DESH BANDHU GUPTA Vs. INDIAN AIRLINES LTD

JUDGEMENT

(1.) These two complaints arise out of the same incident when an aircraft crashed on take-off from Aurangabad airport. Claim is for damages. Since with this judgment we are deciding a preliminary issue, it would be appropriate to refer, though briefly, to one of the two complaints. This would be Original Petition No. 35 of 1995 entitled Desh Bandhu Gupta & Ors. v. Indian Airlines & Anr.

(2.) Pyare Lai Gupta (since deceased) travelled by Indian Airlines flight from Aurangabad to Bombay on 26th April, 1993. The flight was operated by the Indian Airlines, the first opposite party, and the Aurangabad Airport is under the control and management of the second opposite party. Indian Airlines is a body corporate constituted under the Air Corporation (Transfer of Undertakings and Repeal), Act, 1994. National Airport Authority is also a body corporate constituted under the National Airport Authority Act, 1985. The aircraft was Boeing 737. Commander of the flight was Captain S.N. Singh. First Officer was Captain Manisha Mohan. Operating schedule of the flight was New Delhi-Jaipur-Udaypur-Aurangabad-Bombay.

(3.) When the flight was to take off from Aurangabad Airport there were 112 passengers on board. Air Traffic Control gave clearance to use Run Way No. 09. The aircraft crashed soon after the take-off. It appears that the aircraft when lifted up at the end of runway collided with a stationary truck on the Aurangabad-Beed Road which runs just outside on the boundary wall of the airport. The aircraft continued the flight and went through the high tension electric wires at the height of about 35 ft. and mashed into the ground. 53 passengers and 2 cabin crew members died in the accident. 10 passengers and cabin crew member received serious injuries. 6 passengers and one cabin crew member received minor injuries. 43 passengers and 1 cabin crew member had a miraculous escape. They received no injury. The Commander, the First Officer and 2 cabin crew members who were in the first Section of the cabin and 59 passengers were the lucky survivors. Pyare Lal Gupta was not that lucky. He died in the crash. Complainants are the children of said Pyare Lal Gupta who died intestate. They as heirs and legal representatives of Pyare Lal Gupta have filed this complaint claiming damages to the extent of Rs. 5,79,37,534/- (Rupees five crores seventy-nine lakhs thirty-seven thousand five hundred and thirty-four only) on account of death of Pyare Lal Gupta, alleging negligence against both the opposite parties resulting in the accident. Out of this, an amount of Rs. 4 crores has been claimed due to mental agony, sufferings, shock, etc. and the amount of Rs. 1,79,37,534/- is towards interest @ 24% per annum from 25.5.1993 to 9.3.1995. Both the Indian Airlines and National Airport Authority have denied their liability arising out of the accident. They have also denied any negligence on their part as alleged by the complainants. Indian Airlines has also taken shelter behind the provisions of the Carriage by Air Act, 1972 which limits the liability even of a domestic air carrier.