Bangalore District Court
Smt.B.Nirmala vs Sri.Arvind Sharma on 2 February, 2021
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 2 nd day of February, 2021
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No.3014/2006
PLAINTIFFS: 1. Smt.B.Nirmala,
W/o late K.S.Amarnath,
Major.
2. Smt.K.S.Manjula,
W/o Late K.S.Sathyanarayana.
Major.
(Deceased by her LRs,
Plaintiffs Nos.1 and 3)
3. Master K.A.Sathwik,
S/o Late K.S.Amarnath,
Aged about 14 years.
Since minor is represented by his
mother and Natural Guardian
Smt.B.Nirmala.
Now Aged 21 years.
All are residing at
No.505, 4th cross,
3rd Block, 2nd Stage,
RMV Extension,
Bengaluru 560 094.
( By Sri.Dhanraj, Advocate. )
- VERSUS-
DEFENDANTS: 1.Sri.Arvind Sharma,
M/s Agni Aerosports Adventure
2 O.S.No: 3014/2006
Academy, Yelahanka, Bengaluru.
( By Sri.A.Sampath, Advocate.
Party in person since 01.03.2018 )
2. Ms.Agni Aerosports Adventure
Academy, Yelahanka, Bengaluru.
( By Sri.M.Shivappa, Advocate. )
3. The Secretary, Government of India,
Ministry of Civil Aviation Department,
New Delhi.
4. The Director General of Civil
Aviations, Opp. Sardarjung Airport,
New Delhi 110003.
(3 & 4 By Sri.K.Prakash Rao, Advocate.)
Date of institution of the suit: 18.04.2006
Nature of the suit (suit on Money Suit
pronote, suit for declaration
and possession suit for
injunction, etc) :
Date of the commencement of 09.09.2014
recording of the evidence:
Date on which the Judgment 02.02.2021
was pronounced:
Total duration Year/s Month/s Day/s
14 09 15
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(Smt.K.KATHYAYINI),
LXVI Addl. City Civil & Sessions Judge
Bengaluru.
3 O.S.No: 3014/2006
JUDGMENT
The 1st and the 2nd plaintiffs have filed this suit against the defendants for the relief of compensation of Rs.1 crore with interest at 9% p.a. from the date of suit till the date of realization and later the 3rd plaintiff got impleaded by virtue of the order dated 23.01.2012.
II. The brief facts of the plaintiffs' case are that;
1) The 1st plaintiff is the wife, the 2 nd plaintiff is the mother and the 3rd plaintiff is the son of late Sri.K.S.Amarnath who was dead along with his sister Smt.Sowmya @ Soundarya (for convenience "Smt.Soundarya") and one more person by name Sri.Ramesh Kadam, in an air crash accident involving one Cessna 180 VT-EQU Aircraft (for short, "the Aircraft") on 17.04.2004 owned and operated by the 1 st and 2nd defendants. All of them are the Class-I heirs under the Hindu law and are entitled to maintain the suit claim.
2) M/s Bharathiya Janatha Party (for short, "the BJP) is a second largest political organization in India and its Executive leaders/workers are Sri.Murali Manohar Joshi, Sri.Ananthakumar, Sri.Eshwarappa and Sri.R.Ashok. 4 O.S.No: 3014/2006 During 2004, in both State and Central Government Election time, in order to rule/make more strongest the party and to avail more seats in South India, on behest of the said party, they approached and invited Sri.K.S.Amarnath and his sister Smt.Soundraya and also Sri.Ramesh Kadam to work for election canvass/campaign and were engaged by the said party.
3) Initially, the said party and its leaders availed the service of Sri.K.S.Amarnath and her sister Smt.Soundarya and also Sri.Ramesh Kadam in Bengaluru at Malleshwaram Assembly Constituency and worked for Dr.Ashwatha Narayana and were successful in attracting voters therein. The said party and its leaders to gain and attract the voters in the said election availed their service.
4) Hence, on behest of the BJP party and its State and Central President, the said Sri.R.Ashok had booked tickets with the 1st and 2nd defendants. The said party and its workers/leaders with willful negligence to send Sri.K.S.Amarnath, Smt.Soundarya and Sri.Ramesh Kadam for election canvass/campaign on 17.04.2004 by hire-pay 5 O.S.No: 3014/2006 charge to Karimnagar, Andhra Pradesh in the Aircraft to fly and caused their death.
5) The 1st and 2nd defendants owned and operated the Aircraft which was manufactured around the year 1955. The said Aircraft was operated for commercial purposes without a valid license though it was in the private category and not be engaged in carriage of passengers. On 17.04.2004 Saturday, the 1st and 2nd defendants allowed the Aircraft to be used for commercial purposes without a valid license.
6) The Aircraft was not permitted to be used as a commercial flight at all and it was meant to be used after obtaining air worthiness certificate only for adventure sports purposes. The act of the 1 st and 2nd defendants permitting the public to use the said Aircraft for commercial purposes is in violation of the prescribed law and not only punishable under law, but the defendants are also liable for making payment of compensation and damages for the deaths and loss caused due to the said illegal usage of the Aircraft by them. 6 O.S.No: 3014/2006
7) The mandatory insurance of the Aircraft was not done and was not valid as on the date of the accident. The Aircraft had no black-box in the Aircraft. Though the same was not a mandatory requirement, the non availability of the black-box had further complicated investigation of the accident which lead to the death of 4 persons including the pilot.
8) The Aircraft was overloaded by about 65 Kgs and that no actual weighing of the pilot and passengers was done before the actual take off of the Aircraft. The load and trim sheet of the Aircraft was prepared by Shri.Gopalan, QCM after the accident which amounts to fabricating or manipulating the documents.
9) The 1st and 2nd defendants by taking advantage of the election campaign, the situation prevailing and non availability of sufficient number of small Aircrafts, allowed the Aircraft to be hired for taking (i) Smt.Soundarya (ii) Sri.Amarnath and (iii) Sri.Ramesh Kadam as passengers on 07.04.20014 at 11:00 a.m. to Karimnagar in Andhra Pradesh from GKVK Campus, Yelahanka, without a valid license.
7 O.S.No: 3014/2006
10) Smt.Soundarya, one of the deceased was a VIP and the Aircraft was piloted by one Captain Joy Phillip who did not have sufficient experience to pilot a VIP Flight.
11) The Aircraft which took off from the Jakkur runway at about 11:00 a.m. on 17.04.2004, suddenly developed snag in its mechanism due to poor maintenance, non airworthiness, insufficient experience of the Pilot and due to overloading of the Aircraft and started crashing downwards in less than five minutes and crashed against the ground in GKVK campus, caught fire and killed all the 4 persons traveling in it.
12) In addition to the deficiencies found in the Aircraft, the accident occurred mainly due to the overloading effect and inadequate experience of the Pilot.
13) The 3rd and 4th defendants being the controlling agency for all the Aircrafts run within the territorial jurisdiction of India, ought to have taken sufficient precautionary measures while allowing the ill fated Aircraft to be operated, but have utterly failed to regulate the Aircraft in question. Thus, they are also vicariously 8 O.S.No: 3014/2006 liable to make payment of the damages and compensation to them.
14) The deceased Smt.Soundarya was a leading South Indian Film Actress and her brother late Sri.K.S.Amarnath was a leading producer of several movies and television serials. He was money lender and a share broker.
15) Under his supervision captaincy as Kartha, they were leading too comfortable/standard life. The entire family was depending on their income. Due to sudden and sad demise of Smt.Soundarya and her brother Sri.K.S.Amarnath, they have suffered heavy loss, mental agony and hardship which cannot be compensated otherwise.
16) The deceased Sri.K.S.Amarnath was managing the entire financial affairs of Smt.Soundarya. Due to the impact of air crash, they are suffering from mental trauma, loss of companionship and unlawful loss with great hardship in all manner throughout their life.
17) The BJP and its leaders/workers along with the defendants were responsible for the untimely death of 9 O.S.No: 3014/2006 Sri.K.S.Amarnath and Smt.Soundarya in view of willful negligent acts meted out in booking ill fated Aircraft. Hence, they are all liable to pay compensation as per law of torts (vicarious liability) to them.
18) Their future life is in dark and has been deprived of the companion, love, care and affection and their lives have become miserably dark and are put to untold misery. Though the loss of lives of Smt.Soundarya and her brother Sri.K.S.Amarnath could not be measured in terms of money, they made a very moderate claim of Rs.2 Crores i.e., Rs.1.00 Crore each by issuing a notice dated 01.02.2005 to all the defendants. Though all the defendants received the said notice, only the 1 st and 2nd defendants have sent a frivolous reply.
19) Smt.Soundarya being a leading South Indian Film actress and well known heroin in Andhra Pradesh, a naxal hit area, she could not travel on road from Hyderabad to Karimnagar which was densely populated with naxals. Hence, the arrangements were made by the BJP who booked the ill fated Aircraft on 17.04.2004 specifically to pick and drop Smt.Soundarya along with her 10 O.S.No: 3014/2006 brother Sri.K.S.Amarnath and another person on 'hire to pay' basis which is evidenced by the letter dated 28.12.2005 issued by the said party.
20) Sri.K.S.Amarnath being leading film and tele serial producer having net annual income for the past 4-5 years to the tune of over Rs.6.00 lakhs per annum which is clearly disclosed in the income tax returns for the past 4 - 5 years and he was still in early age of thirties and was having great career as a film producer.
21) In case of non occurrence of unfortunate accident involving the Aircraft owned and hired by the defendants, he would have lived a normal life span. Even if he was to earn as a producer for a limited period up to the age of 60 years, his income would have been whooping Rs.8-10 crores.
22) It was also decided in the family of Sri.K.S.Amarnath and Smt.Soundarya that she would act as a heroin either in the films directed by her brother or that at least he would be the co-director or an assistant director of the film, when that background is considered, there was possibility of natural increase in the annual 11 O.S.No: 3014/2006 income to the tune of Rs.6-8 crores in the next 10 - 12 years.
23) The report of the Aircraft clearly indicates that the 1st and 2nd defendants for various lapses, are jointly and severally liable to pay the compensation/damages to them.
24) Further the 3rd and 4th defendants being the controlling agency of all the Aircrafts flying within the Indian Territory ought to have taken all possible precautions while allowing the Aircraft to use Jakkur Aerodrome on 17.04.2004.
25) If sufficient precautionary measures were taken in checking the records of the Aircraft on the ill fated day just before its take off from the Jakkur Aerodrome, the accident could have been avoided. Since the 3 rd and 4th defendants have utterly failed in discharging their statutory duty in that regard, they are also jointly and severally liable to pay compensation to them.
26) The cause of action for the suit arose on 17.04.2004 when the accident took place at Jakkur, Bengaluru and on subsequent dates within the jurisdiction 12 O.S.No: 3014/2006 of this Court and the suit is in time and is properly valued. Hence, prayed to decree the suit as sought for.
III. In response to the due service of summons, all the defendants appeared through their respective counsels. The 1st and 2nd defendants have filed their common written statement contending that the suit filed by the plaintiffs is not maintainable either in law or on facts and liable to be dismissed in limine.
1) The suit filed by the plaintiffs on 18.04.2006 is barred by limitation under Section 30(1) of the Carriage by Air Act, 1972 (for short, "the Air Act") as the claim for damages being not brought within 2 years from the date of the incident or accident or the stoppage of the carriage and thus, the suit filed after lapse of 2 years is liable to be dismissed as barred by limitation.
2) The suit filed against the 1st defendant in his individual capacity as Sri.Aravind Sharma is not maintainable in law. He was not the owner of the Aircraft and as such, the claim made against him in his individual capacity and that he is jointly and severally liable for the claim made in the suit, having no cause of action is 13 O.S.No: 3014/2006 without jurisdiction and not maintainable. Thus, the suit is bad for mis joinder of parties.
3) Even the description of the 2 nd defendant as M/s Agni Aero Sports Adventure Academy is not proper and correct. The said Aircraft was owned and operated by M/s Agni Aero Sports Adventure Academy Pvt. Ltd. and the suit as per the said description even against the 2 nd defendant is also not maintainable.
4) The Aircraft was used as private Aircraft for private (non-commercial) purposes by the 2 nd defendant in addition to the adventure sports purposes. The Aircraft was not a commercial Aircraft and was not operated for commercial purpose at any time. They had license to operate the Aircraft. The allegation that the Aircraft was operated for commercial purpose without a valid license is made with ulterior motive for the sake of false claim made by them.
5) On 17.04.2004 Saturday, they have not allowed the Aircraft to be used for commercial purpose and it was in private category. The Aircraft was certified for airworthy and it was being used in conformity with the airworthiness certificate issued by the Authority. 14 O.S.No: 3014/2006
6) When the Aircraft was not used for commercial purposes for hire or for reward, the question of making payment of compensation and damages for the death and loss caused to plaintiffs for the death of Smt.Soundarya and Sri.Amarnath does not arise and as such, they are not liable to pay any compensation and damages as claimed by the plaintiffs.
7) There was no black box in the Aircraft and it was neither mandatory nor required nor provided in such single Aircrafts. No complication did arise or made the investigation complicate of the accident met with by the Aircraft.
8) No weighing of the pilot and passenger is done in any Aircraft either commercial or private before the actual take off of the Aircraft. Hence, the question of they not possessing the weighing machines would arise or required for operation of Aircraft did not arise on 17.04.2004.
9) There is no fabricating or manipulating of the documents as alleged. The load and trim sheet was prepared by the concerned officer Sri.Gopalan, QCM before 15 O.S.No: 3014/2006 the take off of the Aircraft at the time of boarding as per the load and trim sheet, maintained by the authorities.
10) The loading into the Aircraft is at the sole discretion of the pilot and the pilot take off the flight after verifying the load and trim sheet with him and not controlled by any other external force or authority or persons in this regard. It is the pilot who is responsible and decides whether the loading into the Aircraft was proper and correct and permit the same before he could fly the Aircraft as otherwise, he would make the load into the Aircraft proper and correct before he would fly the Aircraft.
11) The capacity of the Aircraft was 4 seats including the pilot with normal weight of the persons traveling and accordingly, including pilot only 4 persons were in the Aircraft on 17.04.2004 when it took off, and it is not their case that the persons who boarded the Aircraft were abnormal weighty persons rather than the normal weight, as such the Aircraft was overloaded by 65 Kgs is false.
12) They were not concerned with any election campaign and they were not aware of the availability or non availability of the small Aircrafts or other Aircrafts and 16 O.S.No: 3014/2006 the Aircraft was not hired or permitted to be hired for taking passengers i.e., Smt.Soundarya, Sri.Amarnath and Sri.Ramesh Kadam on 17.4.2004. All of them were strangers to them and they do not know their relationship with the plaintiffs.
13) They had no knowledge that Smt.Soundarya was a VIP and hence, the Aircraft piloted by one Joy Phillip had no sufficient experience to pilot a VIP Flight does not arise. Captain Joy Phillip possessed license for flying Aircraft and had sufficient experience and there was no question of special experience to pilot the VIP flight. Hence, the accident was due to inadequate experience of the pilot as alleged by the plaintiffs is absolutely false.
14) Smt.Soundarya was not the person in the list of VIPs maintained by the concerned authorities.
15) The Aircraft took off from Jakkur runway at about 11:00 a.m. on 17.04.2004. There was no snag developed in the mechanism of the flight at the time when the flight was crashed as alleged by the plaintiffs.
16) They are not liable to pay any compensation. The 3rd and 4th defendants are the controlling agencies for all 17 O.S.No: 3014/2006 Aircrafts run within the territorial jurisdiction of India. They took all precautionary measures as required under law for allowing the flying of the Aircraft and therefore, the plaintiff cannot find fault with them as alleged.
17) It is not within their knowledge that Smt.Soundarya was a leading South Indian film actress and her brother late K.S.Amarnath was a leading producer and director of several movies and TV serials and the entire family depended on their income and due to their death, they have suffered mental agony and hardship.
18) The notice dated 10.02.2005 issued by the plaintiffs claiming compensation for loss of lives of Smt.Soundarya and her brother Sri.K.S.Amarnath stating that loss of death could not be measured in terms of money and that they have claimed very moderate claim in respect of their death was suitably replied by them. The claim of Rs.3 Crores for the death of Smt.Soundarya and Rs.1 Crore in respect of death of Sri.K.S.Amarnath is untenable, speculative and claimed to make unlawful gain.
19) The allegations that Smt.Soundarya was a leading South Indian Film Actress and a well known 18 O.S.No: 3014/2006 heroine in Andra Pradesh and that Karimnagar was a naxal hit area and she could not travel on road from Hyderabad to Karimnagar as the area densely populated with Naxals and Smt.Soundarya was supposed to travel to Karimnagar along with her brother Sri.K.S.Amarnath is a self serving statement and they were not made known why they required to travel and the same is not within their knowledge.
20) The Aircraft was not booked by BJP Karnataka, Bengaluru to pick up and drop Smt.Soundarya and others as alleged by the plaintiffs and there was no contract in this regard. The plaintiffs have created fraudulent letter dated 28.12.2005 in collusion with BJP, after reply notice issued by them.
21) They are not aware that Sri.K.S.Amarnath was a leading film and tele serial producer and had income of over Rs.6 lakhs p.a. for past 4-5 years and the income tax returns for the past 4-5 years disclosed the same and he was in early 30s age and had great career as a film producer is not within their knowledge. 19 O.S.No: 3014/2006
22) It is a speculative or assumption made without reality to say that said Sri.K.S.Amarnath would have lived a normal life if the unfortunate accident involving the Aircraft owned and hired by them, it would not have occurred and he as a producer for a limited period up to the age of 60 years his income would have been a whooping 8-10 crores. The assumption of income on such speculation is unsustainable.
23) It is a baseless statement that it was decided in their family that the said Sri.K.S.Amarnath being brother of Smt.Soundarya should direct majority of films in which Smt.Soundarya would act as heroine and he would be director or at least co-director or assistant director of films and the probability of any natural increase in income is considered, his income for next 10-12 years would have been between Rs.6-8 crores.
24) They are not liable either jointly or severally to pay any compensation or damages to the plaintiffs. It is misleading to state that the 3 rd and 4th defendants being controlling agencies of all the Aircrafts flying within Indian territory ought to have taken all possible precautions while 20 O.S.No: 3014/2006 allowing the Aircraft to use Jakkur Aerodrome on 17.04.2004.
25) The 3rd and 4th defendants only after checking the records of the flight in question allowed or permitted to fly the Aircraft. Suppressing the same, the plaintiffs have made false and reckless allegations. There is no truth or basis in the allegations of the plaintiffs that the 3 rd and 4th defendants have failed to discharge their statutory duty in checking all the mandatory records of the Aircraft on 17.04.2004 before its take off.
26) The Aircraft was used for private purposes and for Aero Sports Adventures. It was not a commercial Aircraft and was not required to be registered with the authorities as commercial Aircraft meant for carrying passengers. It was not hired or permitted to be hired at any time for commercial purpose and was not used for remuneration or reward at any time even privately.
27) The Aircraft was a 4 seater including pilot and only 4 persons could fly including the pilot. The said Aircraft had valid license and airworthiness certificate throughout and at the time of flying on 17.04.2004 and it 21 O.S.No: 3014/2006 was perfectly maintained for being used privately with airworthiness certificate and it did not develop any snag in its mechanism and was perfectly alright when the Aircraft took off for flying and there was no defect as per investigation report.
28) They did not know and did not have contact when Smt.Soundarya and Sri.K.S.Amarnath and Sri.Ramesh Kadam traveled in the Aircraft on 17.04.2004. One Captain Mamata of Hyderabad, a Director of Flytech Academy of Hyderabad happened to be a friend of the 1 st defendant Captain Aravind Sharma was in need of an Aircraft for dropping a friend urgently from Hyderabad to Karimnagar.
29) Since she could not contact him, she had contacted Captain Joy Phillip who in turn contacted the 1 st defendant and informed about the request made by Captain Mamata of Hyderabad and subsequently, she spoke to the 1st defendant and as per her request, as a courtesy gesture, the 1st defendant agreed to spare the Aircraft on the condition that Flytech Aviation Academy to co-ordinate with their own pilot with operation branch 22 O.S.No: 3014/2006 without any responsibility of the 2nd defendant company for using the Aircraft.
30) No BJP persons had approached them for the flight to be provided to them nor it was hired by them to fly the said persons i.e., Smt.Soundarya and her brother Sri.K.S.Amarnath and another person. No remuneration was either fixed or taken by the 2nd defendant company for making use of the Aircraft on 17.04.2004. The alleged letter is a created one after they replied the legal notice issued by the plaintiffs.
31) In the flight plan submitted, the information in the column "Type of Flight", it was clearly shown as general (non remunerative) flight. Except sparing the Aircraft, they were not aware who would travel or fly in the Aircraft from Bengaluru to Hyderabad and from there to Karimnagar.
32) They came to know after the incident as mentioned in the media that Smt.Soundarya, who was campaigning at Malleshwaram in Bengaluru, on the previous day, had booked a ticket to fly in a commercial Aircraft from Bengaluru to Hyderabad on 17.04.2004, but on information from Hyderabad that the Aircraft was flying 23 O.S.No: 3014/2006 from Bengaluru to Hyderabad, the said 3 persons were tempted to travel from here to Hyderabad by canceling her ticket and from there to Karimnagar instead of traveling from Bengaluru to Hyderabad in a commercial flight and from there to Karimnagar in a private Aircraft.
33) When the Aircraft was used gratuitously or without cost for flying from Bengaluru to Hyderabad and from there to Karimnagar, it was at their own risk and in such use of the Aircraft, when it met with an accident, the plaintiffs cannot claim compensation from them for the death of persons who traveled in the said Aircraft. They are in no way responsible for the death of the persons traveled in the Aircraft and not liable to pay any such compensation as claimed by the plaintiffs.
34) The accident was not on account of negligent act on their part in maintaining the Aircraft or due to its non airworthiness as per the investigation report and the plaintiffs are aware of the said detailed report.
35) The take off of the Aircraft was normal and during the take off of the Aircraft, it gained height of about 100 -150 feet. The fuel sample used was tested and found 24 O.S.No: 3014/2006 to be met with specifications. The engine was trip examined and did not reveal any abnormality which could have contributed to the accident.
36) The accident of the Aircraft was mainly due to after getting air borne the pilot took steep left turn with retraction of flaps at a low height before achieving the required rate of climb speed resulting in stalling of Aircraft and hitting the ground, for which they are in no way responsible.
37) The pilot who flew the flight Captain Joy Phillip was only a contract pilot being engaged to fly the Aircraft at the instance of the persons who traveled in the flight joining with Captain Mamata of Flytech Aviation Academy of Hyderabad and was not engaged by them.
38) By sparing the Aircraft for being used gratuitously by the deceased at the instance of Captain Mamata of Flytech Aviation Academy of Hyderabad, they have lost their valuable flight which the plaintiffs and the concerned are required to compensate and reimburse its value.
25 O.S.No: 3014/2006
39) As per the report, the alleged marginally overloaded is speculative as the persons traveled in the Aircraft were only 4, the permitted capacity and there is no reason for being marginally overloaded.
40) The loading of the Aircraft is the sole responsibility of the pilot in command who was their own contract pilot. Thus, as per law, it was not their responsibility or any other authority concerned.
41) No material is pointed out as to the alleged slightly overloading in the Aircraft and if it was overloaded, the pilot could not have flew the Aircraft.
42) There is no question of providing of weighing machine to weigh the persons flying in the Aircraft or even otherwise, no such weighing is done of persons who are flying in the Aircraft either in Category-A Aircraft or commercial Aircraft.
43) The load and trim sheet is the document to be prepared and approved by the pilot in command which is not concerned to them. The load and trim sheet preparation and its approval cannot be done after the accident as alleged by the plaintiffs. The flight plan filed by 26 O.S.No: 3014/2006 the pilot clearly shows that the flight was not a commercial flight or overloaded.
44) The suit against them is one without any cause of action and they are not liable to answer the claim for compensation as claimed by the plaintiffs.
45) The suit filed by the plaintiffs without impleading the necessary and proper persons to the suit is not maintainable and is liable to be dismissed for non joinder of necessary and proper parties.
46) There is no basis for the huge claim made by the plaintiffs against them. The claim amount is excessive and exaggerated. The plaintiffs are not entitled for such a huge claim or any other sum as compensation. The claim for interest is not maintainable as there is no contract or otherwise being entitled to, by the plaintiffs.
47) The cause of action alleged by the plaintiffs is false and untenable. There is no privity of contract between them and the persons who traveled in the flight, for the plaintiffs to claim compensation for the death of the persons traveled in the flight in the accident. Hence, the 27 O.S.No: 3014/2006 suit is liable to be dismissed as vexatious and speculative with exemplary costs.
IV. The 3rd and 4th defendants appeared through their counsel and filed the written statement contending that;
1) The suit is not maintainable either in law or on facts and is false, frivolous and unsustainable under law and deserves to be dismissed in limine.
2) There is no cause of action for the plaintiffs to maintain the suit which fact is fully aware by the plaintiffs and they have filed the suit as only to coerce and harass them. The suit is liable to be dismissed under the provisions of the Order VII Rule 11 of the CPC.
3) The Aircraft bearing serial number 31488, registration No.N454913 was manufactured by Cessna Aircraft Company, Wichtgi, Kansas, USA in 1995 and later in India the Aircraft was registered in private category as VT-EQU.
4) The Aircraft was registered in private category and according to the civil aviation requirements, the private Aircraft shall not be used for hire or reward or for any kind 28 O.S.No: 3014/2006 of remunerations whatsoever to the public for commercial purposes.
5) The Aircraft had valid license and certificate of airworthiness prior to the accident on 17.04.2004 and it was carrying passengers not belonging to the 2 nd defendant. There is no mandatory for having the flight records of the Aircraft. They were neither fitted nor required to be fitted on the Aircraft.
6) Neither they nor the Union of India has role to fly. The pilot of the Aircraft after took off, has took steep left turn with retraction of flaps at a low height before achieving the required rate of climb speed resulting in stalling of the Aircraft and hitting the ground on a nose down altitude, low flying experience of the pilot coupled with Aircraft being marginally overloaded were the contributory factors to the occurrence of the said accident.
7) It is the duty of the operator to follow the rules and regulations laid down by the DGCA/Union of India for the safe conduct of the flight. There is no relationship of master and servant between them and the operator. So, the 29 O.S.No: 3014/2006 tortuous or vicarious liability between them and the operator and the liability is expressly denied.
8) Though they lay down the rules and regulations for the operation of the Aircraft, it is the responsibility of the operator to follow such rules and regulations for the safe conduct of the flight. It has no responsibility of payment of damages as the day to day affairs of the operator could not be monitored by the Directorate, whenever violation/discrepancy in following the provisions of Aircraft rules civil aviation safety guidelines comes to the notice of DGCA., immediate action is taken against the individuals responsible for violations. DGCA carried out safety audits and surveillance checks of the various operations for monitoring the adherence to rules regulations by operators.
9) The cause of accident is due to overweight at the tail end of the flight and it is the fault of the operator and the passengers who are traveling in the said fatal flight and they are not at all liable for payment of damages. The plaintiffs are not at all entitled to any of the relief claimed in the suit. The plaintiffs have to pay damages for the illegal and adventurous claim made against them. Hence, 30 O.S.No: 3014/2006 prayed to dismiss the suit with exemplary costs in the interest of justice and equity.
V. On the above said pleadings of the parties, my learned predecessor in office has framed following issues on 27.05.2008.
1. Whether the plaintiffs prove that defendants 1 and 2 allowed CESSNA 180 VT-EQU Aircraft to be used for commercial purposes without valid license on 17.04.2004?
2. Whether plaintiffs prove that on 17.04.2004 the above said Aircraft met with an accident due to the neg-
ligence on the part of defendants 1 and 2?
3. Whether plaintiffs prove that the death of Smt.Soundarya and her brother Sri.K.S.Amarnath in the said air crash was due to the negli-
gent act on the part of defendants 1 and 2?
4. Whether plaintiffs prove that de- fendants 3 and 4 being the control-
ling agency of all the air crafts flying within the Indian territory have failed to take all possible precau- tions while allowing the CESSNA 180 VT EQU Aircraft to use from Jakkur Aerodrome on 17.04.2004 and as such they are also vicari-
ously liable to pay the compensation amount along with defendants 1 and 2 to the plaintiffs?
31 O.S.No: 3014/2006
5. Whether plaintiffs further prove that deceased Sri.Amarnath was a leading film producer and director and his earnings was more than Rs.6 lakhs per annum?
6. Whether plaintiffs prove that they were totally dependent on the in-
come of the deceased?
7. Whether plaintiffs are entitled for compensation from defendants as claimed in the plaint?
8. Whether plaintiffs are entitled for interest at 9% per annum on the compensation amount that would be awarded in their favour?
9. Whether suit is bad for mis join-
der of defendant No.1 as party to the suit?
10. Whether suit is bad for mis de-
scription of the name of defendant No.2 in the plaint?
11. To what reliefs the parties are entitled to?
12. What Decree or Order?
VI. On 09.04.2010 the following additional issue was framed;
1. Whether defendants 1 and 2 prove that claim of the plaintiff is 32 O.S.No: 3014/2006 barred by law of limitation as con-
tended in the written statement?
VII. To prove the above said issues and to substantiate their respective case;
1) The 1st plaintiff herself has entered into the witness box as PW-1. Got examined one Smt.Gayathri as PW-2 and one Sri.Subba Narasimha as PW-3. Got exhibited 53 documents at Ex.P-1 to P-53 and closed their side.
2) In support of their defence, the 1st defendant himself has stepped into the witness box as DW-2. Got exhibited no document and closed their side.
3) The authorized person of the 4 th defendant i.e., the Deputy Director Air Safety is examined as DW-1 on behalf of the 3rd and 4th defendants. Got exhibited 1 document at Ex.D-1 and closed their side.
VIII. In the course of trial, the 2nd plaintiff reported dead and the 1st and 3rd plaintiffs are her LRs.
XI. Heard the respective counsels for both parties. In addition, they have also filed their written arguments and further written arguments.
33 O.S.No: 3014/2006
1) In support of his arguments, the counsel for the plaintiff has relied on the decisions reported/judgments in;
a) Civil Appeal No.2514/2020 on the file of the Hon'ble Apex Court.
b) Japan Airlines Vs. M/s. P&S Exports Corporation.
c) AIR 2005 DELHI 158. d) Kerala State Electricity Vs. Bhaskaran Nair. e) The Chairman Railway Board & Others Vs. Chandrima Das. f) Civil Appeal No.2867/2012 and an article/book
on Assessment of Compensation for Personal Injury and Death by Dr.Lalitha Sreenath.
2) On the other hand, the 1 st defendant has relied on the decisions reported in/the judgments in;
a) I (2000) ACC 80.
b) RFA (OS) 18/2007 on the file of the Hon'ble
High Court of Delhi.
c) Writ Petition No.6647 of 2014 on the file of the
Hon'ble High Court of Judicature at Bombay. X. This Court has carefully gone through the written arguments and the further written arguments filed by the respective counsels, gone through the above noted decisions/judgments and perused the record.
XI. The findings of this Court on the above issues and the additional issue are answered in the;
1. Issues Nos.1 to 11: Do not survive for consideration.
34 O.S.No: 3014/2006
2. Additional Issue : Affirmative. dated 09.04.2010
3. Issue No.12 : As per the final order for the following reasons.
REASONS XII. Before venturing into the issues and the additional issue raised for determination of this Court for the disposal of the suit, let this Court first to go through the admitted facts, the facts not in dispute and the disputed facts on record for the easy and better appreciation of the issues and the additional issue raised by this Court noted above.
XIII. The admitted facts of the case are;
1) There was an air crash on 17.04.2004 at 11:00 a.m. in GKVK Campus, Yelahanka.
2) The Aircraft involved in the said air crash is one Cessna 180 VT-EQA Aircraft manufactured in the year 1955 and it belonged to the 2 nd defendant and it is a private Aircraft.
3) Sri.K.S.Amarnath, Smt.Soundarya and Sri.Ramesh Kadam were the passengers and one Captain Joy Phillip 35 O.S.No: 3014/2006 was the pilot of the said Aircraft and all the above died in the said air crash.
4) The 3rd and 4th defendants are the regulating/controlling authority for all the Aircrafts run within the territorial jurisdiction of India.
5) The Aircraft had no valid insurance coverage as on the date of air crash.
6) There was no black box in the Aircraft. XIV. The facts not in dispute are;
1) The 1st defendant is made as party to this suit in his individual capacity.
2) The Aircraft was 4 seater Aircraft.
3) The reasons assigned by the plaintiffs for the air crash are;
a) Non airworthiness of the Aircraft,
b) Poor maintenance of the Aircraft,
c) Over weight of the Aircraft and
d) Inexperience of the Pilot.
XV. The facts in dispute are;
1) The 3rd and 4th defendants have utterly failed to regulate the Aircraft.
36 O.S.No: 3014/2006
2) In addition, the facts disputed by the 1st and 2nd defendants on facts are;
a) The reasons assigned by the plaintiffs for the air crash noted above.
b) The alleged booking of the Aircraft by the BJP for all the 3 passengers in the Aircraft.
c) The age, the occupation and the income of both the deceased i.e. Smt.Soundarya and Sri.K.S.Amarnath and on law are;
d) The suit is hit by limitation.
e) The suit is bad for mis-joinder of the 1 st defendant and mis-description of the 2nd defendant.
XVI. In the back ground of the admitted facts, the facts not in dispute and the disputed facts observed above, for the adjudication of the dispute between the parties,
1) Now this Court first has to see, whether the suit is within limitation.
2) If so, whether the admitted air crash is due to;
a) Non airworthiness of the Aircraft,
b) Poor maintenance of the Aircraft,
c) Over weight of the Aircraft and 37 O.S.No: 3014/2006
d) Inexperience of the Pilot.
3) If yes, then with regard to the liability,
a) Whether the deceased were paid passengers or the gratuitous passengers?
b) Whether the pilot was the employee/agent of the 1st and 2nd defendants and thus, 1st and 2 defendants are vicariously liable to pay the compensation?
c) Whether the 3rd and 4th defendants had failed to take all the safety measures and thus, are also liable to pay the compensation?
4) Thereafter, the quantum of compensation to be awarded/granted.
XVII. In the above back ground, let this Court to take up the additional issue first and then the issues one after another in the order observed above.
XVIII. ADDITIONAL ISSUE DATED 09.04.2010:- It is the contention of the 1 st and 2nd defendants that the suit filed by the plaintiffs on 18.04.2006 is barred by limitation under Section 30(1) of the Air Act as the claim for damages being not brought within 2 years from the date of the 38 O.S.No: 3014/2006 incident or accident or the stoppage of the carriage and thus, the suit filed after lapse of 2 years is liable to be dismissed as barred by limitation.
XIX. It is the arguments of the 1st defendant that the limitation for filing the suit under Law of Torts is 1 year as per the Part VII of the Schedule in para 72 (i.e., prima facie, the Article 72) of the Limitation Act of 1963, (for short, "the Act") and in the present case on hand, the accident took place on 17.04.2004, thus, the period of limitation would end on 17.04.2005 and the suit is filed on 18.04.2006. Therefore, the suit is hit by limitation.
XX. It is also his arguments that if the limitation is taken into consideration under the Fatal Accidents Act, then it is 2 years and under the Act, in the Schedule in Part VII in para 82 (i.e., prima facie, the Article 82) i.e. suits relating to torts and thus, the suit is filed 1 day beyond limitation.
XXI. It is also his arguments that if the limitation is taken into consideration under the Carriage Act, then also it is 2 years as seen in the notification S.O.186(E), Rule 30 39 O.S.No: 3014/2006 of the Schedule II of the Air Act and thus, this suit is filed 2 days beyond limitation period.
XXII. In this regard, he has drawn the attention of this Court to the relevant provisions of Article 72 and 82 of the Act and Rule 30 of the Air Act which are extracted here below:
Description of suit Period of Time from which period Limitation begins to run
72. For One year When the act or compensation for omission takes place.
doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in the territories to which this Act extends 82. By executors, Two years The date of the death of administrators or the the person killed. representatives under the Indian Fatal Accidents Act, 1855. 30. (1) The right to damages
shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or form the date on which the aircraft sought to have ar-40 O.S.No: 3014/2006
rived, or from the date of which the carriage stopped.
(2) The method of calculating the period of limitation shall be deter- mined by the law of the Court seized of the case.
XXIII. So, the plain reading of the above provisions are in support of the arguments of the 1st defendant.
XXIV. The counsel for the plaintiffs has argued that the Schedule II of the Air Act is applicable to the international carriage by air and as admittedly, the Aircraft involved in the present case is a domestic air carriage, the Schedule applicable is Schedule III of the Air Act which was inserted by Act of 28 of 2009 with effect from 01.07.2009. Therefore, the suit filed on 18.04.2006 in respect of the air crash dated 17.04.2006 does not fall within the scope of Rule 30(1) of the Air Act.
XXV. The counter argument of the 1 st defendant is that by virtue of Section 8 of the Air Act, Notification S.O.186(E) was issued by the Central Government on 20.03.1973 making the rules of the Air Act applicable to the domestic air carriage and the claim of the plaintiffs is covered under Section 5 of the Air Act and thus, the 41 O.S.No: 3014/2006 Schedule II of the Air Act is applicable to the case on hand and under Rule 36, the days are current and not working days for the calculation of the limitation.
XXVI. In support of his above counter arguments, he has drawn the attention of this Court to the above provisions, notification and the rule which are extracted here below;
"5. Liability in case of death.-
(1) Notwithstanding anything con-
tained in the Fatal Accidents Act, 1855 (13 of 1855) or any other en-
actment or rule of law in force in any part of India, the rules con-
tained in (the First Schedule, the Second Schedule and the Third Schedule) shall, in all cases to which those rules apply, deter-
mine the liability of a carrier in re- spect of the death of a passenger.
XXVII. The plain reading of the above provision clearly demonstrates that the claim of the plaintiffs in the present suit falls within the above provision.
XXVIII. Though the plaintiffs have not stated specifically in their plaint under what provision of law, they are making their claim in this suit, the sum and substance of the plain reading of the plaint demonstrates that they 42 O.S.No: 3014/2006 are claiming their right under the Law of Torts and in the course of arguments, the counsel for the plaintiff has argued that their claim is invoking the civil rights under the Law of Torts and Section 9 of CPC and not any other statute and thus, the limitation stated under the Air Act is not applicable to the case on hand.
XXIX. But, as noted above, the plain reading of Section 5 of the Air Act clearly demonstrates that the present claim of the plaintiffs falls under that provision only.
XXX. In this regard, the arguments of the 1 st defendant that the applicable law to this case has evolved from Tort based on common law of England to Fatal Accidents Act to the Special Enactment namely the Carriage by Ari Act, 1972 appears to be correct.
XXXI. It is well settled proposition of law that when there is special enactment for the remedy the parties claim, they ought to exhaust their remedy under the special law and not under the general law.
XXXII. Since it is the case of the plaintiffs that the deceased were paid passengers in the Aircraft, this Court 43 O.S.No: 3014/2006 enquired the respective counsels with regard to the applicability of the Consumer Protection Act to the case on hand and being a special enactment having any derogatory clause in the said Act and provision for limitation if any in the said Act.
XXXIII. In response to which, in the connected case in OS.No.3013/2006 i.e., the case filed for compensation on account of death of Smt.Soundarya, the counsel for the 1st plaintiff therein has relying on the decisions reported in (2004) 1 SCC 305 and AIR 2004 Jammu and Kashmir 126, has argued that the remedies provided under the Consumer Protection Act of 1986 which is applicable to the relevant point of time (as the new Consumer Protection Act of 2019 has come into force with effect from 19.08.2019), are in addition and not in derogation of the provisions of any other law for the time being in force and thus, this suit is not hit by any of the provisions of the Consumer Protection Act of 1986. Since, this issue is on question of law, those decisions are also taken note of in this case.
1) (2004) 1 SCC 305 (between Secretary, Thirumurugan Co-Operative Agricultural Credit Society 44 O.S.No: 3014/2006 Versus M.Lalith (Dead) through LRs and Others in Civil Appeal No.92 of 1998 from the Judgment and Order dated 30.05.1997 of the National Consumer Disputes Redress Commission at New Delhi in RP No.358 of 1996 decided on December 11, 2003 before their Lordships Shivaraj V. Patil and D.M.Dharmadhikari, JJ.) wherein he has relied on the observations of the Hon'ble Apex Court that;
".....
12. As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation of any other provi- sions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Sec- tion 3 seeks provide remedy un- der the Act in addition to other remedies provided under other Acts unless there is a clear bar. ....."
2) (2004) 1 Supreme Court Cases 317 (between Khetrabasi Biswal Versus Ajaya Kumar Baral and Others in Civil Appeal No.5984 of 1998 from the Judgment and 45 O.S.No: 3014/2006 Order dated 22.08.1997 of the Orissa High Court in OJC No.14380 of 1996 with Nos.5986-87 and 5985 of 1998 decided on November 20, 2003 before their Lordships V.N.Khare C.J. and S.B.Sinha, J.) wherein he has relied on the observations of the Hon'ble Apex Court that;
".....
11. The provisions of code of Civil Procedure can only be applied to the above said matters by the Divisional Forum to the proceedings before it. The provisions contained in Order 9 C.P.C. have not been made applica- ble to the proceedings under Act. The proceedings under the Act by no means of reasoning can be equated with a civil suit. This being the posi- tion of the proceedings under the Act, the question arises - can the jurisdiction of the civil Court vested u/s. 9 C.P.C. be deemed to have been excluded by necessary implication. To answer the question the provisions contained in Section 3 of the Act need to be noticed. Same reads as under:-
"3. Act not in derogation of any other law - 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."
12. From the bare perusal of Sec-
tion 3 it is crystal clear that the remedies provided under the Act are 46 O.S.No: 3014/2006 in addition to any other remedies provided under any other law. As the provisions of this Act are to be read in addition to and not in dero-
gation of the provisions of any other law for the time being in force, therefore, a consumer can file a civil suit for claiming compensation in a civil Court under the provisions of ordinary civil law or he can choose remedy under the provisions of the Act. The remedy provided under the Act is in addition to the rem -
edy provided by the civil law. It must be kept in mind that by using the expression "in addition" and "not in derogation of" the legislature while enacting Consumers Protec-
tion Act did not intend to create an alternative forum or remedy for a consumer. A consumer who chooses a remedy under the Act but does not pursue the same, therefore, would not be debarred form approaching the civil courts by way of a suit for the same remedy.
Same should be the case in respect of a person whose complaint before the Divisional Forum get dismissed. Even he would not be debarred from moving the civil Court for the same relief and on the same cause of ac-
tion. It is another thing that if he applies to gets his grievance re-
dressed for the Divisional Forum under the provisions of the Act there may not be any occasion for him to move the civil Court.
...."
47 O.S.No: 3014/2006
a) The principles rendered in the above cases supra and the very provision of Section 3 of the Consumer Protection Act of 1986 are in support of the above arguments of the counsel for the 1 st plaintiff in the connected suit in OS.No.3013/2006.
b) The counsel for the plaintiffs in this suit has also relied on the above decisions and the provision of law. The 1st defendant did not deny the above arguments, but has countered that there is no pleading on record on behalf of the plaintiffs in that regard and argued that in view of Section 5 of the Air Act, the only provision applicable to the claim of the plaintiffs is the said provision i.e., Section 5 of the Air Act which is a special enactment and bars the other provisions of law for the time being in force and the said counter is supported by the said provision.
XXXIV. Thus, even for the sake of arguments, the present claim of the plaintiffs are considered under the general law i.e., Law of Torts, then also, for the purpose of limitation, as noted above, the provisions applicable is as rightly contended by the 1 st defendant, Article 72 of the Act which prescribes the limitation as "1 year" and if the suit 48 O.S.No: 3014/2006 claim is considered under the Fatal Accidents Act, the Article applicable is 82 and limitation is "2 years".
XXXV. With regard to the applicability of the Schedule II which is admittedly for the international carriage by air, as noted above, the 1 st defendant has drawn the attention of this Court to the provision of Section 8 and the Notification i.e.,No.S.O.186(E) dated 30.03.1973 which read;
8. Application of Act to carriage by air which is not international.- (1) The Central Government may, by notification in the Official Gezettee, apply the rules contained in the First Schedule and any provi- sion of Section 3 or Section 5 or Sec- tion 6 to such carriage by air, not being international carriage by air as defined in the First Schedule, as may be specified in the notification, subject, however, to such excep-
tions, adaptations and modifica-
tions, if any, as may be so specified.
"S.O.186(E). - In exercise of the powers conferred by sub-section (2) of Section 8 of the Carriage by Air Act, 1972 (69 of 1972) and is super- session of the notification of the Government of India in the late Min- istry of Transport (Civil Aviation Wing), No.G.S.R. 1967, dated the 17th December, 1963, except as re-
spects things done or omitted to be 49 O.S.No: 3014/2006 done, the Central Government hereby directs that with effect from 1 st April, 1973, Section 4, Section 5, and Section 6 of the Act and the rules contained in the Second Schedule to that Act shall apply to all carriage by air not being in-
ternational carriage by air as de-
fined in the said Second Schedule, irrespective of the nationality of the aircraft performing the carriage, subject ot the following exceptions, adaptation and modifications, namely:-
....."
XXXVI. The plain reading of the above provisions clearly demonstrate that the Central Government exercising the powers under Section 8 of the Air Act, has issued the above Notification making applicable the provisions of the Schedule II of the Air Act to the domestic air carriage and thus, Rule 30 is applicable to the case on hand and the limitation is 2 years.
XXXVII. The 1st defendant has also drawn the attention of this Court to Rule 36 of Schedule II of Air Act which is extracted here below;
"36. The expression "days" when used in these rules means current days, not working days".50 O.S.No: 3014/2006
XXXVIII. Thus, prima facie, in view of the admitted fact that the air crash is dated 17.04.2004 and the present suit is filed on 18.04.2006 is hit by Articles 72 and 82 of the Act and Rule 30 of Schedule II of the Air Act.
XXXIX. In support of his arguments, the 1 st defendant has also drawn the attention of this Court to the decision reported in/the judgment in;
1) I (2000) ACC 80 (between Smt.Indu Toshniwal since ... Vs Union of India (UOI) and Another decided on 29th August, 1997 before their Lordships S.R. Babu, B.S. Rao JJ.) wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
"The original petitioner was ..... and in extinquishments of all rights and claims is ultra vires the Car- riage by Air Act, 1972 and the notifi- cations issued therein and for a dec- laration that Sections 5 and 8 of the Act and the notifications dated 30th March, 1973 are void and unen- forceable, in so far as they permit imposition of conditions as to settle- ment of claims by payment of com-
pensation not in excess of Rs.5,00,000/- and for certain other incidental reliefs.
.....
3. A Convention was held for the unification of certain reliefs regard-51 O.S.No: 3014/2006
ing ..... The said Act did not apply of its own force to internal carriage of persons, luggage or goods. How- ever, under Section 4 of the Act, the Central Government is autho- rized to issue notification apply- ing the rules in the First Sched- ule to the Act to internal carriage by Air by a notification issued on 30 th March, 1973, Government of India issued a notification in ex- ercise of the powers conferred under Section 8(2). By Section 8 of the Act, the Central Government may by notification in Official Gazette apply the rules contained in the First Schedule and any provi- sion of Section 3 or 5 or Section 6 to such carriage by air, not being inter- national carriage by air as defined in the first schedule, subject, however, to such exceptions, adaptations and modifications as may be specified. Under Section 3(2) thereof Central Government is authorized, by notifi- cation to apply rules contained in the Second Schedule and any provi- sion of Section 4 or Section 5 or Sec- tion 6 to such carriage by air as de- fined in the Second Schedule as may be specified in the notifications sub- ject however to such exceptions, adaptation and modifications, if any, as may be so specified. In exercise of the said power under Section 8(2) of the Act and in the Supers- ession of the earlier notification dated 17 th December, 1963 except in respect of things done, or omitted to be done, the Central Government directs that with ef-52 O.S.No: 3014/2006
fect from 11 th April, 1973, Sec- tions 4, 5 and 6 of the Act and Rules contained in the Second Schedule to the Act shall apply to all carriage by air not being inter- national carriage by air as de- fined in the Second Schedule ir- respective of the nationality of the aircraft performing the car- riage, subject to the exceptions mentioned in the notification. ..... ....."
a) The above observations are in support of the arguments of the 1st defendant in respect of the applicability of the Schedule II to the domestic carriage by air and the provisions of Sections 5, 8 and the Notification No.S.O.186(E).
2) RFA (OS) No.18/2007 before the Hon'ble High Court of Delhi at New Delhi between AIR INDIA LTD Versus TEJ SHOE EXPORTERS P. LTD. AND ANR decided on 19.09.2013 before their Lordships S.Ravindra Bhat, R.V.Easwar JJ wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Delhi that;
".....
5. Air India urges that the learned Single Judge failed to appreciate that Tej Shoes' suit was time 53 O.S.No: 3014/2006 barred under the Carriage by Air Act 1972; the suit was also barred and not maintainable in terms of the contract between the said parties .....
6. To say that the suit was time barred, Air India relies on Sailesh Textile Industries Vs. British Air- ways and Anr 2003 (69) DRJ 683 RFA (OS) 18/2007 Page 3 where, noticing the law declared by the Supreme Court in East and West Steamship Co., Georgetown, Madras Vs S.K. Ramalingam Chettiar (1960) 3 SCR 820, the Court held that Clause 18 of the Second Schedule to the Carriage by Air Act provides that the carrier can be liable for damage sustained if there is loss to the reg- istered luggage or the cargo. The plaintiff's case fell under Clause 18(1) of the 1972 Act. In terms of clauses 29 and 30, a suit filed beyond the period of two years is barred by limitation. Provisions of the Schedule to the 1972 Act are clear and unambiguous and provide for a period of limitation within which a suit is to be filed to claim damages for loss of goods, whether it be loss to the goods or whether loss to the owners. The suit, hav- ing been filed the beyond the pe- riod prescribed period of two years, is barred by limitation.
7. It is argued that the learned Single Judge erred by holding that in a case of wrongful delivery of con- signment, limitation would not be governed by Rules 29 and 30 of the 54 O.S.No: 3014/2006 first and second Schedule to the 1972 Act but by the Limitation Act, 1963. It is submitted that Rules 29 and 30 clearly stipulate that the right of damages shall be extinguished if an action is not brought within two years from the date of arrival at the destination, or form the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. In the present case, .....
.....
9. Learned senior counsel relied on AIR India Vs Asia Tanning Co 2003(1) LW 622 ..... The rule of limi- tation provided in Rule 30 would clearly be attracted ..... She also re- lied on American Export Isbrandtsen Lines Inc. and Anr. vs. Joe Lopez and Anr, AIR 1972 SC 1405 where it was held that;
"Carrier ...."
Similarly, the judgment of this Court in .... For the submission that provi- sions of the 1972 Act being part of later special law, and providing to the contrary, would prevail over the earlier general law, embodied in the Limitation Act, 1963 (i.e. the doc- trine of lex posterior derogate priori).
10. Counsel lastly submitted that Rules 29 and 30 of the first and sec-
ond Schedule to the Carriage by Air Act, 1972, stipulate that right to claim damages is extinguished if an action is not brought within two years from the date of arrival at the 55 O.S.No: 3014/2006 destination, or from the date on which the aircraft ought to have ar- rived, or from the date on which RFA (OS) 18/2007 Page 6 the car-
riage stopped. In the present case, the cause of action arose in 1990 but the suit was filed by Tej Shoe in 1993. ..... Thus, the suit insti- tuted by Tej Shoe is barred by law of limitation as per the Carriage by Air Act 1972 as well as the Contract be-
tween the shipper and the carrier.
.....
13. It was submitted that by virtue of Section 29 of the Limitation Act, the provisions of the Act would automatically apply to enactments and causes not specifically provided for, unless the special or local en- actment provided to the contrary.
The 1972 Act was silent as to causes of action in respect to non-delivery of goods. Consequently, the residual provision under the Limitation Act, i.e., Article 137 which provided as three years period, would apply;
also, the silence in the 1972 Act means that in respect of causes not provided for under Entry 18 of the first and second schedule, compensation based on actual dam-
age can be recovered.
.....
27. Had Parliament intended that Courts can ..... Likewise, the period of limitation prescribed under Arti- cles 29 (of the first schedule) and 30 (of the second schedule) are con-
trary stipulations, which amount to "period of limitation different from the period" under the Limi-
56 O.S.No: 3014/2006
tation Act (Section 29(2)) which would exclude application of the Limitation Act itself. Those stipu- lations under the 1972 Act are un- der a special statute and are abso-
lute in terms; they would prevail over the general provisions of the Limitation Act. Consequently, the suit filed by Tej Shoe is also time barred.
....."
a) The above case is in respect of delivery of goods and the present case on hand is of course in respect of death of the passengers. But, it is specifically held in the above case that the provision applicable with regard to the limitation is Rule 30 in Schedule II of the Air Act as it is a special statute and absolute in terms.
3) Writ Petition No.6647 of 2014 before the Hon'ble High Court of Judicature at Bombay (Civil Appellate Jurisdiction) between British Airways Vs. M/s Bhagwandar B Ramchandani decided on 2nd February 2018 before her Ladyship Dr. Shalini Phansalkar Joshi J. wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Judicature at Bombay that;
".....
11. Thus, the only issue neces- sarily arising for consideration in 57 O.S.No: 3014/2006 this writ petition is whether the pro- visions of Limitation Act, especially Section 18 of the Act, which is in- voked by the Trial Court, in this case, can be made applicable to the litigation which is governed by the provisions of the Carriage by Air Act, 1972, 12) In this respect, it can- not be disputed that the Limita- tion Act, 1963 is a general and prior law; whereas the Carriage by Air Act, 1972 is a special and later enactment. Hence as held by the Apex Court, in the case of Maya Mathew V. State of Kerala (AIR 2010 Supreme Court 1932) the rules of interpretation when a subject is gov- erned by the two sets of enactments are will settled and they are as fol- lows:-
(i) When a provision of law regu-
lates a particular subject and a sub- sequent law contains a provision regulating the same subject, there is no presumption that the later law repeals the earlier law. The rule-
making authority while making the later rule is deemed to know that ex- isting law on RJ WP 6647 OF 2014.odt the subject. If the subse- quent law does not repeal the earlier rule, there can be no presumption of an intention to repeal the earlier rule;
(ii) When two provisions of law -
one being a general law and other being special law govern a matter, the courts should endeavor to apply a harmonious construction to the 58 O.S.No: 3014/2006 said provisions. But when the in-
tention of the rule making au-
thority is made clear either ex-
pressly or impliedly, as to which law should prevail the same shall be given effect;
(iii) If the repugnancy in inconsis- tency subsists in spite of an effort to read them harmoniously, the prior special law is not presumed to be re- pealed by the later general law. The period special law will continue to apply and prevail inspite of the sub- sequent general law. But where a clear intention to make a rule of universal application superseding the earlier special law is evident from the later general law, then the later general law, will prevail over the period special law.
(iv) Where a later special law is repugnant to or inconsistent with an earlier general law, the later special law will prevail over the earlier gen- eral law.
13. In the instant case, it is ad-
mitted that the Carriage by Air Act is a special enactment of the year 1972 and therefore later enactment to the general law of Limitation Act, which was enacted in 1963. Hence, as per above said Principle No.2, it will be necessary to ascertain the intention of the rule making authority to know which RJ WP 6647 OF 2014.odt law should prevail. For this purpose, if one goes through the provisions of the 59 O.S.No: 3014/2006 aid Act and the object and reasons for which the said Act was enacted, then it can be seen that the object of enacting the Carriage by Ari Act, 1972, was to provide a specific pe-
riod of limitation and thereby to ex- clude the application of the Limita- tion Act. .....
.....
27. The Carriage by Air Act, 1972 also contains the similar provision like the Carriage by Sea Act 1924. It is also a special enactment. Hence, its provisions are bound to prevail over the provisions of general law of Limitation. Accordingly, Section 18 of the Limitation Act will have no ap- plication thereto as held by Delhi High Court, in the case of Air India Ltd -vs- Tej Shoe Exporters P. Ltd and another, (20-14 (1) ILR (Del)
484) also. In this judgment it was unequivocally held that the provi- sion of Schedule I Clause 29 and Schedule II Clause 30 are having overriding effect and they would ex- clude application of Limitation Act itself. It was further held that these provisions are under special statute and they are absolute in terms;, therefore, they would prevail over general provisions of the RJ WP 6647 OF 2014.odt Limitation Act. It was also hold that the Carriage by Air Act, 1972 was enacted to give effect to the Warsaw Convention (of 1929) for unification of rules relating to international carriage, to which India is signatory, and further to give effect to the Hague Protocol of 1955. It was held that 60 O.S.No: 3014/2006 as the provisions of the Statute are clear and unambiguous, then they have to implemented, without there being much scope for interpretation. .....
34. Therefore, as admittedly in this case, action of filing the suit in the Court was not taken within two years from the date on which cause of action arose and as provisions of Section 18 of the Limitation Act, cannot be made applicable, the suit apparently is barred by limita- tion.
....."
a) In the above case also, relying on the principles rendered in Tej Shoes' case supra, it is held that the provision of Rule 30 of the Schedule II of the Air Act is having overriding effect and it would exclude application of Limitation Act itself, the above decision is also in support of the arguments of the 1st defendant.
XL. The counsel for the plaintiffs has argued that the provision applicable to the case on hand for the purpose of limitation is Article 113 of the Act and not the limitation provided under the Air Act.
XLI. To overcome the arguments of the 1 st defendant and in support of his arguments with regard to the present issue, the counsel for the plaintiffs has relied on; 61 O.S.No: 3014/2006
1) The judgment of the Hon'ble Apex Court in Civil Appeals Nos.2514 and 2515 of 2020 arising out of SLP (C) Nos.30209 and 30210 of 2017 between Shakti Bhog Food Industries Ltd, Versus The Central Bank of India & Anr decided on 5th June, 2020 before their Lordships A.M.Khanwilkar, Dinesh Maheshwari, Sanjiv Khanna JJ. wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
".....
5. Be it noted that ..... The 1 (2013) 198 DLT 56 Courts pro-
ceeded on the basis that Article 113 is attracted in the facts of the present case, as the reliefs claimed by the appellant were not covered under any specific Article with re- gard to time period within which ac- counts can be sought by party from its bank, as noted by the trail Court in paragraph of its judgments repro- duced above.
.....
9. The expression used in Article 113 of the 1963 Act is when the right to sue accrues, which is markedly distinct from the expres- sion used in other Articles in First Division of the Schedule dealing with suits, which unambiguously re- fer to the happening of a specified event. Whereas, Article 113 being a residuary clause and which has been involved by all the three Courts 62 O.S.No: 3014/2006 in this case, does not specify hap-
pening of particular even as such, but merely refers to the accrual of cause of action on the basis of which the right to sue would accrue.
10. Concededly, the expression used in Article 113 is distinct from the expression used in other Articles in the First Division dealing with suits such as Article 58 (when the right to sue first accrues), Article 59 (when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him) and Article 104 (when the plaintiff is first refused the enjoy- ment of the right). The view taken by the trial Court, which commended to the first appellate Court and the High Court in second appeal, would inevitably entail in reading the ex- pression in Article 113 as when the right to sue (first)_ accrues. This would be re writing of that provision and doing violence to the legislative intent. We must assume that the Parliament was conscious of the dis- tinction between the provisions re- ferred to above and had advisedly used generic expression when the right to sue accrued in Article 113 of the 1963 Act. Inasmuch as, it would also cover cases falling under Sec- tion 22 of the 1963 Act, to wit, con-
tinuing breaches and trots.
11. We may usefully refer to the dictum of a three Judge Bench of this Court in Union of India & Ors.
63 O.S.No: 3014/2006Vs. West Coast Paper Mills Ltd. & Anr. 5, which has had an occasion to examine the expression used in Article 58 in contradistinction to Ar- ticle 113 of 5 (2004) 2 SCC 747 the 1963 Act. We may advert to para-
graphs 19 to 21 of the said decision, which read thus: 19. Articles 258 and 113 of the Limitation Act read thus:
.....
21. A distinction ..... in terms of Article 113 thereof, the period of limitation would be counted from the date when the right to sue ac-
crues. .....
28. Article 120 of 1908 Act was interpreted by the Judicial Commit- tee in Bolo v. Koklan ..... There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to in- fringe that right, by the defendant against whom the suit is instituted. .....
.....
30. While enacting Article 58 of the 1963 Act, ..... This would mean that if a suit is based on multiple causes of action, the period of limi- tation will begin to run from the date when the right to sue first ac-
crues. To put it differently, succes- sive violation of the right will not give rise to fresh cause of the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued. .....
64 O.S.No: 3014/2006
13. It is well established position that the cause of action for filing a suit would consist of bundle of facts. Further, the factum of suit being barred by limitation, ordinarily, would be a mixed question of fact and law. .....
.....
15. The respondents had relied on ..... Suffice it to observe that go- ing by the averments in the plaint, the argument of the respondents that the appellant had placed re-
liance on the correspondence to get extension of the limitation period, is untenable. The averments in the plaint, however, are very explicit to the effect that the grievance of the appellant about unilateral charging of interest/commission by the re-
spondent Bank was firmly denied or refused by the Senior Manger of the respondent Bank vide letter dated 08.05.2002 and in particular latter dated 19.09.2002 and again by Ad-
vocates letter on 23.12.2003, giving rise to cause of action and accrual of right to sue.
.....
18. Reverting to the decision in ..... First Division of the Schedule to the 1963 Act regarding suits relating to accounts; and nor similar to Arti- cle 113, which envisages three years time from the period when the right to sue accrues (and not when the right to sue first accrues).
.....
20. Similarly, in S.S. Rathore (supra), ..... the trial Court had 65 O.S.No: 3014/2006 failed to advert to and analyze the averment in the plaint, but selec-
tively took notice of the assertion in the plaint in question that the ap-
pellant became aware about the dis- crepancies in July, 2000, and then proceeded to reject the plaint being barred by law of limitation having been filed in February, 2005.
.....
21. In view of the above, this ap-
peal succeeds and the plaint stands restored to the file of the trial Court to its original number for being pro- ceeded in accordance with law. All contentions available to both parties are kept open including the issue of limitation to be decided along with other issues on the basis of plead-
ings taken in the written statement and the evidence produced by the parties in that behalf uninfluenced by the observations made in the present judgment on factual mat-
ters. ....."
a) The above case is on Article 58 and 113 of the Act which are not applicable to the case on hand as Article 113 being residuary clause applicable to the reliefs not covered by any specific article provided under the Act for calculation of the limitation.
b) But, in the present case on hand, as observed above, the relief sought by the plaintiffs prima facie falls under Section 5 of the Air Act and there is specific 66 O.S.No: 3014/2006 provision for limitation excluding the application of the Act i.e., Rule 30 of Schedule II of the Air Act.
c) Hence, the arguments of the counsel for the plaintiffs that the provision applicable to the case on hand is the Article 113 of the Act and not the limitation provided under the Air Act holds no water.
2) The judgment passed by the Hon'ble High Court of Delhi in the case between Japan Airlines v. M/s P & S Exports Corporation decided on 28th July, 2011 before their Lordships Valmiki J Mehta J. wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Delhi that;
".....
4. Before this Court, ..... basic stress was laid on the ground that the suit was barred by limitation by virtue of Rule 30 of the Second Schedule of the Carriage by Air Act, 1972. ..... the provision of Rule 30 for an extinguishment of any right thereupon will only apply in case of any loss or damage to the goods, and Rule 30 will however not apply in case of negligence by the airlines of mis-delivery.
5. I may note that the .....because of the suit is not filed within 2 years. If the suit for recovery is based upon 67 O.S.No: 3014/2006 loss caused by wrongful delivery of the goods differentiated from any loss or damage to the goods by the carrier during the carriage, then the limitation period for suit will be three years under the Limitation Act, 1963 and not two years as per the aforesaid Rule 30.
....."
3) AIR 2005 DELHI 158 (between Ethopian Airlines, New Delhi Appellants v. M/s Federal Chemical Works Ltd., New Delhi Respondent in FAO (OS) No.343 of 2000 decided on 07.10.2004 before their Lordships Vijender Jain J. and Anil Kumar J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Delhi that;
"Carriage by Air Act (69 of 1972), Sch.II R.30(1)(2) - Period of limita- tion - R.30(2) provides that period of limitation to be determined by lex fori i.e., Law of Courts - Law of limi- tation differs from country to coun- try - Thus R.30(2) cannot be stated to be in conflict with main objectives of Act - Suit for mis delivery of goods brought after expiry of two years - By relying on R.30(1) if pe- riod of limitation would be taken to be two years would make R.30(2) re- dundant - Therefore finding that suit brought by claimant after two years of mis delivery was not barred by limitation - Held, to be proper.68 O.S.No: 3014/2006
1. JUDGMENT:- This appeal has been preferred by the appellant ag- grieved by the decision of the learned single Judge holding that the suit of respondent is not barred by time. .....
.....
(2) The method of calculating the period of limitation shall be deter-
mined by the law of the Court seized of the case."
Mr.Wadhwani had contended that ..... Accordingly go him, it includes loss of mis-delivery and the period of limitation would be two years. As the goods were delivered on 09.02.1993 after being received on or before and the suit was filed on 14.11.1995 and, therefore, the suit of the respondent herein was not within two years and was not within time. .....
"17. The carrier is liable for dam- age sustained in the event of the death or wounding of a passenger or any other bodily injury by a passen- ger, if the accident which caused the damages so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
.....
5. Reliance was also ..... Lastly, it was contended by Mr.Wadhwani that assuming that Rules 17, 18 and 19 do not apply in the instant case still R.30 would be applicable as far limitation is concerned. It was 69 O.S.No: 3014/2006 also contended that if right to sue extinguishes pursuant to R.30, no extension of that right can be granted in favour of the respondent. .....
10. In this case ..... The Court held:-
"But the position is different when the claim for loss of damage is not brought against the carrier, but the carrier's agent. As is clear on the plain reading of Arts.17, 18, 19, these articles do not impose any lia- bility on the carrier's agent. .....
11. The argument was advanced by the ..... Broadly speaking from the ratio of the aforesaid two judg- ments it cannot be said that in the event of a breach of terms of the contract, a party is left remediless if the remedy is not covered under the Rules. .....
.....
14. Now, the last question ..... R.30(1) and to import that the law of limitation would be two years, would be making the sub-rule (2) of R.30 redundant. There are two period regarding law of limitation. As per English Law of Limitation under 1980 Act for a simple contract six years period is provided while spe- cial time limit for claiming contribu- tion in respect to any damage from any other person, a two years' pe- riod from the date on which that right accrued had been provided. We would like to observe that it appears that in international conventions 70 O.S.No: 3014/2006 and covenant, the limitation pro- vided basically has been imported considering the limitations provided in the law of limitation as provided in the later category of English Limi- tation Act. As law of limitation dif- fers from country to country and, therefore, the inclusion of sub- rule (2) of R.30 cannot be stated to be in conflict with the main ob- ject of the Act. If the period of limi- tation is left to the Hague Protocol solely it may lead to various anoma- lous situation, which can be coun- tered and for which R.30(2) was en- acted Any proposition to whittle down the relevance of R.30(2) will not in consonance with the objec- tive of the Carriage by Air Act, 1972 (No.69 of 1972) and will not be acceptable. Therefore, on con- joint reading of pleadings and provi- sions of the fact and limitation as provided under common law, the in- evitable consequence is that suit of respondent is not barred by limita- tion. Therefore, we find no merit in the appeal and the same is dis- missed with costs.
....."
a) The above 2nd decision i.e., Japan Airline's case supra is dated 28.07.2011 and the 3 rd decision i.e., Ethopian Airlines' case supra is dated 17.10.2004 and both of Delhi High Court and of two judges' bench. 71 O.S.No: 3014/2006
b) The above noted 2nd and 3rd decisions relied on by the 1st defendant i.e., Tej Shoes' case supra and British Airways' case supra are of 19.09.2013 and 02.02.2018 respectively wherein the first one is of the Hon'ble Delhi High Court only and of two judges' bench. The second one is of the Hon'ble High Court of Judicature Bombay of single bench, but wherein the dictum laid down in the first one i.e., Tej Shoes' case supra is relied on and in both the cases, it is held that the provision of Rule 30 of the Schedule II of the Air Act is having overriding effect and it would exclude application of Limitation Act itself.
c) Thus, the decisions relied on by the 1 st defendant are recent one and they are supported by the provisions of the Air Act and its object. Hence, these decisions i.e., Japan Airlines' case and Ethopian Airlines' case supra are not helpful to the plaintiffs.
4) 2004 ACJ 912 (between The Kerala State Electricity vs. K.V.Bhaskaran Nair decided on 8 th August, 2002 before their Lordships S.Sankarasubban J. K.Padmanabhan Nair J.) wherein he has drawn the attention of this Court to the observations that; 72 O.S.No: 3014/2006
"1. The defendants in O.S.No.639 of 1993 on the file of Subordinate Judge's Court, ... The appeal is filed against the judgment and decree passed by the Court below awarding an amount of Rs.1,50,000/- as com- pensation on account of the death of Suresh Kumar, son of .... .....
3. The appellants ..... the incident occurred on 29.06.1990 and the suit was filed only 28.06.1993. It is con- tended that in view of the provi- sions contained in Article 82 of the Limitation Act, which pre- scribed a period of two years from the date of accident, the suit is barred. .....
.....
8. It is true that in this case also ..... In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat (1994) 4 SCC 1) the Supreme Court held that when tortuous liability arising due to neg- ligence, mistake, defective planning or failure to discharge public duty, it is governed by the provision of Arti- cle 113 of the Indian Limitation Act, the residuary Article. ..... It was held as follows:-
"Where the State .....
In State of Andhra Pradesh v. Challa Ramakrishna Reddy (AIR 2000 SC 2083) ..... The High Court as well as the Apex Court found that the period of limitation for filing such a suit is governed by Article 113 of the Indian Limitation Act. In view of the principle laid down in 73 O.S.No: 3014/2006 (114) 4 SCC 1, we are of the view that the claim put forward by the re-
spondents cannot be thrown away on the technical ground of limita-
tion. In this case also, there is alle- gation of negligence and failure to discharge pubic duty on the part of the employees of the first ap-
pellant, K.S.E. Board which is a Statutory Body. So the suit claim is to be treated as one for compensa-
tion or damage on account of a tor-
tuous act committed by the State.
Hence the same is not governed by Article 82 but by Article 113 of the Indian Limitation Act. So the finding of the Court below that the suit is not barred by limitation is correct and we confirm that finding.
....."
a) Before venturing into the applicability of the dictum laid down in the above case to this case, let this Court first to see the facts of the above case which are observed in para No.2 which read thus;
".....
2. Deceased Suresh Kumar was working as cleaner-cum-checker in a stage carriage Bus bearing regis- tration No.KL-7 8937 plying between Kakkanad and Perumbadappu. At or about 4:230 a.m. on 29.06.1990, the deceased was walking along the pathway at Vazhakkala to fetch watcher from a public tap situated on the side of the road for cleaning the bus. An electric wire drawn over 74 O.S.No: 3014/2006 the pathway broke down the and was lying on the pathway. Suresh Kumar accidentally touched the live wire. He sustained electric shock and died. The respondents who are the legal heirs of the de- ceased Suresh Kumar filed the suit claiming compensation alleging that the power line drawn over the path- way was under the control and management of the first appellant and officers and employees working under it. It was alleged that the inci- dent took place on account of the negligence of the appellant and its employees .....
...."
b) So, the death caused in the above case is due to electric shock and the incident involved in this case is the air crash and as noted above, the remedy sought in this case falls under Section 5 of the Air Act which is a special enactment and the limitation provided under the said Act/the Air Act i.e., Rule 30 excludes the general law of limitation.
c) In the above case, it is observed that the act of tort was done by the employees of the State and thus, the provision applicable to the facts of that case is not Article 82, but Article 113 of the Act.
75 O.S.No: 3014/2006
d) On the other hand, in the case on hand, as noted above, if the claim is considered under the general Law of Tort, the provision applicable is Article 72 and if it is considered under the Indian Fatal Accidents Act, 1855, then the provision applicable is Article 82.
e) But, in view of the claim falls under the provision of Section 5 of Air Act, which is special enactment provides special provision for limitation i.e. Rule 30 of the Schedule II which excludes the application of the Limitation Act itself. Hence, the dictum laid down in the above decision i.e., Kerala State Electricity's case supra is not applicable to the facts of this case.
5) AIR 2002 GAUHATI 108 (between M/s Surma Valley Saw Mills (Pvt.) Ltd Appellants v. Smt.Arati Das and others Respondents in S.A.No.150 of 1996 decided on 13.03.2002 before his Lordship A.H.Saikaia, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Gauhati that;
".....
(C) Limitation Act (36 of 1963), Art.113 - Applicability of - Mutation case - Withdrawn on being directed by Settlement Officer to file before 76 O.S.No: 3014/2006 appropriate Court as he had no ju-
risdiction to decided the same as it involved question of declaration of title over suit land - Suit filed within three years form that date - Not barred by limitation on ground that it was filed beyond three years pe-
riod from date of filing mutation case - Plaintiff protected by resid- uary provisions of Art.113 in such case.
.....
14. Lastly Mr.Goswami, learned Sr. Counsel has contended that the suit itself was barred by limitation and non-consideration of that as-
pect by the appellate Court manifestly speaks of a sub-
stantial question of law to be de-
cided by this Court. Mr.Goswami has submitted that the suit was filed beyond the period of limitation i.e., much after three years from which they came to know about the alleged mutation in the name of the defen-
dants/appellants as three years time was over from the date of filing the Mutation case No.96/1985-86 till the date of filing the suit on 27.11.1989.
.....
22. As regards the substantial question of law that the suit is barred by limitation it is settled position of law that issue of limita- tion always involves mixed question of fact and law. In the instant case, it is abundantly clear and Plaintiffs/Respondents had ap-
proached the civil Court only on the specific direction of the Revenue 77 O.S.No: 3014/2006 Court as the same was not compe-
tent to decide the matter involving the declaration of title over the suit land. ...... It is settled law that in absence of any provision for the pe- riod of limitation prescribed under Article 113 of the Limitation Act, 1963 which is residuary Article may have the applicability giving three years of limitation period to the par- ties having right to accrue. In the in- stant case, I am of the considered view that the respondents are pro-
tected by the residuary provisions of Articles 113 of the above Statue.
.....
24. Admittedly this Second ....
Below:
I have given my ..... I do not find any such perversity or misreading of the materials available on record that need interference. Accordingly, I am of the considered view that the Courts below correctly and fairly dealt with all the issues in its proper perspective.
....."
a) But, in the case on hand, the issue of limitation is remained as a pure question of law as the cause of action to the suit is not in dispute and the suit claim falls under Section 5 of the Air Act which is a special enactment and provides limitation under Rule 30 of Schedule II which excludes the application of the general law of Limitation 78 O.S.No: 3014/2006 and thus, the dictum laid down in the above decision is also not applicable to the case on hand.
XLXII. The one more arguments of the counsel for the plaintiffs is that the 1 st and 2nd defendants did not let in any evidence with regard to the present defence of limitation which is a mixed question of fact and law. Hence, this issue needs to be negatived.
XLIII. But, this argument of the counsel for the plaintiffs holds water in case, when the issue of limitation remains a mixed question of law and facts. In the case on hand, there is no dispute between the parties with regard to the date of air crash which raised cause of action for the plaintiffs to sue and the date of filing the suit.
XLIV. Hence, in the circumstances of the case, this issue of limitation remained a pure question of law, its applicability and the calculation. Thus, in the case on hand, the issue of limitation is not a mixed question of fact and law. So, there is no need for the 1 st and 2nd defendants to let in any evidence with regard to the present issue. Therefore, this argument of the counsel for the plaintiffs is not sustainable.
79 O.S.No: 3014/2006
XLV. Admittedly, the Limitation Act does not contemplate condonation of delay in filing a suit though delay in filing an application and appeal can be condoned under Section 5 of the said Act.
XLVI. It is pertinent to go through the judgment in RSA.No.124/2007 (between Sri.Maranna since deceased represented by his LRs. Vs. Sri.Thippe Rangappa decided on 25th day of January 2017 before her Ladyship Rathnakala J.) wherein the above principle is observed and the relevant portion reads;
".....
9. ..... The Limitation Act does not contemplate condonation of delay in filing a suit though delay in failing an application can be condoned under Section 5 of the Limitation Act.
....."
XLVII. So, from the above discussions, it is clear that this suit is barred by limitation. Hence, this additional issue is answered in affirmative.
XLVIII. ISSUES Nos.1 to 11:- In view of answering the additional issue dated 09.04.2010 in affirmative and thereby holding that this suit is hit by limitation, these 80 O.S.No: 3014/2006 issues do not survive for consideration. Accordingly, these issues are answered.
XLIX. ISSUE No.12:- In view of the findings on the above issues and the additional issue, this Court proceeds to pass the following order.
ORDER The suit of the plaintiffs is hereby dismissed. No order as to costs.
Draw a decree accordingly.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 2nd day of February, 2021).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : B.Nirmala
P.W.2 : Gayathri
P.W.3 : Subba Narasimha
2. List of documents marked for Plaintiff:
Ex.P1 : Copy of legal notice dated 10.02.2005 Ex.P.2 : Complaint with copy of FIR Ex.P.3 : Postmortem report Ex.P.4 : Spot Mahazar and sketch 81 O.S.No: 3014/2006 Ex.P.5 : Inquest report Ex.P.6 : Statement of police Ex.P.7 : Death certificate of K.S.Amaranath Ex.P.8 : Certificate issued by Sri.R.Ashok, MLA & State Chief Secretary, BJP, Karnataka. Ex.P.9 : Final report dated 17.04.2004 Ex.P.10 : Certificate of registration Ex.P.11 : Certificate of Incorporation. Ex.P.12 : MOA of Dreamwood Mediatec Pvt.ltd. Ex.P.13 : Certificate issued by Harica e Technologies Managing Partner. Ex.P.14 : Account statement pertaining to Smt.Nirmala.B. for the period from 01.4.2004 to 31.3.2005.
Ex.P.15 : Letter written by Sri.K.Murari, Honarary Secretary, South Indian Film Chambers of Commerce to Sri.K.S.Amarnath.
Ex.P.16&17: Sale Deeds dated 10.12.2004 Ex.P.18 : EC Form-15 Ex.P.19 : Birth certificate of K.S.Satwik Ex.P.20 : Antarmuka The Silent Victims book Ex.P.21 : SSLC Certificate Ex.P.22 : Passport of Sri.K.S.Amarnath Ex.P.23 : Aadhar card of Smt.B.Nirmala Ex.P.24 : Voters ID Card Ex.P.25 : APL Card Ex.P.26 : Computer statement of ING Vysya Bank Ex.P.27 : Additional sheet of Vijaya Karnataka news paper dated 1.11.2014 Ex.P.28 : Police Statement of 1st plaintiff Ex.P.29 : Statement of Corporation Bank Ex.P.30 : B Register extract of KA-04 MF 8600 Ex.P.31 : Amruthachitra book Ex.P.31(a) : Page 341 of Ex.P.31 Ex.P.32 : Two CDs Ex.P.33 : Sale deed dated 11.10.1996 Ex.P.34 : Reply notice of defendants Nos. 1&2 Ex.P.35 : Legal notice dated 7.07.2006 issued by Sri.B.V.Ramana Ex.P.36 : Reply notice of plaintiff No.1 Ex.P.37 : CC of Sale Deed dated 5.12.1987 82 O.S.No: 3014/2006 Ex.P.38 : CC of Sale Deed dated 30.01.1989 Ex.P.39 : CC of Sale deed dated 24.03.1990 Ex.P.40 : CC of Sale Deed dated 15.05.1996 Ex.P.41 : CC of Sale Deed dated 14.09.1998 Ex.P.42to44: CC of Sale deeds dated 06.02.2003 Ex.P.45 : Rectified sale deed dated 01.06.2003 Ex.P.46 : CC of Sale Deed dated 15.01.2005 Ex.P.47 : CC of Sale Deed dated 24.06.1996 Ex.P.48 : CC of Sale Deed dated 22.06.1999 Ex.P.49&50:Copy of acknowledgment for paying tax Ex.P.51 : Form No.1 Ex.P.52 : Certificate issued by Sri.B.S.Yeddyurappa, President, BJP Karnataka.
Ex.P.53 : Statement of Sri.Aravind Sharma.
3. List of witnesses examined for Defendants:
D.W.1 : Aravind Sharma
D.W.2 : Sanjay Bramhane
4. List of documents marked for Defendants:
Ex.D1 : Authorization letter dated 15.11.2016 issued by Deputy Director General of Civil Aviation.
(K. KATHYAYANI), LXVI Addl.CC & SJ,Bengaluru.
83 O.S.No: 3014/2006
The counsels for both the
parties are
The Judgment is
pronounced in the open Court
(vide separate Judgment).
ORDER
The suit of the plaintiffs
is hereby dismissed.
No order as to costs.
Draw a decree
accordingly.
LXVI Addl.CC & SJ,
Bengaluru