Karnataka High Court

Smt. Indu Toshniwal ... vs Union Of

India (Uoi) And Anr. on 29 August, 1997
Equivalent citations: I (2000) ACC 80

Abhinandan Rai
BBA LLB, 6 semester
th

SOA National Institute of Law,

Bhubaneswar
 FACTS
• The wife of one Jagamohan Toshniwal, who died in an Air trash
of Airbus A-320, made a claim for payment of compensation in
respect of the death of her husband in the said accident and was
offered compensation in a sum of Rs. 5,01,000/- by the
defendant.
• She contended that sum of Rs. 5,01,000/- is to inadequate when
compared to the actual loss suffered by her and other members
of her family due to untimely death of her husband. She alleged
that the accident leading to the death of her husband occurred on
account of total negligence on the part of the staff and due to the
manufacturing defect in the aircraft.
• She stated that her husband was the sole bread winner of the
family and died at a comparatively young age and was thus
deprived their only source of income.
 Cont…
• She also stated that she and other members of the family
decided not to accept the offer made by them as the same is
conditional and binding them against all legitimate future
claim.
• A reply was sent by Advocates, Solicitors of the ‘Indian
Airlines Corporation’ stating that under the law in all cases of
domestic carriage, the amount of compensation is in a fixed
sum and does not depend upon the actual loss claimed to have
been suffered. In the circumstances the 2nd respondent would
have no option but to make payment of fixed sum of Rs.
5,00,000/- for loss of life and Rs. 1,000/- for the loss of
baggage.
• Thereafter a writ petition is presented before this Court.
 Legislative provisions
• Rule 22 of Schedule II of Carriage by Air Act, 1972 (limit of
liability, for passenger 2,50,000 francs and for goods 250 francs
per kilogram)
• Section 5 of Carriage by Air Act, 1972 ( liability in case of
death)
• Section 8(2) of Carriage by Air Act, 1972 ( power of central
govt. in domestic internal carriage)
• Chapter III of Under Rule 17 of Carriage by Air Act, 1972
( liability of carrier if death caused to passenger)
• Articles 14 and 21 of the Constitution of India
 Issues
1. Whether Section 8(2) of the Carriage by Air Act, 1972
confers an unfettered power on the Central Government to
modify the provisions of the Carriage by Air Act suffers from
the vice of excessive delegation?
2. Whether Fixing different liabilities for domestic air travel
and international air travel is major modification of the Act
and is ultra vires of Article 14?
3. Whether life has the same value whether domestic or
international passenger under Article 21 or not?
 Argument Advanced
For issue 1

• it was submitted that the Parliament has been authorised to

modify the provisions mentioned in the Act in its delegation,
and time to time the amount of compensation is being revised
by the parliament.
• Therefore the court held, the petitioner has not been able to
establish that the aforesaid provisions are in any way ultra
vires or amount to excessive delegation which is essentially a
legislative power.
 Issue 2
• It is contended by petitioner that the enactment itself emerged as a result of the Hague
Protocol and therefore should not treat national carrier different from an international carrier
and should put on par with international computation and the enactment should ensure that
Air passengers will get a higher level of compensation.
• The essential feature of the Act was to ensure the Air passenger higher level of compensation
and therefore the modification amounts to modification of essential features which can only
be made by Legislature and therefore is unconstitutional. To support this proposition reliance
is placed on the decision in Raj Narain Singh v. Chairman P.A. Committee . The fact that
there are two classes of Air travel, domestic and international, is taken note of by the
Legislature, is indisputable.
• When there is recognition of distinction in the air travel as domestic and international,
provision is made under Section 8 to apply the said provisions which are applicable to
international carriage to. domestic carriage with modification. It obviously means it was the
intention of the Legislature to apply different standards. What those different standards could
be, will depend upon the facts and circumstances of each case. In a case where domestic
travel is involved details will have to be worked out and in respect of those details,
adaptations and modifications could be made and that legislative intent is very clear.
• Therefore if in application of those principles different rates are prescribed for fixing the
compensation payable in case of death or injury or loss of baggage as a result of an accident
such a provision cannot be attacked as resulting in excessive delegation nor it can be
contended that the same is ultra vires the provisions.
 Issue 3
• It is contended by petitioner that the differentiation between
domestic and international Air passengers bears no relation to
the object of the Act. The class for which the Act caters to is
the 'Air passenger' and therefore the classification is not based
on any rational criteria. Their rights and liabilities towards an
international passenger and a domestic air passenger being
substantially same, the classification of them into two different
groups is opposed to Article 14. The only difference between
domestic and international passenger is one of destination. But
so far as risk is concerned that it is identical. A cheaper air
ticket does not necessarily mean that the cost of life could be
quantified at a lower rate and therefore it is contended that the
classification is not based on any comprehensible differentia.
 Cont…
• The limits of liability have been raised from time to time
bearing in mind that value of the rupee.
• Therefore, we cannot say that the authorities have adopted any
irrational classification between domestic air passengers and
international air passengers and in law no absolute uniformity
or equality can be brought about.
 judgment
• However Mr. Naik, learned Counsel for the petitioner contended
that even on fair basis the value could be ascertained with reference
to the word 'fixed' under relevant notification issued by the
Government under Section 8(2) of the Act, still the same is invalid
inasmuch as the law does not take note of the present value of the
rupee.
• We have already adverted to this aspect of the matter and stated that
from time to time there has been revision in the amount of
compensation paid while it started from Rs. 1,20,000/- to present
value is fixed at Rs. 5,00,000/-. Possibly what had been fixed in the
year 1989 may need revision now.
• But that is no reason to hold the provisions and the notification
issued to be ultra vires the Act. In that view of the matter, we find
there is not merit in this petition. Petition is, therefore, dismissed.