T AND J BROCKLEBANK LTD Vs. NOOR AHMODE

JUDGEMENT

(1.) This is an appeal from the decision and decree passed by the learned Subordinate Judge, 24-Parganas, dated 31 July 1934, by defendant 1 in a suit brought by the plaintiff as a pauper, for damages or compensation for breach of contract, and also for tort or negligence, valued at Rs. 20,500. The plaintiff also preferred cross-objection against the said decision and decree which allowed him Rs. 1,500 only, by way of compensation. The plaintiff, a man aged 26 years, was employed as a deck crew to serve on board the S.S. "Markhar" owned by defendant 1, T. and J. Brocklebank Ltd. on terms and conditions mentioned in an agreement entered between the plaintiff and defendant 1, on 16 August 1933, under the provisions of the Indian Merchant Shipping Act. It was provided by the agreement that the plaintiff shall not serve as a crew on board the ship between 1 October in one year and 31 March in the succeeding year, on voyages to any parts on the coast of America north of 38 degrees north latitude. The case of the plaintiff stated in his plaint was that the Master of the ship, in violation of the terms of the agreement aforesaid, compelled him to render service of a deck crew against his will on voyages to parts on the east coast of America north of the 38 degrees north latitude, within the prohibited period with the result that he fell ill. The serious illness of the plaintiff resulted from and was caused by the forced service referred to above. The plaintiff asserted that instead of sending him to hospital for medical treatment for which he prayed, the Master of the ship, defendant 3, kept him on board the ship at the risk of life, health and other earthly interest and welfare, against all human consideration till the S.S. " Markhar" reached Avonmouth, at which place the plaintiff was examined by a doctor, and according to the diagnosis of the doctor, the plaintiff was suffering from an advanced stage of pthisis. The plaintiff was thereupon sent to Hamgreen Sanitorium and Hospital on 3 November 1933, from which he was discharged on 28 December 1933. The plaintiff stated that inasmuch as the aforesaid state of health culminating in a complete breakdown in health, body and mind, and bringing him to the verge of death was caused while he was in the employment of the defendants and was engaged in their service, by the illegal, improper and partly wilful and partly negligent acts done by defendant 3, the Master of the vessel S.S. "Markhar", who was a servant of defendant 1, in violation of the terms and conditions of the agreement of 16th August 1933, and against all human consideration, culminating in severe breach of duty, defendant 1 was liable therefore; and the plaintiff was entitled to get from defendant 1 compensation for the loss or damages caused to the plaintiff in health, body and mind and money spent and also for worries both mental and physical. The amount of compensation was assessed at Rs. 20,500 made up of Rs. 19,000, the loss of earning as a seaman up to the age of 65,. with the prospects of the service; Rs. 500 in the shape of medical and other incidental expenses; and Rs. 1,000 on account of worries.

(2.) In answer to interrogatories supplied by defendant 1, the plaintiff stated that he was attacked with severe cold about the middle of October 1933. Since then he all along prayed and pressed for being medically treated at all the ports which were touched by the S.S. "Markhar" in course of her return voyages from New York, until the ship reached Avonmouth, in the beginning of November 1933. Defendant 1, the only appellant in this appeal, resisted the plaintiff's claim in the suit, on denial of the main allegations of fact contained in the plaint. It was asserted by the defendant in the written statement filed in Court, that as the plaintiff was employed from 20 August 1933, for a period not exceeding twelve months, there was no violation of any condition of the agreement of service; that the plaintiff ceased to render service on or about 18 September 1933, when the ship was in the vicinity of Gibraltar, owing to a cold which he had contracted, and continued to be off duty so long as he was on board the ship. The plaintiff was examined by doctors at ports of call; but at no time was the plaintiff's case considered to be hospital case, and he could not therefore be sent to a hospital at any port of call, before the ship reached Avonmouth. When the ship reached Avonmouth on 3 November 1933, the plaintiff was examined by a doctor who certified that he was suffering from advanced pthiais and was removed to the Hamgreen Hospital. It was asserted by defendant 1 that the Master of the ship took as much care of the plain. tiff as was possible under the circumstances, and the Master was not guilty of any breach of duty. There could not therefore be any claim for damages against any of the defendants in the suit. On the pleadings of the parties, three specific issues that were raised for determination in the case are set out below: Issue 3. - Did defendant 3 in violation of the terms of the agreement dated 16 August, 1933, compel the plaintiff to render active service as a deck laskar on board Section 8, "Markhar," in its voyage to ports of the east coast of America, north of 33 degrees north latitude, after 30 September 1933? Issue 4, Did defendant 3 commit any breach of duty to the plaintiff, which accused the latter loss or damage? Issue 5. Are the defendants or any one or more of them liable to pay damages or compensation to the plaintiff either for breach of contract or for tort or negligence or for both? If so, for what amount?.

(3.) The Judge in the trial Court came to the decision on evidence that defendant 2 Grahams Trading Company (India) Ltd. Agents of T. & J. Brocklebank Ltd. (defendant 1) and defendant 3 (the Master of the ship S.S. "Markhar") were not guilty of negligence. The plaintiff was put off his duty, and never was on duty again, so long as he was on board the ship. Defendant 3 did not compel the plaintiff to render active service as a deck laskar on board the S.S. "Markhar" on its voyage to ports on the east cost of America, north of 38 degrees north latitude, after 30 September 1933. The trial Judge also came to the conclusion that defendant 3 did not commit any breach of duty to the plaintiff which caused the latter loss. The Judge in the Court below was however of opinion that the medical examination of the plaintiff was defective; the doctors at ports of call before the ship reached Avonmouth ought to have detected at least the onset of pthisis. The conclusion was that the plaintiff was not carefully examined or the doctor kept silent over the fell disease. According to the Judge, a master was negligent for his doctor servants. The plaintiff was in that view of the case entitled to get some damages. The claim as made in the plaint was considered to be adventitious, based on uncertainty, and was absurd. The claim was allowed to the extent of Rs. 1,500, as medical and other incidental expenses impending death of the plaintiff which was, according to the trial Court, not far off, and for mental pain, worries and anxieties.