IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 OP.No. 18109 of 1999(E) ---------------------------------- PETITIONER: ------------------- UNITED INDIA INSURANCE COMPANY LIMITED, REPRESENTED BY ITS SENIOR DIVISIONAL MANAGER, DIVISIONAL OFFICE NO.1, VETTUKATTIL BUILDING, P.B. NO. 1823, M.G. ROAD, ERNAKULAM – 682 016. BY MR. N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADV. MR. MURALI PURUSHOTHAMAN. RESPONDENTS: ------------------------ 1. UNION OF INDIA – REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF ENVIRONMENT AND FORESTS, NEW DELHI. 2. STATE OF KERALA – REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, ERNAKULAM. 4. THE CHAIRMAN & MANAGING DIRECTOR, FERTILIZERS AND CHEMICALS TRAVANCORE LTD., CORPORATE OFFICE, UDYOGAMANDAL. 5. THANKA.P.M., PEDIKKATTUTHURUTHIL, IRUMPANAM.P.O., THRIPUNITHURA. 6. VAVACHAN.T.C, THURUTHIPARAMBIL, BRAHMAPURAM. 7. HAMEED, CHELLIPADATH, BRAHMAPURAM. 8. KADARKUNJU, KODIVELIKKAKATH, BRAHMAPURAM. 9. MUHAMMED, MANALODIL, BRAHMAPURAM. O.P. NO. 18109/1999-E: 10. K.R. RAVI, KOZHIVELIL, BRAHMAPURAM. 11. SALAM, CHELLIPADATH, BRAHMAPURAM. 12. PAREETH PAKKU, KODUVELIKKAKATH, BRAHMAPURAM. 13. K.S. IBRAHIM, KODIVELIKKAKATH, BRAHMAPURAM. 14. PAREETH SAIDU, KODIVELIKKAKATH, BRAHMAPURAM. 15. K.S. ISMAIL, KODUVELIKKAKATH, BRAHMAPURAM. 16. PAREEKUTTY, MATTATHIL, BRAHMAPURAM. 17. PAREETH ABU, KODUVELIKKAKATH, BRAHMAPURAM. 18. PAPPACHAN.T.C, THURUTHIPARAMBIL, BRAHMAPURAM. 19. K.S. SURESH KUMAR, KOZHIVELIL, BRAHMAPURAM. 20. NARAYANAN NAIR, PARIPPIL, BRAHMAPURAM. 21. PAREEKUNJU, CHELLIPADATH, BRAHMAPURAM. 22. C.E. MAMMUKUTTY, CHELLIPADATH, BRAHMAPURAM. 23. M.A. SULAIMAN, MOOLABHAGATH, BRAHMAPURAM. 24. HASSAN, CHELLIPADATH, BRAHMAPURAM. * ADDL. RESPONDENTS 25 TO 29 IMPLEADED: 25. HOWAMMA, W/O. LATE PAREEKUNJU, AGED 54 YEARS, MATTATHIL HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. 26. SUBAIDA, D/O. LATE PAREEKUNJU, AGED 33 YEARS, MATTATHIL HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. 27. ZEENATH, D/O. LATE PAREEKUNJU, AGED 30 YEARS, MATTATHIL HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. 28. LAILA, D/O. LATE PAREEKUNJU, AGED 28 YEARS, MATTATHIL HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. O.P. NO. 18109/1999-E: 29. SUBAIR, S/O. LATE PAREEKUNJU, AGED 26 YEARS, MATTATHIL HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. * ADDL. RESPONDENTS 25 TO 29 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 16TH RESPONDENT AS PER ORDER DATED 21/05/2003 IN C.M.P. NO. 55948/2002. *a ADDL. RESPONDENTS 30 TO 33 IMPLEADED: 30. SAINABA, W/O. LATE PAREETH SAID, AGED 67 YEARS, KODIVELIKKAKATH HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. 31. K.S. PAREEKUNJU, S/O. LATE PAREETH SAIDU, AGED 54 YEARS, KODIVELIKKAKATH HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. 32. SHERIFA, D/O. LATE PAREETH SAIDU, AGED 39 YEARS, KODIVELIKKAKATH HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. 33. RUMLATH, W/O. LATE PAREETH SAIDU, AGED 31 YEARS, KODIVELIKKAKATH HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. *a ADDL. RESPONDENTS 30 TO 33 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 14TH RESPONDENT AS PER ORDER DATED 21/05/03 IN C.M.P. NO. 55947/2002. *b ADDL. RESPONDENTS 34 TO 37 IMPLEADED: 34. SAINABA HASSAN, W/O. LATE HASSAN, AGED 44 YEARS, CHELLIAPPADATH HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. 35. ABDL LATHEEF.C.H., S/O. LATE HASSAN, AGED 24 YEARS, CHELLIAPPADATH HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. 36. ABDUL MUNEER.C.H., S/O. LATE HASSAN, AGED 22 YEARS, CHELLIAPPADATH HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. O.P. NO. 18109/1999-E: 37. FATHIMA.C.H., D/O. LATE HASSAN, AGED 19 YEARS, CHELLIAPPADATH HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. *b ADDL. RESPONDENTS 34 TO 37 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 24TH RESPONDENT AS PER ORDER DATED 21/05/03 IN C.M.P. NO. 55949/2002. *c ADDL. RESPONDENTS 38 TO 43 IMPLEADED: 38. KHADEEJA, W/O. LATE PAREETH PAKKO, AGED 59 YEARS, KODUVELIKKAKATH, BRAHAPURAM, PUTHENCRUZ VILLAGE. 39. PAREEKUNJU, S/O. LATE PAREETH PAKKO, AGED 37 YEARS, KODUVELIKKAKATH, BRAHAPURAM, PUTHENCRUZ VILLAGE. 40. AYISHA, D/O. LATE PAREETH PAKKO, AGED 35 YEARS, KODUVELIKKAKATH, BRAHAPURAM, PUTHENCRUZ VILLAGE. 41. NASSAR, S/O. LATE PAREETH PAKKO, AGED 33 YEARS, KODUVELIKKAKATH, BRAHAPURAM, PUTHENCRUZ VILLAGE. 42. RASHEELA, D/O. LATE PAREETH PAKKO, AGED 31 YEARS, KODUVELIKKAKATH, BRAHAPURAM, PUTHENCRUZ VILLAGE. 43. MUHAMMED S/O. LATE PAREETH PAKKO, AGED 29 YEARS, KODUVELIKKAKATH, BRAHAPURAM, PUTHENCRUZ VILLAGE. *c ADDL. RESPONDENTS 38 TO 43 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 12TH RESPONDENT AS PER ORDER DATED 19/03/09 IN I.A. NO. 11360/2005. R2 & R3 BY GOVT. PLEADER SMT. SMITHA SUKUMARAN, R1 BY ADV. SMT.LALY VINCENT, ADDL.CGSC, R.5 TO R.15 BY ADV. MR.T.K.KOSHY, ADD.R.38 TO R.43 BY ADV. MR.M.M.ALIAS. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 18109/1999-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PUBLIC LIABILITY INSURANCE POLICY ISSUED BY THE PETITIONER TO F.A.C.T. EXT.P.2: COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, ERNAKULAM RD DIS 58659/95/B2 DTD. 06/03/99. EXT.P.3: COPY OF THE ORDER IN C.M.P. NO. 25367/96 IN O.P. NO. 14367/96 DTD. 07/02/97 PASSED BY THIS HON. COURT. EXT.P.4: COPY OF THE ORDER IN CMP. NO. 30217/96 IN O.P. NO. 16857/96-F DTD. 29/10/98 PASSED BY THIS HON. COURT. RESPONDENTS' EXHIBITS: EXT.R6.A: COPY OF THE REPORT OF THE KERALA POLLUTION CONTROL BOARD DTD. 04/10/1995. EXT.R6.B: COPY OF THE REPORT OF THE PRELIMINARY EXAMINATION OF THE JOINT CHEMICAL EXAMINER, ERNAKULAM DTD. 12/09/1995. EXT.R6.C: COPY OF THE REPORT OF THE REGIONAL ANALYTICAL LABORATORY, ERNAKULAM KOCHI, DTD. 26/09/1995. EXT.R6.D: COPY OF THE REPORT OF THE KERALA AGRICULTURAL UNIVERSITY. EXT.R6.E: COPY OF THE JUDGMENT IN O.S. NO. 134 OF 1997, DTD. 04/04/2000. EXT.R6.F: COPY OF THE JUDGMENT IN A.S. NO. 190/2000 DTD. 31/03/2002. EXT.R6.G: COPY OF THE JUDGMENT IN S.A. NO. 897/2002, DTD. 02/07/2004. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 18109 of 1999 ================== Dated this the 19th day of March, 2009 J U D G M E N T The petitioner is an insurance company. They are aggrieved by Ext.P2 order, whereby the District Collector, Ernakulam, pursuant to a direction in judgment in O.P.No.20080/1998, held that the petitioner is liable to indemnify the Fertilizers and Chemicals Travancore Ltd. (FACT), in respect of the claim raised by respondents 5 to 24, to whom the FACT was liable to be compensated. 2. The primary contention of the petitioner is that before passing Ext.P2 order, the petitioner was not given an opportunity of being heard. The learned counsel for the petitioner would submit that the Divisional Manager of the petitioner company was present on the date when the District Collector posted it for hearing, but he could not produce any evidence to prove that contention with any material, which is available in the files of the District Collector. The District Collector has not chosen to file any counter affidavit, nor are his files available. Ext.P2 order does not, on the face of it, disclose that the petitioner had been heard. In fact in an identical case in O.P.No. 14367/1996, a Division Bench of this Court had directed the District Collector to reajudicate the matter by taking into account the materials already on record and those which the parties may produce, if any, in O.P.18109/99 2 support of the respective stands of the parties. In the facts and circumstances of the case, I am also inclined to adopt that course of action. Accordingly, this original petition is disposed of with the following directions: Ext.P2 order is quashed. The District Collector shall give a fresh hearing to the petitioner, the FACT, and respondents 5 to 24 or the legal heirs of those who are no more among respondents 5 to 24. Representative of the petitioners, FACT and respondents 5 to 24 or their legal representatives who are on record here, would appear before the District Collector's office on 27.4.2009, on which date the District Collector shall give a convenient date for hearing to the parties and hear the parties. In any case, orders shall be passed on or before 31.5.2009. If any of the respondents is no more, it would be open to the legal heirs to get themselves impleaded by filing appropriate petitions before the District Collector. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge