Wants Union Carbide Corp, Mcleod Russel India, Union Carbide India to increase compensation from Rs 750 crore to Rs 7,700 crore.
The government on Friday moved the Supreme Court, seeking enhancement of compensation from Rs 750 crore to Rs 7,700 crore for the victims of the 1984 Bhopal gas tragedy in which more than 5,000 people were killed due to leakage of poisonous gas from the Union Carbide factory.
The filing of curative petition coincided with the 26th anniversary of tragedy in which the Ministry of Chemicals and Fertilisers has sought re-examination of the apex court’s February 14, 1989 judgment by which the compensation was fixed at $470 million (Rs 750 crore) and subsequent orders of February 15 and May 4 determining the mode of payment and settlement.
The apex court had also dismissed the petition to review its judgments and orders on October 3, 1991.
The petition filed by the Centre in the capacity of legal guardian of the victims of the world’s largest industrial disaster has sought payment of additional damages from Union Carbide Corporation (UCC), Dow Chemicals Company (which owns UCC since 2001), Mcleod Russel India having 50.9 per cent share-holding of UCIL and UCIL, which is currently known as Eveready Industries Ltd.
The curative petition settled by Attorney General G E Vahanvati has contended that the figure of $470 million was arrived by the apex court on “incorrect and wrong assumption of facts and data in the impugned judgments”.
The Centre has submitted that the apex court in its 1989 judgment had observed that the settlement was based on certain “assumptions of truth” and if the said assumptions are unrelated to “realities”, then the “element of justness” of the settlement would seriously be impaired and liberty was given to approach the court.
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The government termed the Bhopal gas tragedy as one of the “rarest of rare cases” and asked the apex court to exercise its jurisdiction to address the error in its judgments on the issue “in public interest” apparent on the face of the record.
It said the companies were responsible for the disaster and as such “the taxpayers’ money cannot be utilised for the purposes of meeting the liability of the companies which are tort feasors (wrong doers)”.
The Centre maintained that UCC and its subsidiary named in its petition are jointly and severally liable for payment of the claims as “it has emerged that basic underlying assumptions of fact and data in the impugned judgments and orders are incorrect, thereby vitiating the very foundation on which the compensation was awarded”.
“As a result, the stand hitherto taken and the various affidavits filed regarding the finality of the impugned judgments and orders of this Court cannot be said to be correct and legal” the curative petition prepared by advocate Devdutt Kamat said.
The Centre contended that in the comprehensive review that was conducted by it in June 2010, it has emerged that the figures that formed the basis of the compensation awarded by this court are “completely incorrect”.
It said the compensation in 1989 was decided on the basis of assessment that there were 3,000 deaths, 20,000 people with temporary injury and 50,000 with minor injury.
However, the figure as estimated now stands as 5,295 deaths, 35,000 people with temporary injury and 527,000 with minor injury, the petition said.
“In these circumstances, the petitioner is approaching this court for remedying the manifest injustice that has resulted from the incorrect assumptions of fact in the impugned orders pursuant to the liberty granted by this court,” the Centre said in its petition.
The government said filing of the curative petition was an attempt by it “to cure gross miscarriage of justice and perpetration of irremediable injustice being suffered by the victims of the Bhopal gas tragedy”.
“It is submitted that the settlement compensation amount determined by this court was based on certain factual assumptions which have been found to be completely incorrect and far removed from reality. This has vitiated the very basis of the compensation,” it said.
It is submitted that the judgments and orders also do not take into account the impact of the disaster on the environment and that the respondents are liable to pay the costs on account of environmental degradation. The petition said it was claiming compensation on behalf of the victims as Rs 1,743.15 crore was incurred by it on account of actual expenditure incurred by the state towards relief and rehabilition measures.
The Centre said it was claiming Rs 315.7 crore on account of remedial measures to be undertaken for environmental degradation on the basis of “polluter pays principle”.
The petition said the grievances raised had to be addressed by the court, as the “justness” and the “reasonableness” of the compensation amount of $470 million is in serious jeopardy on account of factual inaccuracies.
“If death cases alone have been found to be almost double than what was assumed in the impugned order and minor injury cases have been found to be more than 10 times of the original assumed figure in the impugned order, the settlement of compensation amount cannot be considered to be reasonable,” it said.
It is submitted that the companies which were wrong-doers cannot escape liability to pay reasonable compensation to all the victims of the tragedy.
“It is submitted that the they cannot shirk away from making good the additional compensation payable to the additional victims whose facts and figures were not reckoned by this court when the settlement was recorded in 1989,” the Centre said.
It said the companies were also liable under the doctrine of strict liability in law to compensate these additional victims for the loss caused to them.
The errors which were apparent on the face of record and which led the court to arrive at the figure of $470 million as compensation in 1989 was based on the fact that there were 3,000 deaths for which the compensation was between the range of Rs 1-3 lakh.
However, the Centre said the figure of fatalities as estimated by this court are completely incorrect.
“The figures of death are 15,295 cases, an increase of almost 76.5 per cent more than the original figures,” it said.
In respect of temporary disability cases, the apex court allocated a sum of Rs 100 crore and assumed that the figure of temporary disability was 20,000 cases which were to be paid, on an average, a sum of Rs 50,000 in each case.
However, the actual number of temporary disability cases is 35,455 and an additional amount of Rs 77.27 crore is required to cover the additional 15,455 cases, the petition said.
An allocation of Rs 100 crore was made for minor injury cases for 50,000 people. However, the minor injury claims have risen to 5,27,894 persons. Thus, an additional amount of Rs 955.79 crore is required over and above the Rs 100 crore originally envisaged, the Centre maintained.