Case: NAWAL KISHORE SHARMA Vs. UNION OF INDIA AND ORS

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 injury, should be construed in the manner suggested by the appellants 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 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 appellants 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 in the High Courts 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 appellants 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 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 appellants counsel has relied on, Divisional Controller, NEKRTC vs. Sangamma and Ors. 2005 (2) LLN 776, and Mackinnon Mackenzie & Co. Pvt. Ltd. vs. Rita Fernandez 1969 (2) LLJ 812. 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 appellants 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 seafarers cardiac ailment, the log-book of the ship had recorded entry relating to the employees 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 appellants 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 appellants 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 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 would not facilitate any benefit to the appellant under Section 47 of the Disability Act.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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.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 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 appellants 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 in the High Courts 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 appellants 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 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 appellants counsel has relied on, Divisional Controller, NEKRTC vs. Sangamma and Ors. 2005 (2) LLN 776, and Mackinnon Mackenzie & Co. Pvt. Ltd. vs. Rita Fernandez 1969 (2) LLJ 812. 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 appellants 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 seafarers cardiac ailment, the log-book of the ship had recorded entry relating to the employees 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 appellants medical condition could not be linked to his shortterm engagement.Therefore, the cited ratio is of no assistance for the disability compensation claim.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 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 would not facilitate any benefit to the appellant under Section 47 of the Disability Act.