Full Judgment Text
1 FA 742/1998
abs
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 742 OF 1998
The Shipping Corporation of India Limited .. Appellant
V/s
Ratanji Somabhai Tandel .. Respondent
Mr. Tariq Baig with Mr. S. Dasa i/b Bhatt & Saldhana for the
appellant.
Mr. S.C. Naidu with Mr. N.P. Dalvi and Mr. T.R. Yadav i/b C.R.
Naidu & Co. for the respondent.
CORAM : D.G. KARNIK, J.
DATE : 21ST JANUARY 2011
ORAL JUDGMENT:
1. By this appeal, the appellant challenges the judgment and
nd
order dated 22 May 1998 passed by the Commissioner for
th
Workmen’s Compensation and Judge, 11 Labour Court,
Mumbai, awarding compensation of Rs.1,73,295/- to the
respondent.
2. The appellant is a shipping company. The respondent was
employed by the appellant and was posted on the appellant’s
th
ship “CV Raman” as a Helmsman from 26 March 1993. In
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2 FA 742/1998
July 1993, the respondent suffered from fever and was sent for
medical treatment. In the medical check up, it was discovered
that the respondent was suffering from Diabetes Mellitus. As
per the rules of the appellant company, a workman suffering
from Diabetes Mellitus is not fit for duty on a ship. Accordingly,
the appellant company discharged the respondent from the
service on the ground that he was medically unfit. The
th
respondent thereafter by his letter dated 18 October 1993
requested the appellant to pay him compensation. On failure of
the appellant to pay the compensation, the respondent filed a
claim application under the Workmen’s Compensation Act, 1923
(for short “the Act”). After considering of the oral and
documentary evidence adduced by the parties, the
Commissioner came to the conclusion that Diabetes Mellitus
was an employment injury arising out of and in the course of the
employment with the appellant and was therefore entitled to a
compensation. He accordingly directed the appellant to pay to
the respondent the compensation of Rs.1,73,295. That order is
impugned in this appeal.
3. Learned counsel for the appellant submitted that there was
no evidence that the respondent suffered any injury in the
course of and arising out of the employment. Contracting of the
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3 FA 742/1998
disease Diabetes Mellitus cannot be said to be an employment
injury. Diabetes can be caused due to many factors, such as
genetic, obesity, life style, unhealthy diet, etc. The cause of the
respondent suffering from diabetes in the present case was not
attributable to the employment with the appellant and hence the
appellant was not liable to pay any compensation.
4. Per contra, learned counsel for the respondent submitted
that though the diabetes may not have been contracted by the
appellant on account of the employment, he was entitled to
compensation by reason of the National Maritime Board (India)
Agreement.
5. The questions of law that arise for my consideration in this
appeal are:
(i) Whether the Tribunal was right in holding that
contracting of diabetes was an injury arising out of
and in the course of employment with the appellant?
(ii) Whether the respondent was entitled to claim
compensation under the Workmen’s Compensation Act
on the basis of National Maritime Board (India)
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4 FA 742/1998
Agreement?
6. So far as the first point is concerned, Mr. Naidu for the
respondent fairly conceded that Diabetes Mellitus per se cannot
be said to have been caused because of the employment. He
admitted that there was no evidence in the present case that the
appellant suffered Diabetes Mellitus on account of the
employment with the appellant. There was no cause and effect
relationship between the employment and the disease. Apart
from the concession which is fairly made by Mr. Naidu, this
Court in the case of Shipping Corporation of India Ltd. v.
Madhavan, 2005 III CLR 491, has held that diabetes can be
caused to due various factors such as genetic, hypertension,
stress, etc. It was necessary for the respondent-workman to
establish before the Commissioner on evidence that the work
which was performed by him led to the disease. Unless the
employment was the cause of which Diabetes Mellitus was the
effect, the respondent was not entitled to claim compensation on
account of suffering of Diabetes Mellitus while he was in the
employment.
7. Schedule III of the Act gives a list of occupational diseases.
“Diabetes Mellitus” is not one of the diseases mentioned in the
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5 FA 742/1998
list. Even if it is assumed that it is open to a workman to
establish that a particular disease, which is not listed in the list
of occupational diseases, has been caused because of and during
the course of employment, in the present case no evidence was
adduced by the respondent to show that “Diabetes Mellitus” was
caused on account of or was in any way related to the
employment of the respondent with the appellant. Point no.(i)
must therefore be answered in the negative and in favour of the
appellant.
8. Record before the Commissioner for Workmen’s
Compensation was called. I have examined the record. The
agreement titled as “National Maritime Board (India)
Agreement” of the year 1986 on which reliance has been placed
by the respondent, has not been produced on record. It appears
that it is not an agreement executed by or between the parties
to the appeal, but appears to be some convention or agreement
entered into between seamen and the employers of seamen. It
is not shown that the agreement is binding on the parties to this
appeal. Even if it is assumed that the appellant is in any way
liable under the alleged agreement, in my view, the liability
which arises under the agreement cannot give rise to a claim
under the Act The Commissioner appointed under the Act would
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6 FA 742/1998
have no jurisdiction to award any compensation under the
agreement. No specific provision under the Act was brought to
my notice under which an employee would be entitled to file an
application for compensation in respect of a claim arising under
the National Maritime Board (India) Agreement. Section 10 of
the Act provides that no claim for compensation shall be
entertained by a Commissioner unless a notice of accident has
been given in the manner hereinafter provided as soon as
practicable after the happening thereof and unless the claim is
preferred before him within two years of the occurrence of the
accident or, in case of death, within two years from the date of
death. Section 10 therefore contemplates making of an
application to the Commissioner for a claim arising under the
Act and imposes restriction that such an application cannot be
entertained unless (i) a notice of accident has been given, and
(ii) the claim has been preferred within 2 years. Section 10
contemplates that the Commissioner would get a jurisdiction to
award a compensation in respect of a claim arising under the
Act, i.e. for an injury caused out of an accident arising out of and
in the course of employment. If a claim arises not in respect of
an injury caused in the course of an employment but arises out
of any other contract, such a claim cannot be entertained by the
Commissioner under the Act. Sub-section (5) of section 3 of the
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7 FA 742/1998
Act gives an indication that the jurisdiction of a civil court is not
totally ousted and in certain matters, civil court has jurisdiction
to entertain a suit for damages. In my view, a claim arising
under any collateral contract and not under the Act cannot be
enquired into and decided by the Commissioner appointed under
the Act. Such a claim can only be made and decided by ordinary
Civil Courts in accordance with the law of the land. No
provision was pointed out to me which confers a jurisdiction on
the Commissioner appointed under the Act to entertain a claim
under a contract and not for an injury suffered by a workman in
the course of the employment. In the circumstances, the
Commissioner had no jurisdiction to entertain and try the claim
based purely on the contract, if at all there be any. Point no. (ii)
is also answered in the negative.
9. For these reasons, the appeal is allowed. However, in the
facts and circumstances of the case, the parties shall bear their
own costs. The money which has been deposited by the
appellant before the Commissioner together with interest, if any,
accrued (if the amount has been invested) shall be paid to the
appellant after 12 weeks.
(D.G. KARNIK, J.)
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abs
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 742 OF 1998
The Shipping Corporation of India Limited .. Appellant
V/s
Ratanji Somabhai Tandel .. Respondent
Mr. Tariq Baig with Mr. S. Dasa i/b Bhatt & Saldhana for the
appellant.
Mr. S.C. Naidu with Mr. N.P. Dalvi and Mr. T.R. Yadav i/b C.R.
Naidu & Co. for the respondent.
CORAM : D.G. KARNIK, J.
DATE : 21ST JANUARY 2011
ORAL JUDGMENT:
1. By this appeal, the appellant challenges the judgment and
nd
order dated 22 May 1998 passed by the Commissioner for
th
Workmen’s Compensation and Judge, 11 Labour Court,
Mumbai, awarding compensation of Rs.1,73,295/- to the
respondent.
2. The appellant is a shipping company. The respondent was
employed by the appellant and was posted on the appellant’s
th
ship “CV Raman” as a Helmsman from 26 March 1993. In
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2 FA 742/1998
July 1993, the respondent suffered from fever and was sent for
medical treatment. In the medical check up, it was discovered
that the respondent was suffering from Diabetes Mellitus. As
per the rules of the appellant company, a workman suffering
from Diabetes Mellitus is not fit for duty on a ship. Accordingly,
the appellant company discharged the respondent from the
service on the ground that he was medically unfit. The
th
respondent thereafter by his letter dated 18 October 1993
requested the appellant to pay him compensation. On failure of
the appellant to pay the compensation, the respondent filed a
claim application under the Workmen’s Compensation Act, 1923
(for short “the Act”). After considering of the oral and
documentary evidence adduced by the parties, the
Commissioner came to the conclusion that Diabetes Mellitus
was an employment injury arising out of and in the course of the
employment with the appellant and was therefore entitled to a
compensation. He accordingly directed the appellant to pay to
the respondent the compensation of Rs.1,73,295. That order is
impugned in this appeal.
3. Learned counsel for the appellant submitted that there was
no evidence that the respondent suffered any injury in the
course of and arising out of the employment. Contracting of the
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3 FA 742/1998
disease Diabetes Mellitus cannot be said to be an employment
injury. Diabetes can be caused due to many factors, such as
genetic, obesity, life style, unhealthy diet, etc. The cause of the
respondent suffering from diabetes in the present case was not
attributable to the employment with the appellant and hence the
appellant was not liable to pay any compensation.
4. Per contra, learned counsel for the respondent submitted
that though the diabetes may not have been contracted by the
appellant on account of the employment, he was entitled to
compensation by reason of the National Maritime Board (India)
Agreement.
5. The questions of law that arise for my consideration in this
appeal are:
(i) Whether the Tribunal was right in holding that
contracting of diabetes was an injury arising out of
and in the course of employment with the appellant?
(ii) Whether the respondent was entitled to claim
compensation under the Workmen’s Compensation Act
on the basis of National Maritime Board (India)
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4 FA 742/1998
Agreement?
6. So far as the first point is concerned, Mr. Naidu for the
respondent fairly conceded that Diabetes Mellitus per se cannot
be said to have been caused because of the employment. He
admitted that there was no evidence in the present case that the
appellant suffered Diabetes Mellitus on account of the
employment with the appellant. There was no cause and effect
relationship between the employment and the disease. Apart
from the concession which is fairly made by Mr. Naidu, this
Court in the case of Shipping Corporation of India Ltd. v.
Madhavan, 2005 III CLR 491, has held that diabetes can be
caused to due various factors such as genetic, hypertension,
stress, etc. It was necessary for the respondent-workman to
establish before the Commissioner on evidence that the work
which was performed by him led to the disease. Unless the
employment was the cause of which Diabetes Mellitus was the
effect, the respondent was not entitled to claim compensation on
account of suffering of Diabetes Mellitus while he was in the
employment.
7. Schedule III of the Act gives a list of occupational diseases.
“Diabetes Mellitus” is not one of the diseases mentioned in the
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5 FA 742/1998
list. Even if it is assumed that it is open to a workman to
establish that a particular disease, which is not listed in the list
of occupational diseases, has been caused because of and during
the course of employment, in the present case no evidence was
adduced by the respondent to show that “Diabetes Mellitus” was
caused on account of or was in any way related to the
employment of the respondent with the appellant. Point no.(i)
must therefore be answered in the negative and in favour of the
appellant.
8. Record before the Commissioner for Workmen’s
Compensation was called. I have examined the record. The
agreement titled as “National Maritime Board (India)
Agreement” of the year 1986 on which reliance has been placed
by the respondent, has not been produced on record. It appears
that it is not an agreement executed by or between the parties
to the appeal, but appears to be some convention or agreement
entered into between seamen and the employers of seamen. It
is not shown that the agreement is binding on the parties to this
appeal. Even if it is assumed that the appellant is in any way
liable under the alleged agreement, in my view, the liability
which arises under the agreement cannot give rise to a claim
under the Act The Commissioner appointed under the Act would
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6 FA 742/1998
have no jurisdiction to award any compensation under the
agreement. No specific provision under the Act was brought to
my notice under which an employee would be entitled to file an
application for compensation in respect of a claim arising under
the National Maritime Board (India) Agreement. Section 10 of
the Act provides that no claim for compensation shall be
entertained by a Commissioner unless a notice of accident has
been given in the manner hereinafter provided as soon as
practicable after the happening thereof and unless the claim is
preferred before him within two years of the occurrence of the
accident or, in case of death, within two years from the date of
death. Section 10 therefore contemplates making of an
application to the Commissioner for a claim arising under the
Act and imposes restriction that such an application cannot be
entertained unless (i) a notice of accident has been given, and
(ii) the claim has been preferred within 2 years. Section 10
contemplates that the Commissioner would get a jurisdiction to
award a compensation in respect of a claim arising under the
Act, i.e. for an injury caused out of an accident arising out of and
in the course of employment. If a claim arises not in respect of
an injury caused in the course of an employment but arises out
of any other contract, such a claim cannot be entertained by the
Commissioner under the Act. Sub-section (5) of section 3 of the
::: Downloaded on - 01/04/2024 15:38:46 :::
7 FA 742/1998
Act gives an indication that the jurisdiction of a civil court is not
totally ousted and in certain matters, civil court has jurisdiction
to entertain a suit for damages. In my view, a claim arising
under any collateral contract and not under the Act cannot be
enquired into and decided by the Commissioner appointed under
the Act. Such a claim can only be made and decided by ordinary
Civil Courts in accordance with the law of the land. No
provision was pointed out to me which confers a jurisdiction on
the Commissioner appointed under the Act to entertain a claim
under a contract and not for an injury suffered by a workman in
the course of the employment. In the circumstances, the
Commissioner had no jurisdiction to entertain and try the claim
based purely on the contract, if at all there be any. Point no. (ii)
is also answered in the negative.
9. For these reasons, the appeal is allowed. However, in the
facts and circumstances of the case, the parties shall bear their
own costs. The money which has been deposited by the
appellant before the Commissioner together with interest, if any,
accrued (if the amount has been invested) shall be paid to the
appellant after 12 weeks.
(D.G. KARNIK, J.)
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