National Consumer Disputes Redressal
Priya Paul vs Bharti Axa General Ins. Co. Ltd. & 2 Ors. on 22 May, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 79 OF 2015 1. PRIYA PAUL W/o. Gagan Paul, R/o. 10, Jagat Co-Operative Housing Society, Opp. Poonam Chambers, Byramji Town, Nagpur - 440 013 ...........Complainant(s) Versus 1. BHARTI AXA GENERAL INS. CO. LTD. & 2 ORS. Through Its branch Manger, 222-B Block, Vishhu Vaibhav Complex, Palm Road, Civil Lines, Nagapur - 440 001. 2. BHARTI AXA GENERAL INS. CO. LTD. Through Its Principal Officer,
1st Floor, Ferns Icon, Survey No. 28, Doddane3kupdi, Bangalore - 560 037. 3. BHARTI AXA LIFE INSURANCE CO. LTD. 1ST FLOOR, 54 OLD ISHWAR NAGAR, MAIN MATHUR ROAD, ABOVE BANK OF INDIA, NEW FRIENDS COLONY, NEW DELHI - 110 065. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Gaurav Mitra, Advocate
Mr. Adarsh Rai, Advocate
Mr. Vaibhav Mishra, Advocate For the Opp.Party : Mr. S.M. Tripathi, Advocate
Dated : 22 May 2017 ORDER
JUDGMENT
JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) Late Shri Mohnish Paul, son of complainant, went for vacation to Canada alongwith his family members in June, 2013. On 29.06.2013, the family went to Pemberton Soaring Centre, Canada and boarded a two-seater glider aircraft for the purpose of sightseeing. The glider aircraft was flown by a Canadian pilot. During the course of flight, the glider aircraft collided with a Cessna aircraft, resulting in an accident in which late Mohnish Paul as well as pilot of the glider aircraft lost their lives. The persons sitting in Cessna plane also died. The charges for the journey were $195 per person. Since a Smart-Personal Accident-Individual Insurance Policy, issued by the opposite party had been taken by the deceased, the claim in term of payment under said policy was lodged with the opposite party.
2. The claim lodged by the complainant was repudiated vide letter dated 02.01.2014, which to the extent relevant reads as under:-
"Deceased Late Mr. Mohnish Gagan Paul was flying in a motorized glider near Pemberton town in Canada when it was hit by a Cessna 150 plane Pemberton Soaring Centre is private gliding center for adventurous gliding activity.Late Mr. Mohnish was flying in glider along with an instructor, when it was hit by a Cessna 150 plane.The collision led to an explosion and crashed.As a result, insured died.
< >< >"(i) "Accident" means a sudden, unforeseen and unexpected physical even beyond the control of the insured/insured person resulting in bodily injury, caused by external, visible and violent means.
xxx xxx Scope of cover:
If at any time during the currency of this Policy, the insured/insured person shall sustain any bodily injury resulting solely and directly from accident caused by external, violent and visible means then the company shall pay to the insured/insured person, his or her nominee or legal representative, as the case may be, the sum or sums hereinafter set forth, that is to say -
If such injury shall within twelve calendar months of its occurrence be the sole and direct cause of death of the insured/insured person, the Capital Sum Insured stated in the Schedule hereto;"
xxx
7. General Exclusions of the policy Provided always that the company shall not be liable under this policy for:-
xxx xxx
ix) Any claim in respect of accidental death or permanent disablement of the insured/insured person.
< >< > whilst engaging in aviation or ballooning whilst mounting into, dismounting from or travelling in any aircraft or balloon other than as a passenger (fare paying or otherwise) in any duly licensed standard type of aircraft anywhere in the world.
Xxx
(xiii) Insured/insured person whilst engaging in speed contest or parasailing, ballooning, parachuting, skydiving, paragliding, hang gliding, mountain or rock climbing, necessitating the use of guides or ropes, potholing, abseiling, deep sea diving using hard helmet and breathing apparatus, polo, snow and ice sports.
xiv) Insured/insured person whilst flying or taking part in aerial activities (including cabin crew) except as a fare-paying passenger in a regular scheduled airline or air charter company."
6. It is not disputed that the deceased Mohnish Paul died on account of injuries sustained from the accident caused by external, violent and visible means. Therefore, the insurer would be liable to pay the sum insured, unless the case can be brought within four corners of any of the exclusions mentioned hereinabove.
7. In order to decide whether the case falls within the purview of clause ix(iii) of the policy or not, the first question to be considered is whether the deceased was a passenger.
It is contended by the learned counsel for the insurer that since the deceased was not to travel from one destination to another, he cannot be said to be a passenger. In this regard, he relies upon a dictionary definition of "passenger", which is states as under:-
"Passenger: One who travels in some vessel or vehicle; a traveler by any public vehicles entered by fare. (Law Lexicon: P. Ramnatha Iyer - 1977 edn - pg. 1419).
Passenger: A person who is travelling in a vehicle but is not driving it, flying it or working on it. (Cambridge International Dictionary of English - 1996 - pg 1032) Travel - Traveller - Travelling:
"Travel" has no precise or technical meaning, when used without limitation, but is primary and general import is to pass from one place to another, whether for pleasure, instruction, business or health.
A traveler is one who travels in any way - one who makes a journey or who goes from place to place.
Travelling: the action of travel; making a journey. (Law Lexicon: P. Ramnatha Iyer - 1977 edn - pg. 1915)."
The contention of the learned counsel is that since the deceased was scheduled to return to Pemberton Soaring Centre, Canada, it cannot be said that he was undertaking a journey from one place to other. However, in my view, irrespective of the fact that deceased was scheduled to return to the same place where he had boarded the glider aircraft, would not take him out of the definition of the term "passenger". It is not necessary for a person, to qualify as a passenger or traveller, that he must board a vehicle/aircraft/vessel at one place and get down at another place. If a person undertakes a round journey without getting down anywhere, either in a train or an aircraft or a vehicle, he would still be a passenger. For instance, if a tourist is on a local sightseeing trip, on a tourist bus, which passes through various landmarks in the city without the tourist getting down anywhere, it would be difficult to say that he is not a traveler or a passenger. Once he as boarded the aircraft/vessel/aircraft and the said aircraft/vessel/aircraft has started moving, he will be a passenger/traveler. Therefore, it would be difficult to say that the deceased was not a passenger at the time he died in the accident.
8. The next question is as to whether the glider boarded by the deceased was aircraft and if so whether it was a licensed standard type of aircraft. The term 'aircraft' has not been defined in the insurance policy, but has been defined in section 2(1) of the Aircraft Act, which reads as under:-
"aircraft" means any machine which can derive support in the atmosphere from reactions of the air, a[other than reactions of the air against the earth's surface] and includes balloons, whether fixed or free, airships, kites, gliders and flying machines;"
It would thus be seen that a glider has been expressly included in the definition of aircraft. In fact a balloon is also included in the definition of aircraft given in the statute. Paragliding and hang-gliding having been expressly excluded in the policy, had the intention been to exclude the journey in a glider, it would have been expressly excluded in the policy.
9. The contention of the learned counsel for the opposite party is that there is no evidence of the glider having been licensed as an aircraft. A perusal of the Municipal Business License issued by License Inspector in Canada shows that Pemberton Soaring Centre, Canada was licensed to carry on the business of sightseeing glider flights in a lawful manner. The contention of the learned counsel for the opposite party is that the aforesaid licensed is only a trade license granted to Pemberton Soaring Centre, Canada and cannot be considered to be a licensed granted to the glider in which the deceased was present at the time it met with the accident. There is no evidence of a license being required in respect of each aircraft/glider. In the aviation inspection report of the Transport Safety Board of Canada, which investigated the incident in which the deceased died, the glider aircraft was extensively referred as an aircraft. On page 2 of the aforesaid report, it is expressly stated that it was privately registered Stemme S-TV Motor Glider, (Registration C FHAB, S. No. 11016). The aforesaid registration, in my view was only legal requirement for a glider aircraft to operate in Canada and therefore, a glider aircraft with such a registration would be licensed aircraft within a meaning of clause xi(iii) of the insurance policy.
10. The next question arises in this regard is as to whether the glider aircraft in which the deceased was present at the time of accident was a standard type of aircraft. The contention of the learned counsel for the opposite party is that the onus was upon the complainant to prove that the aforesaid glider aircraft was a standard type of aircraft whereas the contention of the learned counsel for the complainant is that since the insurer is seeking to bring the case within one of the exclusions clauses contained in the policy, the onus would be upon it to prove that the glider aircraft was not a standard type of aircraft. As noted earlier, in its report, the Transport Safety Board of Canada as referred to the glider as an aircraft. It is also recorded that the aircraft was certified equipped and maintained in accordance with existing regulations and approved procedures. No rule or regulation prescribing the requirements of a standard aircraft has been brought by the insurer to my notice. It is pointed out that the glider was not equipped with storbe, navigation or landing lights, but it is also simultaneously noted that the aforesaid facilities were not required by regulations. It is noted in the report that neither of the aircraft, was equipped with a flight data recorder or cockpit voice recorder. Though, the facilities such as navigation and landing lights and flight data recorder and cockpit voice recorder are generally found in commercial aircrafts, there being no definition of a standard aircraft in the insurance policy and there being no rule or regulations prescribing the minimum required or for an aircraft, it would be difficult to say that the glider aircraft in which the deceased was present at the time of accident, when not a standard aircraft. An aircraft to qualify as standard aircraft need not necessarily be a multi-seater aircraft. Even if it is a two-seater or one-seater aircraft, unless a regulation prescribed to the contrary can be taken as standard type of aircraft. A perusal of a picture of the glider aircraft in which the deceased was present at the time of accident would show that it was a two-seater glider aircraft meant for one pilot and one passenger. In my opinion, if the insurer was seeking to bring the case within four corners of one of the exclusions clauses contained in the policy, the onus was upon it to prove the statutory requirement of a standard aircraft. Neither any certificate from Canadian Civil Aviation authority nor any certificate from the Civil Aviation in India has been obtained to prove that such type of glider aircraft cannot be said to be a standard type of aircraft. It was quite possible for the insurer, if it so wanted, to obtain such a certificate on the basis of the details of the glider aircraft available in the report of Transport Safety Board of Canada. The learned counsel for the opposite party submits that the complainant did not provide them the copy of pilot's license and copy of glider's license. Naturally, these documents cannot be in possession of the complainant. Therefore, if insurer wanted such documents it ought to have approached Pemberton Soaring Centre for this purpose. I therefore, have no hesitation in holding that the insurer has failed to prove that the deceased was travelling in an aircraft which was not a duly licensed standard type of aircraft.
11. Clause (xiii) of the policy denies the benefit of the insurance to a person engaged inter-alia in ballooning, paragliding or hang-gliding. This is not the case of the insurer that the glider aircraft in which the deceased was travelling was a balloon. There is no specific averment in the repudiation letter that the deceased was ballooning, paragliding or hang-gliding at the time of glider aircraft was met with an accident. Even otherwise the information downloaded by the complainant from British Hang-gliding and Paragliding Association, would clearly show that this was not a case either of paragliding or hang-gliding. In paragliding, which is an adventure sport, the person after inspecting the equipment puts on his helmet and harness, looks around, allows the wind to raise the canopy of his glider and launches off into space. Paragliders are typically constructed of nylon or related materials and it is an elliptical airfoil which uses leading edge ram air pressure to maintain its shape. Thought hang-glider and paraglider are similar in function, the hang-gliders are not as portable as paragliders and it takes considerable time to set-up and dismantle. The hang-glider is primarily an equipment made of two wings, connected to a harness. It takes off from a height and gains altitude on lifting air-current. Therefore, the case is clearly not covered under clause (xiv) of the insurance policy.
12. The last question which arises in this complaint as to whether the deceased was flying in a regular scheduled aircraft or air-charter company as a fare paying passenger. A perusal of the letter dated 21.10.2013 issued by Pemberton Soaring Centre would show that the deceased was a fare paying passenger and that glider was an aircraft that was used for sightseeing flights. There is no evidence to prove that the deceased was a gratuitous passenger while travelling in the glider air-craft. Therefore, it can hardly be disputed that he was a fare paying passenger.
It is vehemently contended by the opposite party that Pemberton Soaring Centre can be said to be an air-charter company. The term "air-charger company" has not been defined in the insurance policy. However, the term "charter" as per the definition of Black's Law Diction, 8th edition, and includes a leasing or hiring of an airplane, ship or other vessel. The deceased was the only passenger travelling in the glider aircraft at the time it met with an accident. He was a fare paying passenger as certified by the owner of the glider aircraft. The Pemberton Soaring Centre was duly licensed to carry on the business of sightseeing glider flights. It is thus evident that the aforesaid center had given the glider aircraft on hire, the fare paid by the passenger being the hire charges. Therefore, the aforesaid center, in my opinion, would be taken as air-charter company unless the insurance policy denies the term in a different manner that not the position here, I see no reason for not considering Pemberton Soaring Centre to be an air-charter company.
13. It was pointed out by the learned counsel for the opposite party that as per the report of their investigator Diligence International Group, the owner of Pemberton Soaring Centre namely Ms. Tracey Rozsypalek had referred investigator to her attorney Mr. Sean Taylor, who had informed him that Pemberton Soaring Centre was not an air-charter company or airline and the deceased was not flying in a regularly scheduled airline or air-charter company. However, there is no documentary evidence either of Mr. Sean Taylor being the attorney of Ms. Tracey Rozsypalek, or he having made the statement attributed to him by the investigator. In the absence of the aforesaid, it would not be safe to hold, merely on the basis of the hear-say evidence of the investigator that Pemberton Soaring Centre was not an air-charter company. In any case, the question as to whether the Pemberton Soaring Centre was an air-charter company or not, is to be decided by this Commission and considering the definition of 'charter' and the fact that charges were payable by the deceased for flying in the glider aircraft, I have no hesitation in holding that aforesaid center was an air-charter company.
14. For the reasons stated hereinabove, I hold that repudiation of the claim by insurer was not justified and therefore, the complainant who is mother of the deceased and his sole class one legal heir, he being unmarried at the time of death, is entitled to the insured amount of ₹1 crore.
15. As far as funeral expenses are concerned, the learned counsel for the complainant on instructions does not press the same. As far as compensation for mental agony is concerned, the same cannot be awarded considering that the liability of the insurance company is limited to the sum insured of ₹1 crore.
16. For the reasons stated hereinabove, the complaint is disposed of with the following directions:-
The opposite party shall pay a sum of ₹1 crore to the complainant, alongwith interest on that amount @8% per annum from the date of filing of the complaint till the payment in terms of this order is made.
The aforesaid payment shall be made within three months from today.
......................J V.K. JAIN PRESIDING MEMBER