JUDGMENT :

N.J. JAMADAR, J.

1. This appeal under section 30 of the Employees’ Compensation Act, 1923 (the Act, 1923) is directed against the judgment and award dated 1st March, 2019 passed by the learned Commissioner for Employees Compensation and Judge, 6th Labour Court, Mumbai in Application (ECA) No. 120/C-32/2016 whereby the application came to be partly allowed and compensation was awarded in accordance with the provisions of the Act, 1923 disallowing the claim for compensation in accordance with the TCC agreement.

2. The background facts leading to this appeal can be stated as under:

The appellant/applicant was employed as an Ordinary Seafarer with respondent/ opposite party No. 1 at ship MV DT PROVIDENCE. On 30th March, 2014, while on board, the applicant sustained blunt injury to spine. The applicant was taken to Walgreen Hospital in United States of America. After treatment, the applicant resumed duty on 7th April, 2014. As pain persisted, the applicant, was again taken to hospital in USA and was diagnosed with Lumbago. The applicant claimed that since he was involved in mooring operations on the ship, he had suffered the injury in the course of employment. The applicant was signed off from the ship on 10th April, 2014.

3. On reaching the shore at Mumbai the applicant was examined by Dr. Belani, the medical consultant of the respondent No. 1. The applicant was eventually operated at Breach Candy Hospital. Despite surgery, the applicant could not regain the strength and continued to suffer the consequences of the injury. The Medical Board at RIMS General Hospital, upon examination, declared that the applicant was not fit to perform heavy work and undergo the journey. The Medical Board at Nair Hospital, Mumbai initially assessed temporary disability at 86% and later on, post reassessment, declared that the applicant suffered 85% permanent disability. Since, the claim for compensation was not met by the respondents the applicant preferred an application for compensation before the learned Commissioner.

4. The applicant specifically asserted that the application was preferred for compensation in accordance with the scale of compensation prescribed in the ITF Uniform “TCC” Collective Agreement and the special provision relating to Master and Seamen under section 15 of the Act, 1923. Since, the applicant was drawing wages of 1700 USD and the applicant was 39 years of age, at the time of occurrence, the compensation of 190638 USD (Rs. 1,20,10,194/- at an exchange rate of Rs. 63/- per USD) was claimed.

5. The respondent Nos. 1 and 2 resisted the claim of the applicant by filing written statement.

6. After appraisal of the evidence led by the applicant and respondent Nos. 1 and 2 and the documents tendered for his perusal, the learned Commissioner was persuaded to record the findings that the learned Commissioner had jurisdiction to entertain and decide the application; the employer-employee relationship between the applicant and respondents was established; it was proved that the applicant was getting wages of 1700 USD per month and the applicant sustained injury in the course of employment and on account of disability arising there from, the applicant lost 100% earning capacity.

7. The learned Commissioner, however, held that the applicant was entitled to compensation in accordance with the provisions of the Act, 1923 and not in terms of the TCC Agreement and thus determined quantum of compensation in accordance with the provisions contained in section 4 of the Act, 1923 and awarded Rs. 8,97,120/-. The respondents were further directed to pay interest on the said amount at the rate of 12% p.a. and also penalty equivalent to 50% of amount of compensation.

8. Being aggrieved by and dissatisfied with the aforesaid determination, under which learned Commissioner declined to award compensation in accordance with the scale provided in the TCC Agreement, the applicant is in appeal.

9. I have heard Mr. Devendranath Joshi, learned counsel for t