Kerala air mishap: Families should get adequate compensation

As the families that lost their dear ones in the Kerala air mishap on Friday slowly come to terms with the reality, Air India Express, whose Dubai-Kozhikode flight

As the families that lost their dear ones in the Kerala air mishap on Friday slowly come to terms with the reality, Air India Express, whose Dubai-Kozhikode flight overshot the table-top runway and fell into a deep gorge 35 feet below, has announced interim relief and assured all crash victims that the airline would pay compensation in accordance with the applicable law.

HT Image

The applicable law is the Carriage by Air Act and hopefully, the probe into the mishap as well as the final settlement of the claims of the passengers and their families will be completed expeditiously. Out of 190 passengers on board, 18, including the pilot and the co-pilot died in the crash, while 149 are being treated for various injuries. Twenty-three have been discharged from the hospital.

While determining the compensation, two crucial decisions of the Supreme Court will come into play. Both cases have their origin in the almost identical air mishap at the Mangalore’s table-top runway 10 years ago, resulting in 158 deaths and both pertain to enhancement of compensation paid under the law . While in one case, the apex court, in its order delivered on March 3 this year, has laid down the principles that govern the calculation of compensation (Triveni Kodkany Vs Air India, Civil Appeal No 2914 of 2019) in the other, involving the interpretation of certain rules in the third schedule of the Act, the Apex Court’s verdict is awaited ( S.Abdul Salam Vs National Aviation Company of India Ltd , SLP ( C ) No 009895-009898/2013). An early decision by the Apex Court in this case will go a long way in bringing clarity into a crucial issue pertaining to quantum of damages paid by airlines.

Following the Mangalore air crash, Air India paid advance amounts as required under the law and subsequently, started paying compensation on the basis of the claims made, through negotiated settlement. The airline had paid Abdul Salam, who lost his 24-year old son in the air crash, Rs 20 lakh as advance and offered as ‘full and final’ settlement, a total of Rs 35 lakh on the basis of various parameters, including monthly salary of Rs 25,000 drawn by him in Dubai.

Salam, in his writ petition before the Kerala High Court, argued that as per the third schedule of the Carriage by Air Act, the minimum compensation payable by an airline in case of death of a passenger was 1 lakh Special Drawing Rights , irrespective of his/her age, income and such factors otherwise relevant in determining compensation in a tort. The single judge bench of the court , in a detailed judgment, upheld this interpretation, thereby extending the benefit of the verdict to other claimants as well. .

However, a division bench of the Kerala High Court, before which Air India appealed, set aside this order and said neither Rule 21(1) of the Third Schedule to the Act nor any other provisions of the Act or Rules provided for payment of any minimum compensation for death or injury and compensation was based on the actual damages proved by claimants. Salam’s special leave petition filed against this order is pending before the Supreme Court.

In Triveni Kodkany Vs Air India (Civil Apeal NO 2914 of 2019), the wife and two children of Mahendra Kodkany , who died in the Mangalore air crash, challenged the quantum of compensation paid by the airline -- Rs 4.7 crore. While substantially enhancing the compensation, the apex court said while calculating the earning of a victim, the entire ‘cost to company’ or the total salary package, including all allowances, should be taken into consideration, without any deduction. This pronouncement would go a long way in improving the compensation package in air accidents.

Drawing on some of its earlier judgments, the Apex Court also brought clarity into the deductions made on account of personal living expenses, besides the additions in calculating future prospects. The detailed order will be helpful to the victims of the Kozhikode air crash when they file claims for compensation before the airline.