Dilated Cardiomyopathy condition would not facilitate any benefit under Section 47 of the Disability Act: Supreme Court

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.150 OF 2021 NAWAL KISHORE SHARMA UNION OF INDIA AND ORS JUDGMENT Hrishikesh Roy J 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 and thereby endorsed the order dated 07.10.2011of 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 Personswith Disabilities Act 1995 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 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 While rejecting the claim for disability compensation the SCI recorded in the impugned order dated 07.10.2011that 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 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 It would be appropriate at this stage to extract Clause 5.9.F 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”. 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 considered bothclauses are extractedbelow: “21. Death and Disability Compensation: Death compensation Rs.12.85 Lacs. 100% disability compensation Rs.14.85 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 “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 . For Ratings between age of 55 to 58 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 11. As can be seen from above 100% compensation is payable to a seaman under Clause 5.9. Fin 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 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 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 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 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 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 which related to a seafarer’s cardiac ailment the log book of the ship had recorded entry relating to the 12005LLN 776 21969LLJ 812 employee’s hospitalization for treatment of cardiac ailment. But in the present case nosuch log entry from the vessel had been produced.In Rita 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 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 19. For the reasons aforesaid the appeal is found devoid of merit and is dismissed leaving the parties to bear their own cost SANJAY KISHAN KAUL [HRISHIKESH ROY FEBRUARY10 2021

Summary: The Supreme Court backed a High Court’s decision, where disability compensation was denied to a seaman and it was concluded that Dilated Cardiomyopathy condition does not facilitate any benefit under Section 47 of the Disability Act. In the matter of Nawal Kishore Sharma vs. Union of India &amp; Ors [CIVIL APPEAL NO.150 OF 2021], it was submitted that unless proximate connection between the seaman’s work on the vessel and his medical condition is established, disability compensation cannot be allowed. The judgement was given by Justice Sanjay Kishan Kaul, Justice Dinesh Maheshwari and Justice Hrishikesh Roy. The appellant challenged the judgement of the High Court in a Civil Writ Jurisdiction Case where the Court rejected the seaman’s claim for disability compensation. According to the Shipping Corporation of India, the appellant’s case was not an accidental injury during duty on the vessel and hence, only severance compensation was payable. The seaman was able to perform other sorts of work and his normal day-to-da life was not affected. The appellant joined as a crew on the foreign going vessel but he was discharged with the declaration of being permanently unfit for sea service, due to Dilated Cardiomyopathy. The learned counsel for SCI contended that 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 The judgement stated that, “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 disability in 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”, “mental behaviour”, are specified.” It further stated, “The dilated Cardiomyopathy condition of the appellants neither a specified disability nor is the same relatable to the broad spectrum of impairments, which hinders his 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.”