Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
CASE NO.:
Appeal (civil) 3187-88 of 1988
PETITIONER:
Bhopal Gas Peedith Mahila Udyog Sangathan & Anr.
RESPONDENT:
Union of India
DATE OF JUDGMENT: 04/05/2007
BENCH:
C.K. THAKKER & H.S. BEDI
JUDGMENT:
JUDGMENT
IN
I.A. Nos. 48-49
C.K. THAKKER, J.
1. The present two interlocutory applications are filed by the applicants,
(i) Bhopal Gas Peedith Mahila Udyog Sanghathan (’BGPMUS’ for short) and
(ii) Bhopal Gas Peedith Sangharsh Sahayog Samiti (’BGPSSS’ for short) inter
alia praying to re-examine the inadequacy of Bhopal Gas Settlement; to
direct Union of India to compensate the Settlement Fund five times the
initial fund; to order the Reserve Bank of India to provide detailed
information on management and utilization of the Settlement Fund by
rendering faithful accounts relating to withdrawal of funds by Welfare
Commissioner; to command Welfare Commissioner, Bhopal to provide complete
information regarding process of identification and categorization of gas
victims and the manner of disbursement of compensation to them; to rectify
the methodology in the process of identification and categorization of gas
victims and the manner of disbursement of compensation of amounts by
enhancing compensation appropriately.
2. The case relates to Bhopal Gas Tragedy. On December 2, 1984, there was a
massive escape of lethal gas from a storage tank at Bhopal plant of the
Union Carbide (India) Ltd. resulting in large scale of deaths, injuries to
several persons and destruction of properties, livestock, etc. Several
suits were filed for compensation and damages in different courts in India
as also in the United States. Prosecution had also been launched.
Ultimately, however, a settlement had been arrived at between the Union of
India and the Union Carbide. The Union of India agreed to withdraw all
cases and claims against the Union Carbide and its officers. For the said
purpose, Parliament also enacted an Act known as the Bhopal Gas Leak
Disaster (Processing of Claims) Act, 1985 which empowered the Union of
India to take over the conduct of all litigation in regard to claims
arising out of gas disaster and to award compensation to the victims and
affected persons.
3. According to the applicants, BGPMUS is an organization formed by the
Bhopal Gas Victims in 1986. Likewise, BGPSSS is an association constituted
in 1989 by a coalition of over 20 voluntary organizations of Scientists,
Lawyers, Teachers, Artists, Journalists, Workers, Women, Students, Youths
etc. The object of these two organizations is to support the struggle of
the Bhopal Gas Victims for justice. Both the organizations have
consistently championed the cause of Bhopal Gas Victims by seeking
medical/economic/social relief and also payment of adequate compensation.
It was stated in the applications that several steps were taken by the
organizations so as to provide Bhopal Gas Victims and their families
benefits to which they were entitled. Reference was made to various orders
passed by this Court from time to time and it was stated that neither all
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
eligible victims had been identified and ascertained nor adequate
compensation had been paid to them. It was also alleged that though many
persons lost their lives and several others injured, the number of cases in
which compensation had been awarded under the head ’death’ (category ’04’)
were very small. Likewise, compensation awarded to persons who sustained
’injury’ (category ’01’) were also showed to be less and several others had
not been paid any amount whatsoever. It was asserted that the magnitude of
the disaster in case of ’death’ as also ’injury’ was at least five times
larger than what was assumed at the time settlement had been reached. It
was, therefore, prayed that appropriate directions be issued so that all
Bhopal Gas Victims may get compensation as gas victims/affected persons.
4. Notice was issued pursuant to which the respondents appeared. Counter
affidavits were filed on behalf of the Union of India contesting the
applications. It was, inter alia, contended that the applications were
based on assumptions, surmises and conjectures and on misreading of
judgments of this Court. According to the respondents, the applicants are
trying to reiterate and reopen the issue as to compensation which had been
settled with the Union Carbide Corporation (UCC) and the Union of India and
this Court had approved the said settlement. Even adequacy of amount of
compensation has been finally decided by this Court. The applications,
therefore, are liable to be dismissed. Further affidavits were also filed
by the parties.
5. We have heard the learned counsel appearing on both the sides.
6. The learned counsel for the applicants contended that the applications
deserve to be allowed on the ground that there were many more deaths under
category ’04’ than what was shown by the respondents and compensation had
been paid. In the same manner, injuries were sustained by several persons
than to whom compensation had been awarded under category ’01’. For the
said purpose, attention of the Court was invited to the figures which had
been placed on record. Reference was also made to 2003 Annual Report
published by the Bhopal Gas Tragedy (Relief and Rehabilitation) Department.
Reliance was placed on an order dated July 19, 2004 passed by a two Judge
Bench of this Court and an order dated August 23, 2006 passed in the
present applications. It was submitted that when authentic figures are
available as to ’death’ and ’injury’ cases, appropriate directions may be
issued to the Union of India to pay compensation to gas victims under both
the heads i.e. ’death’ (category ’04’) and ’injury’ (category ’01’). It was
also submitted that such payment must be made in US Dollars and not in
Indian Rupees since the settlement was with a Foreign Company and the
amount had been paid in US Dollars. Since the victims had not been paid
their legal dues, the applicants were constrained to approach this Court by
filing the present applications.
7. The learned Additional Solicitor General, on the other hand, submitted
that from 1989 onwards, several orders had been passed by this Court from
time to time. A Scheme was framed in exercise of statutory power which
provided for processing of claims and in accordance with the procedure laid
down therein, claims had been adjudicated and payment of compensation had
been made. It was also stated that even now, if the applicants feel that
the cases of ’death’ (category ’04’) or of ’personal injury’ (category
’01’) are more, a remedy available to the victims is not to approach this
Court by filing Writ Petitions or Interlocutory Applications, but to invoke
the Scheme and to get the claims adjudicated. It was, therefore, submitted
that the applications are liable to be dismissed.
8. Having heard the learned counsel for the parties, in our opinion, the
present applications filed by the organizations are not well-founded and
cannot be allowed.
9. So far as re-examination of settlement or inadequacy of amount is
concerned, in our opinion, it cannot be done as the said issue has already
been decided by this Court. In this connection, we may refer to a decision
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
of a Constitution Bench of this Court in Union Carbide Corporation v. Union
of India & Ors., [1989] 1 SCC 674. In that case, after ’careful
consideration’ of the facts and circumstances of the case, the Court held
the case to be pre-eminently fit for an ’overall settlement’ between the
parties covering all litigations, claims, rights and liabilities related to
and arising out of the disaster. The Court, therefore, passed the following
order observing that it was just, equitable and reasonable.
The Court stated;
"We order :
(1) The Union Carbide Corporation shall pay a sum of U.S. Dollars 470
millions (Four hundred and seventy Millions) to the Union of India in full
settlement of all claims, rights and liabilities related to and arising out
of the Bhopal Gas disaster.
(2) The aforesaid sum shall be paid by the Union Carbide Corporation to
the Union of India on or before 31st March, 1989.
(3) To enable the effectuation of the settlement, all civil proceedings
related to and arising out of the Bhopal Gas disaster shall hereby stand
transferred to this Court and shall stand concluded in terms of the
settlement, and all criminal proceedings related to and arising out of the
disaster shall stand quashed wherever these may be pending".
10. Regarding ’death’ (category ’04’) and ’personal injury’ (category ’01’)
in Union Carbide Corporation v. Union of India & Ors., [1989] 3 SCC 38, the
same Bench observed that there were about 3,000 cases of ’death’ and 30,000
cases of ’personal injury’. In paragraphs 21 to 24, the Court stated:
"21. The figures adopted by the High Court in regard to the number of fatal
cases and cases of serious personal injuries do not appear to have been
disputed by anybody before the High Court. These data and estimates of the
High Court had a particular significance in the settlement. Then again, it
was not disputed before us that the total number of fatal cases was about
3000 and of grievous and serious personal injuries, as verifiable from the
records of the hospitals of cases treated at Bhopal, was in the
neighborhood of 30,000. It would not be unreasonable to expect that persons
suffering serious and substantially compensatable injuries would have gone
to hospitals for treatment. It would also appear that within about 8 months
of the occurrence, a survey had been conducted for purposes of
identification of cases of death and grievous and serious injuries for
purposes of distribution of certain ex-gratia payments sanctioned by
Government. These figures were, it would appear, less than ten thousand.
22. In these circumstances, as a rough and ready estimate, this Court took
into consideration the prima facie findings of the High Court and estimated
the number of fatal cases at 3000 where compensation could range from Rs. 1
lakh to Rs. 3 lakhs. This would account for Rs. 70/-crores, nearly 3 times
higher than what would, otherwise, be awarded in comparable cases in motor
vehicles accident claims.
23. Death has an inexorable finality about it. Human lives that have been
lost were precious and in that sense priceless and invaluable. But the law
can compensate the estate of a person whose life is lost by the wrongful
act of another only in the way the law is equipped to compensate i.e. by
monetary compensations calculated on certain well-recognized principles.
"Loss to the estate" which is the entitlement of the estate and the \007loss
of dependency’ estimated on the basis of capitalized present-value
awardable to the heirs and dependants, are the main components in the
computation of compensation in fatal accident actions. But, the High Court
in estimating the value of compensation had adopted a higher basis.
24. So far as personal injury cases are concerned, about 30000 was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
estimated as cases of permanent total or partial disability. Compensation
ranging from Rs. 2 lakhs to Rs. 50,000/- per individual according as the
disability is total or partial and degrees of the latter was envisaged.
This alone would account for Rs. 250/- crores. In another 20,000/- cases of
temporary total or partial disability compensation ranging from Rs. 1 lakh
down to Rs. 25000/- depending on the nature and extent of the injuries and
extent and degree of the temporary incapacitation accounting for a further
allocation of Rs. 100/- crores was envisaged. Again, there might be
possibility of injuries of utmost severity in which case even Rs. 4 lakhs
per individual might have to be considered. Rs. 80 crores, additionally for
about 2000 of such cases were envisaged. A sum of Rs. 500 crores
approximately was thought of as allocable to the fatal cases and 42,000
cases of such serious personal injuries leaving behind in their trail total
or partial incapacitation cither of permanent or temporary character".
11. The Court, however, was conscious of the ground reality and proceeded
to observe:
"29. ....These apportionments are merely broad considerations generally
guiding the idea of reasonableness of the overall basis of settlement. This
exercise is not a pre-determination of the quantum of compensation amongst
the claimants either individually or category-wise. No individual claimant
shall be entitled to claim a particular quantum of compensation even if his
case is found to fall within any of the broad categories indicated above.
The determination of the actual quantum of compensation payable to the
claimants has to be done by the authorities under the Act, on the basis of
the facts of each case and without reference to the hypothetical
quantifications made only for purposes of an overall view of the adequacy
of the amount.
30. These are the broad and general assumptions underlying the concept of
’justness’ of the determination of the quantum. If the total number of
cases of death or of permanent, total or partial, disabilities or of what
may be called ’catastrophic’ injuries is shown to be so large that the
basic assumptions underlying the settlement become wholly unrelated to the
realities, the element of ’justness’ of the determination and of the
’truth’ of its factual foundation would seriously be impaired. The
’justness’ of the settlement is based on these assumptions of truth.
Indeed, there might be different opinions of the interpretation of laws or
on questions of policy or even on what may be considered wise or unwise;
but when one speaks of justice and truth, these words mean the same thing
to all men whose judgment is uncommitted".
12. It may also be appropriate to observe here that an Act had been enacted
by Parliament known as ’the Bhopal Gas Leak Disaster (Processing of Claims)
Act, 1985’ referred to above, validity of which had been upheld by a
Constitution Bench of this Court in Charan Lal Sahu v. Union of India,
[1990] 1 SCC 613. Section 9 of the Act empowered the Central Government to
frame a Scheme for carrying into effect the purposes of the Act. In
exercise of the said power, the Central Government framed a Scheme known as
the ’Bhopal Gas Leak Disaster (Registration and Processing of Claims)
Scheme, 1985’. The Scheme is a ’complete Code’ in itself. Para 3 of the
Scheme enables the authorities to register claims lodged before them.
Whereas Para 4 (and 4A) deals with manner of filing claims, Para 5 provides
for categorization and registration of claims. Para 6 requires the Deputy
Commissioner to take into consideration matters for categorization of
claims. Procedure has been laid down in Para 8. Paras 9 and 10 deal with
Processing of Claims Account Fund and Claims and Relief Fund respectively.
Para 11 of the Scheme relates to determination of quantum of compensation
payable to claimants. Clause (5) of Para 11 provides for appeal against an
order passed by the Deputy Commissioner to the Additional Commissioner.
Para 13 enumerates functions of Commissioner and other officers appointed
under the Act. It also confers revisional jurisdiction on Additional
Commissioner over an order passed by the Deputy Commissioner.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
13. In Union Carbide Corporation & Ors. v. Union of India & Ors., [1991] 4
SCC 584, this Court ensured that no victim of Bhopal Gas Tragedy would be
deprived of the benefit to which he/she is otherwise entitled. The Court,
accordingly, proclaimed;
"After a careful thought, it appears to us that while it may not be
wise or proper to deprive the victims of the benefit of the
settlement, it is, however, necessary to ensure that in the perhaps
unlikely-event of the settlement-fund being found inadequate to
meet the compensation determined in respect of all the present
claimants, those persons who may have their claims determined after
the fund is exhausted are not left to fend themselves. But, such a
contingency may not arise having regard to the size of the
settlement-fund. If it should arise, the reasonable way to protect
the interests of the victims is to hold that the Union of India, as
a welfare State and in the circumstances in which the settlement
was made, should not be found wanting in making good the
deficiency, if any. We hold and declare accordingly".
(emphasis supplied)
14. So far as the amount of compensation is concerned, the Government of
India issued guidelines by notification dated April 13, 1992 providing for
compensation payable in cases of death, injury, loss of belongings, loss of
livestock etc. The relevant categories and the amount of compensation read
thus:
CATEGORY RANGE/CEILING (Rs.)
Deaths 1-3 lakhs
Permanent total or partial disability 50,000 to 2 lakhs
Injury of utmost severity Upto 4 lakhs
Claims for minor injuries Upto 20,000
Loss of belongings Upto 15,000
Loss of livestock Upto 10,000
15. In Krishna Mohan Shukla v. Union of India & Ors., [2000] 10 SCC 507,
this Court held that the decision of the Deputy Commissioner to put a claim
in a particular categorization is a quasi judicial decision and not an
administrative one. Such order is appealable as also revisable and even
thereafter it could be challenged by invoking the doctrine of judicial
review.
16. Again, in Krishna Mohan Shukla v.Union of India, [2000] 2 SCC 690, this
Court considered the relevant paras of the Scheme and placement of claims
under different categories mentioned in Para 5 of the Scheme. It also
considered the grievances against placement of claims and remedy available
to the aggrieved party in such cases. It observed that effective remedy is
available to the aggrieved party and such remedy is exhaustive. The Court
highlighted an important fact that a Welfare Commissioner was a sitting
Judge of the Madhya Pradesh High Court and normally, therefore, the
claimant should have no cause of grievance after the decision by the
Welfare Commissioner. But even thereafter, a remedy under Articles 226 and
227 of the Constitution was available.
17. In para 8, the Court observed;
"8. As we see it, the limits within which compensation can be awarded for
claimants falling under different categories in Para 5, the Central
Government has specified the amounts under Para 11(2). Specific ailments
are not mentioned therein. In practice, the Deputy Welfare Commissioner and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
the Additional Welfare Commissioner have to deal with ailments and the
question would arise as to under what category of Para 5 of the Scheme
would they fall and secondly as to what is the specific amount which is
payable to them within the scale. The Committee of Deputy Commissioners
appear to have formulated a yardstick which would obviously avoid delay in
the determination of the amount of compensation which is payable. In a
modification carried out on 6th December, 1997, it has been made clear, and
in our opinion rightly so, that the amount determined as compensation for
different types of ailments is not final. It will be subject to
determination afresh, if called in question, either in appeal or in
revision before the Welfare Commissioner. We would at this stage like to
emphasise that we have seen orders passed by the Welfare Commissioner where
he has entertained revision petitions against the orders in appeal passed
by the Additional Commissioner. A Welfare Commissioner is a sitting Judge
of the Madhya Pradesh High Court and normally, therefore, the claimant
should have no cause of grievance after the decision by the Welfare
Commissioner. Even if thereafter there is some grievance, the right of
judicial review, inter alia, provided by Articles 226 and 227 of the
Constitution is always available. There can be little doubt that the
aggrieved persons are entitled to receive fair and just compensation and/or
damages due to them. There is now a system in place and any claims which
are made have to be determined within this system. There is first
determination by the Deputy Welfare Commissioner against which an appeal
can be filed to the Additional Welfare Commissioner and thereafter a
revision to the Welfare Commissioner. If even then there is a grievance of
a claimant, proper remedy is to approach the High Court who would be in a
position to deal with a case more expeditiously and give relief to the
individual claimant, where it is called for, without undue expense, rather
than approaching this Court under Article 32 or Article 136 of the
Constitution".
18. In Para 11, this Court expressly stated that if any of the claimants
had any grievance against an order passed by the Welfare Commissioner or by
the Tribunal, it was open to the claimant to seek judicial review but
"first it must be sought before the High Court rather than filing a writ
petition under Article 32 or a special leave petition under Article 136
directly in this Court".
19. From what we have stated hereinabove, it is abundantly clear that this
Court has streamlined the claims arising out of Bhopal Gas Tragedy
Disaster. Precisely to deal with the cases of Bhopal Gas Tragedy that an
Act has been enacted, a Scheme has been framed under the Act and the
Procedure has been laid down. They have been held to be constitutional and
intra vires. Any person lodging a claim is required to make an application
and a duty is cast on the Authority to take an appropriate decision on the
basis of the Scheme and Guidelines. Such adjudication has been held quasi-
judicial in nature subject to appeal, revision and judicial review before
the High Court under Articles 226 & 227 and even thereafter before this
Court under Article 136 of the Constitution. Since the consideration of
claim and adjudication thereof require determination of facts, the Court
ruled that it must be done in accordance with the Scheme, Guidelines and
Procedure under the Act and not in any other manner. So far as compensation
is concerned, this Court has held that it should be in Indian currency and
even under the Scheme, such amount is fixed in Indian Rupees. We,
therefore, see no grievance now can be made on that issue.
20. The learned Additional Solicitor General stated that several false and
vexatious claims under category ’04’ (death) and category ’01’ (injury) had
been lodged. It would not be appropriate for this Court to express any
opinion one way or the other, particularly in the light of the decisions of
larger Bench of this Court referred to hereinabove. If any person claims
that he/she is adversely affected by Bhopal Gas Tragedy Disaster, he/she is
at liberty to take appropriate steps as suggested by this Court in the
above cases but not in any other manner.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
21. For the foregoing reasons, in our considered opinion, no case has been
made out to issue any direction in the interlocutory applications. They are
not well founded and are ordered to be dismissed. In the facts and
circumstances of the case, however, there shall be no order as to costs.