NAWAL KISHORE SHARMA versus UNION OF INDIA AND ORS. on 10 February 2021

1. The appellant challenges the judgement dated 26.03.2019 inthe Civil Writ Jurisdiction Case No.3160/2012, whereunder, the HighCourt of Judicature at Patna had rejected the seaman’s Claim for disabilitycompensation [under clause 21 of the National Maritime BoardAgreement (hereinafter referred to as “the Agreement”)] and thereby AB

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Aendorsed the order dated 07.10.2011 (Annexure P21) of the ShippingCorporation of India (hereinafter referred to as the ‘SCI’ forshort).According to the SCI, the appellant’s was not a case of accidentalinjury during duty on the vessel and therefore,only severancecompensation is payable to the appellant. This is because the Seaman iscapable of performing other kinds of job and his day-to-day normal workBis not affected.

2. The appellant was earlier registered in the SCI’s offshore fleetservice but at the relevant time he was released at his own request witheffect from 19.08.1996 and transferred to the SCI’s foreign goingseaman’s roster, with fresh registration. Those in seaman’s rosterCcategory, are engaged oncontract,specific for the sea going vessel. Theappellant joined as a crew on the foreign going vessel on 18.09.2009 andhe was discharged on 18.06.2010 with the declaration of beingpermanently unfit for sea service, due to Dilated Cardiomyopathy.

3. On the above facts, Mr. V. Chidambresh, the learned SeniorDCounsel argues that seaman is entitled to100% disability compensationunder 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) ofthe Agreement which speaks of “A rating on being medically unfitEfor sea service at seas as a result of injurywhilst in employment”.Theterm “injury”,according to the counsel should cover anything impairingthe health of the appellant. Mr. Chidambresh argues that injury need notbe manifested externally or blood oozing kind but should alsocoveranimpaired heart. The appellant’s counsel relies on anarticle on MarineSafety, by Mr.Dilipan Thomas and also the writings of Mr.Markas OllieFBarker to argue that cardio vascular disease is one of theseveraloccupational diseases about which, the seafarers have been cautionedby the authors. The failure by the SCI to accommodate the seaman inan alternative job(suitable for the appellant’s medical condition) is nextcontended to be in contravention of Section 47 of the PersonswithGDisabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995 (hereinafter referred to as”the Disability Act”).

4. Mr. Shiv Kumar Suri, the learned counsel for the SCI per contracontends that the seaman never suffered any accidental injury duringthe sea voyage on the vessel and since the disability compensation isHrestricted only to cases of incapacitation resulting from injury during the voyage, the claim for disability compensation was rightly rejected by theHigh Court and the SCI authority. Mr. Suri highlights that the Claimant’sheart condition does not fall within the contours of an “injury” for thepurpose of Clause 5.9.F (ii). It is, therefore, argued that the appellant iscovered by Clause 25, which applies to cases of persons declaredmedically unfit for sea service instead of Clause 21, which is triggered incases of 100% disability suffered during and in course of employment.According to the SCI’s counsel, a person may be unfit for Seaman’sduty but may be 100% fit for doing another job of general nature. Refutingthe appellant’s argument on the footing of the Disability Act, Mr. Suriargues that Dilated Cardiomyopathy is nowhere mentioned in theDisability Act and therefore an alternatejob, suitable for the seaman’smedical condition, cannot be claimed under the Act. Adverting to thetemporary nature of the appellant’s engagement as a freelance seafarerand his contractual engagement for about 9 months (from 29.09.2009 to18.06.2010), the SCI counsel contends that the short stint on the vesselcannot reasonably be the basis for the impaired heart function, particularlywhen, no injury was suffered during the sea voyage.The medical conditionof the appellant is attributed by the counsel to excessive liquor consumptionand the same has nothing to do with the seaman’s work on the vessel.

5. In his turn, Mr. Viramjit Banerjee, the learned ASG contendsthat there is no causal connection between the Claimant’s medicalcondition with the nature of his employment in the sea going vessel. TheCounsel submits that unless proximate connection between the seaman’swork on the vessel and his medical condition is established, disabilitycompensation cannot be allowed.

6. While rejecting the claim for disability compensation, the SCIrecorded in the impugned order dated 07.10.2011 (Annexure P21) thatthis was not a case of a seaman becoming incapacitated on account ofan accidental injury suffered on the vessel. Since, the relevant Clause5.9. F(ii) specifically speaks of being medically unfit as a result of injurywhile in employment and the claim was not based on injury, the disabilitycompensation was held to be unmerited.

7. The High Court while considering the challenge to the SCI’srejection order, considered the literature relied upon by the appellant.Thelearned Judge while appreciating that reduced blood pumping capacityof the heart could be one of the occupational diseasesof the seafarer,the disability compensation is not merited unless 100% incapacity is found AB

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Ain course of employment on the vessel. Here however, there is nothingto show that the seaman was not fit for another job of general nature.TheHigh Court interpreted both Clause 21 and Clause 25 and found that theappellant’s casedoes not fall in the category of Clause 21 since there isno impediment inhis performance of normal day to day affairs. In otherwords,the sea-faring work may not be feasible but the person is capableBof discharging duty of another job of general nature. The HighCourt,therefore, found no basis to overturn the SCI’s rejection of theclaim for Disability compensation.

8. It would be appropriate at this stage to extract Clause 5.9.F (ii)of the Agreement providing for 100% disability compensation. The sameCreads as under:

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

D9. The above Clause is part of the National Maritime BoardAgreement which governs the parties. The National Maritime BoardAgreement is the outcome of collective bargaining between Indian ShipOwners Association and the Seafarers’ Union, governing the terms andconditions of a seaman.

E10. Since, the purport of Clause 21 covering disability compensationand Clause 25 covering severance compensation are to beconsidered,both clauses are extracted below:- “21. Death and Disability Compensation:

………………………………………………………………………………………………………………………………………………………………………………………………………………….F………………………………………………………………………………………………………………………………………………………………………………………………………………….

Death compensation-Rs.12.85 Lacs.

100% disability compensation-Rs.14.85 Lacs.

In case of rating declared partially incapacitated whilst inGemployment above Disability Compensation shall be paid onproportionate basis. This Death &Disability Compensation shallnot be paid if the death and/or disability has resulted due to therating’s own wilful act.”

“25. Severance Compensation:H

With effect from 01/04/2006, a Rating borne on a Company’sRoster continuously for a period of not less than 5 years if declaredpermanently medically unfit for sea service by Company’s MedicalOfficer, 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 includingapplicable leave periods on Company’s vessels and @1 ½ months’Basic Wages per year of prospective service subject to a minimumcompensation of Rs.2,75,000/-.

For Ratings between age of 55 to 58 years:

@ 3 months Basic Wages per year of prospective service subjectto 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 subjectto 4 months Basic Wages or Compensation of Rs.1,25,000/-whichever is higher.

The above provision of compensation will not be applicable to arating dealt with under the provisions Death and DisabilityCompensation.”

11. As can be seen from above, 100% compensation is payable toa seaman under Clause 5.9. F (ii) in a situation where a seaman is foundmedically 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 sufferedanyaccidental injury in course of his engagement in the sea vessel. Thequestion then is, whether the term “injury”, should be construed in themanner suggested by the appellant’s counsel as anything which diminishesthe health status of a seaman. Such broad interpretation in the contextof the specific expression in the agreement would in our view,efface theintent of the agreement between the parties. Merely because of thebeneficial objective, the clear expression in the agreement must not beignored to give another meaning which could not have been the intentionor the understanding, of the contracting parties.

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A12. To secure coverage of Clause 5.9.F (ii), the incapacity mustrelate to injury being suffered whilst in employment.In the present case,the appellant never claimed to have suffered any injury during his shipduty. Moreover, the impaired heart function cannot reasonably beattributed to his nine month engagement. In such circumstances, althoughthe seaman commenced his engagement with a fitness certificate, itBwould be unreasonable, in our view,to relate the medical condition of theappellantas having causal connection with his sea voyage engagement.

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13. In the above context, we have also perused the extractedpassage from the article on marine safety and cardiovascular disease ofMrDilipan Thomas. According to the author, “Cardio-vascular diseaseCis as commonly found in seafaring community as in the general population”.Thus, it can at best be a general observation relating to both seamen andpeople 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 toDMrMarkas Ollie Barkarbut a search on the origin of the quoted portionrevealed that this was actually lifted from the abstract of the articletitled “Risk of Cardiovascular Diseases in Seafarers” by MrMarcusOldenburg, in the International Maritime Health,2014. Since theconcerned passage was quoted in the High Court’s judgment and alsoErelied upon by the appellant, we have examined the context in which itwas 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 referencepopulation for comparison.The concerned passagespeaks of job-relatedcardio risk factors for seafarers. But in the present case no material isFproduced to correlate the appellant’s impaired heart function with the 9month engagement in the ship. In the absence of any connecting linkbetween the job and the medical condition, thedisability compensationinour opinion is not merited.

15. The Clause 21 applies to a case of total disability but this is notGa case of 100% disablement.To say it another way, the DilatedCardiomyopathy condition may prevent the man from performing seaservice but the same will not be an impediment for him to perform otherjobs. With this interpretation,the High Court held that only severancecompensation under Clause 25 is payable for the seaman. We see no H

reason to reach another conclusion on the implication of Clause 21andClause 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 Fernandez[2]. In these cases, the impairment hadoccurred in the course of employment. For instance, in Sangammacase,the bus conductor suffered chest pain while on duty and was admitted tothe hospital.Howeverin the case in hand, no linkage between the on shipduty 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’scardiac ailment, the log-book of the ship had recorded entry relating tothe employee’s hospitalization for treatment of cardiac ailment. But inthe present case nosuch log entry from the vessel had been produced.InRita Fernandez judgement, the Court itself had highlighted the need forestablishing the causal connection for considering compensation underSection 3 of the Workmen Compensation Act,1923.But in the presentcase, the appellant’s medical condition could not be linked to his shorttermengagement.Therefore, the cited ratio is of no assistance for the disabilitycompensation claim.

18. Let us now deal with the appellant’s argument that his heartailment should be understood as a disability under the Disability Actand consequential benefits be accorded to him. Section 2(i) of the Acttakes into account visual disability, locomotor disability, mentalillness,mental retardation, hearing impairment and leprosy. A heart ailmentis not covered within the definition of disabilityin the Act and we wouldhesitate to import words, which the legislature chose not to, in theirdefinition of disability. When the 1995 Act was replaced by the Rightsof 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 andeffective participation in society. Section 2(zc) defines, “specifieddisability” as those mentioned in the Schedule to the 2016 Act. In thesaid Schedule, “physical disability”, “intellectual disability”,“mentalbehaviour”, are specified.The dilated Cardiomyopathy conditionof 1 2005 (2) LLN 776

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Athe appellantis neither a specified disability noris the same relatable tothe broad spectrum ofimpairments, which hindershis full and effectiveparticipation in society. Therefore, we are of the considered opinion thatDilated Cardiomyopathy condition of the appellant does not bring hiscase within the ambit of either the 1995 Act or of the 2016 Act.The HighCourt, therefore, was correct in concluding that Dilated CardiomyopathyBcondition would not facilitate any benefit to the appellant under Section47 of the Disability Act.

19. For the reasons aforesaid, the appeal is found devoid of meritand is dismissed leaving the parties to bear their own cost.

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Ankit Gyan

Appeal dismissed.

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