P.C.MALLICK, J. - (1.) THE plaintiffs are the widow and minor children of one Sunil Baran Chowdhury, who was killed in an air crash at Nagpur. The suit has been instituted by his dependents under the Fatal Accidents Act for recovery of damages against the defendant Corporation. Sunil Baran was a passenger by air from Calcutta to Madras via Nagpur in the aircraft of the defendant Corporation. He duly purchased a ticket and the aircraft left Calcutta on December, 11, 1953. At midnight the aircraft reached Nagpur, where Sunil Baran took another plane bound for Madras. This Madras bound plane came from Begumpet at Hyderabad via Bombay. This plane took off at about 3.20 A. M. on December 12, 1953, from Nagpur aerodrome, and very shortly thereafter the aircraft crashed. The plaintiff's case is that the crash resulting in the death of Sunil Baran was caused by the negligence of the defendant Corporation or its employees. Some particulars of negligence are set out in paragraph 5 of the plaint. Leave was reserved to furnish further particulars after discovery. No further particulars, however, have been furnished. It is alleged that by the death the estate of Sunil Baran has suffered damages assessed at Rs. 20 lacs. Further, Sunil Baran took along with him Rs. 5000/ - in cash and in kind which were lost in the crash. The above two sums are sought to be re -covered in this suit.
(2.) IN the written statement filed by the defendant porporation, all allegations of negligence, including the particulars furnished have been denied it is pleaded that all reasonable care and best precaution in known practical use for securing safety of the aircraft and passengers were taken by the defendant Corporation. It was a case of inevitable accident which could not be foreseen and/or avoided by exercise of any amount of skill, care and precaution. In paragraph 11 of the written statement, facts have been stated in support of the case of inevitable accident. It is further pleaded that the contract of carriage was subject to certain conditions and they were printed in the ticket itself. The deceased Sunil Baran had knowledge of these conditions. In any event, the defendant Corporation brought those conditions to the notice of Sunil Baran and/or took all reasonable steps to bring them to his notice. The condition of carriage relied on is 'that 'the carrier shall be under no liability to the passenger, his heirs, legal representatives or dependents or their respective assigns for death, injury, etc. caused or occasioned by any act, neglect or default of the carrier and or the pilot or other employees of the defendant Corporation.' It is, therefore, submitted that the plaintiffs have no cause of action to institute this suit. , In due course the parties filed their affidavits of documents. I regret to note that ail relevant and material documents were not set out in the said affidavits. Many documents were disclosed during the course of hearing.Mr. Dutt Roy, learned counsel appearing for the plaintiffs, complained that the documents disclosed subsequently should have been disclosed before. I entirely agree that proper care should have been taken at the time of filing the affidavit of documents to include all the relevant documents in the custody of the party. If such documents are not included in the affidavit of documents the other party is entitled to force disclosure of such further documents by obtaining an order for further discovery. Such application for further discovery was made by the plaintiffs in the course of the hearing of the suit before me. While I strongly disapprove of the practice of not disclosing all material documents in the affidavit of documents, I record that in the instant case the plaintiffs have not been prejudiced because of late discovery. The explanation of late discovery as stated by the learned counsel for the defendant Corporation in Court is that in the instant case after the crash, most of the documents were impounded and taken possession of by the Director General of Civil Aviation. There was a statutory enquiry in which most of the documents were tendered in evidence. All those documents had to be brought to this court under subpoena. This explains the non -disclosure of the documents at the earlier stage to a certain extent. The documents were subsequently made available and the plaintiffs were given full opportunity to take advantage of any such document brought in court and use them if so advised. This explanation goes a great way in exonerating the defendant Corporation. I do not think any useful purpose will be served in pursuing this point any further.
(3.) AT the commencement of the trial I intimated to the parties that in the case of Mukul Dutta Gupta v. Indian Airlines Corporation : AIR1962Cal311 , I have expressed my opinion as to the validity of the exemption -from -liability clause in the contract relied on by the defendant Corpora -lion. I held in that suit that every passenger in an aircraft must be deemed to have entered into the contract of carriage and purchased the ticket with full knowledge of the exemption clause printed in the ticket and displayed in a board in the office of the defendant Corporation at Calcutta, from which the ticket was purchased. Mr. Dutt Roy however contended that in the instant case the board introduced in evidence by the defendant Corporation, on the face of it, was not the board kept in the Calcutta Office. The board is of Begumpet. But the evidence tendered is not that this same board was in the Calcutta Office but that a board like the one introduced in evidence was in the Calcutta Office at the material time when the ticket was purchased. I do not think, therefore, this tact relied on by Mr. Dutt Roy will persuade me to alter the view expressed by me in Mukul Dutta Gupta's case, : AIR1962Cal311 on the point. I also held that the clause is void and is not binding on the passengers or their representatives. I prevented the parties from arguing the point over again before me. They will have full liberty to contend against the view taken by me in the Appeal Court if and when an appeal is preferred against this judgment.;