12 minute readLitigation of a MiG-21 fighter crash

Air Chief Marshal B.S. Dhanoa with the MiG-21 Type 96 at Air Force Station Utarlai after his solo sortie on January 12 2017 sortie | Photo: IAF

HAL to pay INR 50L compensation and INR 50K trial cost
MoD to pay INR 05L for keeping pilot ‘in the dark’

The violation of a fundamental right is a constitutional tort for which the remedy is an appropriate writ or compensation.

Last week, the Delhi High Court the Delhi High Court awarded INR 55 lakh (approximately USD 85,000) to an Indian Air Force (IAF) pilot who had suffered injuries and a serious career setback after the MiG-21 he was flying crashed in January 2005.

The court awarded INR 50 lakh (approximately USD 77,000) to Wing Commander Sanjeet Singh Kaila from aircraft manufacturer Hindustan Aeronautics Limited (HAL) for negligent workmanship that led to the crash of the aircraft and his injuries and, significantly, also awarded him INR 5 lakh (approximately USD 7,700) from the defense ministry for the agony and trauma he suffered due to the delay in informing him of the reasons for the crash of his aircraft.

The judgement is important for a number of reasons. First of all, there has never before been a lawsuit in India that has succeeded in the award of compensation for negligence leading to the crash of a fighter aircraft. And secondly, the legal principles applied are as unusual as they are convincing.

Wing Commander Sanjeet Singh Kaila’s MiG-21 T75 fighter burst into flames soon after take-off and crashed over Nal Air Base on January 04, 2005. The IAF pilot sustained injuries from the ejection that left him in severe pain due to a condition called Cervicalgia, a lowered medical fitness category, permanently unfit to fly fighters or helicopters, and completely changed the course of his career. He is now the commanding officer of a National Cadet Corps (NCC) unit. Because of the nature of his injuries, he was not eligible for an insurance payout. Kaila asked for compensation from the defense ministry, thrice, but received no response.

The bench, comprising Justice S. Ravindra Bhat and Justice Deepa Sharma, said:

A comprehensive medical examination followed, which revealed that he was suffering from Cervicalgia. Furthermore, a scrutiny of his MRI report, conducted on 27.01.2005, revealed disc bulges of the 4th, 5th, 6th and 7th vertebrae (cervical spine), caused on impact during the air crash. The medical report stated that the disability was suffered during the course of bona fide service, and in circumstances that were not within the pilot‟s control or were wholly outside his control. It also stated that the petitioner was unfit to continue with his existing flying duties which was directly attributable to the incident. Apparently, the injury was of such nature that it impeded the petitioner‟s ability to perform everyday tasks. The petitioner was shifted to a non-flying category until September 2007. Following this he was permanently placed in the lower medical category by the IAF since late August 2007.

Kaila attempted to access the findings of the IAF Court of Inquiry which investigated the crash but was only provided the information in 2012 and 2013, in response to two applications filed by him asking for details under the Right to Information Act, eight years after the crash.

The IAF inquiry found that the cause of the crash was a fatigue crack in one of the engine afterburner manifold nozzles which was the result of a manufacturing defect due to the negligent workmanship of aircraft manufacturer, Hindustan Aeronautics Limited (HAL).

Importantly, in the remarks finally made by the Chief of Air Staff on 29.07.2005, the observations made at the Subroto Hall meeting were reiterated and endorsed; his remarks were that:

“the accident was caused due to the poor workmanship during welding of the nozzle at the 3 O‟Clock position on the after burner manifold….the accident is attributable to poor workmanship on the afterburner manifold at HAL during production”.

Violation of the Right to Life

Kaila’s counsel, Bharat S. Kumar, claimed his client’s fundamental right to life under Article 21 of the Constitution had been violated. The Supreme Court had passed a landmark judgement in 1997 in the case Vishakha versus State of Rajasthan, which became the basis for the law against sexual harassment in the workplace.

In this judgement, the Supreme Court said that the right to life included the right to a safe working environment.

To stress upon the inviolability of the right, learned counsel for the petitioner Mr. Bharat Kumar relies upon Vishakha v. State of Rajasthan AIR 1997 SC 3011 which held in express terms that “the fundamental right to carry on any occupation, trade or profession depends on the availability of a “safe working environment”. In the context of how this right is triggered in this case, it is submitted that “safe environment” would extend to the equipment supplied to the Indian Armed Forces, the maintenance of safety standards including in repairs and handling of equipment by its personnel. While a member of the Armed Forces ungrudgingly consents to the risk that comes with his enlistment in the forces, this does not justify providing personnel with poor equipment and resultantly negligently putting them in harm‟s way. In other words, a willingness to live with the risk that comes naturally with the job does not negate the responsibility and care owed towards members of the Armed Forces of the State.

Kaila’s counsel argued that even though the context may have been different, the same principle applied and that the wing commander had the right to a safe working environment.

The Supreme Court in Vishakha (supra) first declared the constitutional imperative that citizens must be safe in the environment they work in. That judgment was delivered in the context of the rampant sexual harassment of women at the workplace and the complete absence of a redress mechanism. ‘Safety’ therefore, was a function of the inter-relationship between men and women, the pressing need for gender equality and the indispensability of being cognizant of sexual harassment, along with the provision of a redress system. This principle of a safe working environment must now be contextualized with regard to the facts before this court.

No assumption of risk of negligence by HAL

Even though, because of the nature of their profession, there is an inherent assumption of risk by fighter pilots, the court agreed with Kumar that this acceptance of risk does not extend to the acceptance of risk due to negligence in manufacturing aircraft.

Not judging the MiG-21

The court made clear that that it was not passing judgement on the airworthiness of the MiG-21, the workhorse of the IAF fighter fleet and an aircraft that has gained a reputation for being dangerously unreliable.

This Court is not adjudicating in any manner upon the airworthiness of MiG 21s as a fleet of aircraft enlisted in the IAF…The outcome of this judgment must not be construed as a comment on the MiG 21 as an aircraft, its susceptibility, if any, to aerial accidents, or any structural flaws, which are the result of the design of the craft.

Qualifying Liability

In arriving at it’s conclusion that the HAL’s negligent workmanship made it liable for the violation of Wing Commander Kaila’s right to a safe working environment, the court also clarified what would not constitute negligence giving rise to liability.

Mechanical defects in an aircraft, as in any machine, are possible. An aircraft is after all a machine, which is prone to malfunctioning even when perfectly and efficiently cared for (even under ideal conditions). Weather conditions in conjunction with reactions of instruments not previously anticipated, or the cumulative effect of factors outside the control of those responsible, will not lead to an affixing of liability on the State or the manufacturer of machinery. That risk of a malfunction is inherent within the operation of the aircraft, as with any machine. Neither will mere general wear and tear of a machine with age result in liability, if it is otherwise in an airworthy condition according to prescribed standards. This would rightly fall under the risk a pilot assents to. A manufacturing defect or a defect attributable to less than standard maintenance, which is avoidable and compromises the strength of an aircraft however, is altogether different; it can give rise to liability and an actionable claim to damages.

Compensation

Clearly intending this judgement to have precedent value, the court said, when considering the issue of compensation, “The considerations on the basis of which compensation is awarded in a particular case must be clearly set out, so to at the very least create a pattern of factors that are likely to be considered in successive cases,” adding, “It is important to lay out discernible standards to hold to account the State or those who act on its behalf, which can be the bar for the quality of services that they render and the consequences they are likely to face, in the event their actions result in such accidents.”

In conclusion, the court observes that none can be insensible to the piquancy in the pageant of life; more so, those who enlist in the service of their country in its armed forces. Yet to fling that to their teeth when accused of exposing them to more than the risks they had bargained (as the HAL does, here) is to belittle their spirit of sacrifice, which this court finds insensitive, even offensive….The HAL’s insistence of blamelessness and the stony silence maintained by the UOI in keeping the petitioner in the dark, and for its share of lapse in providing a safe workplace- with standard equipment, maintained to highest standard, are indefensible.

Saying that ‘HAL’s mulish insistence of blamelessness and that the petitioner has no actionable claim is meritless and indefensible,’ the court ordered the manufacturer to pay INR 50 lakh in compensation to Wing Commander Kaila. The court also said, Union of India (defence ministry) is ‘held responsible to compensate the petitioner `5 lakhs for the trauma and agony which he underwent all the while and is also liable for non-disclosure of relevant information relating to an unsafe workplace’, explaining, “(T)hough conclusions of the CoI were available, to the extent that they vindicated the petitioner, the truth was withheld from him despite his several efforts, which would further justify his claim for compensation.”

Calculation of Damages

The damages are based on the assumption that the balance of the petitioner’s services, i.e. 20 years, would have resulted in higher annual average overall income of `2.5 lakhs per year, taking into account career progression etc.

Further Directions

The court hereby directs that the UOI consider the feasibility of keeping in place a policy to insure its pilots- such as the petitioners- against the special risks they undertake in the discharge of their duties. The premia paid and the insurance policy taken out should be such as to indemnify the particular kinds of injuries that pilots are likely to suffer, in such incidents- both physical and mental.

And in closing, “The costs of these proceedings, quantified at ` 50,000/- shall be borne by HAL.”

Impact

This judgement should give pause to the defense ministry, the armed forces and equipment manufacturers, who could all face similar situations in future, not only with respect to encouraging compassion and responsiveness.

The court, in passing this judgement, gave due consideration to questions of combat immunity, sovereign immunity and whether this could give rise to second-guessing of military orders under threat of potential litigation. While deciding that none of these applied in this case, these are questions that could come up for consideration again, in future cases.

This is something to which the defense ministry and the armed forces should give consideration and take steps to reduce uncertainty in this regard.

It is also important to consider the nature of the petition in this case. This was a writ petition for the enforcement or restitution of a fundamental right, which is enforceable against the state.

In this case, the respondents were the Union of India (defense ministry) and HAL, which is a government-owned company and, as such, would qualify as an arm of the state.

The materials on record point to poor and inadequate workmanship at the hands of HAL, rendering it liable for negligence. Furthermore, the acts were done in its capacity as a public agency acting for the IAF. There cannot be any question that its liability for violation of Article 21 can be avoided.

But the question that follows is whether a fundamental right can be equally enforceable in a similar such case, if the negligent manufacturer or service provider were a private company, or would the correct remedy be a civil suit for negligence or tort, instead? Would the negligent welding in this case, for instance, be considered an exercise of sovereign power, if it were done by a private company? Needless to say, the exact facts of each case would have a bearing on this question.

The Delhi High Court cited a judgement of the Bombay High Court in Union of India versus Sugrabai, which said:

(I)t cannot be said that every act which is necessary for the discharge of a sovereign function and which is undertaken by the State involves and exercise of sovereign power. Many of these acts do not require to be carried out by the State through its servants. In deciding whether a particular act was done by a Government servant in discharge of sovereign power delegated to him, the proper test is whether it was necessary for the State for the proper discharge of its sovereign function to have the act done through its own employee rather than through a private agency.

With India increasingly purchasing equipment from domestic and foreign Original Equipment Manufacturers (OEMs) that are not owned by the government, the question of potential future liability is something that should be given consideration by companies and government.

International Precedent

Internationally, there have been cases about the question of liability involving accidents with military aircraft. In 2008, a U.S. Air Force F-15 pilot sued manufacturer, Boeing, for injuries due to a mid-air breakup of his aircraft. Last year, a prosecution was announced of ejection seat manufacturer, Martin Baker, over the death of a Royal Air Force (RAF) pilot who was ejected from his aircraft while still on the ground. And an inquiry was held in Australia in 2014 over the crash of an Australian Defence Force CH-47 D Chinook in Afghanistan, which led to the death of Lieutenant Marcus Case. One media report said, ‘The aircraft crash-landed on top of Lt Case, rolled and caught fire.’ It is not clear, yet, if there will be a trial in this case.

In Kaila’s case, the Delhi High Court cited two British cases where it was found that negligence could not be brushed aside for reasons of combat immunity or sovereign immunity.

So what do you think?