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.
3. 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.
4. 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.
5. Before me, therefore, the case was fought out on two points, namely:
(1) Whether the defendant Corporation or its employees were guilty of negligence, which caused the disaster?
(2) What damage, if any, are the plaintiffs entitled to recover in this suit?
6. I ruled that evidence on the first question as to negligence must be tendered first by the defendant Corporation and thereafter the plaintiffs will tender evidence in support of their claim for damages. This procedure was also considered by the learned counsel for the parties to be convenient and proper.
7. Before I consider the evidence tendered on the issue of negligence, it is better to consider the law. In an action on the tort of negligence, the plaintiff must prove that the defendant is guilty of negligence. Although the burden of proof of negligence is on the plaintiff in some cases the mere happening of an accident affords prima facie evidence that the tort constituting the cause of action is the result of want of care on the part of the defendant. This is known as the maxim of res ipsa Joquitur'. The leading case is the case of Scott v. London and St. Katharine Docks Co, reported in (1865) 3 H. and C. 596. Earle, C. J. in that case laid down that 'where the thing is shown to be under the management of the defendant or his servant, and the accident is such as in ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from want of care.' Ordinarily to prove negligence the act or omission constituting negligence is to be proved by the party alleging negligence. In such cases of accident indicated above it is impossible for the plaintiff to prove any act or omission which constitutes negligence on the part of the defendant or his servants. The plaintiff can only prove the result from which the act or omission constituting negligence is presumed by law. The reason in such cases for presuming negligence is that the result, namely, the accident makes it more probable than not that it was caused by the negligence of the defendant. In such cases, therefore, the plaintiff need not tender any evidence of the act or omission constituting negligence of the defendant and he will be entitled to succeed unless the defendant rebuts the probability of negligence on his part. As pointed out by Clarke and Lindsell in their standard book on Tort, the doctrine applies (1) when the occurrence suggests, as a matter of reasonable inference that it was the result of negligence of the defendant or someone for whose sets or omission he is responsible, (2) the cause of occurrence is unknown and (3) the presumption raised by the occurrence is not rebutted by any explanation of any additional facts proved.
8. It is contended by Mr. Dutt Roy that in the instant case the rule of res ipsa loquitur applies because the happening of the air crash at the time of the take off raises a reasonable inference that it was the result of the negligence of the defendant Corporation or its employees. The aircraft was under the sole management and control of the defendant Corporation and every operation in the ill-fated flight was being controlled by the employees of the defendant Corporation. In such cases when the plane crashed immediately after take-off, the defendant must be held guilty of negligence without any further proof on the part of the plaintiff. In order to escape liability the defendant Corporation must give rebutting evidence to negative negligence. In the case of Foshbroke Hobbes v. Air Work Ltd. reported in (1937) 1 All ER 108, Goddard, J., held that the rule of 'res ipsa loquitur' applies when the aircraft crashed at the time of take-off. Shawcross and Beaumont in their book on AirLaw opined that not in all cases of air accident the maxim of 'res ipsa loquitur' applies. The application of the maxim depends on the facts of each particular aircraft accident. Several cases of air accident have been cited including an accident at the take off in which the doctrine has been held applicable and certain others in which the doctrine has been held not to apply. The cases referred to are American cases. It seems to me that in cases where the aircraft crashes immediately after take off, the maxim would apply. With respect I agree with the view of Godard, J. in the case noted above.
9. Mr. Gouri Mitter, learned counsel for the defendant Corporation, contended that on the present pleading the plaintiffs have disentitled themselves from invoking the maxim. When the plaintiff pleads specific acts of negligence, he cannot rely on the maxim of res ipsa loquitur. If the plaintiff intends to invoke the maxim he should simply state the nature of the accident and plead that the accident is attributable to the negligence of the defendant. He must not allege any act or omission as constituting negligence. Nor must he assign any cause of the accident. When he pleads the acts and omissions of the defendant as the cause of the accident, he must prove the case made in the plaint and he is not entitled to rely on the maxim of res ipsa loquitur. As indicated by Clarke and Lindsell, the second condition of the applicability of the maxim is that the cause of the accident must be unknown. When the cause is known and the plaintiff pleads his knowledge of the cause and the defendant's responsibility therefor, the maxim is not applicable. This argument of Mr. Mitter has great force and it is necessary to examine the pleadings carefully.
10. In paragraph 3 of the plaint it is pleaded that Sunil Baran was a passenger for reward. In paragraph 4 of the plaint it is pleaded that the accident took place on December 12, 1953 in consequence of which Sunil Baran Chowdhury was killed. In the particulars of the accident pleaded in the paragraph, it is alleged that 'the accident took place about 2 miles from the end of the runway, when the plane attempted to land owing to engine trouble immediately after it had taken off from the aerodrome.' In the premises it is pleaded that the defendant is liable ex contractu or ex delicto. That is either on the basis of breach of contract or on the basis of breach of duty under the Carriers Act and/or notification, if any thereunder. Particulars of accident to the aircraft as pleaded in paragraph 4 are verified to be based on records,
11. In paragraph 5 of the plaint the case is made that the accident was caused by the negligence and/or misconduct of the defendant and/or its agents. A number of acts and omissions constituting negligence have been set out in the 'particulars of negligence'. Particulars OT negligence in paragraph 5 have not been verified as being true to knowledge but based on records. Apparently, this case of negligence is based on the report of the Court of Enquiry, the substance of which the plaintiffs' legal advisers obtained somehow. The failure of power in the port engine at the time of take off which caused the aircraft to swing to the left, the failure of the pilot to land ahead according to the usual procedure, false fire alarm signal due to lack of proper supervision as also lack of sufficient intensive checks for emergency procedure during the past 12 months, lack of competence of the pilot to deal properly in an emergency--are acts and omissions stated to be particulars of negligence. As stated beforeleave was reserved for furnishing further particulars after discovery.
12. Mr. Gouri Mitter contended that the plaintiffs had made a definite case of negligence in the particulars to paragraph 5 on the basis that the cause of the accident is known and that the defendant is responsible as indicated above. The maxim of res ipsa loquitur, therefore, does not apply on the pleadings in the instant lease.
13. It is clear that the plaintiffs have made two cases--one as set out in paragraph 4 and another as set out in paragraph 5. The case of negligence as pleaded in paragraph 5 is clearly stated to be an alternatecase. The first case is made in paragraph 4 in which apart from pleading the result, no act or omission on the part of the defendant Corporation have been alleged. The case made in paragraph 4 is very wide. Liability is sought to be imposed on the defendant Corporation not merely on the basis of the breach of the contract of carnage but also on the basis of tort, that is, breach of duty of a carrier by air under the Carriage by Air Act. The duty of such carrier is to carry without negligence. The plaintiffs in my judgment are entitled to rely on the maxim ires ipsa loquitur in support of their case made in paragraph 4 of the plaint. There is no doubt an alternate case and in support of the alternate case they may not rely on the maxim. But there is no reason why they should not be allowed to rely on the maxim in support of the case made in paragraph 4 of the plaint. I am not sure however that the plaintiffs are not entitled to rely on the maxim even in support of the alternate case of negligence made in paragraph 5 of the plaint. There would be no question that the maxim would have applied if the particulars of negligence in paragraph 5 were not given. Particulars are clearly stated not to be exhaustive and right to give further particulars was expressly reserved, further, the particulars given are not verified to be true to the knowledge of the deponent but they are verified as being based on records admittedly not available to the deponent then. In such a state of pleading can it be said that the plaintiff have pinned themselves to a particular case of negligence which they will not be allowed to depart from at the hearing. The law as I understand is, that the plaintiff must prove the case made in the pleading and will not be allowed to make a different case at the trial. Clearly, this rule is based on reason and justice otherwise it would be a great injustice on the defendant if the defendant is called upon to meet a case not made in the plaint. Would the same consideration apply in which no clear case of negligence had been made and could have been made by the plaintiffs. The nature of the aircrash being what it is, the cause must necessarily be unknown to the plaintiffs and if they have hazarded some guess as to cause in the particulars in the paragraph which makes no pretension to be exhaustive, they cannot be debarred from taking advantage of a legal presumption in support of their case. The nature of the accident as pleaded in the plaint at once raises a probability in law that it is due to the negligence of the defendant Corporation or its employees. I do not see any reason why the plaintiff should be debarred from the inference that law presumes in his favour merely because they hazarded a number of guesses that the cause of the accident might have been the acts and omissions stated in the particulars to paragraph 5 of the plaint. I read the particulars as nothing but guess work. Nothing but 'might have beens'. As stated by Clarke and Lindsell, the rule will only apply if the cause of the accident is unknown, in the present pleadings the plaintiffs do not attribute a definite cause of the accident so as to dispense with the enquiry as to the cause. Indeed the cause of the accident, not merely as stated in the particulars, is to be judicially determined in this case. I do not read the plaint as setting out any clear cause of the accident so as to absolve the Court from making any enquiry as to any other probable cause. If the Court is not absolved from the responsibility of finding out the cause of the accident other than the one pleaded in the particulars the rule of res ipsa loquitur must apply, having regard to the nature of the accident and to the fact that the cause of accident is unknown which is to be found out on investigation. In my judgment, on the present pleadings, the plaintiffs are not disentitled to rely on the maxim of res ipsa loquitur. In Mukul Dutta Gupta's case : AIR1962Cal311 , I have held that the provisions of Carriage by Air Act (Act XX of 1934), applicable to international carriage by air, should be made applicable to internal air transport, even though the Central Government has not yet issued any notification under Section 4 of the Act extending its operation to internal air transport. Chapter III of the First Schedule of the Act lays down the liability of the carrier by air. Rules 17 and, 20 (1) in Chapter III are rules relevant on the point and read as under:
'17. The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
20 (1). The carrier is not liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.'
The carrier under the rules is liable, unless he proves that he or his agent was not negligent The fact that the accident has resulted in the personal injury to a passenger raises a presumption of negligence, it follows that to escape liability in cases of accident resulting in injury to person the carrier by air must disprove negligence.
14. Usually this question becomes all important in cases when no evidence is tendered on the issue of negligence. In cases where evidence is tendered, the question, though must be kept in view always, is not so important as in the other cases. In cases where evidence of negligence is tendered, the Court will have to consider whether negligence is established on a consideration of the evidence taken as a whole. In the instant case, evidence has been tendered and I will have to decide, on a consideration of the evidence as a whole, whether negligence on the part of the defendant Corporation or its employees has beenestablished. A discussion as to the burden of proof, therefore, becomes somewhat academic. Sufficient evidence has been tendered from which an inference as to negligence can be drawn. As stated above the question onwhom the burden of proof lies in consequence loses itsimportance.
15. Before, however, I take up the consideration ofthe evidence tendered on the point of negligence, I would consider certain authorities cited on the question as towhat evidence is needed to establish negligence. I have already noted the leading case of (1865) 3 H and C 596, in which C. J. Earle propounded the maxim 'res ipsa loquitur'. I have also noted the case of (1937) 1 Ail R 108, in which Goddard, J. held that when the aircraft crashes immediately after take off, the maxim of res ipsa loquitur applies and the plaintiff is entitled to judgment without further evidence. Mr. Gouri Mitter has cited the case of Woods v. Duncan, and two other allied appeals decided by the House of Lords and reported in 1946 AC 401. The facts will appear from the headnote which reads as follows:
'In a submarine constructed for the Royal Navy time were six torpedo tubes, each with a bow-cap, operated by telemotor apparatus, at the seaward end and, at the inner end, a rear door which could not be opened without raising a small lever or test-cock so devised that when it was lifted a jet or trickle of water would emerge from a hole in the door if the tubes were more than half full. To clear the whole of obstructions a pin or rimer was attached by a chain to the test-cock lever, the primary function of which was to indicate when torpedoes were being fired, whether the tube was more than half-full of water. There was a mechanical indicator for each tube to show whether its bow-cap was open or shut. When the submarine left the builders' yard or diving trials, no torpedoes were taken. The crew consisted of officers and ratings of the Royal Navy and the complement included Several civilians, employees of the builders and other firms Concerned in manufacturing the equipment. While the submarine was submerged W., the torpedo officer, opened the rear door of one of the tubes to inspect the interior. The bow-cap was open and in consequence the submarine sank to the bottom, all those within perishing, with the exception of four, among whom was W. According to his evidence, before opening the rear door he raised the test-cock, from which no water emerged; read the indicator, which showed the bow-cap to be shut; and asked H, the seaman in charge of the levers operating the bow-caps (who perished in the disaster) whether everything was correct, receiving an affirmative reply. He made no use of the rimer to ascertain whether the test-cock hole was free from obstructions. After the lever operating any bow-cap had been turned out 'shut' or 'open', the bow-cap could be kept in position either by leaving the lever as it was or by turning it to neutral. When the submarine was subsequently raised, the relevant lever was found to be at neutral and the bow-cap open. The hole of the test-cock was found to be completely blocked with the bitumastic paint used for painting the inside of the torpedo tube.'
'W' is the Lieutenant Frederick Woods, the torpedo officer 'H' is the Leading Seaman Hambrooke. The suit was instituted by the widows of two civilians who perished with the sinking of the submarine against (1) the torpedo officer Wood who survived the disaster, (2) the widow of the Leading Seaman Hambrooke who perished, (3) builder of the submarine Thetis and (4) his sub-contractor. The trial Judge Wrottesley gave judgment against the builder onlyand dismissed the suit as against the others. On appeal, the Court of Appeal consisting of Lord Green, M. R., Goddard and de Parcel, L. JJ. set aside the decree against the builder and granted a decree against the torpedo officer, Woods. It was held that the torpedo officer was guilty of negligence. Three appeals were taken against this decision, one by the torpedo officer, Wood, and twocross-appeals by the plaintiffs against the personal representative of the Leading Seaman Hambrooke and the other against the builders. The 'plaintiffs' claim was dismissed against all the three defendants, namely, torpedo officer Wood, the widow of the Leading Seaman Hambrook and the builder. Both the ship's officers were held to have acted with reasonable care. It was held that Wood was not negligent at page 402:
'Held (1) that W was not negligent, inasmuch as he had read the indicators and was entitled to rely on H's statement that all was correct, and although it was not the function of the test-cock to show whether the bow-cap was open or shut it was not negligent to make use of it to support the evidence of the indicator; (2) that there was no evidence that H was negligent; (3) that though the builders and sub-contractors were negligent in regard to the blocking of the hole, they had no reason to suspect that its blocking would be dangerous to the husbands of the plaintiffs.
The principle of res ipsa loquitur only shifts the onus of proof, in that a prima facie case is assumed to be made out, throwing on the defendant the task of proving that he was not negligent; this does not mean that he must prove how and why the accident happened; it issufficient if he satisfies the court that he personally was not negligent.'
In setting aside the decision of the Court of Appeal as against the torpedo officer Wood, Lord Russel of Killowen made the following observation at pp. 425, 426:
'The judgment of the Court of Appeal is based on the grounds stated in the following passage from the judgment of the Master of the Rolls (1): 'Both on the principle of res ipsa loquitur, and, if this were not applicable, then because in my opinion an affirmative case is established, feel constrained to hold that Lieutenant Woods was guilty of negligence. He failed to give the proper order to Hambrook to put the lever in the closed position and relied in part on the evidence of the test-cock which he ought to have known was never intended to be relied on for such a purpose and was in any case wholly unreliable unless the rimer was used.' My Lords, assuming that the principle of res ipsa loquitur applies, and establishes that prima facie Lieutenant Woods must have been negligent, it is open to him to prove affirmatively (as in my opinion, he has) that he did throughout exercise reasonable care. The principle does not involve this--that, notwithstanding that affirmative proof, he must be held to have been negligent, unless he can solve the mystery and prove how the bow-cap came to be open at the critical moment. As to the alleged failure to give the proper order to Hambrook, he took, in my opinion, the necessary and proper steps to ascertain from the man, on whose answers he was entitled to rely, that all the bow-caps were shut. As to the test-cock, the fact that no water emerged in the process of opening the door of No. 5 did confirm what Hambrook and the indicator, had already told him. I am not prepared to hold that in the circumstances he was negligent in not using the rimer. Its use formed no part of the drill in regard to the opening of rear doors. He had never in his experience known a test-cock to become choked. Indeed such a hermetical sealing as occurred in this case, preventing any percolation of water, must be unprecedented. He was entitled to assume that the test-cock was in order when the ship sailed from Liverpool with all the bow-caps closed. For the reasons whichI have indicated I am of opinion that the appeal of Lieutenant Woods should succeed.'
The opening paragraph in the speech of Lord Simonds reported at page 439, set out below, was also read and relied on by Mr. Gouri Mitter:
'My Lords, the facts in this case have been fully stated by my noble and learned friend Lord Simon, and I need not repeat them. I will add first a few words upon the question of the liability of Lieutenant Wood? I will assume against him, though I doubt whether the assumption is justified that this is a case in which the principle of res ipsa loquitur may be applied. But to apply this principle is to do no more than shift the burden of proof. A prima facie case is assumed to be made out which throws upon him the task of proving that he was not negligent. This does not mean that he must prove how and why the accident happened. It is sufficient if he satisfies the court that he personally was not negligent. It may well be that the court will be more easily satisfied of this fact if a plausible explanation which attributes the accident to some other cause is put forward on his behalf; but this is only a factor in the consideration of the probabilities. The accident may remain inexplicable, or at least no satisfactory explanation other than his negligence may be offered; yet, if the court is satisfied by his evidence that he was not negligent, the plaintiffs' case must fail.'
In this case, the House of Lords doubted whether the maxim of res ipsa loquitur applied.' It was affirmatively held that both the officers were not guilty of negligence on the evidence tendered. In that view of the matter, the question whether res ipsa loquitur applied became a matter of no importance.
16. The case of Barkway v. South Wales Transport Co. Ltd., reported in (1948) 2 All ER 460, was cited by Mr. Dutt Roy. In this case an omnibus while running not at an excessive speed mounted the pavement and fell down the embankment. The plaintiffs husband died as a result of the accident. In the suit filed by the plaintiff (widow) against the transport company who owned and operated the omnibus, the trial Judge gave a decree for 2000 on the finding that the defendant company and its servant were guilty of negligence. There was an appeal and the judgment cited is the judgment of the Court of Appeal heard by Scott, Bucknill and Asquith, L. JJ. The appeal was allowed by the majority, Bucknill, L. J. dissenting, on the finding that the defendant company was not negligent and took all reasonable care. Asquith, L. J. laid down the following proposition at page 471 of the report, on which Mr. Dutt Roy relies:
'The position as to onus of proof in this case seems to me to be fairly summarised in the following short propositions : (i) If the defendants' omnibus leaves the road and falls down an embankment, and this without more is proved, then res. ipsa loquitur, there is a presumption, that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this presumption, (ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibu's leaving the road is a tyre-burst, since a tyre-burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance has been tilted one way, you cannot redress it by addingan equal weight to each scale. The depressed scale will remain down.'
There was an appeal to the House of Lords which reversed the decision of the Appeal Court and restored the decision of the trial Court. The decision is reported in Barkway v. South Wales Transport Co. Ltd., (1950) 1 All ER 392, and summarised in the head-note which reads as follows :
'Held: (i) the application of the doctrine of res ipsa loquitur, which was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary course of things, was more likely than not to have been caused by negligence was by itself evidence of negligence, depended on the absence of explanation of an accident, but, although it was the duty of the respondents to give an adequate explanation, if the facts were sufficiently known the question ceased to be one where the facts spoke for themselves, and the solution must be found by determining whether or not on the established facts negligence was to be inferred.
(ii) it could not be said on the evidence that thespeed at which the omnibus was being driven at the timeof the tyre-burst had any causal connection with the subsequent accident.
(iii) despite the statements of the respondents' witnesses that their system of tyre inspection was satisfactory and accorded with the practice of other omnibus companies, the evidence showed that the respondents had not taken all the steps they should have taken to protect passengers because they had not instructed their drivers to report heavy blows to tyres likely to cause impact fractures.
(iv) the cause of the accident was a defect of the tyre which might have been discovered by due diligence on the part of the respondents, and the respondents were liable although it was not possible to affirm that the fracture would have been discovered, by the exercise of due diligence.'
In the case of Moore v. R. Fox and Sons, reported in (1956) 1 All ER 182, a workman was fatally injured by explosion of gas apparatus on the defendant's premises. Expert evidence was given that accident could have happened without negligence of the defendant. The trial Judge held that the maxim of res ipsa loquitur applied on the facts of this case, but that the defendant had disproved negligence. The learned Judge held that though the defendant was unable to give positive evidence as to how the accident actually happened, nevertheless they were able to give an explanation acceptable to the Court which indicated that the accident was just as likely to have occurred without their negligence as with it. In appeal the decision was reversed. Evershed, M. R. held that the maxim of res ipsa loquitur applied and that the defendant had failed to explain the accident so as to be able to discharge the onus which was on them by showing either that the explosion was due to a specific cause not connected with negligence or that they used all reasonable care in and about the management of the plaint. It was insufficient for the defendants merely to show that the accident could have happened without negligence on their part. The proposition laid down by Asquith, L J. in (1948) 2 All ER 460 at p. 471, was applied. It was further held that on the facts proved, the negligence of the defendant has been established. Birkett, L. J. agreed with Evershed,M. R. on all points. Romer, L. J., however, was in doubt whether the maxim of res ipsa loquitur applied to the accident in suit. He, however, agreed that the plaintiff led sufficient evidence to establish a prima facie case of negligence which the defendant has failed to displace by its own evidence.
17. In the case of Waish v. Holst and Co. Ltd., reported in (1958) 3 All ER 33, a passer by was injured by the fail of a brick while passing a highway. The adjoining building was being reconstructed and repaired. The injured passer-by instituted the suit in tort for negligence against the occupier of the building and the contractors employed by the occupier and the subcontractor. The suit was dismissed on the finding that no negligence has been proved giving a cause of action. Hodson and Sellers, JJ. constituting the majority dismissed the appeal on this finding that though as against the contractor the maxim of res ipsa loquitur applied, yet the defendant contractor led sufficient evidence to disprove negligence. The defendants, though unable to explain why the brick fell which caused injury to the plaintiff, did prove that they took all reasonable precaution to prevent injury to the users of the highway. Morris, L. J. was in favour of allowing the appeal. At the end of page 39 of the report the learned Judge observed :
'The possibility that a brick might fail and might be projected on to the street was not only foreseeable but it was realised: either there was no proper system designed to avert the occurrence of the possible (and highly dangerous) event or if there was it was not carried out. I see no reason to suppose that a properly conducted inspection would not have revealed any brick that was insecurely supported either in some position in the wall or in some position on the scaffolding.'
Again, at page 40 :
'If the evidence had negatived the existence of negligence in the contractors, then they would be absolved even if they could not explain why the brick felt (see (1946) AC 401 at pp. 419, 425, 434, 439). In my judgment, however, the evidence before the court falls far short of rebutting the strong inference of negligence.'
Reference was also made to a passage, being Article 80 of Halsbury's Laws of England, Third Edition, Volume 28 pages 77 to 79.
18. The cases above noted indicate that the maxim of res ipsa loquitur is no more than a rule of evidence and whether the rule applies depends on the nature of each accident. Even on the same fact, eminent Judges have differed as to whether the maxim was applicable. I am apt to think on a careful perusal of the judgments that when evidence is tendered as to the cause of accident, the maxim is not of much importance. In such cases the Court is required to consider the entire evidence and record whether on consideration of the evidence as a whole negligence is established. In cases, where the rule of res ipsa loquitur applies, the defendant has to disprove negligence. In cases where the rule does not apply the plaintiff is to prove negligence affirmatively. For practical purpose in most cases in which evidence is tendered on negligence, the maxim as formulated by Earle, C. J. and stated before, is not so important. The rule is still there and is an effective rule and the decision of the House of Lords in 1946 A C 401, has not done away with the rule.
19. I have indicated before that the nature of accident is such that the maxim of res ipsa loquitur applies. The defendant in such event has to disprove negligence. I will however consider whether on the evidence tendered negligence on the part of the defendant has been proved affirmatively.
20. At the trial, on the issue of negligence, a large number of witnesses was called by the defendant Corporation, the most important being the Commanding pilot cartner, who is the only survivor of the ill-fated aircraft. Other witnesses were called to prove the various official records required to be kept under the Aircraft Rules and otherwise. Some of the witnesses also tendered expert evidence. Not all the witnesses who tendered evidence in the official enquiry held after the accident, however, tendered evidence before me. The plaintiff Madhuri Chowdhury and other witnesses called by her tendered evidence not on the point of negligence but only to prove damages. Apart from these, a large volume of documentary evidence has been tendered. Objection was taken to the introduction of certain documents by learned counsel for the plaintiffs on technical grounds that not all the witnesses who proved these documents were competent to prove them. I was not impressed as to the validity of the objections taken, but I directed the documents to be marked as exhibits, subject to objections. Similarly, objection was taken by the learned counsel for defence to the introduction of the report of the official enquiry as evidence in this case. I allowed the report to be introduced in evidence, subject to objection and indicated that at the time of argument J will hear and determine the question of admissibility. I have heard arguments of learned counsel on the point of admissibility since and I hold that the report is admissible in evidence. This is an official report of a formal investigation by a 'Court' under Rule 751 of the Aircraft Rules. The concluding sub-rules of Rule 75, being Sub-rules (6) and (7) of the Rules made under the Aircraft Act read as follows:
'(6) The Court shall make a report to the Central Government stating its finding as to the causes of the accident and the circumstances' thereof and adding any observations and recommendations which the court thinks fit to make with a view to the preservation of life and avoidance of similar accidents in future, including, a recommendation for the cancellation, suspension or endorsement of any licence or certificate issued under these Rules.
(7) The assessors (if any) shall either sign the report, with or without reservations, or state in writing their dissent therefrom and their reason for such dissent, and such reservations or dissent and reasons (if any) shall be for-warded to the Central Government with the report. The Central Government may cause any such report and reservations or dissent and reasons (if any) to be made 'public, wholly or in part, in such manner as it thinks fit.'
The investigation under Rule 75 is to be conducted by an authority who is designated in the statute and/or rule as a 'Court'. The person appointed in the instant case to constitute the Court is Sri N.S. Lokur, a Judge of the Bombay High Court, now superannuated. He was assisted by two assessors, Shri M.G. Prodhan and Capt. K. Vishwanathan. The former is the Deputy Director of Civil Aviation and the other a top officer of the Air India International. Though designated as a 'Court' it is not a Civil Court which can deliver judgment and pass a decree.Nevertheless, it has all the powers of a Civil Court toenable it to conduct an enquiry and make a report. Thereport is by a person directed by statute to make an enquiry and submit a report in performance of a duty specially enjoined by Rule 75 of the Indian Aircraft Rules.Such a report is certainly not admissible as a judgmentunder Sections 40, 41 and 42 of the Indian Evidence Actbut in my judgment is admissible under Section 35 of theIndian evidence Act. I may state here in passing thatMr. Gouri Mitter, the learned counsel for the defendant,submitted that even though he felt it necessary to recorda formal objection as to its admissibility, he will haveno objection to my looking into the report and read incourt at the time of argument. The report has been readin court and what weight is to be given to it and itsrespective findings will have to be considered later. Needless to say that its findings and conclusions both as tofacts and its opinion as to cause of disaster is not binding on me. It is however to be remembered that theenquiry was officially held pursuant to a statutory provision and conducted by an experienced judicial officer whoheld the office of a High Court Judge. The Court wasassisted by two experts as assessors. The disaster tookplace on 12th December and enquiry started on December21, 1953. Exhaustive enquiry was conducted on everypoint. The place of accident was looked into, such partsof the aircraft as were not completely demolished wereexamined by experts and scientifically tested and technically examined. 37 witnesses were examined including thesurviving pilot of the ill-fated aircraft and everybody whohad to do anything with the aircraft and its maintenanceas also Shri Malhotra, the Inspector of Accidents, wereexamined. The Inspector of accidents Sri Malhotra arrivedat Nagpur a day after the accident on the 13th and beganhis inspection immediately. All documents of and relating to the aircraft were impounded and produced beforethe court at the time of the enquiry. The enquiry appearsto have been conducted with efficiency and thoroughness.The Report of the Court is agreed to by the two assessorswithout any reservation. In my judgment such Report mustbe given adequate weight and its findings as to mattersof fact cannot be rejected or set aside unless sufficientacceptable evidence is tendered before me to indicate acontrary finding. There was a thorough examination ofthe place of accident and whatever parts of the aircraftfound after the accident were technically and mechanicallyexamined by experts and the result is summed up atpage 5 of the report in the following terms:
'To sum up :
1. the aircraft first impacted the ground in a pronounced nose-down attitude although fairly level laterally;
2. the under-carriage was in an extended position atthe time of the first impact;
3. both the propellers were in fine pitch and rotating at the same speed when they first hit the ground;
4. there was no fire until after the aircraft had hit the bund; and
5. the flaps were in the 'up' position at the time ofthe impact.'
The Court also recorded the following findings of fad at page 12 of the Report:
'The Court finds that
(i) The aircraft held a valid Certificate of Airworthiness. It had been maintained in accordance with the approved maintenance schedules and had a valid Certificate of Daily Inspection.
(ii) The crew held valid licences and were qualified to undertake the flight. The Captain had sufficient flying experience on the route.
(iii) The all-up weight did not exceed the authorised take-off weight and there is no suggestion that the position of the centre of gravity was not within the safe limits. The aircraft carried sufficient fuel and oil.
(iv) The Captain was in possession of all relevant meteorological communications and air traffic control information and other data required, for the flight.
(v) The weather conditions were good.
(vi) The engines were duly run up and tested by the pilot prior to take-off and the take-off run was normal.
(vii) Soon after the aircraft got airborne, at approximately 10 or 15 ft. from the ground, there was a failure of the port engine, but it picked up again within a few seconds and the aircraft was able to climb rapidly to a height of about 150 ft. At that height the Captain commenced turning to the left. During the process, the aircraft lost considerable height, and the starboard engine fire warning light came on. Being too near the ground the pilot decided to land, and in doing so, the aircraft hit the ground in a nose-down attitude.
(viii) On the impact with the ground, the aircraft was damaged, but travelled further and hit a bund, swung violently to starboard and caught fire.
(ix) The landing gear was all along in the fully extended position.
(x) Neither of the propellers was feathered and both-were in fine pitch.
(xi) Both the engines had partial power at the time of the impact and both the propellers were rotating at the same speed.
(xii) There is no sign of any fire having broken out either in the engines or in the airframe until the aircraft hit the bund.'
I have no reason to record a contrary finding on the evidence tendered before me. On the other hand, the evidence tendered support the findings and I would record the same finding independent of the Report. Under the Commercial Documents Evidence Act, certain documents shall and certain others may be presumed to have been duly made by or under the appropriate authority, was so made and that the statements contained therein are accurate. The documents in respect to which the Court 'shall presume' are set out in Part I of the Schedule which includes the following documents:
'12. Licence or permit for radio-telegraph apparatus carried in ships or aircraft.
13. Certificate of registration of an aircraft grantedby the Government of the country to which the aircraftbelongs.
(14) Certificate of airworthiness of an aircraft granted or validated by, or under the authority of, the Government, of the country to which the aircraft belongs.
(15) Licences and certificates of competency of aircraft personnel granted or validated by, or under the authority of, the Government of the country to which the personnel belongs.
(16) Ground 'Engineer's Licence issued by a competent authority authorised in this behalf by Government.' The documents in relation to which the Court 'may presume' are set out in Part II of the Schedule which includes the following documents
'(8) Certificate of safety for flight signed by a licensed Ground Engineer.
(9) Aircraft Log Book, Journey Log Book and Log Book maintained by the owner or operator in respect of aircraft.'
Positive evidence led on the point both oral and documentary does not rebut the above presumptions and the correctness of the entries in the documents must be accepted. Findings Nos. VI and VII are based inter alia on the evidence of the Commanding Pilot Cartner who tendered evidence both in the enquiry and before me. It is consistent with the other evidence tendered both in the enquiry and in this Court. These evidence are acceptable to me. Findings Nos. VIII to XII are mostly based on the technical and mechanical examination of the parts of the aircraft recorded after the accident conducted by experts on the subject. Evidence tendered before me will not persuade me to record a contrary finding.
21-26. (After considering the evidence his Lordship recorded his findings as follows):--
(1) the two engines fitted in the aircraft were not unfit for use and the aircraft was dependable and airworthy;
(2) the periodical maintenance work, required to be done under the Aircraft Rules and the Maintenance Manual were done in the instant case;
(3) the defendant Corporation was not guilty of negligence on any of the points connected with the aircraft and its maintenance;
(4) at the time of take off the captain of the aircraft was in possession of all relevant documents required to be in possession of the commanding pilot;
(5) the evidence of the commanding pilot that both the port and starboard engines were defective and that they were not functioning normally could not be accepted;
(6) his evidence that the under-carriage was geared up and the aircraft had belly landed when it crashed was not acceptable;
(7) at the time of the crash both the engines were working and had the same power;
(8) the cut in the port engine took place when the aircraft had just become airborne in about the middle (1070 yds.) of the runway and was flying at a speed of less than 100 miles per hour;
(9) the pilot did not at this time think to abandon the flight and return back to the aerodrome to examine the aircraft;
(10) the pilot intended to abandon the flight much later when there was the fire alarm signal in the starboard engine when the aircraft was flying at a speed of 120 miles;
(11) the evidence of the pilot that he turned to the left first and the fire alarm signal in the starboard engine he saw immediately afterwards was not acceptable; other evidence suggested that reverse was the case;
(12) that the pilot was not guilty of deliberate perjury and of retrospective falsification;
(13) that there was no defect in the port engine; one probable cause of failure of the port engine might havebeen ignition trouble or some foreign matter in the petrol pushed into the carburettor;
(14) that vapour lock was to be eliminated as a probable cause of the loss of power in the port engine;
(15) that though scientifically the engine be cut as a result of air lock that was not the probable cause of the loss of power in the port engine;
27. Having given my anxious consideration to the evidence tendered and arguments advanced on the point by the learned counsel, i have come to the conclusion that the cause of failure of the port engine in the instant case remains unexplained.
28. It is contended by Mr. Dutt Roy that the disaster is attributable to the failure of the Commanding Pilot to set properly in the emergency. The pilot was wring in not landing ahead immediately there was a failure of the engine for the first time. He was also wrong in not going up to a height of 500ft. before circling round to put the aircraft in a position of landing in the ordinary way. It is contended that Capt. Cartner acted not in accordance with the rules. The rule relied on is Ex. HI, which provides what should be done when there is engine failure during take-off. There are two sets of rules, one when the engines fail during take-off before attaining the speed of 110 miles per hour, and the other the speed is over 110 miles. When the engine fails before attaining the speed of 110-miles per hour, what is to be done according to the emergency rules of the Operations Manual is as follows:--
'Close the throttle on the other engine and land straight ahead with undercarriage down if you can step before the end of the runway is reached, but before you come to the end of the runway if the aircraft is likely to continue into obstacle beyond the runway, retract the undercarriage and allow the aircraft to go on the belly as this will be safer.'
29. In the instant case when the first failure took place, according to Mr. Dutt Roy, the speed of the engine was much less than 110 miles per hour. That is the evidence of Capt. Cartner himself before the Court of Enquiry. His evidence is that when the speed was nearer 100 i.e. between 95 to 100, the port engine cut dead-Before me Capt. Cartner told a different story and his evidence is that at the time when the engine cut for the first time, the speed was 100 miles per hour. He was, confronted with his evidence before the Court of Enquiry, end he attempted to explain away his evidence before the Court of Enquiry. This explanation is not acceptable to me. I hold that when the first failure of the port engine took-place, the plane had become just airborne and was flying at a speed of 95 to 100 miles per hour at a height of 10-15 ft. On this finding, it must be held that the above rule prescribed in the Operations Manual was applicable. In the instant case, admittedly, the above procedure was not adopted by Capt. Cartner. He did not close the throttle of the starboard engine and he did not land straight ahead either with the undercarriage down or on the belly. Indeed, according to Capt. Cartner, that procedure was not applicable and he did not make any attempt to land ahead. I have no hesitation in holding that when for the first time the port engine failed, it was flying at a speed of 95 to 100 miles and the above procedure in the Operations Manual was applicable and that the procedure was not adopted by the pilot. Mr. Gouri Mitter argued that therule prescribed is not inflexible and the Commander of the aircraft had a discretion in not adopting the procedure in the facts of the instant case. His argument is that the failure of the port engine took place at a point in the airfield when there was not sufficient runway left to land either with the undercarriage down or on the belly. According to Capt. Cartner, the aircraft became airborne when it reached half the runway, that is, when it covered 1070 yds; in order to attain the height of 15ft. it has to cover another 250 yds. Then the Commander levelled the control column and fly at the same altitude for some time to attain a speed of 110 miles. The aircraft in so doing covered another 400 yds. and then the engine failed. The engine failure, therefore, took place when the air-craft covered 1070 yds plus 250 yds plus 400 yds=1720 yds. leaving only 420 yds. of runway. This is inadequate for landing. Further, with the failure of the port engine, there was a sharp swing to the left and, the aircraft reached the edge of the runway. In order to correct the swing, the commanding pilot had to cover another 120 yds. in the time taken for operating the rudder. This rudder operation was imperative and had to be given first priority. In the result, only 300 yds. of the runway were left which are totally insufficient for landing ahead either with undercarriage down or on the belly. I have indicated before that the evidence of Capt. Cartner to the effect that the first failure of the port engine took place when the aircraft attained the speed of 110 miles per hour is not acceptable to me. Accepting his evidence before the Court of enquiry, I have held that the failure of power took place when the aircraft had just become airborne and was flying at a speed of 95 to 100 miles at an altitude of 10 or 15 ft. In that view, even according to Mr. Mitter's calculation, 820 yds. of the runway was left to land. I believe there was more. In my judgment, this was sufficient to enable the pilot to land ahead, if not with undercarriage down, certainly on the belly. The other reason, according to Mr. Mitter, for not attempting to land ahead was the existence of a fence at the end of the runway and a village a little beyond. It is contended by Mr. Mitter that these constituted serious obstruction to land. This is provided for in the rules and in case of obstruction belly landing is recommended. These obstructions, in my judgment, did not stand in the way of landing ahead, if not with undercarriage down, certainly on the belly.
30. The case of the defendant is that the aircraft came to trouble a short time after when both the engines were running with full power and attained the height of 150ft. with a speed of 110 or 120 miles per hour. In such cases, the procedure to be adopted as laid down in the Operation Manual is hereunder set out:
'If the engine fails after attaining the safety speed of 110 miles per hour, continue to fly on the live engine and make a circuit and effect a landing. The sequence given below should be adhered to;
1. Feather Dead Engine
2. Turn Hydraulic Selector to live engine
3. Undercarriage up
4. Maintain direction by use of Rudder and slightAileron.
5. Do not let airspeed drop below 110 MPH, full power (2700 Revs) and full throttle may be used if necessary for 5 minutes.
6. During the above manoeuvre ask Co-Pilot to giveyou sufficient Rudder trim to take the load off your feet of the rudder.
Within the five minutes stated above the power should be reduced to 1050 B.H.P. i.e., 2550 REVS, and 42' Manifold Pressure, unless the aircraft is fully loaded it is not necessary to use all this power. The correct method of utilising power is to start using full engine and begin to reduce gradually so soon as speed and climb are under control.
Use Rudder, Elevator and Aileron trim gently, climb straight ahead until 500 ft. is gained but discretion should be used about this height bearing in mind the terrain of the area. A turn should be made preferably into the live engine. Throughout this manoeuvre endeavour should be made to gain height by this time the base leg is reached, still maintaining speed at 110 miles per hour, undercarriage should be lowered just before turning finals. The circuit should be tighter than normal. The final approach from this point onwards will be fairly steep and little assistance from the live engine is needed. Upto 1/2 Flaps may be selected in stages ensuring all the time that the touch down will be about 200 yards inside the runway from the beginning. Speed on the approach should be 105 miles per hour after the flaps are selected. The hold off and landing should be normal except for making a 'Wheeler' effort, a 'Tall Down' landing should not be attempted.'
31. This procedure was not followed by Capt. Cartner. Dead engine was not feathered, the undercarriage was not geared up, the pilot did not climb straight ahead until 500 ft. is gained. He turned to the left at a height of 150ft According to the pilot himself, the left port engine was dead and yet he turned to the left and not to the right. According to Capt. Cartner, however, he turned to the left before and not after the port engine cut dead on the second occasion. He was further handicapped by the fact that immediately thereafter, when he applied greater power to the starboard engine, there was the fire alarm signal on the starboard engine, compelling him to reduce power of the starboard engine. This resulted in the sharp fall in the height compelling him to abandon the circular flight to land in the runway in the ordinary way and to land forthwith on what appeared to be level land in front of him. If the evidence of Capt. Cartner is accepted and the emergency developed in the manner described by him, the non-compliance complained of with this emergency procedure must be condoned. If both the engines were in distress, as described by Capt. Cartner--the port engine completely cut and the starboard engine under fire--it was impossible for him to comply with the procedure laid down in the above rule. This rule contemplated that at least one of the engines was functioning normally and could be used to its fullest capacity to counteract the deficiency of the other. If both the engines were in distress, the rule becomes inapplicable and the Captain must act as his judgment and experience dictated. This he did to the best of his judgment and ability. For reasons stated before, I am unable to accept the evidence of Capt. Cartner that the port engine cut dead a second time and did not revive. The only rational explanation of his turning to the left would be the fire-alarm signal which prompted him immediately to turn to the left, which prudently could have been done when the left engine, i.e., the port engine, was functioning normally. The fact that both the propellers were found, after the accident, in fine pitch and rotating at the same speed when they first hit theground is evidence of the fact that the port engine was not dead when it touched the ground. The evidence of Capt Cartner that he attempted to revive but could not revive it cannot be accepted, if the starboard engine appeared to be on fire due to the fire alarm signal on the starboard engine, then only the emergency rules above noted become applicable and Capt. Cartner should have attained the height of 500 ft. before turning to the left, as he did. This is on the assumption that the fire alarm signal was given before the Commander turned to the left. It seems to me what must have happened is this: When the aircraft rose to a height of 150 ft. and attained a speed of 120 miles an hour, there was the fire-alarm signal on the starboard engine. The Commanding pilot then, in hisanxiety to return to the runway at the shortest possible time turned to the left. He would not have turned to the left unless the port engine was all right. He stated that he look a gradual turn. Most probably the turn was not so gradual. It might have been sharp. He might have reduced power of the starboard engine. In the process there was a sharp fall in height compelling a forced landing. There has been an error on the part of the Commanding pilot not to act in the manner provided for in the Operation Manual. For operation of the aircraft with safety to the passengers and goods, the above rules in the Operations Manual are laid down. These rules embody the experience of airmen habitually engaged in flying. They are so important that a pilot is required to keep a copy of the emergency rules with him during every flight. They are the airmen's 'Bible'. These rules are very strong evidence of what is reasonably to be done by a pilot when confronted with an emergency like the one confronted by the Commanding Pilot in the instant case, that is, when engine trouble is detected during take-off. Failure to comply with the rules laid down in the Operations Manual amounts to a breach of duty to take care, which a pilot is bound to take in the interest of the safety to the aircraft and its passengers. This, in my judgment, is negligence in law and is an actionable wrong,
32. Mr. Dutt Roy has contended that Capt. Cartner had not sufficient training in landing with one engine cut off. Capt. Cartner said that he underwent that training when he was in the Air Force. He did not attempt landing a loaded plane with one engine off. The Check Report dated October 1953 noted that this test of landing with one engine off was not done. According to Capt. Cartner, in the previous check, this test was carried out Capt. Cartner admitted that he never landed on the belly before. This argument of Mr. Dutt Roy cannot, therefore, be rejected as an argument of no substance.
33. The fire alarm in the instant case proved to be a false fire alarm. This, however, was not detected by Capt. Cartner before the disaster. After the disaster the mechanical examination by the Court of Enquiry disclosed that there was neither fire on the starboard engine nor was the engine in an over-heated condition. The fire alarm must have been false. There is evidence that sometimes thereare false fire alarms signals and technicians are not yet able to eliminate it completely. A Commander of a plane, however, on getting a fire alarm signal, must accept it as true and act accordingly. Unless instant steps are taken to combat fire or to reduce heat, the result might be disastrous. I entirely agree with Capt. Cartner that even though a pilot knows that sometimes the fire alarm gives false signal, a pilot, when such a signal is given, must act on the basis that it is true. I further accept his evidence thatthe pilot must act even before verification as to whether the signal is true or false. In the instant case, there was not sufficient time for the pilot to verify the correctness of the signal before he took action. If the pilot reduced the power of the starboard engine, as he says he did, or if he had completely feathered or stopped the starboard engine, which he hesitated to do, he was or would have been justified. All acts taken by the Commanding pilot when the height of the aircraft was considerably reduced to the height of 20 or 25 ft above the ground, were acts taken according to the best of his judgment and were justified. By proper manipulation of the aircraft in such a dangerous situation, Capt. Cartner almost landed the aircraft with safety. But for the obstruction of the 'bund' he would have landed the aircraft safely. All subsequent acts of the pilot were done with efficiency and courage and must be commended. The accident, however, would not have happened if the pilot landed the aircraft ahead when there was the first failure of the engine during take-off, when the aircraft was just airborne. In my judgment, the aircraft could have been landed ahead, if not with the undercarriage down, certainly on the belly, as laid down in the Operation Manual. After the port engine revived and the aircraft was flying at a speed of 120 miles per hour at a height of 150 yards, there was the fire-alarm signal. In the new emergency created, the pilot did not act properly in turning at that unsafe height. He should have risen to the height of 500 ft. before turning. This turning, coupled with the reduction of power in the starboard engine, led to the loss of height which compelled a forced landing. In my judgment the Commanding pilot did not act according to the rules and this non-compliance resulted in the disaster which would have been avoided if the Commanding pilot acted according to the rules.
34. For reasons stated above, I hold that the defendant Corporation has not been able to disprove negligence. I find that the negligence of the Commanding pilot has been established on the evidence tendered. For this negligence of the Commanding Pilot the defendant Corporation is liable in law.
35. Coming now to the question of damages to which the plaintiffs are entitled. The plaintiffs, under the Fatal Accidents Act, are entitled to the actual pecuniary benefit which they might reasonably have expected to enjoy had the deceased not been killed. No damage is recoverable as a compassionate allowance or solatium for cental anguish or loss of society due to death. Damages recoverable are limited to pecuniary loss suffered. From the nature of the case, the Court has to assess damages on the basis of what the deceased would have earned had he been alive or how much he would have contributed for the benefit of the plaintiffs. In the case of Nani Bala v. Auckland Jute Co. Ltd., reported in : AIR1925Cal893 , as follows-
'Such an investigation must always be more or less guesswork, for it is impossible accurately to estimate the loss which has been sustained by the death of a husband or of a father. It is certain, however, that the Court ought not to give sympathetic damages, or damages by way of consolation. In my opinion, in estimating the amount of the decree, to be passed in a case of this nature, the Court must take into account all the circumstances which are material for considering the pecunjary loss which has been sustained. The Court must view the matter broadly. No doubt, it must take into account the chances of life,the chances of any improved conditions in which the family of the deceased might have passed their days, it must take into account the standard of living of the family which was dependent upon the deceased, and, having regard to all the material circumstances, it must do the best it can to estimate what is a fair and reasonable sum to be awarded.'
In the case of Jeet Kumari v. Chittageng Engineering and Electric Supply Co. Ltd., reported in : AIR1947Cal195 , the deceased was an assistant in the cloth shop of his father. He did not receive any pay but was learning the business under his father whom he was helping. It was held that in the ordinary course he would have succeeded his father in the business. This was taken into consideration in assessing the damages payable to the legal representatives of the deceased.
36. In the instant case, the deceased was a young man of 28. He was the only son of the father who was comparatively a prosperous man. There was a steamship company--Chandbali Steam Service Ltd.--a private limited company, of which his father and the mother along with the deceased were members. They were also the Directors of the Company. The books of account of the company have been tendered in proof of the fact that the deceased was entitled to a remuneration of Rs. 1000/-per month plus 21/2 per cent commission on the total freight. This remuneration is based on a resolution of the Board of Directors. No salary or commission has been proved to have been paid to the deceased. All the entries in the books were made on the last day of the financial year, 31st March. The entries were made according to the directions given by the Directors. Even if the entries are admissible in evidence at all, of which there is great doubt, little weight is to be given to this evidence. The Balance Sheet of the company, which would disclose the financial condition of the company, has not been tendered in evidence. There is evidence that the company became commercially insolvent in 1955 and went into liquidation, but there is no evidence as to the cause of this bankruptcy. The widow stated in evidence that the deceased had a transport business, but not a scrap of paper was produced in proof of the existence of this business and what was the income of the deceased from such business. No dependable evidence has been given as to whether the deceased had any bank account of his own and what the state of account was during any period of time. The evidence of the plaintiff's widow Madhuri Chowdhury to the effect that the deceased used to pay her Rs. 5000/- per month for family expenses is not acceptable to me. The father was still alive and the son was living with the father. The father was well-off and had substantial income of his own and it is impossible for me to believe that the young son and not the wealthy father was financing the family. No evidence acceptable to me has been tendered to prove whether the deceased had a regular monthly income out of which such a large sum of money could have been paid by him to his wife for meeting the family expenses. If the deceased paid money to meet the family expenses to his wife, it was the father's money, not his. If in fact the deceased was spending Rs. 5000/- per month on account of family expenses, he must have been a spend-thritt and such a spend-thrift could never be a business success. He would have invited a financial disaster at no distant date on his business career. But, as I stated before, the evidence is unacceptable to me. The only acceptable evidence havingrelevance to the question of damages is that the deceased-was a young man of good health in not a short-lived family. He along with his father was doing shipping business. His ability to conduct business on sound basis has not been proved. There is no dependable evidence. There is evidence that shortly after the death, the company of which the deceased was a director went into liquidation. There is no evidence however that this bankruptcy can be attributed to lack of ability of the deceased in conducting the affairs of the company properly.
37. Damages in a case of fatal accident must be assessed on guesswork. But in order to make a reasonable assessment, the plaintiffs should have tendered dependable evidence of the ability of the deceased to earn which would probably enure to the benefit of the defendants. Evidence furnished in the instant case is extremely unsatisfactory and damages of Rs. 20 lakhs claimed is clearly fantastic. On the evidence tendered, I am prepared to hold that the deceased would have made available to his family a sum of Rs. 6000/- a year for the rest of his working life, which in my judgment would be say another 30 years. The total financial loss suffered by the plaintiffs, in my judgment, would be about Rs. 2 lakhs. A lump sum of Rs. 1,50,000/-would be a fair and proper assessment of damages payable now to the plaintiffs. This sum should be equally divisible between the three plaintiffs, namely, the widow, son and daughter. I accept the evidence of the widow that in cash and in kind the deceased had with him a sum of Rs. 5000/-. This sum the plaintiffs are also en-titled to recover in this suit.
38. There will be a decree accordingly. The decretal amount will carry interest at the rate of 6 per cent per annum. The plaintiffs are also entitled to costs, including reserved costs, if any; certified for two counsel.