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2014 DIGILAW 81 (MP)

Sushila Bai v. Union of India

2014-01-15

AJIT SINGH, SUBHASH KAKADE

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ORDER As per Subhash Kakade, J. Challenging the order passed by the Welfare Commissioner, Bhopal Gas vide Annexure P-5 on 21-10-2002, in the matter of settling of the claim filed by the petitioner after death of her husband, Late Babulal, this petition has been filed under Article 227 of the Constitution. It is the case of the petitioner that her husband, Late Babulal, was a resident of Ward No. 27, Rang Mahal, Bhopal, a gas affected area. He suffered the ill-effects of the Bhopal Gas Tragedy and ultimately died on 4-7-88. These facts are admitted. Claiming compensation of Rs. 2.00 lacs, on account of death of her husband on 4-7-88, a claim petition was filed under the Bhopal Gas Leak Disaster Processing of Claims Act, 1985 and the learned Dy. Welfare Commissioner by a detailed order passed on 24-11-1995 allowed the claim in part. Even though it was held that Late Babulal died on 4-7-88 and it was also found that he suffered the ill-effects of MIC Gas and was a resident of the gas affected area at the time of the accident, but finding that his death due to ill-effects of the gas is not proved from the evidence, compensation of Rs. 25,000/- for the injuries suffered has been granted. The order passed by the Deputy Commissioner was taken up in suo motu revision by the 4th Additional Welfare Commissioner and vide order dated 10-8-1996, the Additional Commissioner found that as Babulal was not a resident of the gas affected area, no compensation could be granted to him and, therefore, exercising the powers of suo motu revision the entire claim was rejected. The petitioner challenged the same by filing a revision petition before the Welfare Commissioner and the Welfare Commissioner by order dated 21-10-2002 (Annexure P-5) restored the order passed by the Deputy Welfare Commissioner on 24-11-1995 and upheld the compensation granted for the injuries suffered. The Welfare Commissioner found that interference made by the Additional Welfare Commissioner by his order dated 10-8-1996 (Annexure P-4), was not called for. Challenging the claim granted under the category injuries suffered and not on account of death category, this writ petition has been filed. The Welfare Commissioner found that interference made by the Additional Welfare Commissioner by his order dated 10-8-1996 (Annexure P-4), was not called for. Challenging the claim granted under the category injuries suffered and not on account of death category, this writ petition has been filed. It is contended by learned Counsel for the petitioner that once Late Babulal is seen to have died on 4-7-88, then treating him to have died because of the ill-effects of Bhopal Gas Disaster, the entire compensation should have been granted and in allowing the claim only for injuries, it is stated that an error has been committed. Shri O.P. Namdeo, learned Counsel for the respondent-Union of India, refuted the aforesaid and submitted that the findings recorded by the Welfare Commissioner being reasonable, no further indulgence into the matter is called for. We have heard learned Counsel for the parties and perused the record. We find that when the matter was taken up in trial by the Deputy Welfare Commissioner, three issues were framed. The first issue framed was as to whether Late Babulal died on 4-7-88 because of inhaling of the MIC Gas. Issue No. 2 whether the claim filed comes in the category of death case or injury case. Issue No. 3 was with regard to what compensation the claimant is entitled to. Issue Nos. 1 and 2 have been answered by holding that Late Babulal was resident of the area, which was badly affected by the Bhopal Gas, his migration to an area after the incident does not mean that he has not suffered the ill-effects of the MIC Gas. But, finding that there is no direct evidence to say that he died as a consequence of inhaling of the gas, the finding recorded is that even though he died on 4-7-88 but death due to inhaling of the gas is not established, suffering of injury due to inhaling of the gas is established and the compensation awarded. This order is upheld by the Welfare Commissioner also, and once the evidence available on record does not show that the death was the direct result of any cause connected with the inhaling of the gas, compensation in the death category cannot be granted. For establishing the claim of the claimant, two Doctors have been examined. They are Dr. H.K. Jamali (P.W. 4) and Dr. Ajay Khare (P.W. 5). Dr. For establishing the claim of the claimant, two Doctors have been examined. They are Dr. H.K. Jamali (P.W. 4) and Dr. Ajay Khare (P.W. 5). Dr. Jamali is a Private Doctor and he says in his deposition that Babulal was treated by him, he was suffering continuously from ailment of the eyes, breathing problem and various other causes related to ailment. He says that he has prescribed various medicines as is indicated in Exh. P-17. Dr. Ajay Khare (P.W. 5) is a Government Doctor and he was posted in Hamidia Hospital, on 25-12-1984, and he also proves and testifies with regard to the ailment of Babulal and says that he suffered serious ailment on his eyes, nose and had breathing problem. From the statement of both these Doctors, it is clear that Babulal had suffered the ill-effects of gas and was suffering due to burning sensation in his eyes, serious breathing problems and had also some other ailments. However, none of the Doctors and the medical evidence available on record goes to show as to what was the cause of death of Babulal and there is no direct evidence that death which occurred four years after the accident resulted due to inhaling of the gas. Under such circumstances, the finding recorded by the Deputy Welfare Commissioner and the Welfare Commissioner to say that death due to inhaling of the gas is not proved, but injuries sustained are proved is a reasonable finding based on the evidence recorded and we see no reason to interfere into the same. Having held so, the question would be as to whether the compensation awarded is adequate or warrants enhancement ? This Court can take judicial notice of the fact that now a Policy and Circular has been issued by the Government of India on 24-6-2010, wherein category of cases has been classified and a fixed compensation is being granted for each category. The classification of cases done in accordance to the Policy and Circular issued by Government of India reads as under : - Category Compensation Death (5295) Rs. 10 lacs (less amount already received) Permanent Disability (3199) Rs. 5 lacs (less amount already received) Cancer Cases (about 2000) Rs. 2 lacs (less amount already received) Total Renal Failure Cases (about 1000) Rs. 2 lacs (less amount already received) Temporary disability (33,672) Rs. 10 lacs (less amount already received) Permanent Disability (3199) Rs. 5 lacs (less amount already received) Cancer Cases (about 2000) Rs. 2 lacs (less amount already received) Total Renal Failure Cases (about 1000) Rs. 2 lacs (less amount already received) Temporary disability (33,672) Rs. l lac (less amount already received) From the aforesaid, it is clear that in case of death, a fixed compensation of Rs. 10.00 lacs is granted; in cases of permanent disability a fixed compensation of Rs. 5.00 lacs is granted; and, for temporary disability a fixed compensation of Rs. 1.00 lac is granted. In the case of Late Babulal, from the statement of Doctors, it is clear that he was suffering with breathing problem, burning sensation in the eyes and various other connected ailments, which was of a permanent nature and continued till his death. That being so, it can be safely held that Babulal suffered permanent disablement because of inhaling of the gas and would now be entitled to lumpsum compensation of Rs. 5.00 lacs, as determined by Government of India and its policy and circular dated 24-6-2010. That being so, this compensation determined by Government of India is required to be granted as is being granted to other categories of Bhopal Gas Victims. Accordingly, this petition is allowed in part. It is held that Late Babulal had suffered permanent disability and was entitled to compensation of Rs. 5.00 lacs. The office of the Welfare Commissioner, Bhopal Gas is directed to pay to the petitioner claimant the remaining amount of compensation after deducting the amount already paid within a period of one month from the date of receipt of certified copy of this order. With the aforesaid, the petition stands allowed and disposed of.