IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 OP.No. 21850 of 2002(A) ---------------------------------- PETITIONER: ------------------- ALICE KURIAN, AGED 53 YEARS, W/O. KURIAN K.J., KIDARATHIL HOUSE,N.S.H MOUNT P.O., KOTTAYAM, KERALA. BY ADVS. MR.P.A.AUGUSTIAN, MR.V.K.SATHYANATHAN. RESPONDENTS: ------------------------ 1. THE DEPUTY SECRETARY, SPECIAL KUWAIT CELL, MINISTRY OF EXTERNAL AFFAIRS, GOVT.OF INDIA, I.S.I.L BUILDING 9, BHAGWANDAS ROAD, OPP. SUPREME COURT, NEW DELHI. 2. SECRETARY TO GOVT. OF INDIA, MINISTRY OF EXTERNAL AFFAIRS, GOVT. OF INDIA, NEW DELHI. R1 & R2 BY MR.K.R.RAJKUMAR, ADDL.CGSC. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 21850/2002-A: ORDER ON C.M.P. NO. 37309/2002 IN O.P. NO. 21850/2002-A DISMISSED 05/06/2009. SD/- V.K.MOHANAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SALARY CERTIFICATE ISSUED BY MINISTRY OF PUBLIC HEALTH, KUWAIT IN ARABIC TO PETITIONER. EXT.P.1.A: TRUE ENGLISH TRANSLATION OF EXT.P.1. EXT.P.2: COPY OF THE COMPENSATION APPLICATION FILED BY THE PETITIONER WITH INDIAN EMBASSY KUWAIT (RESPONDENT NO.I) BEARING CIVILIAN ID NO. 248111200725. EXT.P.3: COPY OF THE RECEIPT ISSUED BY RESPONDENT-I BEARING NO.9144 DTD. 27/10/92 TO THE PETITIONER. EXT.P.4: COPY OF THE U.N COMPENSATION REGISTRATION NO. MARKED AND GIVEN BY R.1. TO THE PETITIONER BEARING NO.C-130522. EXT.P.5: COPY OF THE AWARD LETTER OF MINISTRY OF EXTERNAL AFFAIRS (SPECIAL KUWAIT CELL) NO.C/SUC/424/1/97. C-111500 DTD. 18/11.97 ADDRESSED TO STEPHAN MOLY KAVUMARIYIL. EXT.P.6: COPY OF THE AWARD LETTER OF MINISTRY OF EXTERNAL AFFAIRS (SPECIAL KUWAIT CELL) CQ/SKC/424/15/99 (C-V) DTD. 12/04/99 ADDRESSED TO MARY THOMAS MATHEW. EXT.P.7: COPY OF THE LETTER ISSUED BY GOVT. OF KERALA NON RESIDENT KERALITES' AFFAIRS (B) DEPT. THIRUVANANTHAPURAM, DTD. 23/03/2002 ISSUED BY ON BEHALF OF R.2. ADDRESSED TO PETITIONER. EXT.P.8: COPY OF THE UNITED NATIONS SECURITY COUNCIL LETTER NO. UNCC/51/200/992 DTD. 23 JUN. 2000 ADDRESSED TO PETITIONER. EXT.P.9: COPY OF THE ADVOCATE NOTICE CAUSE TO BE ISSUED BY PETITIONER ADDRESSED TO R.2. & OTHERS DTD. 21 MAY 2002. EXT.P.10: COPY OF THE LETTER FROM R.2. BEARING NO.C/SKC/424 72000 (NF) DT. 31/05/02 ADDRESSED TO PETITIONER. RESPONDENTS' EXHIBIT & ANNEXURE: EXT.R1: COPY OF THE LETTER DTD. 13/11/2002 ISSUED BY AMBASSADOR OF INDIA, KUWAIT. O.P. NO. 21850/2002-A: ANNEXURE R1: COPY OF THE LETTER DTD. 13/11/2002 ISSUED BY AMBASSADOR OF INDIA, KUWAIT. //TRUE COPY// P.S. TO JUDGE. Prv. V.K.MOHANAN, J. ---------------------------------------- O.P. No.21850 OF 2002 ---------------------------------------- Dated, 5th June, 2009 JUDGMENT The petitioner is a claimant for the compensation declared by the United Nations Security Council, connected with Iraqu - Kuwait war. 2. The petitioner who claimed that she was working as Nurse, at Kuwait in the Ministry of Public Health from 8.9.1977, during the month of August 1990, Iraqu attacked Kuwait and occupied its territory as a result of which several people at Kuwait had misplaced and lost their personal belongings and also got out of job and forced to leave Kuwait so as to save their lives. According to the petitioner, she was one of the victim of Iraqu-Kuwait war and she lost her personal effects, household furnishings and lost her job at Kuwait and undergone the miseries of war and finally she was constrained to leave that country and thus she left Kuwait on 20.9.1990. Subsequently, she had rejoined in her job O.P.21850/02 -:2:- on 8.10.91. 3. The United Nations Security Counsel intervened and declared certain measures to help the refugees and the people who lost their job and valuables during the war time and, accordingly, the U.N.Security Council asked the said persons to register their lost claim at the concerned embassy at Kuwait. According to the petitioner, she had preferred Ext.P2 claim of a total sum of 6400 Kuwait Dinar, being 14 months lost salary, lost clothing and household furnishings etc. On filing Ext.P2 in the Indian Embassy at Kuwait, Ext.P3 receipt was issued by the Indian Embassy to the petitioner. Many of the claimants did not receive any acknowledgment card and the petitioner has also not received any such card. Therefore, she again approached the Indian Embassy at Kuwait and she gave Ext.P4 letter whereby it can be seen that her claim was registered as “C- 130522”. As the petitioner has not received any compensation, she approached various authorities including the Ministry of External Affairs, New Delhi. By O.P.21850/02 -:3:- Ext.P7, issued by the Secretary to Government of Kerala, Non Resident Keralites' Affairs (B) Dept, Thiruvananthapruam, the petitioner was informed that as the Government of Kerala was informed by the Special Kuwait Cell, Ministry of External Affairs that no claim is seen registered in the name of the petitioner. As per Ext.P8, issued by the United Nations Security Council, the petitioner was informed and directed that any question with respect to the claim preferred by the petitioner had to raise before the competent authorities with which the petitioner had originally filed her claim. Thus it can be seen that as evidenced by Ext.P3, the petitioner had filed Ext.P2 claim for compensation on 27.10.92, which claim of the petitioner further confirmed by Ext.P4. Therefore, the petitioner approached this Court with a prayer to issue a writ of mandamus directing the respondents to pay compensation of 6400 Kuwait Dinar, immediately with interest at the rate of 12 % from January, 1997, the date which other applicants got the UN compensation. O.P.21850/02 -:4:- 4. On behalf of the respondents, a detailed counter affidavit has been filed, wherein it is stated that on receiving the petitioner's plea, the Embassy of India, Kuwait was contacted to ascertain the exact status of the case and accordingly, they received Ext.R1 by which it was informed that the UN Compensation Claims in 1992-93 were forwarded to MEA in big bundles along with the acknowledgment receipts to the SKC, initially through diplomatic bags and subsequently by couriers. The quantum of work had made it impossible for the Mission to retain copies of the claims and no record of that period are available in the Mission. However, Ext R1 itself disclosed that their records do reveal that the petitioner was holding passport No.C 723633 dated 28.7.1987 issued by this Mission, and, further observed that it is possible that she might have put her claims for compensation as mentioned by her. According to the respondents, no claim is received in the SKC and respondents 1 and 2 have nothing to do in the matter and pursue the UNCC. It is also stated in the O.P.21850/02 -:5:- counter affidavit that when the petitioner did not receive any acknowledgment card, she had to approach the SKC directly and file fresh form for the compensation and, had she done so, the same would have been registered and forwarded to the United Nation Compensation Commission, Geneva. It is also contended that the compensation is not being paid by the Government of India and the same is done by UNCC upon its own assessment in Geneva and the UNCC, being part of the UN System, enjoys immunity from the jurisdiction of national courts. Therefore according to the respondents, the Government of India cannot do anything in favour of the petitioner and the deadline for filing applications was over on 1.9.95. 5. I have heard the learned counsel for the petitioner as well as the learned Standing Counsel for the Central Government. 6. The respondents have not disputed the genuineness and the authority of Exts.P3 and P4. From the above documents and based upon the averments O.P.21850/02 -:6:- supported by other documents and, as long as there is no specific denial regarding the receipt of the compensation claim from the petitioner, it has to be held that the petitioner had approached the authority concerned in time for the compensation. From Ext.P7, the petitioner was informed that no such claim is seen registered in her name in the State of Kerala as well as in the Ministry of External Affairs. The above information and assertion are diametrically opposed to the contents of Ext.P3 and Ext.P4. When the contents of Exts.P3 and P4 are not disputed, it can safely be concluded, especially, in the light of Ext.R1 that the claim of the petitioner might have lost with all the claims that were forwarded to MEA in the big bundles along with the acknowledgment receipts to the SKC, initially through diplomatic bags and subsequently by couriers. Therefore, in accordance with the notification of the UN Security Council, it can be held that the petitioner had rightly applied for the compensation as evidenced by Exts.P3 and P4. If that be so, the genuine claim of the petitioner cannot be denied for O.P.21850/02 -:7:- non failure on the part of the petitioner. Therefore, it is for the respondents 1 and 2 to consider the claim of the petitioner and to take as a comprehensive and compensatory measure, if her claim is genuine and bona fide. The claim of the petitioner cannot be denied on the ground that the procedure and working of the UN Security Council for giving the compensation was over. As stated earlier, the petitioner had put her claim in time and therefore, according to me, it is for the respondents to quantify the damages due to the loss of claim put forward by the petitioner in time and to award sufficient amount to the petitioner to compensate her, if it is found that her claim is genuine and bona fide. 7. But the petitioner has not approached the respondents with such a prayer. In the light of the above observation and finding, it is for the petitioner to approach the respondents by filing a proper representation with necessary averments and placing materials to claim such damages. O.P.21850/02 -:8:- 5. In the result, the petitioner is directed to make a representation as in the manner stated above and in case such a representation is filed before the respondent, within one month from today, the Ist respondent is directed to consider the same on merit and to dispose of it within three months from the date of receipt of such representation. The petitioner is directed to produce a copy of this writ petition and this judgment along with the said representation. The writ petition is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- O.P.21850/02 -:9:- V.K.MOHANAN, J. O.P.No.21850/2002 JUDGMENT Dated:5.6.2009