SABEEHA FAIKAGE Vs UNION OF INDIA .
Bench: A.K. PATNAIK,SWATANTER KUMAR
Case number: W.P.(C) No.-000505-000505 / 2006
Diary number: 26827 / 2006
Advocates: P. SOMA SUNDARAM Vs
PUKHRAMBAM RAMESH KUMAR
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 505 OF 2006
Sabeeha Faikage & Ors. … Petitioners
Versus
Union of India & Ors. … Respondents
O R D E R
A. K. PATNAIK, J.
The petitioners have lost their husbands/sons in a
marine casualty and have filed this writ petition under
Article 32 of the Constitution complaining of the breach of
the fundamental right to life under Article 21 of the
Constitution.
2. The facts very briefly are that the husbands of
petitioner nos. 1, 2 and 3 and the sons of petitioner nos. 4
and 5 were recruited and placed through respondent nos. 4
and 5 to work as Seafarers on tugboat Jupiter-6 carrying
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the flag of Saint Vincent and the Grenadines. On
21.08.2005, Jupiter-6 along with its crew comprising 10
Indians and 3 Ukrainians, left Walvis Bay in Namibia and
was towing a dead ship Satsung on its way to Alang in
Gujarat in India. On 05.09.2005, Jupiter-6 went missing in
the high seas. On 10.10.2005, respondent no. 4 informed
the Director General of Shipping, Bombay, that it had
received a distress signal from Jupiter-6 via its life saving
radio equipment on board and a search was conducted from
the place where distress signal originated, which was 220
nautical miles South of Port Elizabeth, South Africa, but
Jupiter-6 could not be located. Pursuant to reports in a
section of the media about the missing of Jupiter-6 since
08.10.2005, the Director General of Shipping, Bombay,
issued a press release on 15.10.2005 that the Ministry of
Shipping and Road Transport and Highways had alerted the
Indian Coast guard which, in turn, has alerted the South
African Search and Rescue Region as Jupiter-6 was last
sighted near Cape Town in South Africa and that all efforts
are being made to trace the crew members. On 25.04.2006,
however, the respondent no. 4 sent a letter to the petitioners
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saying that all efforts to search the missing Jupiter-6 and
her 13 crew members have proved unproductive and that
the owners of the vessel are coordinating with the
underwriters for nomination of local P & I correspondent
who will deal with them for requisite compensation package
and on getting further information from the local P & I
correspondent, the petitioners will be informed of the
further follow-up action to process the claims. Finally, the
petitioners received the communication dated 17.08.2006
from the Government of India, Ministry of Shipping,
Government Shipping Office, Mumbai, certifying that their
husbands/sons were presumed to be dead.
3. The petitioners have prayed for inter alia a writ of
mandamus/direction to the respondents to conduct an
investigation into the mysterious disappearance of their
husbands/sons who were on board Jupiter-6. The
petitioners have also prayed for an enquiry to find out what
transpired between the Government of India and the Saint
Vincent and the Grenadines on account of which the
Government of India has certified that their husbands/sons
are presumed to be dead. After perusing the Merchant
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Shipping Notice No.26 of 2002 dated 10.10.2002 issued by
the Government of India, Ministry of Shipping, Directorate
of the Director General of Shipping, (for short “M.S. Notice
26 of 2002”), this Court issued notice on 10.11.2006 in the
writ petition to the respondents confined to the question as
to whether the Maritime Administration of the State (India)
was invited to take part in the marine casualty investigation
as provided in para 4 of M.S. Notice 26 of 2002. In
response to the notice, a counter affidavit was filed on
03.01.2008 on behalf of respondent nos. 1, 2 and 3 stating
therein that they became aware of the casualty for the first
time when they received a communication dated 10.10.2005
about the incident from respondent no.4 and that the
administration of the State (India) was not invited to
participate in the investigation as per para 4 of M.S. Notice
26 of 2002.
4. The matter was thereafter heard and on 24.09.2008
this Court passed an order, paragraph 4 of which is
extracted hereinbelow:
4. The office of Director General of Shipping has issued M.S.Notice No.26 of 2002 dated 10.10.2002 in regard to the procedure to be
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followed in the event of marine casualties and incidents involving Indian citizens on board of foreign flag vessels. To ascertain whether there is any basis for the grievance put forth by the petitioners, we, therefore, direct the Directorate to collect, analyze and prepare a report with reference to the following information and file the same with an affidavit of a responsible officer from the office of the Director General of Shipping.
(a) How many reports of marine casualties have been received by the Indian Government after 10.10.2002 involving Indian citizens on board of foreign flag vessels and how many are received within 48 hours of the occurrence of the incident as required by the Directorate? (b) In how many of such cases reports have been received by the Directorate from the manning agents of the ships in India who recruited the seafarers as required by clause 5(a) and (b) of M.S. Notice dated 10.10.2002?
(c) In how many cases, Indian Government has been invited to participate in the marine casualty investigation by the lead State or the flag State (as required by paras 5.2, 6.3 and 9.1 of the Code for the Investigation of Marine Casualties and Incidents)?
(d) In how many cases the Indian Government has sent its comments within 30 days from the date of receiving the draft of the final report from the lead investigating State (as required by clause 12.1 of the Code for the Investigation of Marine Casualties and Incidents) to enable the lead investigating State to incorporate/ amend / modify the final report?
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(e) In how many cases the Indian Government has made available to the public the final report in regard to marine casualty incidents and, if so, the period and the manner in which it has been so made public (as required by clause 12.3 of the Code for the Investigation of Marine Casualties and Incidents)? (f) In how many cases Indian Government has taken action against the recruiting agents/manning agents/managers of the foreign flag ships which employed Indian crew and in what manner it has safeguarded the interest of the Indian crew (particularly in view of its M.S. Notice No.13 of 2005 dated 25.10.2005 of the Directorate which admits the receipt of several complaints about the failure of shipping companies and recruiting agents of Indian seafarers in reporting marine casualties involving them to the Government and the family members) for non-compliance with its direction?
The above information, if made available, will enable us to decide whether there is really implementation or compliance of the Conventions and Codes relating to marine casualty incidents. We find that the counter affidavit filed by the Indian Government does not furnish necessary and sufficient details.
Learned counsel for the petitioner and learned counsel for the ship managers and the learned ASG may also submit their suggestions for proper and better implementation of the existing Conventions and Codes.
The pendency of this petition or any further investigation in the matter by any
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agency should not come in the way of either the Insurers/owners/managers of the tug paying compensation to the family members of the missing crew. In fact, learned counsel for respondent No.4 and 5 stated that they have offered interim compensation to the families. The petitioners deny that any such offer was made. The learned counsel for respondents 4 and 5 stated that even now respondents 4 and 5 are willing and ready to make the interim payment without prejudice to the rights and contentions of both the parties and the same will be despatched within 10 days from today and that they will get in touch with the insurers for release of the amounts to the missing crew family members expeditiously. We make it clear that receipt of any amount by the family members of the missing crew may receive any compensation tendered or paid by the managers or insurers will be without prejudice and receipt of such payment will not prejudice their case in any manner.”
5. A reading of the para 4 of the order dated 24.09.2008
would show that this Court limited the scope of the
writ petition to two issues: (i) the safety of Indian
citizens on board of foreign flag vessels and (ii) in case
such Indian citizens on board a foreign flag vessel lost
their lives, the compensation payable to their kith and
kin. On the first issue, the Court called upon the
Union of India to furnish the necessary and sufficient
details with regard to implementation of the
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Conventions and Codes relating to marine casually
incidents and on the second issue, the Court called
upon respondents 4 and 5 to release interim
compensation to the family members of the missing
crew and clarified that the compensation paid by
respondents 4 and 5 or the insurers will be without
prejudice to the claim of the family members of the
crew.
6. Pursuant to the aforesaid order passed on 24.09.2008,
respondents 1, 2 and 3 filed affidavits from time to
time referring to the steps taken by the Government of
India to ensure the safety and security of seafarers
including a chart showing the position of various
welfare measures and safety measures relating to
seafarers in 2006 and 2011. Pursuant to the order
passed on 24.09.2008 of this Court, the respondent
nos. 4 and 5 also informed this Court that M/s James
Mckintosh Company Pvt. Ltd., Mumbai, have on behalf
of the owners of Jupiter-6 offered to pay a
compensation at the rate of 40,000 US Dollars for the
death of each of the officers on board Jupiter-6 and at
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the rate of 25,000 US Dollars for the death of each of
the non-officers on board Jupiter-6. They further
informed this Court that out of the thirteen crew
members of Jupiter-6, the three Ukrainian nationals
have been paid compensation by the owners of the
vessel and the widow of one non-officer Mr. Subhash
Das has been paid compensation of 25,000 US Dollars.
Accordingly, on 15.11.2010 the Court directed that a
sum of 2,85,000 US Dollars for the remaining nine
Indian seafarers (four officers and five non-officers) be
deposited in Court for payment to their family
members without prejudice to their claims for higher
compensation. Thereafter, a sum of Rs.1,29,29,386/-
equivalent to 2,85,000 US Dollars was deposited by
respondents 4 and 5 and by order dated 28.03.2011,
the Court permitted the legal heirs/representatives of
the officers/seamen to lodge their claims for
disbursement of compensation with the Registrar
(Judicial) who was required to verify the claims and
submit a report to this Court with regard to
disbursement. Registrar (Judicial) is now in the
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process of verifying the claims and disbursing the
amounts to the legal heirs of the deceased Indian
seafarers.
7. At the hearing of the writ petition, learned counsel for
the petitioners Mr. P. Soma Sundaram and Mr. Vipin
Nair submitted that under Article 21 of the
Constitution every person has been guaranteed the
right to life and this right has been violated in the case
of the seafarers on board Jupiter-6. They submitted
that though Jupiter-6 went missing in the high sea on
05.09.2005, the respondent no.4 informed the
Government about the loss of Jupiter-6 35 days after
05.09.2005, i.e. on 10.10.2005, and the Government
did not conduct any investigation into the incident and
issued death certificates on 17.08.2006 saying that the
crew members of Jupiter-6 are presumed to be dead.
They submitted that under M.S. Notice 26 of 2002 the
manning agents who have recruited the seafarers on
board the foreign flag vessel, in the present case
respondent nos.4 and 5, were required to inform the
Government about the marine casualty within three
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days of the incident and as the Indian nationals were
involved in the marine casualty, the Government of
India was required to conduct a marine casualty
investigation forthwith. They submitted that under the
Merchant Shipping (Recruitment and Placement of
Seafarers) Rules, 2005 (for short ‘the Rules 2005) and
in particular Rule 3 thereof, the Government was also
required to conduct an investigation when a complaint
is received against the Recruitment and Placement
service providers, but no such enquiry has been
conducted by the Government on the complaint
regarding missing of Jupiter-6 despite complaints
having been made to the Government. They also
referred to the Flag State Report of the Maritime
Investigation Branch, Saint Vincent and the
Grenadines, Report No.5 of September 2005, which
states that disappearance of Jupiter-6 along with her
crew remains an enigma. They submitted that this
report would go to show that respondent nos. 4 and 5
had been indicted for the incident and yet no action
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has been taken by the Government against respondent
nos. 4 and 5.
8. Learned counsel for the petitioners next submitted
that under Rule 4 (3)(a) of the Rules 2005 read with
Form-III prescribed by the Rules 2005, it is mandatory
for the Recruitment and Placement service providers to
provide insurance cover to the seafarers they employ.
They submitted that it will be clear from the
declaration to be filed by the Recruitment and
Placement service providers in Form-III along with the
application for licence that they are required to ensure
that all seafarers recruited and placed with the ship
owners are adequately covered by insurance cover.
They submitted that under Rule 3 (1)(j) of the Rules
2005, the Recruitment and Placement service
providers also have the legal obligation to inform the
seamen’s employment office concerned and next of kin
of the seafarer of each death or disability of the
seafarer within forty-eight hours of such death or
disability as well as the details of the insurance
coverage of the seafarers but in spite of such legal
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requirements, respondent nos. 4 and 5 have not
disclosed the details of the insurance coverage to the
seafarers. They submitted that respondent nos. 4 and
5 are responsible for providing adequate insurance
coverage as they had assumed the responsibility for
operation of the ship as Managers and were actually
the ship owners and were thus liable for the
compensation payable to the petitioners. They argued
that the insurance amounts of 40,000 US Dollars for
each of the officers and 25,000 US Dollars for each of
the non-officers deposited by respondent nos. 4 and 5
in this Court are not adequate and the compensation
amounts should have been much higher as indicated
in the Model Collective Bargaining Agreements for
Indian seafarers filed along with the letter dated
02.11.2010 of the Government of India addressed to
the Registrar of this Court annexed to the affidavit filed
on behalf of respondent nos.1, 2 and 3 on 19.07.2011.
They relied on the decision of this Court in Lata
Wadhwa & Ors. v. State of Bihar & Ors. [(2001) 8 SCC
197] in which this Court, while exercising its powers
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under Article 32 of the Constitution, directed payment
of higher compensation for each of the claimants on
account of deaths in a fire tragedy by Tata Iron and
Steel Company Limited. They also relied on the recent
decision of this Court in Municipal Corporation of Delhi
v. Association of Victims of Uphaar Tragedy & Ors. [AIR
2012 SC 100] in which this Court enhanced the
compensation payable to the claimants on account of
death and injury in a fire tragedy in Uphaar Cinema
Hall. They submitted that similar directions for
determination of the higher compensation by the
Registrar of this Court may be given in this case also.
9. Learned counsel for the petitioners finally submitted
that though Rules 2005 mandates that insurance
coverage has to be provided to Indian seafarers, it does
not mention the amount for which the insurance
coverage is to be done. According to the learned
counsel for the petitioners, this lacuna in law in
respect of quantum of insurance coverage should be
filled up by this Court by invoking its powers under
Article 142 of the Constitution. In support of this
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submission, they relied on the judgments of this Court
in Indian Council for Enviro-Legal Action v. Union of
India & Ors. [(2011) 8 SCC 161], Union of India v.
Association for Democratic Reforms and Anr. [(2002) 5
SCC 294], Ashok Kumar Gupta & Anr. v. State of U.P. &
Ors. [(1997) 5 SCC 201] and Vineet Narain & Ors. v.
Union of India & Anr. [(1998) 1 SCC 226]. They
submitted that this Court should declare that in case
of a marine casualty involving Indian citizens, the
amount payable in case of death of an officer would be
89,100 plus US Dollars and the amount payable in
case of death of a child of an officer under 18 years
would be 17,820 US Dollars and the amount payable
in case of death of a non-officer would be 82,500 US
Dollars plus and the amount payable in case of death
of a child of a non-officer under 18 years 16,500 US
Dollars.
10. Mr. Rajeev Dutta, learned counsel appearing for
respondent nos.4 and 5, submitted that notice in the
writ petition was initially limited to the question as to
whether the Maritime Administration of the State
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(India) was invited to take part in the marine casualty
investigation as provided in para 4 of M.S. Notice 26 of
2002, but subsequently by order dated 24.09.2008 of
this Court the scope of the enquiry in the writ petition
has been widened to include the safety of the seafarers
and disbursement of compensation to the seafarers on
board Jupiter-6 who have lost their lives. Relying on
the counter affidavit filed by respondent no.4, he
submitted that respondent no.4 came to know about
Jupiter-6 going missing on 08.10.2005 at about 2100
hrs. Indian Standard Time (Saturday) and immediately
thereafter, respondent no.4 informed the Director
General of Shipping on 10.10.2005 at about 1100 hrs.
Indian Standard Time (Monday) about the incident, i.e.
within the stipulated time as per M.S. Notice 26 of
2002. He argued that there was, therefore, no delay
on the part of respondent no.4 to inform the
Government of India about the incident. He submitted
that the seafarers, who were employed and placed on
board Jupiter-6, were bound by the terms of the
employment contract which provided that they will be
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governed by the law of Flag State and the employment
contract did not stipulate for compensation in case of
death or disability nor was the employment contract
governed by the provisions of the Collective Bargaining
Agreements. He submitted that under Section 338 of
the Shipping Act, 2004 of Saint Vincent and the
Grenadines, the Flag State of Jupiter-6, the limits of
liability of the ship owner have been fixed for claims
arising on any distinct occasion and the compensation
deposited in this Court at the rate of 40,000 US
Dollars in case of death of officers and 25,000 US
Dollars in case of death of non-officers is in
accordance with the provisions of Section 338 of the
Shipping Act, 2004 of Saint Vincent and the
Grenadines. He vehemently argued that since the
aforesaid compensation amount has been deposited for
disbursement to the legal heirs of the deceased
seafarers, respondent nos.4 and 5 are not liable for
any amount of compensation and this Court should
not, therefore, direct for any higher amount of
compensation than what has been deposited.
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11. Mr. H.P. Raval, learned Additional Solicitor General
for respondent nos.1, 2 and 3, submitted that the
Merchant Shipping Act, 1958 does not apply to
seamen on board of a ship or a vessel of a foreign
country. He referred to the counter affidavit filed on
behalf of respondent nos.1, 2 and 3 on 03.01.2008 and
the annexure thereto and submitted that the
respondent no.4 by its letter dated 10.10.2005
informed the Director General of Shipping about the
Jupiter-6 going missing and on 19.10.2005, the
Surveyor Incharge-cum-Deputy Director General of
Shipping requested Saint Vincent and the Grenadines
to carry out investigation into the casualty as Indian
nationals were involved in the casualty. He referred to
the additional affidavit filed on behalf of the Union of
India in December 2009 in which the various
measures taken by the Government of India for the
safety of the seafarers have been detailed. He
submitted that the Rules 2005 make it obligatory for
Recruitment and Placement service providers to
declare that all seafarers recruited and placed on
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board by them would be adequately covered by
insurance cover, but the quantum of compensation for
which the seafarers are to be insured in case of injury
or death have not been indicated therein and this has
resulted in variable amounts of compensation being
paid to Indian seafarers working in different shipping
companies, often resulting in exploitation of categories
which are lesser in demand. He also referred to the
affidavit filed on behalf of respondent nos.1, 2 and 3
on 20. 09.2011 in which a chart has been extracted to
show how the Government of India proposes to
improve the welfare and safety measures relating to
seafarers over what existed in 2006. He finally
submitted that so far as respondent no.4 is concerned
its application for registration as Recruitment and
Placement service providers has been rejected by the
speaking order dated 16.06.2008 of the Director,
Seamen’s Employment Office, Department of Shipping,
for default in paying compensation to the crew of a
vessel other than Jupiter-6, namely, M.V. RAZZAK,
which also went missing.
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12. We have considered the submissions of learned
counsel for the parties and we find that in P.D.
Shamdasani v. Central Bank of India [AIR 1952 SC 59]
a Constitution Bench of this Court has held that right
to life and personal liberty guaranteed under Article 21
of the Constitution is only available against the State
and that Article 21 was not intended to afford
protection to life and personal liberty against violation
by private individuals. Hence, the main question that
we have to really decide in this case is whether the
Union of India (not respondent no.4 nor respondent
no.5) was liable for violation of the right to life
guaranteed under Article 21 of the Constitution and
was liable for any compensation to the petitioners for
not causing a marine casualty investigation when
Jupiter-6 went missing in the high seas. Jupiter-6
was carrying the flag of Saint Vincent and the
Grenadines, although it had on its board some Indian
seafarers. The Director General of Shipping has issued
M.S. Notice 26 of 2002, which lays down the procedure
with regard to marine casualty investigation involving
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Indian citizens on board foreign flag vessels. M.S.
Notice 26 of 2002 states that India is a major supplier
of manpower to global shipping and in the recent past
it has been observed with concern that many of the
accidents/ incidents at sea involving Indian citizens on
board foreign flag vessels have not been reported to the
Indian Maritime Administration. It also states that the
Code for Investigation of Marine Casualties and
Incidents had been adopted on 27.11.1997 by the IMO
Assembly in its 20th Session and the code provides for
casualty investigation with the involvement of different
interested States. It has been further clarified in para
2 of M.S. Notice 26 of 2002 that this Code applies to
either one or more interested States that are
substantially interested in marine casualty and the
substantially interested States includes the State
whose nationals have lost their lives or received
serious injuries as a result of the marine casualty. It
is provided in para 2 of M.S. Notice 26 of 2002 that the
onus of conducting the investigation into the marine
casualty lies with the flag State or the coastal State
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within whose territorial sea the casualty has occurred.
Para 4 of M.S. Notice 26 of 2002, however, states that
for the purpose of effective casualty investigation, it is
imperative that the Maritime Administration of the
State, whose nationals are involved in the marine
casualty, by virtue of being ship’s crew, is required to
be invited to take part in the marine casualty
investigation, as a substantially interested State, by
the State conducting the investigation. It is also stated
in para 4 of M.S. Notice 26 of 2002 that our Maritime
Administration should be proactively involved in the
investigation and should take part in it as a
substantially interested State in order to facilitate
effective investigation and proper analysis of all marine
casualties involving Indian nationals and for correctly
identifying the causes of said casualties.
13. In the counter affidavit filed on behalf of respondent
nos. 1, 2 and 3 on 03.01.2008, it is stated that on
receipt of the letter dated 10.10.2005 from respondent
no.4, Surveyor Incharge-cum-Deputy Director General
of Shipping by letter dated 19.10.2005 requested Saint
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Vincent and the Grenadines to carry out the
investigation into the casualty and submit the
investigation report along with the findings of the
casualty as that would alleviate the sufferings of the
families of the Indian crew members. It is further
stated in the aforesaid counter affidavit of respondent
nos. 1, 2 and 3 that the maritime investigation branch,
Saint Vincent and the Grenadines sent a report of the
investigation which was carried out in September
2005, but in this report it is stated that no definite
conclusion could be ascertained about the events but
there could be following possible scenarios:
“1. The crew was trying to reconnect the tow again under conditions of significant swell, the tug capsized and sunk. Released EPIRB signal 33 days after m.v. “JUPITER 6” disappearance cannot be connected with this scenario.
2. Piracy/hijacking Piracy/hijacking is not common in this area. Suspicion of Piracy/hijacking remains valid as there was 180 MT of diesel oil on board the tug. For the time being our conclusion about the Manager’s actions regarding this accident are as follows:
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The disappearance of m.v. “Jupiter 6” along with her crew remains an enigma.”
Thus, respondent nos. 1, 2 and 3 became aware of the
casualty for the first time when they received the
communication dated 10.10.2005 about the incident from
respondent no.4 and the Surveyor Incharge-cum-Deputy
Director General of Shipping by letter dated 19.10.2005
requested Saint Vincent and the Grenadines to carry out
the investigation into the casualty as Indian nationals were
part of the crew of Jupiter-6. On these facts, it is difficult
for us to hold that the Union of India was guilty of violation
of the right to life and was liable for compensation to the
petitioners.
14. In Municipal Corporation of Delhi v. Association of
Victims of Uphaar Tragedy & Ors. (supra) cited by the
learned counsel for the petitioners, the Delhi High Court
had held the theatre owner (licensee), Delhi Vidyut Board
(DVB), Municipal Corporation of Delhi (MCD) and the
licensing authority liable for the fire incident in Uphaar
Cinema Hall and severely compensated the victims of the
accident, but this Court held that the MCD and the
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licensing authority could not be held liable for
compensation merely because there has been some inaction
in performance of the statutory duties or because the action
taken by them is ultimately found to be without authority of
law and they would be liable only if there was some malice
or conscious abuse on their part. This Court, however, held
in the aforesaid case that DVB was liable because direct
negligence on its part had been established and this
negligence was a proximate cause for the injuries to and
death of the victims. Para 32 of the opinion of R.V.
Raveendran, J., in the aforesaid case is quoted hereinbelow:
“It is evident from the decision of this Court as also the decisions of the English and Canadian Courts that it is not proper to award damages against public authorities merely because there has been some inaction in the performance of their statutory duties or because the action taken by them is ultimately found to be without authority of law. In regard to performance of statutory functions and duties, the courts will not award damages unless there is malice or conscious abuse. The cases where damages have been awarded for direct negligence on the part of the statutory authority or cases involving doctrine of strict liability cannot be relied upon in this case to fasten liability against MCD or the Licensing Authority. The position of DVB is different, as direct negligence on its part was established and it was a proximate cause for the
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injuries to and death of victims. It can be said that insofar as the licensee and DVB are concerned, there was contributory negligence. The position of licensing authority and MCD is different. They were not the owners of the cinema theatre. The cause of the fire was not attributable to them or anything done by them. Their actions/omissions were not the proximate cause for the deaths and injuries. The Licensing Authority and MCD were merely discharging their statutory functions (that is granting licence in the case of licensing authority and submitting an inspection report or issuing a NOC by the MCD). In such circumstances, merely on the ground that the Licensing Authority and MCD could have performed their duties better or more efficiently, they cannot be made liable to pay compensation to the victims of the tragedy. There is no close or direct proximity to the acts of the Licensing Authority and MCD on the one hand and the fire accident and the death/injuries of the victims. But there was close and direct proximity between the acts of the Licensee and DVB on the one hand and the fire accident resultant deaths/injuries of victims. In view of the well settled principles in regard to public law liability, in regard to discharge of statutory duties by public authorities, which do not involve mala fides or abuse, the High Court committed a serious error in making the licensing authority and the MCD liable to pay compensation to the victims jointly and severally with the Licensee and DVB.”
K. S. Radhakrishnan, J, while fully endorsing the reasoning
as well as the conclusions reached by R.V. Raveendran, J,
was also of the view that Constitutional Courts can, in
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appropriate cases of serious violation of life and liberty of
individuals, award punitive damages, but the same
generally requires the malicious intent on the side of the
wrong doer, i.e., an intentional doing of some wrongful act.
In the facts of the present case, as we have noticed, the
Surveyor Incharge-cum-Deputy Director General of
Shipping has requested the flag State to carry out the
investigation into the casualty within nine days of the
information received about the casualty and we are not in a
position to hold that there was any inaction with malicious
intent or conscious abuse or intentional doing of some
wrongful act or negligence on the part of respondent nos. 1,
2 and/or 3which was the proximate cause of the
disappearance or death of the Indian seafarers on board
Jupiter-6.
15. In Lata Wadhwa & Ors. v. State of Bihar & Ors. (supra)
the petitioners had filed a writ petition under Article 32 of
the Constitution on the ground that right to life under
Article 21 of the Constitution had been violated and had
prayed for inter alia a writ of mandamus or any other writ or
direction in prosecution of the Tata Iron and Steel Company
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and their agents and servants, for the alleged negligence in
organizing the function, held on 03.03.1989 in Jamshedpur
in which fire accident took place and to direct that
appropriate compensation be provided to the victims by the
State Government as well as the Company. When the writ
petition came up before this Court, the senior counsel
appearing for the company stated before the Court that
notwithstanding several objections, which have been raised
in the counter affidavit, the company did not wish to treat
the litigation as an adverse one and left it to the Court for
determining the monetary compensation to be paid after
taking into consideration all the benefits and facilities
already extended to the victims or their family members.
On the aforesaid submission made by the company, the
Court directed the Registry of the Court to determine the
compensation taking into account the enhancement made
in the judgment. In the facts of the present case,
respondent nos. 4 and 5 have deposited in this Court the
compensation amount made available by the insurers of
Jupiter-6 and their counsel has not made any submission
before the Court that they are prepared to pay to the
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petitioners any enhanced compensation as may be fixed by
this Court. As a matter of fact, it appears from the
provisions of the Shipping Act, 2004 of Saint Vincent and
the Grenadines and, in particular, Sections 332, 333, 334
and 335 thereof that the liability for compensation of any
claim in respect of life or personal injuries is of the ship
owners/salvors or their insurers and respondent nos. 4 and
5 are neither the ship owners/salvors nor their insurers.
16. As far as respondent nos. 4 and 5 are concerned,
they are holding a recruitment and placement service
licence issued under Rule 4 of the Rules 2005. Rule 3(1)(j)
provides that the inspecting authority shall carry out an
inspection of recruitment and placement service so as to
ensure that the seamen’s employment office concerned and
next of kin of the seafarer is informed of each death or
disability of the seafarer within 48 hours of such death or
disability in Form-V. Rule 6 of the Rules 2005 further
provides that where there is an adverse report of the
inspecting authority or complaint by a seafarer or otherwise,
the Director General of Shipping can authorize the Director
to issue a show cause notice in Form-VII to the recruitment
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and placement service licence provider requiring it to show
cause within a period of thirty days from the date of issue of
such notice as to why the licence shall not be suspended or
withdrawn and to suspend or withdraw the licence after
considering the reply. In this case, the licence of
respondent no.4 has already been withdrawn by the
speaking order dated 16.06.2008 of the Director General,
Seamen’s Employment Office, Department of Shipping, for
default in paying compensation to crew of vessel M.V.
RAZZAK. Hence, even if respondent no.4 has not reported
the casualty to the Director General of Shipping, Mumbai,
within a period of 48 hours as stipulated in the Rules 2005
as alleged by the petitioners in the writ petition, no further
direction can be given by this Court in this case because the
licence of respondent no.4 already stands withdrawn.
17. On the quantum of compensation, Rule 4(3) of the
Rules 2005, provides that the application for recruitment
and placement service licence shall be accompanied by a
declaration in Form III and Form III requires the application
to inter alia make the following declaration:
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“(xi) I/We shall ensure that all ships on which seafarers are recruited and placed are covered adequately by the P & I Insurance.”
All that the aforesaid declaration requires is that all ships
on which seafarers are recruited and placed are covered
adequately by the P & I Insurance. In the present case,
Jupiter-6 was a ship bearing the flag of Saint Vincent and
the Grenadines and was also covered by insurance and the
insurers have deposited Forty Thousand Dollars (40,000
Dollars) for each deceased officer seafarer and Twenty Five
Thousand Dollars (25,000 Dollars) for each deceased non-
officer seafarer. 40,000 Dollars is equivalent to
Rs.18,14,800/- and 25,000 Dollars is equivalent to
Rs.11,34,250/- as mentioned in the report of Registrar (J).
It is difficult for us to hold that the aforesaid amount of
compensation is not adequate in the absence of sufficient
materials produced before us to show the age, income of the
seafarers and all other factors which are relevant for
determination of compensation in the case of death of
seafarers (officers and non-officers). We cannot also direct
respondent nos.3 and 4 to pay the compensation as per the
Collective Bargaining Agreements in the absence of any
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materials placed before the Court to show that the
respondent nos. 4 and 5 were bound by the Collective
Bargaining Agreements.
18. Regarding the submission of the learned counsel for
the petitioners that this Court should declare law in
exercise of its powers under Article 142 of the Constitution,
we do not think that we should venture to do so in this case
considering the numerous factors which are to be taken into
consideration in making the law relating to maritime
casualty and the compensation payable in case of death of
Indian seafarers. We have, however, taken note of the
additional affidavit filed on behalf of respondent nos. 1, 2
and 3 on 19.07.2011 in which the proposal for setting up an
Indian Maritime Casualty Investigation Cell and for
amending the 2005 Rules have been indicated. In our view,
it will be enough for us to recommend to the respondent
no.1 to expedite the proposals which have been under
consideration of the Government and to take immediate
steps to amend the Merchant Shipping Act, 1958 and the
Rules 2005 in a manner they deem proper to ensure that
the life of seafarers employed in different ships in high seas
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are made more secure and safe and in case of loss of life,
their kith and kin are paid adequate amount of
compensation.
19. This writ petition is disposed of with the aforesaid
observations and with a direction to the Registrar (J) to
expedite the payment of compensation to the legal heirs of
the victims in accordance with the orders passed in this
case as early as possible, in any case, within a period of
four months from today. We make it clear that the
compensation received by the legal heirs of the Indian
seafarers on board Jupiter-6 will be without prejudice to
their claim for higher compensation in any appropriate
proceedings.
. ……………………….J.
(A. K. Patnaik)
………………………..J. (Swatanter Kumar) New Delhi, October 18, 2012.
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