Chapter 7

Chapter 7

WARSAW REGIME AND THE INDIAN LAW

Effective implementation of international air law is primarily dependent on the

domestic legal systems of participant state. Hence, in this Chapter, an attempt is made

to explain as to how the Warsaw regime has been incorporated in the Indian law.

Besides, the Indian Contract Act, the Indian Code of Civil Procedure, and the Indian

Aircraft Act, 1934, replaced by the Carriage by Air Act, 1972. The liability regime

of the Air Carrier under the Warsaw Convention has, in fact, been enshrined in the

Carriage by Air Act 1972. The questions of application of Principles of private

international law, Common Law and Law of Torts are most relevant in respect of

claims arising out of international air transportation.

Developments of Civil Aviation in India

At the outset,, it is important to trace the history of civil aviation which plays

a significant role in the economic, social, cultural and defence needs of the country.

India's maiden air flight took place on 18 February 1911, when Henry Piquet flew

a Humber biplane from Allahabad to Nasik Junction, covering a distance of six miles.

It was the first official air mail service of the world. 1 In 1926, the Indian Air

M.S. Sisodia, "Contributions by Indian Pioneers and Scholars lowards the development of Civil Aviation and Air Law and Policy in India", in V.S. Bhatt, V.S. Mani, VB. Reddy, eds., Air La\\' and Pv/i(y in India (New Delhi, 1994), pp.397-415.

207

208

Board, an advisory Committee of the senior official, made some recommendations to

the Government of India for the rapid development of Civil aviation, both domestic

and international. Consequently, the Department of Civil Aviation was created and

Francis Shelmerdine was appointed as First Director of Civil Aviation in India in

1927. In 1932, the pioneer of Civil Aviation in India, JRD Tata, launched the first

Indian Air- Carrier known as Tata Sons Ltd. Tata Sons Ltd., was nationalised and in

1953 came to be known as Air India which is now a well known international Air

Carrier. The significant contribution of towards the development of civil aviation was

well recognized and he was conferred Edward Warner Award by ICAO, which is

considered the highest award in the field of Civil Aviation in the world. 2 JRD was

the first Asian who became the president of the lATA, succeeding Richard J. Ferri

of United Airlines of USA in 1958. Ferri had said, "We are indebted to people like

Mr. JRD Tata who had the foresight and the pioneering spirit to build an industry

into a great status which it presently enjoys. "3 Even after the nationalization, the

Government of India appointed JRD as Chairman of both Air India and Indian

Airlines. He headed many committees and a made major contribution to both civil

and military aviation in lndia. 4

The air aviation remained suspended during the Second World War but the

exigencies of the War led to the exploration and possibility of manufacturing aircraft

2 Ibid., p.399.

3 A. Sen, Five Golden Decades of Indian Aviation (Bombay, 1978), p.11.

4 Ibid.

209

in India; the Hindustan Aircraft Ltd., was established in 1940 by the then Mysore

Government. The Indian Government later took over its management. The first

aircraft--HT-2 Trainer aircraft--was designed and manufactured in India. 5

India was represented in the Chicago Conference of International Civil

Aviation which is a watershed not only in the history of International air law but also

of civil aviation transport in India. 6 Besides giving effect to the Warsaw system

through the Carriage By Air Act~ 1972, the Indian Parliament also passed the Tokyo

Convention Act, 1972, The Anti-Hijacking Act, 1982, and Suppression of Unlawful

Acts Act against the Safety of Civil Aviation Act, 1982, to ensure safety, security and

orderly growth of international air transport in India. In order to develop, the

airports, suitable to serve international Carriers, India enacted "The International

Airports Authority Act. 1971 ", with a view to providing for the constitution of an

authority for the management of certain aerodromes where international air transport

services are operated or are intended to be operated, ap.d for matters connected

therewith. The benefits of air transport are so vital and numerous that it is hard to

imagine the air transportation without an efficient system of airports and related

infrastructure.

5 Ibid.

6 S. Bhatt, "Some Developments m Airlaw", The Journal of Indian Law Institute, vol.34, no.2, p.287.

210

Air Legislations

The earliest legislation in India was enacted as the Indian Airships Act, 1911,

intended to regulate the manufacture, possession, use, sale, import and export of

Airships. According to G.S. Sachdeva it was a presumptuous enactment because

barring the Humber flights in 1911, there were no regular flying operation in India

till the late twenties. Further, the regulation of manufacture of aircraft through this

act appears equally ludicrous because such activity did not commence in India for

another four decades. 7 Then followed the Aircraft Act, 1934.

Carriage of Air Act, 1934

India is a party to ·the Warsaw Convention; 1929, an international treaty

governing the liability of the Air Carrier in respect of international carriage of

passengers, baggage and cargo. In order to give effect to the provisions of the

Convention for the Unification of Certain Rules relating to International Carriage by

Air, India enacted the Carriage of Air Act, 1934 (20 of 1934) following a British

enactment. The provisions of this Act have been extended to domestic

carriage, 8 subject to certain exceptions, adaptations and modifications, by means of

notifications issued in this respect. There were, however, modifications and

amendments to the Warsaw Convention from time to time, such as the Hague

Protocol, 1955, and the Four Additional Montreal Protocols, 1975. In order to

7 G.S. Sachdeva, International Air Tramportarion (New Delhi, 1987), p.207.

8 The Carriage of Air Act, 1934, Section 4.

211

incorporate and give effect to these amendments of the Warsaw Convention, the

Carriage By Air Act, 1972, was passed by Parliament as Act 69 of 1972.

The Carriage By Air Act, 1972

As stated in its preamble, the Carriage By Air Act, 1972, was enacted,

to give effect to the Convention for· the unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on the 12th day of October 1929, and to the said Convention as amended by the Hague Protocol on the 28th day of September 1955, and to make provisions for applying the rules contained in the said Convention in its original form and in the amended form (subject to exceptions, adaptations and modifications) to non-international carriage by air and for matters connected therewith. 9

This Act came into force on 15 May 1973. 10 There is no separate statute for

domestic air carriage in India.

Application ofthe Warsaw Convention

The Warsaw Convention has been made applicable by Section 3 which states

as under:

( 1) The rules contained in the First Schedule being the proviSlons of the

Convention relating to the rights and liabilities of Carriers, passengers, consigners,

consignees and other persons shall be subject to the provisions of this Act, and have

9 The Carriage By Air Act, 1972, Preamble.

10 Gazette of India, Part-11, 26 March 1973, Section 3(ii).

212

the force of law in India in relation to carriage by all to which these rules apply,

irrespective of the nationality of the aircraft performing the carriage. 11

(2) The Central Government may, by notification in the official gazette, certify

as to who the High Contracting Parties to the Convention are in respect of what

territories they are parties to and to what extent they have availed themselves of the

provisions of Rule 36 in the First Schedule, and any such notification shall be

conclusive evidence of the matters certified therein.

(3) Any reference in the First Schedule to the territory of any High

Contracting Party to the Convention shall be construed as a reference to all the

territories in respect of which he is a party.

(4) Any reference in the First Schedule to agents of the Carrier shall be

construed as including a reference of servants of the Carrier.

(5) Every notification issued under subsection (2) of Section 2 of the Indian

Carriages and Air Act, 1934 (20 of 1934), and in force immediately before

commencement of this Act, shall be deemed to have been issued under sub-section

(2) of this section and shall continue to be in force until such notification is

superseded. 12

11 The Carriage By Air Act, 1972, Section 3.

12 Ibid.

213

The Amended Convention has been made applicable under Section 4 by virtl;le

of Schedule Second embodying the provisions of the amended Convention having the

force of law in India. 13

. The provisions of this enactment have also been extended to all scheduled

transport operators; Air India, even though not international, but are authorised Air

Carriers. 14 The Act purports to empower a claimant to institute his claim in any

of the Courts in India having jurisdiction according to CPC. 15 Although under

Section 9 of the Carriage of Air Act, 1972, the Indian Carriage Air Act, 1934, stands

repealed and superseded, nevertheless Section 3(5) of the Act stipulates that every

notification issued by the Central Government under Section 4 of the repealed Act and

in force immediately before the Commencement of the superseding Act shall remain

in force until specifically amended, cancelled or repealed by a subsequent

notification. 16 The 1934 Law although repealed cannot be kept alive by cutting and

pasting method, in view of this numerous amendments. One of the major problems

of Indian aviation is the need to overhaul and revise the entire aviation law. The

Indian law still continues with its definition of "aircraft" to include "kites" among

13 Ibid., Section 4(1).

14 (Carriage by Air Act, 1972, Section 8), Government of India, Ministry of Tourism and Civil Aviation, Notification No.S.O. 186 (E), 30 March 1973.

15 Ibid., Section 7.

16 Ibid., Sections 9 and 3(5).

214

other things. 17 The Indian Government has yet to ratify many international Air

Law instruments including, the Geneva Convention, 1948, the Rome Convention,

1952, the Guadalajara Convention, 1961, the Guatemala City Protocol, 1971, the

Montreal Additional Protocol, 1975, the first, second, third and fourth Montreal

Protocols, and Convention on the Marking of Plastic Explosives. 18

Liability

The Air Carrier is liable, if it is a scheduled and international Carrier under

this Act, according to the Warsaw Convention, as amended. It is neither covered

under the Fatal Accident Act, 1855, nor by the Carriers Act, 1865 or Contract Act,

1872. The Central Government by notification under Section 8 applies the rules

contained in First Schedule and any provisions of Section 3 or Section 5 or Section

6 to such Carriage by air, not being an international Carriage by air, as defined by

the First Schedule, or Second Schedule as may be specified in the notification,

subject, however, to such exception, adaptation and modification, if any, as may be

so specified. Thus, the domestic Carrier is liable under Common Law as applicable

in England rather than Carriage by Air Act, 1972. The Central Government by virtue

of a notification issued on 17 December 1963, under the Carriage by Air Act, 1934,

17 V. S. Mani, V. Balakrishna Reddy, "The History and Development of Air Law - India, A Survey", in S. Bhatt, V.S. Mani, V. Balakrishna Reddy, eds. Air Law and Policy in India (New Delhi, 1994), p.31.

18 Ibid., p.32.

215

made it applicable to the domestic carriage and the presumption is that the said

notification is deemed to have made applicable the Carriage by Air 1972 also. 19

Liability in Case of Death

Section 5 of the Carriage by Air Act 1972, st,ipulates: 20

(1) Notwithstanding anything contained in the Fatal Accident Act, 1855 (13 of 1855) or any other enactment or rule of law in force in any part of India, the rules contained in the First Schedule and in the Second Schedule shall, in all cases to which these rules apply, determine the liability of a Carrier in respect of the death of a passenger.

(2) The liability shall be enforceable for the benefit of such of the members of the passenger family as sustained damage by reason of his death.

Explanation: In this subsection, the expression "member of a family" means wife ·or husband, parent, step-parent, grand-parent, brother, sister, half-brother, half-sister, child, step- child and grand-child.

Provided, that in deducting any such relationship as aforesaid any illegitimate per:son and any adopted person shall be treated as being, or as having, been the legitimate child of the mother and respective father or as the case may be of his adopters.

(3) An action to enforce the liability may be brought by the personal representative of the passenger or by any person for whose benefit the liability is under subsection (2) enforceable, but only one action shall be brought in India in respect of the death of any one passenger, and every such action by whomsoever brought, shall be for the benefit of all such persons so entitled as aforesaid as either are domiciled in India, or not being domiciled there express a desire to take the benefit of the action.

19 Government of India, Gazette Notification No.lOA/39-63, dated 17 December 1963.

20 The Carriage by Air Act, 1972 Section 5.

(4) Subject to the provision of sub-section (5) the amount rewarded in any such action after deducting any costs not recovered from the defendant, shall be divided between the persons entitled in such proportion as the Court may direct.

(5) The Court before which any such action is brought may at any stage of the proceedings, make any such order as appears to the Court to be just and equitable in view of the provision of the First Schedule or of the Second Schedule, as the case may be, limiting the liability of the Carrier and of any proceeding which have been or are likely to be commenced outside India in respect of the death of the passenger in question. 21

Persons Entitled to Claim

216

Under the Act, the eligibility to enforce the claim· is limited only to the

members of the family who sustain damage by reason of the death of the passenger.

Explanation (2) appended to the Section defines the members of the family as follows:

The persons who are thus entitled to claim are wife, or husband, parent, step-parent,

grand-parent, brother, sister, half-brother, half-sister, child, step-child and grand-

child, whether legitimate, illegitimate or adopted. There can only be one action in

India in respect of a passenger. The claim can be filed only by the personnel

representative of the passenger or by any person for whose benefit the liability is

enforceable. The amount decreed shall be divided by the Court amongst persons

entitled to it in such proportion as the Court may deem appropriate.

21 Ibid., Section 5.

217

Under Section 6 the francs mentioned in the Schedule are to be converted in

rupees at the rate of exchange prevailing at the date on which the amount of damage

to be paid by the Carrier is taxed by the Court. 22

The Act empowers the High Court to make rules of procedure for providing

for all matters which may be expedient, to enable suits to be instituted and carried

on.23

Sovereign Immunity

As noted earlier, the Warsaw ConvenHon, 1929, and the Indian Carriage by

Air Act, 1972, are silent about of a foreign sovereign in relation to the Air Carrier

being operated by the State. The Delhi High Court ·in the case of Deepak Wldhwa

Vs. Aerojlo?-~ held that a decree passed by the Delhi District Court under the

Warsaw Convention, 1929, for loss of cargo, is a nullity because no prior permission

from the Central Government was obtained by the claimant under Section 86 of the

Code of Civil Procedure, 1908, which stipulates as under:

No foreign state may be sued in any court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to the Government. ..

In view of the aforesaid the Court held: 25

22 Ibid., Section 6.

23 Ibid., Section 7(2).

24 [1983] 24 DLT. 1.

25 The Code of Civil Procedure, 1908, Section 86.

There is no provision in the matter of sovereign immunity contained in the Act. The Code [i.e., CPC] deals with procedural matters, that is, the matters relating to the machinery for the enforcement of substantial rights. These substantive rights may be contractual or flowing from the statutory provisions, including the Act. The Act allows suits to be filed in a Civil Court relating to the matters under it, but the proceeding to be followed in such suit will be governed by the provisions of the Code. The Act does not confer jurisdiction on the Court or provide a special procedure in dealing with claims arising out of, or under the statutory provisions. The suit had to be determined according to the law of procedure laid down in the Code. No foreign state could be sued in any Court otherwise competent to try the suit except with the Consent of the Central Government Certified in writing by a Secretary of the Government. 26

218

The above judgement is, with due respect~ not in accordance with international

practices, and is against the terms and spirit of the rules of private international air

law as enshrined in the Warsaw Convention, 1929, and even the provisions regarding

suits against the High Contracting Parties as stipulated in the Section 7 of the Act

which read as. under:

Every High Contracting Party to the Convention or the amended Convention, as the case may be, who has not availed himself of the provisions of the Additional Protocol thereto shall, for the purpose of any suit brought in a court in India in accordance with the provisions of Rule 2827 of the First Schedule or of the Second Schedule, as the case may be, to enforce claim in respect of carriage undertaken by him, be deemed to have submitted to the jurisdiction of that Court and to be a person for the purpose of the Code of Civil Procedure, 1908.

Under the English Common Law as well as the private international law and

the State Immunity Act, 1978, the distinction is made between the sovereign function

26 Ibid.

27 The Wzrsaw Convention, 1929, Article 28.

219

and the commercial activities of the State, and the sovereign immunity is either

deemed to have been waived or is not available. The House of Lords, in the case of

Trend/ex Trading Corporation Vs. Central Bank of Nigeria, 28 put the seal on

foreign immunity in commercial transactions.

The Supreme Court of India in the Mirza Ali Akbar Vs. United Arab

Repubiic?-9 held that the doctrine of immunity recognized by intervention is to a

certain extend modified by it (a) when the Central Government gives consent to

institute suit against it, and (b) the municipal courts of India are bound to give effect

to the provision of the law which modifies the doctrine of immunity under the

international law. Even otherwise Section 86 of the CPC does not speak of the

jurisdictional immunity of the departments and corporations of the foreign

governments.

Even under the Government Trading Taxation Act, 1926, no immunity is

given by the Government of India from tax liability to a fo~ign s~te engaged in

business and trade in India.30 The Federal Court in A.H. Wzdia Vs. Commissioner

of Income Tax held that the sovereign could not claim immunity from taxation of his

income if he is engaged in business and trade in India. 31 The Supreme Court in the

28 LR [1977] QB 529.

29 AIR 1966 SC 230.

30 The Government Trading Taxation Act, 1926.

31 AIR 1948, Bombay 87. AIR 1949 FC 18.

220

case of Harbhajan Singh Dhalla Vs. Union of India32 as per Justice Savyasachi

Mukherjee, held:

In view of growing international trade and commerce, the growth of national law in this aspect has to be borne in mind while interpreting the provision of Code of Civil Procedure; Section 86 must be in consonance with the basic principles of the Indian Constitution. 33

The Supreme Court of India in the case of Shanti Prasad Aggarwal and others

Vs. Union of India34 directed the Central Government that while considering an

application under Section 86 of the CPC it must state clearly and intelligibly its

reasons for rejecting the application. The provisions of Section 86(2)(b) of the Code

itself stipulates that such a permission should be given if (the foreign state) by itself

or another trades within the local limits of jurisdiction of the Court. 35 Thus under

Warsaw Convention, 1929, and under the Carriage by Air Act 1972,

every ,_High Contracting Party to the Convention or the amended Convention, as the case may be, for the purpose of such suits in Indian courts shall be deemed to have submitted itself to the jurisdiction of that Court in India and accordingly each High Contracting Party shall further be deemed to be a person sui juris generis and a legal entity for the purpose of Civil Procedure Code, 1908.36 However, the Court is not authorised to attach or sell any property of a High Contracting Party to the Convention or to the amended Convention". 37

32 AIR 1987, Section 9.

33 Ibid.

34 AIR 1991, SC 84.

35 The Code of Civil Procedure, 1908. Section 86(2)(b).

36 Sachdeva, n. 7, p. 212.

37 The Carriage by Air Act, 1972, Section 7(3).

221

Thus, even though the claimant may have an award of compensation against a state

owned Air Carrier, he cannot take recourse to realize amount by distress.

Limitation Period

Under the Warsaw Convention the period of limitation to institute a claim in

respect of loss, damage, injury or death is prescribed as: "two years from the date

of arrival at the destination or from the date on which the aircraft ought to have

arrived or from the date on which the carriage shipped". 38 With regard to luggage

or goods under Rule 26(3), the person entitled to delivery "must complain to the

Carrier forthwith after the discovery of the damage and at the latest within three days

from the date of receipt in the case of luggage and seven days from the date of receipt

in the case of goods. In case of delay the complaint must be made at the latest within

'·

fourteen days from the date on which the luggage or goods have been placed at his

disposal" . 39 Every complaint must be made in writing upon the document of

carriage or by separate notices in writing despatched with the lines aforesaid. Failure

to complain within the time aforesaid shall lie against the Carrier, save in the case of

fraud on his part.

38 The Wzrsaw Convention, 1929, Article 29, Schedules I and II, rule 29.

39 Ibid, rule 26(2) and (3).

222

Under Article 29(2) the method of calculating the period of limitation shall be

determined by the law of the court seized of the case. 40 The question of ce

procedure shall be governed by the law of the court seized of the case.41

There are two questions to be answered with regard to the limitation period

prescribed under the Warsaw regime to bring about action.

1. Whether the limitation period can be extended; and

2. Whether the reduced period of limitation is violative of the domestic law.

The answer to these two questions is that the Indian court may extend the period of

limitation under Section 5 of the Limitation Act, 1963, which stipulates as under:

Any appeal or any application other than an application made under the provision of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period 4ll the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal. or making the applicable within such period. 42

As regards the second question, even though tqe limitation period prescribed

for filing a suit against a Carrier for compensation for non-delivery of, or delay in

delivering goods, i.e., for compensation for breach of contract under the Limitation

Act, 1963, 43 is three years, it does not in any way violate the provisions of the

40 Ibid., rule 29(2).

41 Ibid., rule 28(2).

42 The Limitation Act, 1963, Section 5.

43 The Limitation Act, 1963 Schedule, Articles 11 and 27.

223

Limitation Act or the Indian Contract Act, 1872. The Contract Act provides as

follows: 44

Every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract of the usual legal proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his rights is void to that extent.45

It was, therefore, held in Indian Airlines Corporation Vs. Keshavlal F.

Gandhi46 that the corporation was a common Carrier and, thus, not effected by the

provision of the Contract Act. An Air Carrier is insulated from the general provision

of the above said Act and is presently governed by lex specialibus viz., the Carriage

by Air Act, 1972.47 A special enactment overrides the general laws. This was also

the view taken by the Assam High Court in Rukananand Ajitsaria Vs. Airways (India)

Ltd.48

Domestic Air Transport

The Carriage by Air Act, 1972, applies to international carriage of goods and

passengers by air. There is no separate domestic legislations relating to internal air

transportation. But Section 8 of the Act empowers the Central Government to extend

44 The Indian Contract Act. 1872, Section 28.

45 The Indian Contract Act. 1872, Section 28.

46 AIR 1962 Cal. 290.

47 Sachdeva, n. 7, p,214.

48 AIR 1960, Assam 71.

224

the provisions of the Act to the Carriage by Air in India which is not an international

carriage. Such notification was issued on 17 December 1963.49 Therefore, the

provisions of the Indian Carriage by Air Act, 1934, became applicable and are still

in force. Thus, the Carriage, prior to 1963, was wholly a contract carriage governed

by English Common Law, which allows a public Carrier to acquire immunity for loss

or damages. The Court, therefore, had no option but to follow the decision of the

Privy Council, in Irrawaddy Flotilla Co., Vs. Bagwan Das;o in which it was' held

that "the liability of the common Carrier in India is not affected by the Indian

Contract Act". The Contract Act is not a complete code and the law applicable to a

common Carrier is the common law of England.

The position of liability of the international Carrier was worse than the

Warsaw Regime before the Carriages and Air Act, 1972, was made applicable. The

Calcutta High Court, in Indian Airlines Vs. Madhuri Chowdhury,51 upheld the

clause on the passenger's air ticket which totally exempted the Air Carrier from

liability. The exemption clause read as under:

The Carrier shall be under no liability whatsoever to the passenger (or his representative) for death, injury or delay to the passenger, or loss, damage, detention or any other services qr operation of the Carrier whether or not caused or occasioned by the act, neglect, or negligence or default of the Carrier or of the pilot flying, operational or other staff employees or agents of the Carrier or otherwise whosoever.

49 Government of India Notification No.GSR 1967, 11 January 1964.

50 [1891] 181 A 121 PC.

51 AIR 1965, Cal. 252.

225

The trial judge, Justice P.B. Mukherjee, as he then was, held the clause against

public policy as void under section 23 of the Indian Contract Act, but the High Court

reversed the judgement. 52 The Calcutta High Court felt that by virtue of the above

Privy Council decision the Courts in India were bound to hold that only the common

law of England would apply to Carriers by air in India and that law while, on the one

hand, imposing the liability of an insurer on the Carrier, permits him on the other

hand to reduce his liability by a special contract to zero, and in this respect there was

no difference whether he was a Carrier of goods or passengers. 53

Now that the Act of 1934 has been extended to home carriage also, the present

position appears to be that the Air Carrier is liable to the prescribed limits only. Thus

the Patna High Court held in Indian Airlines Corporation Vs. Akhleshwar

Prasad54 as under:

Dealing with the liability for loss of luggage in Chapter Ill, the Rule 22(2) prescribes the limit of the liability of the Carrier in the following terms: "(2) In the Carriage of registered luggage of goods, the liability of Carrier is limited to a sum of Rs. 80 per kilogram unless the consigner has made at the time when the package was handed over to the Carrier, a special declaration of the value at delivery and has paid a supplementary sum if the Carrier so requires. In that case the Carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that the sum is greater than the actual value of the consigner at delivery.

52 AIR 19065 Cal 252.

53 Avtar Singh, Law of Carriage: Air, Land and Sea, 3rd Ed. (New Delhi), p.104.

54 AIR 1986, Patna 306.

226

The plaintiff in this case did not make any special declaration of the value of his brief

case. The court had no option but to hold that the liability of the corporate amounted

to Rs.320.

Consumer Protection55

There is a growing awareness for consumer protection against corporate high-

handedness and trade malpractices throughout the world. The preamble to the Draft

Convention for the Unification of Certain Rules for International Carriages by Air,

1999, also recognizes "the importance of ensuring protection of the interests of

consumers in international Carriage by air and the need for equitable compensation

based on the principle of restitution". 56 In view of this, in India, the Consumer

Protection Act, 1986 (COPRA), was passed in furtherance of the Directive Principles

of State Policy enshrined in the Indian Constitution, and avowedly to ensure social

and economic justice. The Act was further amended in 1993 which has repealed and

replaced a 1993. Ordnance. 57 The Act provides a three-tier quasi-judicial machinery

at the National, State a~d District levels for redressing consumer grievances. 58 It

is significant to note that the Act recognises the role of the consumer organizations

55 G.S. Sachdeva, "The Relevance of Consumer Protection Act to Claims concerning Carriage by Air", in Bhatt, Mani, Reddy, n.l.

56 ICAO, SGMW/A5-l, 1998.

57 V.K. Agarwal, Consumer Protection Law and Practice (New Delhi, 1993), 2nd edn., p.10.

58 Ibid.

227

in assisting the consumer in seeking justice through the nationwide network of

consumer disputes redressal agencies as envisaged under the Act. 59 The provisions

of this Act shall be in addition to, and not in derogation of, the provisions of any

other law for the time being in force. A "complainant" means (a) a consumer, or (b)

any voluntary consumer association registered under the Companies Act, 1956, or

under any other law for the time being in force, or (c) Central Government or any

State Government who or which makes a complaint, or (d) one or more consumers,

where there are numerous consumers having the same interest as Section 2(1)(b) of

the Act.60 The "consumer" has been defined under the Act as any person

who: 61 " ... (ii) [hires or avails ofj any services for a consideration which has been

paid or promised or partly paid and partly prescribed or ~nder any system of deferred

payment includes any beneficiary of such services other than the person who (hires

or avails) of $ervices for consideration paid or promised, or partly paid and partly

promised, or under any system of deferred payment, when such services are availed

of with the approval of the first mentioned person. The consumer can file a complaint

for any defect or deficiency in goods or services and claim compensation. Thus, Air

Carrier and transport services are covered under this Act. It would be helpful to

evaluate some of the decisions under the Acts: 62

59 The Consumer Protection Act, 1986, Section 4.

60 Ibid., Section 2(1)b.

61 Ibid., Section 2(1)(d)(ii).

62 The Consumer Protection Act, 1986 and the Consumer Protection (Amendment) Act, 1993. ·

228

In the case of Indian Airlines Vs. Dr. V.J. Philip, 63 the National Consumer

Disputes Redressal Commission (NCDRC) reversed the judgement of the District

Forum, Kozhikode directing the Air Carrier to pay the complainant Rs.ll,OOO/- as

compensation for negligence in cancelling the flight due to bad weather condition.

The NS held that the Carrier was not negligent and would not be responsible for any

damage due to cancellation of flights, because bad weather and poor visibility were

not within the control of the Indian Airlines and could cancel a flight under Clause '

3 and 5 of the Non-International Carriages (Passengers and Baggage) Regulations,

1989, which are reproduced as under:64

Clause 3:

The corporation reserves to itself the right without assigning any reason, to cancel or delay the commencement or continuance of the flight or to alter the stopping place or places or to deviate from the route of the journey or to change the type or places or to deviate from the route of the journey or to change the type of aircraft in use without thereby incurring liability in damages or otherwise to the passenger or any other person on any ground whatsoever.

Clause 5:

The Corporation is not liable for damages occasioned by delay in the carriages and air of passengers or baggage. Similar conditions are mentioned on the ticket and it will form part of the contract between the parties.

The limitation period under the Warsaw Convention as well as under the

Carriage by Air Act is the same. Under Rule 30(1) of the Second Schedule to the

63 1997(1) Current Consumer Cases, p.217 (NS).

64 The Non-International Carriage (Passenger and Baggage) Rules, 1989.

229

Carriage by Air Act 1972, "The right to damage shall be extinguished if an action is

not brought within two years ... "65 Applying the said limitation period, the National

Consumer Disputes Redressal Commission, New Delhi, in Mls Ravi Exports (P) Ltd.,

and another Vs. Mls Air France Cargo,66 and Sawhney Exports House Pvt Ltd.,

V s. Pakistan International Airlines, 67 rejected the complaints as barred by time

because the claimants' actions were not brought within the specified period of two

years.

The National Consumer Dispute Redressal Commission (NCDRC) also

rejected the claim for deficiency in service performed by KLM, because the

complainant could not catch the connecting flight to New York, in the case of

Ravmeet Singh Bagga Partner, M/s B.R. Exports Vs. Mls KLM Royal Dutch Airlines

and anothe/'8 on the ground that the time taken in verifying the visa for USA of

the complainant was not a malafide act on the part of the KLM staff-- the checking

and screening for the validity of the travel documents is done as a measure of safety

and security of the passengers as well as the legal obligation of the Airlines and there

was no oblique motive in doing so in the case of the complainant.

65 Carriage by Air Act 1972, Rule 30(1) of Second Schedule.

66 1997 (1) CCC 227 (NS).

67 1993 (1) CCC 803 (NS).

68 1997(2) CCE 373 (NS).

230

In the case of Air India Vs. Mrs. Suganda Ravi Mashelka/J9 the NCDRC

rejected the claim of a passenger on the ground of force majeure during the Gulf

War, when the Air Carrier had to close its office in Kuwait and could not trace the

goods or related documents in respect of the baggage allegedly booked by the

claimant and, consequently, could not deliver the same. It was held that under Section

14(d) of the Consumer Protection Act, compensation is payable to the consumer for

loss or injury suffered by the consumer due to "negligence of the opposite party".

There being no evidence of negligence on the part of the Air Carrier, no claim is

tenable. 70

Foreign Judgements

This question has often arisen in the municipal courts; what effect can be

given to foreign judgements? or can they be enforced? Under the English Common

law, the position has been summed up by Blackburn J. in the case of Schilsby V s.

Westenhotz11 where he said, "The judgement of a court of competent jurisdiction

over the defendant imposes a duty or obligation or him to specify the sum for which

the judgement is given, which the Courts in this country are bound to enforce". The

Indian law on this matter has been enacted in Section 13 of the CPC with minor

69 1998( 1) CCC 83 NS.

70 The Consumer Protection Act, 1986, as amended by 1993 Act Section 14(d).

71 [1870] LR 6 L.B. 155 at p.159.

231

differences on matters in detail, the position is same as in English private

international law. 72 Section 13 of the Code stipulates as under. 73

A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they are or any of them claim litigation under the same matter, except:

(a) Where it has not been pronounced by a Court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) When it appears on the face of the proceeding to be funded on an incorrect view of international law or a refusal to recognize the law of the states in cases in which such law is applicable;

(d) Where the proceedings in which the judgements was obtained , are and opposed to natural justice;

(e) Where it has been obtained by fraud; and

(f) Where it sustains a claim founded as a breach of any law in force in the state.

The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgement, that such judgement was propelled by a Court of competent jurisdiction,. unless the contrary appears in the record; but such presumption may be displac~d by proving want of jurisdiction. 74

It is a well established rule of both English and Indian Law that no foreign

judgement can be enforced or recognized which has been pronounced by a court

having no jurisdiction in the case Moreover the judgement/decree passed ex parte

72 Paras Diwan, Private International Law (Delhi, 1988), 2nd Ed. p.617.

73 The Indian Code of Civil Procedure, 1908, Section 13.

74 [The Indian Code of] Civil Procedure, 1980, Section 14.

232

where the defender has not in any way submitted himself, or by International Law,

an absolute nullity", as it was held by the Privy Council in the case of Sardar Gujral

Singh Vs. Raja of Faridkot.15 In respect of a corporation or Air Carrier, it seems

· to be an established principle that the foreign court will have jurisdiction over it only

if at the time of trial it carries on substantial business there, or some definite, and

more or less permanent place in that country. 76 However, foreign judgements can

impeached if passed not on merit. In Babu Nemi Chand Vs. Y.V. Rao,71 the ex-

parte judgement was held not on merit. 78 Judgements opposed to natural justice,

based on fraud and contrary to international law are also not recognized. In Mallappa

Vellappa Bennu Vs. Raghavendra Sham Rao,19 the Bombay High Court refused

to recognize a foreign judgement as it was violative of the principle of submission to

the jurisdiction.

--Section 44-A of CPC on the reciprocal enforcement of foreign

decree80 provides as follows: the decrees of the foreign courts with which India

has reciprocal arrangement have been made enforceable as if they ~re decrees of

Indian courts. In reference to this Section the decree means "any decree or ju<:fgement

75 [1894] AC 670.

76 Paras Diwan, n.68, p.621.

77 AIR, 1946, Mad.448.

78 Ibid.

79 AIR, 1934, Bomb.390.

80 The Indian Code of Civil Procedure, 1980, Section 44A.

233

under which a sum of money is payable, not being a sum payable in respect of taxes

on other changes of like nature in respect of fine or penalty". 81

To summarize, the Carriage by Air Act, 1972, does not apply to internal or

non-international carriage of persons, baggage or goods. However, Section 4 of the

Act empowers the Central Government to issue notification applying the rules in the

First Schedule or Second Schedule to internal Carriage by Air. In absence of any

notification, there are no statutory rights, duties or liabilities of Carriers and their

passengers and consignees, of goods in respect of non-international carriage by

air. 82 The liability of the Indian Carrier or domestic air transportation is governed

by the English Common Law and not under the Indian Contract Act, 1872. The

Warsaw Convention and all of the other related instruments are not enforceable unless

adopted by the Parliament of India into an enactment. The Civil Courts in India have

jurisdiction to entertain complaints against the international Air Carrier, under the

CPC 1908.83

The Consumer Protection Act, 1986, as amended by the and Consumer

Protection (Amendment) Act, 1993,84 the District Forums, "State Commission"

and the "National Commission" as defined under Section 2, and constituted under

Section 9, have the jurisdiction and competence to hear complaint of consumer against

81 Ibid., Explanation (3) to Section 44A.

82 Carriage by Air Act, 1972, Section 4.

83 The Indian Code of Civil Procedure, 1908.

84 The Consumer Protection Act, 1986, Section 2 and Section 9.

234

an international Air Carrier. 85 As this was held in the case of Delta Airlines Inc.,

Vs. Consumer Education· and Research Society and anothe~6 by the National

Commission.

Jurisdiction and Choice of Law

The jurisdiction.and choice of law issues in air accident cases come within the

purview of the Indian private international air law. 87 The Warsaw System regulates

the international Air Carriers' liability, and the documents of international air

transport issues concerning jurisdiction for action on damages are dealt with under

Article 28 of the Warsaw Convention. As noted already, the Convention has been

incorporated in the domestic legislation in India in the Carriage by Air Act, 1972.

The Convention provides an option of four jurisdictional forums before which an

action can be brought by the claimant under Article 28. The claimant can also opt for

arbitration in case of carriages of cargo. Under the common law which is applicable

in India for domestic air accident cases, the place of jurisdiction is the place of the

accident or occurrence. In liability cases as well as Motor Vehicles Accident Claim

cases, the place of accident is the governing place for determining jurisdiction. But

under the Warsaw regime no such jurisdiction is made available to the claimant. It

85 Delta Airlines Inc., Vs. Consumer Education and Research Society and another, 1997, (2) CCC, p.425.

86 Ibid.

87 Lakshrni Jambolkar, "Question of Jurisdiction - Choice of Law Issues in Private International Air Law", in R.P. Anand, et al, eds., Recent Developments in Civil Aviation India (New Delhi, 1987), p.190.

235

is identified as lex loci delicti, i.e., law of the place where the act is committed. Since

India is a party to the Warsaw Convention, it strictly follows the rules laid down

therein, except while applying the local CPC.

Liability of Death ·

The Indian Carriage by Air Act specifically stipulates in Secti01

Notwithstanding anything contained in the Fatal Accident Act, any other enactment or rules of law in force in any part of In rules contained in the First or Second Schedule shall in all , which those rules apply, determine the liability of a Carrier in of the death of a passenger. 88

It is thus clear that the Act and the Rules are self-contained as

international code. However, the Rule 21 provides, followin~

Convention: t',If the Carrier proves that the damage was caused by 01

by the negligence of the injured person, the court may in accor<

provision of its own law exonerate the Carrier wholly or partly from

The Andhra Pradesh High Court, applying this principle

Kandimallar Bharathi Devi and others Vs. The GeneJ

Corporation, 89 was dealing with a question of law, whether the col

accrued out of the death of passenger in an accident on an intern<:

would be set off from liquidated damages under the Carriage of J

88 The Carriage by Air Act, 1972, Section 5(1).

89 AIR 1988, Andhra Pradesh 361.

236

Justice K. Ramaswamy held that "the tort feaser, i.e., the Air Carrier cannot involve

the principle of set off to reduce its liability of the damages payable as separation to

the members of the family of the deceased for the death caused by the Carrier's

negligence, default or statutory duty to the deceased. Though it may have the insignia

of getting double recovery but the cause of action or entitlement for recovery are too

distinct and separate. As stated earlier, the entitlement to receive the personal accident

benefit policy is. the contract and happening of the accident as only an incident or a

chance to receive but the primary entitlement is his contract. But whereas the

entitlement under the Act is the liability fixed under Section 5(1) and Rule 17, and

qualified as liquidated damages under .Rule 22( 1) for the benefit of the members of

the deceased's family. It is in the nature of no fault liability as reparation to mitigate

the loss suffered by the members of the family of the deceased. Thus; the collateral , I

benefits secured by the member of the family of the deceased for personal accident

insurance policy cannot be set off, . nor a ground to relieve the respondent of its

statutory fastened under Section 5(1) of the Act, read under liability. Rules 17 and

22(1) of the Second Schedule.

Liability of the Carrier in respect of Cargo

The liability of the Air Carrier in respect of goods and cargo, and the

consigner and the consignee is regulated by section 30 of the Carriage by Air Act,

1972, read with rules 12 to 15 of the second schedule to that Act. 90 The question

90 Carriage by Air Act. 1972, Section 30, Second Schedule, Rules 12-15.

237

of interpretation of law relating to these issues came up in the case of M/s Gita

Godha Private Ltd., Vs. Pan American WJrld Ailways,91 in which the claimant,

an exporter, of garments filed a claim against an international Air Carrier for

damages based on the failure of the career to change the name of the ultimate

consignee in the airway bill. The Carrier pleaded contributory negligence for not

mitigating the losses. Justice H.L. Anand of the Delhi High Court, however, ruled

that non- delivery of the consignment to the new consignee caused damage to the

consigner and the Air Carrier was liable to compensate under Rule 12(1) of the

Second Schedule, whereby the Consigner had the control over the disposal of the

consignment.

In another case, M/s Ani/ and Co., Vs. Air India and others,92 where the

plaintiff booked the goods with Air India for carriage to New York, Air India

-. entrusted the goods at Paris to Trans World Airlines for delivery to the consignee bank

in New York. The TransWorld Airlines wrongly delivered the goods to the buyer

instead of the named bank as the consignee without obtaining the payment. Justice

D.R. Khanna of the Delhi High Court ruled that Rule 13 of the Second Sch~dule to

the Carriage of Air Act, 1972, entitled the consigners to the damage claimed on

account of non-delivery of the goods as per instructions contained in the airway bill

to the named consignee.

91 AIR 1983, Delhi, 356.

92 AIR 1986 Delhi, 312.

238

In"' view of the aforesaid discussions, there is a need to amend the Indian

Carriage of Air Act, 1972 in order to make the Warsaw Convention applicable

without any requirement of prior sanction of the Central Government to institute a

claim for compensation against a scheduled international airline, even if it is fully

owned by a foreign State Party. The carriage of persons and goods is a commercial

activity governed by a Contract of Carriage and there should not be any immunity to

a foreign state carrying out such commercial activities for being sued in India.