ANITA BHATIA Vs. KENYAN AIRWAYS

JUDGEMENT

(1.) THIS complaint pertains to Carriage by Air Act, 1972 (for short the CA Act) which incorporates Warsaw Convention in Schedule -I and in Schedule -II it is the Warsaw Convention again as modified by the Hague Protocol. We have to deal with the liability of Kenyan Airways, an international air carrier, on account of the death of Sanjeev Bhatia, a passenger, in the air crash which occurred on 30.1.2000. Sanjeev Bhatia had taken the flight No. KQ -431 of the Airways from Bombay to Nairobi when it crashed into the sea of Ivory Coast near Abidjan resulting in the death of Sanjeev Bhatia and other passengers.

(2.) THIS complaint is by the legal heirs of Sanjeev Bhatia being the wife and two children, one minor, claiming Rs. 2,22,91,066.80 as compensation. In fact the total claim made is Rs. 2,53,87,024/ - out of which an amount of Rs. 30,95,968/ - had been received earlier by the complainants as compensation by way of settlement. Complainants have challenged the settlement which was arrived on 20.4.2000 in the sum of US $ 70,800 and payments received, when the complaint was filed on 2.5.2001. Earlier a notice dated 19.9.2000 challenging the settlement and seeking more compensation was issued by the complainants through their Lawyers. This was immediately replied to by the Kenyan Airways through their Solicitors by their letter dated 22.9.2000 denying the allegation of the complainants. This was again replied to by Lawyers of the complainants by letter dated 20.11.2000 and thereafter this complaint came to be filed.

(3.) THEN the complainants contend they were ignorant of the IATA Intercarrier Agreement on Passenger Liability (IIA, for short) and subsequent agreement to implement the same called Measures to Implement the IATA Intercarrier Agreement (MIA, for short). On the other hand complainants say that they were told that under the CA Act and the Warsaw Convention the maximum compensation payable to them would be US $ 20,000 and unless they agree to the amount offered by the Kenyan Airways they will have to face the prospect of long drawn civil dispute. The situation created by Kenyan Airways was that take it or leave it. Complainants say they were left with no choice. The agreement was signed without their free consent and in violation of the provisions of Section 14 and other Sections of the Contract Act. Complainants further say that discharge voucher got signed from them would not estop them from claiming higher amount under IIA and MIA as far as Kenyan Airways was concerned as Article 22(1) of the Warsaw Convention as modified by the Hague Protocol did not apply. Since a great deal depends upon these two documents we set out the same herein in extenso :