In Calcutta High Court
AIR 1965 Cal 252
Indian Airlines Corporation
Sm. Madhuri Chowdhury & Ors.
Date of Judgement
27 May, 1964
P Mukharji, S Masud
Facts of the case
The suit was instituted on or about the 10th of December, 1954. The suit arises from a deadly and tragic air crash that took place in Nagpur on the 12th December, 1953 around 3:25 a.m. when a Dakota aeroplane VT-CHF crashed when it started to fly towards Madras. The route of the plane was Nagpur to Madras. All the passengers and the crew members died in this air crash and only the pilot, Desmond Arthur James Cartner remained alive.
On the same aircraft a young business man of about 28 years of age, Sunil Baran Chowdhury was enroute to Nagpur from Calcutta. There are three plaintiffs in this case –
1. The widow of the deceased, Sunil Baran Chowdhury
2. His minor son
3. His minor daughter
The defendant in this suit is Indian Airlines Corporation. The case had an elaborative trial and numerous witnesses were examined and a large number of documents were placed as evidence.
Arguments put forward by the plaintiff
The plaintiffs contended that they are the legal heirs and representatives of the deceased, Mr. Sunil Baran Chowdhury. The plaintiffs plead that the incident happened when the said plane attempted to land about two miles from the end of the Nagpur Airport, but couldn’t do so due to an engine failure. On this ground the defendant is liable for damages for breach of contract for not safely carrying the passengers on board and for breach oof duties under the Carriage by Air Act and/or of the notification thereunder. An alternative plea in the plaint also states that the defendant was liable for negligence and/or misconduct. The particulars of negligence was also specified in the plaint in the following words –
1. The port engine of the plane lost power after getting air-borne causing a swing and that it was due to defective supervision and check up.
2. That the swing corrected itself when the port engine revived again.
3. In spite of failure of the port engine and/or correction thereof, the Captain and/or Pilots in charge did not follow the ordinary and usual procedure under such circumstances, namely, did not throttle back the engine and land straight ahead though there was sufficient length of runway available in front, to land and pull up even with the wheels down and certainly with the wheels up.
4. Even though the engine revived, the fact that the gear was down was overlooked by both the pilots.
5. A false starboard engine fire warning precipitated the attempt at forced landing obviously on account of defective supervision and check up.
6. The lack of sufficient intensive checks for emergency procedures during the past twelve months preceding the accident which it is alleged, if carried out, might have given the pilot confidence, apart from practice enabling him to deal coolly with an emergency of this nature.
The plaintiffs on the aforementioned grounds claimed damages. The basis for pleading for damages was that the deceased belonged to a long-lived family and lost the normal expectations of leading a happy life and that he was a popular businessperson in Calcutta. His average earnings were Rs/-60,000 a year. The plaintiffs further pleaded that the deceased had a great future ahead and they were depended on him, and hence, they lost means for support and living. It was claimed that the estate of the deceased had suffered lose and damage, which were assessed at Rs/- 20,00,000. In addition to this the plaintiffs claimed that the deceased Sunil Baran had Rs/-5000 along with him on the plane which was also lost due to the accident.
Witnesses on behalf of the plaintiff-
1. Madhuri Chowdhury (the widow).
2. Anil Behary Bhaduri (Secretary of Chand Bali Steamer Service Co.). The place where the deceased was employed.
3. Saraj Kumar Pal, an employee in the firm of Messrs.
4. C. Das Gupta and Co., and Chartered Accountants of Chand Bali Steamer Service Co., who produced certain balance sheets of the Company.
5. R.N. Banerjee, Barrister at Law and liquidator of Chand Bali Steamer Service and Co.
Arguments put forward by the defendant
The defendant, Indian Airlines Corporation relied on the exemption clause’s T&Cs of the air ticket dated 11.12.1953 issued by deceased. In simple words, the exemption clause stated that the corporation would not be liable to the passengers or his or her legal representatives or dependants for death, injury or delay to the passenger or to his property. It was further pleaded, that the deceased Sunil Baran knew the said T&Cs and the defendant denied the existence of the any contract or that it committed any breach of contract or that the Carriage by Air Act applied or that it had committed any breach of duty as alleged or at all. The defendant denied the allegations of misconduct, negligence, defective supervision or check up. It further denied that in ease of immediate revival of the engine the usual or ordinary process was to throttle back the engine and to land up straight ahead as alleged. It denied that the Pilot in charge should have attempted to land straight. The defendant also pleaded that in any event that there was an error in judgement for which the pilot cannot be held liable and that the pilot was a skilled and competent expert and acted bona fide reasonably in good faith. The defendant pleaded that the Aircraft was regularly maintained and the crew had valid licenses and were qualified enough to take the flight. The all-up weight did not exceed the authorised take-off weight, and reasonable precautions and examination of the plane was also done before the take-off. The defendant denied all the liability to pay damages.
Witnesses on behalf of the defendant
1. Captain Cartner, the only person who was alive and therefore the most important witness on behalf of the defendant Corporation.
2. Johnson Berry, also a pilot flying the Indian Airlines Corporation.
3. Herber Vivian Dequadros, General Manager and Chief Engineer of Jamair Co. Private Limited.
4. Basanta Kumar Bajpai, assistant aerodrome officer under the civil aviation. .department, Director-general of Civil Aviation, Union of India.
5. Sooda Nathan Lokanath, the Station engineer at Nagpur.
6. Kritanta Bhusan Gupta, from Traffic Department of the defendant.
7. Chattubhai Shomnath Gajjar, Station engineer in Bombay employed by Deccan Airways.
8. B. Patel, pilot in the defendant corporation.
9. Kaparaju Gangaraju, Deputy Chief Engineer in charge of Hyderabad station
10. R.D Suja, in-charge of loading and/or unloading the aircraft at Nagpur and who spoke of the list of passengers on board the Madras bound plane.
11. Rama Rao Prahlad Rao Huilgal, Area Manager of the defendant Corporation at Delhi
12. K. Rao, Aircraft maintenance engineer of the defendant corporation.
13. B. Bayas, Controller of aero-nautical inspection at New Delhi.
14. N. Banerjee, traffic assistant of Airways India Ltd.
15. V. Rai, inspector of the defendant corporation
16. V. Probhu, Inspector on duty at Begumpet.
The learned judge held that the exemption clause was illegal, invalid, erroneous and void. The learned judge relied on the case Secy. of State v. Mt. Rukhminibai (AIR 1937 Nagpur 354) to decide on this point. It also held Captain Cartner negligent.
The court also held that the obligation imposed by law on common carriage is not founded upon a contract, but on the exercise of public employment for reward, because the Indian Contract Act itself has no application.
The Bench upheld the exemption clause mentioned in the ticket of the deceased and came to a conclusion that the contract did not offend against the provisions of the Contract Act and that it gave complete immunity to the defendant from loss or damage consigned to its care for carriage.
The Bench observed that if the deceased had by a contract during his lifetime excluded himself from the right of claiming a damage, then his dependants or beneficiaries under the Act could not claim it.
The learned trial judge held that the exemption clause in the contract was good and valid and has a complete bar to the plaintiffs’ right of action in the present case.
The Bench held that the maxim of ‘res ipso loquitor’ may or may not apply to air accidents because it solely depends upon the facts of each accident. They also held that it is a rule of evidence bearing primarily on the question of onus.
The Bench assumed everything against Captain Cartner that his action was at all actionable negligence and they held that it was at best only an error of judgement, by applying all the principles and facts of the case.
The learned trial judge awarded damages on two conditions. He awarded a lump sum of INR 1,50,000 to the three plaintiffs which was ought to be divided equally between them. He also awarded a decree of INR 5000 which was said to be the value in cash and kind with the passenger who died.
The appeal was allowed. The suit was dismissed and the exemption clause was held good, valid and legal and there was no negligence of the defendant Corporation or of the pilot, Captain Cartner.
Edited by Chiranjeeb Prateek Mohanty
Approved & Published – Sakshi Raje