1.       Heard Ms. Maninder Acharya, Senior Advocate assisted by Mr. Om Prakash, Advocate for the complainants and Mr. Zubin Behramkamdin, Sr. Advocate, assisted by Ms. R.H. Khan, Advocate, for the opposite party.

2.       Prem Lata Sanghi and her three children have filed above complaint for directing the opposite party to pay (a) an amount equivalent to 100000/- Special Drawings Rights, as strict no fault liability, under Montreal Convention read with Regulation (EC No.889 of 2002 dated 13.05.2002) passed by European Parliament and Council of European; (b) an amount of Rs.7.5/- crores as compensation towards loss earning; (c) Rs.5/- crores as compensation for mental pain and agony caused to the complainants due to sudden demise of Mr. G.L. Sanghi; (d) Rs.10/- crores as punitive damages; (e) Rs.5/- lacs towards expenses incurred for bringing the remains of Mr. G.L. Sanghi to Delhi; (f) refund the unused business class ticket from Frankfurt to Delhi of Mr. G.L. Sanghi; and (g) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.       The complainants stated as follows:-

(a)     Mr. G.L. Sanghi was a reputed Senior Advocate, based in Delhi. At the time of his accident, he was the immediate past President of Law Asia, an International Law Organisation of Lawyers of Asia and the pacific, with its Headquarter in the State of Queensland, Australia. He had been President of Indian Association of Lawyers, President of NGO called SEARCH, Vice Chairman of NGO called Heart Care Foundation of India. He enjoyed perfect health during his lifetime and had no complaint of irregular blood pressure, blood sugar or related complications.  He had been regular Yoga exponent for last 40 years. He was a frequent overseas traveller. He used to take Mediclaim Insurance Policies and for that purpose he had to go for regular medical check-up from recognised doctors/labs in which no deficiency or ailment was ever diagnosed. The mother Mr. G.L. Sanghi survived till the age of 82 years and his father passed away on 08.04.2006 in the age of 99 years.

(b)     Complainant-1 is the wife, complainants-2 & 3 are daughters and complainant-4 is the son of Mr. G.L. Sanghi. Complainant-4 is settled in Pleasanton, USA, where he was blessed with a son on 27.10.2005. Mr. G.L. Sanghi and his wife planned a trip to Pleasanton, USA during winter vacation of Supreme Court of India in the year 2005. Mr. G. L. Sanghi and his wife went San Francisco, USA on 20.12.2005, by Lufthansa German Airlines. On the way back to Delhi, he was traveling alone as his wife stayed in USA to spend some more time with newly born grandson. Mr. G.L. Sanghi booked his return ticket for 05.01.2006 in the business class in flight LH 455, operated by Deutsche Lufthansa Aktiengesellschaft (the opposite party) from San Francisco to Frankfurt, from where, he had to take connecting flight to New Delhi in the night of 06.01.2006.

(c)     Mr. G. L. Sanghi boarded in the flight LH 455 on 05.01.2006 at 14:15 hours (PST i.e. 22:00 GMT) in a perfect health condition and was allotted seat No.15K. Rashi (wife of complainant-4) received a telephonic call from Winnipeg Police Department, Canada and Chief Medical Officer, Winnipeg, Canada between 20.00 to 21.00 hours (San Francisco time), on 05.01.2006 informing her about the demise of Mr. G.L. Sanghi, while on board of flight LH 455 and that the said flight had been diverted to Winnipeg, Canada where his remains had been offloaded from the aircraft. Complainant-4 and Dr. V.B. Sanghi, who was settled in Detroit Michigan USA (son and younger brother respectively of Mr. G.L. Sanghi) rushed to Winnipeg, Canada. With the help of Ministry of Foreign Affairs, India, High Commission in Toronto, Indian community settled in Winnipeg, Police Department and Chief Medical Officer, Winnipeg, the formalities of post-mortem/autopsy and death certificate etc. were completed and the dead body was brought from Winnipeg to Toronto and then from Toronto to New Delhi by Air Canada Flight No.878 reaching on 08.01.2006 at 21:50 hours. As complainant-4 could not get the booking of aircraft from Toronto to New Delhi, he travelled from Toronto to New Jersey by Air Canada Flight No. CO 2079 and then by Continental Airways Flight No.CO82 from New York to New Delhi, reaching on 08.01.2006 at 21:15 hours. Cremation was done on 09.01.2006 after noon.

(d)     The opposite party left the dead body unattended at Winnipeg and not even an officer was assigned the duty to stay with the dead body. After 13 days mourning period was over, Vipin Sanghi, elder son of the deceased, vide communication dated 20.01.2006 sought following information from the opposite party:- (i) Did Mr. G.L. Sanghi make any complaint regarding his not feeling well to any of the flight stewards, and if so, what was it, and at what time was it made? (ii) Did he ask for any medication of any kind?  (iii) Was any such medication provided? (iv) Did Mr. G.L. Sanghi say anything to the flight steward, whether of a personal nature or otherwise? (v) Contract details i.e. the name, address and phone number of the crew persons and the passengers on the flight (including the passengers of Indian origin) i.e. complete flight manifest; (vi) Did he appear to be aware of the fact that his end was near? Within how much time of his feeling unwell, the assistance of a doctor was sought? (vii) Within how much time of his feeling unwell, the doctor attended to Mr. G.L. Sanghi? (viii) Was any medical help available on the flight? (ix) What was the nature of treatment given to Mr. G.L. Sanghi by the doctor on board? (x) When did the pilot decide to divert the flight to Winnipeg? (xi) Why it was diverted to Winnipeg and not to some other bigger International Airport? (xii) What time did the flight land at Winnipeg? (xiii) What was the report filed by the crew in relation to Mr. G.L. Sanghi with the authorities at Winnipeg? (xiv) What was responsibility of Lufthansa for safe transportation of its passenger? (xv) What was the nature of insurance cover provided to a business class passenger in the flight? If Mr. G.L. Sanghi was insured, please provide its details and also forward the requisite forms, if any, in which the claim has to be lodged. (xvi) Why Lufthansa has not cared to inform any of the relatives of Mr. G.L. Sanghi about his demise, either at the point of embarkation i.e. SFO, USA or in New Delhi, India till date and about the details of what exactly transpired on the flight that led to sudden and unexpected death of Mr. G.L. Sanghi, who did not have any previous history of heart ailment. (xvii) Was Lufthansa responsible to transport the dead body up to Delhi?.

(e)     The opposite party, vide email dated 24.01.2006, asked for a clear copy of the communication dated 20.01.2006. As such a soft copy of the communication dated 20.01.2006 was sent, vide email dated 27.01.2006 and again a reminder dated 05.02.2006. The complainants received reply of the opposite party on 07.02.2006 stating that approximately 1:30 GMT (Greenwitch Mean Time) i.e. 2 hours 30 minutes after flying, Mr. G.L. Sanghi had collapsed in front of the washroom and started vomiting and was breathless. Then an announcement was made immediately on the flight to which a physician and a paramedic responded. From 1:45 GMT, they tried to reanimate him and advised the Flight Captain to make emergency landing at the nearest airport. The decision to dump fuel, which was necessary before emergency landing was taken at 1:58 GMT but before the plane could land, Mr. G.L. Sanghi passed away at 2:15 GMT. The plane landed at Winnipeg, Canada at 2:45 GMT and the dead body was offloaded there. The opposite party denied that they had any duty to inform the family about the death in the circumstances. They also denied their liability to pay any compensation. The opposite party refused to provide the details of the passenger and crew on board, taking defence of German Privacy Law. The complainants sent another communication dated 21.02.2006 to the opposite party seeking disclosure of the information sought earlier. The opposite party, vide communication dated 28.03.2006 refused to supply any document relating to the incident and medical reports stating that those may be obtained from Canadian authorities. However, the opposite party gave an evasive reply on 19.04.2006. Despite repeated requests dated 16.03.2006, 20.03.2006 and 06.4.2006, the opposite party did not furnish the information about the name and address of the crew members on the board, details of co-passengers, food supplied to the deceased and medical help provided to him. The complainants, vide communication dated 01.05.2006, reminded the opposite party about the contradictory stand taken by it and its liability under Montreal Convention and E.C. Regulations.

(f)      Dr. Jason Stewart, the doctor on board left his telephonic contacts and details with the medical authorities in Winnipeg. Chief Medical Officer, Winnipeg, vide communication dated 10.03.2006, informed Dr. Vinod B. Sanghi that Dr. Jason Stewart and paramedic Mr. Gerd Verscher had attended Mr. G.L. Sanghi on the board. The said authority provided the details of Dr. Jason Stewart to the complainants. Dr. K.K. Aggarwal (husband of complainant-3) made certain queries from Dr. Jason Stewart vide email dated 17.01.2006, which was replied by him. When more details were asked, Dr. Jason Stewart informed that approximately 3 hours into flight LH 455, immediately after dinner, Mr. Sanghi experienced sudden onset of nausea and vomiting. He was promptly escorted to the galley by flight staff. Medical assistance was requested over the speaker system. I responded to assess the situation and see if I could lend medical attention. I quickly began to gather medical history. Mr. Sanghi said he was asthmatic. He denied heart disease, diabetes, neurological disease etc. I immediately instructed the staff to retrieve all medical equipment on the board and pharmaceuticals. At this point Mr. Sanghi was experiencing cold sweats, mild chest pain and breathlessness. I asked if he recognized the symptoms to be an asthma attack but this he denied. Pulse was stable and regular around 80 bpm. Blood pressure also stable at 130 systolic. I then instructed flight staff to lay-out medications on the board. Requested first nitrate. Before any medicine could be administered, Mr. Sanghi lost consciousness suddenly. No palpable carotid pulse. No sign of spontaneous respiration. Deemed cardiac arrest. He immediately initiated CPR. Flight staff hooked up the on board defibrillator upon my instruction. I quickly sat on IV line and connected 500ml isotonic NaCI. The defibrillator showed a nodal rhythm in bradycardia but more likely EMD. Atropine 3mg and Adrenaline 1 mg IV were administered. After about 5 minutes a weak pulse returned but still no spontaneous breathing. AED monitor showed a supraventricular Brady arrhythmia. However within several minutes the pulse became lower and weaker until no pulse could be felt. The monitor displayed an EMD. No more atropine was available. I could not cardiac pace with the automatic defibrillator. Adrenaline was thereafter administered every third minute during CPR. Respiration using ambu-bag. I prepared to intubate but no air tube could be located. As soon as Mr. Sanghi lost consciousness, I requested that the plane be landed. The caption honoured my assessment of the situation and proceeded to land jumbo jet. To my dismay, I was unaware the landing would take over an hour. Active CPR was performed for 35 minutes without return of circulation or respiration. AED monitor showed EMD. Pupils dilated and unresponsive to light. Brain damage due to anoxia was certain at this point. I believed that continued CPR was meaningless and therefore called the death of Mr. Sanghi at 6:16 pm Pacific Standard Time. The plane landed in Winnipeg Canada approximately 40 minutes after his death. Local Law enforcement, healthcare professionals and coroner then took over.       

(g)     Along with communication dated 10.03.2006, CMO, Winnipeg also sent the autopsy report and medical examination report wherein it was mentioned that Mr. G.L. Sanghi had become ill while on flight from San Francisco to Frankfurt. He complained of nausea, had broken into a cold sweats, vomited and suffered a cardiac arrest.

(h)     The opposite party committed deficiency in service as follows:-

(i)      As per communication dated 07.02.2006, Mr. G.L. Sanghi collapsed near washroom after 2½ hours of the flight time. If 2½ hours time is calculated from 22.00 GMT, it would place the event at 00.30 GMT on 06.01.2006. This represents one hour’s discrepancy in the time of attributed to the onset of first symptoms. According to the opposite party, blood pressure of Mr. G.L. Sanghi collapsed at 1:45 GMT (i.e. one hour and 15 minutes after showing first symptoms of his illness) and he passed away at 02:15 GMT. There was a gap of 1 hour and 45 minutes between the time of first symptom and the death. The decision for emergency landing was taken at 1:58 GMT i.e. after nearly 1½ hours of onset of symptoms. In the communication dated 07.02.2006, the opposite party also intimated that since fuel had to be dumped, emergency landing at Winnipeg was necessary to refuel the plane. The plane was not landed on any international airport, having better facilities. The decision for emergency landing was taken one hour after the first symptom. As per clause 8.9.1.15.3 of the Flight Manual, the opposite party was not supposed to offload the dead-body at Winnipeg, Canada but at the next LH Station and the next LH Station, as per flight manual was Frankfurt. Further, the disembarking of the dead-body was to be made in presence of Police and Physician. Thus valuable time crucial to save life was lost and dead body was offloaded at a place violating the Flight Manual.

(ii)      The complainants came to know that on 06.01.2006 Mr. G.L. Sanghi had collapsed near the toilet door. The opposite party took almost 45 minutes to one hour to make an announcement and arrange the doctor to attend the patient after his collapsing and during this time he remained unattended. The AED Monitor available on the flight was an old model and was not equipped with the pacemaker. Lifesaving medicines like atropine were also not available in adequate quantity. Dr. Jason Stewart who attended the patient on board informed that since Endo Tracheal Tube was missing from the medical kit, he could not intubate the patient for respiration till his death at 02:15 GMT. Dr. Jason Stewart was not properly briefed by the opposite party about the condition of the patient that he had fallen near the toilet door. Due to negligence of the opposite party, Mr. G.L. Sanghi had passed away and his dead-body was offloaded at Winnipeg, Canada.

(iii)     In the communication dated 07.02.2006, the opposite party also relied on “Convention for Unification of Certain Rules for International Carriage by Air Montreal, 28.05.1999”. Article 17 of Montreal Contention provides that the carrier is liable for the damage sustained in case of death or bodily injury of a passenger on board in the aircraft. Article 21 deals with compensation of 100000 Special Drawing Right (SDR’s) in case of death or bodily injury and beyond that would be payable unless the carrier proves that such damage was not due to the negligence or wrongful act of the carrier or its servants or agents. Legal Regulation is pasted on the official website of the European Union under which carriers of European Union are required to take such an insurance cover for their passenger under which minimum insurance cover of 250000 SDR’s is maintained for passengers.

(iv)     The opposite party offloaded the dead body in Winnipeg, Canada and the complainants were totally unacquainted. The complainants had to arrange themselves to bring the dead-body from Winnipeg to New Delhi while as per own flight manual, the opposite party was under obligation to bring the dead body to New Delhi with due respect and dignity, instead of leaving the body unattended at Winnipeg, due to which the cremation was delayed by four days and the grieved family were in great inconvenience.

(i)      Late Mr. G.L. Sanghi was a reputed Senior Advocate having an authority in various branches of law including Constitutional Law, Arbitration Law, Company Law, Intellectual Property Law etc. His annual income was more than Rs.1.5 crores in the financial years 2003-04, 2004-05 and 2005-06. At the time of his death, he was immediate past President of Law Asia, an International Organization of Lawyers of Asia and Pacific having its headquarters in Australia. He had also been the President of Indian Association of Lawyers and also the President of an NGO namely “SEARCH” till his death. He was also Vice Chairman of another NGO “Heart Care Foundation of India.” Late G.L. Sanghi was such a reputed Senior Advocate that in his memory, a full court reference was read out in the Supreme Court as well as Delhi High Court. He was also a yoga expert for the last 40 years. He was healthy and had no complaint of regular blood pressure or blood sugar or such any complaint. Mr. Sanghi had also obtained medi-claim policies and such policies are issued after satisfaction of the insurance company about the medical condition of the insured. Looking to the length of life of the parents of Mr. G.L. Sanghi, he could have active and productive life of more than 15 years.

(j)      Considerable delay in summoning the doctor, insufficient amount of life saving medicines, not maintaining proper medical kit, delay in taking emergency landing, not landing the plane on an international airport amount to an accident in flight. The opposite party is under strict liability to pay the damages. Therefore, the complainants filed the complaint on 27.04.2007. 

4.       The opposite party filed written version on 05.01.2006 and contested the complaint. The opposite party stated that Mr. G.L. Sanghi (the deceased) boarded Flight No. LH 455 at seat No. 15-K, scheduled to depart at 22:15 hours GMT on 05.01.2006 from San Francisco to Frankfurt and thereafter to New Delhi. The flight was off blocked at 22:14 GMT. The flight remained on the ground for 21 minutes for taxiing. Flight level was reached a few minutes thereafter. At about 1:30 hours GMT on 06.01.2006 i.e. after two and half of hours of actual flight time, the deceased walked up to door R2 and collapsed near the toilet door where he vomited. The flight staff promptly escorted the deceased to the gallery and immediately made announcement that if any doctor was on the flight, requesting him for assistance. Dr. Jason Stewart and a paramedic Mr. Gerd Verscher immediately responded to the announcement and attended Mr. G.L. Sanghi. Dr. Jason Stewart asked certain questions from the deceased in order to gather his medical history. Dr. Jason Stewart also asked the airline staff to lay out, on board medication, which were provided. But before any medicine could be administered, the deceased lost consciousness. Then Dr. Stewart requested to land the plane. The Captain honoured Dr. Stewart’s assessment and immediately proceeded to land the plane. As the plane with high load fuel cannot be landed, the pilot started dumping fuel from 1:58 hours GMT. However, before reaching maximum landing weight i.e. 40 minutes before the plane could land, Dr. Stewart told the captain that the Mr. G.L. Sanghi had passed away. Dr. Stewart has corroborated this fact in his email dated 09.02.2006 (Annexure A-10 to the complaint). As the fuel had already been dumped for the purpose of landing and it was not possible to continue the onward flight to Frankfurt with the remaining fuel, the Captain had already informed the Air Traffic Controller at Winnipeg Airport about the medical emergency and diversion was also announced to the passengers, the Captain proceeded to land at Winnipeg. The flight staff informed the Winnipeg Airport authorities about the demise of Mr. G.L. Sanghi. Winnipeg Airport Data Centre, in turn, informed the office of Chief Medical Examiner, who had deputed an investigator to attend the airport. Winnipeg Fire Paramedic Service personnel had also been dispatched to the airport. The investigator talked to the doctor and paramedic who attended the patient in the light. Flight Captain was informed that as per Manitoba’s Fatality Inquiries Act, when a medical examiner or investigator learns of a death and the dead body is in the province of Manitoba, the examiner or investigator is required to take charge of the dead-body, inform the police and conduct an enquiry with regard to the cause of death, manner of death, the circumstances of the death and whether the death warrants an investigation. The investigator consulted with the medical examiner and opined that an investigation was required. Accordingly, dead-body was handed over to the medical officials in accordance with law of Manitoba. This fact is also corroborated by the letter dated 20.06.2006 sent by Chief Medical Examiner to Dr. Vinod B. Sanghi (Annexure-A22 of complaint). In the flight, the deceased was given following medical assistance (i) a defibrillator was attached and resuscitation was started by the doctor; (ii) oxygen was given by the paramedic; (iii) the doctor gave cardiac massage; (iv) the tubes and intubation equipment was used to suck out from the mouth of the deceased, the contents of the stomach that the deceased had thrown up; (v) the doctor pricked an opening in the right arm of the deceased and commenced injecting saline and atropine; (vi) the doctor made his resuscitation attempts for about 35 minutes but unfortunately failed to save the life of the deceased and declared him dead after 35 minutes. The autopsy report of Manitoba authorities disclosed that the deceased died a natural death i.e. focal severe atheromatous coronary artery and not due to any accident or negligence. During the entire period from diversion to Winnipeg airport till take off for Frankfurt, the flight staff had to handle the remaining 364 unsatisfied passengers and it was not possible for the flight to wait for all formalities to be completed by the police and the medical officer at Winnipeg airport. The opposite party could not bring the body back as it does not serve Winnipeg and the body was to be brought back by the airlines, who serve Winnipeg. The plane finally took off for Frankfurt at 5:29 GMT and was air-borne at 6:15 GMT on 06.01.2006. The dead-body could be released after completing the formalities of post-mortem, autopsy, embalming of issuance of death certificate which required considerable time. Mr. Uwe Schulz, the Station Manager was in contact of the family members of the deceased. He called the son of the deceased, in morning of 06.01.2006, who was already on way to Winnipeg as by that time he was informed by Winnipeg authorities. Mr. Uwe Schulz coordinated with logistics, Air Canada for transferring the dead body from Winnipeg to India. He also assisted the deceased’s wife and sons to travel from San Francisco to India. The opposite party follows the requirements of Joint Aviation Requirements Operations (JAR OPS), which were adopted by a Group of European States and incorporated, under German Law and are binding. The opposite party carries emergency medical kit containing the items mentioned therein, first aid oxygen and first aid kits with items mentioned therein. In the JAR OPS, no specific quantity of any particular medicine is given. It is denied that indo-tracheal tube was not available in the flight. In fact, it was available and wrapped in the green cloth which was part of standard equipment available in the medical kit. Endo tracheal tube was not used by the doctor and the deceased was administered oxygen by use of intubation equipment. Endo tracheal tube goes deeper into patient’s throat and is easier to use. However, it is the decision of the doctor to administer oxygen either through indo tracheal tube or through intubation equipment. AED monitor with defibrillator was in working condition as per requirements and it was also used on the deceased. Pacemakers are not prescribed and not carried on commercial flights as the layman cannot use the same. Atropine and Adrenaline (Suprarenin) were available on the aircraft in sufficient quantity and those were also used by the doctor.

The opposite party regret the sad demise of Mr. G.L. Sanghi but denies that there was any negligence and/or deficiency in service on the part of the opposite party. The opposite party denies that the remains of the deceased were treated without respect and/or dignity and the allegations in this respect, are baseless and without any evidence. The allegation of the complainants that the opposite party did not help them, is incorrect. Mr. Uwe Schulz, Station Manager of the opposite party was in the contact of the family of the deceased, made a telephonic call to the son of the deceased. Mr. Uwe Schulz also coordinated with logistics, Air Canada for transferring the dead body from Winnipeg to India and assisted the deceased’s wife and sons to travel from San Francisco to India. The opposite party denied that the deceased was boarded the flight in a perfectly healthy state. The complainants have not produced any evidence to prove that the deceased was boarded the flight in a perfect healthy condition. As Montreal Convention is not applicable in the present case, the opposite party is not liable to pay compensation under the provisions of Montreal Convention. The flight manual (annexure-A13 to the complaint) of the opposite party states that “information to the relatives of the deceased shall be given by the police only.” The complainants also made vague allegation that the opposite party took 45 minutes to one hour in making announcement for medical assistance. In fact, the announcement was made immediately and the deceased was immediately attended by Dr. Jason Stewart and paramedic Mr. Gerd Verscher. The allegation that the medicine Atropine and Adrenaline were not available in the flight is false. It is denied that the opposite party did not inform to Dr. Jason Stewart (doctor on board) that Mr. Sanghi collapsed near the toilet door. It is also wrong that the opposite party refused to disclose any information to the complainants. The opposite party explained to the complainants that the details of the passengers could not be disclosed as per German Data Protection Law. The opposite party advised its crew department of appeal to supply information sought by the complainants. The opposite party also contacted the passenger seated next to the deceased to speak with the complainants but the request was declined by the passenger. The paramedic who attended the patient on board was ready to speak to the complainants and his name and address was supplied to the complainants. On 02.03.2006, the complainants made an announcement in a newspaper “India-West”, Francisco requesting the passengers of the flight to contact them but it appears that none of the passengers had contacted to the complainants. The deceased had ordered vegetarian meal which was served to him. The opposite party is unaware as to what food was consumed by the deceased. As per autopsy report, stomach contained 120 cc brownish fluid, intestinal contents were unremarkable and mucosa showed no ulceration or erosion.

Regarding medi-claim policy, it is stated that insurance policies are also subject to exclusion clauses relating to heart and circulatory disorders and the opposite party would deal with the same as and when produced by the complainants. The complainants wrongly alleged that the flight departed from San Francisco at about 14:00 PST (22:00 GMT) on 05.01.2006 and there is one hour discrepancy in the time attributed to the first symptom of the deceased. The complainants are trying to confuse by taking scheduled departure time as if the flight time means actual flying time. The flight was off blocks at 22:14 GMT and had to taxi on the ground for 21 minutes and started from the ground at 22:23 GMT. Flight level was reached about 25 minutes later. Therefore, the time mentioned in the opposite party’s letter dated 07.02.2006 is 1:30 GMT (after two hours flight time) sent to the complainants. Dr. Stewart has also mentioned “approximately 3 hours into flight LH 455”, in his email to the complainants. This email to Dr. Agarwal also shows that prompt medical attention was given to the deceased.

The opposite party informed the complainants vide letter dated 07.02.2006 that as part contract of carriage could not be fulfilled, the complainants were entitled to partial refund of the flight ticket on furnishing the flight ticket and unused boarding pass for the connecting flight to Delhi. As the complainants failed to follow the procedure for refund of the ticket amount within six months as per General Conditions of Carriage, now they are not entitled for the same. As a gesture of goodwill, the opposite party, vide letter dated 27.06.2006 offered the complainants to reimburse the amount incurred in bringing the remains of the deceased to Delhi but the complainants refused to accept the offer.

The right and liabilities of air carriers vis-a-vis their passengers during carriage by air is governed by the provisions of the Carriage by Air Act, 1972 (a statutory ratification by India of the Warsaw Convention as amended by the Hague Protocol) to the exclusion of all other law. Chapter III of the Second Schedule of the said Act headed “Liability of the Carrier” read with Rule 17 contains the provisions for the liability of Air Carrier towards its passengers, whose death or injury was caused on board or in course of embarking or disembarking. Under of the said provisions the carrier is liable for the damage caused to the passenger due to “accident” within the meaning of the said rule. An “accident” means an event external to the passenger himself as opposed to an event caused by or arising out of the passenger’s own internal condition. The opposite party has subscribed to the IATA Inter-carrier Agreement and the Agreement on Measures to Implement the IATA Inter-carrier Agreement. As a result of these, the opposite party has agreed not to avail itself of the defence of limitation of liability as per the Warsaw Convention as amended by the Hague Protocol to the extent of SDR 100000. The effect of this agreement is that the upper limit of the damages is SDR 100000. There is neither any deficiency in service nor concealment of information on the part of the opposite party. Therefore, the complaint is liable to be dismissed. 

5.       The complainants filed the Rejoinder and Affidavits of Evidence of Mrs. Vasudha Rohtagi, Dr. K.K. Aggarwal, Ralf-Peter Illing and Dr. H.K. Chopra and various documents. The opposite party filed the Affidavits of Evidence of Mr. Silke Behringer (Flight Attendant), Prof. Dr. Uwe Stuben (Station Manager), Renate Uhlenberg (Customer Relation Officer), Stefanie Corner (Flight Attendant), Tyler J. Kochanski and various documents. Both the parties have filed their written arguments and argued orally at length.

6.       The counsel for the complainants argued that as per communication dated 07.02.2006, Mr. G.L. Sanghi collapsed near washroom after 2½ hours of the flight time. The flight departed at 22:00 GMT and 2½ hours time would place the event at 00:30 GMT on 06.01.2006. This represents one hour’s discrepancy in the time of attributed to the onset of first symptoms. Even according to the opposite party flight departed at 22:15 GMT then also there was discrepancy of 45 minute. As per letter dated 07.02.2006, Mr. G.L. Sanghi walked to door 2 R  at 1:30 GMT, collapsed at 1:45 GMT and passed away at 02:15 GMT. There was a gap of 45 minutes between the time of first symptom and the death. The decision for emergency landing was taken at 1:58 GMT i.e. after nearly 13 minutes of onset of symptoms. Dr. Jason Stewart was not properly briefed by the opposite party about the condition of the patient that he had fallen near the toilet door. Dr. Jason Stewart in his email has mentioned that he could treat the patient only for 5 minute, which shows that there was inordinate delay in announcement for medical help. The plane was not landed on an international airport, having better facilities. The opposite party in the communication dated 07.02.2006, intimated that since fuel had to be dumped, emergency landing was delayed. As per clause 8.9.1.15.3 of the Flight Manual, the opposite party was not supposed to offload the dead-body at Winnipeg, Canada but at the next LH Station and the next LH Station, as per flight manual was Frankfurt. The disembarking of the dead-body was to be made in presence of Police and Physician. Valuable time crucial to save life was lost and dead body was offloaded violating the Flight Manual. Considerable delay in summoning the doctor, insufficient amount of life saving medicines, not maintaining proper medical kit, not informing the doctor about fall, delay in taking decision for emergency landing, not landing the plane on an international airport having better medical facilities, amount to an accident in flight.

7.       We have considered the arguments of the counsel for the parties and examined the record. On the basis of information as supplied by the opposite party through letter dated 07.02.2006, the complainants argued that the opposite party took more than one hour in announcement for medical assistance after onset of first symptom of Mr. G.L. Sanghi and the doctor was not informed about the fall.

In the letter dated 07.02.2006, the opposite party informed that approximately 1:30 GMT, i.e. 2 ½ hours after flight time, Mr. Sanghi had walked up to door 2R presumably on his way to the washroom and collapsed in front of washroom. He started vomiting and was breathless. A doctor was called immediately and a physician as well as paramedic reported and came to the crew’s help. From 1:45 GMT, when his blood pressure collapsed onward, they were constantly reanimating Mr. Sanghi and did everything possible to save his life. In view of the patient’s critical condition the doctor advised the flight captain to make an emergency landing at the nearest airport. The pilot realized that Winnipeg was the nearest available airport offering medical assistance and prepared for an emergency landing. Since airplane was too heavy to land. At 2:20 GMT, shortly before the maximum landing weight for the plane had been reached, the flight captain was advised that Mr. Sanghi had passed away.

Flight Report Cockpit 2006 01/0392, mentioned that around 2:30 hours after take off (01:25 UTC), we heard that a doctor was called for over the P.A. system. We were told that an around 70 years old man, an Indian National, Mr. Sanghi had an asthma attack. A co-passenger, a cardiologist, working in an emergency unit in a hospital took charge/care of the passenger. Around 01:45 UTC, the cardio vascular system of the passenger collapsed and reanimation was started. At about 01:50, the doctor advised us to land at the nearest airport. In the meantime, while we were some around 100 NM from Churchill (CYYQ. My past experience, which was certified by what a UA pilot said that this YYG could be used as an ATOPS airport but medical help would not be available there Thus SFO Horber and I decided to fly back to CYG Winnipeg airport, which was about 450 NM away. Around 01:58 the fuel jettison began to fall from 76to to 47to to in FL 340 (02:20 UTC), which brought us to a little below MLW during landing. Around 02:20 UTC, shortly before completion of fuel jettison, we were told that the passenger had died at 02:15 UTC. Since an onward flight to Frankfurt with the remaining volume of fuel was not possible, it was decided to fly to Winnipeg for refuelling, landing at 2:45 on Block at 02:55 UTC.        

Dr. Jason Stewart in his letter informed that approximately 3 hours into flight LH 455, immediately after dinner, Mr. Sanghi experienced sudden onset of nausea and vomiting. He was promptly escorted to the galley by flight staff. Medical assistance was requested over the speaker system. I responded to assess the situation and see if I could lend medical attention. I quickly began to gather medical history. Mr. Sanghi said that he was asthmatic. He denied heart disease, diabetes and neurological disease etc. I immediately instructed the staff to retrieve all medical equipment and on-board pharmaceuticals. At this time, Mr. Sanghi was experienced cold seats, mild chest pain and breathlessness. I asked if he recognized the symptoms to be an asthma attack but this he denied. Pulse was stable and regular at around 80 bpm. Blood pressure also stable at 130 systolic. I then instructed flight staff to lay-out on-board medications. Requested first nitrate. Before any medicine could be administered, Mr. Sanghi suddenly lost consciousness. No palpable carotid pulse. No sign of spontaneous respiration. Deemed cardiac arrest. We immediately initiated CPR. Flight staff hooked up the on-board defibrillator upon my instruction. I quickly sat on and IV line and connected 500 ml isotonic NaCI. The defibrillator showed a nodal rhythm in bradycardia but more likely EMD. Atropine 3 mg and Adrenaline 1mg IV were administered. After about 5 minutes, a weak pulse returned but still no spontaneous breathing. AED monitor showed a supraventricular brady arrhythmia. However, within several minutes the pulse became slower and weaker until no pulse could be felt. The monitor displayed an EMD. No more Atropine was available. I could not cardiac pace with the automatic Defibrillator. Adrenaline was thereafter administered every third minutes during CPR. Respiration using ambu-bag. I prepared to intubate but no air-tube could be located. Active CPR was performed for 35 minutes without return of circulation or respiration. AED monitor showed EMD. Pupils dilated and unresponsive to light. Brain damage due to anoxia was certain at this point. I believed that continued CPR was meaningless and therefore called the death of Mr. Sanghi at 6:16 pm Pacific Standard Time. The plane landed in Winnipeg, Canada approximately 40 minutes after his death. Local Law enforcement, healthcare professionals and coroner then took over.

          Silke Behringer, the flight attendant, in his Affidavit of Evidence has stated that he was working at position 1 LA on flight No.455. This means, he was working as an additional flight attendant to the colleague at position 1L. His first contact with the passenger Mr. G.L. Sanghi was when he collapsed in front of 2^nd galley of the toilet. He together with another colleague checked his consciousness, breathing and pulse. While we were doing this, he regained consciousness. They asked him, if he was ill and if he takes any medicines. He answered both questions with no and said he had a feeling of sickness. His colleague stayed with him while he went to fetch rubber gloves to clean up the passenger as he had thrown up. He was not yet back which his colleague asked him to make an announcement for a doctor, which he did immediately. A cardiologist and a former paramedic came immediately and they examined the patient. He immediately fetched the defibrillator. When he returned to the 2^nd galley, they were already trying to resuscitate him. He immediately connected the patient to the defibrillator, which did not recommend giving a shock (automatic message of the defibrillator). The doctor confirmed this. The doctor was pumping his chest and the paramedic was giving him artificial respiration. His colleague had fetched the doctors kit. The patient was intubated and was given injections. There was no break in the resuscitation efforts. Finally the doctor confirmed that resuscitation efforts had to stop because the patient had died.

          Stefanie Corner, the flight attendant, in his Affidavit of Evidence has stated that he was working at position 5L on flight No.455. After first service, a colleague called him to the C class as a passenger had been taken ill. He found him lying in front of the toilet in the galley. He had thrown up. When he spoke him, he said that he was feeling giddy and nauseating. He helped him to get up as his legs gave away and made him sit on the FB seat 2R. The passenger was in position to talk, so he asked him, if there was any health problems and whether he would like to take any medicines. He answered in negative to both the questions and said that he was fully well, only he had this nauseating feeling. He wanted to rest for a few minutes on the FB seat and I went to the toilet in the F-class to clean up. Shortly thereafter a colleague requested with him to go to the passenger as his condition had again deteriorated. A doctor was called for over the PA system and the doctor’s kit and medical kit, oxygen cylinders and the respirator instruments were brought. The doctor tried to listen his breathing and shortly thereafter, the passenger glided to the floor from his seat and lost consciousness. As the passenger had thrown up, I used a suction pump to clear his mouth and also further cleaned his mouth with my hands so that oxygen could be administered. The defibrillator was attached and was started with the resuscitation. The paramedic, who was a passenger began to give him oxygen and the doctor gave him cardiac message. I opened a sealed doctor’s kit and gave the paramedic the tubes and the intubation equipment. The doctors used a braunule (a new indwelling venous catheter which enables the infusion of more than one liquid at a time) in his right arm while I took out the medicines on the instruction of the doctor. Saline was given and the medicine injected. While all this was done, the passenger was in no condition to speak. After about 35 minutes the resuscitation attempts were stalled and the doctor declared the passenger to be dead.

8.       The complainants did not cross-examine of Silke Behringer and Stefanie Corner. Although technically there appears to be discrepancy in respect of actual time, when Mr. G.L. Ganghi showed first symptom but from the letter of Dr. Jason Stewart, Cockpit Flight Report and Affidavits of Silke Behringer and Stefanie Corner, it is proved that after dinner, Mr. G.L. Sanghi was going to toilet and experienced sudden nausea and vomiting and collapsed near 2 GR. The flight attendants immediately attended him, checked his consciousness, breathing and pulse. While they were doing this, Mr. G.L. Ganghi regained consciousness and made to sit on the FB seat 2R. The flight attendants asked him, if he was ill and if he takes any medicines. He answered both questions with no and said he had a feeling of sickness, giddy and nauseating. Medical assistance was requested over the speaker system. Then Dr. Jason Stewart and paramedic Mr. Gerd Verscher responded.  Dr. Jason Stewart assessed the situation of medical attention. Dr. Jason Stewart, himself gathered medical history from Mr. Sanghi, who said that he was asthmatic. He denied heart disease, diabetes and neurological disease etc. As such allegations of delay in noticing Mr. G.L. Ganghi, in fallen position, attending him by the flight attendants, announcing for medical assistance and providing medical assistance are not proved.Even according to email of Dr. Jason Stewart, Mr. G.L. Sanghi was promptly escorted to galley and medical assistance was announced. 

9.       The complainants filed Affidavit of Evidence of Dr. K.K. Aggarwal and Dr. H.K. Chopra, Senior Cardiologist, stating that from email details he had noticed that there was one hour of delay in making announcement for summoning the physician/doctor on board from the time Mr. G.L. Sanghi showed first symptoms of illness. Five minutes before death of the patient, pulse and blood pressure of the patient were normal. Dr. Jason could administer only 3 mg of Atropine to the patient and when he wanted to administer more, it was not available. Dr. Jason could not cardiac pace with the defibrillator as it was not fitted the pace maker. The patient could not be intubated as endotracheal tube could not be located in medical kit.

          Dr. K.K. Aggarwal  and Dr. H.K. Chopra, in their Affidavit of Evidence did not consider the Post Mortem report, which gives a better picture of the patient at that time. He proceeded with the assumption that there was one hour delay in providing medical assistance after first symptom, which has been found to be incorrect as heart attack occurred while talking with Dr. Jason Stewart, who in his letter informed that while he was gathering medical history from Mr. Sanghi, he had experienced cold seats, mild chest pain and breathlessness. The doctor asked if he recognized the symptoms to be an asthma attack but this he denied. Pulse was stable and regular at around 80 bpm. Blood pressure also stable at 130 systolic. The doctor then instructed flight staff to lay-out on-board medications. Requested first nitrate. Before any medicine could be administered, Mr. Sanghi suddenly lost consciousness. No palpable carotid pulse. No sign of spontaneous respiration. Deemed cardiac arrest. He immediately initiated CPR. Flight staff hooked up the on-board defibrillator upon his instruction. He quickly sat on and IV line and connected 500 ml isotonic NaCI. The defibrillator showed a nodal rhythm in bradycardia but more likely EMD. Atropine 3 mg and Adrenaline 1mg IV were administered. After about 5 minutes, a weak pulse returned but still no spontaneous breathing. AED monitor showed a supraventricular bradyarrhythmia. However, within several minutes the pulse became slower and weaker until no pulse could be felt. The monitor displayed an EMD. No more Atropine was available. He could not cardiac pace with the automatic Defibrillator. Adrenaline was thereafter administered every third minutes during CPR. Respiration using ambu-bag. He prepared to intubate but no air-tube could be located. Active CPR was performed for 35 minutes without return of circulation or respiration. AED monitor showed EMD. Pupils dilated and unresponsive to light. Brain damage due to anoxia was certain at this point.

10.     Relevant portion of Post mortem report are as follows:

In the heading of Cardiovascular System- noted that the left anterior descending coronary artery however showed a focal area of severe narrowing in its proximal portion (<75% occlusion) and immediately distal to this a 2 cm segment of bridging was present with the vessel dipping 3 mm into myocardium.

In the heading of Respiratory System- The larynx contained a small amount of aspirated gastric contents. The trachea and bronchi were free of obstruction. The pulmonary arteries contained no thrombi or emoli. The pleural surface of both lungs showed extensive anthracosis. Both lungs were well-aerated and obscured the heart in situ.

In the heading of Microscopic Examination- noted Left anterior descending coronary artery(-1)- Sever artheromatous change with approximately 80% occlusion of the lumen. Lungs- Edema anthracosis and evidence of terminal aspiration. No significant inflammatory changes were present.

Cause of death- Atheromatous coronary artery disease. 

11.     The complainants filed medical literature in which, it has been mentioned that administration of atropine (1mg every three to five minutes) is possibly helpful for Pulseless Electrical Activity, when the rate is slow i.e. absolute bradycardia with a rate <60 beats/min or a relative bradycardia (rate less than expected relative to the underlying condition.

In the present Dr. Jason Steward in his letter noted that Mr. Sanghi suddenly lost consciousness. No palpable carotid pulse. No sign of spontaneous respiration. He immediately initiated CPR. Flight staff hooked up the on-board defibrillator upon my instruction. He quickly sat on and IV line and connected 500 ml isotonic NaCI. The defibrillator showed a nodal rhythm in bradycardia but more likely EMD. Atropine 3 mg and Adrenaline 1mg IV were administered. After about 5 minutes, a weak pulse returned but still no spontaneous breathing. AED monitor showed a supraventricular bradyarrhythmia.

From Post Mortem report it is proved that there was 80% occlusion of the lumen, which stopped blood supply to the heart. Due to which Mr. G.L. Sanghi, whose age was 73 years, suffered a severe heart attack and there was no palpable carotid pulse and no spontaneous respiration. As the pulse was stopped, infusion of medicine through veins in hand was not affective. There was no obstruction in trachea or bronchi as such respiration using ambu-bag was effective, which was given. Even if Endotracheal tube could not find out but respiration through ambu-bag was sufficient. Active CPR was performed for 35 minutes without return of circulation or respiration. The patient was in airlines where first aid was expected. The service as available in Coronary Care Unit is not expected. By chance there was a doctor who tried to manage the situation but he could not succeed. In such circumstances, no deficiency in service can be attributed.

12.     According to the cockpit report, the plane was landed at 2.55 UTC. According to the letter of the doctor, the patient expired after about 35 minutes of performing active CPR. The explanation of the opposite party for delay in landing the plane was that at that time the fuel tanks were full, therefore, the pilot had to dump the fuel in order to land the plane. Further, in order to land the plane at the nearest airport, from where the services of the opposite party were not available, all their authorities had to be informed and their consent had to be taken. In such circumstances if the plane could not land for 40 minutes then it could not be said that it was a deliberate decision of the opposite party to delay the landing. From the cockpit report it is proved that as soon as the landing was advised by the doctor, the captain started the process of landing the plane, therefore, deliberate delay cannot be attributed to the opposite party.

13.     So far as maintaining medical kit and doctor’s kit in the plane is concerned, In order to prove the medical kits, the Affidavit of Evidence of Prof. Dr. Uwe Stuben has been filed who was Station Manager of the opposite party. In his affidavit he has stated that basic equipment is legally prescribed and is regulated by Joint Aviation (JAA) Regulations. However, it would be fit to mention here that the medical equipment on board Lufthansa aircraft has since the mid eighties exceeded the requirements of the prescribed. Abroad aircraft of the German Lufthansa AG, the medical supplies on board are far more than the mandatory equipment prescribed by law. This makes it possible to treat serious illness on board successfully.  Airlines maintain the cabin attendant medical kit and stewardess kit comprises mainly of medication against minor ailments like headaches, nausea, travel sickness, diarrhoea, colds or eye ailments. The number of kits kept abroad depends on the type of aircraft and thereby on the number of passengers on board. The stewardess kit is available on all continental and intercontinental flights, the cabin attendant kit on all intercontinental flights. The first aid kit contains apart from the mandatory prescribed equipment like bandages, sterile gauzes, stitching material, it includes electrolyte solutions that cannot be stored in the doctors kit due space constraints. The number of first aid kits depends on the number of passenger seats installed. It is normally stored in the medical or to the rear of the cabin. The emergency equipment on the board is the doctor’s kit. It is stored on board of all Lufthansa aircrafts in the last luggage bin on the right side in the aircraft. The kit contains an orange coloured box with ampoules. This kit also contains various kinds of medication for intravenous as well as intramuscular injections, which should be only used by a doctor. Apart from that, the doctor’s kit contains all equipment needed for intubation, intubation’s spatula in different sizes and tubes of various diameters, guedel tubes, respiration ambu-bags and face masks in different sizes right down to the children’s size. This equipment is contemplated by a suction pump with a suction booster. Apart from this equipment which is not legally mandatory, all the legally prescribed equipment like blood pressure machine, disposable scalpel and sutures as also a urine catheter, lubricants and a urine bag are also included. The doctor’s kit includes the process of usage for medication as also the medical inserts provided by the pharmaceutical company listing the indications, reactions, effects and side effects of medications. The doctor’s kit are carried 3 ampoules of Atropine 0.5 mg/1ml. and this quantity would be sufficient to treat one or a second patient in the circumstances similar to the one suffered by Mr. G.L. Sanghi. He has further stated that endotracheal tube was available in the medical kits. He has also enclosed a list of the contents of the doctor’s kit, first aid kit and medical kit as maintained in the flight.

14.     The complainants have raised the plea that the dead body was left unattended at the airport Winnipeg and the opposite party did not provide any help to bring the dead body to Delhi. The opposite party stated that as soon as the doctor asked for emergency landing, the Captain decided landing at Winnipeg, he informed the Air Traffic Controller at Winnipeg Airport about the medical emergency and diversion was also announced to the passengers, the Captain proceeded to land at Winnipeg. The flight staff informed the Winnipeg Airport authorities about the demise of Mr. G.L. Sanghi. Winnipeg Airport Data Centre, in turn, informed the office of Chief Medical Examiner, who had deputed an investigator to attend the airport. Winnipeg Fire Paramedic Service personnel had also been dispatched to the airport. The investigator talked to the doctor and paramedic who attended the patient in the light. Flight Captain was informed that as per Manitoba’s Fatality Inquiries Act, when a medical examiner or investigator learns of a death and the dead body is in the province of Manitoba, the examiner or investigator is required to take charge of the dead-body, inform the police and conduct an enquiry with regard to the cause of death, manner of death, the circumstances of the death and whether the death warrants an investigation. The investigator consulted with the medical examiner and opined that an investigation was required. Accordingly, dead-body was handed over to the medical examiner in accordance with law of Manitoba. During the entire period from diversion to Winnipeg airport till take off for Frankfurt, the flight staff had to handle the remaining 364 unsatisfied passengers and it was not possible for the flight to wait for all formalities to be completed by the police and the medical officer at Winnipeg airport. The opposite party could not bring the body back as it does not serve Winnipeg and the body was to be brought back by the airlines, who serve Winnipeg. The opposite party has filed Affidavit of Evidence of Tyler J. Kochanski, a lawyer, who has filed the Fatality Inquires Act. The complainants have not cross-examined this witness. As such, as per local law, administrative and medical authorities took possession of the dead body and conducted post mortem report. They also informed the family of the deceased and released the dead body to them after inquiry. No adverse findings can be recorded in this respect against the opposite party.

15.     There is dispute between the parties in relation to the application of Montreal Conventions. According to the opposite party, Montreal Conventions are not applicable rather Warsaw Convention was applicable. There is a difference between Warsaw Convention and Montreal Convention in respect of ‘no fault liability’ of the carrier upto the extent of 100000 SDR and limit of liability in case of otherwise. However, in both the conventions the accident causing injury has to be proved. The counsel for the complainants relied upon Section 2 (iii) of the Carriage by Air Act, 1972 which says “Montreal Convention means the convention for unification of certain rules by International Carriage by Air signed at Montreal of 20^th day of May, 1999.” Section 3 (2) provides that for the purpose of this Act, the High Contracting Parties to the Convention and the date of enforcement of the said Convention shall  be such as are included in Part I of the Annexure. Further Section 4A provides that the rules contained in the Third Schedule, being the provisions of the Montreal Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons, shall, subject to the provisions of this Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage. In part III of the annexures, Germany is mentioned at serial No.42 and date of enforcement has been mentioned as 28.06.2004. In the present case, the incident occurred on 06.01.2006. Therefore, Montreal Convention is fully applicable in the matter.

16.     The counsel for the complainants relied upon the judgment of Supreme Court of the United States in Air France vs. Saks, 470 US 392 in which it has been held that the word 'accident' is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known, the loss or hurt itself would certainly be called an accident. However, the accident is used to refer to the event of a person's injury, it is also sometimes used to describe a cause of injury, and when the word is used in this latter sense, it is usually defined as a fortuitous, unexpected, unusual or unintended event but when the injury undisputedly results from the passenger’s own internal reaction  to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply. This principle has been followed by the Supreme Court of United States in the subsequent judgment in Olympic Airways vs. Rubina Husain, 540 U.S. 644 in which the passenger died due to internal allergy of smoking. Supreme Court found that the airline ignored the fact that the flight attendant’s refusal to move the passenger was also the factual event that the district court correctly found to be a link in the chain of cause that led to the passenger’s death. The exposure to the smoke and the refusal to assist the passenger were happening that both contributed to the passenger’s death. The rejection of an explicit request for assistance was an event or happening. The conduct constituted an accident under the Convention for the unification of certain rules relating to international transportation by air.

From these judgments it is clear that in order to constitute an accident unexpected or unusual event or happening i.e. external to the passenger and not to the passenger’s own internal reaction to the usual, normal or expected operation of the aircraft, is an accident. In the present case it was the internal reaction of the passenger’s own which resulted firstly in vomiting and collapse and shortly thereafter in severe heart attack. It cannot be termed as unusual event or happening is external to the passenger. Therefore, in the present case it cannot be said that the death of Mr. G.L. Sanghi occurred due to an accident. The counsel for the opposite party relied upon the judgment of Supreme Court in Alka Shukla vs. Life Insurance Corporation of India (2019) 6 SCC 64. However, the objection of the complainants is that in this case the Supreme Court has interpreted the accident as per the insurance policy and it is not applicable in the facts of the case.

The counsel for the complainants has relied on the judgment of Kerala High Court in S. Abdul Salam vs. Union of India 2011 SCC Online Kerala 1880 in which it has been held that the extent of damage due to any injury cannot be anything more than death, no further proof is necessary to have sanctioned the minimum compensation of Rs.1 lakh SDR. However, in order to apply the Warsaw Convention or Montreal Convention, the injury due to accident is necessary.

Since in the present case we find that injury was not due to any accident but due to the internal cause of Mr. G.L. Sanghi itself, therefore, even no fault liability under Montreal Convention cannot be fastened on the opposite party in this case. Insurance has also become irrelevant as there was no accident. So far as return of the fare charges is concerned, as per rules the demand for return of fare charges has to be raised within six months before the airlines which has not been made in the present case as such this relief can also not be granted. Even the opposite party has offered for payment of return fare which has not been accepted by the complainants.

17.     The allegation that subsequent to the death, opposite party had not informed or cooperated in any respect in bringing the dead body to India, have been denied. The opposite party stated that Mr. Uwe Schulz, Station Manager made a telephonic call to the son of the deceased and was in the contact of the family. Mr. Uwe Schulz also coordinated with logistics, Air Canada for transferring the dead body from Winnipeg to India and assisted the deceased’s wife and sons to travel from San Francisco to India.  We do not find any merit in this complaint which is liable to be dismissed.

ORDER

           In the result, the complaint is dismissed.