The Director Of Shipping Services v. M. Vellaiammal And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** FMAT(WC)/1/2024 [IA No: CAN/1/2024] The Director of shipping Service Vs M.Vellaiammal and others Mr. Shatadru Chakraborty, Sr. Adv.

Mr. Prakesh Minj ... for the appellant Mr. R. Arul Peter ... for the respondent No.1 Mr. S.C.Mishra ... for the respondent No.2 With MAT/19/2024 M.Vellaiammal Vs The Commissioner and another Mr. R. Arul Peter ... for the appellant Mr. S.C.Mishra ... for the respondent No.1 Mr. Shatadru Chakraborty, Sr. Adv.

Mr. Prakesh Minj ... for the respondent No.2 With WPA/186/2024 M.Vellaiammal Vs The Commissioner and another Mr. R. Arul Peter ... for the petitioner Mr. S.C.Mishra ... for the respondent No.1 Mr. Shatadru Chakraborty, Sr. Adv.

Mr. Prakesh Minj ... for the respondent No.2 February 25, 2025 [SR] Item Nos.7 to 9 1.

All these three proceedings are interconnected. 2.

The cause is one that one Suppan Mookan (for short Rating) was a rating working at M.V.Sentinal (for short the vessel) under the National Maritime Board Agreement (NMB agreement). The rating had died after suffering from some medical complications and the widow of the said rating has

applied before this Court seeking death compensation from the ship owner.

3.

The parties have agreed for a composite hearing of these three proceedings so that the same can be disposed of by a single judgment and order. Accordingly, these three proceedings have been taken up together.

4.

FMAT(WC)/1/2024 is an appeal preferred by the ship owner being aggrieved by the impugned order dated June 14, 2023 passed by the Commissioner under the Employees Compensation Act, 1923.

5.

WPA/186/2024 is a writ petition filed by the widow of the rating claiming the execution of the impugned order for releasing death compensation awarded by Commissioner and for initiating proceeding for interest on penalty.

6.

MAT/19/2024 is the appeal preferred by the widow of the rating.

7.

On perusal of records, we are of the view that, if the appeal of the ship owner FMAT(WC)/1/2024 is decided first, then all further issues in other two proceedings shall be consequential.

8.

Accordingly, we proceed to decide FMAT(WC)/1/2024, the appeal filed by the ship owner.

In Re: FMAT(WC)/1/2024

9.

Since February 01, 1983, after his engagement at the vessel, the rating was working as Deck Utility Hand. After his promotion on and from October 17, 2016, the rating was engaged as Foreman ( Roster) on board at the vessel. During the period June 10, 2017 and June 20, 2017 rating suffered from severe headache and fever and he was referred to the Cochin Hospital from the vessel on June 19, 2017 and got admitted on June 20, 2017 for treatment. During the period, June 24, 2017 and June 25, 2017, rating was discharged from Cochin Hospital with doctor's advice for 15 days rest.

10.

During June 25, 2017 and July 05, 2017 again the rating complained of some physical problems and he was sent for treatment and checkup at Cochin Hospital when he was again hospitalized for treatment and finally signed off from the vessel on June 05, 2017 on medical ground. On July 11, 2017 after availing medical treatment, the rating was discharged from Cochin Hospital when he was found to be clinically stable and was advised to be followed up with local physician. On November 06, 2017, the Director General of (Shipping) approved the medical examiner to examine the case of the rating and found him to be unfit for sea service. However, the Director General (Shipping) approved for further medical examination to be held at G.B Pant Hospital by the medical board. On December 07, 2017 the case was referred before the medical board at G.B.Pant Hospital. On December 30, 2017, the rating expired at G.B.Pant Hospital, Port Blair.

11.

The medical report was signed on December 26, 2017 though was communicated on January 09, 2018 issued by G.B.Pant Hospital shows that the rating was diagnosed with Acute CVA- left frontoparietl occipital lobe infaract, atrial Fibrillation, systemic Hypertension & Type 2 DM. The Medical Board also confirmed that he suffered from Acute CVA. 12.

At this juncture, after the demise of the rating, the widow moved a writ petition being WPA/104/2021 which was disposed of by a Single Bench by its order dated December 22, 2022 when the issue was referred before the Commissioner under the Employees Compensation Act. The parties acted upon the said direction of the Coordinate Bench.

13.

After hearing the parties, the Commissioner has passed a detailed order dated June 14, 2023, which is impugned in the instant appeal.

14.

In the said order dated June 14, 2023, the Commissioner has awarded death compensation in favour of the widow of the rating on account of the death of the rating aggregating to a total sum of Rs.18.00 lakhs. The sum of Rs.2.5 lakhs had already been paid earlier. Ultimately the said awarded compensation of Rs.18.00 lakhs has been received by the widow of the rating.

15.

Mr. Shatadru Chakraborty, learned senior counsel for the appellant, the owner of the vessel, submits the following, while assailing the impugned order passed by the Commissioner. I.

There is no evidence to show that the rating died while undergoing medical treatment on ship owners'

account after being discharged on medical grounds from the ship.

II.

There is no evidence to show that the death was on account of injury sustained or related to the employment of the rating.

III.

The death occurred due to lifestyle illness and as such is not covered under the NMB agreement for death compensation.

IV.

The above grounds have not been considered by the Commissioner while passing the impugned order dated 14.06.2023.

16.

Referring to the clause 3 from the NMB Agreement, Mr. Chakraborty, learned senior counsel submits that the rating had not expired during his employment and had expired after being discharged from his employment.

Therefore, provisions for granting death compensation under the NMB agreement are not attracted and on these ground alone, the impugned order should be set aside.

17.

He further submits that, to support the claim of death compensation as awarded by the Commissioner, there was no evidence on record that the illness had caused to the rating due to the nature of job he worked for or during the tenure of his employment. The disease was very common as diagnosed by the Cochin Hospital at the relevant point of time and accordingly he was released from Cochin Hospital with advice to follow up treatment by the local physician.

18.

There was no evidence to show that the rating had undergone treatment on account of the ship owner at the time of his death.

19.

Per contra Mr. R. Arul Peter, learned advocate appearing for the widow of the deceased rating submits that the entire illness was a long standing illness which caused during the employment of the rating, while discharging the duties at the vessel. The nature of discharge of duty by the rating was such for more than 35 years that has caused the illness as diagnosed by the medical experts as reason of his death. He further submits that the death compensation payable to any rating under the said NMB agreement are meant for providing security to the existing family of the deceased rating, who had died due to the illness caused during the time of employment and considering the nature of employment. He further submits that the impugned order passed by the Commissioner is very well versed, reasoned and same should not be interfered with. He further submits there is no substantial questions of law involved in it.

20.

Mr.

S.C.Mishra, learned counsel appears for respondent no.2 through virtual mode.

21.

After considering the rival contentions of the parties and upon perusal of the materials on record and on reading of the impugned order passed by the Commissioner, it appears to this Court that the fact relating to the employment of the rating is admitted. It is also admitted that the rating had worked with the vessel since 1983. It is also admitted that the rating had

fallen sick in course of his employment while discharging his official duties. The medical diagnoses made by the medical experts are also not challenged by the owner of the vessel. The sole question remains whether the cause and source of illness of the rating was, during his employment or beyond that. In this regard, relevant observations and findings of Commissioner are quoted below:- "16. On perusal of facts of the case and documents available on record, it reveals that the claimant's husband died after undergoing medical treatment and after discharged on medical grounds from ship as mentioned under clause 3(i)(b) of the NMB agreement. Therefore, the contention of the respondents that the claimant is not fulfilling the criteria as laid down under clause (i)(b) of the NMB agreement is not sustainable.

17. If a workman suffers a personal injury unexpectedly or suddenly and such personal injury suffered by the workman can be attributed to the work undertaken by the workman or has some connection to the nature of the duties discharged by a workman, such an injury suffered can be treated as a result of the accident arising out of and in course of employment. In the instant case, the evidence on record shows that the deceased workman while on board of M.V. Sentinel suffered from fever and body pain and as such the Master of the vessel referred to hospital for treatment where the deceased workman diagnosed with acute CVA on 11.07.2017 and subsequently expired on 30.12.2017.

18.

The workman at the time when developed severe headache, fever and body pain was on duty on board of the Vessel M.V.Sentinel as a Fireman, therefore it is reasonable to infer that he died on account of Personal Injury suffered by him in an accident arising out of an in

course of his employment. The Commissioner would also like to point out that taking a view, different from the one which expressed above, would be defeating the very object of NMB Agreement. The NMB Agreement is a beneficial agreement intended to give some security to the workmen It is of the considered view of the Commissioner that the Provisions of Death and Disablement Compensation as envisaged at Clause 3 of the NMB Agreement is in nature of a 'Mini Insurance Scheme' to the Seamen employed in different kind of vessels in India.

Therefore, interpretation to the clauses of the NMB agreement calls for a broad and liberal construction, lest its evident objet is defeated.

19.

In this connection, it is relevant to refer the decision of the Hon'ble Supreme Court in case of Mackkinnoa Mackenxie & Co. (Private) Ltd. -vs- Smt. Rita Fernandes reported in 1969-II LLJ812. The Hon'ble Apex Court while taking the view that if the workman dies a natural as a result of the disease from which he was suffering or while suffering from a particular disease, he dies of that disease as a result of wear and tear of his employment and no liability could be fixed upon the employer, held that if the employment is a contributory cause or has accelerated the death or if the death was due not only to the disease coupled with the employment, it was held that the death has taken place out of employment and the employer would be liable.

It is further observed in the said decision that even if a workman dies from a pre-existing disease, if disease is aggravated or accelerated under circumstances which can be said to be accidental, his death results from injury by accident. The facts of the present claim would clearly show that the employment of the workman namely Suppan Mookkan as a Fireman in M.V.Sentinel contributed or accelerated the death of the workman.

20. The very nature of work of the deceased that is cleaning, oiling of Engine etc., inside Vessel continuously for more than 34 years may definitely causes stress and strain which is incidental to the nature of employment. It is not the case of respondents that the deceased workman has never suffered any kind of injury during the course of his employment nor the disease suffered by the husband of the petitioner was in any manner related to the course of his employment and as such not liable to pay compensation as per Part-III, clause 3(i) Death and Disability Compensation of the NMB Agreement."

22.

From the observations and findings made by the Commissioner as quoted above, this Court is of the view that those observations and findings were arrived at on the basis of the reports and diagnoses made by the medical experts/medical board. The opinion of the medical experts are not under challenge, neither the opinion of the medical experts are perverse on the face of it. Therefore this Court cannot and should not probe into such medical opinion.

23.

On perusal of the said NMB agreement, this Court is also of the considered view that the same has to be liberally construed as far as possible in favour of the rating and since the cause of the illness arose during employment of the rating, the death benefit has rightly been granted in favour of the deceased rating. On overall assessment of the facts of the instant case, this Court is also of the considered view that upon causing due fact finding enquiry and upon perusal of the medical expert reports, the impugned order was passed by the Commissioner.

24.

This Court is of the view the said impugned order should not be interfered with as there is no infirmity in it neither any perversity on the face of it.

25.

The impugned order passed by the Commissioner dated June 14, 2023 stands affirmed.

26.

Considering the special circumstances involved in this case, this order shall not be treated as a precedence. 27.

Accordingly, this appeal FMAT(WC)/1/2024 stands dismissed, without any order as to costs.

In Re: WPA/186/2024 28.

The writ petition has been filed with the following prayers. A.

Writ and/or writs do issue in the nature of Mandamus directing the respondent authority to act according in accordance with.

B.

A writ and/or writs do issue the nature of Mandamus directing the respondent No. 1 herein (The Commissioner) to immediately release the death compensation amount of Rs. 15,50,000/- (Rupees Fifteen lakhs Fifty Thousand only) in favour of the petitioner in connection of the order No. 230 dated 14.06.2023 and concerned order and Notices.

C.

A writ and/or writs do issue the nature of Mandamus directing the respondent No.1 to start immediately further proceeding of interest and penalty provision under Employee's Compensation Act, 1923 against the respondent No. 2. For violating the concerned orders/notices.

D.

A writ in the nature of certiorari directing the respondent to transmit the relevant record before this Hon'ble Court enabling the court to rend justice in the matter.

D.

writ and/or writs do issue the nature of Mandamus directing respondent No.1 herein (The Commissioner) to immediately release the death compensation amount of Rs. 15,50,000/- (Rupees Fifteen lakhs Fifty Thousands Only) in favour of the

petitioner in connection of the order No. 230 dated 14.06.2023 and concerned order and Notices by imposing and terms and condition imposed on the petitioner.

E.

Any other/writ/writs, order/orders, direction/ directions as your Lordship may deem fit and proper."

29.

Mr. R. Arul Peter, learned advocate appearing for the writ petitioner submits that being aggrieved with the decisions of the Commissioner under the Employees Compensation Act, 1923 dated June 14, 2023 that since the Commissioner has failed to exercise his jurisdiction in not awarding interest, the instant writ petition has been filed.

30.

Mr. Shatadru Chakraborty, learned counsel appearing for the owner of the vessel, the respondent no.2, in the writ petition, has taken the point of maintainability on the ground that, if the petitioner is aggrieved with the decision of the Commissioner, she should file a statutory appeal under section 30 of the Employees Compensation Act, 1923 and the writ petition is not maintainable.

31.

After considering the rival contentions of the parties and upon perusal of the pleadings and the reliefs claimed in the writ petition, we are of the view that since the petitioner has already received the entire awarded compensation, the prayers (b) and (d) stand satisfied.

32.

Insofar as prayer (c) is concerned praying for mandamus upon the respondent no.1, to start further proceeding for interest on penalty in terms of the provisions of the Employees' Compensation Act, 1923, we are of the view that this writ court is not the forum.

33.

However, if the petitioner is entitled in law, to initiate appropriate proceeding, the petitioner can do so, but not later than four weeks from date.

34.

It is made clear that this court has not gone into the merits of the writ petition. Parties shall be at liberty to urge whatever points they wish to urge, by relying upon whatever records and documents they wish to rely upon, if any proceeding is initiated by the petitioner.

35.

It is made clear that this order shall not create any right or equity in favour of the petitioner, if the claim of the petitioner does not succeed strictly in accordance with law. 36.

Accordingly, this writ petition WPA/186/2024 stands disposed of, without any order as to costs.

37.

Since no affidavit has been filed, the allegations made in this writ petition are deemed not to have been admitted by the respondents.

Re: MAT/19/2024 38.

In view of the orders passed above in the appeal and the writ petition, Mr. R. Arul Peter, learned counsel appearing for the appellant in this appeal submits that the appellant shall not press this appeal any further.

39.

Accordingly, MAT/19/2024 stands dismissed as not pressed, without any order as to costs.

( Aniruddha Roy, J. ) ( Bibhas Ranjan De, J.)