( 1 ) THIS is an appeal by the defendant, Indian Airlines Corporation, from the judgment and decree of P. C. Mallick, J. decreeing the plaintiffs suit for the sum of Rs. 1,50,000/- and another sum of Rs. 5000/- with interest at the rate of 6 per cent per annum and with costs.

( 2 ) THE suit arises out of an unfortunate and tragic air crash at Nagpur when a Dakota air plane VT-CHF crashed soon after it started flying from Nagpur to Madras. All the passengers and the crew were killed and the only person who escaped with severe injuries and burns was the Pilot, Desmond Arthur James Cartner. This accident took place on the 12th December, 1953 at about 3. 25 a. m.

( 3 ) IN that Aircraft traveled one Sunil Baran Chowdhury, a young man of about 28 years of age, a business man from Calcutta, who had flown from Calcutta to Nagpur and was taking his journey in that ill-fated Aircraft from Nagpur to Madras at the time of the accident. The plaintiffs in this suit are (1) the widow of the deceased Sunil Baran Chowdhury, (2) his minor son and (3) his minor daughter. The widow as the mother of the minors acted as the next friend in the plaint. The Indian Airlines Corporation is the defendant in this suit. This suit was instituted on or about the 10th December, 1954, just before the expiry of one year from the date of the accident.

( 4 ) THE plaint states that the plaintiffs are the heirs and legal representatives of the deceased Sunil Baran Chowdhury and that the action is brought for their benefit. Sunil Baran was a passenger by Air from Calcutta to Madras via Nagpur in the Aircraft of the defendant Corporation and had duly purchased the ticket. The ticket had certain terms and conditions which will be relevant later on. It is pleaded in the plaint that as a result of the accident Sunil Baran was killed. In the particulars of the accident given in the plaint in its said that the accident took place on the 12th December, 1953 at 3. 25 a. m. about two miles from the end of the runway of Sonegaon Airport at Nagpur when the said plane attempted to land owing to engine trouble immediately after it had taken off from the said aerodrome. On that ground it is pleaded that the defendant is liable for damages for breach of contract in not safely carrying the passenger and for breach of duties under the Carriage by Air Act and/or of the Notification thereunder. There is an alternative plea in the plaint which alleges that the deceased died of the said accident which was caused by the negligence and/or misconduct of the defendant Corporation or its agents. The plaint pleads specifically the particulars of negligence in the following terms: (a) The port engine of the plane lost power after getting air-borne causing a swing and that it was due to defective supervision and check up. (b) That the swing corrected itself when the port engine revived again. (c) In spite of failure of the port engine and/or correction thereof, the Captain and/or Pilots in charge did not follow the ordinary and usual procedure under such circumstances, namely, did not throttle back the engine and land straight ahead though there was sufficient length of runway available in front, to land and pull up even with the wheels down and certainly with the wheels up. (d) Even though the engine revived the fact that the gear was down was overlooked by both the pilots. (e) A false starboard engine fire warning precipitated the attempt of forced landing obviously on account of defective supervision and check up. (f) The lack of sufficient intensive checks for emergency procedures during the past twelve months preceding the accident which it is alleged, if carried out, might have given the pilot confidence, apart from practice enabling him to deal coolly with an emergency of this nature.

( 5 ) ON these grounds the plaintiffs claimed damages. The basis of the damage pleaded in the plaint is that the deceased belonged to a long-lived family and lost the normal expectat