Insurance – Aircraft Act, 1934 – Aircraft Rules, 1937 – Claim filed by respondent no. 1 pertaining to an aviation accident leading to the death of her son – The appellant-insurer repudiated the claim on the basis that the deceased was travelling in a motorized glider for sightseeing and hence was not travelling in a standard aircraft and was further not a fare-paying passenger in any regular scheduled airline or air charter company, which excluded the accident from the purview of the policy – The National Commission directed the insurer to pay an amount of Rs. 1 crore – On appeal, held: The fact that the glider was motorized would not imply that it was not an aircraft – The terms ‘aircraft’ and ‘glider’ have not been defined within the policy – Even the aviation inspection report of Transport Safety Board of Canada unequivocally referred to the glider as an ‘aircraft’ repeatedly – Therefore, glider in question must be regarded as an aircraft under the policy – The policy itself does not define what a ‘standard type of aircraft’ is – The 1937 Rules do not maintain any uniform categorisation between powered and non-powered aircraft, far from terming any of these as ‘standard’ or ‘non-standard’ – The National Commission rightly concluded that had the insurer really intended to exclude gliding activity from the purview of the policy, it could have done so expressly, similar to the manner in which hang-gliding and para-gliding were excluded – Similarly, insurer could have defined the phrase ‘standard type of aircraft’ in the policy, but it chose not to – Now, it is not open to the insurer to reject a claim by arguing that a glider is not a standard aircraft by virtue of not principally being a powered aircraft – International Civil Aviation Organisation defines a chartered flight as a non-scheduled operation using a chartered aircraft – A charter is stated to be a contractual arrangement between an air carrier and an entity hiring or leasing its aircraft – In the instant case, offering sightseeing services on a glider plane for a fixed consideration, the aircraft was given on hire, this practice may constitute on own-use charter – The Company offering service was an incorporated Company – Further, policy omitted to define ‘air charter company’, therefore the benefit of the ambiguity in meaning will to go the claimant – Insofar as argument that deceased was not a passenger is concerned, the purpose for the journey was to fly over various scenic spots, and after completion, the glider was to return to a designated location, presumably from where it took off – Thus, the deceased was a fare-paying passenger on the glider in question – Therefore, the accident out of which the instant claim arose was completely covered under the ambit of the policy – No reason to interfere with the impugned judgment – Aeronautics Act, 1985 of Canada.
Dismissing the appeal, the Court
HELD: Whether the glider involved in the accident was an Aircraft.
1. It becomes important to note that though the glider in question was equipped with an engine, this was mainly for the purpose of adding self-launching capacity to the vehicle, as evident from the Transport Safety Board of Canada (TSBC) Report. Be that as it may, the fact that the glider was motorised would not imply that it was not an aircraft at all. Even the TSBC Report unequivocally refers to the glider as an “aircraft” repeatedly. Importantly, the terms “aircraft” and “glider” have not been defined within the Policy. In such circumstances, this Court is of the view that the glider in question must be regarded as an aircraft under the Policy. [Para 8.5][594-D-E] Whether the glider in question was a standard type of aircraft.
2. The 1937 Rules do not maintain any uniform
categorisation between powered and non-powered aircraft, far from terming any of these as “standard” or “non-standard”. It does not appear to be the case that one set of rules is prescribed for powered aircraft, and another distinct set for non-powered aircraft. Thus, no reliance can be placed on the Rules to further the Appellant’s contention in this respect. [Para 9.8][597-B-C]
3. In the instant case, this Court agrees with the conclusion of the National Commission that had the insurer really intended to exclude gliding activity from the purview of the Policy, it could have done so expressly, similar to the manner in which hanggliding and para-gliding were excluded in Clause 7(xiii) of the Policy. Similarly, the insurer could have also defined the phrase “standard type of aircraft” for the purpose of the Policy, but it chose not to do so. In these circumstances, it is not open to the insurer to reject a claim arising out of a glider accident by now arguing that a glider is not a standard aircraft by virtue of not principally being a powered aircraft. Therefore, regardless of whether the glider involved in the accident was powered or nonpowered, motorised or non-motorised, it was a “standard type of aircraft” envisioned in the Policy. [Para 9.11][599-F-G]
Whether the glider in question was duly licensed.
4. On perusal of the business licence on record, as well as the observation in the TSBC Report that the glider was registered privately, carrying registration as “C-FHAB”, with serial number 11-016. Moreover, there is the specific finding in the TSBC Report that the glider was certified, equipped and maintained in accordance with existing regulations and approved procedures, and compliant with rules such as the Visual Flight Rules. The Report further observes that even the pilot of the glider was certified and qualified for the flight as per existing regulations, indicating that such separate glider pilot licence was in accordance with the legal requirements. Thus, it was rightly held by the National Commission that the aircraft in question was duly licensed. [Para 10.1][599-C-D]
Whether the Pemberton Soaring Centre was an air charter company.
5. In the Manual on the Regulation of International Air Transport, the ICAO defines a chartered flight as a non-scheduled operation using a chartered aircraft. At the same time, a charter is stated to be a contractual arrangement between an air carrier and an entity hiring or leasing its aircraft. Importantly, reference is made to the “single-entity charter” or “own use charter”. [Para 11.4][601-A-B]
6. It is undisputed in the instant case that the glider in question could seat only two persons. Thus, in offering sightseeing services on a glider plane for a fixed consideration, the Pemberton Soaring Centre gave out the entirety of the aircraft on hire for the duration of the aerial journey, though one seat was reserved for the pilot. This practice may constitute an own-use charter. Moreover, there is no dispute that the Pemberton Soaring Centre was an incorporated company. Keeping in mind that the Appellant has itself omitted to define what it means by an “air charter company” in the Policy, this Court is again, for the purposes of the Policy, inclined to extend the benefit of the ambiguity in the meaning of the term to the claimant. Thus, this Court affirms the National Commission’s finding that the Pemberton Soaring Centre was an air charter company within the meaning of clause 7(xiv) of the Policy. [Para 11.5][601-D-F]
Whether the deceased was a fare-paying passenger on the glider in question.
7. This Court finds no force in the Appellant’s contention that the deceased was not a passenger merely because the journey was supposed to begin and terminate at the same location; indeed, this contention was duly dealt with and rejected by the National Commission. Needless to say, the purpose of the journey was to fly over various scenic spots, and after completion, the glider was to return to a designated location, presumably from where it took off. As noted by the National Commission, this would not be dissimilar to how a sightseeing bus might originate and terminate its journey at the same spot after passing by various places of interest. This Court finds it difficult to conclude that a person undertaking such a journey would not amount to a “passenger”. [Para 12][601-G; 602-A-B]
United India Insurance Co. Ltd. v. Pushpalaya Printers, (2004) 3 SCC 694 : [2004] 2 SCR 631 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.