The Capital outlays on the hospital and its opera- tion expenses for providing free treatment and services to the victims should, both on humanitarian considerations and in fulfilment of the offer made before the Bhopal Court, be borne by the UCC and UCIL. It is not part of the function of this Court to reshape the settlement or restructure its terms. This aspect of the further liability is also not a matter on which the UCC and the UCIL had an opportunity to express their views. However, from the tenor of the written submissions made before the District Court at 270
Bhopal, both the UCC and UCIL had offered to fund and pro- vide a hospital for the gas victims. The UCC had reiterated that in January, 1986, it had offered to fund the construc- tion of hospital for the treatment of gas victims the amount being contributed by the UCC and the UCIL in equal propor- tions. It is, no doubt, true that the offer was made in a different context and before an overall settlement. But that should not detract the UCC and the UCIL from fulfilling these obligations, as, indeed, the moral sensibilities to the immense need for relief in all forms and ways should make both the UCC and UCIL forthcoming in this behalf. Such a hospital should be a fully equipped hospital with provi- sion for maintenance for a period of eight years which may involve the financial outlay of around Rs. 50 crores. Con- tingencies such as payment of compensation to the persons who were exposed to the Bhopal gas disaster, who though presently asymptomatic and filed no claim for compensation but might become symptomatic in future and the yet unborn children of mothers exposed to MIC toxicity, who may develop congenital defects, shall be taken care of by obtaining an appropriate medical group insurance cover from the General Insurance Corporation of India or the Life Insurance Corpo- ration of India. There shall be no individual upper monetary limit for the insurance liability. The period of insurance cover should be a period of eight years in the future. The number of persons to be covered by this Group Insurance Scheme should be about and not less than one lakh of per- sons. Having regard to the population of the seriously affected wards of Bhopal city at the time of the disaster and having regard to the addition to the population by the subsequent births extrapolated on the basis of national average of birth rates over the past years and the future period of surveillance, this figure broadly accords with the percentage of population of the affected wards bears to the number of persons found to be affected by medical categori- sation. This insurance cover will virtually serve to render the settlement an open ended one so far as the contingent class of future victims both existing and after-born are concerned. The possible claimants fail into two categories; those who were in existence at the time of exposure; and those who were not yet unborn and whose congenital defects are traceable to MIC toxicity inherited or derived congeni- tally. The premia for the insurance shall be paid by the Union of India out of the settlement fund. The eligible claimants shall be entitled to be paid by the insurer com- pensation on such principles and upon establishment of the nature of the gas related toxic morbidity by such medical standards as are applicable to the other claimants under the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 and the scheme framed thereunder. The individual claimants shall be entitled to have their claims adjudicated under the statutory scheme. [367 G-H; 368 A-H; 369A-B; 370 B-C] U.K. Law Commission Report on "Injuries to Unborn Children". 271
referred to.
Supreme Court of India
Union Carbide Corporation Etc. ... vs Union Of India Etc. Etc on 3 October, 1991
Equivalent citations: 1992 AIR 248, 1991 SCR Supl. (1) 251
Bhopal Gas Disaster (Processing of Claims) Act 1985: Sections 3, 4, 9: Settlement of claims before the Apex Court--Not affording 'Fairness Hearing'- Non-incorporation of re-opener clause - Whether vitiates the settlement- Review of settlement---If set aside by Court-- Whether Court has inherent jurisdiction to order restitution of the fund to the company-Review proceedings-Court would not refuse to afford opportunity to parties on rigid technical grounds--In case funds found inadequate in future--Whether Union of India as Welfare State to make good the deficiency-Whether settlement could be set aside on mere possibility that medical documentation and categorisation were faulty and figures of various kinds of injuries and disablement were undependable--Liability of tortfeasor--Award of compensa- tion--To be proportionate to economic superiority of the offender.
Constitution of India, 1950:
Article 136, 137, 139-A, 142, 145: Inherent jurisdiction under Articles 136 and 142 to withdraw or transfer and finally dispose of the main suits and pending Criminal proceedings in the course of hearing of appeals arising out of interlocutory orders in suits--Whether taken away by Article 139A--Words 'Cause or matter' appearing in Article 142---Meaning and scope of-Apex Court's power to quash criminal proceedings---Court's order recording settlement between parties---Such agreement if opposed to public poli- cy- Whether void and order of settlement liable to be set aside-Special leave jurisdiction--Nature and scope of--Main object--To meet ends of justice--Even specific provision for appeal under the Constitution of other laws not to limit the jurisdiction--'Stifling of prosecution doctrine' --Whether attracted where the motive is to drop Criminal as also Civil proceedings----Doctrine of restitution---Whether applicable to appeals under Article 136--Conferment of immunity from criminal proceedings--Whether legislative function--Whether amounts to preferential treatment---Settlement of claims recorded-Review of---Whether settlement could be set aside on
252
ground of insufficiency of settlement fund-In the event of funds being found insufficient to meet the compensation determined Whether Union of India as Welfare State to make good the deficiency.
Civil Procedure Code, 1908:
Order XXIII, Rule 3B; Sections 112 and 114: Settlement recorded by Court--Principles of natural justice-Persons whose interests affected not made co-nomine parties-Order recording settlement not preceded by notice to such persons--Whether renders the proceedings void--Doctrine of restitution --Applicability of
Law of Torts:
Mass tort action--Court assisted settlement--Non-affording of pre-settlement 'Fairness Hearing' and non-incorporation of 'reopener' clause in the settlement---Whether vitiate the settlement---Assessment of once and for all damages in personal injury actions---Unforeseen but likely future manifestation of the injury-- An important factor to be kept in mind.
Admnistrative Law:
Principles of Natural Justice-Audi alteram pattern rule-Non-compliance with the rule-Effect of--To be viewed in circumstantial flexibility.
Practice & Procedure:
Plea of invalidity based on public policy--Not barred by rule of estoppel.
Procedural technicalities--To yield to paramount considerations of justice and fairness where matter involves moral and humanitarian considerations.
HEADNOTE:
The Union Carbide (India) Ltd.. (UCIL), a sister concern of Union Carbide Corporation (UCC) owned and operated in Bhopal, a chemical plant manufacturing pesticides, one of the ingredients in the composition being Methyl Isocyanate (MIC), considered to be the most toxic chemical in industri- al use.
On the 2nd December, 1984 night there was escape of MIC from the tanks in which it was stored. And the fumes blew into the hutments abutting the plant premises affecting the residents as also the flora and fauna. About 4000 people lost their lives and the health of tens of thousands of people was affected in various degrees of seriousness. The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was
253
passed on 29.3.1985 authorising the Government of India, as parent patriae exclusively to represent the victims so that the interests of victims of the disaster could be fully protected and that the claims for compensation were pursued speedily, effectively and to the best advantage of the claimants. In exercise of the power conferred under the Act, the Union of India instituted an action on behalf of the victims against Union Carbide Corporation before the U.S. District Court, Southern District of New York for award of compensation for the damage caused by the disaster. A large number of fatal accidents and personal injury actions filed by and on behalf of about 1,86,000 victims were already pending in courts in U.S.A. All these claims came to be consolidated by the Judicial Panel on Multi District Litiga- tion and assigned to U.S. District Court, Southern District of New York presided over by Judge Keenan. The claim brought by the Union of India was also consolidated with them. However, the UCC resisted the choice of the American Forum on the plea of forum-non-conveniens. Judge Keenan allowed the plea of UCC and the Union of India was con- strained to alter its choice of forum and to pursue the remedy in the District Court at Bhopal by filing a suit seeking a compensation of 3.3 Billion Dollars against the UCC and UCIL. Efforts for a settlement were not fruitful. The District Court made an order directing payment of Rs. 350 cores as interim compensation. UCC challenged this award before the High Court and the quantum of interim compensa- tion came to be reduced to Rs. 250 cores. Both Union of India and UCC preferred appeals by special leave against the High Court's order.
On 14th February, 1989 this Court recorded an overall settlement of the claims in the suit for 470 million U.S. Dollars and the consequential termination of Civil and Criminal proceedings. On 15th February, 1989 the terms of the settlement signed by the Attorney General for the Union of India and the Counsel for UCC was filed and on the basis of the settlement, this Court passed an order recording the terms of settlement and issuing directions as to the mode of payment of the sum of 470 million U.S. Dollars pursuant to and in terms of the settlement.
The said settlement was assailed in the present Petitions on various grounds.
254
The petitioners contended that this Court had no juris- diction to withdraw and dispose of the main suits and the Criminal proceedings in the course of hearing of appeals arising out of an interlocutory order in the suits. It was further contended that the settlement recorded by this Court was void under Order XXIII Rule 3B of the Code of Civil Procedure as the order was not preceded by notice to the persons whose interests would be affected and who were not Co-nomine parties to the proceedings. It was also contended that the orders quashing the criminal proceedings which were serious non-compoundable offences would not amount to with- drawal of the prosecution even under the inherent powers of this Court either under Section 482 Cr. P.C. or under Arti- cle 142 of the Constitution of India.
Conferment of criminal immunity, by this Court, it was contended, was without jurisdiction, since it was essential- ly a legislative function and grant of Immunity to a partic- ular person or persons may amount to a preferential treat- ment violative of the equality clause. The settlement was also assailed on the ground that the stipulation for absten- tion from future criminal proceedings amounted to stifling of the prosecution and, therefore, it was unlawful and opposed to public policy. The settlement was also assailed on the ground that 'Fairness Hearing' procedure was not followed that the quantum was inadequate and that there was no 're-opener' clause which was very essential in view of the fact that the latency period for the manifestation of the effects of the toxic injuries was unpredictable. It was contended that even if the settlement was to be set aside, the funds should not be allowed to be repatriated as that would embroil the victims in endless litigations to realise the fruits of the decree that might be made in the suit and to realise the order for interim payment. It was also contended that since notices to and opportunities for hearing of the victims represented by the Union of India, were imperative before the settlement was recorded and the denial of the same amounted to violation of the rules of natural justice.
It was further contended that a large number of genuine claims stood excluded on the ground that despite notices the claimants did not appear for medical documentation and so the medical documentation done was not reliable. 255
Through the Union of India did not assail the settle- ment, it sought to support the petitioners' challenge to the validity of the settlement. It was contended on behalf of the Union of India that though it did not dispute the set- tlement, it was not precluded from pointing out the circum- stances in the case which, if accepted, would detract from the legal validity of the settlement.
Disposing of the petitions, this Court,
Print Page
No comments:
Post a Comment