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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 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.- 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 materials placed before the Court to show that the respondent nos. 4 and 5 were bound by the Collective Bargaining Agreements.-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.

Reportable

Indian Coast Guard seal

Indian Coast Guard seal (Photo credit: Wikipedia)

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 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 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
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 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?
(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 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
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 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
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 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 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 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
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
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
(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 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.

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 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.

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 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
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 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:
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 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 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 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 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 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 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:

“(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 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 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.
———————–
29

 

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