quite possible that the Captain might have seen the runway because he took the flap 30-40 which is normally taken after sighting the runway and coming to the correct profile. But after descending he got into an area where the visibility was very bad though the visibility given to him by the ATC/ Met. Department was 2000 M. perhaps in hope that the visibility being 2000 M. in view he might see the runway shortly he continued to descend and both were looking out without paying necessary attention to the altimeter. Thus, the poor visibility, wrong inputs given by the inexperienced co-pilot, unaware of the height they crashed before 2.6 kms. short of the runway.- (pages130-131)
59. We adopt the above findings of the Court of Inquiry and hold that the accident in question was caused by the composite negligence of the Indian Airlines and their pilots and the Airport Authority and their employees. However, in view of the defence pleaded by the Indian Airlines, a decree cannot be passed against the Indian Airlines, without considering the contention that even if there was some negligence on the part of the pilots, there was no recklessness with knowledge that damage would probably result as contemplated by Rule 25 of the Second Schedule to the Carriage by Air Act, 1972. We, therefore, turn to the relevant statutory provisions.
STATUTORY PROVISIONS ON LIABIILTY OF AIRLINES
60. The Carriage by Air Act, 1972 was enacted to give effect to the Warsaw Convention as amended by Hague Protocol. India is a signatory to the Warsaw Convention of 1929, which is an International Agreement governing the liability of the air carrier in respect of international carriage of passengers, baggage and cargo by air. The Convention provides that when an accident occurring during international carriage by air causes damage to a passenger, there is a presumption of liability of the carrier. The carrier, however, is not liable if he proves that he or his agent had taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures. The Convention balances the imposition of a presumption of liability on the carrier by limiting his liability for each passenger to 1,25,000 gold francs. There is no limitation of liability if the damage is caused by the willful misconduct of the carrier, or by such default on his part as, in accordance with the law of the Court seized of the case, is equivalent to willful misconduct. The convention also contains detailed provisions regarding documents of carriage. The Warsaw Convention was given effect to in India by the enactment of the Indian Carriage By Air Act, 1934 (20 of 1934) in regard to international carriage and the provisions of that Act were extended to domestic carriage, subject to certain exceptions, adaptations and modifications, by means of a notification issued in 1964. Thereafter, a diplomatic conference under the auspices of International Civil Aviation Organization was held at Hague in September, 1955 which adopted a protocol to amend the provisions of the Warsaw Convention. The Hague Protocol made following major amendments to the Warsaw Convention:
(i) an increase in the amount specified as the maximum sum for which the carrier may be liable to a passenger, that is to say, the limits of the liability of the carrier in respect of a passenger has been doubled, and unless a higher figure is agreed to by a special contract, the liability is raised from 1,25,000 gold francs per passenger to 2,50,000 gold francs per passenger.
(ii) making the carrier liable where the damage was caused by an error in piloting or in the handling of the aircraft or in navigation.
The Parliament accordingly enacted the Carriage by Air Act, 1972 and the matter is accordingly governed by the said Act as amended by the Repealing and Amending Act, 1978. The preamble to the Act giving effect to the Warsaw Convention as amended by the Hague Protocol makes it clear that the Act also makes provisions for applying the Rules contained in the Warsaw Convention as amended by the Hague Protocol, subject to certain exceptions, adaptations and modifications, by means of a notification issued in 1964.
61. Section 3 deals with the rules contained in the First Schedule being the provisions of the Convention relating to international travel. Amended Sections 4 and 5 read as under:
4. (4) Any reference in the Second Schedule, as applicable to carriage by air not being international carriage by air, to agents of the career shall be construed as including a reference to servants of the carrier.
5 (1) Notwithstanding anything contained in the Indian Fatal Accidents Act, 1855 or any other enactment or rule of law in force in any part of India, the rules contained in the Second Schedule as applicable to the carriage by air, not being international carriage by air, shall, in all cases to which those rules apply, determine the liability of a carrier in respect of the death of a passenger.
(2) The liability shall be enforceable for the benefit of such of the members of the passengers family as sustained damage by reason of his death.
Explanation ....
Provided that ....
(3) An action to enforce the liability may be brought by the personal representative of the passenger or by any person for whose benefit the liability is under Sub-section (2) enforceable, but only one action shall be brought in India in respect of the death of any one passenger, and every such action by whomsoever brought shall be for the benefit of all such persons so entitled as aforesaid as either are domiciled in India or not being domiciled there express a desire to take the benefit of the action.
(4) Subject to the provisions of Sub-section (5), the amount recovered in any such action after deducting any costs not recovered from the defendant, shall be divided between the persons entitled in such proportion as the Court may direct.
(5) The Court before which any such action is brought may, at any stage of the proceedings make such order as appears to the Court to be just and equitable in view of the provisions of the Second Schedule, as applicable to carriage by air not being international carriage by air limiting the liability of a carrier.
Section 8 provides for application of the Act to carriage by air which is not international. Sub-section (2) thereof reads as under:
(2) The Central Government may, by notification in the Official Gazette, apply the rules contained in the Second Schedule and any provisions of Section 4 or Section 5 or Section 6 to such carriage by air, not being international carriage by air as defined in the Second Schedule, as may be specified in the notification, subject, however, to such exceptions, adaptations and modifications, if any, as may be so specified.
Such notification was issued by the Central Government on 30.03.1973.
62. For the purposes of the present controversy, it is necessary to refer to the amended Second Schedule to the Act which contains rules based on the Hague Convention. Chapter III of the Rules provides for liability of the carrier. The relevant provisions being Rules 17, 20, 21, 22, 23, 25, 26 and 33 read as under:
17. The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
20. In the carriage of baggage and cargo the carrier is not liable if....
21. If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the Court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability.
22.(I) In the event of death of a passenger, or any bodily injury or wound suffered by a passenger which results in a permanent disablement incapacitating him from engaging in or being occupied with his usual business or occupation, the liability of the carrier for each passenger shall be Rs. 1,00,000, if the passenger be 12 or more years of age and Rs. 50,000, if the passenger be below 12 years of age on the date of the accident;
(The amounts were revised to Rs. 2,00,000 and Rs. 1,00,000 respectively by Notification dated 5th July 1980 and last revised to Rs. 7,50,000 and Rs. 3,50,000 respectively by notification dated 20th January, 1998.)
(I)(A) In the event of wounding of a passenger or any bodily injury suffered by the passenger which results in a temporary disablement ... ... ....
(4) The limits prescribed in this rule shall not prevent the Court from awarding, in accordance with its own law, in addition, the whole or part of the Court costs and of the other expenses of litigation incurred by the plaintiff. The foregoing provisions shall not apply if the amount of the damage awarded, excluding Court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later."
23.(1) Any provision in a contract of carriage tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in these rules shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract which shall remain subject to the provisions of these rules."
25. The limits of liability specified in Rule 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.
26 (1) If a action is brought against a servant or agent of the carrier arising out of damage to which these rules relate, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the limits of liability which that carrier himself is entitled to invoke under Rule 22.
(2) The aggregate of the amounts recoverable from the carrier, his servants and agents in that case, shall not exceed the said limits.
(3) The provisions of sub-rules (1) and (2) of this rule shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.
33. Any clause contained in the contract and any special agreement entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Schedule shall be null and void. Nevertheless, for the carriage of cargo, arbitration clauses are allowed subject to these rules
63. On the date on which the amount of damages to be paid by the carrier was ascertained by the trial Court, the liability of the carrier for each passenger under Rule 22(1) was limited to the sum of Rs. 2 lakhs. It is not the case of any party that there was any specific contract for providing a higher limit of liability of the carrier.
RULE 25
64. The focus of the controversy in the present appeal is Rule 25 which provides for lifting the limit of liability specified in Rule 22. For the said limit to be lifted, the following ingredients of Rule 25 are required to be proved:
(i) the damage resulted from an act or omission of the carrier, his servants or agents.
(ii) (a) such act or omission was done with intent to cause damage,
OR
(b) such act or omission was done recklessly and with knowledge that damage would probably result.
In case of such act or omission of the servant or agent, it is also required to be proved that he was acting within the scope of his employment. There is no dispute about the fact that the servants and agents of the Indian Airlines were acting within the scope of their employment. We are not concerned with the provisions of Rule 26 because both the pilots of the Indian Airlines aircraft expired during the air crash and the plaintiffs have not claimed damages from any individual employee or agent of the carrier.
65. While the Indian Airlines has not admitted that the damage resulted from an act or omission of the Indian Airlines, its servants or agents, in view of the data contained in the report of Court of Inquiry, none of which was disputed on behalf of the Airlines, though the inferences drawn by the Court of Inquiry from the data placed before it were seriously disputed by the learned Counsel for the Indian Airlines, in view of the foregoing discussion, it is clear that death of 133 out of 135 persons on board, did result from composite acts and/or omissions of the Indian Airlines and the Airport Authority and the servants and agents. The foregoing discussion has already made it clear that the accident in question resulted mainly from the acts and omissions of the pilots of the Indian Airlines and therefore, ingredient (i) in Rule 25 is satisfied. It is not the case of the plaintiffs" that the acts or omissions of the Indian Airlines or their pilots were done with intent to cause damage. Hence, the only issue which now calls for examination is whether the acts and/or omissions of the Indian Airlines and their pilots were done recklessly and with knowledge that damage would probably result.
66. The learned Counsel for the Indian Airlines has vehemently submitted that there is no material on record on the basis of which it can be contended that the act or omission of the carrier or its servants or agents was done recklessly and with knowledge that damage would probably result. It is submitted that various findings given by the Court of Inquiry are against the Airport Authority and in favour of the Airlines.
67. At the outset, it must be made clear that the contents of the Report can be looked into for the purpose of determining primary facts, but the trial Court or this Court is not bound by the inferences drawn by the Court of Inquiry which are reflected in their findings. It is open to this Court to consider whether the acts committed or omissions made by the concerned defendants and their servants and agents would constitute negligence or recklessness or recklessness with knowledge as contemplated in Rule 25 in the Second Schedule to the Carriage by Air Act, 1972. We have, therefore, heard the learned Counsel for the parties extensively on this issue.
ACT OR OMISSION DONE RECKLESSLY
68. It is vehemently submitted by the learned Counsel for the Indian Airlines that recklessness is that degree of negligence where the defendant performs the act or omission with knowledge of the consequences of the act and with intent that such consequences should ensue. Neither of the two pilots could have intended to cause his own death or death of any crew member or passenger on board. Recklessness is a much higher degree of negligence with the mental element of disregarding natural consequences of the act or omission in question. There is no material on record not even in the report of Court of Inquiry, from which any such inference could possibly be drawn.
69. The learned Counsel for the Indian Airlines submitted that the doctrine of res ipsa loquitur is formulated and adopted by the Court for inferring negligence, and cannot be extended to shift the burden of proof of recklessness and knowledge of the pilot that damage of the kind contemplated would probably result, which is an affirmative fact of advertent conduct which has to be established by the plaintiff.
The doctrine applies where (1) the occurrence is such that it would not have happened without negligence and (2) the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he was responsible or whom he had a right to control. There is however a further negative condition : (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate for the question of the defendant''s negligence must be determined on that evidence. It should not be applied as a legal rule but only as an aid to an inference when it is reasonable to think that there are no further facts to consider.
70. As to (1) above, the circumstances constituting the event or accident do not themselves proclaim in concordant, clear and unambiguous voices
As to (2) above, the landing which caused the crash was not under the control of the appellant - defendant alone but also under the control of the Airport Authority of India and the Meteorological Department of the Union of India, who are in law not responsible for each other and therefore the doctrine cannot apply to any person since the res, if it speaks of negligence, does not speak of negligence against only person individually. (1954 (1) WLR 128, but see observations in 1954(2) QB 66).
As to (3) above, without prejudice to the contention that the Report is not legal evidence, the cause of the accident is explained in the Report as having taken place on account of error of judgment on the part of the pilot in command and the co-pilot, which error of judgment was on account of poor visibility which was not passed on to the pilot, and the said Report does not record a finding of negligence let apart recklessness as a cause of the accident and therefore the doctrine of res ipsa loquitur would not apply. The modification of the finding of the Court or Inquiry by the Government is unreasoned, beyond jurisdiction and irrelevant to the issue.
71. The learned Counsel for the Indian Airlines further submitted that - on general principles of evidence and the provisions of the Indian Evidence Act, 1872 (Section 101) the burden of proving the affirmative is on the person who asserts the existence of the facts on the basis of which he desires the Court to give judgment and the respondent - plaintiff has failed to establish that the damage resulted from an act or omission of the appellant done recklessly and with knowledge that damage would probably result. The respondent - plaintiff cannot, in the facts of the case, invoke the doctrine of res ipsa loquitur for the purpose of proving their case.
72. The learned Counsel for the Indian Airlines further submitted that the term recklessly in Rule 25 cannot be construed in isolation, but in its context and with the qualification that the act or omission had to have been done both recklessly and with knowledge that damage would probably result and therefore, the test was subjective, namely that the defendant must be proved actually to have foreseen the risk of some damage resulting from his action and nevertheless to have run the risk, and not objective, where it would be sufficient to prove that the risk of damage resulting would have been obvious to any reasonable person in the defendant''s position. The true interpretation of the said Rule when read as a whole involves the proof of actual knowledge in the mind of the pilot at the moment at which the omission occurs, that the omission is taking place and that it does involve probable damage of the sort contemplated in the Rule. (Goldman v. Thai Airways International Ltd. 1983 (1) WLR 1186). The contention that actual knowledge would include facts within a pilot''s knowledge, being the background knowledge gained by experience and learning, even if not present in his mind at the time of the relevant acts or omissions, also brings in the objective test not contemplated by Rule 25 and is offensive to the plain meaning of the word ''knowledge'' in this context which means actual conscious knowledge. (Nugent and Killick v. Michael Goss Aviation Ltd. and Ors. 2000 (2) LLR 222 p. 228, 229, 232).
73. Strong reliance is also placed by the learned Counsel for the Indian Airlines on the following observations in
(90) In this connection interesting observations are to be found in the decision of Horabin v. British Overseas Airways Corporation reported in (1952) 2 All ER 1016. It lays down that the mere fact that an act was done contrary to a plan or to instructions, or even to the standards of safe flying, to the knowledge of the person doing it, does not establish wilful misconduct on his part, unless it is shown that he knew that he was doing something contrary to the best interests of the passengers and or his employers or involving them in a greater risk than if he had not done it. A grave error of judgment, particularly one apparent as such in the light of after events, is not wilful misconduct if the person responsible thought he was acting in the best interests of the passengers and of the aircraft. Lastly this decision lays down another important principle that in determining whether or not there has been wilful misconduct, each act must be considered independently, and, though each act may be looked at in the light of all the evidence, it is not permissible to put together several minor acts of carelessness, none of them amounting to misconduct in itself, and find that together they amount to misconduct.
74. The learned Counsel for the Indian Airlines also submitted that the liability of the Indian Airlines for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger contemplated under Rules 17 and 22 of the Second Schedule to the Carriage by Air Act, 1972, read with the Notification dated 5th July, 1980 issued by the Ministry of Tourism and Civil Aviation, Government of India u/s 8(2) of the said Act is limited to a sum of Rs. 2,00,000/-. The respondent - plaintiff has not proved that the damage resulted from an act or omission of the appellant done recklessly and with knowledge that damage would probably result, so as to render the limit of liability inapplicable, as provided in Rule 25 of the said Schedule.
75. Strong reliance is also placed on the decision of the Court of Appeal in Goldman v. Thai Airways International Ltd. (1983) 3 All ER 693 wherein the Court of Appeal made the following observations:
When conduct is stigmatised as reckless, it is because it engenders the risk of undesirable consequences. When a person acts recklessly he acts in a manner which indicates a decision to run the risk or a mental attitude of indifference to its existence.... the doing of the act or omission is not only qualified by the adverb ''recklessly'', but also by the adverbial phrase ''with knowledge that damage would probably result''. If the pilot did not know that damage would probably result from his omission, I cannot see that we are entitled to attribute to him knowledge which another pilot might have possessed or which he himself should have possessed.
DISCUSSION ON ACT/OMISSION DONE RECKLESSLY
76. We have given anxious consideration to the above submissions made on behalf of the Indian Airlines.
76.1 In Naresh Giri v. State of MP 2008 (1) SCC 791 (para 13), relying on the decision of the House of Lords in R v. Caldwell 1982 AC 341, the Apex Court held as under:
Recklessness covers a whole range of state of mind from failing to give any thought at all to whether or not there is any risk of harmful consequences, to recognising the existence of the risk and nevertheless deciding to ignore it.
76.2 The law in England before Caldwell was that a man was reckless when he carried out the deliberate act appreciating that there was a risk that damage to property could result from his act and the risk must be one which it was in all the circumstances unreasonable for him to take. The test remained subjective, that the knowledge or appreciation or risk of some damage must have entered the defendant''s mind even though he may have suppressed it or drive it out. (R v. Stephenson 1979 (3) WLR 193 : 1979 (2) AER 1198).
The principle that the test for recklessness should be entirely subjective was disapproved in Caldwell holding that if there was something in the circumstances which would have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would be described as reckless, which did involve a test that would be described in part as objective.
76.3 In R v. Caldwell, the House of Lords considered the meaning of the term "reckless" where the respondent had done some work for the owner of a hotel as a result of which, he had a quarrel with the owner, got drunk and set fire to the hotel in revenge. The fire was discovered and put out before the serious damage was caused and none of the ten guests in the hotel at that time was injured. At the trial, he pleaded guilty to the lesser charge "intentionally or recklessly destroying or damaging the property of another" but pleaded not guilty to the very serious charge of "damaging property with intent to endanger life or being reckless whether life would be endangered". He claimed that he was so drunk at that time that he might be endangering the life of the people in the hotel had never crossed his mind. While the trial Judge did not accept the above defence, the Court of Appeal held in favour of Caldwell that the mental element of intention or recklessness in regard to endangering life was required to be established as a separate ingredient of the offence and accordingly, drunkenness could be a good defence. The Crown appealed to the House of Lords, Diplock L.J. speaking for the majority held that a person charged with the offence in question is "reckless as to whether any such property would be destroyed or damaged" if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act, he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has none the less gone on to do it.
76.4 Lord Diplock gave the following reasons for arriving at the above conclusion:
"Reckless" as used in the new statutory definition of the men''s rea of these offences is an ordinary English word. It had not by 1971 become a term of legal art with some more limited esoteric meaning than that which it bore in ordinary speech, a meaning which surely includes not only deciding to ignore a risk of harmful consequences resulting from one''s acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was. If one is attaching labels, the latter state of mind is neither more nor less "subjective" than the first. But the label solves nothing. It is a statement of the obvious; mens rea is, by definition, a state of mind of the accused himself at the time he did the physical act that constitutes the actus reus of the offence; it cannot be the mental state of some non-existent, hypothetical person. Nevertheless, to decide whether someone has been "reckless" as to whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation.
76.5 The concept of recklessness in Criminal Law again came up for consideration before the House of Lords in R v. Lawrence (1982) AC 510 and Lord Diplock made the following observations:
I turn now to the mens rea. My task is greatly simplified by what has already been said about the concept of recklessness in criminal law in R v. Caldwell. Warning was there given against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being either "subjective" or "objective". Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting "recklessly" if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it.
76.6 The interpretation of the term "reckless" as given by the House of Lords in R v. Caldwell (supra) and in R v. Lawrence (supra) has been adopted by the Hon''ble Supreme Court in Naresh Giri v. State of MP, 2008 (1) SCC 791 . In view of the above binding decision of the Apex Court and even otherwise, we are unable to subscribe to the view taken by the Calcutta High Court in
DONE RECKLESSLY WITH KNOWLEDGE
77. At this stage, Mr Mihir Joshi, learned Senior Advocate for the Indian Airlines vehemently submitted that the expression used in Rule 25 is not merely "recklessly" but also "and with knowledge that damage would probably result." It is, therefore, submitted that the Legislature clearly intended to provide the subjective test. Reference is also made to the discussions of the ICAO in 1955-56 as referred to in Goldman''s case (supra) [page 699-700]. It is submitted that a vote was taken as to which of the following three phrases should be added to the requirement that an intention should be proved : (a) ''and has acted recklessly''; (b) ''and has acted recklessly and knew or should have known that damage would probably result''; (c) ''and has acted recklessly and knew that damage would probably result''. It was (c) that received the largest number of votes.
78. The submission made by the learned Counsel for the Indian Airlines based on the decisions in Goldman''s case (supra) is quite formidable and requires fuller analysis. However, before dealing with the said submission, it is necessary to make a detailed reference to the facts of that case, because as per the settled legal position, the principles enunciated in a judgment are to be read in the context of the facts of that case.
In
In
19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid''s theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes.
In the said decision, the Apex Court quoted the following words of Lord Denning in the matter of applying precedents which have become locus classicus:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
79. In Goldman v. Thai Airways International Ltd. (1983) 3 All E.R. 693, the appellant - plaintiff was a passenger on a flight from London to Bangkok aboard an aircraft owned and operated by the defendant airline. During the flight the pilot failed to illuminate the seat belt sign when the aircraft entered an area for which moderate clear air turbulence had been forecast and when severe turbulence was encountered in that area the plaintiff, whose seat belt was not fastened, was thrown from his seat and sustained severe injuries by hitting the ceiling. The plaintiff brought an action for damages against the defendants . Article 22(1) limited the amount of damages recoverable to approximately �11,800, but art 25 provided that the limitation on the amount recoverable did not apply if it was shown that ''the damage resulted from an act or omission of the carrier [which was] done with intent to cause damage or recklessly and with knowledge that damage would probably result.
80. The Trial Judge held that the pilot should have switched on the seat belt sign 10 minutes before entering the area and that the pilot had deliberately disregarded the instructions on the use of the seat belt set out in the flight Operation Manual. The Trial Judge held violation of those instructions designed for safety of passengers as recklessness. Accordingly, the Trial Judge awarded damages of US$ 41,000.
81. In the appeal preferred by the defendants, the Court of Appeal noticed the following facts:
The plaintiff was on a Thai Airways flight from Heathrow to Bangkok. During the flight, the plaintiff felt a serious of bumps which were sufficient to make him desire to fasten his seat belt. As he was in the act of doing so he was thrown from his seat and struck the ceiling. The aircraft had encountered clear air turbulence (CAT). Before leaving Heathrow and again at Amsterdam the captain was provided with a significant weather chart for the journey. The charts forecast two areas of CAT for the aircraft''s flight path. They were delineated on the chart. Both areas of CAT were classified as moderate. The peculiar feature of CAT is that it is not detectable before it is encountered. By way of contrast, thunderstorm turbulence can be seen. However it is possible to warn a pilot that he may encounter CAT in a particular area and consequently that he should be on his guard against it. A forecast of CAT in an area does not mean that an encounter with turbulence is inevitable. The evidence was to the effect that a plane could pass through the area for a number of journeys in succession without meeting it at all. Captain Pritchand, with 30 years of flying experience, had only once encountered severe air turbulence. Captain Price, with 12,000 flying hours, had never experienced it, but he had frequently flown through areas where CAT was forecast. The trial Judge found that the pilot should have illuminated the ''fasten seat belts'' sign ten minutes before entering the CAT area. He accepted the evidence on the expert witness called for the plaintiff. Moreover, the defendants'' flight operation manual contained the following instructions:
10.3 Use of Seat Belts. The passengers must use their seat belts and the sign "FASTEN SEAT BELTS" should be lit - During taxiing, take-off and landing - During all flying in turbulent air and when turbulence can be expected.
The trial Judge found that those instructions were disregarded by the pilot and, seeing that they were instructions which were designed for the safety of the passengers, it was reckless for the pilot to disregard them.
82. It was in the context of the above facts that the Court of Appeal observed that in order to succeed, the plaintiff was required to prove:
(a) that the damage suffered by him resulted from an act or omission of the defendant carrier,
(b) that the defendant intended by the act or omission to cause damage or was aware that damage would probably result but nevertheless had acted or failed to act regardless of that probability, and
(c) that the damage complained of was of the kind of damage known to be the probable result of the act or omission. In determining whether an act or omission had been done ''recklessly'' the court had to consider the nature of the risk involved, and moreover, since the reckless act or omission had to be done with knowledge that damage would probably result from the act or omission if damages were to be at large, the test of recklessness was subjective and the court could not attribute to the defendant knowledge which another person in the same situation might have possessed or which, on an objective basis, he himself ought to have possessed.
83. It is thus clear that in Goldman''s case (supra), the Captain in command with 30 years of flying experience had only once encountered severe air turbulence. Similarly, the other Captain with 12000 hours of flying experience had never experienced severe air turbulence, though he had frequently passed through the area where clear air turbulence were forecast. In spite of forecast of clear air turbulence the plane would pass through the area for a number of journeys in succession without meeting any turbulence at all. In the facts of the Goldman''s case what was forecast was not severe air turbulence but moderate clear air turbulence, but what occurred was severe air turbulence which caused injury to the plaintiff. The peculiar feature of moderate clear air turbulence is that it is not detectable before it is encountered. In the facts of the case, therefore, the Court of Appeal rightly held that the actual knowledge of the pilots was required to be seen before deciding whether the damage resulted from an act or omission of the pilots which was done recklessly and with knowledge that damage would probably result. Since the turbulence forecast was moderate clear air turbulence which was not detectable before it was encountered and since one of the pilots had never experienced it even with 12000 flying hours and the other pilot had encountered severe air turbulence only once in 30 years'' flying experience, the pilots could not have been expected to illuminate fasten seat belt sign 10 minutes before entering into the CAT area. Such turbulence could never be expected 10 minutes in advance.
In the facts of the Goldman''s case (supra), therefore, the Court of Appeal rightly held that the airlines was not liable to pay higher compensation under Article 25 and restricted the amount of compensation to �11800 under Article 22(1).
84. Article 25 also came up for consideration in Margaret Rose Nugent Mark John Killick v. Michael Goss Aviation Ltd. and Polo Aviation Ltd. 2000 (2) LLR 222. The trial Court rejected the claimant''s contention that actual knowledge could include background knowledge, holding that it means actual knowledge, in the sense of appreciation, at the time of the conduct in question, that it would probably cause the type of damage which occurred - here of death or of serious injury. The learned Judge relied on the decision in Goldman v. Thai Airways (1983) 1 WLR 1186. The trial Judge indicated that, in his view, such a construction does not necessarily require an allegation that a pilot has been suicidal, but could also include a case where he has taken a stupid and unnecessary risk - "knowing that it carried a probable risk of death, or perhaps where some act, the airborne equivalent of road rage, (has been) committed by an important or angry pilot."
85. The claim was for damages under the Fatal Accidents Act, 1976 arising out of the death of Mr Matthew Harding in the crash of a helicopter in which he was travelling from Bolton to London as a passenger. The helicopter was owned by the third defendant and piloted by Michael Goss, who was also killed in the crash and whose executor is the second defendant. The Convention governed the flight. The first and second defendants conceded liability to the claimants under Article 17 of it, which renders an air carrier liable, irrespective of fault, for the death of a passenger in an accident on board its aircraft, but relied on Article 22 which limits such liability to a sum equivalent to about � 80,000. The claimants valued the claim at about � 59 million and sought to rely on Article 25. The trial Court struck down certain paragraphs of the plaintiffs'' case in which plaintiffs had contended that knowledge in Article 25 would include knowledge which can be imputed to any reasonable person. The order of the trial Court striking out such paragraphs of their case was upheld by Burton, J. of the Queens Bench.
86. When the matter came before the Court of Appeal, it was contended on behalf of the plaintiffs there were three different types of knowledge -
(i) actual conscious knowledge i.e. actual knowledge in the mind of the pilot at the moment at which the omission occurs,
(ii) "background knowledge" is knowledge which would be present to the mind of the pilot if he thought about it,
(iii) "imputed knowledge" is knowledge which a reasonable person ought to have, but the pilot in a particular case did not in fact have.
While Auld LJ and Dyson, J. held that knowledge in Article 25 is only the first type of knowledge i.e. actual conscious knowledge, Lord Justice Pill held that knowledge in Article 25 means not only conscious knowledge of the pilot at the moment at which omission occurs but also the background knowledge which the pilot already had but was not present to his mind at the time the omission occurred.
87. Since we are in respectful agreement with the view of Lord Justice Pill, we would like to quote in extenso the following reasoning which appealed to His Lordship:
In Goldman, the pilot had to make a decision as to whether to illuminate the seat belt instruction light. The Court of Appeal, reversing the trial judge, held that on the information available to him "it seems in my judgment impossible to say that Captain Swang''s decision not to illuminate the seat belt fell within the test provided by Article 25" (per Purchas LJ at 1202). The Court had considered the information available to the pilot when he took his decision and the expert evidence as to what he should have done on the basis of that information. When using the expression "actual knowledge", Purchas LJ was referring to the actual information available to the pilot and was not in my view seeking to make a distinction between what was in the front and what was in the back of the pilot''s mind or suggesting that a pilot''s knowledge by way of training and experience should be ignored in evaluating the decision he took. The same applies to the decision to leave cargo in the open in SS Pharmaceutical. Plainly, information, for example as to approaching weather conditions, which the actor does not have at the moment he makes his decision is excluded from his "knowledge".
The Court must not impute to the actor knowledge he does not have, but neither is it entitled to ignore his fund of knowledge and experience in assessing his knowledge at the material time. It is the submission that one can isolate what a person is thinking at a particular moment from his fund of knowledge that, with respect, I find artificial. It unjustifiably devalues the processes of the mind. A pilot does not escape liability merely because, by reason of, for example, drink or tiredness, he forgets for a moment his training and the general knowledge his experience of flying brings him. Obscure information, on the other hand, once received but readily forgotten, would not usually come within the appropriate fund of knowledge. As a simple land-based example, I mention a driver on a busy road. He would not escape liability on the Article 25 use of the word "knowledge" by claiming that he had forgotten for a moment that vehicles drive on the left hand side of the road (in the United Kingdom) or that it is a red traffic light which means stop. There are no doubt equivalent basic rules in the air. The pilot in Goldman would not have escaped liability on the ground that he had forgotten at the relevant moment that seat belts provide protection against damage.
(para 81 of this judgment indicates the facts which the Court noticed for not fastening liability on the pilot in Goldman case)
On the same basis, I disagree with the judge''s ruling that "turning a blind eye-is not consistent with knowledge as the word is used in Article 25 though I agree that is the outcome of the reasoning of Auld LJ. The Article does not in my view permit the actor to say that his knowledge is no longer his knowledge because he has made a conscious decision to put it out of his mind.
I agree with Auld LJ that inferences may be drawn in determining the presence of knowledge for the purposes of Article 25. Inferring knowledge is different from imputing it and difficulties of categorisation which may sometimes occur do not destroy the reality of the difference. Courts are familiar with applying a practical approach to the drawing of inferences. Knowledge of basic "rules of the road" will more readily be inferred than will knowledge of more esoteric information. Difficulties at the borderline do not justify a definition of knowledge which involves treating the mind as if incapable of retaining information. In some situations, I would be prepared to draw inferences that an experienced pilot in fact had the general knowledge, for the purposes of Article 25, that an experienced pilot would be expected to have.
88. Following the above test, there is no dispute about the fact that Capt. Dalaya, the pilot-in-command of the aircraft in question had been briefed about the flight plan which included NOTAMs dated 31.8.1988 about availability of VASI lights at Ahmedabad Airport and non-operational condition of approach lights and non-availability of Instrumentation Landing System at Ahmedabad (para 44 hereinabove), the pilot in command, therefore, did have the above facts in his mind. In view of the above information which the pilot-in-command did have in his mind, the Court is required to consider the expert evidence as to what the pilot-in-command would have done on the basis of that information. As the report indicates, the pilots had proceeded on the footing as if the approach lights were available and, therefore, the required visibility was only 1200 mtrs. and not 1600 mtrs which was required when approach lights were not available. Similarly, the pilots did not use of the VASI lights inspite of the knowledge through the NOTAMs dated 31.8.1988 that VASI lights were available. It, therefore, has to be held that the pilots in poor visibility conditions descended upto 1000'' above aerodrome elevation and thereafter did not give any standard call out and even thereafter descended upto 500'' without getting any clearance or permission for landing and in spite of poor visibility conditions, instead of taking a missed approach, they were determined to land as is apparent from the conversation recorded in the CVR. The pilots were keen to land even though they had not seen the runway while descending below 1000'' (para 58 hereinabove). In such situation, it has to be held that pilots had acted recklessly and with knowledge that damage would probably result.
89. We are, therefore, of the view that for the accident in question i.e. the crashing of the Indian Airlines corporation aircraft Boeing 737 Aircraft VT-EAH on its daily scheduled flight IC - 113 from Bombay to Ahmedabad at 0653 IST in the morning of 19th October, 1988 at a distance of 2540 mtrs. from the beginning of runway 23 at the Ahmedabad Airport in poor visibility conditions, the major share goes to the pilot-in-command and the co-pilot of the Indian Airlines. They acted recklessly with knowledge about probable damage about the consequence of their acts and omissions. We are also of the view that there was some negligence on the part of the Airport Authority of Ahmedabad in not providing the latest visibility report to the aircraft by getting the RVR from the Meteorological office at the airport (paras 53 to 57 hereinabove). The degree of negligence on the part of the pilot-in-command and the co-pilot of the Indian Airlines was so high that the same amounted to recklessness on their part as contemplated by Rule 25 to the Second Schedule to the Carriage by Air Act, 1972. The accident in question was because of recklessness on the part of the Indian Airlines and their servants, particularly the pilot-in-command as well as the co-pilot, with knowledge of the probable consequences of attempting to land without any clearance from the Air Traffic Control, Ahmedabad, without having cared to spot the VASI lights and without having cared to take note of NOTAMS sent by the Airport Authority of India, Ahmedabad about availability of VASI lights and non-availability of Instrument Landing System and non-operational approach lights.
JOINT & SEVERAL LIABILITY
90. The next question is whether, after giving the above findings, it is necessary for this Court to fix the exact degree of negligence on the part of the Indian Airlines and the Airport Authority. The trial Court has determined their negligence in the ratio of 70 : 30 respectively and on that basis apportioned their liability to pay compensation in the same ratio. While we are of the view that the degree of negligence on the part of the Indian Airlines was certainly not less than 70%, in our view, it would not be legally necessary to go for exact determination of the degree of negligence on the part of the Indian Airlines - whether it was 80% or 90% because as per the principle of joint and several liability when the accident in question was caused by the composite negligence of two defendants, both the defendants are jointly and severally liable to pay compensation to the plaintiffs. We find that even Rule 21 in Second Schedule dealing with the case of carriage to be performed by various successive carriers provides that in such cases the carriers will be jointly and severally liable.
91. As explained in Ratanlal & Dhirajlal, Law of Torts, 25th Edition 2006 Chapter IX, composite negligence means negligence of two or more persons other than the victim of the negligence. In a suit for "composite negligence", the plaintiff is not bound to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rules as to remoteness of damage, he is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he cannot recover on the whole more than his whole damage. He has a right to recover the full amount of damages from any of the defendants.
In assessing damages against joint tort-feasors or several tort-feasors causing same or indivisible damage one set of damages will be fixed, and they must be assessed according to the aggregate amount of the injury resulting from the common act or acts. The damages cannot be apportioned so as to award one sum against one defendant and another against the other defendant, though they may have been guilty in unequal degree. If two omnibuses are racing, and one of them runs over a man who is crossing the road and has no time to get out of the way, the injured person has a remedy against the proprietors of both or either of the omnibuses".
92. While Academicians some time make a distinction between Joint Tort Feasors and Several Tort Feasors whose act cause a single indivisible damage, our Supreme Court has not gone for this subtle distinction.
In Union of India v. United India Insurance Company Ltd. and Ors. AIR 1998 SC 640, the Apex Court considered the question of composite negligence when 40 passengers in a bus and the driver thereof were killed and some other passengers sustained injuries in the course of an accident between the bus and a train at a unmanned railway crossing. The Motor Accident Claims Tribunal gave conflicting finding in two separate batches of cases - regarding liability of the Railways. In appeal, the High Court made the railways also liable. The High Court held that under the Motor Vehicles Act, 1939, an award could be passed against the railways also. Against all those judgments, the Union of India preferred appeals. In the context of the above facts, the Apex Court held in para 8 of the judgment as under:
It is therefore clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved - could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent, the driver and owner of the bus and, if proved, the railways - can all be joint tort-feasors.
93. In view of the above categorical statement made by the Apex Court that when both the bus driver and the driver of the engine of the train were negligent, they were Joint tort-feasors, where the Indian Airlines and its pilots on the one hand and the Airport Authority on the other hand are considered as joint tort-feasors or several tort-feasors causing same or indivisible damage, and the deceased passengers in the aircraft, were admittedly innocent, the Indian Airlines as well as the Airport Authority have to be considered as joint tort-feasors as described by the Supreme Court or several tort-feasors causing same or indivisible damage or as concurrent tort-feasors as described by academicians.
94. Where the same damage is caused to one person by several wrongdoers, they may be either joint or several tortfeasors. Persons are said to be joint tortfeasors when their separate shares in the commission of the tort are done in furtherance of a common design. A generic name applicable to both joint tortfeasors and independent tortfeasors is suggested by Glanville Williams, viz. "concurrent tortfeasors" (see G. William, JOINT TORTS AND CONTRIBUTORY NEGLIGENCE, p. 1):
Concurrent tortfeasors are tortfeasors whose torts concur (run together) to produce the same damage. They are either joint concurrent tortfeasors (briefly joint tortfeasors), where there is not only a concurrence in the chain of causation leading to the single damage but also (apart from non-feasance in breach of a joint duty) mental concurrence in some enterprise; or several concurrent tortfeasors where the concurrence is exclusively in the realm of causation.
95. Where two or more breaches of duty by different persons cause the claimant to suffer a single, indivisible injury, the claimant is entitled to sue all or any of them for the full amount of his loss (though he cannot execute judgment so as to recover more than his loss) and each is said to be jointly and severally liable for it. [Winfield & Jolowicz, 17th Edition - 2006].
96. This common law rule of joint and several liability will apply to the instant case where breaches of duty by Indian Airlines and their employees on the one hand and by the Airport Authority and their employees caused the death of 127 passengers on board the aircraft and injuries to two passengers. The loss caused to the plaintiffs was, therefore, a single indivisible loss. Hence, the principle of joint and several liability applies. In view of the above, both the Indian Airlines and Airport Authority are jointly and severally liable to pay the plaintiffs in each suit the total amount of compensation as quantified in the appeals arising from each suit.
97. The next question is whether this Court should provide for any contribution between the tortfeasors. At common law the general rule was that one concurrent tortfeasor, even if he does not claim in full, should not recover contribution towards his liability from any other tortfeasor liable. The rule was laid down with regard to Merryweather v. Nixam (1799) 8 TR 186 and was later on extended to several concurrent tortfeasors [The Koursk (1924) P.140]. The rule is, however, given up in England on account of statutory law viz. The Law Reform (Contributory Negligence) Act, 1935 which has now been replaced by the Civil Liability (Contribution) Act, 1978. In the absence of any such legislation in India, the common law would apply.
98. In
99. Following the aforesaid approach, we may consider fixing the contribution between concurrent tortfeasors. We do not find any justification in the judgment of the trial Court fixing the contribution between Indian Airlines and Airport Authority in the ratio of 70 : 30. In our view, in the facts and circumstances of the case, not obtaining correct visibility report from the Meteorological Department and not supplying the same to the aircraft was one of the causes of the accident, but considering the fact that as on 19th October, 1988 the Ahmedabad Airport had been receiving flights every day in the previous 20 years (including in the winter seasons every year), without Instrumentation Landing System or approach lights and with the same navigational aids which were available in the morning of 19th October, 1988 and having regard to the discussion in paras 36 to 59, 88 and 89 hereinabove, we are of the view that the recklessness on the part of the Indian Airlines and its employees on the one hand and negligence on the part of the Airport Authority and its employees on the other hand is required to be determined in the ratio of 90 : 10 respectively. We, however, make it clear that this apportionment is only made for the limited purpose of contribution between concurrent tortfeasors and it does not affect the several and joint liability of the Indian Airlines and the Airport Authority to pay the amount of compensation, interest and costs as determined in appeals arising from each suit. We also make it clear that the amount deposited by the Airport Authority in compliance with the decree of the trial Court shall not be withdrawn, if lying deposited in the trial Court, nor shall it be recovered from the plaintiffs if withdrawn by the plaintiffs, but the same shall be adjusted against the amounts payable under this judgment.
QUANTUM OF COMPENSATION
100. Coming to the quantum of compensation, deceased Shirishbhai was Secretary-cum-Manager (Admn.) in Nutan Mills which was a textile mill in Ahmedabad. The deceased possessed the qualification of CA, FCA, FCS i.e. he was both Chartered Accountant and Company Secretary. On the basis of the Income Tax returns and the certificates of deduction of tax at source for assessment years 1986-87 and 1987-88, the trial Court assessed the income of the deceased at Rs. 1,00.000/-. After considering the future prospects, one-fourth amount was deducted towards personal expenses of the deceased and the loss of dependency benefit was assessed at Rs. 75,000/- per annum. The deceased was aged 56 years at the time of the accident. Considering that the deceased having qualifications of FCA and FCS, the deceased would also be gainfully employed after retirement, the trial Court adopted the multiplier of 9 and on that basis assessed the compensation for loss of dependency benefit at Rs. 6,75,000/-. Then added further amounts under the conventional heads as under:
Dependency loss Rs. 6,75,000
Consortium Rs. 1,00,000
Expectation of life Rs. 10,000
Pain, shock & suffering Rs. 1,00,000
Baggage Rs. 5,000
------------------
Total Rs. 8,90,000
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The trial Court also awarded interest at the rate of 6% per annum and apportioned the compensation amount equally amongst the three heirs of the deceased.
101. The learned Counsel for the Indian Airlines and the learned Counsel for the Airport Authority have submitted that the multiplier of 9 years is very much on the higher side as the deceased was already 56 years old at the time of the accident.
On the other hand, the learned Counsel for the original plaintiffs has supported the judgment of the trial Court.
ASSESSMENT OF INCOME/PROSPECTIVE INCOME
102. Since the trial Court assessed the income of the deceased at Rs. 1 lakh on the basis of the Income Tax returns and certificates of deductions of tax at source, the same is confirmed.
103. The learned advocate for the plaintiffs has submitted that while determining the datum figure of income for computing the decision for loss of dependency benefit, the Court is required to consider not only the income which the deceased was earning on the date of the accident, but the Court is also required to ascertain what would have been the future income of the deceased had he not lost his life in the accident in question.
104. The principles for this determination are now settled by the Apex Court in
24. In
In view of the above decision, having regard to the fact that the deceased was aged 56 years on the date of the accident, no addition is to be made.
DEDUCTION FOR LIVING & PERSONAL EXPENSES OF DECEASED
105. Regarding the deduction to the made for living and personal expenses of the deceased, in
30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in
106. We, therefore, find some substance in the submission made on behalf of the defendants that looking to the number of dependants (widow and two sons) one-third amount is required to be deducted towards personal expenses of the deceased and not one-fourth amount as done by the trial Court. Accordingly the loss of dependency benefit would be Rs. 67,000/- per annum.
SELECTION OF MULTIPLIER
107. Coming to selection of multiplier, in Sarla Verma''s case (supra) after considering leading decisions on the subject, the Apex Court has prepared a table for determining the multiplier and has laid down the following principles in para 42 of the judgment:
42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
Since the deceased was aged 56 years on the date of the accident, the multiplier of 9 is to be adopted. Accordingly, the compensation for loss of dependency benefit works out to Rs. 67,000 x 9 years = Rs. 6,03,000/-.
COMPENSATION UNDER CONVENTIONAL HEADS
108. Now we may consider the compensation to be awarded for pain, shock and suffering to the plaintiffs, compensation for loss of expectation of life of the deceased and compensation for loss of consortium to the widow of the deceased.
109. It is submitted by the learned Counsel for the Airport Authority and the Indian Airlines that the trial Court erred in awarding compensation towards pain, shock and suffering undergone by the plaintiffs at the rate of Rs. 1,00,000/- and again another Rs. 1,00,000/- for loss of consortium. It is submitted that the amount of Rs. 1,00,000/- could not have been awarded for pain, shock and suffering undergone by the plaintiffs because the deceased had died instantaneous death and the plaintiffs were not present at the place and time of accident. The plaintiffs are not entitled to receive any amount other than the conventional amount known as compensation for loss to the estate whether it be called compensation for loss of expectation of life or compensation for whatever pain, shock and suffering the deceased might have undergone just before the death. Relying on the decision of this Court in
110. On the other hand, the learned Counsel for the original plaintiffs submitted that the awards rendered under Motor Vehicles Act cannot be treated as a guide for awarding compensation to the relatives of the deceased who die in air crash. It is submitted that apart from the fact that the fares for travelling in motor vehicles are much lower than the fares for travelling in the air crafts belonging to a Corporation the rarity of an air crash and, therefore, the unexpectedness of the shocking event ought also to be considered while determining the amounts of compensation under the conventional heads.
111. While there is some substance in the submissions made by the learned Counsel for the Airport Authority and the Indian Airlines that the relatives of the deceased are ordinarily not entitled to get compensation only on account of pain, shock and suffering undergone by them upon hearing the news of the death of their relative, in the facts of the instant case, the trial Court has noted that the relatives of the deceased had to go to the hospital to identify and take custody of the dead body of the deceased and they found dead bodies in burnt and mutilated condition. Hence, pain, shock and suffering undergone by the plaintiffs was not a remote damage, but directly related to the accident caused by the negligence on the part of the concerned defendants. In our view, therefore, the plaintiffs are entitled to get compensation for pain, shock and suffering undergone by them. In our view, the compensation under this head should be Rs. 50,000/-.
112. As regards compensation under the conventional head of loss to the estate, the deceased has to be treated as having survived at least for a few moments after the accident and, therefore, the compensation for the pain, shock and suffering undergone by the deceased immediately upon the accident must also be quantified at Rs. 50,000/- It is true that in
113. Coming to the question of compensation for loss of consortium, the widow is entitled to receive such compensation. In our view, it would be reasonable to award compensation under this head at Rs. 50,000/-.
114. In view of the above discussion, the plaintiffs are entitled to recover compensation jointly and severally from the Indian Airlines Corporation and the Airport Authority under the following heads:
1 For Loss of dependency benefit Rs. 6,03,000/-
2 For Pain, shock and suffering
under gone by the plaintiffs Rs. 50,000/-
3 For Loss of expectation of life Rs. 50,000/-
4 For Loss of consortium to the widow Rs. 50,000/-
TOTAL Rs. 7,53,000/-
RATE OF INTEREST
115. Coming to the rate of interest, the trial Court has awarded interest at the rate of 6% per annum. The plaintiffs have claimed interest at the rate of 15% per annum and at the time of hearing, the learned Counsel for the plaintiffs submitted that the interest may be awarded at the rate of 12% per annum. It is submitted that looking to the fact that the accident took place on 19.10.1988 and the suits were filed in the years 1989 and 1990, and considering the fact that the plaintiffs have not received a substantial portion of the compensation even though awarded by the trial Court in March 2004, the plaintiffs have been deprived of their legitimate compensation amount for the last about 20 years.
116. On the other hand, it was submitted on behalf of the Indian Airlines and the Airport Authority that the trial Court has rightly awarded the interest at the rate of 6% per annum. It was also submitted that the plaintiffs are getting the compensation amount in lumpsum by adding accelerated one time payment which they would have otherwise received over a period of time by way of dependency benefit from the deceased passenger, had he not died in the accident.
117. Having heard the learned Counsel for the parties, while it is true that the plaintiffs would be getting the entire amount of compensation in one lumpsum, it cannot be overlooked that the accident took place in October 1988 and the suits were filed in the years 1989 and 1990, since most of the deceased passengers were in the age group of 30 to 55 years, the multiplier of 11 to 17 years is adopted, but the plaintiffs who lost their sole bread winners did not get any compensation for 21 years after the accident and 20 years after filing of the suits. The following table, in respect of amount deposited with a nationalized bank for a period of 20 years compares different rates of simple interest with the corresponding Bank rate of interest (compounded on quarterly basis):
Simple rate of Effective Bank rate
interest of interest for
20 year period
6 3.95
7 4.40
8 4.80
9 5.20
10 5.50
11 5.85
12 6.16
We may also refer to varying rates of Bank interest on deposits in savings A/c. and fixed deposits :
Bank Interest on Bank Interest
Savings Account on Fixed Deposits
Period
for
1 to 2 years for 5%
1982 to 1991
8 to 9%
9 to 10%
10 to 13%
2 to 3 years for 5 to 6%
1992 to 1994
10 to 12%
10 to 13%
11 to 13%
3 to 5 years 4.5%
1995 to June 1997
10 to 12 %
10 to 13%
11 to 13%
4.5%
July 1997 to March 2000
8%
8.5 to 10.5%
9.5 to 10.5%
4%
April 2000 to March 2004
6 to 8%
6 to 9%
6 to 9%
3.5%
April 2004 onwards
5.25 to 7%
5.5 to 8%
5.5 to 9%
Referring to both the tables above at a time, it will be apparent that for awarding the lowest possible rate of bank interest on fixed deposit for one year, the lowest in the last 27 years (5.25% p.a.), we must award simple interest at least at 9% per annum.
Having regard to the aforesaid peculiar features of this case and the fact that even out of the compensation awarded by the trial Court, only 30% amount was deposited by the Airport Authority and the remaining amount was not deposited by the Indian Airlines, and having regard to the falling value of money and varying rates of interest on fixed deposits as well as in the savings bank account over the entire period from October 1988 till October 2009, we are of the view that awarding simple interest at any rate lower than 9% per annum for the period from the date of filing of the suit in the years 1989/1990 till the date of deposit in November/December 2009 would be travesty of justice.
COSTS
118. Since the trial Court decreed the suit in favour the plaintiffs, the plaintiffs are entitled to get the costs of the suit at least in proportion to the decree passed in their favour. Even as regards the costs of these appeals, since the decree passed in favour of the plaintiffs is substantially maintained, the plaintiffs are entitled to get costs of the appeals filed by the Indian Airlines and by the Airport Authority. Ordinarily we would have directed that the plaintiffs be also paid costs in the appeals of the defendants. But looking to the fact that the accident took place 21 years ago and the plaintiffs have not received a substantial part even of the compensation which was awarded by the trial Court five years ago and the Registry would require quite some time to prepare the decrees in more than 100 appeals and which would also result into delay on the part of the Indian Airlines and the Airport Authority in depositing the amounts awarded to the plaintiffs as per this judgment, we are of the view that the interests of justice would be served if the plaintiffs are awarded costs of the suit as well as the costs of these appeals by directing that the plaintiffs be awarded costs of the suit in their entirety (maximum court fee stamp on the plaint in those days was Rs. 15,000/- irrespective of the claim) and not merely in proportion to the extent of their success before the trial Court or in proportion to the extent of modification being made by this judgment to the quantification of compensation made by the trial Court. In other words, the costs to be awarded to the plaintiffs for the suit as well as the costs for these appeals to be paid to the plaintiffs shall be their full costs in the suit as quantified in the decree already prepared by the trial Court, without reducing the amount of costs on the basis of their non-success before the trial Court in terms of the amount not decreed.
The defendants shall bear their costs of the suit as well as of these appeals.
FINAL ORDER
119. The plaintiffs are entitled to recover jointly and severally from the National Aviation of Company India Ltd. ("the Airlines" for short) and the Airport Authority of India compensation of Rs. 7,53,000/- (Rupees Seven lacs fifty three thousand only) with interest at the rate of 9% per annum from the date of filing the suit till the date of deposit/payment. The plaintiffs are also entitled to recover their costs as already determined in the decree of the trial Court in one set, as explained in the preceding para.
The defendants shall bear their own costs of the suit as well as of these appeals.
120. The Indian Airlines Corporation (now the National Aviation Company of India Ltd.) and the Airport Authority of India are held jointly and severally liable to pay the aforesaid amount of compensation with interest and costs.
121. The amount of Rs. 2,00,000/- paid by the Indian Airline Corporation to the plaintiffs as well as the amount deposited by the Airport Authority before the trial Court in compliance with the decree of the trial Court giving rise to these appeals shall be adjusted against the amount payable under this judgment.
122. After adjustment of the aforesaid amounts, the balance amount shall be deposited by the National Aviation Company of India Ltd. (formerly Indian Airlines Corporation) and the Airport Authority of India Ltd. before the City Civil Court at Ahmedabad by 31st December, 2009.
123. In the facts and circumstances of the case, the apportionment made by the trial Court in favour of the plaintiffs is not disturbed. However, in case the apportionment made by the trial Court is required to be varied on account of any intervening events or for any other reason, the plaintiffs or anyone of them will be at liberty to move the trial Court for any modification or variation.
124. The appeals are accordingly disposed of in the above terms.
At this stage, Ms Minoo Shah, learned advocate for the Indian Airlines, now National Aviation Company of India Ltd. prays that operation of this judgment and order may be stayed for three months to enable the Company to have further recourse in accordance with law.
Since we have already granted time to National Aviation Company of India Ltd. (formerly Indian Airlines Corporation) and the Airport Authority of India Ltd. to deposit the compensation amounts with interest and costs by 31st December, 2009, the prayer is rejected.
