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CASE NO.: Appeal (civil)  7093 of 2001

PETITIONER: Abhishek Malviya

RESPONDENT: Addl. Welfare Commissioner & Anr

DATE OF JUDGMENT: 23/01/2008

BENCH: R V Raveendran & P. Sathasivam

JUDGMENT: J U D G M E N T

R.V. RAVEENDRAN, J.

       This appeal relates to compensation payable to a Bhopal gas tragedy  victim. The appellant was in the womb of his mother on the fateful day that  is, 2/3.12.1984. He was subsequently born on 14.5.1985. An application was  made on his behalf for payment of compensation of Rs.50,000/- under the  scheme for payment of compensation to the gas victims alleging that the  appellant’s pregnant mother was affected by the leaked gas and  consequently, the appellant, who was in her womb, was also affected. 2.      The Bhopal Gas Leak Disaster (Registration and Processing of  Claims) Scheme, 1985 was framed by the Central Government in exercise of  power under section 9 of the Bhopal Gas Leak Disaster (Processing of  Claims) Act, 1985. Clause 5 thereof provides for categorization and  registration of claims. The application on behalf of appellant was considered  by the Deputy Commissioner, for Bhopal gas victims. The appellant had  been examined and a medical dossier prepared at the time of State-sponsored  medical examination including X-ray of chest. The reports of the  examination on 25.8.1988 showed that the appellant did not suffer from any  disease. Therefore, his condition was recorded as ’normal’, and the appellant  was placed in category ’A’ under general injuries. This was contested by the  appellant’s father on the ground that eversince the time of birth, the appellant  had heart and respiratory problems and he was treated as Chautram Hospital,  Indore. After a detailed examination of the medial and other records, the  Deputy Commissioner passed an order dated 17.6.1996. He held that the  appellant had respiratory problems immediately after birth and for a short  time thereafter; and that the treatment given to appellant was for cough and  cold, fever and other normal ailments. However as the resistance capacity of  the appellant was decreased due to ill effect of gas, he was classified under  the category ’temporary partial disability’ falling under Para 5(2)(d) of the  Scheme and a compensation of Rs.45,000/- was awarded.  3.      An appeal was filed by the appellant claiming compensation of  Rs.1,00,000/-. The appeal was allowed in part, by the First Additional  Welfare Commissioner for Bhopal by order dated 13.3.1997. The appellate  authority noted that the appellant’s heart disease could not be attributed to  MIC gas, as that did not affect the heart directly or indirectly. However as  appellant suffered from pneumonia immediately after his birth and later as  he was suffering from bronchitis in the year 1988 and treatment continued  for respiratory problems, he increased the compensation by Rs.10,000/- that  is in all Rs.55,000/-.

4.      The appellant filed a special leave petition before this Court seeking  leave to appeal against the said order of Additional Welfare Commissioner.  One of the grounds of challenge was that the Additional Welfare

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Commissioner had referred to the appellant as ’deceased’ and that showed  non application of mind. (This however apparently was a typographical error  as in the subsequent part of the judgment, the Appellate Commissioner had  proceeded on the basis that the appellant is alive and discussed the entire  history. Be that as it may.) This Court by order dated 4.5.1999 dismissed the  special leave petition as withdrawn, recording the submission on behalf of  the appellant that he wanted to apply to the Additional Welfare  Commissioner for correction of the order.   

5.      Thereafter, on an application for modification, the matter was again  considered by the First Additional Welfare Commissioner. While seeking  correction of the order by deletion of the expression ’deceased’, the appellant  also claimed increased compensation of Rs.10 lakhs in view of his continued  medical treatment. The application was disposed of by order dated 6.8.1999,  correcting the typographical mistake by deleting the word ’deceased’ used in  Paras 2 and 3 of the earlier order dated 13.3.1997. But the Additional  Welfare Commissioner refused to reconsider the appeal on merits or to  increase the compensation, as there was no direction by this Court to  reconsider the claim. The appellant again approached this Court in S.L.P.  [C] No.19076/1999 challenging the order dated 6.8.1999. That SLP was also  dismissed on 6.1.2000 reserving liberty to the appellant to approach the High  Court under Article 226 of the Constitution or seek any other remedy  available in law. 6.      Thereafter, the appellant again filed an appeal before the First  Additional Welfare Commissioner who found no reason to disturb the earlier  order dated 6.8.1999. He, therefore, dismissed the appeal on 23.2.2000. That  order was challenged in W.P. [C] No.2629/2000. The High Court of Madhya  Pradesh found that the compensation awarded did not warrant interference  and accordingly dismissed the writ petition, by the impugned order dated  5.2.2001. The High Court held that it was evident from the order dated  4.5.1999, that this Court found no ground to interfere with the order of the  Additional Welfare Commissioner on merits and the SLP was dismissed and  liberty was reserved only for the purpose of seeking correction of the  typographical error. The appellant has challenged the order of the High  Court in this appeal by special leave.

7.      It is the contention of the appellant that while disposing of the SLP by  order dated 4.5.1999, this Court did not examine the order dated 13.3.1997  of the Additional Welfare Commissioner on merits and the SLP was  dismissed as withdrawn to enable him approach the Additional Welfare  Commissioner for rehearing and modification and therefore the Additional  Welfare Commissioner was bound to reconsider the matter.

8.      We find no merit in appellant’s contention. The order dated 4.5.1999  of this Court specifically refers to the error in the order describing the  appellant as ’deceased’ and dismissed the SLP as withdrawn with the  following observation : "He wants to apply to the Additional Welfare  Commissioner for correction. We express no opinion in that behalf." No  liberty was reserved to file a fresh appeal or seek review of the order dated  13.3.1997 on merits. The order dated 13.3.1997 having attained finality, his  efforts to re-agitate the issue again and again is an exercise in futility. We  are therefore of the view that appeal is liable to be dismissed.  

9.      The learned counsel for appellant had also made submissions on  merits. But he was unable to demonstrate how the appellant was entitled to  be placed in a higher category under the scheme so as to become entitled for  higher compensation. The appellant produced some documents to show that  he has been undergoing treatment for bronchitis and other problems. His  respiratory problem and bronchitis were considered and the compensation  was increased from Rs.45000/- to Rs.55000/- by the Addl. Welfare  Commissioner. Even on merits, we find no reason to interfere with the  categorization of appellant for the purpose of compensation. The appeal is  accordingly dismissed.