National Green Tribunal
News Item Published In The Newspaper The ... vs . Uphaar Tragedy Victims Association - ... on 24 January, 2023
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 29/2023
In re : News item published in The Times of India dated 02.01.2023 titled
"4 dead after crackers dumped in a house explode in T.N."
Date of hearing: 24.01.2023
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Respondent(s): Mr. Sriansh Prakash, Advocate for CPCB
Mr. Shobhit Dwivedi, Advocate for TNPCB
ORDER
1. Proceedings have been initiated suo motu in light of the captioned media report of death of four persons on account of explosion of crackers in District Namakal, Tamil Nadu.
2. In pursuance of advance notice dated 09.01.2023 sent by the Registry to CPCB, State PCB, District Magistrate, Namakal and Director, Industrial safety and Health (DISH), Tamil Nadu, a report has been filed by CPCB on 23.01.2023 which in turn refers to information furnished by TN PCB as follows:-
"i. During inspection it was observed that the explosion has occurred in an illegal retail sales stock building located at the premises of Mr. Thillaikumar at Mettu Theru, Mohanur.
ii. The above said unit is not a manufacturing unit and it is a retail stock unit.
iii. It was reported that accident occurred on 31.12.2022 around 3 AM. For new year celebration the house owner has stocked the 1 fire crackers. Suddenly at around 3 AM the explosion has occurred, the reason for explosion yet to investigate.
iv. The house owner (Mr. Thillaikumar), his wife (Mrs. Priya) and Mother (Mrs Selvi) and one lady residing in the nearby has died in the accident.
v. The building in which explosion occurred was found to be completely collapsed.
vi. The Police department has filed FIR and reported that the investigation is underway. A copy of FIR is attached as Annexure- III."
3. It is clear from the above that there was illegal storing of fire crackers in violation of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (MSIHC Rules) under the Environment Protection Act, 1986.
There is no manner of doubt about applicability of MSIHC Rules. The crackers are covered by the term 'explosives' mentioned in Schedule I part I (c). Apart from the that, fire crackers contain Sulphur chemicals falling in Schedule II and Schedule III. Barium is component of crackers. The compliance laid down include storage permission for 'hazardous chemicals' as defined in Rule 2 (e) i.e. those mentioned in the schedules to the Rules.
The Rules also require safety audit, preparation of on-site and off-site plans and mock drills. Thus, accountability for violation of Rules resulting in incident in question is required to be fixed. There is also need to ensure compliance of such Rules in future by such establishments to avoid such incidents. The victims of damage are entitled to compensation. Since out of four persons who have died, three were the members of the family of the owner carrying out the illegal activity, heirs of fourth person who died, Mrs. Periyakkal, was residing near the spot, is entitled to compensation under section 15 of the NGT Act. The project proponent having died, the State has to pay compensation of Rs. 20 lakhs on the principle laid down by the Tribunal in its earlier orders. Victim cannot be without remedy when State 2 authorities have failed to oversee compliance and ensure safety of the citizen in terms of public trust doctrine.
4. Vide recent order dated 16.01.2023 in Original Application No. 66/2022, K. Saravanan v. State of Tamilnadu, the Tribunal held the State liable for compensation. Relevant part of the order is reproduced below:-
5. From the above, it is acknowledged that it is violation of environmental norms that has led to the incident of death of persons and grievous injuries to two. In such a situation, principle of absolute liability is attracted as laid down in MC Mehta, (1987)1 SCC 395.
6. It is well settled that compensation is to be quantified on the principle of restitution, as laid down inter alia in Gobald Motors, AIR 1962 SC 1. In MCD Vs. Uphaar Tragedy Victims Association - (2011) 14 SCC 481, it was held that compensation can be ad hoc in absence of data and approximate amount was laid down. On these broad principles, this Tribunal inter alia vide order dated 03.03.2022 in O.A. No. 44/2021; The News Indian Express dated 12.02.2021 titled "At least 19 dead in Virudhnagar firecracker factory blast, more than 30 injured." laid down scale of compensation. It has to be ₹20,00,000/- in respect each of the death and ₹15,00,000/- for burns in excess of 50%, ₹10,00,000/- for burns beyond 25% and ₹5,00,000/- for injuries with burns beyond 5%. In the said matter, the Tribunal constituted a Joint Committee headed by a former High Court Judge, who gave report dated 22.04.2021, suggesting remedial measures and safeguards in dealing with such situation. The said report was considered and accepted by the Tribunal vide order 11.06.2021 followed by further order dated 03.03.2022. It was held that scale of compensation has to be ₹20,00,000/- in respect each of the death and ₹15,00,000/- for burns in excess of 50%, ₹10,00,000/- for burns beyond 25% and ₹5,00,000/- for injuries with burns beyond 5%. Relevant extract from order dated 03.03.2022, is reproduced below:-
"10. From the report, it is clear that 27 persons have died and 26 injured on account of fire incidents which were result of unscientific handling of hazardous chemicals in violation of law. We also find that scale of compensation based on restitution principle needs to be awarded. Procedure of this Tribunal is summary and akin to public law remedy. Compensation can be assessed on reasonable basis guided by restitution principle atleast at floor level, leaving other remedies of the victims open. Thus, broadly agreeing with the Committee, we direct that the scale of compensation should be Rs.20 lakhs in respect of each of the deceased victims and Rs.15 lakhs to persons who have burns in excess of 50% and Rs.10 lakhs for persons who have burns from 25 to 50% and Rs.5 lakhs for persons who have injuries between 5 to 25%. Victims who were treated as outpatients and who had but minor degree of burns or other forms of simple injuries shall be paid Rs.2 lakhs.3
11. Accordingly, we hold that the compensation assessed has to be paid by the State of Tamil Nadu through the District Magistrate, Virudhunagar. Compliance will be responsibility of the Chief Secretary. Payment be ensured within one month from today. Ex gratia amount already paid may be deducted. We request the TN State Legal Services authority to provide legal aid to ensure that payment is made to genuine heirs of the deceased and to the injured without undue hassle.
Remedial Measures
12. Apart from requirement of compensating the victims, the issue remains how such incidents are to be prevented and if such incident happens what steps are to be taken to prevent loss of lives and health. There is need for review of the matter at highest level in the State to consider the remedial steps. Hazardous activities need to regulated in terms of quantity of material to be used in the process of hazardous activities, number of persons to be allowed to work and safeguards to be followed and monitoring compliance of such safeguards.
In order dated 3.2.2021 in OA 85/2020, Aryavrat Foundation vs. Yashyashvi Rasayan Pvt Ltd, the Tribunal observed:
"We note that in the recent past the Tribunal has come across the number of incidents of leakage of gases and handling of hazardous chemicals. On investigation, this Tribunal has found that most of the accidents are result of non-compliance of laid down safety norms under the 1989 Rules and the Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996 [1996 Rules]. There is, thus, need for the establishments handling hazardous chemicals to strictly follow the laid down norms, which need to be overseen by the statutory regulators...
In view of frequent accidents resulting in deaths and injuries, the Chief Secretaries of all the States/UTs may evolve a mechanism to ensure that the companies dealing with hazardous substance must forthwith pay compensation for deaths and injuries to the victims at least as per Workmen Compensation Act, 1923 wherever applicable or the principle of restitution laid down in Sarla Verma (supra), National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680 to the victims either directly or through the District Magistrate.
Conduct of safety audits of all establishments having potential for such accidents may be ensured. All States/UTs may also ensure availability of healthcare facilities in the vicinity of such establishments. PCB and DM must assess cost of restoration of environment which should be recovered from company and spent on such restoration. The States and UTs in accordance with 1989 and 1996 Rules need to step up vigilance, surveillance and monitoring to avert such accidents. Preparedness to meet such eventualities be ensured. Regular mock drills may be ensured in respect of 4 onsite and offsite emergency plans. We may also refer to the directions issued by this Tribunal to the MoEF&CC and all the States/UTs on the subject of strengthening regulatory and oversight measures, vide order dated 01.02.2021 in OA 837/2018, Sandeep Mittal vs. Ministry of Environment, Forests & Climate Change & Ors."
13. The Committee has suggested measures in a tabular form indicating the authorities who have to adopt such measures. We are in broad agreement with the said suggestions.
14. Apart from the measures suggested by the Committee, there is also need for a study of the carrying capacity of the area to sustain the extent of such activities having regard to the potential for accidental, occupational and environmental hazards. The study may include number of units to be allowed, size of operation of such units, quantity of material to be used, siting criteria for location of the units, arrangement for fire management and health services. Let such study be conducted by the Director of Industrial Safety in coordination with the State PCB and CPCB within three months and report submitted to the Chief Secretary, Tamil Nadu for further action. The Committee may take the assistance of any other experts/individual.
15. Further, there is need for review at highest level in the State. We direct the Chief Secretary, Tamil Nadu to hold a meeting with all the concerned stake holders, as identified by the Committee in the table in the report quoted above, titled 'Remedial Measures to Prevent Accidents', within one month. After necessary deliberations, appropriate remedial measures be identified to avoid recurrence of such incidents in future. The same may be implemented through the District Magistrate or any other appropriate authority as per law, which may be overseen by the Chief Secretary. The State PCB may incorporate appropriate conditions in consents including prohibiting use of banned chemicals, compliance of 1989 and 1996 Rules. Further, mechanism to ensure taking of insurance policies covering risk to life and health of all workers and others likely to be affected by fire or other accidents. Mechanism may provide monitoring of compliance and stopping activities of units not following laid down sops and regulations. Substance of this order and regulatory measures may be published in local area in vernacular language for information of local inhabitants to facilitate information and compliance.
Compliance
16. A report about compliance status of directions in this order be given by the Chief Secretary after four months by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF."
57. We may also reproduce extracts from the report of the Committee dated 22.04.2021, referred to in para 9 of above order of the NGT:-
"XII. STEPS TO BE TAKEN FOR COMPENSATION OF VICTIMS a. State assistance
1. Compensation is reported to have been so far provided at Rs.
3,00,000 to 16 cases of death and Rs. 1,00,000 for one injured, both under CM Fund.
2. The injured persons have a range of injury of burns from 20% to 75%. Some have also been discharged as outpatients.
3. Some injured have taken at Rajaji Government Hospital at Madurai, some people at Grace Kennet hospital at Madurai, some more were taken at Senthil Hospital & Dhanuskodi hospital at Sattur and some at Government hospital at Thoothukudi.
b. Norms for compensation
1. The compensation that is payable for victims of the tragedy could never be arbitrary. The need to compensate or right to secure compensation could themselves be not a matter of debate at all. Only the scale of compensation and the persons who would become liable to pay the compensation will require to be appraised.
2. There are several compensation regimes for deaths and injuries and different enactments which are dis-similar and grossly variant. The Workmen Compensation Act, which is surely applicable, provides compensation that will have scales of compensation determined on the age and the income of the workman. The liability shall be on the principal employer. Here the problem is that the licensee has sub- leased the premises to three different persons whom we have named above but have not gathered statements from any one of them since they appear to be in judicial custody after arrest, pending investigation into criminal offences instituted against them.
3. The Public Liability Insurance Act casts an absolute liability, caps the entitlement to a paltry sum of Rs.50,000/- for death and Rs.25,000/- for grievous injury. It cannot be efficacious to look for relief under the said Act.
4. The scales of compensation under different enactments for transport accidents as in Carriage by Air Act, Railways & Motor Vehicles Act are different. In the first three enactments set out, there is absolute liability and the compensation ranges between Rs.8 lakhs and Rs.15 lakhs. The Motor Vehicles Act contemplates three regimes: absolute liability under Section 140, prescribing Rs.2 lakhs for death, 6 Rs.50,000/- for grievous injuries and compensation up to Rs.800,000/- under a structured formula of strict liability norm under Section 163A. Just compensation under Section 166 is what is most scientific and driven essentially through two decisions in Sarla Varma Vs. DTC - (2009) 6 SCC 121 and as modified by National Insurance Company Vs. Pranay Sethi - (2017) 16 SCC 680. The compensation is determined based on a multiplier formula which will be applied against the multiplicand that is quantified as the likely contribution to the family by the deceased victim. The conventional heads of claims, such as, loss to estate, loss of love and affection, loss of consortium towards spouse, funeral expenses are all added. In the amendment contemplated by Amendment Act 32 of 2019, the minimum threshold amount that will become payable shall be not less than Rs.5 lakhs for fatal accident and Rs.2 lakhs for grievous injuries.
5. In traumatic accidents such as bomb blasts or fire accidents due to electrocution or terrorist activities, public law remedies have been resorted to, where the compensation shall not always be made to depend on the age of the victims and the number of dependents. They are invariably fixed sums within the broad age brackets, such as persons less than 20 years of age and above the said age limit. In MCD Vs. Uphaar Tragedy Victims Association - (2011) 14 SCC at page 481 - the compensation was fixed at Rs.10 lakhs in the case of those aged more than 20 years and Rs.7.5 lakhs to those aged less than 20 years and compensation of Re.1 lakh was awarded to each of the injured victims. The amount carried interest at 9%.
6. In Dabwali Fire Tragedy Victims Vs. Union of India & Others, a Division Bench of the P & H High Court provided compensation by examining the recommendations of the One-man Commission that elicited details about the age of the victims, the number of dependents of each of them, the income of the deceased persons, in amounts ranging between Rs.1 lakh and Rs.15 lakhs. The decision of the Division Bench passed in CWP 13214 of 1996 through its decision on 09.11.2009, was confirmed by the decision of the Supreme Court in - (2013) 10 SCC at page 494. In Sanjay Gupta v State of UP (2015)5 SCC 283, the Supreme Court was dealing with an incident of devastating fire that broke out in a Consumer Show held at Victoria Park, Meerut. It was organised by a private company through contractors engaged by them after seeking permission from the State Government. It resulted in death of 64 persons and grievous injuries to several others. The Commission of Enquiry found the State and its authorities to be prima facie responsible for statutory violations while granting permission and during the show. No doubt, in this case there was no violation of any law in the grant of licence, but there had been a lack of care to see that the premises had been used only by the persons who held the licence.
7. In Sanjay Gupta (Supra) the Supreme Court had taken note of the compensation awarded in Uphaar Tragedy Victims 7 Association case, decided in 2011 as well as Dabwali fire tragedy case, decided in 2013. They observed that the State Government should see that the victims did not remain in a constant state of suffering and despair and interim compensation of Rs.30 lakhs was directed to be paid, which subsequently through a direction issued in the same case and reported in (2018) SCC 634, to be distributed on pro- rata basis through the Jurisdictional District Judge.
8. There have been other earlier decisions of the Supreme Court when fixed sums have been awarded through public law remedy. In what was referred as boat tragedy case dealing with deaths of children due to boat capsize in MS Grewal Vs. Deep Chand Sood (2001) 8 SCC 151, the court awarded compensation at the rate of Rs 5 lakhs for each child and on the recommendations of former Chief Justice Chandrachud's report in Lata Wadhwa Vs. State of Bihar in (2001) 8 SCC at page 187-the compensation ranged between Rs.2 lakhs per child and an amount upto Rs.5 laksh per adult. To persons who had burn injuries to the extent of 10% or below, the Supreme Court awarded, in modification of the Chief Justice's Report, a minimum amount of Rs.2 lakhs.
9. In all the cases before us, we do not have data of the number of dependents for the deceased persons. In respect of injuries, a few have been treated as outpatients and immediately discharged while some persons are still undergoing treatment. The percentage of burns have varied from 5% to 75%. Unfortunately, among the injured victims, there have been casualties during the treatment, for on as late as 05.04.2021, the tally of dead was 27. In this accident, there is no report of any child as having been injured or dead. We confronted only a few persons who are injured and who are less than 18 years of age. We do not think it would be proper for us to assess compensation for everyone by eliciting the age, income, etc. It will be appropriate to take the examples of lumpsum amounts awarded through public law remedies and allow for independent rights to be pursued by any victim through statutory forums prescribed under the Workmen Compensation Act, if so advised. The Workmen Compensation Act itself does not recognise any payment other than through the Commissioner and any compensation that we will recommend could be directed to be paid to the party under notice to the Workmen Compensation Commissioner so that they are not treated as amounts awarded by 'contracting out'. In the decisions which we have referred, the ex-gratia payment made by the government will not be required to be deducted. On the other hand, we believe that the State Government shall take responsibility for 10% of liability for lack of effective supervision through Inspector of Factories and 10% on the Central Government for their failure to implement the safety laws. Rest of the 80% shall be levied on the licensee and his lessees jointly and severally and the 10% each as we have fixed on the Central and State Governments shall be several. One 8 of us, (Kulkarni) is of the view that on account of the quoted provision of immunity, the payment by the State and the Centre shall be by way of contribution in gratis rather than responsibility by default. Further, as per rule 2(37) of the aforesaid rules, the occupier who has the control and who is responsible for managing the affairs of premises is solely responsible for the accident for the violations of rules and conditions of the licence.
10. Taking note of the fact that in the Uphaar tragedy victims case the maximum compensation was Rs.10 lakhs, but it related to an incident that took place in 1997, almost 25 years back, we will double the compensation for death at Rs.20 lakhs per family of each of the deceased victims and Rs.15 lakhs to persons who have burns in excess of 50% and Rs.10 lakhs for persons who have burns from 25 to 50% and Rs.5 lakhs for persons who have injuries between 5 to 25%. Victims who were treated as outpatients and who had but minor degree of burns or other forms of simple injuries shall be paid Rs.2 lakhs. The amounts shall be directed to be paid within the time the Tribunal may set and direct a further liability of interest at 12% p.a. for default of payment. The compensation is not merely a financial reparation for the loss of lives and injuries that have restitutive attributes but also designed to be punitive for the criminal negligence in carrying out hazardous activities in brazen violation of several laws that we have outlined above. The compensation amounts must necessarily therefore, be higher than what could occasion in a straightforward case of granting compensation as a welfare measure such as under the Workmen's (Employees') Compensation Act.
11. The amounts on the same scales could be made also to victims of accidents in the same district just before and after our visit XIII. REMEDIAL MEASURES TO PREVENT ACCIDENTS Sl Activity At whose instance No. 1 Video clips of safety through Central Government - whatsApp and mobile devices apart Explosives experts from periodical workshops imparting State government - norms of safety to be circulated to all Industrial safety employees 2 Strict vigilance to ensure conformity as PESO and District regards working only in sheds and not Revenue Authority in open spaces 3 Drone surveillance of various sheds PESO and District Revenue Authority 4 Submit the compliance of the occupier Manufacturer/ once in a six months or quarterly basis Licensee and mandated to be uploaded on the 9 public domain on the website of the respective regulatory agency.
5 Permanent closure of sheds which Licensing authority have in the past been found guilty of breaches.
6 Punitive fines of not less than Rs. 50 Licensing authority lacs for instances of violations of conditions of license such as grant of lease, sublease, employment of more personnel than authorised, use of banned chemicals etc. 7 Public liability insurance for all Collector factories to be made obligatory.
8 Group insurance providing for higher Licensing authority compensation of not less than Rs.5,00,000 than the limit hitherto observed for Rs. 50,000.
9 Existing manpower of the various Central government regulatory authorities to be State Government strengthened in order to have periodical post clearance monitoring and ensure better compliance 10 Defaulting industries need to be Revenue Division of immediately inventoried and regulated the Collectorate within a time frame 11 Firecrackers' manufacturing and bulk Tamil Nadu Pollution storage facilities under the ambit of Control Board Consent Management within specified time frame as mandated 12 Occupational Health surveillance i.e., Directorate of periodical health check-up of the Industrial Safety employees and Health 13 Fire-fighting facilities such as dry State Fire Services powder extinguisher, soda ash, limestone etc. are in place to handle the accident in the Fireworks Industry/ metal-based fire accident.
14 Provision for appropriate clothing, Licensee gloves, and footwear 15 Increased automation that avoids Industrial physical handling of dangerous Entrepreneurs/ Dept. chemicals and substances of Industries & Commerce 16 Through CSR funds of the industries Licensing authorities located in the district, more focus For MSMEs & should be given to the development of Factories Ministry of education to the local communities and Commerce/Company their upliftment. Affairs 17 Crisis Management System and Co- Central Government, ordination Committee constituted State Government shall meet periodically and review and District Collector effective monitoring mechanism and suggest measures for prevention and recurrence of such accidents.10
18 As per section 9B of Explosive Act Legislature 1884 punishment for certain offences given is very moderate. The same requires legislative review for greater stringency.
19 Since the unit in which the accident The respective occurred is no more in a state to take licensing authorities manufacturing activity, the licence granted by PESO, NOC granted by District Authorities, Arms Act license for sulphur, factories Act license shall be cancelled.
20 The workers who are engaged in most Licensees/ hazardous operations viz. mixing, employers filling of chemicals, colour pellets making shall be certified after training and those alone shall be employed.
The unit shall not functional unless these workers are certified.
21 To monitor the ambient air quality in all Tamil Nadu Pollution clusters of firework factories, minimum control Board of two Continuous Ambient Air Quality Stations shall be installed, through which impact on environment due to incidental explosion can be quantified. "
8. In view of above, following the same norms, we direct that compensation be enhanced to ₹20,00,000/- in respect of each death and ₹10,00,000/- each to the injured. Compliance be ensured within two months by the District Magistrate, Kallakurichi, Tamil Nadu. The State will be at liberty to recover the amount from the violators, following due process of law. The State may also take preventive measures to avoid such incidents in future."
5. In view of above, District Magistrate, Namakal may ensure payment of compensation to the heirs of the victim within one month. We also direct Chief Secretary, Tamil Nadu to take remedial measures to ensure compliance of environmental safety norms in similar other activities in the State. We request the T.N. State Legal Services Authority to provide necessary legal aid to the heirs of the victim under the Legal Services Authorities Act, 1987.
The Application is disposed of.
11A copy of this order be forwarded to Chief Secretary, Tamil Nadu, CPCB, State PCB, District Magistrate, Namakal and Member Secretary, Tamil Nadu State Legal Services Authority by email.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM January 24, 2023 Original Application No. 29/2023 AB 12