By Amit Cowshish
In a judgement pronounced on 2 May 2017 on Sanjeet Singh Kaila v Union of India and Anr, the Delhi High Court awarded Rs 55 lakhs to a serving wing commander as compensation for violation of the officer’s Right to Life guaranteed by Article 21 of the Indian constitution.
Grounds for the landmark decision
The compensation was granted for the agony that Singh had to undergo after a flying accident in 2005. The incident led to him being placed in a lower medical category along with impacting his career as a fighter pilot in the Indian Air Force (IAF).
It is also partly on account of the delay in disclosing information to the officer under the provisions of the Right to Information Act, 2005 about the findings of the Court of Inquiry (CoI). The findings had established that the accident was due to the poor workmanship by the state-run Hindustan Aeronautics Limited (HAL) during the maintenance of the MiG 21 aircraft he was flying on the fateful day.
A wake-up call
While it remains to be seen whether the Ministry of Defence(MoD) or HAL will appeal to the Supreme Court against the verdict, there is no denying that the judgement raises several issues which the MoD would do well to address—without waiting for the outcome of any appeal it may decide to file.
Firstly, this judgement is bound to result in claims being raised by similarly placed personnel of the armed forces. Each of such cases can potentially enlarge the scope of the circumstances under which the constitutional right to life could be invoked to claim compensation. Such claims might also be made by personnel of the paramilitary forces as they are often victims of below par service provided by the agencies responsible for the manufacture or maintenance of the equipment that they use.
Secondly, the Delhi High Court has directed the government to formulate a scheme to insure the pilots ‘against the special risks that they undertake’. This must be done immediately, separating it from the need to formulate a larger policy for all personnel of the armed and paramilitary forces. In fact, the scope of such a policy should also be enlarged to cover all personnel engaged in hazardous duties.
Thirdly, the court’s view of HAL’s culpability is largely based on the findings of the CoI set up by the IAF, which had not been accepted by HAL until April 2013. Without intending to doubt the professional competence and impartiality of the CoI, one cannot help wondering whether it would be better to set up an independent authority to investigate accidents of this nature. This could be a part of the policy of awarding compensations to the victims of such accidents.
Opportunities for aviation companies
In this case, the agency held responsible for negligency is a state-owned enterprise. However, the consequences would have been very different if it were a private-sector entity or a foreign company. This judgement is bound to revive the demand being made, especially by the foreign companies for several years now, for the inclusion of a clause on the limitation of liabilities in defence contracts.
Presently, there is no clause in the defence contracts which protects the seller from the liabilities for special damages—especially those arising out of unforeseen causes not specifically mentioned in the contract. This forces them to cover this risk through separate insurance policies and pass on the cost to the buyer. The risks are particularly high in the aerospace sector.
There was near unanimity at a seminar held at the Institute for Defence Studies and Analyses in 2011 that defence contracts should have a limitation of liability clause. However, this has not taken effect so far. It will add to ease of doing business in India, especially in the aerospace and defence sector, if it were to be implemented as soon as possible.
Amit Cowshish is a former Financial Advisor (Acquisition), Ministry of Defence. He is presently a Distinguished Fellow with the Institute for Defence Studies and Analyses and a Partner with Dua Associates, Advocates and Solicitors.
Featured Image Credits: India Today
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