Indian Airlines Corporation V Madhuri Chowdhuri AIR 1965 Cal 252 Case Analysis

हिंदी में पढ़ने के लिए यहां क्लिक करें

Case Summary

Full Case Details

P.B. MUKHARJI, J. – 2. The suit arises out of an unfortunate and tragic air crash at Nagpur when a Dakota air plane VT-CHF crashed soon after it started flying from Nagpur to Madras. All the passengers and the crew were killed and the only person who escaped with severe injuries and burns was the Pilot, Desmond Arthur James Cartner. This accident took place on the 12th December, 1953 at about 3-25 a.m.

3. In that Aircraft travelled one Sunil Baran Chowdhury, a young man of about 28 years of age, a business man from Calcutta, who had flown from Calcutta to Nagpur and was taking his journey in that ill-fated Aircraft from Nagpur to Madras at the time of the accident. The plaintiffs in this suit are (1) the widow of the deceased Sunil Baran Chowdhury, (2) his minor son, and (3) his minor daughter. The widow as the mother of the minors acted as the next friend in the plaint. The Indian Airlines Corporation is the defendant in this suit. This suit was instituted on or about the 10th December, 1954, just before the expiry of one year from the date of the accident.

4. The plaint states that the plaintiffs are the heirs and legal representatives of the deceased Sunil Baran Chowdhury and that the action is brought for their benefit. Sunil Baran was a passenger by Air from Calcutta to Madras via Nagpur in the Aircraft of the defendant Corporation and had duly purchased the ticket. The ticket had certain terms and conditions which will be relevant later on. It is pleaded in the plaint that as a result of the accident Sunil Baran was killed. In the particulars of the accident given in the plaint it is said that the accident took place on the 12th December, 1953 at 3-25 a.m. about two miles from the end of the runway of Sonegaon Airport at Nagpur when the said plane attempted to land owing to engine trouble immediately after it had taken off from the said aerodrome. On that ground it is pleaded that the defendant is liable for damages for breach of contract in not safely carrying the passenger and for breach of duties under the Carriage by Air Act and or of the Notification thereunder. There is an alternative plea in the plaint which alleges that the deceased died of the said accident which was caused by the negligence and/or misconduct of the defendant Corporation or its agents. The plaint pleads specifically the particulars of negligence in the following terms: (a) 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; (b) That the swing corrected itself when the port engine revived again; (c) In spite of failures 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; (d) Even though the engine revived, the fact that the gear was down was overlooked by both the pilots; (e) A false starboard engine fire warning precipitated the attempt at forced landing obviously on account of defective supervision and check up. (f) 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.

5. On these grounds the plaintiffs claimed damages. The basis of the damage pleaded in the plaint is that the deceased belonged to a long-lived family and lost the normal expectation of a happy life at least 65 years and that he was a well known businessman and industrialist in the City of Calcutta and that his average earnings were Rs. 60,000/- a year. It is also pleaded in the plaint that the deceased had a great future and was the support of the plaintiffs and by his death they had lost all means of support and living. It was, therefore, claimed that the estate of the deceased had suffered loss and damage which were assessed at a sum of Rs. 20,00,000/-. In addition the plaintiffs claimed that the said Sunil Baran carried with him Rs. 5000/- in cash and kind which was also lost by reason of that accident.

6. In the written statement the defendant, Indian Airlines Corporation, relies on the terms and conditions of the passenger’s Air Ticket dated the 11th December, 1953 issued by the defendant to the said Sunil Baran Chowdhury. In particular the defendant Corporation relies on the exemption clause as an express term and condition of the said ticket which reads inter alia as follows:
“The carrier shall be under no liability whatsoever to the passenger, his/her heirs, legal representatives or dependants or their respective assigns for death, injury or delay to the passenger or loss, damage, detention or delay to his baggage or personal property arising out of the carriage or any other services or operations the Carrier whether or not caused or occasioned by the act, neglect or negligence or default of the Carrier, or of pilot flying operational or other staff or employees or agent of the Carrier, or otherwise howsoever and the Carrier shall be held indemnified against all claims, suits, actions, proceedings, damages, costs, charges and expenses in respect thereof arising out of or in connection with such carriage or other services or operations of the Carrier.”

7. It is pleaded in the written statement that the deceased Sunil Baran knew all the said terms and conditions of the said ticket and that in any case the defendant Corporation brought to the notice of and/or took all reasonable steps to bring to the notice of the deceased passenger the existence of the said terms and conditions. The defendant denied the existence of any contract other than that mentioned in the ticket 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. In particular the defendant denied the allegations of negligence and misconduct.

8. The defendant Corporation also denied all charges of defective supervision or check up. It denied also that in case of immediate revival of the engine the usual or ordinary procedure was to throttle back the engine and to land straight ahead as alleged. It denied that the Captain or the Pilot in charge could land straight ahead or should have attempted to land straight ahead. It further pleaded in the written statement that the Captain and the pilots in exercise of their judgment decided on spot not to throttle back the engine and to land straight ahead as alleged. The defendant also pleaded that in any event it was at best an error in the judgment or decision of the pilot for which the defendant was not liable and that the pilot was a skilled and competent expert and he had acted bona fide reasonably and in good faith.

9. The defendant also pleaded that the Aircraft held a valid certificate of air worthiness and was regularly maintained in accordance with the approved maintenance Schedules and had the valid certificate of daily inspection, that the crew held valid licenses and were qualified to undertake the flight and had sufficient checks and training, and that the captain had sufficient flying experience on the route. The all-up weight did not exceed the authorised take off weight. The aircraft carried sufficient fuel and oil. The engines were duly run up and tested by the pilots prior to take off and the take off run was normal. Most careful and reasonable examination of the plane was made before flight which did not reveal any defect or possibility of any failure. It also says that no mechanism has been devised whereby failure of engine of the plane could be completely eliminated. This will be found inter alia in paragraph of 11 of the written statement.

10. The defendant denied all liability to pay damages as alleged or at all. The defendant also pleaded that the alleged moveable in cash and kind amounting to Rs. 5000/-, if any, was the personal luggage of the said deceased passenger and it was in the custody and control of the said deceased and not of the defendant Corporation or the pilot and that the defendant and/or its agents or servants did not take charge of or were not in possession or control of the said moveable.

12. For the plaintiffs Sm. Madhuri Chowdhury, the widow, Anil Behary, Bhadhur, Secretary of Chand Bali Steamer Service Co. where the deceased worked, Saraj Kumar Paul, an employee in the firm of Messrs. A.C. Das Gupta and Co., Chartered Accountants, of the said Chand Bali Steamer Service Co. who produced certain balance sheets of the Company and Mr. R.N. Banerjee, Barrister-at- Law ad Liquidator of the said Chand Bali Steamer Service Co. were examined. Incidentally this witness Mr. Banerjee said that he was appointed a Liquidator of this Company, Chand Bali Steamer Service Co. in 1955. The evidence of these witnesses relates to the family status and condition of the deceased passenger and his probable or the then actual earning capacity.

13. On behalf of the defendant Corporation a large number of witnesses gave evidence. In the facts of this accident no one is alive except the pilot, to speak directly about the plane and its accident. Captain Cartner, therefore, is the most important witness on behalf of the defendant Corporation. The next important witness was Johnson Berry. He was also a pilot flying Indian Airlines Corporation Planes. In fact he was the senior Commander who had also been flying Dakotas since 1947. The importance of his evidence lies in the fact that he was present near about the spot when the accident took place. In the early morning of the 12th December, 1953, he was at Nagpur for operating the night airmail from Delhi to Nagpur and from Nagpur to Delhi. He was at that relevant time waiting at Nagpur to take night airmail back to Delhi. He was also in charge of a Dakota. His scheduled time to leave was at 3.20 a.m. This Madras bound aircraft which met with the accident was just in front of him to taxi out. Therefore, he was immediately behind this ill-fated aircraft, the distance between his plane and that plane would be hardly 100 yards. The important of his evidence, therefore, cannot be over-emphasised. Strangely enough neither his name was mentioned nor his evidence discussed by the learned trial Judge.

14. The third witness for the defendant Corporation was Herber Vivian Dequadros who is also an expert, an Engineer and at the time of giving evidence was the General Manager and Chief Engineer of Jamair Co. Private Ltd. a private limited company operating in Calcutta as a non-scheduled operator as a charter company. The next was Basanta Kumar Bajpai, who was the Assistant Aerodrome Officer under the Civil Aviation Department- Director General of Civil Aviation, Union of India. He gave evidence inter alia to prove that Captain Cartner’s license was without any blemish and that he was not only authorised to fly Dakotas but Super Constellation, Constellation and Boeing type of aircraft. Then there was the evidence of Sooda Nathan Lokanath who was the Station Engineer at Nagpur and who was also a witness before the court of enquiry. Other witnesses for the defendant Corporation were Kritanta Bhusan Gupta from the Traffic Department of the defendant Corporation who spoke about the issue of the ticket and its conditions, Chattubhai Shomnath Gajjar also a Station Engineer in Bombay employed by Deccan Airways which previously controlled this line, N. B. Patel who was a pilot in the defendant Corporation, Kaparaju Gangaraju, Deputy Chief Engineer in charge of Hyderabad Station who gave evidence showing that the aircraft in suit came to Bombay on December 11, 1953, from Begumpet, Hyderabad and before it left Begumpet inspection of the aircraft was carried out. H. R .D. Suja who was in charge of loading and/or unloading the aircraft at Nagpur and who spoke inter alia of the list of passengers on board the Madras bound plane.

15. There was also other witnesses for the defendant Corporation like Rama Rao Prahlad Rao Huilga, Area Manager of the defendant Corporation at Delhi who was in the Deccan Airways in 1947 as a Senior Captain, A. K. Rao, Aircraft Maintenance Enginner of the defendant Corporation at Begumpet, Hyderabad, from which the aircraft flew, J.B. Bayas, Controller of aero-nautical inspection, New Delhi who inter alia gave evidence to say that no device has been found out by Science or Technology as yet by which air-locking can be completely excluded; a point which will be material later on when we shall discuss the judgment under appeal, D.N. Benerjee, the Traffic Assistant of Airways India Ltd. who spoke about the notice hung up in front of the Booking office at Mission Row, Calcutta G. V. Rai, Inspector of the defendant Corporation who was at Begumpet in November, 1953 and finally S.V. Probbu who proved some signature and was Inspector on duty at Begumpet.

16. There is large body of documentary evidence including log book entries, load sheet, certificate of inspection reports and sheets, daily reports, daily routine schedules of departure, instruments and electrical routine check sheet, licenses and also the report of the court of enquiry of the accident, apart from many correspondence and newspaper reports.

17. It may be appropriate to mention here that immediately after the accident the Government of India Ministry of Communications, ordered a formal investigation in exercise of the powers conferred by Rule 75 of the Indian Aircraft Rules, 1987. Mr. N. S.Lokur was appointed the Chairman of this court of enquiry assisted by Captain K.Vishwanath of Air India international and Mr. M.G. Pradhan, Deputy Director General of Civil Aviation as assessors in the said investigation. This investigation was ordered on the 16th December, 1953 within four days of the accident. The report of this investigation and enquiry or what is called in this connection this Court of Enquiry was submitted to the Government of India on the 30th December, 1953. This is also marked as an exhibit in this suit and about its admissibility there has been some controversy which fortunately was not pressed in the long run.

18. The learned trial judge held that the exemption clause was illegal, invalid and void and he also held on the facts that Captain Cartner, the pilot, was negligent and therefore, the defendant Corporation as the employer of Captain Cartner was liable in law. On a careful consideration of the learned Judge’s decision on (1) the exemption clause and (2) the negligence of Captain Cartner, we have come to the conclusion that his decision cannot be sustained. We shall presently discuss these two questions which are crucial in this appeal.

19. In addition to these two points the learned Judge has discussed the doctrine of res ipsa loquitur and the applicability of common law in India and relying on his judgment in Sm Mukul Dutta Gupta v. Indian Airlines Corporation [(AIR 1962 Cal. 311)] he came to the conclusion:
“In my judgment, the rules of justice, equity and good conscience applicable to internal carrier by air in India are not rules of common law carrier in England, but rules to be found in Carriage by Air Act, 1934. The Indian legislature has indicated that it should be applied to non international air carriage of course “subject to exception, adaptation and modification.” Although the power to except, adapt or modify was given to the Central Government, yet the learned Judge himself applied them without the Central Government acting in the matter, in the belief that it was open to him to extend that law in that manner. We are unable to accept this view and we are of the opinion that the learned trial judge’s view noticed above is erroneous.

20. The most important question in this appeal is the validity or otherwise of the exemption clause. The learned trial Judge has held the exemption clause to be invalid, illegal and void on that ground that:
(a) it is against section 23 of the Indian Contract Act, although however he has found that the agreement was not bad on the ground of unreasonableness;
(b)this exemption clause cannot deprive the heirs and legal representatives of the deceased because they did not enter into this contract and therefore, such an exemption clause would be unavailing under the Fatal Accident Act under which the present suit for damages has been brought;
(c) this exemption clause is bad on the ground that somehow or other broad principles of the Warsaw Convention should be applied to India not as such but as rules of justice, equity and good conscience which according to the learned Judge this exemption clause violates. In other words, the learned trial Judge appears to take the view that the exemption clause is against the principles of some policy which though not technically applicable in this country is somehow or other against some kind of equity and good conscience and therefore will be regarded as against the public policy.

21. We are satisfied on this point that the learned Judge’s decision that the exemption .
clause is invalid is erroneous. It is against both the principles of law as well as against decided authorities which are binding on us and which have settled the law after a long series of many decisions on the point. The only case on which the learned Judge relied for his decision on this point is Secy. of State v. Mt. Rukbminibai, [AIR 1937 Nag. 354]. What the learned Judge failed to appreciate about that case is that it is not an authority on the exemption clause at all. In fact it does not deal with the validity or otherwise of any exemption clause of this nature or of any exemption clause in a ticket containing these express terms exempting the liability for negligence. This case lays down the proposition that though there is a strong presumption that any rule of English law is in accordance with the principles of justice, equity and good conscience in England, yet the Court in India is entitled to examine the rules in order to find out whether the rules are in accordance with the true principles of equity. Sir Barnes Peacock said in the case Degumburee Dabee v. Eshan Chunder Sein, [9 Suth WB 230] whether the rules were in accordance with the true principles of equity (sic) and that the Courts in India had several occasions, refused to apply a rule of English law on the ground that it was not applicable to Indian society and circumstances. The only question on which these observations were being made by the learned Judges there in the Nagpur case was how far the English doctrine of common employment applied in lndia to cases which in England would have come under the Employers Liability Act. That was the only question. There no question turned up on exemption clause in a contract or as a term or a condition in a ticket for carriage exempting liability for negligence. All these observations, therefore, about common law, equity and good conscience that are to be found there, are only obiter except in so far as they relate to the point of the doctrine of common employment. That was the only point discussed and decided there. We are satisfied that this Nagpur case is no authority for holding that in the instant appeal before us the exemption clause is illegal and invalid.

22. Before discussing the English law it will be appropriate to discuss the binding authorities and decisions so far as this court is concerned. It is laid down clearly and without any ambiguity by the Privy Council as early as 1891 in Irrawaddy Flotilla Co. v. Bugwan Das, [18 IA 121 (PC)] that the obligation imposed by law on common carriage in India is not founded upon contract, but on the exercise of public employment for reward. In fact, that decision of the Privy Council is a clear authority to say that the liability of common carriers in India is not affected by the Indian Contract Act 1872. Therefore, no question of testing the validity of this exemption clause with reference to section 23 of the Indian Contract Act can at all arise. The Contract Act does not profess to be a complete Code dealing with the law relating to contracts and the Privy Council says that it purports to do no more than to define and amend certain parts of the law. Lord Macnaghten, at page 129, put the law beyond any doubt in the following terms:“At the date of the Act of 1872, the law relating to common carriers was partly written, partly unwritten law. The written law is untouched by the Act of 1872. The unwritten law was hardly within the scope of an Act intended to define and amend the law relating to contracts. The obligation imposed by law on common carriers has nothing to do with contract in its origin. It is duty cast upon common carriers by reason of their exercising a public employment for reward. ‘A breach of this duty’ says Dallas, C.J., Bretherton v. Wood, (1821) 8B and B 54 is a breach of the law, and for this breach an action lies founded on the common law which action wants not the aid of contract to support it. If in codifying the law of contract the Legislature had found occasion to deal with tort or with a branch of the law common to both contract and tort, there was all the more reason for making its meaning clear.”

(23) Having regard to this decision of the Privy Council which we consider to be binding on us there is no scope left for further argument that an exemption clause of this kind is hit by any section of the Contract Act, be it S. 23 or any other section, because the Indian Contract Act itself has no application. In fact the subsequent observation of Lord Macnaghten at p. 130 of the report puts the whole position beyond argument and controversy so far as this court is concerned, when His Lordship said:
“The combined effect of sections 6 and 8 of the Act of 1865 (Carriers Act 1865) is that, in respect of property not of the description contained in the Schedule, common carriers may limit their liability by special contract, but not so as to get rid of liability for negligence. On the Appellant’s construction the Act of 1872 (The Indian Contract Act) reduces the liability of common carriers to responsibility for negligence, and consequently there is no longer any room for limitation of liability in that direction. The measure of their liability has been reduced to the minimum permissible by the Act of 1865.”

24. Finally, therefore, Lord Macnaghten observed at p. 131 of the report as follows:
“These considerations lead their Lordships to the conclusion that the Act of 1872, (Indian Contract Act) was not intended to deal with the law relating to common carriers, and notwithstanding the generality of some expressions in the chapter on bailments, they think that common carriers are not within the Act.”

24a. No doubt, it may be essential to point out straightway at this stage that the Carriers Act of 1865 has no application to the facts of this case because that Act deals only with property and that also not in carriage by air.

25. Mr. Dutt Roy, appearing for the plaintiff’s-respondents attempted to distinguish this Privy Council decision by saying that this decision was only concerned with sections 151 and 152 of the Indian Contract Act which deal only with the bailment and therefore, was no authority on S. 23 of the Contract Act. We are unable to accept that distinction because the ratio of the decision of the Privy Council rests on the fact that the whole of the Indian Contract Act as pointed out by Lord Macnaghten did not apply to the law relating to common carriers.

26. A Division Bench of this Court also had occasion to discuss the exemption clause and its validity in an Air Ticket. That will be found in Indian Airlines Corporation v. Keshavlal F. Gandhi [AIR 1962 Cal. 290]. This Division Bench decision is a clear authority for the proposition that the present appellant Indian Airlines Corporation is a common carrier and that the relationship between the parties to the contract of carriage is to be governed by common law of England governing the rights and liabilities of such common carriers. This Division Bench decision proceeds to lay down that the law permits common carriers totally to contract themselves out of liabilities for loss or damage of goods carried as common carriers. Then it comes to the conclusion that parties to the contract bind themselves by the contract and it is not for the court to make a contract for the parties or to go outside the contract. The Division Bench also expressed the view that if the contract offends against the provisions of the Contract Act, e.g. if opposed to public policy, then only the court may strike down the contract, but even then it cannot make a new contract for the parties.

27. The exemption clause which the Division Bench was considering in that case also exempted the Airlines Corporation from. “any liability under the law whether to the sender or to the consignee or to their legal representatives, in case of damage or loss or pilferage or detention from any cause whatsoever including negligence or default of pilots, agents, flying ground or other staff or employees of the carrier or breach of statutory or other regulations) whether in the course of journey or prior, or subsequent thereof, and whether while the freight be on board the aircraft or otherwise.”

28. The Division Bench came to the conclusion that this contract did not offend against the provisions of the Indian Contract Act and that it gave complete immunity to the defendant Corporation from loss or damage to the goods consigned to its care for carriage.

29. The argument that section 23 of the Contract Act was not considered in that case cannot also be a reason to hold that this particular section of the Contract Act makes this exemption clause bad. In Bombay Steam Navigation Co. v. Vasudev Babruao Kamat, [AIR 1928 Bom. 5] the view Sankaran Nair, J., in his dissenting judgment in Sheik Mahammad Ravuther v. B.I.S.N. Co Ltd., [ILR 32 Mad. 95], expressing the opinion that section 23 of the Contract Act hits such exemption clause was rejected. In fact in a recent decision of the Madras High Court in Indian Airlines Corporation v. Jothaji Maniram, [AIR 1959 Mad. 285] the point is made clear beyond doubt. There it is held that a common carrier is a person who professes himself ready to carry goods for everybody. In the case of a common carrier the liability is higher, because he is considered to be in the position of insurer with regard to the goods entrusted to him. But where it is expressly stipulated between the parties that the carrier is not a common carrier, that conclusively shows that the carrier is not liable as a common carrier. It was also distinctly laid down by that decision that even assuming that the carrier could be deemed to be a common carrier or held liable as such, it was open to such a carrier to contract himself out of liability as common carrier, or fix the limit of his liability. This Madras decision given by Ramchandra Iyer, J., reviews all the relevant decisions on this point. It also notices at page 288 of the report the view of Sankaran Nair, J. and rejects it.

30. In a recent Division Bench decision of the Assam High Court in Rakmanand Ajitsaria v. Airways (India) Ltd., [AIR 1960 Ass. 71] certain important propositions of law are clearly laid down. It is an authority to say that the liability of the internal carrier by Airways who is not governed by the Indian Carriage by Air Act, 1934, or by the Carriers Act, 1865 is governed by the English Common law since adopted in India and not by the Contract Act. It proceeds to lay down that under the English common law, the carrier’s liability is not that of a bailee only, but that of an insurer of goods, so that the carrier is bound to account for loss or damage caused to the goods delivered to it for carriage, provided the loss or damage was not due to an act of God or the King’s enemies or to some inherent vice in the thing itself. It also lays down that at the same time, the common law allows the carrier almost an equal freedom to limit its liability by any contract with the consignor. In such a case, its liability would depend upon the terms of the contract or the conditions under which the carrier accepted delivery of the goods for carriage. It provides that the terms could be very far-reaching and indeed they could claim exemption even if the loss was occasioned on account of the negligence or misconduct of its servants or even if the loss or damage was caused by any other circumstance whatsoever, in consideration of a higher or lower amount of freight charged. In unmistakable terms the learned Chief Justice of the Assam High Court says that, however amazing a contract of this kind may appear to be, yet that seems to be the state of the law as recognized by the common law of England and adopted by the Courts in India. Lastly this decision of the Division Bench of the Assam High Court is an authority for the proposition that the clause in a contract of carriage by air giving complete immunity to the carrier from liability could not be impugned on the ground that it was hit by section 23 of the Indian Contract Act, because the Contract Act had no application to the case nor could it be said to be opposed to public policy. The learned Chief Justice of the Assam High Court points out that Exemption clauses of this nature have been upheld by the Courts and there being no other statutory bar as provided under the Indian Carriers Act or under the Indian Carriage by Air Act, which have no application to this case, under the common law a contract of this nature was permissible and therefore, this decision also dissents from the decision of Sankaran Nair, J. as mentioned above. Sarjoo Prosad, C. J., in this decision observes at p. 74 of the report quoted above on the point of section 23 of the Indian Contract Act as hitting the validity of such an exemption clause as follows:
“These weighty observations of Sir Sankaran Nair compel serious attention and attract by their freshness and originality; but it seems too late now to turn away from the beaten track of judicial precedents, which have since acquired all the sanctity of a stare decisis. I am, however, unable to understand, and I say so with the utmost respect, how the learned Judge could overlook the very point which the Judicial Committee of the Privy Council had decided and held that the carrier’s liability was governed by the English common law and not by the terms of the Contract Act, especially when that decision was given by the Privy Council with full consciousness of the conflict of the judicial opinion in India. That the said decision of the Judicial Committee has been subsequently followed in other cases is beyond question.”

31. The Privy Council decision and all the Indian decisions, therefore, are against the finding of the learned trial Judge in this case. Looking at the English Law and High authorities of the English Law the conclusion is further reinforced.

32. Before we discuss the English Law and the English decisions on this point we may notice this that Mr. Dutt Roy for the respondent realising the mass of authorities against his contention tried to distinguish them by saying that all the these cases related to goods and not to human life. He appears to suggest, as the learned trial Judge has also said, that while for some reason or other there could be complete exemption including one for negligence in case of contract for the carriage of goods such a cause would be bad if it concerned the carriage of passengers and their life. In jurisprudence dealing with the law of Common carriers it is difficult to see how the difference could be drawn legally between goods and life.

33. Fortunately, however, this point is also decided by the high authority of the House of Lords and that also in recent times. In the leading case of Ludditt v. Ginger Coote Airways Ltd., [1947 AC 233 Lord Wright at 245] after quoting the words of Maule, J., observed as follows:- “In this passage Maule J. is speaking of carriers of goods, but the same principle is true, mutandis, of a carrier of passengers who in law is neither an insurer nor precluded from making a special contract with his passengers.”

34. Lord Wright in the same report at p. 242 accepted the classic enunciation on this point by Lord Haldane in Grand Trunk Ry. Co. of Canada v. Robinson [AIR 1915 PC 53] where Lord Haldane stated (at p. 55) as follows:
“There are some principles of general application which it is necessary to bear in mind in approaching the consideration of this question. If a passenger has entered a train on mere invitation or permission from a railway company without more, and he receives injury in an accident caused by the negligence of its servants, the company is liable for damages for breach of a general duty to exercise care. Such a breach can be regarded as one either of an implied contract, or of a duty imposed by the general law, and in the latter case as in form a tort. But in either view this general duty may, subject to such statutory restrictions as exist in Canada and in England in different ways, be superseded by a specific contract which may either enlarge, diminish or exclude it. If the law authorises it, such a Contract cannot be pronounced to be unreasonable by a court of justice. The specific contract, with its incidents either expressed or attached by law, becomes in such a case the only measure of the duties between the parties, and the plaintiff cannot by any device of form get more than the contract allows him.”

35. It is, therefore, clear that the distinction that the learned Counsel for the respondents attempted to make between a contract for carriage of goods and a contract for carriage of passengers cannot be sustained. Both can be limited and both can exclude liability even for negligence.

36. Without multiplying authorities on this point which in our view are almost unanimous to day we shall refer to another decision of the House of Lords in Hood v. Anchor Line (Henderson Brothers) Ltd., [1918 AC 837]. The import of this decision answers some point faintly argued on behalf of the respondents how far small words printed at the foot of the document exempting liability were binding on the passenger. Lord Finlay, L.C. at pages 842-843 observed inter alia as follows:
“In my opinion the Courts below were right, out of many authorities bearing upon the point I think it necessary to refer to three only – Henderson Stevenson, (1875) 2 HL Sc 470; Parker v. South Eastern Ry. Co., [(1877) 2 CPD 416] and Richardson, Spence and Co. v. Rowntree [(1894) AC 217]. The first of these cases is a decision of this House that a condition printed on the back of the ticket issued by a steamship packet company absolving the company from liability of loss, injury, or delay to the passenger or his luggage was not binding on a passenger who has not read the conditions and has not had his attention directed to the conditions by anything printed on the face of the ticket, or by the carrier when issuing it. The second and the third of these cases show that if it is found that the company did what was reasonably sufficient to give notice of conditions printed on the back of a ticket the person taking the ticket would be bound by such conditions. It is quite true that, if the contract was complete, subsequent notice would not vary it, but when the passenger or his agent gets the ticket he may examine it before accepting, and if he chooses not to examine it when everything reasonable has been done to call his attention to the conditions he accepts it as it is.”

37. It has been found by the learned trial Judge that these conditions in the present case exempting the carrier from liability were duly brought to the notice of the passenger and that he had every opportunity to know them. Here in the Court of Appeal we are satisfied on the record that it was so.

38. Blackburn, J., in the well known case of McCawley v. Furness Rly. Co. [(1872) 8 QB 57 at 57] dealing with a case of personal injury lays down the same principle that civil liability, as distinguished from criminal liability, can be excluded by an appropriate agreement, and observed as follows:
“The duty of a carrier of passengers is to take reasonable care of a passenger, so as not to expose him to danger, and if they negligently expose him to danger, and he is killed, they might be guilty of man-slaughter, and they would certainly be liable to the relatives of the deceased in damages. But here the passenger was carried under special terms; that agreement would not take away any liability that might be incurred as to criminal proceedings, but it regulates the right of the plaintiff to recover damages. The plea states that it was agreed that the plaintiff, being a drover traveling with cattle, should travel at his own risk; that is, he takes his chance, and ,as far as having a right to recover damages, he shall not bring an action against the company for anything that may happen in the course of the carriage. It would of course be quite a different thing were an action brought for an independent wrong, such as an assault, or false imprisonment. Negligence in almost all instances would be the act of the Company’s servants, and “at his own risk” would of course exclude that, and gross negligence would be within the terms of the agreement; as to willful, I am at a loss to say what that means; but any negligence for which the company would be liable (confined, as I have said, to the journey, and it is so confined by the declaration) is excluded by the agreement.”

39. These weighty observations of Blackburn, J. found approval subsequently. Atkin L.J. in Rutter v. Palmer [(1922) 2 KB 87, 94] referred to the above decision. In the case of (1922) 2 KB 87 there was a clause “Customers cars are driven at customer’s sole risk” and it was held that the above clause protected the defendant from liability for the negligence of his servants, and that the action failed. Discussing the general principles on this point and specially on the construction and interpretation of the words used in exemption clause, whether sufficient to exclude liability under a contract or also of tort Denning L.J. in White v. John Warwick and Co. Ltd. [(1953) 1 WLR 1285 at 1293] lays down the following principles:
“In this type of case two principles are well settled. The first is that if a person desires to exempt himself from a liability which the common law imposed on him, he can only do so by a contract freely and deliberately entered into by the injured party in words that are clear beyond the possibility of misunderstanding. The second is; if there are two possible heads of liability on the part of defendant, one for negligence, and the other a strict liability, an exemption clause will be construed, so far as possible, as exempting the defendant only from his strict liability and not as relieving him from his liability for negligence.” There however, there was no finding on negligence and a new trial was ordered for a finding on that issue.

40. Without discussing any more English case law on the point we can profitably refer to the Third Edition Vol. 4 of Halsbury’s Laws of England, Articles 465 and 466 at pages 186 to 188. The law is clearly formulated there.The statement of law there is that any contract which contains conditions enlarging, diminishing or excluding a carriers common law duty of care to his passengers cannot, in the absence of any statutory restriction on the imposition of such conditions, be pronounced unreasonable by a court of justice with a view to one party getting more than the contract allows him; but it would seem that conditions which are wholly unreasonable are not binding upon a passenger even if steps otherwise reasonable have been taken to give him notice of them. But then it stated that any term in a contract for the conveyance of a passenger in a public service vehicle negativing or restricting liability or imposing conditions as to the enforcement of liability in respect of the death or bodily injury of the passenger when being carried in or entering or alighting from the vehicle, is void. That means that this exemption of liability may be prevented by statute and if that is so the statute inter alia will prevail. But then the point here in India is that no Act applies to internal carriage by air. That Warsaw Convention does not apply; nor is there any statute which prevents or limits the scope or content of such an exemption clause. Therefore, it is significantly pointed out in 31 Halsbury (Third Ed.) in Article 1214 at pages 765-766 that:
“There are no statutory terms and conditions for the carriage of passengers, but, as a common carrier could vary his liability by making a special contract, so railway undertakers can carry passengers on their own terms and conditions by means of a special contract usually made between the undertakers and the passenger by the buying of a ticket.”

43. These statutory provisions in other statutes seem to indicate that the legislature in its wisdom, has not uptill now thought fit to legislate on this point about internal carriage by air in India either to limit or exclude contract for exemption of liability.

44. On this overwhelming mass of authority we are bound to hold that both in respect of Contract Act and Tort the present exemption clause is good and valid and it legally excludes all liability for negligence. We also hold that it cannot be held to be bad under Section 23 of the Contract Act as stated above.

135. For reasons stated above and on the authorities discussed this appeal must be allowed. The suit must be dismissed. We hold that the exemption clause is good, valid and legal. We also hold on the merits that there was no negligence of the defendant Corporation or of the pilot Captain Cartner.

Appeal allowed.