In George’s Point of View

The Kerala High Court ruled that the Air India need not pay the compensation amount of Rs 75 lakhs each to the victims of the Mangalore plane crash. The Division Bench gave the order in the appeal given by the Air India against the earlier Single Bench rule to pay the amount. The order references the Montreal Treaty.

I am not surprised. When I first heard the original judgement, it was my layperson opinion that the high court would not let stand the order of the lower court to pass out 75 lakhs to each passenger.

In my personal opinion the Judge who made that order didn’t read the Montreal treaty very well. In order for the family to collect the equivalent of 100,000 SDRS (about $160,000 U.S.), they must present provable damages and if they do, under the treaty, Tier I, the operator (Air India) cannot dispute or contest paying that amount. The Judge must have overlooked that the 100,000 SDRS is not the minimum required under the treaty, it is the maximum. So when the Judge ordered 75 lakhs to be paid, his order basically was overruling the treaty requirement of proving the damages.

No, I was not surprised and neither were the attorneys I consult with. If no treaty existed limiting the liability of the operator, then the order from a Judge would have probably stayed in place.

But that was not the case.

The Montreal Treaty has two tiers. The above discussion explains tier one. The Tier II provision almost certainly removes the cap entirely, because of where the burden of proof lies.

As long as the Montreal Treaty is being held as a rule, families should know that in most cases as per the treaty, the value of the case could be much higher than 75 lakhs, pursuant to Tier II of the Montreal Treaty. I know, I know….I’m not a lawyer but I know how it works from experience over the many years I have been working with wrongful death cases, and based on the experience my aviation experts have graciously passed on to me.

Here is the explanation, as simply as I can explain it:

If you can prove provable damages, then Tier II (referred to in Article 21(2) of the Montreal Convention) Air India Express is liable to families/passengers for all personal injury or wrongful death damages exceeding 100,000 Special Drawing Rights (SDRs), unless the carrier(s) can prove that the injuries or deaths were not due to the negligence or other wrongful act or omission of the carrier or it servants or agents. OR the injuries or deaths were solely due to the negligence or other wrongful act or omission of a third party.

The carrier will never prove this and the burden of proof is on them. If I am correct, and know the experts who have taught me, are correct…

Air India Express is liable to the victims families for all damages under the applicable law, including but not limited to, pain & suffering of loved ones prior to death.

Air India Express is liable for pain and suffering of the survivors and heirs of the victims.

Air India Express is liable for the loss of support, i.e., money.

Air India is liable for the loss and enjoyment of life of the victim.

I could go on but I will stop here, and caution the families to please be very careful. The families should not give up all that there may be coming in return for even a payment of the 75 lakhs that this new ruling states the company no longer has to pay. If they actually get around to offering it, to get it, it means the families have to give up all rights to future claims.

I would tell the families this:

Put up a fight. Your loved one is never coming back, no matter how much they pay you, but, I’m sure he/she would want you to collect the absolute maximum possible. As a passenger, your loved one paid a fare, and no matter what caused that crash, your loved one is FAULT FREE. Legally, the operator must pay.

Consult a lawyer, an expert in aviation, I beg you to please do not try to do it yourself.

I fly over 250,000 miles a year, and I wouldn’t want my family to try and do it alone if I were a victim.

* I am not a lawyer, and this is not legal advice.

http://twocircles.net