VISHAKAPATNAM GAS LEAK TRADEGY
In the ongoing fight with COVID- 19 another misfortune hit the nation on 7th May, 2020. A Sententious leak of Styrene gas happened from a polymer plant which is owned by LG Polymers India Pvt. Ltd, situated at Gopalpatnam, Vishakhapatnam. As per the reports there were 2000 (approx.) tons of styrene stored in the plant and leave unattended due to nationwide lockdown. Styrene gas is a flammable liquid has a high boiling point of 145 degree centigrade and becomes deadly when it reacts with oxygen. The following event happened in mid night when maintenance activities where in progress. As per the reports Human error in maintaining the plant operations results in auto polymerization and causes vaporization of the gas. The fumes of gas spreads over 3-kilometer radius. Due to that, at least 11 people died and 1000 of people with flora and fauna get effected by the spread.
The Principle Bench of National Green Tribunal (NGT), Delhi has taken the Suo moto cognizance of the fatal incident. An Interim order on 8th May, 2020 was passed for forming a five-member committee. The committee was headed by the retired judge of Andhra Pradesh High Court and take up the matter as, “In re: Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village Visakhapatnam in Andhra Pradesh”.
The National Green Tribunal ordered interim penalty on LG Polymers to deposit Rs. 50 Crores with the District Magistrate, Vishakhapatnam. The Tribunal Order Observed that: “Leakage of hazardous gas at such a scale adversely affecting public health and environment, clearly attracts the principle of ‘Strict Liability’ against the enterprise engaged in the hazardous or inherently dangerous industry”.
It was observed by the NGT that the “Principle of Strict Liability” is relevant in the following situation rather of “Principle of Absolute liability”, therefore, this raises significant concern.
STRICT LIABILITY vs. ABSOLUTE LIABILITY:
Strict liability is a legal doctrine that makes a person or company responsible for their actions or products which cause damages regardless of any negligence or fault on their part. The Principle of Strict Liability is also called as “No-Fault Liability”. This principle was accepted by the House of the Lords in relation to the case of Rylands v. Fletcher. The Essentials of strict liability are- (1) Some dangerous thing must have been brought by a person on his land. (2) The thing thus brought or kept by a person on his land must escape. (3) It must be non-natural use of land. Certain exception to the Principle of Strict Liability, which wave off the liability are: (a) Act of God (b)Wrongful Act of a Third Party (c) Plaintiff’s own Authority (d) Statutory Authority (e.) Consent of the Plaintiff.
Though in Indian context the concept of Strict Liability is not suitable, hence, the Supreme Court of India in M.C Mehta v. Union of India (Oleum gas leak case), has recognized the concept of “Absolute Liability”. Oleum gas leak occurred from Shriram Food and Fertilizers Ltd. Complex, Delhi, which happened right after the Bhopal Gas leak tragedy and raises the alarm. Hence, law needs to change from time to time as per the needs of the society, so that upcoming problems can be deal appropriately. The principle of Absolute Liability is also defining as “No Liability”. Therefore, the exceptions which are applicable in Strict Liability is not provided to wrong doer under this principle. Justice Bhagwati played a significant role in this development. In his view the Principle of Strict Liability was developed in 19th century and at that time industries were initially at developing stage. So, this rule required modification as per the social and economic structure of the society. He observed that: “In the 19th century this rule was adopted, during this period the science and technology had not yet developed. Henceforth in today’s time we cannot undertake any guidance relating to the standards of liability from the same. We today need to develop norms which are adapted for present day social and economic structures. We should not be in pressure to adopt this rule which was made in a totally different kind of economy”.
The Supreme Court in M. C. Mehta v. Union of India, clearly differentiate between the Principle of Strict and the Absolute Liability as:
- Absolute liability would include those industries which are subjected to highly hazardous and dangerous activities. This means the industries which do not come under this category shall be falling under the strict liability rule.
- The element of escape is not essential under the Principle of Absolute liability. This rule will apply only on those who are affected lithely within and outside the premises and not just because a particular thing escaped from someone’s land. However, Strict Liability has a different stance.
- Exceptions given in the strict liability i.e., Act if God, Consent of the Plaintiff, Wrongful act of the third party, etc. are not provided in the Absolute liability.
- Under Absolute liability, Damages to be claimed would all depend upon the financial capability and the magnitude of loss incurred by that particular enterprise. In view of the Supreme Court, Highest safety standards should be followed if any hazardous activity is being carried out by the enterprise. And, in case of any mishap, the particular enterprise should take the complete responsibility of the act and required to compensate accordingly. However, the Strict Liability has a different stance.
The statement of Bhagwati, C.J. which laid down the new principle: “We are of the view that an enterprise, which is engaged in hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegatable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity the enterprise must be absolutely liable to compensate for such harm and it should be no answer to enterprise to say that it has taken all reasonable care and that the harm occurred without any negligence on its part”.
Later, In the case of Charan Lal Sahu v. Union of India, Mishra C.J, raised doubts related to the rule for damages in case of MC Mehta v Union of India that the case was obiter dicta deviated from western countries law. However, this doubt was not accepted in the case of Indian Council for Enviro-Legal Action v. Union of India, where it was held that the rule so applied was not termed as obiter dicta. Hence, the principle of strict liability evolved into absolute liability and established as the principle of “No Liability”.
The interim order passed by the NGT directed the Company to deposit an amount of Rs. 50 crore as immediate compensation and usage of Strict Liability principle, has enlarged the scope for company to take the cognizance of any exception of Strict Liability. Also, they will able set themselves free from their actual liability. Therefore, the rule laid down under the landmark decision of M. C. Mehta v. Union of “Absolute Liability” is appropriate under the following situation. Also, Section 17 of the National Green Tribunal Act of 2010 mandates that the Tribunal should apply the absolute liability principle even if the disaster caused is an accident and the following act is not caused by the negligence of the enterprise.
 1987 SCR (1) 819
 AIR 1990 SC 1480
 AIR 1996 SC 1446
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