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N. Paul Vasanthakumar, J.—W.P. Nos. 29948, 30197, 30900, 30991, 30992 and 30993 of 2012 are filed by the legal heirs of the
deceased persons, who were employed in the Vessel viz., MT Pratibha Cauvery, owned by the 6th respondent therein, praying for a direction to
the respondents 1 to 5 to conduct proper enquiry and take appropriate action against the 6th respondent, owner of the Vessel and to pay
compensation to the family of the deceased employees. In W.P. Nos. 31801 and 31941 to 31947 of 2012, the persons who are in employment in
the very same Vessel MT Pratibha Cauvery, are praying for issuing writ of mandamus directing the first respondent to conduct an enquiry as to the
incident in respect of the Vessel M.T. Pratibha Cauvery, which got grounded on 31.10.2012 in Chennai Coast and to take appropriate action
against the owner of the Vessel/4th respondent therein.
The case of the petitioners is that the deceased persons viz., Anand Mohandoss was appointed as Marine Engineer from 18.5.2012; K.K.
Niranjan was appointed as Marine Engineer from 4.5.2012; Joman Joseph was employed as Oiler for 81/2 years; Khamitkar Raj Ramesh
completed Nautical Science in Indian Maritime University at Chennai and joined the service in the ship as Deck Cadet on 26.9.2012; Krishna
Chandra joined the service in the ship as Tr. Seaman on 29.6.2012; Rushabh C. Jadhav joined as Deck Cadet on 29.9.2012, have all died while
they were in service in the Vessel MT Pratibha Cauvery on 31.10.2012. The Vessel was used as a cargo for carrying crude oil. The said Vessel
arrived at Chennai Port on 25.9.2012 with 37 crew members/employees on board, including the six deceased persons. On 28.9.2012 the crude
oil was unloaded and the Vessel was heading to Mumbai on 29.9.2012. However, it did not sail to Mumbai and from 8.10.2012 to 31.10.2012
the Vessel was kept in Chennai outer anchorage.
It is the contention of the petitioners that the ship was roving in Chennai Port area as it had no sea-worthiness and all its certificates were
expired. The crew members of the Vessel, including the deceased were not paid salary in spite of their repeated request and were sending several
E-mails to the owner of the ship, shipping authorities and shipping agents. The ship was not in good condition, though it was sailing for 33 years.
The ship was kept in outer anchorage for 40 days and during those days, the employees including the deceased were not provided with basic
needs such as water, food and only once in a day food was provided and they suffered due to starvation. Even drinking water was not made
available to the employees and they were forced to drink A/c waste water to quest their thirst.
At the time of ''Neelam storm'' six crew members, in order to save their lives, used the life-boats provided in the Ship and as the said boats
were not having fuel and due to starvation and poor health condition, the above stated six crew members could not withstand the sea pressure and
subsequently died and their bodies were found in different location on the sea-shore in and around Chennai. The State Police initially registered
cases u/s 174 Cr.P.C. and subsequently the cases were altered for the offence u/s 304(ii) IPC. Two agents of the company were arrested and
criminal cases were registered against 12 persons, including the Chairman and Managing Director, Directors, and persons responsible for
maintenance of Vessel and supply of food. The grievance of the legal heirs of the deceased employees and other petitioners having not been
enquired into by the first respondent and six persons having lost their lives, the legal heirs of the deceased employees and other eight other
employees filed these writ petitions with the above said prayer.
This Court passed an interim order on 7.11.2012 to the effect that if the owner of the Vessel or anybody interested in the Vessel wants to move
the Ship out of the territorial jurisdiction of this Court, such person shall deposit a sum of Rs. 6 crores to the credit of the Registrar General of this
Court. Subsequently, the owner of the Vessel deposited a sum of Rs. 30 lakhs to the credit of the Registrar General of this Court for payment of
interim compensation of Rs. 5 lakhs each to the legal heirs of the deceased crew members. The said amounts were also ordered to be withdrawn
by the legal heirs, after producing the legal heirship certificate issued by the competent authority.
Eight employees (crew members) have filed W.P. Nos. 31801 and 31941 to 31947 of 2012 praying for similar direction contending that they
were also put to sufferings and their salary arrears have not been paid and all of them have lost their certificates and it will take time for them to
apply and get duplicate certificates and until they get their duplicate certificates, they cannot go for any other employment and therefore, the
Shipping Company is liable to pay arrears of salary as well as compensation.
The Chairman and Managing Director of the Shipping Company filed counter affidavit contending that the Company is mourning the death of six
crew members. The grounding of the Vessel is only due to cyclone ''Neelam'' and there is no negligence, misfeasance or malfeasance on the part of
the Shipping Company and due to panic and violation of the general code of conduct of the crew members, six of them died. Safety of the crew
members was ensured in all respects and those who remained on board have survived. The whole issue is under investigation by the Mercantile
Maritime Board as per the Maritime Shipping Act, 1958. On 31.10.2012, the Vessel, as instructed by the Port authorities was started to move to
the outer limit of the Port due to adverse weather condition and started drifting towards shore, as she lost both anchors and eventually, she
grounded ashore due to adverse weather and rough sea, which is an ""Act of God"". It is further stated in the counter affidavit that there were
enough supply of food and nutrition of all kinds and the allegation of starving is only a make belief story. The compensation to the deceased crew
persons are to be arrived under their respective terms and conditions of the contract and the claim of compensation can be set out as arrived by
Maritime Union of India and National Maritime Board as the said organisation protect the interest of the crew members in case of death and
disability compensation. It is also stated in the counter affidavit that the Vessel is mortgaged with various financial institutions and the said
mortgages have been registered with the Mercantile Marine Department and Registrar of Companies. A sum of Rs. 30 lakhs was deposited with
the Registrar General of this Court by a Demand Draft bearing No. 471617 dated 3.11.2012 towards interim compensation payable to the legal
heirs of the six deceased crew members. The conditional order passed to deposit a sum of Rs. 6 crores is highly excessive and the same is to be
vacated. These writ petitions are not maintainable as the petitioners have to move under the Admiralty jurisdiction of this Court or before the
Industrial Tribunal as the case may be, for arrears of salary or other dues. The allegation of culpability/negligence cannot be tried through affidavit
and compensation can be determined only after proper trial. The Vessel being of Indian origin, flying Indian Flag, is bound by Indian Laws and
therefore the claimants can be directed to approach the appropriate forum. On 23.11.2012, the Director General of shipping recommended to
make an agreement for sale of the ship and without prejudice to the rights and contentions, 6th respondent pray for appointment of a licenced
Surveyor for surveying and selling the Vessel so that the sale proceeds can be deposited with the Registrar General of this Court for disbursement
as per priority.
The Assistant Commissioner of Police, who is investigating the criminal case registered against the Directors, and others for the incident, filed a
progress report on 12.12.2012 stating that cases in
(i) Cr. No. 4592 of 2012 on the file of Sastri Nagar Police Station;
(ii) Cr. No. 103 of 2012 on the file of B3 Fort Police Station;
(iii) Cr. No. 716 of 2012 on the file of B6 Anna Square Police Station;
(iv) Cr. No. 59 of 2012 on the file of B5 Harbour Police Station; and
(v) Cr. No. 118 and 119 of 2012 on the file of E4 Kattur Police station
Were registered u/s 304(ii) IPC against the following persons arraigning them as accused 1 to 12:
The Shipping Company Directors/Officials and its Chennai local agent Sea World Shipping and Logistics Pvt. Ltd., persons knowingly failed to
take responsibilities over the life of crews and failed to provide essential commodities, which can be termed as deadly act with knowledge of
causing the death of crew members. It is also stated that some more witnesses and documents have to be collected from the Mercantile Marine
Department and the cases are under investigation.
The first respondent also filed counter affidavit stating that the Vessel MT Pratibha Cauvery is an Oil Tanker, registered with the Registrar of
Ships, Principal Officer, Mercantile Marine Department, Mumbai, u/s 22 of the Merchant Shipping (MS) Act, 1958. The ship arrived at Chennai
Port on 25.9.2012 with 37 employees on Board. As per the general condition of the Vessel, availability of fuel, non-payment of salary to the
employees and relieving them, the 6th respondent has to answer. The representation of the relatives of the deceased crew members dated
15.10.2012 was taken up for investigation by forwarding the same to the 6th respondent on 16.10.2012 by E-Mail and post. Before receiving
reply from the 6th respondent, the casualty occurred and enquiry started. The Vessel''s stay at outer anchorage from 8.10.2012 to 31.10.2012 is
due to lack of sea-worthiness. The first respondent took all efforts to enquire into the matter through the Principal Officer MMD, Chennai, by
appointing two officers and preliminary enquiry was also ordered. A preliminary report is also filed before the first respondent. It is further stated
that final report would be comprehensive and the reasons to be stated can be used by the petitioners for all practical purposes to remedy their
grievances and take appropriate steps for reliefs as per law. In the counter affidavit filed by the first respondent it is further stated that once
comprehensive report on the reason for the casualty is filed, the same can be used by the petitioners for all practical purposes to remedy their
grievances and take appropriate steps as per law.
A report is filed by the first respondent on 3.12.2012 to the Director General of Shipping, Mumbai and a copy of the same is produced before
this Court for perusal. In the said report it is specifically stated that the Vessel''s certificates were valid when it came to berth at Chennai and got
expired at the anchorage on 1.10.2012, among other things.
Mr. S. Prabakaran, learned counsel appearing for the legal heirs of the six deceased crew members submitted that only due to the criminal
negligence on the part of the Shipping Company and agents, six crew members died and even the life boats were not having diesel and the
deceased employees were not able to stay in the ship on the fateful day due to starvation as no food and water was provided or made available.
Therefore, according to the learned counsel the Shipping Company is liable to pay not only compensation as provided under Maritime law, but
also under the Common Law Principle and the legal heirs are entitled to get adequate compensation. Learned counsel also submitted that some of
the deceased crew members borrowed education loan from Banks and the Banks are pressing the family members for repayment of the education
loans.
Mr. S. Vasudevan, learned counsel appearing for the petitioners in other writ petitions submitted that the crew members/petitioners were not
paid salary and their certificates were lost and only after getting duplicate certificates, they can go for any employment and till such time the
Shipping Company is liable to pay compensation as well as salary dues. Learned counsel also submitted that on the fateful day, no other ship in
Chennai Harbour was washed away and the subject ship was not having any anchorage and its certificates also expired as early as on 1.10.2012.
Therefore, learned counsel submitted that the petitioners in these writ petitions are entitled to get arrears of salary as well as due compensation and
they need not approach the appropriate Court.
Mr. Muizz Ali, learned counsel appearing for the Pratibha Shipping Company Limited submitted that there was no shortage of food as alleged
and the deceased employees are to be blamed for jumping out of the Ship due to which they died, as all other crew members, who stayed in the
Vessel could be saved on the next day. The learned counsel also submitted that the writ petitions filed claiming compensation are not maintainable
as the facts are in dispute in these cases. The learned counsel further submitted that the petitioners are having effective alternate remedy of invoking
the Admiralty jurisdiction of this Court and Labour Court. The company is trying for revival and therefore the Vessel need not be sold by
conducting auction, even though a consent was given in the counter affidavit. The learned counsel also submitted that the Pratibha Shipping
Company is totally having 9 ships and it is having sufficient means to settle the claim of the petitioners, if appropriate Court is approached by the
petitioners and proper amount of compensation or wages are determined. The learned counsel produced a rough calculation of compensation
amounting to Rs. 87,45,300/- payable to the families of the six deceased crew members.
Mr. G. Masilamani, learned Additional Solicitor General of India appearing for the first respondent submitted that enquiry was ordered u/s 358
of the Merchant shipping Act, 1958 and a report was also prepared and submitted as required u/s 359 of the Act. Therefore, the prayer sought for
in the writ petitions to conduct proper enquiry against the Shipping Company is already met and further action will be taken based on the report
already submitted.
Mr. A. Navaneethakrishnan, learned Advocate General appearing for the State of Tamil Nadu and State Police based on the investigation
progress report dated 12.12.2012 submitted that all effective steps are taken to investigate in respect of the death of six crew members and
original criminal complaint registered u/s 174 Cr.P.C. was subsequently altered u/s 304(ii) IPC and 12 persons are now named as accused. The
investigation is now being carried out by the Assistant Commissioner of Police and the investigation will be completed and final report will be
submitted within short time.
Mr. R. Karthikeyan learned counsel appearing for the Chennai Port Trust submitted that the Vessel being berthed at Chennai Port Trust, the
demurrage charges are to be paid by the Shipping Company.
Mr. S. Ragunathan, learned counsel appearing for the Sea World Shipping Agent submitted that even though they are not at fault, they are
being harassed and pendency of these writ petitions is shown as defence by the police in opposing the bail petition filed by them and the said issue
may be clarified.
I have considered the rival submissions made by the respective learned counsels appearing for the parties concerned.
The arrival of the Vessel M.T. Pratibha Cauvery, which was used as a Cargo, owned by the Pratibha Shipping Company Ltd., Mumbai, 6th
respondent in W.P. No. 29948 of 2012, etc., at Chennai Port on 25.9.2012 with 37 crew members on Board, including six deceased employees,
carrying crude oil; and the crude oil was unloaded on 28.9.2012; and the Vessel was kept in Chennai outer anchorage without moving towards
Mumbai, are all not in dispute. The reason stated by the petitioners as well as the first respondent for not moving the Vessel towards Mumbai is
want of sea-worthy certificates and all the certificates relating to the Vessel got expired as on 1.10.2012.
The first respondent in the counter affidavit at paragraph 7 specifically stated that the Vessel''s statutory and mandatory certificates expired on
1.10.2012 and the same were not renewed by the Shipping Company/6th respondent and it is the responsibility of the owner of the Vessel to
maintain the condition of the Ship after survey, as per the provisions of the Merchants Shipping Act, 1958, and the rules made thereunder.
Petitioners are contending that the crew members were not paid salary and not even given proper food as well as drinking water and the crew
members suffered of starvation inside the Vessel and the said fact was intimated to the Shipping Ministry and Port authorities seeking their
intervention, but no action was taken by the officials of the first respondent or Chennai Port Trust.
A storm alert signal was made in Chennai harbour on 31.10.2012 due to the fact that ''Neelam Storm'' was going to cross Chennai coast. Due
to storm, the ship was washed away to the shore and six of the crew members died. According to the Shipping Company/6th respondent, had
they stayed in the Vessel, they could have been saved like all other crew members, as all the members stayed in the Vessel were rescued on the
next day, that was on 1.11.2012. It is the contention of the petitioners, who are legal heirs/relatives of the deceased six crew members that the said
crew members, in order to save their lives, used life boats but the life boats were not having fuel and they were in starvation, due to which they
could not withstand the storm and died and their bodies were found in different location of the sea shore. It is an admitted fact that criminal cases
were registered initially u/s 174 Cr.P.C. and after investigation, the State Police altered the criminal cases for offences u/s 304(ii) IPC on
26.11.2012 and totally 12 persons, named above, are arraigned as accused. Now the cases are being investigated by the Deputy Commissioner
of Police, Adyar Police District. In the repot filed by the Assistant Commissioner of Police, Adyar Range dated 12.12.2012, it is stated that some
more witnesses, apart from documents like E-mail communication, certificate of shipping, VHF communication, vessel log book and other
documents, digital evidences and technical expert''s reports were to be collected from the Mercantile Marine Department and the cases are still
under investigation.
It is also the contention of the first respondent that the first respondent can order investigation if the Vessel is anchored in violation of the
Shipping Laws and the first respondent cannot suo-motu initiate any action for Vessel''s stay at outer anchorage and as per Section 335 of the Act,
the owner of the ship is under obligation to crew, with respect to sea-worthiness. Section 335 reads as follows:
Obligation of owner to crew with respect to seaworthiness.-
(1) In every contract of service, express or implied between the owner of an Indian ship and the master or any seaman thereof, and in every
contract of apprenticeship whereby any person is bound to sere as an apprentice on board any such ship, there shall be implied, notwithstanding
any agreement to the contrary, an obligation on the owner that such owner and the master, and every agent charged with the loading of such ship
or the preparing thereof for sea, or the sending thereof to sea, shall use all reasonable means to ensure the seaworthiness of such ship for the
voyage at the time when such voyage commences, and to keep her in a seaworthy state during the voyage.
(2) For the purpose of seeing that the provisions of this Section have been complied with, the Central Government may, either at the request of the
owner or otherwise, arrange for a survey of the hull, equipment or machinery of any seagoing ship by a surveyor.
The first respondent also issued ''Merchant Shipping Notice No. 18 of 2009 - Monsoon Advisory to Shipping, which prescribes the precautions
to be taken by the ship in the event of encountering storm conditions in Indian coastal waters, including ports outer shipyard operations throughout
the year, with special reference to monsoon months. The said advisory is still in force. The Principal Officer, MMD Chennai, is conducting enquiry
into all aspects raised by the petitioners. It is the specific stand of the first respondent that the first respondent has taken all efforts to expedite
preliminary enquiry and the Principal Officer MMD, Chennai will be submitting a report and a report was also submitted as stated supra.
Thus, it is evident that the criminal investigation by the State Police as well as the investigation by the first respondent''s officials are in progress
and no final report is filed and culpability of the Directors of the 6th respondent is not finally determined, though prima facie case is made out to
prosecute u/s 304(ii) IPC against 12 persons, including the Directors and others.
In these writ petitions, petitioners have prayed for conducting proper enquiry and take appropriate action against the Shipping Company
Limited. The enquiry having commenced and is in progress, the first part of the prayer is now complied with and for taking proper action against
the Shipping Company, the enquiry has to be completed. Only based on the final findings in the enquiry, further action will have to be taken.
Insofar as the claim of compensation for the death of six crew members are concerned, it is the specific case of the Shipping Company/6th
respondent that the petitioners can claim compensation only under the provisions of the Merchant Shipping Act, 1958/Service agreement/Rules.
During the course of the hearing, the learned counsel appearing for the Shipping Company/6th respondent has produced a rough calculation of the
compensation amount payable to the legal heirs of six crew members as per existing agreement, which reads as follows:
The learned counsel for the Shipping Company/6th respondent further argued that the compensation payable to legal heirs of the deceased six
crew members has to be ascertained or determined by the appropriate Court as the factual aspects regarding culpability of the management/agents
of the Vessel have to be established only after adducing oral and documentary evidence and the exact quantum of compensation cannot be
determined in writ petitions filed under Article 226 of the Constitution of India.
During pendency of the writ petition learned counsel appearing for the petitioners expressed apprehension about moving of the Vessel from the
territorial jurisdiction of this Court. Considering the said factual aspect, this Court passed an interim order on 7.11.2012 to deposit a sum of Rs. 6
crores before the Registrar General of this Court for moving the Vessel outside the jurisdiction of this Court by the 6th respondent or any other
person interested in the Vessel. Subsequently, a sum of Rs. 30 lakhs was deposited before the Registrar General of this Court by the Shipping
Company on 3.12.2012 and the said amount was ordered to be disbursed to the legal heirs of the six deceased crew members at Rs. 5 lakhs
each, on production of legal heirship certificate, by order dated 5.12.2012.
There is no dispute regarding the liability of payment of compensation to the families of the deceased crew members. Even according to the
Shipping Company, as per the rough calculation sheet produced before this Court, a sum of Rs. 87,45,300/- is payable to the legal heirs of the six
deceased crew members, i.e. Rs. 24,45,300/- to the legal heirs of deceased Anand Mohan - W.P. 24498 of 2012; Rs. 18,00,000/- each to the
legal heirs of deceased Joman Joseph and Krishna C. Puthiya Purayil - W.P. Nos. 30900 and 30992 of 2012; and Rs. 9,00,000/- each to the
legal heirs of deceased K. Niranjan, Khamitkar Raj Ramesh and Rushabh Jadhav - W.P. Nos. 30197, 30991 and 30993 of 2012. Hence, the
Shipping Company/6th respondent can safely be directed to pay the said amounts to the legal heirs of the deceased crew members as an interim
measure. The Shipping Company can adjust the sum of Rs. 30 lakhs, already deposited, from the admitted sum of compensation of Rs.
87,45,300/- payable by them.
Further amount of compensation payable to the legal heirs of the deceased crew members has to be necessarily determined by the appropriate
forum after adducing oral and documentary evidence. Hence, the petitioners'' claim for award of compensation, even though is eligible, is unable to
be determined by this Court in these writ petitions and the petitioners/legal heirs are granted liberty to approach the appropriate forum, for claiming
compensation, apart from the amount of Rs. 87,45,300/-, which is the admitted amount of compensation payable by the Shipping Com-pany/6th
respondent, as stated supra.
This Court sitting under Article 226 of the Constitution of India is unable to determine the actual compensation amount payable to the legal
heirs of the deceased crew members as well as other crew members. The Honourable Supreme Court in the decision in Sabeeha Faikage and
Others Vs. Union of India (UOI) and Others, considered similar issue regarding claim of compensation of legal heirs of the deceased 13 crew
members and ordered to pay interim compensation, without prejudice to their claim for higher compensation in any appropriate forum.
As the ship is now abandoned and not seaworthy, the Shipping Company/6th respondent is bound to give sufficient surety for moving the ship
from the territorial jurisdiction of this Court with a view to safeguard the interest of the legal heirs of the deceased crew members for getting
reasonable compensation to be determined by the appropriate forum on being approached by the petitioners/legal heirs. Hence the 6th respondent
is directed to either deposit a further sum of Rs. 5 crores or bank guarantee for the said amount or give immovable property security worth Rs. 5
crores to the satisfaction of the Registrar General of this Court before moving the Vessel MT Pratibha Cauvery from the territorial jurisdiction of
this Court or before selling the same.
Insofar as the claim of wages and compensation by the other members of the crew, who have filed W.P. Nos. 31801 and 31941 to 31947 of
2012 are concerned, the Shipping Company is duty bound to calculate the arrears of salary payable till the end of October, 2012 as per their
monthly wages and allowances and pay the same within a period of four weeks from the date of receipt of copy of this order. The Shipping
Company is also duty bound to pay due compensation to be determined by the appropriate forum. If there is any dispute regarding the quantum of
arrears of salary payable to these petitioners, they can approach the appropriate forum and prove their claim. In fine, all these writ petitions are
disposed of with the following directions:
(a) The Pratibha Shipping Company Ltd., Mumbai, is directed to pay the admitted sum of Rs. 87,45,300/- as interim measure to the legal heirs of
the deceased crew members as follows:
- Rs. 24,45,300/- for the legal heirs of deceased Anand Mohan - W.P. 24498 of 2012;
- Rs. 18,00,000/- each to the legal heirs of deceased Joman Joseph (W.P. Nos. 30900 of 2012) and Krishna C. Puthiya Purayil (W.P. 30992 of
2012);
- and Rs. 9,00,000/- each to the legal heirs of deceased K. Niranjan (W.P. 30197 of 2012), Khamitkar Raj Ramesh (W.P. 30991 of 2012) and
Rushabh Jadhav (W.P. 30993 of 2012).
(b) The Pratibha Shipping Company Ltd., Mumbai, is directed to deposit the above amounts, after deducting Rs. 30 lakhs already deposited on
3.12.2012, before the Registrar General of this Court, within a period of four weeks from the date of receipt of copy of this order.
(c) On such deposit, the Registrar General of this Court is directed to disburse the above mentioned respective amounts to the legal heirs of the
deceased crew members on production of legal heirs certificate, issued by the competent authority.
(d) The legal heirs of the above said six deceased crew members are at liberty to approach the appropriate forum for determining further
compensation payable.
(e) The Pratibha Shipping Company Ltd., Mumbai, is directed to either deposit a further sum of Rs. 5 crores or bank guarantee for the said
amount for a period of three years or give immovable property security worth Rs. 5 crores to the satisfaction of the Registrar General of this Court
before moving the Vessel MT Pratibha Cauvery from the territorial jurisdiction of this Court or before selling the same.
(f) The Pratibha Shipping Company Ltd., Mumbai is also directed to calculate the admitted arrears of salary payable till the end of October, 2012
to the petitioners in W.P. Nos. 31801 and 31941 to 31947 of 2012 and pay the same within a period of four weeks from the date of receipt of
copy of this order.
(g) In case of any dispute regarding the quantum of arrears of salary payable to the petitioners in W.P. Nos. 31801 and 31941 to 31947 of 2012,
they are at liberty to approach the appropriate forum to prove their claim.
(h) With regard to the claim of compensation by the petitioners in W.P. Nos. 31801 and 31941 to 31947 of 2012 for loss of their certificates,
etc., they are directed to approach the appropriate forum.
(i) The first respondent as well as the State Police are directed to finalise the investigation and take appropriate action, not later than three months
from today.
(j) There will be no order as to costs.
(k) Connected miscellaneous petitions are closed.