Kochi: The families of victims of the Air
India Express crash in Mangalore last year are entitled to a
minimum compensation of Rs 75 lakh each, the Kerala High Court
held on Wednesday.
Justice P R Ramachandran Menon passed the order while
allowing a petition filed by Abdul Salam and Ramla, parents of
24-year-old B Mohammed Rafi, who was killed in the crash.
158 passengers and crew on board the Air India aircraft
from Dubai had perished in the worst air disaster in the last
decade, when the plane caught fire after one of its wings hit
a hillock before landing at Kenjar in Mangalore.
The deceased`s brothers and sisters are also party to the
petition. Union government and National Aviation Company
(erstwhile Air India) are the respondents in the case.
There were 166 persons on board the flight IX-892, piloted
by a Serbian national. Operating the Boeing 737-800, the pilot
had first tried to land and later attempted to gain altitude.
The court held that the carrier was liable to pay no fault
liability of one lakh SDR (Special Drawing Rights equal to Rs
75 lakh) to the petitioner. The SDR is a special currency
issued by IMF. This is apart from whatever other compensation
the petitioners are entitled to.
The petitioners prayed for a direction to settle the entire
statutory claims made under the provision of the Air Act 1972
from the respondents on the death of Rafi. They had sought Rs
1.5 crore as compensation.
Noting that India was a signatory to the Montreal
Convention, the court said, "It is clear that the intention of
lawmakers was to bring about a parity in the matter of
payment of compensation to the passengers, irrespective of
class of travel, while providing for a `two tier system` of
compensation as adopted in Montreal convention."
The "first limb" of compensation as stipulated under Rule
21(1) of the Third schedule was with the said intent to
provide the same as the "minimum compensation" payable in
respect of death or the bodily injuries subject to the
satisfaction of extent of damage, the court said.
"Since the extent of damage to any injury cannot be
anything more than death", no further proof is necessary to
have sanctioned the minimum compensation of "Rs 1 lakh SDR"
in the case of death and this is the mandate of the Statute,
it held.
The court said it was of the "firm belief" that Mohammed
Rafi, who lost his life like the several others, was not
liable to be discriminated by the respondents, restricting the
compensation with reference to his age, income or the
dependency of the members of the family.
The petitioners were entitled to have a "minimum of one
lakh SDR" as compensation payable under the Statute based on
the Montreal Convention treating the matter as "no fault
liability" which can in no case be "absolved or limited by the
carrier under any circumstances", it said.
About Rs 20 lakh has already been paid to the petitioners
and the rest should be paid in a month`s time, it added.
The petitioners said the deceased, working in UAE was
returning home to Kumbala in Kasaragod in the ill-fated
flight.
They said that the National Aviation Company Ltd, put forth
an "unconscionable" demand, allegedly at the instance of
their insurers, to come to a settlement for a total sum of Rs
35 lakh in full and final settlement.
Against this, the petitioners approached the High Court
seeking a declaration and enforcement of their rights,
referring to the mandate of the Montreal Convention.
The air crash was solely on account of lapse on the part of
the pilot and in turn the sheer negligence of the National
Aviation Company, they said.
The company filed a counter stating that the matter has to
be dealt with as per the provision of the Carriage by Air Act
1972, as amended by Montreal Convention of 1999 to the
exclusion of all other laws in force in India.
Referring to the fact that the deceased was aged 24 and
was "employed as salesman in a supermarket, earning a salary
of 2000 AED (RS 25,000 per month)", the maximum compensation
was contended as much below Rs 35 lakh and accordingly the
amount was offered as compensation payable in "full and final
settlement", which was unacceptable to the petitioners.
PTI
