Sangeeta Barring vs Air India Ltd. And Ors.
2003 Latest Caselaw 44 Del

JUDGMENT

Dalveer Bhandari, J.

1. Brief facts which are necessary to dispose of this petition are recapitulated as under:

On 19.4.1999 an air accident occurred at Mumbai while landing of an Air India's aircraft No.AI-411 returning from Singapore to Mumbai. Severe jerky movements while landing resulted in serious injuries to the petitioner and three others.

2. The pilot/co-pilot applied speed brakes to the full position and induced inputs on the control column in excess of the permissible limits, resulting in the tripping of the autopilot brakes and consequently the aircraft encountered sudden jerky movements leading to the aircraft going into a sharp drop, ultimately resulting serious injuries to four persons including the petitioner.

3. It is alleged in the petition that due to sudden dive of the aircraft and severe jerky movements, the petitioner who was doing her duties nose-dived and in fact went up and down and hit the ceiling of the aircraft thrice and injured herself seriously. The factum of this unfortunate incident is not disputed.

4. The petitioner has filed this petition with the following prayers:

a) issue directions to respondent No.4, Commissioner of Police, to register a criminal case under relevant provisions of Indian Penal Code (in short `IPC') against the respondent No.2, Capt.S.C.Chaturvedi & respondent No.3, Capt.R.K.Bishnoi for their rash and negligent act.

(b) issue directions to the respondent No.1, Air India, to cancel the flying licenses of respondent Nos.2 & 3.

c) issue a writ of mandamus directing the respondent Nos.1,2 and 3 to compensate the petitioner to the tune of Rs.90 lakhs by way of exemplary damages for her physical ailments and mental harassment.

(d) issue directions to the respondent No.1 organization to reimburse the medical expenses of the petitioner incurred by her subsequent to Air India's refusal to do so and further to continue to bear the future medical expenses arising out of her physical ailments caused due to the air accident.

5. Mr.Mukul Rohtagi, learned Additional Solicitor General, appearing for Air India at the outset submitted that all the medical bills which were submitted by the petitioner have been reimbursed. The respondent Air India has spent about Rs.30 lakhs on petitioner's treatment in India and abroad. Mr.K.T.S.Tulsi, learned senior counsel appearing for the petitioner, however, submitted that some bills regarding medical reimbursement to the tune of about Rs.3 lakhs have yet not been reimbursed. He, however, could not give details of those bills. Mr.Rohtagi fairly submitted that any pending bill shall be promptly processed and reimbursed according to rules within two weeks from today. Mr.Rohtagi further assured this court that even her future bills regarding medical treatment would be reimbursed promptly in accordance with rules.

6. The Director General of Civil Aviation directed an inquiry into the incident conducted by Mr.M.Rajendran, Senior Air Safety Officer. He had submitted a comprehensive report. Findings of the report are reproduced as under:

Findings

(i) The descent was initiated in profile mode on Auto pilot # 1 by the first officer. The aircraft at the time of incident was flown by the First Officer Capt. Bishnoi and the aircraft has commenced descent late and was high on slot.

(ii) In order to put the aircraft on the correct slot, increase in rate of descent was required and to achieve that employment of speed brakes was planned by flight crew.

(iii) The co-pilot flying the aircraft deployed the speed brakes by moving the speed brake lever to full position and rather rapidly at a rate which was higher than the normal. At this moment aircraft pitched down.

(iv) According to the DFDR graph/read out, after about 2 seconds of deployment of speed brakes )remained deployed for about 3 seconds) sufficient pull force and applied on control column by the pilot(s)which led to the autopilot tripping subsequently. However, it could not be confirmed whether it was done by the commander or the co-pilot.

(v) Due to above contrary inputs induced within seconds the aircrafts pitched up and down thrice and due to load on the control column which was in excess of the permissible limits, the autopilot, got tripped.

(vi) As a result of negative `g' during the maneuver, three cabin crew and an infant passenger sustained injuries.

(vii) At this moment the commander had taken over aircraft control and re-engaged the autopilot.

(viii) The cause of the autopilot tripping could not be attributed to any other technical aspect as the aircraft FCC computer checked by the Airbus Industry had not revealed any defect in the unit. Autopilot tested by M/s. Lucas Aerospace also did not reveal any defect in the unit which would lead to the autopilot disconnection.

7. Senior Air Safety Officer gave the probable cause of the accident. He mentioned that auto pilot tripped due to induced inputs on the control column, in excess of permissible limits when the speed brake was deployed to the full position. As a result, the aircraft experienced negative `g' leading to the injuries to the persons. He also recommended that appropriate action be taken against the flight crew.

8. In pursuance to the inquiry report, a show cause notice was given to Capt.R.K.Bishnoi on 28.2.2000 and a similar notice was issued to Capt.S.C.Chaturvedi.

9. After considering the reply submitted by respondent No.3, Capt.R.K.Bishnoi, the Deputy Director General (Training & Licensing) passed the order on 26.9.2000. The order is reproduced as under:

"With reference to this office Memo No.1-164/87/L(2) dated 28.2.2000 and your subsequent reply dated 9.3.2000 to the above referred Memo regarding incident to Air India Flight No.AI-411 dated 19.4.1999 You are hereby warned to be more careful in future while flying under the supervision of the Pilot-in-command for proper use of flying controls and its effects."

10. After considering the reply submitted by respondent No.2, Capt.S.C.Chaturvedi, an order was passed on 26.9.2000. The relevant portion of the order reads as under:

"With reference to this office Memo No.I-2949/85-L(2) dated 28.2.2000 and subsequent letter of even number dated 3.5.2000 regarding the incident to Air India flight No.AI-411 dated 19.4.1999. You are hereby advised to be more careful in future and should keep a close watch on Co-pilot's action when you allow them to handle the controls. You are also advised to give thorough briefing for proper use of flight controls and its effects to the Co-pilots flying under your supervision."

11. Immediately after the incident for a period of four months both Capt.S.C.Chaturvedi and Capt.R.K.Bishnoi were kept-off flying duties. It is also mentioned that both the operating crew were briefed for planning of Top of Descent (TOD), Approach, Landing and use of speed brake. They were also given simulator refreshers followed by simulators checks by a qualified flight instructor which was done in the following manner:

a) one hour lecture by Capt.V.Y.Bhadsavle on planning of TOD, approach, landing and use of speed brakes for Capt.S.C.Chaturvedi and Capt.R.K.Bishnoi.

b) two session of simulator refresher with Capt.Bhadsavle/Capt.N.T.Lobo (corrective training)

c) simulator test of Capt.S.C.Chaturvedi and Capt.R.K.Bishnoi by Capt.V.K.Khosla.

12. In pursuance to the show cause notice issued by this court respondent No.1 filed a counter affidavit of Srinivasan Vasu, General Manager, Inflight Services Department. At the outset he mentioned that the incident was unfortunate but such incidents are hazards of flying and on occurrence of this incident, the Director General of Civil Aviation which is the appropriate authority and also has the requisite technical expertise, conducted a thorough inquiry on the basis of records available and tried to find out the probable cause of the incident. It is mentioned in the affidavit that the DGCA has advised warning to the pilots to be more careful in future. In the affidavit it is also mentioned that the incident occurred within a span of 2-3 seconds and the operating crew took all proper measures to prevent any mishap. It is also stated in the affidavit that the Director General Civil Aviation after conducting a thorough inquiry about the incident issued a letter of caution/warning to respondent Nos.2 & 3 advising them to be more careful in future. Immediately after the incident both respondent No.2 (Capt. S.C.Chaturvedi) and respondent No.3 (Capt.R.K.Bishnoi) were kept away from flying duties for a period of four months. In the affidavit it is also mentioned that the Director General of Civil Aviation after having satisfied itself that there was no fault of the pilots, did not recommend any punitive action against the pilots. It is also stated in the affidavit that respondent Nos.2 & 3 were not negligent as alleged by the petitioner. The deponent in this affidavit has specifically denied that the officials of respondent No.1 company were negligent in performance of their duties. It is also mentioned in the affidavit that the respondent were neither negligent nor careless.

13. The petitioner has placed the medical report of Dr. Med.Patrick Kluger, U.K. on record. According to the certificate issued by him the petitioner sustained 40% partial permanent disability. The petitioner was examined by the Medical Board constituted by the respondent Air India consisting of 5 leading doctors who had examined the petitioner closely and according to them the petitioner sustained 20% partial permanent disability of functional ability.

14. Mr.Mukul Rohtagi submitted that Air India has not left any stone unturned to ensure that the petitioner gets proper and adequate medical treatment.

15. Mr.Rohtagi further submitted that respondent No.1 is prepared to ratain the petitioner in service till her normal age of retirement. He submitted that if the petitioner desires Air India is prepared to give her benefit of `annuity' in which the petitioner would get lumpsum benefits. Mr.Rohtagi also submitted that Air India has already provided to the petitioner residential accommodation in Vasant Vihar which is in the possession of the petitioner. The respondent Air India is further prepared to offer posting of petitioner's choice anywhere in India.

16. Mr.Rohtagi also submitted that respondent No.1 has no grudge, prejudice, or ill will against the petitioner despite petitioner's dragging the respondent Air India in court. On behalf of the respondent Air India it is submitted that on humanitarian consideration the petitioner has been paid full salary without her attending the office of respondent No.1 for about three years. He also assured the court that her future medical bills will also be reimbursed promptly in accordance with the rules.

17. In pursuance to the notice issued by this court, respondent No.2, Capt.S.C.Chaturvedi, in his separate counter affidavit stated that he is working as a Joint General Manager and has been flying various types of aircrafts for the last 35 years, having more than 11400 hours of flying experience. It is also mentioned that he was one of the "Master Green Pilot" which is considered the highest flying rating in the Indian Air Force and Air India had selected the deponent out of such Master Green Pilots eligible for such selection. It is also mentioned that during his 11400 hours of flying he has flown different types of aircrafts with and without speed brakes. In his affidavit he submitted that such accidents are normal hazards of flying and have been occurring all over the world. He also submitted that the incident occurred within a span of 2-3 seconds and deponent took all appropriate measures to prevent any mishap. He submitted that there has been no negligence on his part. In the affidavit he also mentioned that in the aviation industry nothing is left to chance and all reasonable precautions are taken even where there is the slightest doubt with regard to flight safety.

18. Similarly, respondent No.3, Capt.R.K.Bishnoi, has also filed a separate counter affidavit. In the affidavit it is mentioned that he has 38 years of experience and has more than 7000 flying hours to his credit. It is mentioned in the counter affidavit that he has received Gallantry Award for exhibiting his skill, presence of mind during the 1971 war. It is also stated that he has a very rich, unblemished and meritorious flying record. He also stated that there has been no negligence on his part. He also gave an explanation for the incident. We do not deem it appropriate to give details at this stage.

19. A.P.Jain, Senior Manager (Cabin Crew), Air India filed an affidavit on behalf of respondent No.1 Air India. This affidavit contained false statement which led to the filing of the contempt petition by the petitioner. Para 1(3) of the affidavit containing offending statement is reproduced as under:

" After the said report of Sr. Aircraft Safety Officer dated 27.9.1999, an appropriate action was taken against the crew member and that the respondent No.2 Captain S.C.Chaturvedi and respondent No.3 Captain R.K.Bishnoi were removed from the services of the Air India Ltd. After following necessary procedure and that respondent Nos.2 & 3 are no more in the service of respondent No.1, i.e. Air India Ltd."

20. It may be pertinent to mention that during the pendency of this petition, Crl.M.No.207/2002 was moved by respondent No.1. The application was supported with an affidavit of A.P.Jain, Senior Manager (Cabin Crew), Air India. It is mentioned in the application that inadvertently incorrect statement has been recorded in para 2 of order dated 11.1.2002 "respondent Nos.2 & 3 were found guilty of negligence in Independent Enquiry and thrown out of service". It is mentioned in the application that this statement has been made inadvertently without any wrong intention or ulterior motive and A.P.Jain tendered his unconditional apology for signing the said counter affidavit. It may be pertinent to mention that in the contempt petition, the Managing Director of Air India himself has filed affidavit giving the details of circumstances which led to the filing of erroneous affidavit which we would deal is detail while dealing with the contempt petition.

21. Mr.Tulsi, learned senior counsel appearing for the petitioner, argued that the report on the inflight incident was conducted under the orders of Assistant Director, Air Safety, Directorate General of Civil Aviation. According to which the "auto pilot" tripped due to induced inputs on the control column, in excess of permissible limits in the flight crew after the aircraft pitched down when the speed brakes was deployed to the full position. He submitted that if the report of DGCA inquiry is taken to be a preliminary inquiry under the Code of Criminal Procedure, it would disclose an offence under Section 338 IPC as lives of 113 passenger and 10 crew members were put in jeopardy by the negligent act of respondent Nos.2 & 3. He also submitted that essential ingredients of the cognizable offence have been disclosed by the independent inquiry and action as per law ought to be taken against them in accordance with law.

22. Mr.Tulsi in support of his contentions has placed reliance on the judgment of Punjab & Haryana High Court Bar Association vs. State of Punjab Vineet Narain vs. Union of India and Khatri & Ors. vs. State of Bihar & Ors. .

23. Mr.Tulsi also submitted that this petition involves enforcement of standards of public safety of the passengers of Air India and in the larger public interest, action be taken against the erring pilots. Mr.Tulsi also submitted that failure of respondent No.1 to take action against the erring pilots can only be termed as mala fide exercise of power. He also submitted that inaction of respondent No.1, Air India, has the potential to affect the life of the passengers under Article 21 and thereby affects public interest. Mr.Tulsi also submitted that the oppressive, arbitrary and unconstitutional actions of Air India constitute the tort of misfeasance in public office and negligence, by which it has rendered itself liable to damages for the malicious, deliberate and injurious wrong doings. Mr.Tulsi particularly emphasis ed that the petitioner is entitled to the award of exemplary damages which alone can vindicate the strength of law and check such arbitrary and capricious exercise of power. In support of his contentions, he has placed reliance on Lucknow Development Authority vs. M.K.Gupta & Common Cause, A Reg. Society vs. Union of India . He also referred to Rudal Sah vs. State of Bihar . Mr.Tulsi also referred to well known case of M.C.Mehta vs. UOI pertaining to escape of olium gas and general directions given by the Supreme Court. He also referred to the judgments of the Apex Court delivered in R.S.Saini vs. State of Punjab emanating from CA No.4993/99 and IC for Enviro-Legal Action & Ors. vs. UOI .

24. Mr.Rohtagi submitted that respondent No.1 has full sympathy with the petitioner who was involved in this unfortunate incident. He submitted that despite all the safety measures these incidents do occur and such incidents are essentially hazards of flying. He submitted that respondent No.1 has done all what is possible within norms and rules to ensure that the petitioner gets the best possible medical treatment both in India and abroad. Humanitarian angle has been paramount while considering the case of the petitioner. The respondent Air India has been regularly paying full salary to the petitioner even without her joining the office of Air India. They have also provided her residential accommodation in Vasant Vihar. Mr.Rohtagi assured the court that the Air India would continue to treat the case of the petitioner with all sympathy and consideration whether it is a question of reimbursement of future medical bills or other facilities.

25. Mr.Rohtagi, also submitted that immediately after the incident, an inquiry was instituted by the Director General of Civil Aviation. In the inquiry report probable cause of incident has been given but that cannot be termed as conclusive cause amounting to criminal negligence.

26. On behalf of respondent No.4, Commissioner of Police, a counter affidavit has been filed by Mr.Sanjiv Gupta, SHO, I.G.I.Airport. In the affidavit it is mentioned that about 20 minutes before landing at Mumbai, the aircraft encountered jerky movements and suddenly went into a sharp drop. The petitioner who was on duty in the said flight had fallen in the gallery area of said aircraft and suffered injuries along with two other crew members as well as one infant child. It is mentioned in the counter affidavit that this incident was neither reported in the police station at that time nor it was reported later on. Therefore, no criminal case has been registered in this regard.

27. Learned counsel appearing for respondent No.4 submitted that this court has no jurisdiction to deal with this matter because the incident admittedly had taken place in the Air India flight AI-411 returning from Singapore to Mumbai via Delhi. If at all this petition is to be entertained, the proper jurisdiction would be that of the Bombay High Court because even the report, i.e., D.D. Entry, has also been made in Mumbai to this effect.

28. Learned counsel for the petitioner has insisted that in the larger interest, the matter be heard and decided by this court. Since we have decided the petition on its merit, therefore, we do not deem it necessary to decide the question of jurisdiction.

29. We have heard learned counsel for the parties at length and perused affidavits & other documents filed in this case. In our considered opinion, it is not a fit case for granting exemplary damages as claimed by the petitioner. However, the petitioner would be entitled to compensation and other dues which she is entitled to, in accordance with the standing orders and rules of respondent No.1, Air India.

30. This court has full sympathy with the petitioner but we do not think it to be a fit case where directions can be given to respondent No.4 to register a criminal case against respondent Nos.2 & 3. Immediately after the accident a high powered committee was set up to inquire into the causes of the incident and they did not find criminal negligence of the pilots so that a criminal case ought to be instituted against them. It would not be proper for this court to sit in judgment over the findings of the expert committee in the facts and circumstnaces of this case.

31. In our considered opinion, this is neither a case in which either the respondent Air India has been either vindictive against the petitioner or is guilty of the violation of the principles of natural justice warranting interference by this court. The petitioner is a victim of an unfortunate incident which happened when she was on duty and the accident has led to a partial permanent disability. We direct that:

a) All medical bills submitted by the petitioner shall be properly processed and reimbursed in accordance with rules within four weeks.

b) The petitioner's future medical bills towards the medical treatment shall also be promptly processed and reimbursed in accordance with the rules.

c) The assurance given by Mr. Rohtagi on behalf AIR India that the petitioner will be retained in service and she be given posting of her choice anywhere in the country would be honoured both in letter and spirit keeping her physical condition in view.

d) we are told that the petitioner has already been given compensation to the tune of Rs.9,21,250/- but in case she is entitled to any further amount from Air India, the same shall be paid to her in accordance with the standing orders and rules. Her filing this petition or approaching this court shall not come in her way or mar her chances in career in any manner.

32. The respondent Air India being a public sector undertaking is bound by rules and standing orders in grant of compensation in such accidents. Despite all safety measures unfortunately similar accidents take place off and on both in India and abroad. Compelling Air India to deviate from the rules, norms and standing orders can creat serious financial implication. Air India has taken an extremely reasonable attitude in this matter. They had generously provided approximately Rs.30 lakhs on petitioner's treatment in India and abroad. Air India has given compensation to the tune of Rs.9,21,250/-. Air India has till date paid the entire salary to the tune of Rs.5 lakhs even without her reporting for work. Air India has also undertaken to reimburse all her future bills of treatment. Air India has given offer to keep the petitioner in employment till retirement. The respondent Air India has also given an offer of giving her a posting of her choice in any part of the country. In this view of the matter, our imposing any more financial burden on Air India would create problem for similar cases.

33. With these directions, this petition and all pending miscellaneous applications are accordingly disposed of. The parties are directed to bear their own costs.