1. Karnataka High Court
Smt. Indu Toshniwal Since ... vs Union
Of India (Uoi) And Anr. on 29 August,
1997
Equivalent citations: I (2000) ACC 80
Abhinandan Rai
BBA LLB, 6th semester
SOA National Institute of Law,
Bhubaneswar

2. 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.

3. 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.

4. Legislative provisions
• Rule 22 of Schedule II of Carriage by Air Act,
1972
• Section 5 & 8 of Carriage by Air Act, 1972
• Chapter III of Under Rule 17 of Carriage by
Air Act, 1972
• Articles 14 and 21 of the Constitution of India
• Warsaw Convention, 1929
• Hague Protocol, 1955

5. 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?

6. 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, that there is vast difference in the conditions and
circumstances arising in connection with international and
domestic carriage by air. It is pointed out that the policy can
be spelt out from the various provisions of the enactment
itself, its intentment and application.
• Therefore the court held they do not think the petitioner has
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.

7. Issue 2
• It is contended 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.

8. Issue 3
• It is contended 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 intelligible differentia.

9. Cont…
• It is contended, that life has the same value whether
domestic or international passenger. But this argument
will not hold water, because the liabilities arising under
the provisions are arrived at after good-deal of
deliberations and consideration limit has been agreed to
as to the damages to be payable has been accepted and
that limitation as applicable in international law will
apply to the domestic carriage as well, but the amount
payable is limited.
• Therefore the principles upon which the arguments are
putforth before the Court as to the Constitutionality of
the provisions or competency thereof, in our view is
mis-conceived and we reject these contentions.

10. 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.