{"id":257204,"date":"2002-08-02T00:00:00","date_gmt":"2002-08-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mrs-anita-bhatia-ors-vs-kenyan-airways-on-2-august-2002"},"modified":"2018-01-13T02:03:53","modified_gmt":"2018-01-12T20:33:53","slug":"mrs-anita-bhatia-ors-vs-kenyan-airways-on-2-august-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mrs-anita-bhatia-ors-vs-kenyan-airways-on-2-august-2002","title":{"rendered":"Mrs. Anita Bhatia & Ors. vs Kenyan Airways on 2 August, 2002"},"content":{"rendered":"
National Consumer Disputes Redressal<\/div>\n
Mrs. Anita Bhatia & Ors. vs Kenyan Airways on 2 August, 2002<\/div>\n
  \n \n \n \n \n \n NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION\n\n\n\n\n \n\n \n\n\n\n \n\nNATIONAL CONSUMER\nDISPUTES REDRESSAL COMMISSION\n\n  NEW\nDELHI \n\n \n\n\u00a0 \n\n \n\n\u00a0 \n\n  ORIGINAL PETITION NO. 130\nOF 2001 \n\n \n\n\u00a0 \n\n \n\nMrs. Anita\nBhatia & Ors.   Complainants\n\n \n\n\u00a0 \n\n \n\n Vs.\n\n \n\n\u00a0 \n\n \n\nKenyan\nAirways   Opposite Party\n\n \n\n\u00a0 \n\n \n\n BEFORE: \n\n \n\n  \n\n \n\n HONBLE\nMR. JUSTICE D.P. WADHWA,  \n\n \n\n  PRESIDENT \n\n \n\n HONBLE\nMR. JUSTICE J.K. MEHRA, MEMBER. \n\n \n\n MRS.\nRAJYALAKSHMI RAO, MEMBER. \n\n \n\n MR.\nB.K. TAIMNI, MEMBER. \n\n \n\n\u00a0 \n\n \n\nCarriage by air\nAct, 1972 - IIA (IATA\nIntercarrier Agreement on Passenger Liability) AND MIA (Measures to Implement\nthe IATA Intercarrier\nAgreement) - Kenyan Airways\nAgreement under IIA and MIA - principles applicable to award of damages\n- Fatal Accident Act - M.S. Grewal 7\nAnr. vs. Deep Chand Sood &\nOrs. - JT<\/a> 2001 (7) SC 159.\n\n \n\n\u00a0 \n\n \n\n\u00a0 \n\n \n\n\u00a0 \n\n \n\nFor the\ncomplainant : Ms. Monika Arora, Advocate\n\n \n\n\u00a0 \n\n \n\nFor the\nopposite Party : Mr. H.D. Nanavati and Mr. Subrot Birla, Adovcates\n\n \n\n\u00a0 \n\n \n\n\u00a0 \n\n \n\n \n\n  O R D E R \n<\/pre>\n
 \u00a0 <\/p>\n
 \u00a0 <\/p>\n
 DATED THE 2nd August, 2002 <\/p>\n
 \u00a0 <\/p>\n
 JUSTICE D.P. WADHWA, J.(PRESIDENT) <\/p>\n
\u00a0 <\/p>\n
 This complaint pertains
\nto the Carriage by Air Act<\/a>, 1972 (for short the CA Act) which incorporates
\nWarsaw Convention in Schedule I and in Schedule II it is the Warsaw Convention
\nagain as modified by the Hague
\nProtocol. We have to deal with the
\nliability of Kenyan Airways, an international air carrier, on account of the
\ndeath of Sanjeev Bhatia, a passenger,
\nin the air crash which occurred on
\n30.1.2000. Sanjeev Bhatia had taken the
\nflight No. KQ-431 of the Airways from
\nBombay to Nairobi when it crashed into the sea of Ivory Coast near Abidjan resulting in the death of Sanjeev Bhatia and other passengers.\n<\/p>\n
 This complaint is by the
\nlegal heirs of Sanjeev Bhatia being the
\nwife and two children, one minor, claiming Rs.2,22,91,066.80 as
\ncompensation. In fact the total claim
\nmade is Rs.2,53,87.024 out of which an amount of Rs.30,95,968\/- had been received earlier by the complainants as compensation by way
\nof settlement. Complainants have
\nchallenged the settlement which was arrived on
\n20.4.2000 in the sum of US $
\n70,800 and payments received, when this complaint was filed on 2.5.2001. Earlier a notice dated 19.9.2000 challenging
\nthe settlement and seeking more compensation
\nwas issued by the complainants
\nthrough their lawyers. This was
\nimmediately replied to by the
\nKenyan Airways through their
\nSolicitors by their letter dated
\n22.9.2000 denying the allegation of the complainants. This was again replied to by lawyers of the complainants by
\nletter dated 20.11.2000 and thereafter this complaint came to be
\nfiled.\n<\/p>\n
 It
\nis the contention of the complainants that figure of compensation was wrongly
\narrived at by the Kenyan Airways and the complainants were coerced to sign the settlement. Complainants say that they were threatened that in case they did not sign the
\nsettlement they would not be paid even
\na single penny as compensation and they would be left to litigate in Courts for
\nthe next decade to get the
\ncompensation. It is also mentioned
\nthat Kenyan Airways took advantage of
\nthe position of the complainants who
\nwere in grief and sorrow in getting the agreement signed which they allege
\nwas result of undue influence exercised by the Airways being in dominating position.\n<\/p>\n
 Then
\nthe complainants contend they were
\nignorant of the IATA Intercarrier Agreement on Passenger
\nLiability (IIA, for short) and subsequent
\nagreement to implement the same
\ncalled Measures to Implement the IATA Intercarrier Agreement (MIA, for
\nshort). On the other hand complainants say that they were told that under the CA Act and the Warsaw
\nConvention the maximum compensation payable to them would be US $ 20,000 and unless they
\nagree to the amount offered by the Kenyan Airways they will have to face the
\nprospect of long drawn civil dispute. The situation created by Kenyan Airways was
\nthat take it or leave it.\n<\/p>\n
Complainants say they were left
\nwith no choice. The agreement was signed without their free
\nconsent and in violation of the provisions of Sections 14<\/a> and other Sections of the Contract Act. Complainants further say that discharge
\nvoucher got signed from them would not estop them from claiming
\nhigher amount under IIA and MIA as far as Kenyan Airways was concerned as
\nArticle 22(1)<\/a> of the Warsaw Convention
\nas modified by the Hague Protocol did
\nnot apply. Since a great deal depends
\nupon these two documents we set out the same herein in extenso:\n<\/p>\n
Explanatory
\nNote <\/p>\n
\u00a0 <\/p>\n
The
\nIntercarrier agreement is an umbrella accord; the precise legal rights and
\nresponsibilities of the signatory carriers with respect to passengers will be
\nspelled out in the applicable
\nConditions of Carriage and tariff
\nfillings.\n<\/p>\n
\u00a0 <\/p>\n
The
\ncarriers signatory to the Agreement undertake to waive such limitations
\nand liability as are set out in the
\nWarsaw Convention (1929), the Hague Protocol
\n(1955) the Montreal Agreement of
\n1966, and\/or limits they may have
\npreviously agreed to implement or were
\nrequired by Governments to implement.\n<\/p>\n
\u00a0 <\/p>\n
Such waiver by a carrier may be made conditional
\non the law of the domicile of the
\npassenger governing the calculation of the recoverable compensatory damages under the Intercarrier Agreement. But this is an option. Should a carrier wish to waive the limits of
\nliability but not insist on the law of the domicile of the passenger governing
\nthe calculation of the recoverable compensatory damages, or not be so required
\nby governmental authority, it may rely on the law of the
\ncourt to which the case submitted.\n<\/p>\n
\u00a0 <\/p>\n
The
\nWarsaw Convention system defences will remain available, in whole or in part to the carriers signatory to the
\nAgreement, unless a carrier decides to waive them or so required by a governmental authority.\n<\/p>\n
\u00a0 <\/p>\n
\u00a0 <\/p>\n
 INTERCARRIER AGREEMENT ON  <\/p>\n
PASSENGER LIABILITY <\/p>\n
\u00a0 <\/p>\n
\u00a0 <\/p>\n
WHEREAS: The Warsaw Convention system is of great
\nbenefit to international air transportation; and <\/p>\n
\u00a0 <\/p>\n
NOTING
\nTHAT: The Conventions limits of liability, which have not been amended since
\n1955, are now grossly inadequate in most countries and that international
\nAirways have previously acted together to increase them to the benefit of
\npassengers.\n<\/p>\n
\u00a0 <\/p>\n
The
\nUndersigned carriers agree<\/p>\n
\u00a0 <\/p>\n
1. To take action to waive the limitation
\nof liability on recoverable compensation, damages. In Article 22<\/a> paragraph 1 of the Warsaw Convention  as to
\nclaims of death, wounding or other
\nbodily injury of a passenger within the meaning of Article 17<\/a> of the
\nConvention, so that recoverable compensatory damages may be determined and awarded by
\nreference to the law of the domicile of the passenger.\n<\/p>\n
2. To reserve all available defences
\npursuant to the provisions of the Convention nevertheless, any carrier may
\nwaive any defence, including the waiver of any
\ndefence upto a specified monetary amounts of recoverable
\ncompensatory damages, as circumstances may warrant.\n<\/p>\n
3. \u00a0\u00a0\u00a0
\nTo reserve their rights of recourse against any other
\nperson,  including rights of contribution or indemnity, with respect to  any sums paid by the carrier.\n<\/p>\n
4. \u00a0\u00a0\u00a0
\n To encourage other
\nAirways involved in the international  carriage
\nof passengers to apply the terms of this Agreement to  such carriage.\n<\/p>\n
5. \u00a0\u00a0\u00a0
\n To implement the
\nprovisions of this Agreement no latter than 1  November
\n1996 or upon receipt of requisite
\ngovernment  approvals, whichever
\nis later.\n<\/p>\n
6. \u00a0\u00a0\u00a0
\n That nothing in this Agreement shall affect the rights of
\nthe  passenger or the claimant
\notherwise available under the  Convention.\n<\/p>\n
7. \u00a0\u00a0\u00a0
\n That this Agreement
\nmay be signed in any number of  counterparts, all of which shall
\nconstitute one Agreement. Any  carrier
\nmay become a party to this Agreement by
\nsigning a  counterpart hereof
\nand depositing it with the Director
\nGeneral  of the International Air
\nTransport Association (IATA).\n<\/p>\n
\u00a0 <\/p>\n
\u00a0 <\/p>\n
8. \u00a0\u00a0\u00a0
\n That any carrier
\nparty hereto may withdraw from this  Agreement
\nby giving twelve (12) months written notice of  withdrawal
\nto the Director General of IATA and to the other  carriers
\nparties to the Agreement.\n<\/p>\n
\u00a0 <\/p>\n
 Signed
\nthis 31s day of October 1995<\/p>\n
\u00a0 <\/p>\n
\u00a0 <\/p>\n
AGREEMENT
\nON MEASURES TO IMPLEMENT THE IATA INTERCARRIER AGREEMENT.\n<\/p>\n
\u00a0 <\/p>\n
I. Pursuant to the IATA Intercarrier
\nAgreement of 31 October, 1995, the
\nundersigned carriers agree to implement
\nsaid Agreement by incorporating in
\ntheir conditions of carriage and tariffs, where necessary, the following:\n<\/p>\n
\u00a0 <\/p>\n
1. \u00a0\u00a0\u00a0
\n[CARRIER] shall not invoke the limitation of liability in
\nArticle 22(1)<\/a> of the Convention as to
\nany claim for recoverable compensatory
\ndamages arising under Article 17<\/a> of the Convention.\n<\/p>\n
\u00a0 <\/p>\n
2. \u00a0\u00a0\u00a0
\n[CARRIER] shall not avail itself of any defence under Article
\n20(1)<\/a> of the Convention with respect to that portion of such claim which does
\nnot exceed 100,000 SDRs [unless option II(2)
\nis used].\n<\/p>\n
\u00a0 <\/p>\n
3. \u00a0\u00a0\u00a0
\nExcept as otherwise provided in paragraphs 1 and 2 hereof,
\n[CARRIER] reserves all defences
\navailable under the Convention to any such claim. With respect to third parties, the carrier also reserves all
\nrights of recourse against any other
\nperson, including without limitation, rights of contribution and indemnity.\n<\/p>\n
\u00a0 <\/p>\n
II. \u00a0\u00a0 At the
\noption of the carrier, its conditions of carriage and tariffs also may
\ninclude the following provision:\n<\/p>\n
\u00a0 <\/p>\n
1. \u00a0\u00a0\u00a0 [CARRIER] agrees that subject to applicable law,
\nrecoverable compensatory damages for
\nsuch claims may be determined by
\nreference to the law of the domicile or permanent residence of the passenger.\n<\/p>\n
\u00a0 <\/p>\n
2. \u00a0\u00a0\u00a0 [CARRIER]
\nshall not avail itself of any defence
\nunder Article 20(1)<\/a> of the Convention with respect to that portion of such
\nclaims which does not exceed 100,000
\nSDRs, except that such waiver is limited to the amounts shown below for the
\nroutes indicated, as may be authorised by governments concerned with the
\ntransportation involved.\n<\/p>\n
 [Amounts and routes to
\nbe inserted]<\/p>\n
\u00a0 <\/p>\n
3. Neither the waiver of limits nor the
\nwaiver of defences shall  <\/p>\n
 be applicable in respect of claims made by public social <\/p>\n
 insurance or similar bodies however
\nasserted. Such claims <\/p>\n
  shall be subject to the limit in Article 22(1)<\/a> and to the <\/p>\n
  defences under Article 20(1)<\/a> of the Convention. The<\/p>\n
  carrier will compensate the passenger or
\nhis dependents <\/p>\n
  for
\nrecoverable compensatory damages in excess of<\/p>\n
  payments received from any public social
\ninsurance or <\/p>\n
  similar body.\n<\/p>\n
 Furthermore,
\nat the option of a carrier, additional provisions may be included in its conditions of carriage and
\ntariffs, provided they are not
\ninconsistent with this Agreement and are in accordance with applicable
\nlaw.\n<\/p>\n
\u00a0 <\/p>\n
I. \u00a0\u00a0\u00a0\u00a0\u00a0 Should any provision of this Agreement or a
\nprovision incorporated in a condition of carriage or tariff pursuant to this
\nAgreement be determined to be invalid, illegal or unenforceable by a court of
\ncompetent jurisdiction, all other provisions shall nevertheless remain valid,
\nbinding and effective.\n<\/p>\n
  V 1. This Agreement may
\nbe signed in
\nany number of <\/p>\n
counterparts,
\nall of which shall constitute one
\nAgreement. Any carrier may become
\nParty to this Agreement by signing a counterpart hereof and depositing it with the Director General of
\nthe International Air Transport Association. (IATA).\n<\/p>\n
\u00a0 <\/p>\n
2. \u00a0\u00a0\u00a0 Any
\ncarrier Party hereto
\nmay withdraw from
\nthis <\/p>\n
Agreement by
\ngiving twelve (12) months written notice of withdrawal to the Director General of IATA and to the other carriers Parties to the Agreement.\n<\/p>\n
\u00a0 <\/p>\n
3. \u00a0\u00a0\u00a0 The
\nDirector General of
\nIATA shall declare
\nthis<\/p>\n
 Agreement
\neffective on November 1st, 1996 or such<\/p>\n
 later date as all
\nrequisite Government approvals
\nhave<\/p>\n
 been
\nobtained for this
\nAgreement and the
\nIATA<\/p>\n
 Intercarrier Agreement of 31st
\noctober, 1996<\/p>\n
\u00a0 <\/p>\n
 Singned
\non this __________ day of _______
\n1996.\n<\/p>\n
 IATA
\nis a non-Government body of
\ninternational Airways. It
\nmakes schedules of the scheduled
\nAirways and also decides about air tariffs.
\nTo provide for uniformity of
\naction by international Airways in case of loss of goods, death or causing
\ninjury to the passengers outside the
\nWarsaw Convention as modified by Hague Protocol..\n<\/p>\n
 The
\nissue arises for consideration as to
\nhow far the IATA Intercarrier Agreement on Passenger
\nLiability (IIA) and Measures to Implement the IATA Intercarrier Agreement (MIA)
\nwould be applicable vis a vis the provisions of the CA Act. First
\nwe go to the relevant provisions of the Air Act<\/a>. Admittedly it is schedule-II of the CA Act which is applicable and it
\nincorporates Warsaw Convention as modified by the Hague Protocol. Article 17<\/a>, Chapter III, which
\ncontains liability of the air carrier, provides that carrier is liable
\nfor damage sustained in the event of the death
\nor wounding of a passenger or any
\nother bodily injury suffered by a passenger if the accident which caused
\nthe damaged so sustained took place on board the aircraft or in the course of any of the operations of embarking or
\ndisembarking. Article 20<\/a> provides the exceptions which says
\nthat carrier is not liable if he proves that it had taken all necessary measures to avoid the damage or that it was impossible to such measures. Sub-Article (1)<\/a> of Article 22<\/a> limits the liability of the
\ncarrier for each passenger and limit is US $ 20000. To this there is exception contained in
\nArticle 25<\/a> which says the limit of
\nliability would not apply if the damage
\nis resulted from an act or omission of the carrier, his servants, or
\nagents, done with interest to cause damage
\nor recklessly . We quote these provision extensively:\n<\/p>\n
17. The carrier is liable for damage sustained
\nin the event of the death or wounding of a passenger or any other bodily injury
\nsuffered by a passenger if the accident which caused the damage so sustained
\ntook place on board the aircraft or in the course of any of the
\noperations of embarking or disembarking.\n<\/p>\n
\u00a0 <\/p>\n
20. The carrier is not liable if he proves that
\nhe and his servants or agents have taken all necessary measures to avoid the
\ndamage or that it was impossible for him or them to take such measures.\n<\/p>\n
\u00a0 <\/p>\n
22(1) In the ca+rriage of persons the liability
\nof the carrier for each passenger is limited to the sum of 2,50,000
\nfrancs. Where in accordance with the
\nlaw of the Court seized of the case, damages may be awarded in the form of
\nperiodical payments the equivalent capital value of the said payments shall not
\nexceed 2,50,000 francs. Nevertheless
\nby special contract , the carrier and the passenger may agree to a higher limit
\nof liability.\n<\/p>\n
\u00a0 <\/p>\n
25. The limits of liability specified in
\nArticle 22<\/a> shall not apply if it is proved that the damage resulted from an act
\nor omission of the carrier, his servants or agents, done with interest to cause
\ndamage or recklessly and with knowledge that damage would probably result,
\nprovided that in the case of such act or omission of a servant or agent it is
\nalso proved that he was acting within the scope of his employment.\n<\/p>\n
\u00a0 <\/p>\n
\u00a0 <\/p>\n
 A
\nconjoint reading to IIA, MIA and Articles 17, 20 and 22
\nof Warsaw Convention would show that Airways were conscious of the fact
\nthat Warsaw Conventions limit of liability has not been amended since 1955
\nafter the Hague Protocol and the liability is grossly inadequate in most
\ncountries and that international Airways
\nhave previously acted together to increase them to the benefit of
\npassengers. IIA and MIA apply in the
\ncase of claim for death, wounding, bodily injury of a passenger within the
\nmeaning of Article 17<\/a> and there would be no limitation of liability and
\ncompensation would be determined and awarded
\nwith reference to law of domicile of the passenger. Carrier shall not avail of any defense
\nunder Article 20(1)<\/a> with respect to such compensation which does not exceed
\nUS $ 1,35,000.\n<\/p>\n
 At the time of his
\ndeath, Sajeev Bhatia was about 44 years
\nof age. He was in business and partner
\nof Laborate Pharmaceeuticals
\n(India). Kenyan Airways was approached by the Complainants
\nthrough Ajay Bhatia, brother of the deceased, to know the modalities for
\nmaking a claim on account of unfortunate death
\nof Sanjeev Bhatia. Kenyan
\nAirways informed Ajay
\nBhatia that it had
\nengaged services of Mr. Hoshang Nanavati, Solicitor of Mulla & Mulla
\nCraigie Blunt and Caroe, Mumbai to deal
\nwith all the claims arising in India and that he should be contacted. On 15.2.2000 complainants through Aditya Bhatia (son of the deceased) as
\npartner of Laborate
\nPharmaceuticals (India) wrote a letter
\nto Mr. Nanavati requesting him to send the modalities to make the claims for
\nthe death of Sanjeev Bhatia. On
\n26.2.2000 Anita Bhatia(wife of the deceased)
\nsent the claim form for the loss
\nof life of her husband, duly signed and
\ncompleted in all respects. She
\nrequested for immediate settlement of the claim. A reminder by Fax was sent on
\n10.4.2000 where she wrote that
\nshe had not received any reply after she had submitted her claim.
\nMr. Nanavati immediately responded by Fax on the same day wherein he expressed his surprise over the
\ncontents of the Fax of Anita Bhatia.\n<\/p>\n
Mr. Nanavati said that
\nimmediately on receipt of letter dated
\n26.2.2000 he had telephoned Ajay Bhatia, brother of the deceased, and explained to him legal position, that
\nthe compensation was to be
\nassessed basically by reference to the
\npecuniary loss sustained by the family
\nas a result of the death. Mr. Ajay
\nBhatia was requested to send a copy of the return filed by the deceased or other appropriate evidence of his
\nincome having regard to the fact that
\na very substantial income figure has
\nbeen mentioned in the Claim Form
\nwithout giving any details as to how that
\nfigure had been arrived at or giving
\nany other evidence in regard thereto.
\nThis had not so far been done.\n<\/p>\n
Thereafter, it would appear,
\ndocuments were forwarded by Ajay Bhatia showing the income of the
\ndeceased Sanjeev Bhatia. On
\n20.4.2000 an agreement was arrived at
\nand was duly signed by all the
\ncomplainants and witnessed
\nby S.K. Bhatia (brother in law of the deceased ) and Mr.
\nNanavati, Solicitor and Advocate.\n<\/p>\n
This agreement is on non-judicial stamp paper of Rs.120\/-.
\nUnder this agreement US $ 70,800 was agreed to be payable as total
\ncompensation as a result of death of Sanjeev Bhatia in the air crash. Same day a discharge voucher duly signed by same very persons signing the
\nagreement for having received the amount was given. On 4.5.2000 a letter was
\nwritten by M\/s. Mulla & Mulla & Craigie Blunt & Caroe to Anita Bhatia stating that an amount of US $ 70,400 had been remitted
\nto them as compensation payable on account of death of her husband and that
\nshe had also requested that she be reimbursed the air fare of herself and her
\nson from Panipt to Bombay and back which amounted to Rs.20,400\/- (US $ 470),
\nand thus a cheque for Rs.30,95,968.90
\nequivalent to US $ 71,270\/- was being sent to her. It was acknowledged
\nby letter dated 9.5.2000 of Anita Bhatia.
\nAs far as Kenayan Airways is
\nconcerned matter rested at that till, as noted above, notice was issued by
\nthe lawyers of the complainants. It
\nwould be seen it were rather the
\ncomplainants who wanted settlement with
\nall the promptitude.\n<\/p>\n
 Now a claim was made that Kenyan Airways was liable to pay Rs.2,22,91,055.80 as
\nunder:\n<\/p>\n
\u00a0 <\/p>\n
 a) Compensation payable to the petitioners Rs.
\n2,01,70,420\/-\n<\/p>\n
 on account of death of
\nShri Sanjeev Bhatia.\n<\/p>\n
\u00a0 <\/p>\n
I.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\n<\/p>\n
Interest at the rate of 24% per annum from the Rs
\n49,66,604.80<\/p>\n
date of
\ndeath till 1.4.2001<\/p>\n
\u00a0 <\/p>\n
 c) Mental harassment and injury caused to
\nthe Rs. 2,00,000\/-\n<\/p>\n
 petitioners
\ndue to the threat given by the
\nrespondent.\n<\/p>\n
\u00a0 <\/p>\n
 d) Legal fees Rs.\n<\/p>\n
50,000\/-\n<\/p>\n
 ——————\n<\/p>\n
 TOTAL: Rs.2,53,87,024.80<\/p>\n
 Less
\namount received Rs. 30,95,968.80<\/p>\n
 ——————\n<\/p>\n
\u00a0 <\/p>\n
 Amount
\npayable Rs.2,22,91,055.80<\/p>\n
 ———————\n<\/p>\n
\u00a0 <\/p>\n
 This
\namount is claimed as per
\nthe two agreements IIA & MIA.\n<\/p>\n
It is stated that under these agreements even the minimum amount payable as compensation would be US $
\n1,35,000 while settlment arrived at was for US $ 70,800\/-.. It was stated in the notice of the lawyer that these two documents (IIA & MIA) were not disclosed by Kenyan Airways with the intent to deprive
\nthe complainants of their lawful
\namount of compensation and to induce them to enter into the
\nagreement dated 10.4.2000. This
\napart there has been allegations of undue influence etc. It was also mentioned in the notice that principles of Motor Vehicles Act<\/a>, 1988
\nwould apply in arriving at the correct
\namount of compensation<\/p>\n
 Though the provisions under CA Act limit the liability, in the present case
\nto US $ 20,000 but then under sub Article (1)<\/a> of Article 22<\/a> this limit would
\nnot apply when there is a
\nspecial contract under which the carrier and the passenger may agree to a
\nhigher limit of liability. The special contract in the present case by which Kenyan Airways and Sanjeev Bhatia
\nagreed to a higher limit of liability
\nwould be MIA terms of which were accepted by the former being
\nmembers of IATA. An argument was sought to be raised, more
\nperhaps in desperation than anything else, that it is the air ticket
\nwhich contains the terms of the contract between the air carrier and the
\npassengers we do not find any such special contract. Relevant clauses of the air ticket have been brought on
\nrecord. But then how come that in spite of the fact that law
\nlimits the liability the US $ 20,000 in the present case, Kenyan Airways agreed to
\npay US $ 70,800\/-. Certainly
\nthis was on account of the two agreements namely IATA Intercarrier Agreement on Passenger Liability (IIA) and Measures
\nto Implement the IATA Intercarrier Agreement (MIA). Kenyan Airways cannot be
\npermitted to take a stand contrary to the terms of IIA & MIA and particularly having agreed not to invoke the limit of liability of US $ 20,000<\/p>\n
 The
\nfact that Kenyan Airways agreed to pay above US $ 20,000 as provided under Article 22(1)<\/a>
\nof the Second Schedule to the Air Act<\/a>, would that show that it agreed not to
\navail of any defence under Article
\n20(1)<\/a> of the Conventions with respect
\nof that portion of such claims
\nwhich did not exceed US $ 1,35,000 is a
\nquestion which can be answered after we examine the MIA completed by the Kenyan Airways and filed with IATA. This has not been produced. Subject to that it
\nwould not mean that Kenyan Airways agreed that it would pay a minimum of
\nUS $ 1,35,000 on account of death of the passenger. These provisions do not
\nprovide requiring an air carrier to pay any minimum figure of
\ncompensation the figure of SDR 100,000
\nequivalent of approximately US $ 1,35,000.
\nIt would not be minimum liability figure, but a sum to which an air carrier is precluded from raising
\nany defence under Article 20(1)<\/a> of the Conventions. The defence that an carrier would take under Article 20<\/a> is that
\ncarrier is not liable if it proves that
\nhe, his servants or agents have
\ntaken all necessary precaution to avoid damage
\nor that it was impossible for
\nhim or them to take such measures. Only
\nthis defence an air carrier would not take if the claim made is below US $ 1,35,000. If the claim is over and above US $ 1,35,000 then there is no bar
\non the air carrier to take any defence under Article 20<\/a> of the Air Act<\/a> for
\nthe amount in excess of US $ 1,35,000. According to Kenyan Airways therefore, there
\nis no provision under the aforesaid MIA
\nagreement which could allow award of compensation
\nof US $ 1,35,000 on account of death of passenger without anything more.\n<\/p>\n
 Under the MIA
\nin pursuance to the IIA entered
\ninto on 31.10.1995 the international air carriers agreed to implement that
\nagreement by incorporation that:\n<\/p>\n
(i) \u00a0\u00a0\u00a0 a
\ncarrier shall not invoke the
\nlimitation of liability under
\nArticle 20(1)<\/a> of the
\nConvention and <\/p>\n
(ii) \u00a0 to avail itself
\nany defence under Article 20(1)<\/a> of the
\nConvention in respect of that portion of that claim which does not exceed SDR 100,000 approximately US $ 1,35,000 except that such waive is limited to the
\namounts as may be prescribed..\n<\/p>\n
 Kenyan Airways has rejected
\nthe stand now taken by the complainants and has referred the circumstances under which the agreement came to
\nbe concluded and the discharge vouchers signed. They say after having accepted the amount with their free consent
\ncomplainants could not go back and
\nclaim higher amounts. They say that
\nthe claim was settled on proof-of-loss basis without reference
\nto any limit as contained in the
\nWarsaw Convention.\n<\/p>\n
 Complainants
\ncame to know of the existence of IIA and MIA subsequent to their signing
\nthe agreement and the discharge voucher.
\nThe agreement and the voucher do not at all refer to these two documents.
\nIt is difficult to accept the
\nproposition as advanced by Kenyan Airways that complainants supposedly should have
\nknown the existence of these two
\ndocuments as these two documents could easily be discovered. If that was so there was then no need for
\nKenyan Airways to send these two documents to the complainants with their
\nreply. Existence of these documents
\ncould not have been known to a common man.
\nPrinciple of ignorance of law
\ndoes not apply as these documents
\ndo not constitute any law.\n<\/p>\n
Kenyan airways do not say if the
\ncontents of IIA and MIA were ever brought to the notice of the
\ncomplainants. Knowledge of these two documents was vital to a fair agreement.\n<\/p>\n
 As to how the amount of
\nUS $ 70,800 has been arrived at we were
\nnot told by Kenyan Airways . It is
\nstated by Kenyan Airways that the amount was
\narrived at on the basis of
\nproof-of-loss basis without reference to any limit. Kenyan Airways do not
\ntell us as to what formula was applied to arrive at this figure. We are inclined to believe the version of
\nthe complainants that they did not sign the agreement and gave discharge
\nvoucher with their informed consent.
\nThey were certainly acting under the mistaken belief and unless they
\nagreed to accept the figure of US $ 70,800
\nthey would have to face the prospect of tortuous civil litigation in a Civil Court even to
\nget US $ 20,000. Existence of these two documents were not disclosed
\nwhich in our opinion it was the duty of the Kenyan Airways to do so who were in full knowledge of the
\nsame and were bound by the same.\n<\/p>\n
 As noted above, the
\ncompensation had to be arrived at as per law of the country. For this we have
\nthe provisions of Fatal Accidents Act<\/a>, 1855,
\nMotor Vehicles Act<\/a>, 1985 various decisions of the Courts and
\nthe recent decision of the Supreme Court in the case of M.S.
\nGrewal & Anr. Vs. Deep Chand
\nSood & Ors. (2001) 7 JT 159.\n<\/p>\n
 To restate
\nit is the stand of the Kenyan Airways
\nthat claim had been settled wholly in accordance with Warsaw Convention read with the said IIA and MIA, both of which have been signed by Kenyan
\nairways. It was stated that Kenyan
\nAirways had given instructions to its
\nSolicitor\/Advocate to settle all claims
\narising out of air accident in question on proof -of -loss basis without reference to such limit of liability
\nof US $ 20,000 under the Warsaw Convention as incorporated in the Act. It was then stated in the claim form submitted by the complainants, Sanjeev Bhatia, the deceased, was shown having
\nannual income of Rs.16,81,035\/-. With
\nthe reply to the notice of the complainants, Mulla & Mulla & Craige
\nBlunt & Caroe, Advocates and Solicitors
\nalso sent copies of IIA and MIA.\n<\/p>\n
No doubt a settlement has been arrived at. But if it is in accordance with law of land, is the question before us. Has the amount of compensation arrived at
\nkeeping in view the relevant factors
\nand have those factors been applied in
\nthe given situation? If the figure so arrived at is less than
\nthe amount of compensation stated to
\nhave been settled, the other question is if it was with the free consent of the complainants pales into insignificance as the complainants would
\nnever have consented to a lower figure. It will therefore be for the Kenyan Airways to spell out the details as to how the amount of US $
\n70,000 as compensation was computed.\n<\/p>\n
 Before concluding we would say that after going through the
\nrecords of the case as to how
\nsettlement has been arrived at, we agree with the Kenyan Airways that allegations made against
\ntheir Advocate\/ Solicitor was not proper and made in bad taste. We are, however, of the view that making
\nallegation against Solicitor and
\nAdvocate, complainants were ill advised.\n<\/p>\n
 We would, therefore,
\ndirect Kenyan Airways to file an affidavit
\nthe details as to how the figure of US $ 70,000 was arrived at keeping
\nin view the age, income and other relevant parameters for fixing the
\ncompensation in the case of death by accident of a person. Let this
\naffidavit be filed within four weeks of the receipt of this order.\n<\/p>\n
 To
\nbe listed on 26th September,
\n2002 for directions and further proceedings.\n<\/p>\n
\u00a0 <\/p>\n
J<\/p>\n
(JUSTICE
\nD.P. WADHWA)<\/p>\n
  PRESIDENT<\/p>\n
\u00a0 <\/p>\n
J<\/p>\n
(J.K.\n<\/p>\n
MEHRA)<\/p>\n
 MEMBER<\/p>\n
\u00a0 <\/p>\n
(RAJYALAKSHMI
\nRAO)<\/p>\n
 MEMBER<\/p>\n
\u00a0 <\/p>\n
(B.K.\n<\/p>\n
TAIMNI)<\/p>\n
  MEMBER<\/p>\n
\u00a0 <\/p>\n","protected":false},"excerpt":{"rendered":"
National Consumer Disputes Redressal Mrs. Anita Bhatia & Ors. vs Kenyan Airways on 2 August, 2002 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI \u00a0 \u00a0 ORIGINAL PETITION NO. 130 OF 2001 \u00a0 Mrs. Anita Bhatia & Ors. Complainants \u00a0 Vs. \u00a0 Kenyan Airways Opposite Party \u00a0 BEFORE: HONBLE MR. JUSTICE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-257204","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nMrs. Anita Bhatia & Ors. vs Kenyan Airways on 2 August, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mrs-anita-bhatia-ors-vs-kenyan-airways-on-2-august-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mrs. Anita Bhatia & Ors. vs Kenyan Airways on 2 August, 2002 - 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