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TMI Blog2012 (10) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 incident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.09.2008 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lag 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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