U S AWASTHYAPPE Vs. GULF AIR

JUDGEMENT

(1.) We had earlier heard the arguments and passed the following order on 23.1.2003. It is the complainant who is in appeal before us. His claim for damages against the respondents Gulf Air, an international carrier was dismissed by the State Commission. His complaint was that he was a business class passenger and in the flight of Gulf Air between the Sector Bahrain-Istanbul he was given a seat which was fixed and was not a reclinable on account of which he suffered great inconvenience and discomfort for 6 hours journey. He had not bargained for such a treatment of an international airlines when he had purchased a business class ticket which was of much higher in value than an economy class ticket. Complainant, therefore, claimed Rs. 5.00 lakhs as damages for the agony caused to him. In fact, the ticket was for travel from 'Delhi-Doha-Bahrain-Istanbul-Dubai-Delhi.' There is no dispute about the purchase of business class air ticket by complainant and the seat which was provided to him by the airlines during the journey from Bahrain to Istanbul was a fixed seat and not a reclinable one. When the complainant found the seat to be fixed he complained to the staff of the airlines for change of the seat. It was not agreed to as he was told that the aircraft was full and alternate seat was not available. In its reply airlines stated that there were 16 first class, 12 business class and 95 economy class seats and all the seats were occupied. Ticket issued to the complainant was subject to various conditions and condition No. 2 was put forward to deny the claim of the complainant. This condition No. 2 reads as under :

(2.) We have heard the arguments of Mr. C.S. Vaidyanathan, Senior Advocate, Mr. Vinoo Bhagat and Mr. M. Wadhwani. During the course of hearing we had also requested Mr. Bhagat to make his submissions with reference to the issues involved in this appeal. Mr. Bhagat supported Mr. Wadhwani. He said Warsaw Convention provides uniform rules for defining and limiting the carriers liability in cases of international carriage falling under it. He said Rule 24 is quite explicit in itself. He referred to Rule 33* . He said that this Rule 33 forbids to a party to a contract of carriage to enter into any agreements that "infringe the Rules... by deciding the law to be applied......". In other words he said the right to damages that does not fall within any of the Rules of Schedule II, cannot be created by any agreement between the passengers and the carrier. Further submissions of Mr. Bhagat were, (i) Court cannot, or at least, ought not to create rights that the parties themselves are expressly forbidden from creating. (ii) A cause of action from domestic law cannot be imported into the Second Schedule because if it is then it will be a case of "deciding the law to be applied" contrary to the Rules in Schedule II. (iii) If one cause of action permitting damages in domestic law can be imported into Schedule-II then, equally, every cause of action from any domestic or other law outside the Second Schedule can also be imported and made applicable to increase the carrier's liabilities and obligations beyond those fixed by the schedule. This will render the Warsaw Convention otiose.

(3.) Thus Mr. Bhagat said the view of House of Lords in the case of Sidhu & Ors. v. British Airways, (supra), is logically and legally correct one. Otherwise he said that Schedule-II would be rendered pointless and carriers will be subject to all domestic laws of all States; a few causes of action cannot be selectively imported and that if this is done then Courts will be altering the international treaty by making additions to it; interpretation of a treaty does not include altering or amending its provisions. On the question whether the health problem suffered by Awasthy, the appellant, falls within "accident". Mr. Bhagat referred to Shawcross & Beaumont, 4th edition, the Air Law by Peter Martin, JD Mc Clean and Elizabeth de Montlaur Martin.