Tanur: "Chief Minister Pinarayi Vijayan should not have said his government will bear our treatment expenses," said Muhammed Jabir (46), a fisherman from Parappanangadi in Malappuram. "By making the insincere statement, he blocked all charitable and social organisations from helping us."

Jabir's wife Jalsia (44) and eldest son Jareer (11) were among the 22 people who lost their lives when an overcrowded recreational boat capsized off Thooval Theeram beach near Tanur on the night of Sunday, May 7, 2023.

The same accident left his two bubbly and healthy daughters, Jarsha, now 11, and nine-year-old Jenna, struggling with severe physical and cognitive challenges. Jarsha lost her ability to speak. She has no control over her movement and posture. Twice, she fractured and twisted her feet -- once while trying to get off the bed, and again while trying to walk.

Jenna suffers from frequent headaches and abdominal pain, though the cause remains undiagnosed. "Just yesterday, she collapsed at her madrasa, and the teachers took her to the hospital," said Jabir, who sold his fishing boat and became a full-time stay-at-home father for his two daughters.

Though Jabir has been bearing heavy therapy expenses for the past 20 months, the judiciary has largely been absent for the family. But the LDF government went a step further — instead of remaining passive, it opted to engage in double-speak with the families of the injured.

On July 9, 2024, Minister for Ports VN Vasavan told the Kerala Legislative Assembly that the three-member Justice VK Mohanan Commission -- constituted to look into the cause of the boat accident and fix responsibilities -- can also look into the demands for financial assistance for follow-up treatment of the victims. But at the commission's sitting, the same government fielded its lawyer to vehemently oppose the commission from taking up the new mandate.

On December 19, five months after the government took a pro-victim stance in the Assembly, the Justice Mohanan Commission rejected Jabir's petition seeking financial assistance for his daughters' therapies, saying it did not have the mandate from the government to do so. Onmanorama accessed the order, which was made public on Thursday, January 23, 2025.

The double-speak is more appalling, given that 15 children, five women, and two men drowned, while several others were left with lifelong injuries due to the government's dereliction of duty. Tanur councillor KP Nisamudeen had told Onmanorama that he had repeatedly warned the police about the Atlantic ferrying tourists without a fitness certificate, but they ignored the warnings.

Nassar Pattarakath, the owner, had illegally converted a fishing boat into a double-decker recreational boat with 20 seats. On the day it capsized, the boat carried around 37 passengers, nearly double its capacity.

Jabir does not give up
Though the government left Jabir and his two daughters in the lurch, he continued to take his daughters for therapies and treatment. For each trip, he would spend Rs 2,000 to Rs 2,500 on transport alone.

After months of treatment at various hospitals, the Malabar Institute of Medical Sciences (MIMS) in Kozhikode diagnosed Jarsha's condition as post-drowning hypoxic-ischemic encephalopathy (HIE). In other words, her brain was injured because oxygen or blood supply to the brain was cut when she was sinking. While HIE is most commonly seen in newborns after a complicated birth, it can also occur in older children and adults when there is severe respiratory distress, such as in cases of drowning. The water accident also led to dyskinetic cerebral palsy, causing a loss of coordination between the brain and muscles in Jarsha.

Recently, Jabir started sending his daughters to school after doctors said that schools could also serve as a form of therapy.

Jarsha is also regularly undergoing occupational therapy, physiotherapy, and speech therapy at Freewill Advance Centre For Mental Health And Rehabilitation at Tirur. The monthly therapy expense, without including the cost of transport and accommodation, comes to around Rs 30,000 for Jarsha and around Rs 15,000 for Jenna, said Jabir. The doctors also recommended custom-made footwear worth around Rs 50,000 to correct the misalignment of Jarsha's feet. "The best ones are priced around Rs 65,000, but we bought a pair for Rs 12,000," Jabir said, his voice tinged with sadness at not being able to give his daughter the best.

How much did the state government spend
Despite the Chief Minister's promise, Jabir said he did not get a single rupee from the state government for the treatment of his two daughters.

After the accident, the state government immediately released Rs 2.20 crore from the Chief Minister's Distress Relief Fund (CMDRF) to give Rs 10 lakh each to the families of the 22 persons who lost their lives.

The Union government released Rs 2 lakh to the families of the deceased and Rs 50,000 each to the injured from the Prime Minister's National Relief Fund (PMNRF). In total, Jabir got Rs 20 lakh as solatium in the name of his deceased wife and son and another Rs 1 lakh from the Union government.

The state government also allocated an additional Rs 25 lakh from the State Disaster Response Fund (SDRF) to cover the costs of the search and rescue operation, as well as the immediate medical needs of the victims. Unlike the SDRF, which has a budgetary allocation of 75 per cent from the Union government, the CMDRF and PMNRF are entirely run by public contributions.

Words vs action
On May 10, a day after the accident, Pinarayi Vijayan visited Tanur and met the injured and their relatives in various hospitals and announced that the government would bear the expenses of the treatment of the survivors.

The Chief Minister also announced a three-member judicial commission of inquiry, headed by Justice VK Mohanan, a retired judge of the High Court of Kerala. The other members of the commission are Suresh Kumar, who retired as chief engineer from Kerala Waterways and Infrastructure Ltd (KWIL), and Prof K P Narayanan, who retired from the Ship Technology Department of Cochin (CUSAT).

The Commission of Inquiry has six terms of reference but compensating the people for the loss of life or the injuries caused because of the State's negligence is not one of them. Justice V K Mohanan Commission is confined to finding the cause of accidents, fixing responsibilities, suggestions on plugging loopholes in licensing, steps to prevent boat accidents, and actions taken by different departments on reports submitted by inquiry commissions after similar tragedies.

In the first sitting held at the PWD Rest House at Tirur on March 27, 2024, several families turned up with their injured children, seeking compensation and financial assistance for ongoing treatment. The commission rejected their appeals, saying the terms of reference did not include delving into compensation and medical assistance.

On July 9, 2024, Deputy Leader of Opposition and IUML MLA PK Kunhalikutty made a statement in the Assembly, accusing the sittings of the Justice VK Mohanan Commission of becoming farcical, as they failed to address the families' urgent need for financial support for ongoing treatment. Apart from the solatium extended then, there is no mention of follow-up treatment, their compensation, or rehabilitation in terms of reference of the commission, he said in the Assembly. "The government should immediately intervene and make the commission's functioning meaningful. Those who are seriously injured require continuous treatment. A solution is needed," Kunhalikutty said in his two-minute submission.

Replying to the veteran leader from Malappuram, Minister for Ports VN Vasavan brought up the cases of Jarsha, Jenna and one Ayesha Mehreen, daughter of Mansoor, and said that the Malappuram District Medical Officer (DMO) had recommended continued treatment for the three children. He said the government footed Ayesha Mehreen's bill of Rs 34,706 when she was admitted at Amrita Hospital in Kochi from June 6 to 13, 2023. He was, however, silent on what the government did for Jenna and Jarsha or Ayesha during her follow-up treatment.

Vasavan said the government would take steps to reimburse the money the family spent on their treatment.

On amending the terms of reference to include medical expenses as a subject to consider, the ports minister said the government cannot change the terms of reference because the sittings were underway. "However, one of the six terms of reference of the commission is to inquire into 'allied aspects or matters borne out of the issue'. So, if the commission felt it necessary, it could consider other serious matters and submit its report to the government," Vasavan told the Assembly.

Jabir and several other families of injured victims saw a ray of hope and approached the Justice VK Mohanan Commission requesting financial support to meet their medical expenses. "But to our shock, the government pleader vehemently opposed our petition saying compensation was not part of the terms of reference," said Adv Ameen Hassan, the legal counsel of Jabir.

Though Jabir's petition was seeking financial support for therapy for his daughters, Additional Government Pleader Abdul Jabbar TP and counsel for the judicial commission Adv TP Ramesh made it exclusively about compensation. The government pleader argued that the "commission has no jurisdiction to issue orders granting compensation" because it was not part of the terms of reference set by the government.

Advocate T P Ramesh argued that the government did not include a specific provision allowing the commission to determine the quantum of compensation because it "already ordered compensation and treatment expenses to the family of the deceased and survivors who were injured on compassionate grounds". Adv Ramesh, perhaps unknowingly, conflated solatium — a fixed, discretionary payment given on compassionate grounds — with compensation, which is a legal right based on actual losses, such as lost income, medical bills, and actual damages or injuries, aimed at restoring the victim’s economic position.

The Justice VK Mohanan Commission conveniently sided with the government pleader and its own counsel and concluded that a commission of inquiry should not exceed the terms set by the government. However, in the case of the boat tragedy, the government had left it to the commission to decide on recommending medical assistance and compensation.

In its order dated December 19, 2024, -- five months after ports minister Vasavan's statement in the Assembly -- Justice V K Mohanan Commission dismissed Jabir's petition seeking financial support for therapy saying it is "not legally sustainable and entertainable before this commission".

In the order, the commission said: "We are fully aware of the pathetic situation of the family. But the present state of affairs is not brought to the notice of the government by any of the parties".

Justice Mohanan has headed several important commissions and committees in Kerala, including the State Police Complaints Authority and the Court Fees Revision Committee. On May 7, 2021, the LDF government set up the Justice V K Mohanan Commission to investigate the alleged attempt by the Customs Department and the Directorate of Enforcement (ED) to wrongfully implicate Chief Minister Pinarayi Vijayan in the gold smuggling case. Like the commission for the Tanur boat accident, this commission is also running on extended life.

'The government knows'
Jabir disagreed with Justice Mohanan's order that his situation was not brought to the government's notice. The minister mentioned his two daughters by name in the Assembly.

Jabir said after the boat capsized, his daughters were first taken to MIMS, Kottakkal. After a week they were sent home. However, the children developed complications and had to return to the same hospital. All expenses for the initial admission were covered by the hospital's parent company, Aster DM Healthcare, as announced by its Managing Director, Azad Moopen, for all boat accident victims at MIMS, Kottakkal.

Jabir said he spent around Rs 10 lakh at MIMS in Kozhikode, where doctors diagnosed his elder daughter's condition. Four sets of therapies over two months at Freewill Advance Centre For Mental Health and Rehabilitation in Tirur added up to Rs 47,000, while ongoing therapies at Almas Hospital in Kottakkal came to Rs 78,000. "These bills are pending before the Malappuram Collector, with no response," said Jabir. "The Collector told me to take my daughters to the medical college. But does it have the facilities?"

Jabir does not hide his growing frustration with the government: "The Chief Minister doesn't believe me. The Judicial Commission doesn't believe me. The Tahsildar and the Village Officer don't believe me. The government lawyer does not believe me. But what stops them from speaking directly with the doctors treating my children? In today's times, it won't take much time to get their reports and opinions. But has the Chief Minister done anything?"

Jabir said he would not stop the therapies of his children and he would use all the money he got as solatium from the government. "They are my daughters. I have to do the therapy for them," he said.

Judiciary's timely outrage
On May 9, two days after the accident, an outraged High Court of Kerala initiated a suo motu public interest case because of evident supervisory failures of the government. "The final loss is for the citizens and no other because instances like this are erased from memory soon. Therefore, judicial interference becomes necessary, lest the unfortunate loss of lives is forgotten," observed the High Court's division bench comprising Justice Devan Ramachandran and Justice Shoba Annamma Eapen.

The court suggested that compensation should be recovered from the negligent officers responsible for such accidents. However, the PIL focuses not on compensation or covering the medical expenses of the injured but on determining responsibility for the incident and preventing future accidents.

After nearly 20 months, the counsels for all parties concerned have requested more time to review the relevant laws and regulations concerning inland vessels, including their specifications, usage, and safety measures, and to present their findings to the court.

The Bench, now headed by Chief Justice Nitin Madhukar Jamdar and Justice S Manu, heard the PIL for the 15th time on Friday, January 24, 2024, and posted it to be heard next tentatively on February 10, 2025. Lest we forget.