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Supreme Court of India
Nawal Kishore Sharma vs Union Of India Government Of India … on 10 February, 2021Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Dinesh Maheshwari, Hrishikesh Roy
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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
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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:
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…………………………………………………………………………………………………………
……………………………………………………………………………………………………….
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/-.
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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
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“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
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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
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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
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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
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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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