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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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