JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) Late Mahendra Kodkani, husband of complainant no.1 and the father of complainant no. 2 & 3 and his mother-in-law died in an aircrash at Mangalore on 22.05.2010, while they were travelling in Flight IX 812 of Air India Express from Dubai to Mangalore. According to the complainants, the annual salary of the deceased was INR 60,78,177 at the time he died. Adding 30% for future prospects, the annual income of the deceased, according to the complainants, came to Rs.79,01,630/-. After deducting 25% of the aforesaid income towards his personal and living expenses, the balance amount came to Rs.59,26,223/- per annum. Applying a multiplier of 14, the complainants have arrived at a figure of Rs.8,29,67,122/-. They have also disclosed the income which would have accrued to the deceased as ESOP and after applying a multiplier of 14 to the aforesaid income after deducting personal and living expenses out of that amount, they have alleged that the loss on account of income from ESOP itself came to Rs.8,98,17,000/-. After deducting a sum of Rs.4 Crores which they have received as interim payment, as compensation from the OP and adding a sum of Rs.15 lacs for medical aid, they have claimed a sum of Rs.13,42,84,122/- from the OPs namely Air India Ltd., Air India Charters Ltd. and C.M.D. of Air India Express. 2. The complaint has been resisted by the OPs who have relied upon the provisions contained in Section 5 of the Carriage by Air Act, 1972 and rules framed thereunder. They have submitted that a sum of Rs.40 lacs as already been determined as payable and paid to the parents of the deceased. They have also claimed that relying upon the decision of a Division Bench of Kerala High Court in W.A. No. 1197 of 2011, they have already offered fair and reasonable compensation to the complainants. 3. In the above referred decision, the Kerala High Court, after examining the provisions of Carriage by Air Act and the rules contained in its third schedule, held as under: (1) The liability of the carrier for damages payable for the loss suffered on account of death or injury of a passenger in an air accident is unlimited. However, the carrier is liable to pay only actual damages proved by the claimants in the case of death and by the victims in the case of injury. The liability so payable can be determined through negotiated settlement or by civil court of competent jurisdiction. (2) Rule 21(1) of the Third Schedule to the Act or any other provisions of the Act or Rules does not provide for payment of any minimum compensation by the air company for death or injury of a passenger in an air accident. However, we feel the carrier as a matter of goodwill as in this case should offer a reasonable minimum, even if the actual damages payable in law may be low, so that unnecessary litigation is avoided through settlement. (3) Actual damages payable has to be claimed and proved by the injured or by the claimants for the death of passengers before the Civil Court if no settlement is reached between the claimants and the Air Company. (4) The carrier is entitled under Rule 20 to plead and prove that the accident is caused on account of contributory negligence of the passenger as defence against damages claimed under Rule 21(1) for injury or for death of such passenger, which of course does not apply to the claims arising from this air crash. (5) Irrespective of whether the accident is due to the negligence of the carrier or their servants or agents or not, or the accident is caused by third party, the carrier is liable to pay actual proved damages upto 1 lakh SDRs to the claimants of the deceased passenger or to the passenger injured in the accident. Where damages claimed is above 1 lakh SDRs, the carrier can resist the claim in excess of 1 lakh SDRs by pleading and proving that the accident was not caused on account of the negligence of the carrier or their employees or agents or that the accident was caused by the negligence or other wrongful act or omission of a third party. This is subject to the further condition that burden of pleading and establishing this defence is on the carrier, in the absence of which, there will be a presumption of negligence against the carrier entitling the claimant for actual damages irrespective of limit. 4. It would thus be seen that the High Court expressly held that the liability of the carrier for damages in an air accident is unlimited though it is liable to pay only actual damages proved by the complainants. The High Court further held that irrespective of whether the accident is due to the negligence of the carrier or not, it is liable to pay damages upto 1 lakh SDRs. It was further held that if the damages claimed were above 1 lakh SDRs, carrier could resist the claim by pleading and proving that the accident was not caused on account of the negligence of the carrier or their employee or that it was caused by the negligence or wrongful act or omission of a third party. The onus of proving the absence of negligence is on carrier and there is a presumption of negligence against the carrier. 5. The learned counsel for the OP states that they are not seeking to prove that the accident or the crash was not caused on account of the negligence of the carrier or their employees or their agent or it was caused by the negligence or other wrongful act or omission of a third party. The question which then remains for adjudication is as to how much was the actual damages suffered on account of the death of the deceased husband of complainant no.1 and father of complainants no.2 & 3. 6. The learned counsel for the OP has handed over to me a calculation based upon the CTC of the deceased who was working with GTL Overseas (Middle East) as ‘Regional Director - ME Region’ since 01.05.2009. He states that they have considered all the components mentioned in the certificate dated 05.06.2010 issued by GTL Overseas (Middle East) FZ L.L.C except the Transport Allowance amounting to 40,957 AED and Telephone Allowances amounting to Rs.30,000 AED. There is no evidence on record to prove that the Travel Allowance was only a re-imbursement therefore, in my opinion, the aforesaid Allowance being a part of the salary of the deceased, could not have been excluded while computing his salary. As far as Telephone Allowance is concerned, though there is no specific evidence to prove that it was a re-imbursement, considering the nature of the allowance, I feel that it would be a re-imbursement allowance to the extent of 30,000 AED, depending upon the expenditure incurred by the deceased on making telephone calls clause etc. Therefore, the aforesaid amount has rightly been excluded while arriving at the CTC salary of the deceased. The CTC salary of the deceased, after deduction of Telephone Allowance would come to 4,52,395 AED per year. 7. As far as the variables such as bonus, stocks and ESOP are concerned, they, in my opinion, cannot be considered as an integral part of the salary of the deceased since those variables depend upon a host of factors including (i) the performance of the employer as a whole, (ii) performance of the employee during the relevant year and (iii) the total amount allocated by the employer for payment of bonus and stocks to its employees. Therefore, the variables such as bonus and ESOP cannot be considered for the purpose of calculating the damages suffered by the dependents of the deceased on account of his death. 8. In view of the 2nd schedule to the Motor Vehicles Act, the multiplier of 13 would be applicable since the age of the deceased was above 45 years though it did not exceed 50 years at the time of his death. Applying the multiplier of 13 to the annual salary of 4,52,395 AED, the figure would come to AED 58,81,135. 9. In terms of the decision of the Constitution Bench of the Hon’ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi & Ors. SLP(C) No. 25590 of 2014, since the deceased was on a fixed salary, an addition of 25% is to be made to the aforesaid amount of AED 58,81,135. In view of the decision of Hon’ble Supreme Court in Sarla Verma (SMT) & Ors. Vs. Delhi Transport Corporation & Anr. (2009) 6SCC 121, 20% of the aforesaid amount is required to be deducted towards the personal expenses of the deceased since he was survived by four dependents, his mother, his widow and his two children. After addition of 25% to the amount of AED 58,81,135, and deducting 20% of the said amount for the personal expenses of the deceased, the total resultant amount comes to AED 58,81,135, equivalent to Rupees 7,35,14,187/- at the admitted conversion rate of Rs.12.50 per AED. Admittedly, the OPs paid Rs.40 lacs to the parents of the deceased pursuant to the decision by a Civil Court and they have already paid Rs.4 crores to the complainants. Both the aforesaid amounts are liable to be deducted from the amount of rupee equivalent of AED 58,81,135. The balance principal amount thus comes to Rs. 2,95,14,187/-. 10. In Balram Prasad Vs. Kunal Saha (2014) 1SCC 384, the Hon’ble Supreme Court had awarded compensation based upon the income of the deceased, alongwith 30% for future prospects on the assumption that a healthy person would have lived upto the age of 70 years. 1/3rd of the income so computed was deducted on account of personal expenses of the deceased. If the total compensation payable by the OPs is computed in terms of the decision of the Hon’ble Supreme Court in terms of Balram Prasad (supra), which was a case of compensation on account of death due to medical negligence, the amount of compensation would be much more than the amount arrived by applying the multiplier in terms of the schedule annexed to the Motor Vehicles Act. However, considering that the complainants themselves have claimed compensation based upon the application of the said schedule, I am restricting the compensation to the amount calculated in terms of the provisions contained in the Motor Vehicles Act. 11. Since the compensation ought to have been paid on the death of late Mahendra Kodkani, the OPs should also pay appropriate interest on the aforesaid amount. 12. Therefore, the complaint is disposed of with the following directions: (i) The OP No.1 & 2 shall pay an amount of Rs.2,95,14,187/- as compensation, to the complainants. (ii) The complainants shall be entitled to simple interest @ 9% per annum on the aforesaid principal amount from 22.05.2010 till the date on which Rs.40 lacs were paid by the OPs to the parents of the deceased. The complainants shall also be entitled to interest on the amount of Rs.6,95,14,187/- with effect from the date on which payment of Rs.40 lacs was made to the parents of the deceased till the date the amount of Rs.4 Crores was paid to the complainants. They will also be entitled to interest on the remaining amount with effect from the date on which the amount of Rs.4 Crores was paid to the complainants till the date on which the entire principal amount in terms of this order is actually paid to them. In the facts and circumstances of the case, there shall be no order as to costs. |
