Decided on August 11,1961

Sm. Mukul Dutta Gupta Appellant


- (1.) THE plaintiffs are the widow and minor children of one Sanat Kumar Dutta -Gupta who was killed in an air crash. They have instituted this suit under the Fatal Accidents Act for the recovery of damages against the defendant Corporation. It is pleaded in the plaint that the deceased Sanat Kumar purchased a ticket as a passenger from Dum Dum Airport to Jorhat on the defendant's scheduled route known as the Calcutta -Mohonbari route. On March 21, 1956 at about eleven o'clock in the morning the aircraft crashed while landing at Salami Airport. Sanat Kumar was killed in the crash. The plaintiffs' case is that the death of Sanat Kumar was caused by the negligence of the defendant Corporation or its employees. The particular of negligence are set out in paragraph 5 of the plaint. Leave to furnish further particulars of negligence and/or misconduct however was reserved after discovery. Such further particulars were furnished at the time of the opening of the case by Mr. Dutt Roy the learned counsel for the plaintiff. It is to this effect, that there has been a breach of Rule 115 of the Rules framed under the Indian Aircraft Act. It is pleaded that the defendant is attempting to evade liability by setting up certain conditions of carriage. The plaintiffs' case is that Sanat Kumar had no notice of the said conditions of carriage nor did he accept them and consequently the same are not binding. The validity of the said conditions has also been disputed. Sanat Kumar was only 44 years of age when he was killed. He was in the best of health and well placed in life. He held a permanent employment in Messrs. I. G. N. and Rly. Co. Ltd. a reputed British company and at the time of his death he was drawing a salary of Rs. 700/ - per month with prospect of earning unto Rs. 1,500/ -per month. The sum of Rs. 3,00,000/ - has been claimed as damages.
(2.) THE main defence disclosed in the written statement is that under the contract of carriage the defendant Corporation is relieved of all liability, Sanat Kumar having expressly or impliedly consented to the conditions of carriage. The conditions relied on will be fully stated later. It is, pleaded these conditions of, carriage were binding on Sanat and are also binding on the plaintiffs. All allegations of negligence made in paragraph 5 of the plaint have been denied. It is contended that the defendant had taken all reasonable care and precautions and that the accident was beyond the control of the defendant and could not have been foreseen. On these averments it is submitted that the suit is not maintainable and the same should be dismissed with costs. On these pleadings the following issues were raised : 1. Are the plaintiffs heirs and legal representatives of the deceased? 2. Was there any contract of carriage as alleged in paragraphs 2, 3 and 4 of the Written Statement? 3. (a) Were the conditions of carriage not pointed out to the deceased? (b) Did the deceased have no notice of the conditions of carriage? (c) Was the deceased not bound by the conditions of carriage as alleged in paragraph 12 of the plaint? 4. Is the defendant exempt from liability under the terms and conditions of the contract of carriage? 5. Was the accident caused due to the negligence or failure to take ordinary care as alleged in paragraph 5 of the plaint? 6. Was the accident beyond the control of the defendant and could not be foreseen as alleged in paragraph 8 of the written statement? 7. Did the defendant take reasonable care to avoid the accident as alleged in Paragraphs 7 and 9 of the written statement? 8. To what reliefs, if any, the plaintiff is entitled? At the trial, documents disclosed by the parties and embodied in the Brief of Documents have been rendered and marked as Exhibit, parties having dispensed with formal proof. Apart from these the plaintiff Sm. Mukul Dutta -Gupta tendered her own evidence in support of her case. The defendant tendered the evidence of one Pankaj. Kumar Mukerji an employee attached to the Reservation Department of the defendant company and whose duty it was to issue tickets to the passengers. These are all the evidence on record.
(3.) IT is not disputed that if the contract of carriage as printed on the ticket is held to be valid and binding on Sanat Kumar and/or the plaintiffs, then the defendant would not be liable in law. The first point to be considered is Did Sanat Kumar have knowledge of the conditions of carriage and did he accept them? Sanat Kumar is dead and his widow Sm. Mukul Dutta -Gupta who gave evidence could not throw any light on the question. She was not present when the ticket was purchased. The defendant's witness Pankaj Kumar also could not give any direct evidence on the point. He was employed by the defendant Corporation and was at the counter when the ticket was sold. Beyond that he cannot say anything, in cases like these one hardly expects direct evidence on the point. There are, however, facts proved in this case from which certain inferences can be drawn. It is in evidence that the ticket was sold at the office of the defendant Corporation in Hindusthan Buildings. In the office a board was affixed at the door in which the conditions of carriage are written in bold letters. In the ticket itself if is stated that the ticket was issued subject to the conditions of carriage. The conditions of carriage are Printed the cover page of the ticket. It is true they are printed in very small letters. I was unable to read it without the assistance of a magnifying glass, the learned Standing Counsel however could read it without feeling any difficulty. This much, however, is established beyond controversy that the defendant corporation did take steps to bring it to the notice of the passengers that the tickets were being issued subject to certain conditions of carriage. A passenger who was so minded could have been appraised of these conditions, if not from the ticket itself, at least from the Board displayed at the door in which the conditions of carriage have been stated in sufficiently bold letters legible to all. I will however, record my view that having regard to the seriousness of the conditions so far as passengers are concerned the conditions should have been printed in red letters in the ticket in order to attract the attention of the passengers. The tickets issued are not required to be signed by the passengers and hence written acceptance of the terms cannot be proved in the case of passenger transport. In the case of consignment of goods the Consignor or his agent ig required to sign the consignment note in which the conditions of carriage are printed and acceptance can be proved by proving the signature of the Consignor or his agent on the document issued. Not so in the case of passenger ticket.;

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