1961 Supreme(Cal) 160

HIGH COURT OF CALCUTTA
P. C. MALLICK, J.
Mukul Dutta Gupta
Versus
Indian Airlines Corporation
Suit No.611 of 1957
Decided On : 11-08-1961

A carrier cannot exempt itself from liability for negligence causing death of an air passenger.

Headnote:

None

Fact of the Case:

Sanat Kumar Dutta Gupta, a 44-year-old permanent employee of I.G.N. and Rly. Co. Ltd., earning Rs. 700 per month with prospects of earning up to Rs. 1,500 per month, was killed in an air crash while traveling as a passenger on the defendant Corporation's scheduled route from Dum Dum Airport to Jorhat. The plaintiffs, Sanat Kumar's widow and minor children, instituted a suit under the Fatal Accidents Act for the recovery of damages against the defendant Corporation. The main defense was that under the contract of carriage, the defendant Corporation was relieved of all liability, and that Sanat Kumar had expressly or impliedly consented to the conditions of carriage.

Finding of the Court:

The court found that the defendant Corporation did take steps to bring it to the notice of the passengers that the tickets were issued subject to certain conditions of carriage, but that the conditions should have been printed in red letters in the ticket in order to attract the attention of the passengers. The court also found that there was no evidence that Sanat Kumar had actual knowledge of the conditions of carriage or expressly accepted them. The court further found that the negligence of the co-pilot in landing the aircraft was the cause of the crash and that the defendant Corporation was liable for the damages suffered by the plaintiffs.

Issues: 1. Are the plaintiffs heirs and legal representatives of the deceased? 2. Was there any contract of carriage as-alleged in paragraphs 2, 3 and 4 of the Written Statement? 3. (a) Were the conditions of carriage not pointed out to the deceased? (b) Did the deceased have no notice of the conditions of carriage? (c) Was the deceased not bound by the conditions of carriage as alleged in paragraph 12 of the plaint? 4. Is the defendant exempt from liability under the terms and conditions of the contract of carriage? 5. Was the accident caused due to the negligence or failure to take ordinary care as alleged in paragraph 5 of the plaint? 6. Was the accident beyond the control of the defendant and could not be foreseen as alleged in paragraph 8 of the written statement? 7. Did the defendant take reasonable care to avoid the accident as alleged in paragraphs 7 and 9 of the written statement? 8. To what reliefs, if any, the plaintiff is entitled?

Ratio Decidendi: The court held that the defendant Corporation was liable for the damages suffered by the plaintiffs because: * The defendant Corporation did not prove that Sanat Kumar had actual knowledge of the conditions of carriage or expressly accepted them. * The negligence of the co-pilot in landing the aircraft was the cause of the crash. * The conditions of carriage exempting the defendant Corporation from liability were unreasonable and unenforceable.

Final Decision: The court decreed the suit in favor of the plaintiffs and awarded them Rs. 1,00,000/- as compensation, to be divided equally among the five plaintiffs.