N.SESHASAYEE, J. - (1.) The appellants herein are the legal heirs of certain Gopal Selvamani, a who claims to have suffered permanent disability in an accident that arose in the course of his employment, have approached this Court challenging the inadequacy of compensation awarded by the Commissioner under Workmen's Compensation Act.
(2.) The facts are: Gopal Selvamani was trained as a seaman in the ship M.V.Mekhala wherein after he was employed in the Ship M.V.Walchand. On 28.3.1977, he was employed by the first respondent to work under the second respondent as Engine Room Ratting-III (ERR-III). In this post, he worked till 1992. The nature of job is such that he should work for eight to twelve months in the ship and thereafter, there would be a temporary lay-off/sign-off for three to four months. During this period, he would not be entitled to salary, but still, would be entitled to Provident Fund and the period would also be reckoned for payment of gratuity. 2.1 On 02.02.1993, he was appointed as Engine Room Petty Officer (ERPO) and the nature of job may be stated as that of a Fitter. Ever since, he became a permanent employee of the first opposite party and he was also entitled to regular monthly salary. On an average, he was paid a salary of Rs.11,750/- per month inclusive of allowances. 2.2 Be that as it may, on 25.12.1993, while he was working in the Ship M.V.Diglipur at Chennai Port, a moving funnel shaft hit him in the course of his employment. Consequent to this accident, Gopal Selvamani suffered injuries to his chest, lower abdomen and groin regions. He felt unconscious and was removed to Wellington Hospital, Chennai and was treated there. Even after his treatment, he experienced numbness and stiffness of his right hand and right leg. As advised by the neurologist, scan was taken and on 17.01.1994, a surgical attempt to treat him was done. There however was no improvement. Thereafter, radiotherapy was given for 30 alternate days from 08.2.1994 to 22.3.1994 and again on 07.6.94 a scan was taken after perusing which the physician recommended chemotherapy for 5 sittings. After this five recommended sittings of chemotherapy, Gopal Selvamani suffered paralysis of both his legs. On 11.7.1995, Gopal Selvamani was discharged. On the very next day i.e., 12.7.1995, Gopal Selvamani was relieved of his service by the first opposite party on the ground that he was suffering from cancer, as a consequence of which he was not fit for sea service. The order terminating his services was passed on 11.3.1996. This retrospective termination of service is illegal, and, but for the accident and the injury he suffered in the course of his employment, he would have continued in service. Hence, he was absolutely hale and healthy and there was no indication of any symptoms of cancer. The cancer that was diagnosed should, under the circumstances, only be considered as an occupational disease. 2.3. Gopal Selvamani suffered total disablement. Further he was aged 40 years and if he had continued in the service of the respondents, he would have had a service of 16 years. However, he was relieved from service w.e.f. 12.7.1995 by an order dated 11.3.1996. The order relieving the services of Gopal Selvamani with retrospective effect is illegal. In fitness of things, the respondents should have given Gopal Selvamani some alternate employment. For the total permanent disability that Gopal Selvamani had suffered, the respondents have not paid any compensation. They merely sent Rs.8,474/- towards gratuity and Rs.46,580/- as full and final settlement. Gopal Selvamani responded to this Vide his letter 18.11.1997 seeking the break-up for Rs.46,580/-, but he did not receive any reply. Alleging the above facts, Gopal Selvamani approached the Commissioner under Workmen's Compensation Act with a claim of Rs.22,56,000/- as compensation.
(3.) In its counter, the first respondent, M/s. Shipping Corporation of India Ltd., has admitted the accident that took place on 25-12-1993 as alleged by Gopal Selvamani, but attributed the said accident to the fault of the victim himself. It is further alleged that on the victim suffering injury, he was removed to Wellington Hospital and towards the treatment, the first respondent had spent Rs.3,11,899.47. As Gopal Selvamani was permanently unfit for sea services he was paid a sum of Rs.46,580/- towards full and final settlement of his dues. It is also alleged that all aspects pertaining to the service conditions, financial aspects like allowances, expenses as well as compensation etc., of the foreign going officers are governed by an agreement entered into Maritime Union of India (MUI) and Indian National Ship Owners Association (INSA). On the very date of accident, Gopal Selvamani was signed off his services. He was treated by best of Neurologists and Neurosurgeons, whose investigations revealed that Gopal Selvamani was suffering from intra- medullary asthrocytoma, which in simple terms means that he was suffering from a certain type of cancer. As the cancerous tumour could not be surgically removed, he was administered radiotherapy and also chemotherapy. He indeed was admitted at M/s.Apollo Cancer Hospital, Chennai. His entire medical expenses were borne by the Shipping Corporation of India, the first respondent. He was discharged from Apollo Cancer Hospital on 01.12.1994, but was again admitted at Wellington Hospital. The medical opinion on the health status of Gopal Selvamani was that his disease was continuously progressing and was worsening. Hence, he was advised to return to his home as he was not more fit for travel. For the period from 01.04.1994 to 28.07.1995 Gopal Selvamani was given his food allowances of Rs.25,000/-. He also requested that he might be paid his dues on final settlement. On 12.7.1995, first respondent was constrained to relieve Gopal Selvamani of his services. His total services was less than 11 months of active service on board, and medical leave, if taken together, the duration of service was 2 years 5 months and 10 days. His ailment was in no way connected to the injury he suffered in a freek accident while in service. In order, Gopal Selvamani might entitle to any compensation in terms of the agreement between MUI and INSA, then as per clause 29 thereof he should have served in the ship for a period of 2 1/2 years. Since his service was terminated a few days short of completion of 2 1/2 years, he is not entitled to any compensation in terms of the agreement. Contrary to Gopal Selvamani's contention that he received a monthly salary of Rs.11,750/-, he received a salary of 3,335/- with allowances payable as per INSA-MUI agreement. 3.1 It is apparent that Gopal Selvamani was afflicted of cancer and it could well be possible that the accident might have happened due to his undetected cancer at the time when it took place. By no stretch of imagination, could it be said that cancer is an occupational disease of a seaman. Given the fact that he was suffering from cancer there is also no possibility for providing an alternate employment to Gopal Selvamani. The compensation sought is excessive and fanciful. Consequently, there is no merit in this application and the same is liable to be rejected. ;