Facts
- 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 −
- The widow of the deceased, Sunil Baran Chowdhury
- His minor son
- His minor daughter
The defendant in this suit is Indian Airlines Corporation.
Law Points
Arguments put forward by the plaintiff
- On this ground the defendant is liable for damages for breach of contract for not safely carrying the passengers on board and for breach of 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 −
- 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.
The defendant, Indian Airlines Corporation relied on the exemption clause’s T&Cs of the air ticket dated 11.12.1953 issued by deceased
- The corporation would not be liable to the
passengers or his or her legal representatives or dependant for death, injury or delay to the passenger or to his property.
- The defendant denied the allegations of misconduct, negligence, defective supervision or check up
- 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. res ipso loquitor − The things speak for itself
- the principle that the mere occurrence of some types of accident is sufficient to imply negligence.
Judgement
- The learned trial 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 Verdict 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.
