Bombay High Court
Motor Vessel Mangalam And Anr vs Alice Elizabeth Dsouza And 2 Ors on 13 December, 2017
Bench: Vasanti A. Naik
Sudhir Rane 1 225-APP-905-2006.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.905 OF 2006
IN
ADMIRALTY SUIT NO.3 OF 2003
WITH
NOTICE OF MOTION NO.2650 OF 2016
IN
APPEAL NO.905 OF 1006
WITH
CHAMBER SUMMONS NO.1677 OF 2016
1. Motor Vessel Mangalam a Motor
Vessel flying the Indian Flag registered
at Mumbai at present plying between
various Ports on therefore Western Coast
of India owned by Vikrant Ispat a Unit of
Grasim Industries ltd.
2. Vikrant Ispat a Unit of Grasim Industries
Ltd a Public Limited Company registered
under the Indian Companies Act, 1956
having its registered office at Birlagram
Nagda - 456 331
and also at Ahura Centere, 1st floor, 82
Mahakali Cavers Road, Andheri East
Mumbai - 400 093. ... Appellants.
(Orig. Defendant
Nos.1 and 2)
Versus
1. Alice Elizabeth D'Souza
Aged 49 years, Occupation: Service
residing at 67/F, Railway Quarters,
Vile Parle East, Mumbai - 400 057.
2. Alwin Mathew D'Souza
Aged 12 years, Occupation: Student,
Minor through his Mother and
natural guardian
Mrs. Elizabeth D'Souza
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Sudhir Rane 2 225-APP-905-2006.doc
residing at 67/F, Railway Quarters,
Vile Parle East, Mumbai - 400 057.
3. Binny Ship Management Limited
a Public Limited Company
registered under the Indian Companies
Act, 1956 having its registered Office
at 101, Maker Chambers VI, 220
Nariman Point, Mumbai - 400 021. ... Respondents.
(Orig. Plaintiff Nos.
1 & 2 and Defendant
No.3)
....
Mr. Tariq Baig a/w ms. N. Suman i/b. M/s. Bhatt & Saldonah for
the Appellants.
None for the Respondents.
....
CORAM : Smt. Vasanti A Naik &
Sarang V. Kotwal, JJ.
DATE : 13th December, 2017.
ORAL JUDGMENT : (Per: Smt. Vasanti A. Naik, J.)
By this appeal, the appellants-Motor Vessel Mangalam and
Vikrant Ispat have appealed against the judgment of the learned
Single Judge dated 08.11.2006 in Admiralty Suit no.3/2003,
decreeing the suit in terms of prayer clause (a) and (e) and
directing the appellants to pay compensation to the respondents-
legal heirs of Mr. Edwin D'Souza who expired on 13.09.1999
during the course of his employment as a Chief Engineer (First
Class).
Few facts giving rise to the appeal are stated thus:
The respondents-legal heirs of Mr. Edwin D'Souza had filed
Sudhir Rane 3 225-APP-905-2006.doc
admiralty suit no.3/2003 for a prayer against the appellants for
grant of compensation to the tune of Rs.45,60,000/- towards the
death of Mr. Edwin D'Souza in the course of the employment. The
appellant no.1 is a vessel flying the Indian flag of which the
appellant no.2- Vikrant Ispat-the original defendant no.2 is the
owner. The original defendant no.3 Binny Ship Management Ltd.
is the agent of Vikrant Ispat. Plaintiff no.1, Alice is the widow of
Edwin D'Souza and plaintiff no.2 Alwin is the son of Edwin.
According to the plaintiffs, Edwin, was working as a Chief
Engineer (First Class) with Vikran Ispat and had expired on a
vessel due to heart attack on 13.09.1999. It is pleaded in the suit
that the death of Mr. Edwin D'Souza occurred due to lack of
proper care and attendance after Edwin suffered a heart attack on
13.09.1999. According to the plaintiffs, Edwin was a member of
the Maritime Union of India and Vikrant Ispat is the member of the
Indian national ship owners association. It is pleaded that an
agreement was executed between Maritime Union of India of
which Edwin was a member and the Indian national ship owners
association relating to the terms and conditions of the services of
officers working on the vessels. The plaintiffs based the claim on
MUI-INSA agreement and specially clause 103 thereof to claim a
sum of Rs.45,60,000/- towards lump-sum compensation with
interest. It was the case of the plaintiffs that as per the said clause
in MUI-INSA agreement, if an employee dies during the course of
employment, including the death by heart attack or a death due to
any proven cause, the company would be liable to pay lump-sum
compensation at the rate of 110 months basic wages subject to the
minimum of Rs.9,00,000/-. It was the case of the plaintiffs that
Sudhir Rane 4 225-APP-905-2006.doc
since at the relevant time Edwin was receiving wages at the rate of
Rs.42,000/- per month, he was entitled to 110 months basic wages
amounting to Rs.45,60,000 towards compensation.
The defendants-appellants filed a written statement and
denied the claim of the plaintiffs. It was denied that Vikrant Ispat
was a member of the Indian ship owners association. It was
pleaded by the defendants that the MUI-INSA agreement would
not apply to Edwin. It was pleaded that since Edwin was receiving
a consolidated salary of Rs.42,000/-, the said salary could not be
considered as his basic wages. It was pleaded that compensation
of Rs.5,00,000/- was offered to the plaintiffs but the same was not
accepted by them.
On the aforesaid pleadings of the parties, the learned Single
Judge framed the issues and on a consideration of the evidence
tendered by the parties held that the plaintiffs had succeeded in
proving that they had a cause of action against the defendants and
also that they were the only surviving heirs of late Edwin D'Souza
under the Indian Succession Act. The learned Single Judge held
that the plaintiffs would be entitled to a decree for the sum of
Rs.45,60,000/- with interest at the rate of 18% from the date of
claim till the date of actual payment. The judgment of the learned
Single Judge is appealed against by the appellants.
Mr. Baig, the learned counsel for the appellants submitted
that the learned Single Judge ought to have considered the
admission of PW-2, the witness of the plaintiff in his cross
examination that the basic wages for the post of Chief Engineer,
Sudhir Rane 5 225-APP-905-2006.doc
Class-I, would be Rs. 16,360/- per month. It is stated that the
material admission in the cross examination of Mr. S.S. Khan, the
witness examined on behalf of the plaintiffs was not noticed by the
learned Single Judge while granting the claim of the plaintiffs in
the totality. It is submitted that the learned Single Judge has
wrongly observed that the defendants has not produced any
evidence on record to prove their case. It is stated that the
plaintiffs case was shattered in view of the evidence of Mr. S.S.
Khan in his cross examination that the basic wages for the post of
Chief Engineer, Class-I was Rs.16,360/-. It is submitted that the
appointment order of Mr. Edwin D'Souza clearly showed that he
was appointed temporarily for two months on consolidated wages
of Rs.42,000/- and the said wages could not have been considered
as basic wages, more so when clause 12 of the wage scale for trade
officers, as provided in the MUI-INSA agreement shows that the
basic wages for the post of Chief Engineer, Class-I were 16,360/-.
It is submitted that the learned Single Judge has decreed the suit
of the plaintiffs-respondents without referring to the wage scale
chart in the MUI-INSA agreement and without noticing the
material admission in the cross examination of PW-2 Mr. Khan
that the basic wages for the post of Chief Engineer, Class-I were
Rs.16,360/-. It is submitted that at the most, the plaintiffs would
have been entitled to 110 months basic wages at the rate of
Rs.16,360/- as applicable at the relevant time, when Mr. Edwin
D'Souza had expired in September, 1999.
Neither the respondent nor their counsel were present when
the appeal was called for hearing on 11.12.2017 and 12.12.2017
Sudhir Rane 6 225-APP-905-2006.doc
and on both the dates of hearing we had adjourned the matter
with a view to grant an opportunity to the respondents to defend
the prayers made in the appeal. Despite the grant of two chances
none appears for the respondents today also.
On hearing the learned counsel for the appellants and on a
perusal of the evidence of the witnesses as also the judgment of
the learned Single Judge and the MUI-INSA agreement, it appears
that the relevant part of the MUI-INSA agreement was not brought
to the notice of the learned Single Judge when the suit was
decided. Probably, the admission of PW-2-Mr. S.S. Khan in his
cross examination that the basic wages for the post of Chief
Engineer, Class-I would be Rs. 16,360/- was also not brought to
the notice of the learned Single Judge. The learned Single Judge
therefore proceeded on the basis that the defendants-appellants
had failed to produce any evidence in support of their case that the
basic wages of Mr. Edwin D'Souza would not be Rs.42,000/- and
would be 16,360/- per month. We have perused the appointment
order of Mr. Edwin D'Souza. The appointment order clearly
records that Mr. Edwin D'Souza was appointed for a period of two
months on a consolidated salary of Rs.42,000/- per month.
Unfortunately, Mr. Edwin D'Souza expired during the period of
two months from his temporary appointment. It is not in dispute
that as per clause 22 of MUI-INSA agreement that pertains to year
1998-2000, if an employee who is a member of the MUI dies
during the course of employment, his heirs would be entitled to
compensation at the rate of 110 months basic wages subject to the
minimum of Rs.9,00,000/-. Since Clause 22 of the MUI-INSA
Sudhir Rane 7 225-APP-905-2006.doc
agreement would be applicable to the case in hand as Mr. Edwin
D'Souza had expired due to heart attack while on the vessel, it
would be necessary to consider what basic wages were payable to
the post of Chief Engineer, Class-I, the post on which Mr. Edwin
D'Souza was working at the time of his death. It would be
necessary to consider the wage scale for trade officers, as provided
in MUI-INSA agreement. As per the wage scale, the basic wages
payable to the post of Chief Engineer, Class-I would be Rs.16,360/-
as per item 12 of the wage scale. Apart from the fact that the basic
wages payable to the employee are mentioned in the wage scale
append to the MUI-INSA agreement, it would be necessary to
consider the admission of the witness examined on behalf of the
plaintiffs, viz. PW-2-Mr. S.S. Khan who has clearly admitted in his
cross examination that at the relevant time the basic wages for the
post of Chief Engineer were approximately Rs.16,000/- per month
and on a perusal of the MUI-INSA agreement, the witness had
stated that the exact basic wages would be Rs.16,360/- per
month. Thus the witness examined on behalf of the plaintiffs had
admitted that the basic wages for the post of Chief Engineer,
Class-I were 16,360/- per month. Possibly, the said admission was
not brought to the notice of the learned Single Judge at the time of
hearing the admiralty suit. It is apparent from a perusal of the text
of MUI-INSA agreement and the wage scale appended thereto, as
also the admission of PW-2-Mr. S.S. Khan in his cross examination
that the basic wages payable to the post of Chief Engineer, Class-I
would be 16,360/-. Hence, the plaintiff had failed to prove that
the basic wages of Mr. Edwin D'Souza were Rs.42,000/- per
month. In the circumstances of the case, it would be necessary to
Sudhir Rane 8 225-APP-905-2006.doc
hold that the basic wages of Mr. Edwin D'Souza were Rs.16,360/-
per month and by considering the said basic wages, it would be
necessary to compute the compensation payable to the plaintiffs
by applying the multiplier of 110 as the compensation payable for
the death of an employee who dies during the course of
employment would be the basic wages for 110 months. The
amount of compensation payable to the plaintiffs would thus be
Rs.17,99,600/- and not Rs.45,60,000/- as held by the learned
Single Judge. The appellants would therefore be liable to pay the
compensation of Rs.17,99,600/- to the respondents with interest.
It would be necessary to note that at the time of admission of
this appeal, by the interim order dated 22.12.2006, the Court had
directed the appellants to deposit the entire amount with the
Prothonotary and Senior Master of this Court within four weeks
and 50 % of the deposited amount was liable to be invested in the
fixed deposit account of a nationalised bank and the remaining
50% amount was permitted to be withdrawn by the respondent
nos. 1 and 2 subject to furnishing of the solvent surety/security to
the satisfaction of the Prothonotary and Senior Master. It is most
likely that the respondents to must have withdrawn the amount
deposited by the appellants in this Court in pursuance of the
interim order. In the peculiar facts and circumstances of the case,
it would be too harsh to direct the respondents to refund the
excess amount withdrawn by the respondents in pursuance of the
interim order, as we find that the compensation is reduced to less
than 50% than what was granted by the learned Single Judge.
Hence though we have held that the respondent nos. 1 and 2-
Sudhir Rane 9 225-APP-905-2006.doc
plaintiffs would be entitled to the compensation of Rs.17,99,600/-,
the appellants would not be entitled to recover the amount that is
withdrawn by the respondent nos. 1 and 2 in excess of the amount
to which they are entitled as per this judgment. It is needless to
mention that as a consequence of our findings in this judgment
the appellants would be entitled to withdraw the amount that is
placed in the fixed deposit account of the nationalised bank.
Hence, for the reasons aforesaid, the appeal is allowed. The
judgment of the learned single judge stands modified. The
plaintiffs-respondents would be entitled for the compensation of
Rs.17,99,600/- along with interest from the date of the claim till
the amount was realised. The appellants are permitted to
withdraw the amount placed in the fixed deposit account of the
nationalised bank. In the circumstances of the case, there would be
no order as to costs.
With the disposal of the appeal, notice of motion
no.2650/2016 and chamber summons no.1677/2016 also stand
disposed of.
(Sarang V. Kotwal, J) (Smt.Vasanti A Naik, J)
