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Ankur Shrivastava

Vth YEAR B.B.A. L.L.B., SYMBIOSIS LAW SCHOOL, PUNE

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ANKUR SHRIVASTAVA

BRIEF HISTORY

On the fateful night intervening 2nd/3rd December, 1984 there was massive leakage of Methyl Isocyanate Gas from the storage tank of Union Carbide Corporation Plant situated in the city of Bhopal, which resulted into death of approx. 5600 persons and more than approx. six lac people have suffered injuries and various ailments.

On 4.8.1885 Union of India filed a suit for compensation in USA District Court. The suit was dismissed on 12.5.1986 on the ground of “Forum Non-Conviens”. On 5.9.1986 Govt. of India filed a civil suit in the District Court, Bhopal. An Interim Compensation Order for Rs.305.00 crores was passed by the District Court. The said amount was reduced by the Hon’ble High Court to Rs.250.00 crores. After a long legal battle, finally the Hon’ble Supreme Court of India on 15.2.1989 passed an Order directing the Union Carbide Ltd. to pay US$ 470 million as compensation to be disbursed to the victims of Bhopal Gas Leak Disaster. The payment was received by the end of March, 1989. Union Carbide Corporation in compliance to the Order dated 7.6.1985, of the Judge Kinen in the court proceedings conducted in the Union State of America, had already paid US$ 5 million, hence, the balance amount of US$465 million was deposited by UCC. Accordingly, Rs.58.99 crores representing the rupee component of US$45 million and US$420 million were deposited with the Reserve Bank of India in the name of Registrar, Supreme Court of India

In the meanwhile, Govt. of M.P. has initiated the work of filling up of claim form by the claimants of Bhopal Gas Leak Disaster to collect the whereabouts of the victims and the loss caused to them. This process was undertaken in 1985 and 1988-89.

Now the question was as to how the compensation be disbursed to the actual victims of Bhopal Gas Leak Disaster? The Hon’ble Supreme Court in its Order dated 16th October, 1992 has specifically directed that this amount shall be utilized only for the satisfaction of the claims of the victims towards compensation determined according to law. The Office of the Welfare Commissioner, Bhopal Gas Vicim, Bhopal was established under the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 enacted by the Parliament, which came in to force w.e.f. 20.21.1985. This nucleus office was created w.e.f. 22.11.85, with an object to adjudicate the claims and disburse the compensation to the victims of Bhopal Gas Tragedy and this Herculean task of adjudicating the claim cases was assigned to the Hon’ble Welfare Commissioner under the provision of Act and the Scheme framed thereunder.

STATUS OF CLAIMS FOR COMPENSATION

As an obvious procedure, the Claim Form filled by the victims were handed over to the Office of the Welfare Commissioner, Bhopal Gas Victims, Bhopal by the State Govt. of Madhya Pradesh. The number of claim forms were:-

S.No.  Category  No. of Cases

1. ‘01’ Personal Injury Cases  5,97,908

2. ‘02’ Loss of Live Stock 612

3. ‘03’ Loss of Property & Business 4,745

4. ‘04’ Death Claims 15,310

5. ‘05’ Claims of Corporations and other Institutions 84

TOTAL 6,18,659

As per requirement of the provisions of the Act and the Scheme referred herein above, a fresh notification was issued in December, 1996 by the Hon’ble Welfare Commissioner inviting claims from those gas victims, who, for some reason, had failed to register their claim with the State Government in the previous instance. As a result further claim forms were received as per detailed below:-

S.No. Category No. of Cases

1. ‘01’ Personal Injury Cases 403815

2. ‘02’ Loss of Live Stock 46

3. ‘03’ Loss of Property & Business 156

4. ‘04’ Death Claims 6839

5. ‘05’ Claims of Corporations and other Institutions Nil

TOTAL 410856

Thus, a total of 1029516 claim cases were registered under the categories as detailed below, for adjudication:-

S.No. Category No. of Cases

1. ‘01’ Personal Injury Cases 1001723

2. ‘02’ Loss of Live Stock 658

3. ‘03’ Loss of Property & Business 4901

4. ‘04’ Death Claims 22149

5. ‘05’ Claims of Corporations and other Institutions 85

TOTAL 1029516

During the course of these procedures, a Medical Survey was conducted by the ICMR and as a result of the Survey only 36 Municipal Wards of Bhopal were affirmed as affected and the rest of 20 Wards were declared as unaffected.

FUNCTIONS ALLOCATED TO THE OFFICE OF THE WELFARE COMMISSIONER, BHOPAL GAS VICTIMS, BHOPAL

The Gas Tribunals were established in each Ward and the adjudication of claim cases were started w.e.f. 3rd February, 1992. The following functions were allocated to the Organisation (Under the Act and the Scheme framed by the Govt. of India in view of Section 9 of the Act), that:-

a) the registration of the claims under the Scheme and all matters connected with such registration;

b) the processing of the claims for securing their enforcement and matters connected therewith;

c) the maintenance of records and registers in respect of the claims;

d) the creation of a fund for meeting expenses in connection with the administration of the Schemes and of the provisions of this Act;

e) the amounts which the Central Govt. may, after due appropriation made by the Parliament by law in that behalf, credit to the fund referred to in clause (d) and any other amounts, which may be credited to such fund;

f) the utilization by way of disbursal (including apportionment) or otherwise, of any amount received in satisfaction of the Scheme.

g) the judicial officer of a rank not lower than that of a District Judge, who may make such disbursal or apportionment in the event of a dispute;

h) the maintenance and audit of accounts with respect to the amounts referred to in Clauses (d) and (f).

ORGANISATIONAL STRUCTURE

The Ministry had accorded sanction for creation of 1463 posts in various cadre between 1991-1992 and 1992-93, which includes Commissioner, Registrar, Additional Registrar, Addl. Welfare Commissioner, Dy. Commissioner, Financial Advisor, Pay and Accounts Officer, Accounts Officer and Class-III and IV Staff. A sitting Judge of High Court is appointed as Welfare Commissioner and the services of Judicial Officers were borrowed on deputation from the High Court of M.P. to appoint as Registrar, Additional Registrar, Addl. Welfare Commissioner and Dy. Welfare Commissioners.

FUNCTIONS OF THE OFFICIALS

Welfare Commissioner:- The Welfare Commissioner is the Head of the Department for operation and processing of claims for Bhopal Gas Victims. Account fund. He, as per the Scheme, shall be the Incharge of supervising the work relating to receipt, registration, processing and settlement of claims filed under the Scheme and all other matters connected with the administration of the said Scheme and all other matters connected with the administration of the said Scheme.

The Commissioner, under the provision of Act & Scheme, may call for the record of any claim, if he considers it necessary, revise for reasons to be recorded in writing, the orders passed thereon exercising the powers of suo motu revision.

List of Welfare Commissioners appointed so far with their names, tenure, etc.

S.No. Name of Welfare Commissioners Period

1. Hon’ble Shri Justice P.D. Muley 22.11.1985 to 17.08.1989

2. Hon’ble Shri Justice A.G. Qureshi 18.08.1989 to 05.12.1994

3. Hon’ble Shri Justice S.B. Sakrikar 18.09.1995 to 28.12.2002

4. Hon’ble Shri Justice Deepak Verma 29.03.2003 to 28.03.2008

5. Hon’ble Shri Justice R.S. Garg 21.06.2008 to 18.06.2010

Registrar:- The Govt. of India declared the Registrar as Head of the Office for the purpose of operation and processing of claims of Bhopal Gas Victims Account Fund. The Registrar is also authorized to sanction and incur contingent and miscellaneous expenditure.

Addl. Welfare Commissioners:- Addl. Welfare Commissioners are the Appellate Authority. In case of any dispute with regard to quantum of compensation amount or allocation of compensation among the L.Rs. as per law or any issue, whatsoever, related to disposal of claim case, an appeal can be filed before the Addl. Welfare Commissioner, who may decide the matter and make such decision as he may, for the reasons recorded in writing, deem fit.

Where appeal has not been filed against the Order of the Dy. Welfare Commissioner, the Addl. Welfare Commissioner may call for the record of any claim and after re-examination of the record, he may modify the Order passed by the Dy. Welfare Commissioner for the reasons recorded in writing.

Dy. Welfare Commissioner:- The Dy. Welfare Commissioner is the authority for registration of claims including the receipt, scrutiny and proper categorization. He is assisted by other staff for scrutiny and verification of claims. He is also Incharge of Claim Tribunal and decide the quantum of compensation payable to each claimant within its jurisdiction.

 ADJUDICATION AND COMPENSATION AWARD:-

The claims compensations were decided on the basis of old ration-card pertaining to the year 1984, Tata Survey Report and Medical Prescriptions. The compensation amount was awarded in those claims only where resident/presence of the claimant in the gas affected area on the fateful night is proved and a minimum of Rs.25,000/- was paid to the claimant on proving his claim and the enhanced amount was paid to those claimants who have proved the ailments suffered by them based on the severity of ailment. The claim forms were though filled up under ‘01’ Personal Injury & ‘04’ Death Cases, but during adjudication the compensation was awarded according to severity of the injury caused, which are sub-categorized as (i) Minor Injuries, (ii) Permanent Disablement, (iii) Temporary Disability and (iv) Utmost Severity cases. Detailed statement of showing No. of Cases Registered, Decided and Awarded are given below:-

Category No. of

Cases Regd. Decided No. of Awarded Cases Total Amt Awarded

(Rs. in Crores) Total Amount Disbursed

(Rs. in Crores)

‘01’ Personal Injury

Minor Injuries 964773 964773 521333 1310.79 1310.14

Permanent Disablement 3210 3210 3199 15.48 17.42

Temporary Disability 33691 33691 33672 130.89 130.31

Utmost Severity Case 49 49 42 0.41 0.36

‘02’ Loss of Live Stock 658 658 233 0.11 0.07

‘03’ Loss of Property 4902 4902 547 0.14 0.13

‘04’ Death 22150 22150 5295 54.64 88.85

Minor Injuries 6561 17.74

Permanent Disablement 1703 9.73

Temporary Disability 1783 6.75

Utmost Severity Case 0 0

‘05’ PSUs 84 84 08 1.87 1.87

Total 1029517 1029517 574376 1548.55 1549.15

Since, a large number of claim forms were filled up by the residents of unaffected wards, they were found not justified for receiving the gas claim compensation, and therefore, those claim forms were rejected. The approx. number of claim forms pertaining to unaffected wards come to 4,55,191.

The opportunity of hearing has been provided to those claimants, whose cases have been rejected in their absence and to give them finality, a notification was issued on 5th February, 2000. 52,353 restoration applications have been received and again in compliance of the directions of Hon’ble the Supreme Court, names of 3,99,490 gas victims, whose claims have been rejected in absence, were published in local Hindi daily newspaper, i.e. Dainik Bhaskar from 30th April, 2001 to 31st May, 2001 continuously and 42,520 restoration applications had been received and decided.

Distribution of the compensation has been carried out as per the directives of the Supreme Court and case has been taken that amount has to be used for claim compensation only. The settlement amount of Rs.710.21 crores in Indian currency was kept with the Reserve Bank of India in dollar component. Funds are released by the Reserve Bank of India only after certification of the Welfare Commissioner to this effect. Initially 50 million dollars were converted into rupees and balance amount of US$420 million were retained as Dollar Component. Whenever the money is withdrawn, the rupee component has been exhausted first and then only dollar deposits are used.

PRO RATA ALLOTMENT OF COMPENSATION

The Reserve Bank of India invested the amount in various securities. The Government of India agreed to pay the exchange rate, which was US$ 6.55 equivalent to Rs.100 at that time. Due to increase in value of Dollar and exchange rate variation the settlement amount got increase from Rs.710.21 crores to Rs.3114.56 crores approx. in the year 2007, which was the total amount available with the Reserve Bank of India for disbursement of compensation to Gas Victims.

The Hon’ble Supreme Court vide Order dated 19th July, 2004 directed this Organisation to disburse the balance amount of Rs.1,503.00 crores as pro-rata compensation to the persons, whose claims have been settled and action plan showing the modus operandi for disbursement of Pro-rata Compensation was sought. An action plan was submitted before the Supreme Court and after the Hon’ble Supreme Court approved the action plan, action was initiated for disbursement of pro-rata compensation.

Term ‘Pro-rata’ has been understood as disbursement is to be made in the same proportion, as the compensation already awarded, e.g. for a victim, who has already been awarded a sum of Rs.25,000/-, then he would be entitled for further compensation of Rs.25,000/-. Accordingly, disbursement process started, notices were served to all eligible claimants and pro-rata disbursement commenced on 15th November, 2004.

Statement showing disbursal of Pro-rata Compensation to the eligible claimants is as below:-

Category No. of Awarded Cases Total Amt Awarded

(Rs. in Crores) Total Amount Disbursed

(Rs. in Crores)

‘01’ Personal Injury 546992 1420.22 1420.12

‘02’ Loss of Live Stock 158 0.07 0.06

‘03’ Loss of Property 327 0.09 0.09

‘04’ Death 15241 88.11 88.05

‘05’ PSUs 6 1.87 1.87

Total 562724 1510.36 1510.19

The process of disbursement of prorata compensation is still on. In 562724 cases Rs.1510.19 crores have been disbursed as pro-rata compensation.

The claimants in 11,652 cases (approximately) have not appeared to receive pro-rata compensation despite issue of notice to their last known address and also by notification in Newspapers. This Office has made a prayer for closing these cases. However, Hon’ble Supreme Court has directed to supply a list of these claimants to the NGOs for verification of the claimants, which has been supplied to the NGOs. The said list was provided to all the NGOs, but, no considerable reduction in pending cases have been reflected.

OBSERVATIONS

From the study of the awarded cases it is observed that compensation was disbursed after 1992 to the victims, i.e., after a delay of 8 years from the date of incident. For this lapse atleast interest on the compensation amount should have been given to the victims.

It is also observed from the case study and from the information gathered from the Office of the Welfare Commissioner that for disposal of cases of 36 Wards separate Tribunals were established in the Ward locality and separate Dy. Commissioners were deputed in each Tribunal and this is the reason that difference in pattern of disposal is visible. This difference in disposal pattern has created many problems and it is has also affected the Court decorum. If only all the Tribunal have been commissioned in the same locality, these problems could have been checked and uniformity in the work pattern could have been maintained. Whole work, which was typically complicated in nature, could have concluded in a better manner and Judicial Officers could have processed this Challenging Task in identical manner.

But the best part in the adjudication of the cases was the ‘basis’ on which the award was passed, viz. Medical Documentation, Oral Evidence, Ration-card, Tata Survey and Ailments with which the victims has suffered, which was properly appreciated and compensation was award accordingly.

 


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mandeep chanana
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good work done

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