Carriers liability for passenger death or injury during the transportation by
air has become a major area of controversy in India especially post Mangalore
air crash. The Carriage by Air Act 1972 dealing with carriers’ liability in
India incorporates Warsaw Convention, Hague Protocol and Montreal Convention,
the three international instruments ratified by India.
The differences in scheme
of liability adopted in these instruments have brought forward significant
questions in terms of jurisdiction and computation of compensation. In addition,
the application of international carriers’ liability regime to domestic carriers
with modifications has triggered the questions about justifiability of
In light of these factors, it is pertinent to address the issues
concerning liability for passenger death or injury during the air transportation
not only from an academic perspective but also from practical point of views.
The present paper first introduces the structure of liability under the Carriage
by Air Act.
It moves on to discuss the carriers’ liability and defences against
liability for passenger death and injury under three schedules of the Act. Next
part of the paper delves into the problems of the regime in terms of
jurisdiction, computation of compensation and discrimination in international
and domestic carriers’ liability. The last part concludes with suggestions of
the author to overcome the problems.
With the improvements in civil aviation in the main portion of 20th century, one
of the worries to arise right off the bat in the field was obligation for harm
caused to the gatherings during the air transportation. Since the common
avionics was in its simple phase of improvement, setbacks were normal bringing
about death of or injury to travellers and harm to stuff and merchandise. Global
consultations in 1920s brought about the Warsaw Show 1929 , which was to manage
the obligation of transporter for harm caused during air transportation with a
target of having specific level of consistency in the laws pertinent to various
In spite of the fact that the Convention talks about the responsibility
of transporter, it is more transporter situated instead of casualty situated.
This is reflected in wide scope of guards and cutoff points of responsibility
accessible to transporter under the Convention.
The conspicuous explanation
behind this is that common flying and aeronautics innovation were as yet in the
underlying stage of improvement, and inconvenience of significant weight on air
transporters would have disincentivised speculations and advancements in the
Anyway with the advancements in aviation sector and important expansion in
income produced by the air transporters, it was tracked down that the
continuation of transporter situated system would be out of line from general
society point of view. This mindfulness has brought about corrections to the
Warsaw convention Show as Hague Protocol 1955 , Guadalajara Convention 1961 ,
Guatemala City Protocol 1971 and four Montreal Protocols of 1975.
instruments diminished the safeguards accessible to the transporter, what's
more, expanded the circle of utilization and cutoff points of responsibility to
additional the interests of casualties. Tragically, the corrections of Warsaw
Convention were not consistently acknowledged by all the State gatherings to the
Thus, there has been a finished broadening of air transporter risk
system in various pieces of the world. To blend and modernize the air
transporter risk system in the worldwide level, the Montreal Show 1999 has been
entered. Be that as it may, this didn't settle the issue, since every one of the
gatherings to Warsaw framework didn't become gatherings to he Montreal
Convention. In this way Montreal Convention wound up in adding one more equal
system to additionally enhance the global transporter responsibility law. When
every one of the gatherings of Warsaw framework become gatherings to Montreal
Convention, the previous system would annul to set up consistency.
India is involved with Warsaw Convention, Hague Protocol and Montreal Show.
Therefore, the Carriage via Air Act 1972, which is established for carrying out
the global standards in Indian homegrown level, contain three arrangements of
obligation standards. Segment 3 read with First Schedule traces the Warsaw
Convention standards, Section 4 read with Second Schedule traces the Hague
Protocol standards, and Section 4A read with Third Schedule traces the Montreal
Convention standards as material to worldwide carriage in India.
Part I, II, and
III of the Annexure give the rundown of States which would be represented by
Warsaw Convention, Hague Protocol and Montreal Show separately. Area 8 of the
Carriage via Air Act enables the Focal Government to come out with the warning
to broaden transporters' responsibility standards to the homegrown carriage with
or without changes.
Liability Norms Relating To Death Or Injury
Air carriers are liable for death or injury sustained by the passenger
during transportation by air under all three schedules. While First and Second
Schedules refer to death, wounding and bodily injury, the Third Schedule makes a
reference only to death and bodily injury. There are debates about the
interpretation of bodily injury
especially regarding the status of
psychological injury being the part of bodily injury. It is more or less
settled in most of the States that mere psychological injury is not
compensable. However, the psychological injury, in order to be compensated,
needs to emerge from physical injury.
The victim needs to prove that damage is caused by the accident which took place
on board the aircraft or in the course of any of the operations of embarking or
disembarking. Thus mere proof of death or injury is not sufficient, but the
plaintiff has to prove the occurrence of accident, which is interpreted as happening of unexpected event
, causing the damage. In addition, the concerned
accident must have occurred on board the aircraft or in the course of embarking
or disembarking, which are the questions of fact to be established separately
in each case.
limited points of risk of transporter under the three timetables are
Under First Schedule, the most extreme restriction of obligation
for traveller demise and injury is fixed at 1,25,000 francs. Nonetheless, there
can be an extraordinary agreement between the traveller and the transporter to
build the cutoff. Likewise, if there is wilful wrongdoing or a default identical
to wilful offense by the transporter which causes the harm, the constraint of
obligation is lifted to uncover the transporter to limitless obligation. Second
Schedule expands the restriction of obligation for traveller demise or injury
to 2,50,000 francs.
Like First Schedule, the breaking point can be expanded by a
unique agreement. At long last, a purposeful demonstration or oversight of the
transporter to cause harm or his crazy demonstration or exclusion with the
information that harm would presumably result would lift the restriction
of obligation of transporter, if the harm is coming about because of such
demonstration or oversight.
Same rule on lifting the liability limit is applicable under both First and
Second Schedule, if servants or agents of carrier are found within the sphere of
application of the provision. Third Schedule introduces a different scheme of
liability consisting of two tiers. Under the first tier, carrier is strictly
liable up to 1,00,000 SDR.
He cannot avail the defences or limits of liability
except the defence of contributory negligence of the victim. Under the second
tier, carrier is liable over and above 1,00,000 SDR on the basis of fault
liability. If the carrier wants to escape liability under the second tier, he
has to prove either the absence of negligence or other wrongful act or omission
on his part, or that the damage is solely caused by third party’s negligence or
other wrongful act or omission.
Contributory carelessness of the casualty remains as a protection accessible to
the carrier under every one of the three timetables in regards to the traveller
passing or injury. This protection has the impact of either complete or halfway
exemption from risk contingent upon the degree of contributory carelessness.
Moreover, First and Second Schedules give the guard of taking all vital measures
to keep away from harm or difficulty of taking such measures by the carrier,
which isn't accessible under Third Schedule in the event of traveller passing or
injury. This is of specific significance as it has the impact of totally
changing the idea of obligation from issue based risk (under First and Second
Schedules) to exacting risk with the lone exemption of contributory carelessness
of casualty (under Third Schedule).
The above discussion clearly outlines the differences in the regime set forth
under three schedules of Carriage by Air Act. This has resulted in the emergence
of several critical issues in air carrier liability regime adopted by India. The
major reason for problems is found in the conflicting basis of three
international instruments, Warsaw Convention, Hague Protocol and Montreal
Convention, on the basis of which the Carriage by Air Act is enacted.
mentioned above, the Warsaw Convention (First Schedule) is fundamentally carrier
oriented and the Montreal Convention (Third Schedule) is completely victim
oriented. Hague Protocol (Second Schedule) stands somewhere in between the two
First and Second Schedules provide four jurisdictions in which the plaintiff can
file case seeking compensation. The jurisdictions include the
ordinary residence of the carrier , principal place of business of the carrier,
place of business of the carrier wherein the contract of carriage is made and
the place of destination.
Exercise of jurisdiction by any other State or by a
State that is not a Contracting Party to the Warsaw Convention would result in
rejecting the enforcement of the decision on the ground of forum not having
jurisdiction to hear the case. A glance at these jurisdictions show that they
are chosen by giving due weightage to the interests of carrier.
adds fifth jurisdiction in the form of place of principal and permanent
residence of the plaintiff to or from which the carrier operates services
for the carriage of passengers by air.
The fifth jurisdiction under Third Schedule gives due thought to casualties'
advantage by permitting the casualties to pick the most worthwhile locale of
their own separate State. It is of added benefit to those casualties and their
families who are impaired to move out of their country to look for remuneration
Anyway this may result in separation between casualties of
same mishap relying upon the State to which they have a place, since the
appropriateness of separate Schedule relies upon the concerned State's sanction
of relating worldwide instrument/s. Absolutely looking from casualties' point of
view, segregation does not appear to be on any solid reason yet simply because
of the sheer possibility of casualty hailing from one specific State as against
Another question that has arisen on the jurisdiction under the Carriage by Air
Act is, whether the consumer forum are courts of competent jurisdiction under
the Act to entertain the cases? In other words, the question is about the
possible overlap between the Consumer Protection Act and Carriage by Air Act.
This question was contested in many cases , finally reaching the Supreme Court
for determination in Trans Mediterranean Airways v. M/s. Universal Exports and
While answering the question in affirmative, the Supreme Court held
that “Section 3 of the Consumer Protection Act gives an additional remedy for
deficiency of service and that remedy is not in derogation of any other remedy
under any other law.” Thus, the consumer foram are the courts of competent
jurisdiction under Carriage by Air Act
However, by virtue of Section 5 of Carriage by Air Act , the above logic is not
applicable in case of death of the passengers consequent to aviation accidents.
Section 5 has the effect of excluding the liability of carrier for death under
the Fatal Accidents Act 1855 and any other enactment or rule of law in force in
India except the three schedules of Carriage by Air Act.
Hence, the consumer
forums are not competent to deal with the cases involving the death of
Computation Of Compensation
International instruments on carriers’ liability do not provide guidelines for
computation of compensation for passenger death or injury. In general liability
cases, domestic courts have a more or less uniform policy of calculating the
amount of compensation by considering multiple factors like, age, income,
earning capacity, family status, loss of future prospects etc. of the plaintiff.
The extent to which these multiple factors are relevant in the computation of
compensation under Carriage by Air Act is a matter of debate especially under
the Third Schedule.
Indeed, even before the Third Schedule was consolidated, there were conflicting
decisions of High Courts on the calculation of remuneration. In Kandimallan
Bharathi Devi and Others v. The General Insurance Corporation of India , the
Andhra Pradesh High Court needed to settle on the question, regardless of
whether the advantage got out of the individual mishap protection strategy must
be set-off in processing the remuneration under the Carriage by Air Act?
responding to this inquiry in negative, the Court decided that pay under Rule 22
(1) is the base remuneration if there should be an occurrence of passing subject
to as far as possible under exceptional agreement between the transporter and traveller. Thus, the Court didn't base the calculation of pay for death on any
extraneous factor, rather passed by the rationale that demise of traveller,
regardless of his/her status, would bring about coming to the full furthest
reaches of pay set out under Rule 22(1).
The question on computation of compensation under the Carriage by Air Act
further came to the limelight in Airport Authority of India v. Ushaben
. In this case, despite poor visibility in Ahmedabad airport ,
Air India pilots decided to land the aircraft resulting in accident. Though this
accident happened in 1988, it took 22 years of litigation for
final determination in 2010 by the Gujarat High Court. Plaintiff’s claim to
lift the limit of liability of the carrier under the Second Schedule (which was
the applicable law) was allowed by the Court, since there was a reckless act
of carrier’s employees (pilots) causing damage.
However, the Court went on to
calculate the compensation on the basis of victim’s income in 1988 coupled with
other extrinsic factors and awarded a compensation of Rs. 7.53 lakhs. This is
certainly much less the amount than what is normally expected in an aviation
claim in other States.
After the Third Schedule was consolidated in the Carriage via Air Act, the first
significant episode to test the standards on calculation of pay under the Third
Schedule is Mangalore air crash of 2010. Not long after the mishap, the
transporter, Air India, arranged remuneration to be offered to the people in
The remuneration offered was on a normal Rs. 80 lakhs, however exclusively
fluctuated from Rs. 7.757 crores to Rs. 35 lakhs relying upon casualties'
positions. One of the people in question, Mohammed Rafi, was a 24 year old
working at UAE as a sales rep with a month to month pay of Rs. 25,000. The
legitimate beneficiaries of Mohammed Rafi were offered an amount of Rs. 35 lakhs
as full and last pay for his unfavorable passing. Unsatisfied with the offered
total, the casualty's family moved toward the Kerala High Court bringing about
the case, S. Abdul Salam v. Union of India and National Aviation Company of
The plaintiffs’ contention in this case was that the principle of strict
liability is applicable to the extent of 1,00,000 SDR (approximately Rs. 75
lakhs) while deciding the liability under Rule 21(1) of the Third Schedule. They
went on to contend that the proof of extent of damage sustained is required only
in case of bodily injury, which is partial damage, but not in case of full
damage like death. In case of full damage (death), the compensation shall be
full, that is, 1,00,000 SDR. Rule 26 was used in support of this argument, since
it states that “Any provision tending to relieve the carrier of liability or to
fix a lower limit than that which is laid down in these rules shall be null and
The Single Judge while consenting to the above contention, seen that the factors
like age, pay, acquiring limit, loss of reliance, loss of future possibilities
and so forth need not be mulled over, since the obligation standards under the
Third Schedule don't make a particular reference to them. The evidence of degree
of harm brought about by injury gets unessential when the injury prompts
passing. Moreover, the Court depended on the proclamation of
Clergyman for Civil Aviation during the parliamentary discussions prompting the
correction of Carriage via Air Act in 2009 to consolidate Montreal Show 1999.
While responding to the inquiry whether there would be a qualification in
remuneration between a traveller going in economy class also, a traveller going
in business class, the clergyman answered that all
travellers would be dealt with similarly, since remuneration is guided by the
standard of value. Surveying all these aggregately, the Court closed that the
offended parties are qualified for at least 1,00,000 SDR based on no deficiency
responsibility under the Third Schedule.
The respondents went on request against the above choice to the division seat of
Kerala High Court in National Aviation Company of India Ltd. v. S. Abdul Salam
. The Division Bench overruled the Single Judge's choice to hold that there is
no base pay fixed for death under the Third Timetable. For this end, it depended
on different elements.
To start with, Rule 21(1)
manages the pay for death as well as for substantial injury as indicated under
Rule 17(1). The understanding of least pay of injury, which brings about
ridiculousness. Second, the Rule 21(1) isn't with no special case, since
materialness of Rule 20 absolves transporter's risk even under Rule 21(1).
shows that 1,00,000 SDR under Rule 21(1) isn't a rigid guideline. Third, Rule 28
while committing the transporter to make settlements ahead of time to meet the
prompt monetary necessities of the casualties in instance of death or injury of
travellers doesn't specify least sum to be paid as advance. As indicated by the
Court, if Rule 21(1) is expected to give least remuneration, Rule 28 ought to
have fixed a base aggregate as settlement ahead of time.
For the above reasons, the Court held that Rule 21(1) doesn't specify least
remuneration to be paid yet has the impact of just forestalling the transporter
from taking the protection of need of carelessness inside the constraint of
1,00,000 SDR. The impact of Rule 21(2) is that in situations where in the
petitioner can demonstrate the harm caused past 1,00,000 SDR, the transporter
can conjure the protections to excuse from responsibility well beyond 1,00,000
Accordingly, the inquirer needs to demonstrate the degree of genuine harm
endured to get proportionate pay even if there should be an occurrence of
exacting obligation under Rule
21(1). To survey the degree of harm, the variables like age, pay, acquiring
limit, loss of reliance, loss of future possibilities and so forth should be
Aggrieved by the verdict of the Division Bench, the claimants have appealed to
the Supreme Court. One of the major issues in this regard before the Supreme
Court is the interpretation of differing languages of Third Schedule as against
the First and Second Schedules.
While First and Second Schedules use the words
“...liability of the carrier for each passenger is limited to the um of...” ,
the Third Schedule mentions “...not exceeding one lakh Special Drawing Rights
for each passenger, the carrier shall not be able to exclude or limit its
liability...” in case of death or bodily injury. Thus, the First and Second
Schedules expressly mention about the limit of liability, which is not found
under the Third Schedule. Therefore, the Supreme Court’s stand on the issue of
computation of compensation is eagerly awaited.
International V. Domestic Carriage Liability
Section 8 of the Carriage by Air Act empowers the Central Government to apply
the above-discussed liability norms of international carriage to the domestic
carriage with or without exceptions, adaptations and modifications by
notification in the Official Gazette. While exercising this power, the 51
Central Government had notified the Second Schedule in 1973 and the 52 Third
Schedule in 2014 with modifications. Since the 2014 Notification expressly
supersedes the 1973 Notification, the Third Schedule’s liability norms as
modified in 2014 Notification apply currently to the domestic carriage in India.
Curiously, the 2014 Notification adjusts the Third Schedule considerably for
application to the domestic air carriage. The circle of utilization of
responsibility standards has been decreased somewhere near fuse of a few
special cases under Rule 2 of Third Schedule. Such prohibition moreover
incorporates the carriage of representatives of the transporter who are
performing obligations on board the airplane. Accordingly, the flying personal
of the domestic air carriage are entitled to relief for any damage caused to
them under the labour laws and not under the Carriage by Air Act.
To the extent the obligation for the demise of or injury to the traveller is
concerned, in spite of the fact that the standard of limitless obligation of the
carrier s proceeded, the 2014 Notification diminishes the exacting obligation
of the carrier to Rs. 20,00,000. In this way, the carriers are qualified for the
protections accessible under the Third Schedule when the restriction of Rs.
20,00,000 crosses. Added to this, the 2014 Notification absolves the carrier
from taking obligatory responsibility protection inclusion. These alterations
unmistakably mirror the aim of Central Government to favor the domestic air
carriers with a view to promote civil aviation.
The above changes in the obligation system may discover uphold considering
sickly flight industry in India. Anyway looking from the buyers' point of view,
they are dangerous. A particularly differential standard of risk may end up in
being baseless segregation between the two travellers of equivalent status, one
playing out the global carriage and the other playing out the homegrown carriage
in a similar airplane.
To more readily outline, let us theoretically consider
that X and Y have equivalent status and foundation in all regards, and are going
in a similar airplane. X is going from London to Mumbai with a visit at Delhi
(in a similar airplane), which makes his whole excursion, London-Delhi-Mumbai, a
global carriage. Y apparently enters a similar airplane in Delhi to arrive at
Mumbai, which is basically homegrown carriage. Sadly, the airplane meets with an
mishap after departure in Delhi because of a bird hit, and both X and Y are
genuinely harmed in the mishap. Likewise apparently both X and Y guarantee
remuneration to the tune of Rs. 60,00,000 by setting up the harm endured by
In this speculative circumstance, X would be qualified for the full sum
with no special case, however Y can get just Rs. 20,00,000 on the premise of
severe obligation and he would neglect to recuperate remaining Rs. 40,00,000,
since it would not be feasible for him to conquer the guards of carrier under
Rule 21(2). Consequently the differential obligation standards lead to
self-assertive segregation between the travellers in down to earth terms.
Inability to accomplish consistency in the global standards administering
transporters' risk is perpetually reflected in the Indian homegrown enactment
received to execute the transporters' responsibility standards. Equal activity
of three global instruments, the Warsaw Convention 1929, Hague Protocol 1955 and
Montreal Convention 1999, in the Carriage via Air Act 1972 is of significant
worry in India. Since these three instruments were drafted at various phases of
advancements of aeronautics area across the globe, they take into account
various partners' inclinations relying upon the necessities of their separate
time of drafting.
This has brought about some intrinsic logical inconsistencies
in the central parts of the system bringing about the above-examined concerns
identifying with ward and calculation of pay. Moreover, the differential
methodology embraced by the Central Government in carrying out the transporters'
responsibility system to homegrown carriage has added troubles illustrated
Finally, the problem of difference in the compensation available to the victims
of accidents in international carriage and domestic carriage coupled with the
absence of obligation on the carrier to procure liability insurance for domestic
carriage needs specific attention.
This is not going to be solved in the course
of time without a proactive step from the Central Government to eliminate such
discriminations. Understandably, the Indian aviation sector is in chaos.
However, this cannot be attributed to the consumers of air services; rather it
is the unregulated competition between the air carriers that has resulted in the
sorry state of affairs.
Therefore, supporting the cause of domestic air carriers
at the cost of consumers of domestic air services is not based on sound
principles of justice and equity. This leads to the obvious conclusion that
changes need to be introduced to keep the domestic passengers at par with the
international passengers not only regarding their right of equal compensation
but also regarding the carriers’ obligation to procure the insurance coverage,
so that the domestic passengers are ensured of their entitlement.
- LL.M., Ph.D. Associate Professor of Law & Coordinator - Forum for Air
and Space Law, The WB National University of Juridical Sciences, Salt Lake,
Kolkata. Member, International Institute of Space Law (IISL), France
- Paul Dempsey & Laurence Gesell, Air Transportation: Foundations For The
21st Century 74 (1997).
- Convention for the Unification of Certain Rules Relating to
International Carriage by Air, 49 Stat. 3000; 137 LNTS 11.
- Protocol to Amend the Convention for the Unification of Certain Rules
relating to International Carriage by Air, 478 U.N.T.S. 371; 10 ILM 613 (1971).
- Convention, Supplementary to the Warsaw Convention, for the Unification
of Certain Rules Relating to International Carriage by Air Performed by a
Person other than the Contracting Carrier, 500 U.N.T.S. 31. y.
- Protocol to Amend the Convention for the Unification of Certain Rules
Relating to International Carriage by Air, 10 ILM 613 (1971).
- See Rule 17 of First and Second Schedules, and Rule 17(1) of Third
- McKay Cunningham, The Montreal Convention: Can Passengers Finally
Recover for Mental Injuries?, 41 VAND. J. TRANSNAT’L L. 1-40 (2008).
- Husserl v. Swiss Air Transport Co. 388 F. Supp. 1238 (S.D.N.Y. 1975);
Rosman v. Trans World Airlines 314 N.E.2d 848 (N.Y. 1974); Eastern Airlines,
Inc. v. Floyd 499 U.S. 530 (1991); Kotsambasis v. Singapore Airlines Ltd (1997)
42 NSWLR 110; King v. Bristow Helicopters Ltd.  UKHL 7.
- Jack v. Trans World Airlines Inc. 854 F. Supp 654 (1994); Alvarez v.
American Airlines Inc. (1999) 27 Avi 17, 214; 1999 WL 691922; Ratnaswamy v. Air
Afrique 1998 WL 111652.
- Air France v. Saks (1985) 470 US 392
- Rule 22(1), First Schedule: In the carriage of passengers the liability
of the carrier for each passenger is limited to the sum of 1,25,000 francs.
Where damages may be awarded in the form of periodical payments, the
equivalent capital value of the said payments shall not exceed 1,25,000
francs. Nevertheless, by special contract the carrier and the passenger may
agree to a higher limit of liability.
Award Winning Article Is Written By: Mr.Anhadinder Singh
Authentication No: AP111666701909-26-0421