Air Disaster and the Law

AIR DISASTER AND THE LAW
RAJEEV DHAVAN


Can Indian law, its lawyers, the public interest law movement and legal aid system cope with the misery of a disaster? What remedies are available to the victims of a disaster?

On 22nd May 2010, an Air India plane crashed in Mangalore. 158 persons were killed. Air India (AI) is a financially diseased airline. Discounting the fact that AI’s Canada’s flight of 1985 which was bombed by the Sikh terrorists, AI has an abysmal record including crashes in the Arabian sea in 1978 (213 killed), in Mumbai 1982 (17 killed), in Ahmedabad (1988 – 124 killed), Bangalore in 1990 (92 killed), Imphal in 1991 (69 killed), Aurangabad in 1993 (55 killed), Patna in 2000 (Alliance Air – 60 killed), Mangalore in 2010 (158 killed).

To this may be added the design faults. The Mangalore Airport was created in 1951. Manmohan Singh’s plane could not land there in June 2006. The “table top” runway was reincarnated in a new 2450 metres replacement. Its new terminal building of 2009 is useless to those who die while landing. India has now other table top vulnerables.

Who is responsible? AI certainly. But also the Airport Authority of India and the government. In the Bhopal disaster case of 1989, the Supreme Court placed the government in the position of parens patriae. What is the big parent going to do? In the Air India disaster (1985), Justice Kripal’s special report was sidetracked in favour of business, treating the victims’ predicament as collateral. The ‘terrorist’ angle escalated into drama. The victims were paid routine sums. The ‘Bhopal Gas Tragedy’ led to a much criticized settlement on 14 February 1989, resulting in disbursements with more drama than substance. In the ‘Uphaar’ case the total sums were not sufficient. When Ansals refused to pay, I resigned as their lawyer. But in the Tata Jamshedpur Fire case their counsel left it to the court; which left it to the ex-Chief Justice Chandrachud who dispensed funds of limited significance. In the Punjab Swimming case, the sums were equally dispensed by an intuitive approach by the Supreme Court, which lost the woods for the trees. India’s disaster law is badly trapped in the jurisprudence of common law and motor vehicle cases. Justice Ravindran’s Supreme Court judgment in the Sarla case (a motor vehicles case) sought to standardize death cases by a formula which reduced the damages for death to penurious sums. His reason that ‘formula’ justice would result in immediate payments by insurance is remote from reality.

The response to the Mangalore disaster was typical. Sympathy was offered. Dead and wounded were carried to the destinations. The Chief Ministers of Kerala and Karnataka offered help and support. In honour of the victims two days mourning was declared in Kerala. Ex gratia sums were speculated. This is the routine Indian response to disaster.

Where have the lawyers gone? India’s PIL movement claims great victories. However, it is missing in ‘disaster’ cases – with the possible exception of Bhopal Tragedy, where 25 years later the case lives on. In America, lawyers who go for death cases are “ambulance chasers”, who demand a large percentage of the damages. But PIL and legal aid lawyers are not ambulance chasers. They are expected to perform a public service. As a legal case, one choice of jurisdiction is India – others being place of issue of ticket, domicile or place of business of airline and so on. Earlier, India incorporated the Warsaw Convention 1929 (amended by the Hague Protocol 1972) in the Carriage by Air Act 1972. Now India has joined the Montreal Convention 1999 (signed by 95 countries). What rules will prevail? The old rules limited death liability to $20,000 (or Rs. 9 lakhs) and for baggage $20 per kg. The new Montreal rules increase all this 7 times to $1,40,000 in death cases and maximum liability for lost baggage approximately to $1,400 per passenger.

This is a test case for India. In the Patna Alliance case, the compensation was Rs.5 lakhs – later raised to Rs.7.5 lakhs. The Gujarat courts raised the stakes slightly for the Ahmedabad crash of 1988 – with some issues unresolved. Air India’s major concern will be its damages for the aircraft. Its fleet is insured for $8.59 billion, with an annual premium of $24.3 million. The insurance is backed by a consortium of insurers – traceable to London, with General Insurance Corporation (GIC) stake of 14% of the portfolio. After some haggling, the aircraft will be replaced, but the dead cannot be. Already, the insurance people are seeking to apply the motor vehicles and common law formula based on loss of income and number of dependants. This is Justice Raveendran’s Indian Supreme Court formula to lower damages and routinize low sums on payments. The common law (which our courts follow) has always favoured the rich. The value of an Indian life (even on international travel) is devalued. The unwritten placard on airplanes should say: “If poor from a poor country, your life is valueless to us”.

For the Mangalore air crash, India has to decide whether to follow the Montreal Convention and pay minimally. This is an important decision which insurers, corporates, government and airline will try to short change. Defenseless victims’ families may have their lawyers also take them for a ride. To whom should the victims’ families turn? Given its past record, the Indian legal system may fail them, unless someone takes an activist interest in their predicament. India’s public interest law is very selective in its approach. Disaster resulting in death should not further be perpetuated by legal disaster.

If India wants to be fair to the Mangalore victims, it should ask Air India and its insurers to pay at least $1,60,000 or Rs.75 lakhs or so. This should be minimum for each passenger. This should be the absolute liability figure for Air India. But there are also gross design faults and other negligence of the Airport Authority; for this, a round figure of $2,00,000 should be the minimum amount.

But will this happen? Most disaster cases get settled. This is true of Dalkon Shield, Agent Orange, Bhopal, Thalidomide and many others. The airlines and insurance companies use the best lawyers to fight back with legal brownie points. Bhopal had Nariman! Each brownie point costs lakhs. What we need in this case: (i) A clear statement by Minister for Civil Aviation (Praful Patel) committing Air India and the government to a $2,00,000 per person figure as a minimum figure; (ii) Air India needs to carry the insurance companies with it; (iii) The Union Ministry, Bar Council of India and the National Legal Aid Authority of India should approach a group of lawyers to provide full legal aid and support; (iii) A Public Interest Litigation (PIL) in the Supreme Court should monitor this.

Unfortunately in the past, an Indian life has been treated as having a dramatically lesser value than that of a person from powerful white nations. Indian governments and companies struggle to limit liability. International travel should mean international rates for all. India lacks the will to deal with disaster and death, except with funeral ceremony. For once let us align entitlement with responsibility.

Indian law is hopeless in dealing with disaster. Its disaster makers get careless. AI needs to learn many lessons. Recently, I saw a AI plane on the tarmac. Its tyres were bald. Typically, playing with disaster. If so, honour the victims with their due.