Nawal Kishore Sharma v. Union of India and Ors.
HRISHIKESH ROY, J.
1. The appellant challenges the judgement dated 26.03.2019 in
the Civil Writ Jurisdiction Case No.3160/2012, whereunder, th e High
Court of Judicature at Patna had rejected the seaman’s Claim for disability
compensation [under clause 21 of the National Marit ime Board
Agreement (hereinafter referred to as “the Agreement”)] and t hereby
NAWAL KISHORE SHARMA v. UNION OF INDIA AND ORS.
endorsed the order dated 07.10.2011 (Annexure P21) of the Shipping
Corporation of India (hereinafter referred to as th e ‘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 declaratio n of being
permanently unfit for sea service, due to Dilated Cardiomyopathy.
3. On the above facts, Mr. V. Chidambresh, the learned Se nior
Counsel argues that seaman is entitled to100% disability compensation
under Clause 21 of the Agreement. According to the Senior Couns el,
Dilated Cardiomyopathy or heart’s reduced blood pumping capa city,
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 job(suitable for the appellant’s medical condition) is next
contended to be in contravention of Section 47 of the P ersonswith
Disabilities (Equal Opportunities, Protection of Ri ghts 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 d uring
the sea voyage on the vessel and since the disability compe nsation is
restricted only to cases of incapacitation resulting from injury during the
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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 perso ns declared
medically unfit for sea service 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 Sea man’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 mention ed 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.
5. In his turn, Mr. Viramjit Banerjee, the learned ASG cont ends
that there is no causal connection between the Claima nt’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 establis hed, 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 a ccount of
an accidental injury suffered on the vessel. Since, the rel evant 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.
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
NAWAL KISHORE SHARMA v. UNION OF INDIA AND ORS.
[HRISHIKESH ROY , J.]
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 natur e. The High
Court,therefore, found no basis to overturn the SCI’s rejectio n of the
claim 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 same
reads as under:
“A rating on being medically unfit for sea service at seas a s
a result of injury whilst in employment shall be paid 100%
compensation”.
9. The above Clause is part of the National Maritime Boa rd
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 of Clause 21 covering disability compensation
and Clause 25 covering severance compensation are t o be
considered,both clauses are extracted below:-
“21. Death and Disability Compensation :
… … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … …… … … … … … … … … … … … … … … … … … … … … … … … … … … … .
… … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … …… … … … … … … … … … … … … … … … … … … … … … … … … … … … .
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 o n
proportionate basis. This Death &Disability Compensation shall
not be paid if the death and/or disability has resulted due to t he
rating’s own wilful act.”
“25. Severance Compensation:
825
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/-.
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.1,75,00 0/-
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.1,25,00 0/-
whichever is higher.
The above provision of compensation will not be applicable to a
rating dealt with under the provisions Death and Dis ability
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 “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 bec ause 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.
NAWAL KISHORE SHARMA v. UNION OF INDIA AND ORS.
[HRISHIKESH ROY , J.]
12. To secure coverage of Clause 5.9.F (ii), the incapacity mus t
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 r easonably be
attributed to his nine month engagement. In such circumstances, although
the seaman commenced his engagement with a fitness certif icate, it
would be unreasonable, in 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 extracte d
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 at tributed to
MrMarkas Ollie Barkarbut a search on the origin of the quoted portion
revealed that this was actually lifted from the abstrac t 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 in the High Court’s judgment and als o
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 cas e 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, t he 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 interpretation,the High Court held that only severance
compensation under Clause 25 is payable for the seama n. We see no
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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 Fernandez 2. 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 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 pres ent
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 Ac t
takes into account visual disability, locomotor dis ability, 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 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 physic al,
mental, intellectual, or sensory impairment which prevent his full and
effective participation in society. Section 2(zc) de fines, “specified
disability” as those mentioned in the Schedule to the 2016 A ct. In the
said Schedule, “physical disability”, “intellectual disability”,
“mentalbehaviour”, are specified.The dilated Cardiomyopathy conditionof
1 2005 (2) LLN 776
2 1969 (2) LLJ 812
NAWAL KISHORE SHARMA v. UNION OF INDIA AND ORS.
[HRISHIKESH ROY , J.]
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 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.
Ankit Gyan Appeal dismissed.