ORDER
1. The original petitioner was the wife of one Jagamohan Toshniwal, who died in an Air trash of Airbus A-320 bearing Registration VT-EPN, owned and operated by the 2nd respondent on 14th February, 1990, when 92 persons died. The petitioner made a claim for payment of compensation in respect of the death of her husband in the said accident and was offered compensation in a sum of Rs. 5,01,000/- after executing an indemnity bond as too Annexure-A and passing a receipt as part of Annexure-A. She addressed a letter as per Annexure-B stating that the offer of compensation in a sum of Rs. 5,01,000/- is to meagre when compared to the actual loss suffered by her and other members of her family due to untimely death of her husband. She alleged that the accident leading to the death of her husband occurred on account of total negligence on the part of the staff and due to the manufacturing defect in the aircraft. She stated that her husband was the sole bread winner of the family and died at a comparatively young age and was thus deprived their only source of income. During his life time, it is stated, he was earning substantial sums of money and was providing them a very comfortable life and the offer made now is neither fair nor realistic. She also stated that she and other members of the family decided not to accept the offer made by them as the same is conditional and binding them against all legitimate future claim. A reply was sent by Advocates, Solicitors of the Indian Airlines Corporation stating that under the law in all cases of domestic carriage, the amount of compensation is in a fixed sum and does not depend upon the actual loss claimed to have been suffered. In the circumstances the 2nd respondent would have no option but to make payment of fixed sum of Rs. 5,00,000/- for loss of life and Rs. 1,000/- for the loss of baggage. Thereafter a writ petition is presented before this Court claiming for a declaration that the action of the 2nd respondent requiring the petitioners to receive a sum of Rs. 5,01,000/- in full and final satisfaction and in extinguishments of all rights and claims is ultra vires the Carriage by Air Act, 1972 and the notifications issued therein and for a declaration that Sections 5 and 8 of the Act and the notifications dated 30th March, 1973 and 5th July, 1980 as also Rule 22 of Schedule II of the Carriage by Air Act, 1972 are void and unenforceable, in so far as they permit imposition of conditions as to settlement of claims by payment of compensation not in excess of Rs. 5,00,000/-and for certain other incidental reliefs.
2. Pursuant to an interim order made by this Court a sum of Rs. 2,00,000/- was deposited in this Court in modification of the order made on 13.6.1991 and the said amount was allowed to be withdrawn by the petitioner and another sum of Rs. 2,00,000/- was returned to the 2nd respondent and a petition had been presented before the National Consumer Redressal Forum in New Delhi which directed the 2nd respondent to pay a sum of Rs. 5,00,000/- and in those circumstances the order stated above came to be passed.
3. A Convention was held for the unification of certain relies regarding international Carriage by Air signed at Warsaw on 12th October, 1929 and the said Convention was amended by the Hague Protocol on 28th September, 1955 and to make provisions for applying the rules contained in the said Convention to which India was also a signatory in its original form and in the amended form to non-international Carriage by Air and for matters connected thereto, the Carriage by Air Act, 1972, was enacted. The said Act did not apply of its own force to internal carriage of persons, luggage or goods. However, under Section 4 of the Act, the Central Government is authorised to issue notification applying the rules in the First Schedule to the Act to internal carriage by Air. By a notification issued on 30th March, 1973, Government of India issued a notification in exercise of the powers conferred under Section 8(2). By Section 8 of the Act, the Central Government may by notification in the Official Gazette apply the rules contained in the First Schedule and any provision of Section 3 or Section 5'or Section 6 to such carriage by air, not being international carriage by air as defined in the first schedule, subject, however, to such exceptions, adoptions and modifications as may be specified. Under Section 3(2) thereof Central Government is authorised, by notification to apply rules contained in the Second Schedule and any provision of Section 4 or Section 5 or Section 6 to such carriage by air as defined in the Second Schedule as may be specified in the notifications subject however to such exceptions, adaptations and modifications, if any, as may be so specified. In exercise of the said power under Section 8(2) of the Act and in Supersession of the earlier notification dated 17th December, 1963 except in respect of things done, or omitted to be done, the Central Government directs that with effect from 11th April, 1973, Sections 4,5 and 6 of the Act and Rules contained in the Second Schedule to the Act shall apply to all carriage by air not being international carriage by air as defined in the Second Schedule irrespective of the nationality of the aircraft performing the carriage, subject to the exceptions mentioned in the notification. The liability of the Carrier is referred to in Chapter III thereof. Under Rule 17 it is stated the carrier is liable for damage sustained in the event of 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 of the aircraft or in the course of any of the operations of embarking or disembarking. Similarly under Rule 18 the carrier is also liable for damage sustained in identical circumstance, in the event of destruction or loss or damage of any registered baggage or cargo. Rule 21 provides that 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. Rule 22 stated that 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/- (now enhanced to Rs. 5,00,000/- if the passenger is above 12 or more years of age. In the carriage of registered baggage or cargo, the liability of the carrier is limited to a sum of Rs. 125/- per kg. unless there is any declaration of interest in the delivery at the time of delivery at destination and has paid a supplementary sum. Rule 25 provides that 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 such a case act or omission of a servant or agent, is also proved that he was acting within the scope of his employment. Under Rule 26 it is provided that if an 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 is entitled to avail himself of the limits of liability which that carrier himself is entitled to invoke under rule 22. The aggregate of the amounts recoverable from the carrier, his servants and agents, in that case, shall not exceed the said limits. To the said notification an amendment has been issued on 28th June, 1989, a proviso being added to the effect that by special contract, the carrier and passenger may agree to a higher limit of liability.
4. Learned Counsel for the petitioner contended that Section 8(2) of the Carriage by Air Act, 1972 confers an unfettered power on the Central Government to modify the provisions of the Carriage by Air Act in its application to the domestic air carriage and, therefore suffers from the vice of excessive delegation. The learned Counsel for the petitioner relying upon the decisions in Re : Delhi Laws Act AIR 1951 SC 332, Hari Shankar Bagla v. State of M.P. : 1954CriLJ1322 ; Gwalior Rayons Mills v. Assistant Commissioner : [1974]94ITR204(SC) ; Registrar of Cooperative Societies v. Kunjambu : [1980]2SCR260 ; and KSE Board v. Indian Aluminum Co : [1976]1SCR552 contended that the Legislature in conferring power upon another authority to make subordinate legislation must lay down policy, principle or standards for guidance. The Legislature must declare the policy of law and the legal principles which have to control in a given case and must provide the standard to guide the officials or the body in exercise of the power to execute the law. It is contended that Section 8(2) of the Act contains no legal principle or standard to guide the officials in the execution of the law. He therefore submitted that the provisions suffer from the vice of excessive delegation. In reply it was submitted that the Parliament has been authorised to modify the provisions mentioned in the Act in its delegation, that there is vast difference in the conditions and circumstances arising in connection with international and domestic carriage by air. It is pointed out that the policy can be spelt out from the various provisions of the enactment itself, its intentment and application. In the present case the modification has been made or to be effected only for the purpose of rendering liable the air carrier towards passengers, baggage or goods in connection with the internal or domestic flights. The only area where modification has been applied is in fixing the amount of sum payable and not in any other manner. Thereby what was intended to be done was only application of the aforesaid provisions to the situation arising for consideration. The provisions do not make any alternations or modification which affects the covenants on the matter as to the liabilities arising under the provisions of Schedule II to the Act except that it is made applicable to the domestic Airways. In what manner and which modification that has been made affected the petitioner is not spelt out. Therefore we do not think the petitioner has been able to establish that the aforesaid provisions are in any way ultra vires or amount to excessive delegation which is essentially a legislative power.
5. It was next contended that fixing different liabilities for domestic air travel and international air travel is major modification of the Act and is ultra vires the provisions thereof. It is contended that the enactment itself emerged as a result of the Hague Protocol and therefore should not treat national carrier different from an international carrier and should put on par with international computation and the enactment should ensure that Air passengers will get a higher level of compensation. The essential feature of the Act was to ensure the Air passenger higher level of compensation and therefore the modification amounts to modification of essential features which can only be made by Legislature and therefore is unconstitutional. To support this proposition reliance is placed on the decision in Raj Narain Singh v. Chairman P.A. Committee : [1955]1SCR290 . The fact that there are two classes of Air travel, domestic and international, is taken note of by the Legislature, is indisputable. When there is recognition of distinction in the air travel as domestic and international, provision is made under Section 8 to apply the said provisions which are applicable to international carriage to. domestic carriage with modification. It obviously means it was the intention of the Legislature to apply different standards. What those different standards could be, will depend upon the facts and circumstances of each case. In a case where domestic travel is involved details will have to be worked out and in respect of those details, adaptations and modifications could be made and that legislative intent is very clear. Therefore if in application of those principles different rates are prescribed for fixing the compensation payable in case of death or injury or loss of baggage as a result of an accident such a provision cannot be attacked as resulting in excessive delegation nor it can be contended that the same is ultra vires the provisions.
6. It is next contended that Rule 22 of Schedule II of the Act in its applicability to domestic air carriage is ultra vires of Articles 14 and 21 of the Constitution and violates the equality. It is contended that the differentiation between domestic and international Air passengers bears no relation to the object of the Act. The class for which the Act caters to is the 'Air passenger' and therefore the classification is not based on any rational criteria. Their rights and liabilities towards an international passenger and a domestic air passenger being substantially same, the classification of them into two different groups is opposed to Article 14. The only difference between domestic and international passenger is one of destination. But so far as risk is concerned that it is identical. A cheaper air ticket does not necessarily mean that the cost of life could be quantified at a lower rate and therefore it is contended that the classification is not based on any intelligible differentia.
7. In order to appreciate this contention it is necessary to refer to the background in which the Warsaw Convention, 1929 was held as amended by Hague Protocol, 1955. Prior to coming into force of the Warsaw Convention there, were no uniform rules of law governing the carriage of passengers or cargo in' international air transport and the liability of the carriers is governed by general law of carriage. Different legal systems approached particular situations in different ways. It led to uncertainty as to the substantive law applicable in different countries and difficulty arose as to choice of law applicable in case of conflict of laws. It was therefore felt that it was desirable for an uniform state of legal law with the force of international law to be created. Thereby the convention eliminated many of the knotty problems which would otherwise arise. On the liability area the principal feature is that the convention is reversal of burden of proof. A carrier's liability under the general law is based on negligence with the burden of proof on the plaintiff. Under the convention it remained a fault-based liability, but fault would be assumed on proof of damage, does not have to be established by the plaintiff. In order to achieve a balance there was reversal of burden of proof, that the liability of the carrier in terms of the damages to be awarded being limited. That made the claim very easy to settle and the Act plainly gave effect to this provision of the convention. So far as the liability for domestic carriage is concerned it was originally fixed at Rs. 1,00,000/- in 1973. The limit was raised to Rs. 2,00,000/- in 1980 and from 28.2.1989 the limit has been raised to Rs. 5,00,000/-. Thus increase in the value has been fixed based on the devaluation in the rupee. While applying the provisions of the convention to carriage which is not international, the statute has held the limit set out in the convention itself and, therefore it cannot be contended that there is no rational principle or basis. The only modification that had been introduced in the schemes of Warsaw Convention while applying it to domestic carriage is that the upper limit of liability prescribed in the convention has been converted into fixed amount thereby eliminating the carrier paying a lower base of computation of damages suffered. But that variation would not lead to disadvantage to any claim. On the other hand it is to the advantage of the claims being settled in regard to the damage suffered. The limits of liability have been raised from time to time bearing in mind that value of the rupee. Therefore, we cannot say that the authorities have adopted any irrational classification between domestic air passengers and international air passengers and in law no absolute uniformity or equality can be brought about.
8. We shall next take up the contention based on Article 21. It is contended, that life has the same value whether domestic or international passenger. But this argument will not hold water, because the liabilities arising under the provisions are arrived at after good-deal of deliberations and consideration limit has been agreed to as to the damages to be payable has been accepted and that limitation as applicable in international law will apply to the domestic carriage as well, but the amount payable is limited. That amount has undergone modification from time to time depending upon the value of the rupee in the international market. If that aspect is borne in mind, we do not think there is any justification to hold that there is any intention in law to make distinction between those flying in the international air carriage or domestic carriage and make discrimination on that basis. The decisions relied upon in Kharak Singh v. State of U.P. : 1963CriLJ329 or in Olga Tellis v. Bombay Municipality : AIR1986SC180 , do not have any bearing on the issues arising in the case. The value of life does not depend upon the amount of compensation that is paid and more often than not monetary compensation can never be equivalent to life. However in order to relieve the dependents of the deceased certain amount of compensation if fixed either by setting out the principles applicable thereto or by statutorily fixing the same, as in the Workmen's Compensation Act in contra-distinction to Motor Vehicles Act. 'When such wisdom is exercised in the Statute itself and a limit is fixed as to the amount of compensation payable to contend that the life is devalued by reason of payment of lower compensation would not be a tenable argument. Compensation is not paid as equivalent of the dead man but to compensate the living for the loss suffered by them and that compensation is sought to be limited by statute or by legal process. Therefore the principles upon which the arguments are put forth before the Court as to the Constitutionality of the provisions or competency thereof, in our view is misconceived and we reject these contentions.
9. An argument is sought to be raised that the petitioner is entitled to just and adequate compensation and in support thereof reliance is placed on Article 300A of the Constitution. Article 300A of the Constitution has absolutely no relevance to the issue on hand. What is required to be decided is not a question where there is any deprivation of any property and an adequate compensation is to be paid thereto. In an involved way an argument was sought to be constructed that entitlement to damages or compensation is monetary interest and thereby amounts to property and such property being deprived of would lead to payment of compensation which should be just compensation. We do not think these arguments have any force or merited on the face of it. Death having resulted as a result of Air crash, the question of protecting life, liberty or property would not arise at all. Therefore we think the arguments constructed on the basis of Article 300A is again plainly misconceived.
10. It is next sought to be contended that the limit of liability under Rule 22 to an extent of Rs. 5,00,000/- so far as death is concerned and Rs. 1,000/- so far as loss of goods are concerned, is on principle of no-fault. It is stated that the minimum limit of compensation payable is Rs. 5,00,000/- and therefore it is contended that it is permissible to claim a higher compensation and the minimum compensation payable is Rs. 5,00,000/- irrespective whether there is negligence on the part of the carrier or not. The learned Counsel for the petitioner drew our attention to the state of law in England and U.S.A. to state that carrier however may not avail himself of the limitation of liability it is proved that the damages resulted on the act or omission of the carriage, his servants or agents. It is also contended that the common carrier by air cannot compel a passenger to release or limit the carrier's liability for its own negligence. In this context learned Counsel submitted that this is a fit case for higher compensation as acts and omissions on the part of the carrier stand clearly established by the report made by Justice Shivashankar Bhat, Commission of Inquiry. He adverts to the fact that (i) that the plane was not in the speed mode but in the incorrect idle open descent mode, (ii) the pilots failed to convert the idle open descent mode to the speed mode even when they saw the plane was already in a crucial face of landing; (iii)that there was complacency in the functioning of the pilots and insufficiency of the pilot training; (iv) the display system did not mislead the pilots; (v) that wrong understanding of the system indicated inadequate training. It was also stated that the pilot was incompetent and did not know how to operate the system fully. The use of Alpha Floor system was not known to the pilot. The Idle Open Descent mode was not the proper mode of landing. The pilots did not realise that they were in the wrong mode due to insufficient training. This aspect should not detain us very long, because, Part-IX, Volume III of the report discusses the probable causes of the accident. The learned Judge sums up the position as follows:
Probable cause of the Accident-Failure of the pilots to realise the gravity of the situation and respond immediately towards proper action of moving the throttles, even after the Radio altitude call-outs of 'Four Hundred', 'Three Hundred' and 'Two Hundred' feet, inspite of knowing that the plane was in idle/open descent mode. However, identification of the cause for the engagement of idle/open descent mode on short final approach during the crucial period of the flight is not possible.
Under Article 25 of the Warsaw Convention, a plaintiff is not freed from limitation on the amount of damages imposed by Article 22, unless he proves that, (i) the damage suffered by him resulted from an act or omission of defendant's carrier; (ii), 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 recklessly of the probability; and (iii) that the damage complained of was of the kind of the damage known to be probable result of the act or omission. If the pilot did not know that the damage would probably result in omission, it is difficult for us to see that how we can attribute to him knowledge which the polite might have possessed which he himself should have possessed. In order to make a claim that it is only in the nature of no-fault liability, we have to advert to the language of Article 22 that the damage resulted from the act or omission of the carrier, his servant or agents done with intent to cause damage recklessly or with the knowledge that the damage would probably result. Therefore the petitioner has to establish that the injury resulted from the act or omission done recklessly with the knowledge that damage would probably result. The provisions show that the limit to compensation is to be a normal liability and that only in exceptionally clear case set out in Article 22 is to avoid the limit and that is how the expression recklessly or with knowledge that damage would probably result, has to be construed or understood. The test is not of ordinary negligence. If Article 22 read with Article 25 involves proof of actual knowledge in the mind of the person at the moment at which the omission occurs and that omission is taking place and that it does involve probable damage of the sort contemplated in the article. For this view we derive support from the decision of the Court of Appeal in Golden v. Thai Airways International Ltd. (1983) 3 All England Report 693. To the identical effect is the decision in Aviation Reports (1S and B Av R) page 73. Again the scope of identical provisions were explained in the same manner as had been done in Goldman v. Thai Airways International Ltd. To the same effect are the several decisions cited by the learned Counsel. In the context of the provisions arising for consideration to which we have made elaborate reference and on the interpretation to be placed on the same, as we have discussed above would clearly indicate that the limit of liability is not in the nature of no fault liability.
11. However Mr. Naik, learned Counsel for the petitioner contended that even on fair basis the value could be ascertained with reference to the word 'fixed' under relevant notification issued by the Government under Section 8(2) of the Act, still the same is invalid inasmuch as the law does not take note of the present value of the rupee. We have already adverted to this aspect of the matter and stated that from time to time there has been revision in the amount of compensation paid while it started from Rs. 1,20,000/- to present value is fixed at Rs. 5,00,000/-. Possibly what had been fixed in the year 1989 may need revision now. But that is no reason to hold the provisions and the notification issued to be ultra vires the Act. In that view of the matter, we find there is not merit in this petition. Petition is, therefore, dismissed.