Nawal Kishore Sharma vs Union of India Government of India Through Secretary

CIVIL APPEAL NO.150 OF 2021

NAWAL KISHORE SHARMA APPELLANT(S)

VERSUS

UNION OF INDIA AND ORS. RESPONDENT(S)

J U D G M E N T

Hrishikesh Roy, J.

1. The appellant challenges the judgement dated

26.03.2019 in the Civil Writ Jurisdiction Case

No.3160/2012, whereunder, the High Court of

Judicature at Patna had rejected the seaman’s Claim

for disability compensation[under clause 21 of the

National Maritime Board Agreement (hereinafter

referred to as “the Agreement”)] and thereby

Signature Not Verifiedendorsed the order dated 07.10.2011 (Annexure P21) Digitally signed by Charanjeet kaur Date: 2021.02.10 17:06:10 IST Reason: of the Shipping Corporation of India (hereinafter

1 referred to as the ‘SCI’ for short).According to

the SCI, the appellant’s was not a case of

accidental injury during duty on the vessel and

therefore,only severance compensation is payable to

the appellant. This is because the Seaman is

capable of performing other kinds of job and his

day-to-day normal work is not affected.

2. The appellant was earlier registered in the

SCI’s offshore fleet service but at the relevant

time he was released at his own request with effect

from 19.08.1996 and transferred to the SCI’s

foreign going seaman’s roster, with fresh

registration. Those in seaman’s roster category,

are engaged oncontract,specific for the sea going

vessel. The appellant joined as a crew on the

foreign going vessel on 18.09.2009 and he was

discharged on 18.06.2010 with the declaration of

being permanently unfit for sea service, due to

Dilated Cardiomyopathy.

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3. On the above facts, Mr. V. Chidambresh, the

learned Senior Counsel argues that seaman is

entitled to100% disability compensation under

Clause 21 of the Agreement. According to the Senior

Counsel, Dilated Cardiomyopathy or heart’s reduced

blood pumping capacity, should be understood as an

internal injury covered by Clause 5.9.F (ii) of the

Agreement which speaks of “A rating on being

medically unfit for sea service at seas as a

result of injurywhilst in employment”.The term

“injury”,according to the counsel should cover

anything impairing the health of the appellant. Mr.

Chidambresh argues that injury need not be

manifested externally or blood oozing kind but

should alsocoveran impaired heart. The appellant’s

counsel relies on anarticle on Marine Safety, by

Mr.Dilipan Thomas and also the writings of

Mr.Markas Ollie Barker to argue that cardio

vascular disease is one of theseveral occupational

diseases about which, the seafarers have been

cautioned by the authors. The failure by the SCI to

accommodate the seaman in an alternative

3 job(suitable for the appellant’s medical condition)

is next contended to be in contravention of Section

47 of the Personswith Disabilities (Equal

Opportunities, Protection of Rights and Full

Participation) Act, 1995 (hereinafter referred to

as“the Disability Act”).

4. Mr. Shiv Kumar Suri, the learned counsel for

the SCI per contra contends that the seaman never

suffered any accidental injury during the sea

voyage on the vessel and since the disability

compensation is restricted only to cases of

incapacitation resulting from injury during the

voyage, the claim for disability compensation was

rightly rejected by the High Court and the SCI

authority. Mr. Suri highlights that the Claimant’s

heart condition does not fall within the contours

of an “injury” for the purpose of Clause 5.9.F

(ii). It is, therefore, argued that the appellant

is covered by Clause 25, which applies to cases of

persons declared medically unfit for sea service

4 instead of Clause 21, which is triggered in cases

of 100% disability suffered during and in course of

employment. According to the SCI’s counsel, a

person may be unfit for Seaman’s duty but may be

100% fit for doing another job of general nature.

Refuting the appellant’s argument on the footing of

the Disability Act, Mr. Suri argues that Dilated

Cardiomyopathy is nowhere mentioned in the

Disability Act and therefore an alternatejob,

suitable for the seaman’s medical condition, cannot

be claimed under the Act. Adverting to the

temporary nature of the appellant’s engagement as a

freelance seafarer and his contractual engagement

for about 9 months (from 29.09.2009 to 18.06.2010),

the SCI counsel contends that the short stint on

the vessel cannot reasonably be the basis for the

impaired heart function, particularly when, no

injury was suffered during the sea voyage.The

medical condition of the appellant is attributed by

the counsel to excessive liquor consumption and the

same has nothing to do with the seaman’s work on

the vessel.

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5. In his turn, Mr. Viramjit Banerjee, the

learned ASG contends that there is no causal

connection between the Claimant’s medical condition

with the nature of his employment in the sea going

vessel. The Counsel submits that unless proximate

connection between the seaman’s work on the vessel

and his medical condition is established,

disability compensation cannot be allowed.

6. While rejecting the claim for disability

compensation, the SCI recorded in the impugned

order dated 07.10.2011 (Annexure P21) that this was

not a case of a seaman becoming incapacitated on

account of an accidental injury suffered on the

vessel. Since, the relevant Clause 5.9. F(ii)

specifically speaks of being medically unfit as a

result of injury while in employment and the claim

was not based on injury, the disability

compensation was held to be unmerited.

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7. The High Court while considering the challenge

to the SCI’s rejection order, considered the

literature relied upon by the appellant.The learned

Judge while appreciating that reduced blood pumping

capacity of the heart could be one of the

occupational diseasesof the seafarer, the

disability compensation is not merited unless 100%

incapacity is found in course of employment on the

vessel. Here however, there is nothing to show that

the seaman was not fit for another job of general

nature.The High Court interpreted both Clause 21

and Clause 25 and found that the appellant’s

casedoes not fall in the category of Clause 21

since there is no impediment inhis performance of

normal day to day affairs. In other words,the sea-

faring work may not be feasible but the person is

capable of discharging duty of another job of

general nature. The High Court,therefore, found no

basis to overturn the SCI’s rejection of the claim

for Disability compensation.

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8. It would be appropriate at this stage to

extract Clause 5.9.F (ii) of the Agreement

providing for 100% disability compensation. The

same reads as under:

“A rating on being medically unfit for sea service at seas as a result of injury whilst in employment shall be paid 100% compensation”.

9. The above Clause is part of the National

Maritime Board Agreement which governs the parties.

The National Maritime Board Agreement is the

outcome of collective bargaining between Indian

Ship Owners Association and the Seafarers’ Union,

governing the terms and conditions of a seaman.

10. Since, the purport ofClause 21 covering

disability compensation and Clause 25 covering

severance compensation are to be

considered,bothclauses are extractedbelow:-

“21. Death and Disability Compensation:

8 ………………………………………………………………………………………………………… ……………………………………………………………………………………………………….

Death compensation-Rs.12.85 Lacs. 100% disability compensation-Rs.14.85 Lacs.

In case of rating declared partially incapacitated whilst in employment above Disability Compensation shall be paid on proportionate basis. This Death &Disability Compensation shall not be paid if the death and/or disability has resulted due to the rating’s own wilful act.”

“25. Severance Compensation: With effect from 01/04/2006, a Rating borne on a Company’s Roster continuously for a period of not less than 5 years if declared permanently medically unfit for sea service by Company’s Medical Officer, severance compensation to be paid to such Rating as under:

For Ratings below age of 55 years: @3 months’ Basic Wages per year of articled service including applicable leave periods on Company’s vessels and @1 ½ months’ Basic Wages per year of prospective service subject to a minimum compensation of Rs.2,75,000/-.

9 For Ratings between age of 55 to 58 years: @ 3 months Basic Wages per year of

prospective service subject to 4 months Basic Wages of Compensation of Rs.1,75,000/- whichever is higher.

For Ratings above age of 58 years: @3 months’ Basic Wages per year of prospective service subject to 4 months Basic Wages or Compensation of Rs.1,25,000/- whichever is higher.

The above provision of compensation will not be applicable to a rating dealt with under the provisions Death and Disability Compensation.”

11. As can be seen from above, 100% compensation

is payable to a seaman under Clause 5.9. F (ii) in

a situation where a seaman is found medically unfit

for sea service, as a result of injury, while in

employment. But it is not the case of either side

that the appellant had suffered anyaccidental

injury in course of his engagement in the sea

vessel. The question then is, whether the term

10 “injury”, should be construed in the manner

suggested by the appellant’s counsel as anything

which diminishes the health status of a seaman.

Such broad interpretation in the context of the

specific expression in the agreement would in our

view,efface the intent of the agreement between the

parties. Merely because of the beneficial

objective, the clear expression in the agreement

must not be ignored to give another meaning which

could not have been the intention or the

understanding, of the contracting parties.

12. To secure coverage of Clause 5.9.F (ii), the

incapacity must relate to injury being suffered

whilst in employment.In the present case, the

appellant never claimed to have suffered any injury

during his ship duty. Moreover, the impaired

heart function cannot reasonably be attributed to

his nine month engagement. In such circumstances,

although the seaman commenced his engagement with a

fitness certificate, it would be unreasonable, in

11 our view,to relate the medical condition of the

appellantas having causal connection with his sea

voyage engagement.

13. In the above context, we have also perused the

extracted passage from the article on marine safety

and cardiovascular disease of MrDilipan Thomas.

According to the author, “Cardio-vascular disease

is as commonly found in seafaring community as in

the general population”. Thus, it can at best be a

general observation relating to both seamen and

people in general and not specific for the

seafaring community.

14. Insofar as the other extract relied by the

appellant’s counsel, there is some confusion. This

is because the extract was attributed to MrMarkas

Ollie Barkarbut a search on the origin of the

quoted portion revealed that this was actually

lifted from the abstract of the article titled

“Risk of Cardiovascular Diseases in Seafarers” by

MrMarcus Oldenburg, in the International Maritime

Health,2014. Since the concerned passage was quoted

12 in the High Court’s judgment and also relied upon

by the appellant, we have examined the context in

which it was written. It is then seen that subject

of the studyi.e.German seafarers, were only assumed

to have slightly increased risk of coronary

disease, even though they displayed similar

predicated risk as the reference population for

comparison.The concerned passagespeaks of job-

related cardio risk factors for seafarers. But in

the present case no material is produced to

correlate the appellant’s impaired heart function

with the 9 month engagement in the ship. In the

absence of any connecting link between the job and

the medical condition, thedisability compensationin

our opinion is not merited.

15. The Clause 21 applies to a case of total

disability but this is not a case of 100%

disablement.To say it another way, the Dilated

Cardiomyopathy condition may prevent the man from

performing sea service but the same will not be an

impediment for him to perform other jobs. With this

13 interpretation,the High Court held that only

severance compensation under Clause 25 is payable

for the seaman. We see no reason to reach another

conclusion on the implication of Clause 21

andClause 25,for the appellant.

16. The appellant’s counsel has relied on,

Divisional Controller, NEKRTC vs. Sangamma and

Ors.1, and Mackinnon Mackenzie & Co. Pvt. Ltd. vs.

Rita Fernandez2. In these cases, the impairment

had occurred in the course of employment. For

instance, in Sangammacase, the bus conductor

suffered chest pain while on duty and was admitted

to the hospital.Howeverin the case in hand, no

linkage between the on ship duty and the

appellant’s medical condition, could be

established. Thus, the first cited case will be of

no assistance to the appellant.

17. In the Rita Fernandez (supra), which related

to a seafarer’s cardiac ailment, the log-book of

the ship had recorded entry relating to the

12005 (2) LLN 776 21969 (2) LLJ 812

14 employee’s hospitalization for treatment of cardiac

ailment. But in the present case nosuch log entry

from the vessel had been produced.In Rita

Fernandez judgement, the Court itself had

highlighted the need for establishing the causal

connection for considering compensation under

Section 3 of the Workmen Compensation Act,1923.But

in the present case, the appellant’s medical

condition could not be linked to his shortterm

engagement.Therefore, the cited ratio is of no

assistance for the disability compensation claim.

18. Let us now deal with the appellant’s argument

that his heart ailment should be understood as a

disability under the Disability Act and

consequential benefits be accorded to him. Section

2(i) of the Act takes into account visual

disability, locomotor disability, mental

illness,mental retardation, hearing impairment and

leprosy. A heart ailment is not covered within the

definition of disabilityin the Act and we would

hesitate to import words, which the legislature

15 chose not to, in their definition of disability.

When the 1995 Act was replaced by the Rights of

Persons with Disabilities Act, 2016, “a person

with disabilities” was defined under Section 2(s)

as a person with long term physical, mental,

intellectual, or sensory impairment which prevent

his full and effective participation in society.

Section 2(zc) defines, “specified disability” as

those mentioned in the Schedule to the 2016 Act. In

the said Schedule, “physical disability”,

“intellectual disability”, “mentalbehaviour”, are

specified.The dilated Cardiomyopathy conditionof

the appellantis neither a specified disability

noris the same relatable to the broad spectrum

ofimpairments, which hindershis full and effective

participation in society. Therefore, we are of the

considered opinion that Dilated Cardiomyopathy

condition of the appellant does not bring his case

within the ambit of either the 1995 Act or of the

2016 Act.The High Court, therefore, was correct in

concluding that Dilated Cardiomyopathy condition

16 would not facilitate any benefit to the appellant

under Section 47 of the Disability Act.

19. For the reasons aforesaid, the appeal is found

devoid of merit and is dismissed leaving the

parties to bear their own cost.

………………………………………………J. [SANJAY KISHAN KAUL]

………………………………………………J. [DINESH MAHESHWARI]

………………………………………………J. [HRISHIKESH ROY] NEW DELHI FEBRUARY10, 2021

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