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2020 DIGILAW 165 (GAU)

Shailendra Kumar Sarawgi v. Union of India

2020-02-07

AJIT BORTHAKUR, PRASANTA KUMAR DEKA

body2020
JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. D Das, learned Senior Counsel assisted by Mr. D Panging learned counsel for the appellants. Also heard Mr. N Ratan, learned counsel for the respondent nos. 4 & 5 and Mr. RH Nabam, learned Additional Advocate General, Arunachal Pradesh representing respondent no. 3. None entered appearance on behalf of the respondent nos. 1 & 2. WA 13(AP)2015 By this common judgment and order all these five appeals are taken for final disposal. The brief facts leading to filing of the appeals are discussed as follows:- 2. The appellants are the relatives of Late Wrishi Bothra and Late Amit Sarawgi. The deceased persons along with 19 other persons including 4 crew members were on the journey to Tawang, Arunachal Pradesh on a chopper belonging to Pawan Hans Helicopter Ltd., the respondent nos. 4 & 5 which departed from Lokopriya Gopinath Bordoloi International Airport at Guwahati and crashed at its intended landing pad at Ugweny Sangpo helipad, Tawang on 19.04.2011 lolling 19 of the 23 passengers. The Government of India, Ministry of Civil Aviation appointed a committee of enquiry to investigate into the tragic accident. The committee, after a thorough enquiry, opined that all the agencies involving in operating the fleet of helicopters were responsible for the death of 19 passengers of the helicopter. The said enquiry report confirmed that there were negligence on the part of the Director General of Civil Aviation (respondent no. 2), the State of Arunachal Pradesh (respondent no. 3) and Pawan Hans Helicopter Limited (respondent no. 4) (PHHL) and as such the appellants as the petitioners claimed that all the three agencies are liable to pay compensation at a higher rate that what is stipulated by the Notification dated 28.1.1998 issued by the Ministry of Civil Aviation, Government of India. The carrier, Pawan Hansa Helicopter Limited offered compensation of Rs. 7,50,000/- each to the victims of the air crash which, according to the appellants, were not enough. The State of Arunachal Pradesh, respondent no. 3 in the affidavit-in-opposition admitted the shortcomings raised in respect of the State of Arunachal Pradesh. On the other hand, the respondent nos. 4 & 5 questioned the maintainability of the writ petition. That apart, the respondent nos. The State of Arunachal Pradesh, respondent no. 3 in the affidavit-in-opposition admitted the shortcomings raised in respect of the State of Arunachal Pradesh. On the other hand, the respondent nos. 4 & 5 questioned the maintainability of the writ petition. That apart, the respondent nos. 4 & 5 contended that the payment of compensation is governed by the statutory provisions contained in the Carriage by the Air Act, 1972 (hereinafter referred to as 'the Act') and the Rules under first and second schedules. 3. The deceased Late Wrishi Bothra was the son-in-law of the appellant/writ petitioner no. 2 and Smti. Pushpa Devi Bothra, the mother of Late Wrishi Bothra authorized Dr. Kamal Nahata (appellant/writ petitioner no. 2), the father-in-law of the deceased to file WP(C) 223 (AP) 2012. Late Wrishi Bothra at the time of his death was working in J.M. Financial Institutional Securities, Kolkata and had a pay package of Rs. 36,03,788/- per annum. Late Amit Sarawgi was the son of the appellant/writ petitioner no. 1. Late Amit Sarawgi was engaged with Intel Limited, Bangalore and had a gross total income of Rs. 10,99,484 for the accounting year 2010-11, WP (C) 223 (AP) 2012 was filed claiming an amount of Rs. 7,20,75,760/- for the death of Wrishi Bothra and an amount of Rs. 2,27,22,670/- for late Amit Sarawgi and for a further declaration that the Tawang Air Crash occurred due to negligence of the respondent authorities and they are jointly and severally responsible for such negligence and as such for a writ in the nature of mandamus directing all the respondents to equally share the amount of compensation to be granted to each of the victims of the said helicopter crash on 19.04.2011. In the writ petition the appellants stated that with the annual income of Rs. 36,03,788/- of late Wrishi Bothra and subtracting his personal expenses to the tune of one-third of the total income, late Wrishi Bothra being 25 years of age on the date of death would have earned an amount of Rs. 6,43,53,357/- till his expected age of retirement at the age of 60 years and on the similar basis late Amit Sarawgi being 29 years of age at the time of death would have generated an income of Rs. 2,27,22,670/- at the end of his career. 6,43,53,357/- till his expected age of retirement at the age of 60 years and on the similar basis late Amit Sarawgi being 29 years of age at the time of death would have generated an income of Rs. 2,27,22,670/- at the end of his career. It would be pertinent to mention here that late Amit Sarawgi died along with his wife Karisma Sarawgi in the said accident and they left behind an infant male child of 3 years and as such adequate compensation was also sought for the sustenance of the surviving child. Along with the writ petition the copies of the death certificates of the deceased and account statements of ITR were also annexed. 4. The respondent no. 3 i.e. the State of Arunachal Pradesh filed an affidavit-in-opposition thereby admitting the deficiencies as shown in the enquiry report. The Government of Arunachal Pradesh through the Commissioner, Civil Aviation entered into a lease agreement with M/s. Pawan Hans Helicopter Limited, the respondent no. 4 and on the basis of the said agreement dated 05.02.2009 took on lease one MI-172 twin engine large heavy duty transport helicopter for passenger services between Guwahati-Tawang sector under 75% subsidy scheme of Ministry of Home Affairs, Government of India. 5. The respondent nos. 4 & 5 also filed an affidavit-in-opposition taking the stand that the crash of the ill fated helicopter was a clear case of accident for reasons beyond the control of anybody. The respondent no. 4 strictly adhered to all safety norms i.e. necessary and to the extent permissible under the Rules for the purpose of operating the flights. Immediately after the accident all possible steps to mitigate the grievances of the persons whose kith and kin lost their lives in the accident offered to pay the compensation amount to all the passengers on board of the ill fated flight as per the law. Such amount of compensation were duly accepted by the relatives of most of the victims except the petitioners/appellants. It was further stated that the payment of compensation in case of such accident is governed and controlled by the provisions contained in the Act and the Rules under the first and second schedules. As such, the liability of the respondent no. Such amount of compensation were duly accepted by the relatives of most of the victims except the petitioners/appellants. It was further stated that the payment of compensation in case of such accident is governed and controlled by the provisions contained in the Act and the Rules under the first and second schedules. As such, the liability of the respondent no. 4 to pay compensation would be exclusively governed and/or limited by the provisions of the said statute and no further amount as claimed by the appellants/petitioners dehors the Act is payable by the respondent no. 4. There is no special contract in existence between the parties within the meaning of Rule 22(1) of the Second Schedule permitting higher limit of liability. As such, the liability of the carrier is strictly limited to only such amount as indicated in Rule 22(1) of the Second Schedule. It is further stated that any action for damages in addition to the statutory liability as aforesaid is maintainable under the law in the facts of the case but even under such circumstances also Section 5 of the Act read with Rules 28 and 29 of the Second Schedule would make it abundantly clear that only a civil suit would lie before the appropriate Court having jurisdiction to try the same. Referring the enquiry report it is the stand taken by the respondent nos. 4 & 5 that the same is not a substantive piece of evidence under the Evidence Act inasmuch as the same is merely an opinion of the committee of enquiry of accident which is in the nature of prima facie opinion so as to make certain recommendations to the Central Government as to the probable cause of accident and remedial steps to be adopted for the future. The opinion expressed in the said enquiry report is not binding upon the answering respondents. Accordingly, the appellants/petitioners are not entitled for the claim of compensation made in the writ petition. 6. The provisions of the Act are applicable to domestic carriage by virtue of Section 8 of the said Act. Under the said Act, the Central Government issued a notification to make the provisions of the said Act applicable to non-international carriage. Accordingly, the appellants/petitioners are not entitled for the claim of compensation made in the writ petition. 6. The provisions of the Act are applicable to domestic carriage by virtue of Section 8 of the said Act. Under the said Act, the Central Government issued a notification to make the provisions of the said Act applicable to non-international carriage. In exercise of powers conferred by sub-section 2 of the Section 8, the Ministry of Tourism and Civil Aviation issued notification dated 30.03.1973 directing the application of Sections 4, 5 and 6 of the said Act and Rules contained in the schedule to the said Act w.e.f. 01.04.1973 to all carriage by air. Thereafter, by another notification dated 05.07.1980, the Government of India, Ministry of Civil Aviation in exercise of its power conferred by the aforesaid notification dated 30.03.1973, issued another notification wherein it is notified that in the event of death of a passenger or any bodily injury or wound suffered by a passenger which results in a permanent disablement etc., the liability of the carrier for its passengers shall be Rs. 2,00,000/- if the passenger is 12 or more years of age and Rs. 1,00,000/- if the passenger is below 12 years of age on the date of accident. Asserting that there is no privity of contract by and between the writ petitioners or the deceased passengers and the answering respondent nos. 4 & 5, the liability of the respondent nos. 4 & 5 as per the Act read with the aforesaid notification dated 05.07.1980 and the subsequent one dated 20.01.1988 is limited to a sum of Rs. 7,50,000/- if the passenger is over 12 years of age and as such, the respondent nos. 4 & 5 are not in any event liable to pay any amount in excess of Rs. 7,50,000/- per deceased passenger. The income of the deceased late Wrishi Bothra and Amit Sarawgi are totally denied thereby casting burden to strictest proof on the writ petitioners. The respondent nos. 4 & 5 without denying that there is scope of providing better facilities in the various heliports at Arunachal Pradesh pleaded that the said respondents are operating the services under the restricted conditions with the limited facilities made available by various authorities including Director General, Civil Aviation, respondent no. 2 as well as the State of Arunachal Pradesh, the respondent no. 3. 2 as well as the State of Arunachal Pradesh, the respondent no. 3. In the said affidavit-in-opposition of the respondent nos. 4 & 5 they have denied the findings of the enquiry report but nowhere they sought for setting aside the same thereby taking the stand that the findings of the said report are rebuttable in nature. 7. The learned Single Judge, after hearing the parties, disposed of the WP (C) 223 (AP) 2012 filed by the present appellants/writ petitioners and another WP (C) 107 (AP) 2013 filed by the writ petitioners/respondent nos. 1 to 6 in WA 39 (AP) 2017 and WA 4 (AP) 2015 by holding as follows:- "42. In view of the above, and relying on the case of Sube Singh (Supra) this Court is of the view that since the accident occurred due to negligence of the respondent and for lack of proper care and operating the Helicopter in Arunachal Pradesh the writ petition under Article 226 of the Constitution of India is maintainable. The legal heirs & successors of deceased passengers are entitled to get compensation under Rule 25 of Carriage and Air Act, 1972 more than the limit prescribed under Rule 22 (1) of the said Act. The Respondents are jointly and severally liable to pay the compensation. 43. Having said that, so far as the entitlement of the petitioners and the quantum of compensation are concerned in WP (C) 223 (AP) 2012, the petitioner No. 2 is representing the mother of Late Wrishi Bothra and the age of the mother of deceased has not been disclosed in the writ petition. The income of the aforesaid deceased has been stated as Rs. 36,30788/- per annum in the writ petition whereas in the written arguments, it is averred that Late Wrishi Bothra has drawn an annual package of Rs. 43,76,052/- per annum for the year 2011-12. It is also appears from the writ petition as well as from the written arguments that Late Wrishi Bothra and his wife namely Late Nidhi Bothra, both of whom died in the tragic accident are survived by two minor sons, one 4 (four) years old and another 8 (eight) months old. There is no averment in the writ petition that mother of Late Wrishi Bothra, is legal guardian of the aforesaid minor sons or the minor sons are in her custody. 44. There is no averment in the writ petition that mother of Late Wrishi Bothra, is legal guardian of the aforesaid minor sons or the minor sons are in her custody. 44. Petitioner No. 1, in WP(C)223 (AP)2012, is the father of Late Amit Sarawgi and Krishna Sarawgi, the age of petitioner No. 1 is not disclosed in the writ petition. As regard the income of Late Amit Sarawgi, it has been averred in the writ petition that his gross total income was Rs. 10,99,484/- for the accounting year 2010-11. No document has been annexed in the writ petition in support of income of Late Amit Sarawgi. It is also stated that Late Amit Sarawgi is survived by a 2 (two) years old son but whether the petitioner No. 1 has been appointed as guardian of the minor son of the deceased Late Amit Sarawgi or the minor son in his custody has not been disclosed. The petitioners in Writ Petition have not claimed compensation representing the minor sons of the deceased. 45. In WP (C) 107 (AP) 2013, the petitioner No. 1 is the widow of the deceased Late Dr. Nawang Toden, the petitioner Nos. 2 and 3 are the minor sons, petitioner Nos. 4 and 5 are the parents and petitioner No. 6 is the younger brother of the deceased. The age of the parents of the deceased has not been disclosed. There is no averment that younger brother of the deceased was dependent on the deceased. It is stated that the deceased was drawing monthly salary of Rs. 53,759/- as on the date of death on the accident and he was 36 years of age. No supporting documents have been annexed as regard the age and income of the deceased. 46. In view of the aforesaid facts and circumstances, this Writ Court cannot decide, who are the actual legal heirs or successors of the deceased persons and the quantum of compensation, the legal heirs and successors of the deceased persons are entitled. Therefore, the petitioners may approach the appropriate forum only to decide their entitlement to receive compensation as well as the quantum of compensation, they may be entitled to get. 47. Both the Writ Petitions are accordingly disposed of in above terms." 8. Therefore, the petitioners may approach the appropriate forum only to decide their entitlement to receive compensation as well as the quantum of compensation, they may be entitled to get. 47. Both the Writ Petitions are accordingly disposed of in above terms." 8. Being aggrieved by the findings to the limited extent of the learned Single Judge the causes for which the appellants/writ petitioners were directed to approach the appropriate forum in order to decide their entitlement to receive compensation as well as the quantum of compensation this writ appeal is filed. WA 39 (AP)2017 & WA 20(AP)2016 9. These two appeals are filed by the State of Arunachal Pradesh against the finding by the learned Single Judge that the State of Arunachal Pradesh is also jointly and severally liable for compensation to the petitioners/appellants with M/s. Pawan Hans Helicopter Limited and the Director General, Civil Aviation. Mr. Nabam, learned Additional Advocate General, Arunachal Pradesh referred to the Deed of Wet Lease Agreement entered by the Commissioner, Civil Aviation, Government of Arunachal Pradesh as the lessee and M/s. Pawan Hans Helicopters Limited as the lessor. Admitting that the lessee took on hire the ill fated helicopter for passenger services between Guwahati-Tawang sector, however, denied that the State of Arunachal Pradesh is liable to compensate the victims inasmuch as per Clause 5 of the said agreement dated 05.02.2009 all claims/cost/demands etc. arising out of the use including the third party liability are to be indemnified to the State of Arunachal Pradesh by the lessor during the period of lease agreement. It is further admitted in the affidavit-in-opposition of the respondent no. 3, the terms which were agreed as per the lease agreement. In support of the said submission Mr. Nabam refers Clause 13.3 wherein it is stipulated that the lessee shall arrange for taking off passengers/loading of cargo with duly manifested safety and security of helicopter etc. at all the operational locations. But the lessor did not inform any requirements indicating deficiencies in safety measures while operation of the helicopter was on and it is the projection of Mr. Nabam that there was no deficiency on the part of the lessee State in providing the safety and security. at all the operational locations. But the lessor did not inform any requirements indicating deficiencies in safety measures while operation of the helicopter was on and it is the projection of Mr. Nabam that there was no deficiency on the part of the lessee State in providing the safety and security. Even if the state Government is held to be liable for any compensation to the relatives of the victims then as per Clause 5 the same shall have to be borne by the lessor, Pawan Hans Helicopter Limited. Accordingly, as per his submission, he sought for interference in the finding of the learned Single Judge and to hold that the state is not liable jointly and severally to compensate the victims of the helicopter crash. WA 4(AP)2015 & WA 5(AP)2015 10. Mr. Ratan, learned counsel for the appellants (respondent nos. 4 & 5 in the writ petition) submits that the liability of the carrier for payment of compensation due to death on account of such accident is governed by the provisions of the Act wherein the Government of India through the department of Civil Aviation specified the amount of compensation as Rs. 7,50,000/- per deceased person. In fact the appellant no. 1 already offered payment of such statutory compensation to all the deceased passengers. But even then the respondent nos. 1 & 2 (writ petitioners in WP (C) 223 (AP) 2012) preferred the writ petitions claiming higher amount of compensation alleging that the respondents therein including the present appellants were guilty of reckless negligence that resulted in the accident. Submitting the claim so made by the writ petitioners is solely on the basis of the domestic enquiry report which is nothing but an opinion expressed by some aviation experts on the probable cause of accident, there are no evidence adduced by the writ petitioners to prove and establish their claims yet by the impugned judgment and order dated 13.03.2014 the learned Single Judge erroneously arrived at a finding of fact holding the appellant guilty of negligence though the writ petitioners were directed to approach the appropriate forum for a decision on their entitlement and quantum of compensation. 11. Referring Rule 25 of the second schedule of the Act, Mr. 11. Referring Rule 25 of the second schedule of the Act, Mr. Ratan submits that there was no intent on the part of the present appellants to cause damage or reckless negligence with knowledge that damage would probably result in order to attract the said provision of Rule 25 of the second schedule of the Act. In fact one of the co-pilots lost his life in the said crash. Without giving a finding in that aspect as regards the intent to cause damage or recklessness, the learned Single Judge wrongly held that the writ petitioners are entitled to be compensated under Rule 25 of the Second Schedule of the Act. Mr. Ratan fairly submits that the Government of India, Ministry of Civil Aviation vide notification dated 17.01.2014 in exercise of the powers conferred by sub-section 3 of Section 8 of the Act and by supersession of the notification of the Government of India published in the Gazette of India, Extra Ordinary Part-II, Section 3, sub-section (1) vide No. SO 186(E) dated 30.03.1973 stipulated that except as respects things done or omitted to be done before such supersession, the Central Government hereby directs w.e.f. the date of publication of the said notification dated 17.01.2014 in the official gazette, the provisions of Section 5 of that Act and the Rules contained in the third schedule to that Act shall apply to all carriage by air not being international carriage by air as defined in the said third schedule and to that effect amendments were brought in the third schedule. In Rule 21 of the third schedule of the Act, for damages arising under sub-rule 1 of Rule 17 not exceeding the words "one lakh special drawn rights" were substituted by the words "Rupees twenty lakhs". Rule 17 (1) of the third schedule stipulates that the carrier shall be liable for damages sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. As per Rule 21 (1) after the notification dated 17.1.2014, the carrier shall not be able to exclude or limit its liability if the damages arising under the said rule does not exceed Rs. 20,00,000/-. As per Rule 21 (1) after the notification dated 17.1.2014, the carrier shall not be able to exclude or limit its liability if the damages arising under the said rule does not exceed Rs. 20,00,000/-. This goes to show that if in case of death of a passenger on the condition that the accident which caused the death on board the aircraft, the limit of liability under the said Rule 17(1) can extend its liability up to Rs. 20,00,000/- and the carrier shall not be able to exclude or limit its liability. Accordingly, Mr. Ratan submits further that in the event if at all the present appellants are found liable to pay compensation beyond Rs. 7,50,000/- the said excess amount may be indicated to the extent of share liable by the present appellants. 12. Mr. Das arguing on behalf of the appellants/writ petitioners, submits that the learned Court below rightly held that the petitioners are entitled for compensation under Rule 25 of second schedule. Further the learned Single Judge rightly held that the respondents are jointly and severally liable. Regarding the findings on the entitlement for compensation of legal heirs of the victims, it was specifically pleaded in the writ petition itself as to the relation of the petitioners along with the deceased late Wrishi Bothra and late Amit Sarawgi. It is also submitted that the respective income of the deceased are also mentioned in the writ petition. Even then the learned Single Judge wrongly applied the discretion thereby directing the petitioners to move appropriate forum for compensation. The writ Court has the authority to grant compensation in a case wherein the factual matrix is similar to the one in hand. The enquiry report and the cause of accident are rightly appreciated by the learned Single Judge and as such, the negligence is established inasmuch as the said enquiry report till date is not challenged by any of the respondents. There is no dispute that the enquiry report is accepted by all the respondents and under such circumstance where there is no dispute in respect of the act of negligence on the part of the respondents, the liability to compensate the writ petitioners is rightly held by the learned Single Judge. There is no dispute that the enquiry report is accepted by all the respondents and under such circumstance where there is no dispute in respect of the act of negligence on the part of the respondents, the liability to compensate the writ petitioners is rightly held by the learned Single Judge. Further, the learned Single Judge ought to have awarded the compensation by taking into consideration the multiplying factor which is approved by the Hon'ble Apex Court in order to calculate compensation for the loss of life of a person and the compensation for the dependants. In support of his submission that the writ Court has jurisdiction to grant compensation, Mr. Das relies on the case law of Khiradabala Nath & Ors. Vs. Assam State Electricity Board & Ors. reported in 2008(4) GLT 116. As per his submission, non-granting of the compensation by considering the multiplying factor is itself a wrong application of the discretion by the learned Single Judge and for the same he submits that this appellate Court requires interference to that extent by granting the compensation which the learned Single Judge failed to consider. 13. We have given due consideration to the submissions made by the learned counsel. The petitioners/appellants sought for the reliefs of compensation against the respondents which are no doubt the instrumentalities of the State for their negligence in maintaining the safety standards while operating the ill fated helicopter which crashed resulting the death amongst other persons near and dear ones of the writ petitioners. It is the settle position that the Hon'ble Supreme Court and the High Courts are the protectors of the fundamental rights of the citizens which are called the civil liberties. Accordingly, the said courts have the power and the jurisdiction to grant relief in exercise of jurisdiction under Articles 32 and 226 of the Constitution to victims or the heirs of the deceased victim whose fundamental rights under Article 21 of the Constitution have been infringed. Public safety Ms within the wide amplitude of Article 21 of the Constitution. Accordingly, the said courts have the power and the jurisdiction to grant relief in exercise of jurisdiction under Articles 32 and 226 of the Constitution to victims or the heirs of the deceased victim whose fundamental rights under Article 21 of the Constitution have been infringed. Public safety Ms within the wide amplitude of Article 21 of the Constitution. By exercising the jurisdiction the Hon'ble Supreme Court and High Courts under Article 32 and 226 of the Constitution shall be within its limit to grant relief to the victims or heir of victim by directing the State to repair the damage done by its officers to the fundamental rights of the citizens notwithstanding the right of a citizen to a remedy by way of a civil suit or criminal proceedings. But before granting the relief it must be established that there was an infringement of the fundamental right of the citizen and once the same is established citizen complaining such violation of the fundamental right under Article 21 of the Constitution cannot be denied to the relief under the public law by the Courts exercising the writ jurisdiction. That is the law holding the field. In order to apply the jurisdiction as hereinabove mentioned the learned Single Judge held as follows: "42. In view of the above and relying the case of Sube Singh (Supra) this Court is of that since the accident occurred due to negligence of the respondent and for lack of proper care and operating the Helicopter in Arunachal Pradesh the writ petition under Article 226 of the Constitution of India is maintainable. The legal heirs and successors of deceased passengers are entitled to get compensation under Rule 25 of Carriage and Air Act, 1972 more than the limit prescribed under Rule 22(1) of the said Act. The Respondents are jointly and severally liable to pay the compensation." This finding is challenged by the appellants/respondents in WA 4(AP)/2015, WA 5(AP)/2015, WA 20(AP)/2016 and WA 39(AP)/2017. 14. The learned Single Judge while arriving to the said conclusion relied the enquiry report of "the Committee of Inquiry into the cause of accident to MI-172 Pawan Hans Helicopter VT-PHF on 19.04.2011 at Tawang" notified by Government of India, Ministry of Civil Aviation through its Public Notification We have perused the findings and conclusion of the committee and the cause of the crash which are reproduced below: "3. Conclusion 3.1. Conclusion 3.1. Findings 3.1.1. The Captain, the Co-pilot, the Flight Engineer and the Cabin Attendant were all duly authorized to undertake the flight. The Captain and the Flight Engineer were flying under Rule 160 and the Co-Pilot held a CHPL. The Cabin Crew had due approval to fly as Cabin Attendant. 3.1.2. The crew was not subjected to pre-flight medical examination. However, based on the information supplied by the Captain and the Flight Engineer, there was no evidence indicating any adverse medical condition with the flight crew. 3.1.3. The flight crew had adequate rest prior to the flight. 3.1.4. Mi-172 VT-PHF had a current Certificate of Airworthiness. The helicopter had come out of a major inspection schedule just two days prior to the accident. 3.1.5. No evidence to indicate any malfunctioning of the engine or airframe or any other helicopter system. All helicopter systems were operating normally till the accident. 3.1.6. As indicated by the DFDR, the helicopter was fully serviceable throughout the flight till the actual accident. This is confirmed from the crew as well as from the CVR recordings. 3.1.7. Weather, navigational and landing aids and communication failure were not the cause of the accident. 3.1.8. There was no evidence of a bird hit on the helicopter. 3.1.9. There was no evidence to indicate any sabotage to have caused the accident. 3.1.10. There was no evidence of any pre-impact failure or in-flight fire. 3.1.11. The CRM in the cockpit was adequate and was not a cause for the accident. 3.1.12. This was a survivable accident. However, people died mainly due to inadequate fire service and non-availability of crash equipment and trained personnel. 3.1.13. The helicopter had been making routine flights from Guwahati to Tawang for more than two years. In all this period, the operator violated Indian Aircraft Rules, 1937, Rule 78(4) which states that operators should not knowingly operate to aerodromes without proper fire fighting facilities. 3.1.14. The Captain was at the controls during landing at the time of accident. 3.1.15. The Co-Pilot had cautioned the Captain to check the height on roll out to finals. 3.1.16. The helicopter was above the specified AUW for that elevation and temperature as per the SOP & Flight Manual. 3.1.17. The helicopter almost came to a hover but with slight forward speed and a very low rate of descent just before the helipad. 3.1.15. The Co-Pilot had cautioned the Captain to check the height on roll out to finals. 3.1.16. The helicopter was above the specified AUW for that elevation and temperature as per the SOP & Flight Manual. 3.1.17. The helicopter almost came to a hover but with slight forward speed and a very low rate of descent just before the helipad. It impacted the vertical face of the helipad. This resulted in damage to undercarriages. The left oleo leg sheared off leading to a slight roll to the left. At the same time, the Captain had reacted by raising the collective to a very high value resulting in a dynamic roll over. 3.1.18. Aircrews were not using the QNH and temperature readings given by Tango (Tawang) Control. 3.1.19. There was inadequate oversight over flying operations at PHHL. Many flight safety violations had gone unchecked and unreported. 3.1.20. Senior management position in respect of pilots were not being filled for long periods of time, leading to this inadequate oversight at PHHL. 3.1.21. The maintenance and servicing records at PHHL were inadequate and suspect. 3.1.22. PHHL had agreed to certain clauses in contracts with the Govt. of A.P. which it was not in a position to fulfill. 3.1.23. The DGCA, as an organization is not able to fulfill its task, because their manpower is extremely inadequate. This has direct bearing on safety and commercial flying activities in the country. 3.1.24. Arunachal Pradesh Aviation Department is not adequately equipped to man the helipads safety. 3.2. Cause of Accident. 3.2.1. Direct cause The accident was caused because the helicopter undershot the helipad by about 27 meters and sunk below the height of the helipad by about a meter. The forward movement and the slow rate of descent caused the left oleo leg to shear off. This gave a slight left bank to the helicopter. Around this time the collective was increased to 13.8° in order to increase the rotor thrust. The slight bank and the increase in the rotor thrust increased the angular momentum of the helicopter to such an extent that the bank increased from 5° to 85° in a second. The rotors hit the beginning of the helipad causing the rotors to break. There being a steep slope adjacent to the helipad, the helicopter slid on this slope and almost turned over on its back after the accident. The rotors hit the beginning of the helipad causing the rotors to break. There being a steep slope adjacent to the helipad, the helicopter slid on this slope and almost turned over on its back after the accident. Subsequently, it caught fire and was totally destroyed. 3.2.2. Contributory Factors to the Accident. Inadequate use of Met resources had contributed to the accident. Aircrew had disregarded the local QNH and temperature given by Tawang Control. The AUW was above the stipulated limit given in the Flight Manual for Category "A" operation." 15. Against the said conclusion the learned counsel for appellants in WA 4(AP)/2015 and WA 5(AP)/2015 submitted that the findings cannot be accepted as there was no scope on the part of the appellants to cross examine the members of the committee nor any other opinion could be placed from a separate set of experts in respect of cause of the crash. But we are unable to accept the said contention as the committee for enquiry was formed after due notification to the public. The members in the committee are all experienced in the field concerned. Not only that, the said committee while coming to the conclusion took necessary assistance from the Director General Civil Aviation (DGCA), Director of Air Worthiness, DGCA, Interstate Aviation Committee, Moscow, National Aerospace Laboratories, National Institute for Catalysis Research, IIT, Chennai, General Manager, Flight Safety, PHHL, Chief Test Pilot (Rotary Wing) HAL etc. The informations were provided by the PHHL officials. Nothing contrary to the findings of the Committee are placed on record by the appellants in the aforesaid appeals. The helicopter service was introduced by the State of Arunachal Pradesh, respondent No. 3. The PHHL, respondents No. 4 entered into a lease agreement to supply the ill fated helicopter and operate as per the aviation rules with respondent No. 3. The DGCA, respondent No. 2 is the authority to maintain the Safety standards in civil aviation sector of the country. Thus we conclude that the finding of the learned Single Judge as to the infringement of fundamental right is proper. 16. The findings of the inquiry committee clearly held that- (i) There was inadequate oversight over flying operations at Pawan Hans Helicopter Limited (PHHL). Many flight safety violations had gone unchecked and unreported, the maintenance and servicing records at PHHL were inadequate and suspect. 16. The findings of the inquiry committee clearly held that- (i) There was inadequate oversight over flying operations at Pawan Hans Helicopter Limited (PHHL). Many flight safety violations had gone unchecked and unreported, the maintenance and servicing records at PHHL were inadequate and suspect. PHHL had agreed to certain clauses in contracts with the Government of AP which it was not in a position to fulfill, (ii) DGCA, as an organization is not able to fulfill its task as their manpower was extremely inadequate and it had a direct bearing on safety and commercial flying activities in the country. (iii) Arunachal Pradesh Aviation Department was not adequately equipped to man the helipads safely. So the respondent nos. 2, DGCA, 3-State of Arunachal Pradesh and 4- Pawan Hans Helicopters Ltd. are liable for the crash as held by the learned Single Judge and due to lack in maintaining the safety standards the passengers died which is established and that caused infringement of the fundamental rights of the victims shortening their life span. 17. The learned Single Judge holding that the accident occurred due to the negligence and for lack of proper care and operation of the helicopter service by the respondents also came to the finding that the petitioners/appellants are entitled to claim compensation under Rule 25 of Carriage by Air Act, 1972. It stipulates that the limits of liability specified in Rule 22 does not apply once it is proved that the damage resulted from an act of omission of the carrier, his agents and servants and with the knowledge that damage would probably result. But pointing out certain deficiencies in the pleadings like non-mentioning of name of legal guardian of minor children of deceased victims, age of the petitioners who are admittedly the heirs of the deceased victims, absence of supporting documents as regards the age and income of deceased etc. and further holding that the writ Court could not decide such issues including the quantum of compensation disposed of the writ petition nos. WP (C) 223 (AP) 2012, WP (C) 107 (AP) 2013 allowing the petitioners/appellants to approach the appropriate forum but only to decide their entitlement to receive compensation etc. and further holding that the writ Court could not decide such issues including the quantum of compensation disposed of the writ petition nos. WP (C) 223 (AP) 2012, WP (C) 107 (AP) 2013 allowing the petitioners/appellants to approach the appropriate forum but only to decide their entitlement to receive compensation etc. The finding is assailed by the writ petitioners/appellants in WA 13 (AP)/2015 on the ground that the learned Single Judge once having decided on the issue of negligence on the part of respondent State, the learned Single Judge should have applied the multiplier rule and decided the quantum of compensation. 18. We have given due consideration to the submissions of the learned Senior Counsel of the petitioners/appellants in WA 13 (AP)/2015. In the present case in hand there is a specific violation/infringement of Article 21 of the Constitution and resultantly the petitioners/appellants are affected both under the law of tort and also for infringement of fundamental right. In Rudul Shah Vs. State of Bihar reported in AIR 1983 SC 1086 , the petitioner complained of prolonged detention in a petition under Article 32 of the Constitution even after his acquittal. The Hon'ble Supreme Court directed the State to pay Rs. 30,000/- as interim measure along with a liberty to the petitioner to bring a suit for recovery of further damages. Objection was raised on the ground that the petitioner should be left entirely to the remedy of a suit and no damages should be allowed even as interim measure. Overruling the said objection it was held that the petitioner could be relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial and the Civil Court may or may not upheld the claim. But where the Court had already found that the prolonged detention in prison after his acquittal was unjustified a decree for damages would have to be passed in that suit. Thus if there is no controversy and it is established about the infringement of fundamental right the writ Court has the jurisdiction to pass the relief of monetary compensation which turns out to be public law remedy. 19. In Smti. Nilabati Behera Vs. Thus if there is no controversy and it is established about the infringement of fundamental right the writ Court has the jurisdiction to pass the relief of monetary compensation which turns out to be public law remedy. 19. In Smti. Nilabati Behera Vs. State of Orissa reported in AIR 1993 SC 1960 referring Rudul Shah (supra) and other decisions the Hon'ble Apex Court distinguished the intent of granting such monetary relief under the public law remedy from the one under private law remedy as follows: "33. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of citizens. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the Court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available in the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court of competent jurisdiction and/or prosecute the offender under the law." 20. In exercise of the writ jurisdiction the monetary relief granted to the citizen is due to breach of public duty by the State of not protecting the fundamental rights of citizens. The nature of monetary relief is in the nature of exemplary damages awarded against the wrongdoer while fixing the liability on the State which is independent of the right available to the aggrieved party to claim compensation in an action based on tort under the private law. There is no strait jacket formula to assess the measure of such exemplary damages. In Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy & Ors. reported in AIR 2012 SC 100 it was held that under Article 226 and 32 of the Constitution of India consideration of various factors in private tort claims are not applicable in compensation for breach of fundamental rights. In the said case due to fire at Uphaar Cinema Theatre in Green Park, South Delhi during the matinee show 59 patrons died and other 103 patrons were injured. Issue as to violation of provisions of the Cinematographic Act, 1952 and the Rules made thereunder, the Delhi Building Regulations and the Electricity Law surfaced as to cause of the said fire and resultant casualties. The said legislations are directly related to the public safety and keeping the same in view the Hon'ble Apex Court took the view as follows: "60. But, in a case, where life and personal liberty have been violated the absence of any statutory provision for compensation in the Statute is of no consequences. Right to life guaranteed under Article 21 of the Constitution of India is the most sacred right preserved and protected under the Constitution, violation of which is always actionable and there is no necessity of statutory provision as such for preserving that right. Article 21 of the Constitution of India has to be read into all public safety statutes, since the prime object of public safety legislation is to protect the individual and to compensate him for the loss suffered. Duty of care expected from State or its officials functioning under the public safety legislation is, therefore, very high compared to the statutory powers and supervision expected from officers functioning under the statutes like Companies Act, Co-operative Societies Act and such similar legislations. Duty of care expected from State or its officials functioning under the public safety legislation is, therefore, very high compared to the statutory powers and supervision expected from officers functioning under the statutes like Companies Act, Co-operative Societies Act and such similar legislations. When we look at the various provisions of the Cinematographic Act, 1952 and the Rules made thereunder the Delhi Building Regulations and the Electricity Laws the duty of care on officials was high and liabilities strict." 21. Thus the State or its officials while dealing with public safety the degree of care expected is of high one. On the face of such expectation one instance is sufficient as observed by the inquiry committee in order to assess the degree of negligence on the part of the respondents in the present case in hand which is reproduced hereinbelow:- "1.6.14 State of Helipad/Level Area required for M-172 as per Flight Manual-The rejected take-off distance varies with elevation of the helipad and temperature. For Tawang, at an elevation of 2500m, for a temperature of 16°C (as obtaining at the time of accident), the rejected take-off distance for an All Up Weight (AUW) of 10.2 tons is 270m. This distance is derived from Fig 4.2 A given in the Mi-172 Flight Manual. The entire table top area inclusive of the helipad would be less than 100m. Therefore, the available distance at Tawang helipad does not meet the safety requirement of a rejected takeoff." 22. The fact of negligence is far more reinforced if the findings of the inquiry committee are looked into as hereinabove stated. Amongst others it was opined that the accident was a survivable one. People died mainly due to inadequate fire services and non-availability of crash equipment and trained personnel. The said deficiency violates Indian Aircraft Rules, 1937, Rule 78 (4) which stipulates that operators should not knowingly operate to aerodromes without proper fire fighting facilities. 23. But it is a fact that the helicopter had been making routine flights from Guwahati to Tawang for more than two years prior to the crash which shows that the operators were operating the helicopter in utter disregard to the safety rules as prescribed both under the Flight Manual of the ill fated helicopter M-172 and Indian Aircraft Rules, 1937. But it is a fact that the helicopter had been making routine flights from Guwahati to Tawang for more than two years prior to the crash which shows that the operators were operating the helicopter in utter disregard to the safety rules as prescribed both under the Flight Manual of the ill fated helicopter M-172 and Indian Aircraft Rules, 1937. The act of violation of safety rules in our considered opinion was intentional inasmuch as no prudent person would accept the fact that the operators/respondents were unaware of such deficiencies pointed out by the inquiry committee. 24. The State of Arunachal Pradesh through its Commissioner (Civil Aviation) as the Lessee hired one MI-172 Twin Engine Large Heavy Duty Transport (26 seater) helicopter for "passenger services" between Guwahati- Tawang. The Lessor, Pawan Hans Helicopters Ltd. (A Government of India Enterprise), agreed to operate the said helicopter complying with the terms of All India Aviation Regulatory. Both the parties entered into Deed of WET LEASE Agreement dated 5.2.2009. The reference of the agreement is made in order to show the liability undertaken by the signatories of the agreement for a safe journey of the passengers who are the citizens while operating the helicopter in the said route. With the said intent the helipad was identified and started operation of the flight. The said specified helipad was used at Tawang for operation of the "Passenger services" permanently. So it cannot be held that the operators were unaware of the deficiency in the dimension of the helipad as pointed out by the enquiry committee. 25. The respondent no. 2, Director General Civil Aviation in the affidavit-in-opposition refuting the shortcomings as pointed out by the inquiry committee replied that the helicopter landing sites under the existing rules are not being licensed and covered under the provision of sub-rule 4 of Rule 78. The explanation forthcoming is that as helicopter is a versatile machine which could be provided for transportation without requiring an elaborate infrastructure like airport/airship, so helicopter landing area and facilities are required to be ensured by the helicopter operation for safety depending on the quantum of operation. So minimum safety requirement for helicopter landing area and helicopter operation had been laid down under various civil aviation requirements. Surprisingly, the minimum safety requirement is not mentioned in the affidavit resulting presumption adverse to the interest of the respondents. So minimum safety requirement for helicopter landing area and helicopter operation had been laid down under various civil aviation requirements. Surprisingly, the minimum safety requirement is not mentioned in the affidavit resulting presumption adverse to the interest of the respondents. Moreover, the helicopter was used for civilian purpose and as such safety factors are vital which none can deny. 26. From the aforesaid discussion we are in agreement with the finding of the learned Single Judge that the respondents are jointly and severally liable for the failure in maintaining the safety standards while operating the helicopter for passenger services. 27. In Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy (supra) the Hon'ble Apex Court held that a Constitutional Court can award monetary compensation against State and its officials for its failure to safeguard fundamental rights of citizens but there is no system or method to measure the damages caused in such situations. The yardsticks normally adopted for determining the compensation payable in a private tort claim like loss of earnings, impairment of future earning capacity, medical expenses are not as such applicable when the constitutional Court determines the compensation in cases where there is violation of fundamental rights guaranteed to the citizens. No doubt legal liability in damages is a remedy arising out of private law action in tort which consumes time and expensive. Constitutional Courts shall invoke its jurisdiction only in extraordinary circumstances when serious injury has been caused due to violation of fundamental rights more specifically under Article 21 of the Constitution and in such circumstances the Court can invoke its own method depending upon the facts and circumstances of each case. From the said discussion we are of considered opinion that the learned Single Judge ought to have decided the compensation as the monetary amends for the established infringement of the fundamental rights of the victims in the helicopter crash. 28. Considering the aforesaid conclusion, the WA 13 (AP)/2015 is required to be remanded back to the learned Single Judge for a decision on the compensation as the monetary amends for violation of the fundamental right. The writ petitions were filed in the year 2012 and 2013 and these appeals are pending since the year 2015. 28. Considering the aforesaid conclusion, the WA 13 (AP)/2015 is required to be remanded back to the learned Single Judge for a decision on the compensation as the monetary amends for violation of the fundamental right. The writ petitions were filed in the year 2012 and 2013 and these appeals are pending since the year 2015. Under such circumstances, borrowing the spirit of Order XLI Rule 33 of the Code of Civil Procedure, 1908 which prescribes the power of Court of Appeal authorizing the Appellate Court to pass any order which ought to have been passed, we accordingly decide to dispose of this appeal. 29. The negligence on the part of the respondents as hereinabove referred is in respect of public safety rules which in our considered opinion resulted in serious injury due to infringement of fundamental rights. The negligence itself amounts to misconduct on the part of the officials of the respondent authorities/State. The compensation, from our point of view is not only an endeavour to compensate the heirs of the victims but also to deter future constitutional misconduct without proper explanation. In the present case in hand, except denial of the findings by the inquiry committee there is no explanation at all as to why the crash took place and the fire could not be doused while the helicopter landed. 30. The findings of the enquiry committee is relevant, which opined that the accident was a survivable one but people died mainly due to inadequate fire services and non availability of crash equipments and trained personnel. Safety rules are prescribed on the basis of safety engineering which means the inspection and study of potential dangerous conditions. Indian Aircraft Rules 1937, Rule 78(4) made it mandatory that operators should not knowingly operate to aerodromes without proper fire fighting facilities. Thus fire hazard is a known potential danger while operating the helicopter service by the respondents. But knowingly fully well the said deficiency, the respondents No. 3 and 4 were operating the helicopter service at Tawang and that too under the very nose of the DGCA, respondent No. 2. The passengers were unaware of such deficiency and boarded the ill fated helicopter on the bonafide belief that the journey would be a safe one. The fire in the helicopter did not catch while it was airborne but after landing which could not be doused due to inadequate fire services. The passengers were unaware of such deficiency and boarded the ill fated helicopter on the bonafide belief that the journey would be a safe one. The fire in the helicopter did not catch while it was airborne but after landing which could not be doused due to inadequate fire services. The operators were not new rather operating the said helicopter service since long, prior to the incident and they were aware about such inadequacy. The respondents No. 3 and 4 were allowed to operate in clear violation of Rule 78 (4) of the Indian Aircraft Rules, 1937 by the DGCA, respondent No. 3 which is a clear breach of safety rules and failure of the duty of care expected from the State or its officials functioning under the public safety legislation is very high as held by the Apex Court in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (Supra). 31. The passenger victims while boarding the helicopter on the ill fated day were not aware of such deficiency on the part of the service providers nor an inkling in their minds that their respective individual right to live, a Constitutional right under Article 21 of the Constitution were going to be curtailed due to negligence of the respondents who were in fact, respondents for operating a safe passenger helicopter service. If such trend of negligence goes on unabated the same would amount violation of civil liberties of the citizens and as such we are constrained to impose an exemplary compensation upon the respondents of Rs. 45,00,000/- (Rupees forty five lacs) to be paid against each victim whose legal heirs are before us filing writ petitions, to be deposited jointly in the Registry of this Court by the Director General of Civil Aviation, New Delhi, respondent no. 2, State of Arunachal Pradesh through its Secretary, Civil Aviation, respondent no. 3 and the Pawan Hans Helicopters Ltd., respondent no. 4 within a period of 45 days from the date of receipt of the copy of this order. The Registry on receipt of the amount shall verify strictly the nature of relation of the petitioners with the deceased victims Lt. (Dr.) Nawang Tomden, Lt. Wrishi Bothra and Lt. 3 and the Pawan Hans Helicopters Ltd., respondent no. 4 within a period of 45 days from the date of receipt of the copy of this order. The Registry on receipt of the amount shall verify strictly the nature of relation of the petitioners with the deceased victims Lt. (Dr.) Nawang Tomden, Lt. Wrishi Bothra and Lt. Amit Sarawgi and only on the satisfaction of the Registry shall allow the petitioners in WP (C) No. 223 (AP) 2012 and WP (C) No. 107 (AP) 2013 to withdraw the same submitting respective indemnity bonds. Needless to say the writ petitioners in WP (C) 223 (AP) 212 and WP (C) 107 (AP) 2013 may approach the proper forum under the private law for claiming compensation keeping in view the finding of the learned Single Judge and upheld by this Court that the petitioners/appellants are entitled to be compensated under Rule 25 of the Schedule of Carriage by Air Act, 1972. 32. Accordingly WA Nos. 4(AP) 2015, 5 (AP) 2015, 20 (AP) 2016, 39 (AP) 2017 are dismissed without costs and WA 13 (AP) 2015 is allowed to the extent hereinabove stated.