By Md Tasnimul Hassan
Synopsis of the Leakage
A toxic chemical styrene leaked from the LG Polymers plant in Visakhapatnam during the early hours of May 7, resulting in the deaths of 11 individuals and hospitalizing more than 250.[1] Styrene is a colourless liquid used to make polymers such as plastic and rubber. Chronic exposure to styrene may prove to be carcinogenic.[2] Later during the day, the National Green Tribunal (NGT) took suo moto cognizance of the matter and on May 8, constituted a committee to determine the cause of the incident; the damage caused to life, environment and health; and the steps to be taken to compensate the victims, among many others and explicitly invoked the principle of strict liability.[3] Ironically, it was only after the leakage that LG Polymers equipped the plant with a styrene inhibitor, to prevent styrene leakages.[4]
On May 24, the Andhra Pradesh High Court noted that the reports filed by the Central and State Governments in a joint Writ Petition were silent on several issues and sought the explanation of the same, including, the plant had been operating without a valid environmental clearance; the inhibitor concentration in the storage tank was not checked and refrigeration was not working properly; and directed the seizure of plant premises and restrained its Directors from leaving the country. However, on May 26, the Apex Court permitted the entry of 30 personnel into the plant premises.[5]
LG Polymers was set up as Hindustan Polymers in 1961, which later merged with McDowell & Co. Ltd. in 1978. After the takeover by LG Chem Ltd in 1997, an affiliate of South Korean electronics-to-service giant LG Corp., the company was renamed LG Polymers India Private Limited.[6] The plant was shut down due to the lockdown and thus, a possible reason for the leakage may be the negligence in storing the gas at appropriate temperatures, leading to the build-up of pressure which led to subsequent valve failure and culminated with the leakage.
The Legal Procedure Ought to Follow the Leakage
In the present case, a FIR has been registered against the company under various provisions of the Indian Penal Code, 1860 including, section 304. In order for the court to find the accused guilty under this section, it has to be proved that the plant was run by the accused with the knowledge of its likeliness to kill beings. As held in Keshub v. State of M.P.[7], even if we assume that the plant had defects while dealing with a hazardous substance, the mere act of running such a plant with permits granted by the authorities may not be a criminal act. However, an individual belonging to a company, who perpetrated an offence can be accused along with the company, if there is sufficient evidence of an act committed with criminal intent.[8] Further, whether a company could be prosecuted for an offence for which mandatory sentence of imprisonment and fine is provided? It was held that a company is obviously liable to be punished for criminal offences.[9]
Under tort law, for the company to be held responsible without probing any negligence on its part, the very fact that the toxic gas escaped from their plant is sufficient. Section 17 of the NGT Act, 2010, deals with the liability of compensation, and states that “The Tribunal shall, in case of an accident, apply the principle of no-fault”. However, the NGT in its primary opinion, has clarified that the principle of strict liability would be applied against LG Polymers. Therefore, it highlights the absence of laws to deal with such negligence, and thus it must be amended to provide adequate relief to the victims and hold the company liable.
The Conundrum of Fixing the Liability: Strict or Absolute?
The NGT observed that the situation in Vizag attracted strict liability. The principle of strict liability was evolved in the case of Rylands v. Fletcher[10], and it implies that any person indulged in non-natural use of land or keeps hazardous substances in his premises will be held strictly liable if such substances escapes and causes any damage to another individual, with certain exceptions i.e., the plaintiff’s own fault, act of god, act of a third party, or volenti non fit injuria. However, the Indian Supreme Court in the Oleum gas leak case, viz. MC Mehta v. Union of India[11], disregarded the rule of Rylands v. Fletcher, citing its unsuitability to the unindustrialized conditions in India, and evolved the principle of Absolute Liability. Under this principle, the court held, “an enterprise engaged in an inherently dangerous industry which poses a threat to the health and safety of the persons working therein and residing in the surrounding areas owes an absolute and non-delegable duty to ensure that no harm results to anyone on account of the activity which it has undertaken.”
Thus, it was ensured that profit-oriented enterprises carrying out hazardous activities do not escape liability with exceptions available under strict liability, since the defences available to a hazardous or dangerous industry in cases of accidents were held unacceptable. The principle has thereafter been reaffirmed on many occasions, including in Charan Lal Sahu v. Union of India[12], wherein it was highlighted that this rule is absolute and non-delegable and that the enterprise cannot escape liability by showing that it was not negligent. However, the strict liability contemplation under the NGT order allows LG Polymers to escape liability merely upon proving that they had taken reasonable care.
Having understood the principles of strict and absolute liability, the broad differences between the two can be pointed out. Under the former, compensation is payable as per the nature and quantum of damages, but the damages paid are exemplary in nature, and depend upon the capabilities of the accused. Further, the escape is not essential under the latter doctrine, thereby meaning that even if any hazardous substance does not leak from the industry but causes harm to the workers inside, the enterprise may be held absolutely liable.
Legal Remedies Available to the Victims
The Public Liability Insurance Act, 1991 (PLI Act) was enacted to adequately and immediately compensate the victims of such accidents, under which, the victims exposed to hazardous substances used by an industry may file a claim before the Collector within 5 years of the accident. The Collector, thereafter, shall serve notice upon the owner and after hearing the parties, shall hold an inquiry of the claim and may determine the amount of compensation which appears just to the Collector. Additionally, the victims can also approach the NGT for compensation, which can award compensation under Section 15 of the NGT Act, 2010. Claims against the company shall be filed in a court and the State is likely to set up a commission which will consolidate the claims.
However, the compensation under PLI Act is scanty now, contrary to what had been termed adequate during its enactment. The amount in cases of death or permanent disability is Rs 25,000 along with a maximum of Rs 12,500 towards medical expenses. In cases of permanent partial disability or other injury or sickness, the relief is reimbursement of medical expenses incurred, if any, up to a maximum of Rs. 12,500 and cash relief based on a percentage of disablement as certified by an authorized physician. For loss of wages due to temporary partial disability, a fixed monthly amount not exceeding Rs. 1,000 up to a maximum of 3 months has been stipulated, provided the victim is above 16 years of age and has been hospitalized for a period exceeding 3 days. For any damage to private property, any amount up to Rs. 6,000 is payable, depending on the actual damage.
Conclusion
In the wake of the Bhopal disaster of 1984, the global chemical industry adopted an initiative to prevent further human rights abuses by manufacturers. Evidently, Indian legislatures have not been able to cope with the growing number of industries using hazardous substances. It has taken the stance which considers finance as the only way of compensating the victims, disregarding other facets such as rehabilitation. But, with an immensely inadequate compensation amount, the State has failed itself even in its financial efforts.
The author is a Second Year Student of B.A.LL.B. (H) course at Jamia Millia Islamia, New Delhi, and is particularly interested in Indian Constitutional Philosophy and Criminal Jurisprudence.
[1] Vizag ACP Confirms Gas Leak as 11 Die in Tragedy, 250 Hospitalised, THE QUINT, (May 7, 2020), www.thequint.com/news/india/vizag-visakhapatnam-andhra-pradesh-gas-leak-chemical-plant.
[2] Mohana Basu, How styrene, chemical being blamed for Vizag gas leak deaths, affects human body, THE PRINT, (May 7, 2020), https://theprint.in/health/how-styrene-chemical-being-blamed-for-vizag-gas-leak-deaths-affects-human-body/416192/.
[3] Akshita Saxena, Vizag Gas Leak: NGT Directs LG Polymers To Deposit Rs 50 Crores; Constitutes 5 Member Committee For Probe, LIVE LAW, (May 8, 2020), www.livelaw.in/environment/breaking-vigaz-gas-leak-ngt-directs-lg-polymers-to-deposit-rs-50-crores-constitutes-5-member-committee-for-proberead-order-156436.
[4] LG Polymers in Vizag gets ‘Styrene inhibitor’ to boost safety after gas leak, HINDUSTAN TIMES, (May 14, 2020), www.hindustantimes.com/india-news/lg-polymers-in-vizag-gets-styrene-inhibitor-to-boost-safety-after-gas-leak/story-LmTtyoQt7ppSNm5GYUdI0N.html.
[5] Radhika Roy, Vizag Gas Leak: SC Agrees To Permit 30 Personnel From LG Polymers To Access The Chemical Plant, LIVE LAW, (May 26, 2020), https://www.livelaw.in/top-stories/vizag-gas-leak-sc-agrees-to-permit-30-personnel-from-lg-polymers-to-access-the-chemical-plant-157327.
[6] Nidhi Raman & Ritesh Kumar, Crime Without Punishment Conundrum Of Vicarious Liability In Criminal Law, LIVE LAW, (May 9, 2020), www.livelaw.in/columns/crime-without-punishment-conundrum-of-vicarious-liability-in-criminal-law-156491.
[7] (1996) 6 SCC 129.
[8]Raman & Kumar, supra note, 6.
[9] Standard Chartered Bank & Others v. Directorate of Enforcement, (2005) 4 SCC 530.
[10] [1868] UKHL 1.
[11] 1987 SCR (1) 819.
[12] AIR 1990 SC 1480.
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