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 discrimination.

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.

Introduction
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 States.

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 area.

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.

These ensuing 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 Convention.

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 extraordinary.

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.

As 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 extreme points.

Jurisdictional Concerns

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.

Third Schedule 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 from transporters.

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.

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 Another.

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 passengers.

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?

While 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 Shirishbhai Shah. 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 question.

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 India Ltd.

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 void…”

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).

This 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 SDR.

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 mulled over.

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 them.

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.

Conclusions
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 previously.

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.

References:

• 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 Schedule
• 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. [2002] 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.
• www.manupatra.in
• 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.
  
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