JUDGMENT :

1. This Appeal is filed by the Employer Shipping Corporation of India Limited under Section 30 of the Workmen’s Compensation Act, 1923, as it then was (hereinafter “the said Act” for short) challenging the Judgment and Order dated 13.02.1996 passed By 2nd Additional Commissioner for Workmen’s Compensation, Mumbai in Application No. (WCA) 612/C-140 of 1992. By the said impugned Judgment and Order, the Appellant/Employer is directed to pay to the Respondent/Claimant (now deceased) a compensation of Rs. 3,16,688/- along with interest @ 6% per annum from 14.07.1991, and also pay a sum of Rs. 75,000/- by way of penalty and cost of Rs.1000/-.

CASE

2. Few facts necessary for disposal of this Appeal are as under. The Respondent/Original Claimant - one Mr. Dasu M. Kutty claimed compensation on account of injury sustained by him arising out of and in the course of his employment with the Appellant-Employer/Original Opponent. The Respondent/Claimant was working as a seaman (Deck Sarang) with the Appellant/Employer since 1958. He was required to perform hard and strenuous work of painting, chipping, oiling, cleaning and supervisory work and even overtime. After he had already rendered long 32 years of service, on 14.01.1991, when he was on the duty on a ship, he suffered chest pain, which was reported. He continued to work and only when the ship reached Madras on 15.06.1991, he was admitted in Willington Nursing Home on medical ground and thereafter was sent to Mumbai for further treatment on 18.07.1991.

3. The Respondent/Claimant underwent by-pass surgery and was thereafter declared medically unfit on 16.12.1991 for sea-services. It is the case of the Claimant that before joining the ship he was examined by the Doctor of the Appellant/Employer and was found fit for services. It is his case that even assuming that he was already suffering from heart disease, it got accelerated and aggravated by his duties performed on the ship including his laborious and strenuous job work. It is his case that his unfitness after by-pass surgery for sea-services amounts to permanent disablement. It is his case that his services were governed by N.M.B. Agreement (National Maritime Board Agreement) and under the said agreement he was entitled to receive fixed amount towards permanent disablement as a lump sum compensation. He has claimed it.

4. The Appellant/Employer filed written statement and contended that there was no accident arising out of or during the course of employment. It denied for want of knowledge that the Respondent/Claimant was serving with the Appellant/Employer since 1958. It further denied that the Claimant was required to perform hard and strenuous work as alleged. It denied that the Claimant felt chest pain on the ship, but continued to work. It further denied that the disease suffered by Claimant was aggravated or accelerated by the duties performed on the ship. It contended that the disability suffered by the Claimant is not permanent or 100% in nature and therefore denied the claim.

5. The learned Commissioner for Workmen’s Compensation framed issues on the aforesaid rival claims and heard the matter finally. The Claimant examined himself. The Employer examined two witnesses, one Dr. Modi who was Chief Medical Officer and another - its Manager. After hearing both sides, and on appreciation of oral as well as documentary evidence, the learned Commissioner for Workmen’s Compensation, has passed impugned Judgment and Order. It appears that during pendency of the proceedings, the Respondent/Original Claimant expired and as on today, his widow and daughter are still pursuing the case.

SUBMISSIONS

6. Heard learned Counsel for the Appellant/Employer and learned Counsel for the present Respondents, who are legal heirs of Original Claimant.

7. Learned Counsel for the Appellant/Employer submitted that the amount awarded under the impugned Order is not payable because there is no total / permanent disablement in the present case. To support