IMPORTANT POINTS
Glider is an aircraft.
Phrase “standard type of aircraft” used in policy being vague must be construed in a liberal manner so as to benefit the insured.
Not open to the insurer to reject a claim arising out of a glider accident.

JUDGMENT :

MOHAN M. SHANTANAGOUDAR, J.

This appeal arises against the order of the National Consumer Disputes Redressal Commission (for short “National Commission”) dated 22.05.2017 allowing the insurance claim filed by Respondent No. 1 pertaining to an aviation accident leading to the death of her son.

2. The brief facts leading to the instant appeal are as follows:

2.1 Respondent No. 1 had gone on vacation to Canada along with her family in June 2013. On 29.06.2013, the family visited the Pemberton Soaring Centre, a gliding facility at Pemberton in British Columbia. Her son took the first turn for a sightseeing flight on a two-seater glider plane (Stemme S10VT) flown by the pilot at the facility. While airborne, the glider exploded after colliding with a Cessna 150 aircraft, killing all occupants of both the glider and the Cessna. Respondent No. 1 filed a claim with the Appellant based on the Smart-Personal Accident-Individual Insurance Policy (“the Policy”) taken by the deceased. The claim was repudiated on the basis that the deceased was travelling in a motorized glider for sightseeing, and hence was not travelling in a standard aircraft, and was further not a fare-paying passenger in any regular scheduled airline or air charter company, which excluded the accident from the purview of the Policy. We may refer to the relevant provisions of the Policy in this regard:

“7. General Exclusions of the Policy

PROVIDED ALWAYS THAT the Company shall not be liable under this policy for

…

(ix) Any claim in respect of accidental death or permanent disablement of the Insured/Insured Person:

…

(iii) whilst engaging in aviation or ballooning whilst mounting into, dismounting from or traveling in any aircraft or balloon other than as a passenger (fare paying or otherwise) in any duly licensed standard type of aircraft anywhere in the world.

…

(xiv) Insured/insured person whilst flying or taking part in aerial activities (including cabin crew) except as a fare-paying passenger in a regular scheduled airline or air charter company.”

2.2 A complaint was filed with the National Commission on 3.2.2015, which allowed the same, directing the insurer to pay an amount of Rs. 1 crore with interest at the rate of 8% per annum. The National Commission held that a glider was an “aircraft” under Section 2(1) of the Aircrafts Act, 1934 (“the 1934 Act”) and had not been expressly excluded under the Policy, unlike activities like hanggliding and paragliding. Next, the National Commission held that the glider was a “duly licensed” aircraft, since the Pemberton Soaring Centre had a licence to conduct the business of sightseeing glider flights, and there was no evidence of a licence being required for individual aircraft under law apart from a private registration, which had been done for the glider in question, as evident from the aviation inspection report of the Transport Safety Board of Canada (“the TSBC Report”), which had also extensively referred to the glider as an “aircraft”.

2.3 It was also held that the glider was a standard type of aircraft, placing the onus of bringing the case within an exclusionary clause on the insurer, who had failed to produce any certificate from the Canadian or Indian aviation authorities, or rule or regulation which defined a “standard” aircraft, in the absence of a contractual definition of the term, and particularly since it was noted in the TSBC report that the glider was certified, equipped, and maintained in accordance with existing regulations and approved procedures.

2.4 The Commission was also of the opinion that a person undertaking a round trip without a destination would also qualify as a passenger, and that the deceased was a fare-paying passenger on a sightseeing flight, and had taken the aircraft on hire. Considering the definition of “charter” in the Black’s Law Dictionary, which includes the hiring or leasing of a vessel such as an airplane, and the fact that charges were payable by the deceased for flying in the glid