NAWAL KISHORE SHARMAversusUNION OF INDIA AND ORS.

                          [2021] 1 S.C.R. 819                             819


                   NAWAL KISHORE SHARMA                                   A
                                  v.
                   UNION OF INDIA AND ORS.
                    (Civil Appeal No.150 of 2021)
                         FEBRUARY10, 2021                                 B
  [SANJAY KISHAN KAUL, DINESH MAHESHWARI AND
                     HRISHIKESH ROY, JJ.]
       Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 –Rights of Persons with
Disabilities Act, 2016 – Claim for disability compensation –              C
Appellant-seaman joined a crew on a 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 – Seaman claimed that he was entitled to 100%
disability compensation under clause 21 of the National Maritime          D
Board Agreement –The said claim for disability was rejected by the
Shipping Corporation of India (SCI) as this was not a case of a
seaman becoming incapacitated on account of an accidental injury
suffered on the vessel – The High Court found that the appellant’s
case does not fall in the category of clause 21 since there is no
impediment in his performance of normal day to day affairs–In other       E
words, the seafaring work may not be feasible but the person is
capable of discharging duty of another job of general nature –
Therefore, the SCI’s rejection order was upheld – On appeal, held:
Under clause 5.9. F(ii), 100% compensation is payable to a seaman
in a situation where a seaman is found medically unfit for sea service,   F
as a result of injury, while in employment –In the instant 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 –The clause 21 applies to
a case of total disability but this is not a case of 100% disablement
– The dilated cardiomyopathy condition prevents a person from             G
performing sea service but same will not be an impediment for him
to perform other jobs –As far as appellant’s disability under both
the disability Act 1995 or Act of 2016 is concerned, the dilated
cardiomyopathy condition does not bring his case in either of the
Act – The High Court held that only severance compensation under
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                                   819
820            SUPREME COURT REPORTS                      [2021] 1 S.C.R.


A     clause 21 is payable for the seaman and he will not get benefit of
      s.47 of the Disability Act 1995 – There is no reason to reach another
      conclusion.
            Dismissing the appeal, the Court
            HELD:1. Under Clause 5.9.F (ii) of the National Maritime
B     Board Agreement, 100% compensation is payable to a seaman
      in a situation where a seaman is found medically unfit for sea
      service, as a result of injury, while in employment. 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
C     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 view of this
      Court,to relate the medical condition of the appellant having
D     causal connection with his sea voyage engagement. [Paras 11
      and 12][825-E-F; 826-A-B]
            2. 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
E     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. There is no reason to reach another
      conclusion on the implication of Clause 21 and Clause 25,for the
F     appellant. [Para 15][826-G-H; 827-A]
            3. As far as appellant’s argument that his heart ailment
      should be understood as a disability under the Disability Act and
      consequential benefits be accorded to him is concerned, section
      2(i) of the Act takes into account visual disability, locomotor
G     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 15 chose not to, in their definition of
      disability. When the 1995 Act was replaced by the Rights of

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 NAWAL KISHORE SHARMA v. UNION OF INDIA AND ORS.                              821


Persons with Disabilities Act, 2016, “a person with disabilities”             A
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”,
                                                                              B
“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 hinders is 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             C
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 16 would not facilitate any benefit to
the appellant under Section 47 of the Disability Act. [Para 18]
[827-E-H; 828-A-B]
                                                                              D
        Divisional Controller, NEKRTC vs. Sangamma and Ors.
        2005 (2) LLN 776; Mackinnon Mackenzie & Co. Pvt.
        Ltd. vs. Rita Fernandez 1969 (2) LLJ 812 – held
        inapplicable.
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 150 of
                                                                              E
2021.
      From the Judgment and Order dated 26.03.2019 of the High Court
of Judicature at Patna in Civil Writ Jurisdiction Case No. 3160 of 2012.
      Vikramjit Banerjee, ASG, V. Chitambresh, Sr. Adv., Ms. Kumud
Lata Das, Rajiv Kumar Sinha, C. Govind Venugopal, Merusagar
Samantray, P.V. Yogeswaran, Gurmeet Singh Makker, Shikhil Suri, Shiv          F
Kumar Suri, Ms. Madhu Suri, Ms. Shilpa Saini, Ms. Nikita Thapar, Ms.
Vinishma Kaul, Advs. for the appearing parties.
      The Judgment of the Court was delivered by
      HRISHIKESH ROY, J.
                                                                              G
      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
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822            SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A     endorsed the order dated 07.10.2011 (Annexure P21) of the Shipping
      Corporation of India (hereinafter 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
B
      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
C     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.
             3. On the above facts, Mr. V. Chidambresh, the learned Senior
D     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
E     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
F     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
G     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
H     restricted only to cases of incapacitation resulting from injury during the
 NAWAL KISHORE SHARMA v. UNION OF INDIA AND ORS.                                823
               [HRISHIKESH ROY, J.]

voyage, the claim for disability compensation was rightly rejected by the       A
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 instead of Clause 21, which is triggered in
                                                                                B
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         C
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
                                                                                D
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 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        E
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             F
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.                                          G
       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      H
824             SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A     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
B
      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.
             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
C     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”.
D           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.

E           10. Since, the purport of Clause 21 covering disability compensation
      and Clause 25 covering severance compensation are to be
      considered,both clauses are extracted below:-
            “21. Death and Disability Compensation:
            …
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F
            …
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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
G           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:
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 NAWAL KISHORE SHARMA v. UNION OF INDIA AND ORS.                               825
               [HRISHIKESH ROY, J.]

      With effect from 01/04/2006, a Rating borne on a Company’s               A
      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:                                       B

      @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/-.
                                                                               C
      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:                                       D
      @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              E
      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          F
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       G
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.

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826             SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A             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
B
      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
C     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
D     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
E     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
F     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
G     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
H
    NAWAL KISHORE SHARMA v. UNION OF INDIA AND ORS.                            827
                  [HRISHIKESH ROY, J.]

reason to reach another conclusion on the implication of Clause 21             A
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,           B
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        C
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 present              D
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          E
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         F
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         G
said Schedule, “physical disability”, “intellectual disability”,
“mentalbehaviour”, are specified.The dilated Cardiomyopathy conditionof

1
    2005 (2) LLN 776
2
    1969 (2) LLJ 812
                                                                               H
828                SUPREME COURT REPORTS                      [2021] 1 S.C.R.


A     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
B
      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.
C
      Ankit Gyan                                                 Appeal dismissed.




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