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FLESHING OUT THE LAW FROM THE CONTROVERSY AROUND VISAKHAPATNAM GAS LEAK

1.  Background
India has been jolted by the recent catastrophe that occurred in densely populated area of Vishakhapatnam. The leakage of styrene gas from LG Polymers, which manufactures plastic resin and synthetic fibre, lead to death of 11 persons, injured around 1000 people and affected people in the 5 km radius of the establishment. It resulted in eye irritation and difficulty in breathing to the exposed people. Furthermore, the occurrence of the leak had the potential to cause a series of explosions due to inflammatory nature of styrene gas.
Moreover, monitoring this mishap has become difficult due to COVID-19, though Andhra Pradesh government is trying its best to cope up the situation. However, such an occurrence will mandatorily be followed by legal implications, which are being deliberated upon in this article.
2.  Compensation and damages under Civil Law
The victims who can claim compensation from LG Polymers include injured, people with damaged property, legal representatives of dead people and the government for recovering the amount for restoring the ecological system damaged because of the accident. Following are the two major acts under which victims can get compensation: –
1.  The Public Liability Insurance Act, 1991.
Under this act, if any death or injury to any person, other than a workman, or damage to any property has resulted from an accident, the owner is liable to give such relief as specified in the Schedule. However, the disbursement of relief will be done by collector in coordination with the United Insurance Company Limited which is the present fund manager.[1] Also, the relief received under this Act is in addition to any other right to claim compensation under any other law. The relief which can be claimed under the Schedule for damaged property is up to Rs 6000 and for permanent disability up to Rs 40,500 which is clearly very less in comparison to damages accrued to victims. Therefore, to recover complete damages they are required to apply in following act too.
2.   National Green Tribunal Act, 2010.
Under this act, the claim is not limited to injury and property damage but includes damage caused to the environment due to adverse impact of the accident, and the amount will be determined by tribunal and not any schedule which can limit the amount of compensation. Claims can also be made for restitution of environment and property damaged over and above the amount claimed under Public Liability Insurance Act, 1991. Moreover, the Tribunal is bound to apply the principles of sustainable development, polluter pays and the precautionary principle while passing any award. The polluter pays principle was explained in the case of Indian Council for Enviro-Legal Action v. Union of India as the financial costs of remedying damage caused to not only the victims but also the environment by the undertakings responsible for pollution, to attain the object of sustainable development
The precautionary principle and the Polluter Pays principle are embedded in the environmental jurisprudence of this country and became a part of the law of the land under Article 21 of the Constitution of India.
Recently, The National Green Tribunal has taken suo moto cognizance and ordered LG Polymers to deposit 50 crores with the District Magistrate, Vishakhapatnam.
3.   Compensation and damages under Law of Torts
The rule of ‘Absolute liability’ has been previously followed in India in the landmark judgement of M.C. Mehta v. Union of India wherein there was a leakage of oleum gas. Justice Bhagwati stated that the liability of the owner in such cases is protection of people inside and outside the vicinity of the organisation engaged in the harmful and inherently dangerous activity, and this liability comes with no exception. An organisation is responsible under this rule when any ultra-hazardous product escape, injuring people or/and environment without the requirement to prove negligence on the part of owner.[2]
This may be applied to this incident, if so, then the argument of the LG Polymers that the organisation could not be maintained due to COVID-19 would not sustain because such rule does not require negligence on the part of owner, mere presence of ultra-hazardous chemicals and its escape thereof make the owner liable. Also, though the direct impact of styrene gas on humans is not fatal, it could have led to explosions when exposed to fire. Hence, the latter consequence makes this gas ultra-hazardous.
4.   Liability under Criminal Law
Apart from these civil proceedings, criminal proceedings can also be initiated before the Chief Judicial Magistrate in Vishakhapatnam. The company and every person who was directly in charge of and was responsible to the company for the conduct of the business of the company at the time the offence was committed will be guilty of the offence and can be punished accordingly. They can be prosecuted for causing death by negligence under section 304A of The Indian Penal Code, 1860 (hereinafter IPC), for causing act, hurt and grievous hurt which endangered life or personal safety of others under IPC. Under the aforementioned sections, they can be punished for imprisonment for a term of three months to two years and fine of 1000 Rs. They can also be held liable under Section 278 and Section 284 of IPC for making atmosphere noxious to health and for negligent conduct with respect to poisonous substance for which they can be imprisoned for a term up to 6 months.
Moreover, they can be penalised and punished for a term which can extend to 5 years and a fine up to 1 lakh rupees for contravening the Section 8 of Environmental Protection Act, 1986 by mishandling the hazardous substance.
Furthermore, they can be prosecuted and imprisoned for a term up to 6 years under Section 37 of The Air (Prevention and Control of pollution) Act, 1981 (hereinafter Air Pollution Act) as this incident violates the Section 22 of the Air Pollution Act which prohibits emission of any air pollutant in excess of the standard.
5. Conclusion and Suggestions
For preventing the happening of such incidents, there are various laws and regulations in place for thoroughly checking and regulating the industries. These laws and regulations also regulate storage, transportation and maintenance of hazardous chemicals and gases. However, the laws are not stringent and not properly implemented because of which such incidents are still occurring. Therefore, the Government need to ensure strict implementation of these laws.
 Moreover, even after facing so many catastrophes including Bhopal Gas Tragedy, India is yet to have an enforceable code or regulations dedicated to such mishaps under which immediate relief can be claimed and for making such claims simpler and convenient with no maximum limit of claim amount. In India, we have a plethora of laws under which any victim can make claims but it increases the complexity in litigation. Furthermore, at the time of Bhopal Gas Tragedy, an Act was passed to enable the government to represent all the claimants to ensure that claims arising from the accident would be dealt with speedily and equitably.
Such cases are increasing and to eliminate the need of formulating such individual acts in future, an exhaustive law is required having pre-occurrence and post-occurrence provisions meaning thereby, an Act which has the provisions stating standards for transportation and storage of such materials and provisions enabling the Government to represent all victims in class action suit for obtaining relief or compensation with no maximum limit, in an expeditious manner.

REFERENCES

[1] Notification, G.S.R. 768 (E) under §7A, The Public Liability Insurance Act, 1991.

[2] Prosser and Keeton on Torts, p. 546.

ABOUT THE AUTHOR(S)

Ayush Gattani is a 3rd year B.B.A. LL.B ( Hons.) student at National Law University, Jodhpur. 

 

 

 

 

 

 

Vaibhav Kansara is a 3rd year B.B.A. LL.B ( Hons.) student at National Law University, Jodhpur.

 

 

 

 

In Content Picture Credits: swarajyamag.com

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