ivil Appeal No 850 of 1966
870 Appeal by special leave from the judgment and decree dated March 5 1965 of the Bombay High Court in First Appeal No of 1963
section Sorabli Bhuvanesh Kumari and JB Dadachanji for the appellant
The respondent did not appear
The Judgment of the Court was delivered by Ramaswami J
This appeal is brought by special leave from the judgment of the
Bombay High Court dated March 5 1965 in Appeal No 415 of 1963
Shalkh Hassan Ibrahim hereinafter referred to as the missing seaman was employed as a deck hand a seaman of category II on the ship sections Dwarka which is owned by the British India Steam Navigation Company Limited of which the appellant is the Agent
The Medical Log Book of the shop shows that on December 13 1961 the missing seaman complained of pain in the chest and was therefore examined but nothing abnormal was detected clinically
The Medical Officer on board the ship prescribed some tablets for the missing seaman and he reported fit for work on the next day
On December 15 1961 however he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets
The official Log Book of the ship shows that on December 16 1961 when the ship was in the Persian Gulf the missing seaman was seen near the bridge of the ship at about 230 am
He was sent back but at 3 am he was seen on the Tween Deck when he told a seaman on duty that he was going to bed
At 615 am he was found missing and a search was undertaken
At 735 am a radio message was sent by the Master of the ship
saying One seaman missing between Khoramshahr and Ashar STOP May be in river STOP All ships please keep look out
The ship arrived alongside Ashar Jetty at 8 am when a representative of Messrs Gray Mackenzie  Co Ltd who are the agents for the British India Steanm Navigation Co Ltd in the Persian Gulf was informed that the said seaman was missing
The representative in turn passed on the information to the local police and the Port authorities
The last entry in the log book shows that at 4 pm an inquiry was held on board the ship by the local police and the British Consul General
On a suggestion made by the latter the personal effects of the missing seaman were checked and sealed by the Consulate authorities for being deposited with the Shipping Master Bombay
On February 20 1962 the respondent filed an application under section 3 of the Workmen s Compensation Act Central Act 18 of 1923 hereinafter referred to as the Act claiming compensation of Rs 4810 for the death of his son the missing seaman which 871 according to him occurred on account of a personal injury caused by an accident arising out of and in the course of his employment
The appellant put in a written statement on April 26 1962 and disputed the respondent s claim on the ground that there was nothing to show that the seaman was in fact dead that the death if any was not caused in the course of the employment that in any event the death could not be said to have been caused by an accident which arose out of employment and that the probabilities were more consistent with a suicidal death than with an accidental death
But the appellant did not lead oral evidence at the trial of the claim
The Additional Commissioner however inspected the ship on January 23 1963
By his judgment dated February 6 1963 held that there was no evidence to show that the seaman was dead and there was in any event no evidence to justify the inference that the death of the missing seaman was caused by an accident which arose out of employment
In the course of his judgment the Additional Commissioner observed as follows Now in the present case what is the evidence before me  It is argued on behalf of applicant that I must presume that the man fell down accidentally
From which place did he fall down  How did he fall down  At what time he fell down  Why was he at the time at the place from which he fell down  All these questions it is impossible to answer
Am I to decide them in favour of the applicant simply because his missing  occurs in the course of his employment  In my opinion there is absolutely no material before me to come to a conclusion and connect the man s disappearance with an accident
There are too many missing links
Evidence does not show that it was a stormy night
I had visited the ship seen the position of the Bridge and deck and there was a bulwark more than 312 feet
The man was not on duty
Nobody saw him at the so called place of accident
In these circumstances I am unable to draw any presumption or conclusion that the man is dead or that his death was due to an accident arising out of his employment
Such a conclusion presumption or inference would be only speculative and unwarranted by any principle of judicial assessment of evidence or permissible presumptions
 The Additional Commissioner however negatived the contention of appellant that the death if any was caused by the seaman s voluntary act
The respondent preferred an appeal on April 17 1963 to the High Court from the judgment of the Additional Commissioner dated February 6 1963
At the hearing of the appeal it was agreed that the appellant would pay to the 872 respondent a sum of Rs 2000 as and by way of compensation in any event and irrespective of the result of the appeal
The respondent agreed to accept the sum of Rs 2000 
But in view of the serious and important nature of the issues
the High Court proceeded to decide the questions of law arising in the appeal
By his judgment dated March 5 1965 Chandrachud J allowed the appeal and reversed the judgment of the Additional Commissioner and granted the application for compensation
The view taken by Chandrachud J was that the death of the seaman in this case must be held to have occurred on account of an accident which arose out of his employment
The principal question that arises in this appeal is whether the accident arose in the course of employment and whether it arose out of employment within the meaning of section 3 of the Act which states 1 If personal injury is caused to a workman by accident arising out of and in the course of his employment his employer shall be liable to pay compensation in accordance with the provisions of this Chapter Provided that the employer shall not be so liable a in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days b in respect of any injury not resulting in death caused by an accident which is directly attributable i the workman having been at the time thereof under the
influence of drink or drugs or ii the willful disobedience of the workman to an order expressly given or to a rule expressly framed for the purpose of securing the safety of workmen or iii the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen
To come within the Act the injury by accident must arise both out of and in the course
of employment
The words in the course of the employment mean in the course of the work which the workman is employed to do and which is incidental to it
 The words arising out of employment are understood to mean that during the course
of the employment injury has resulted from some risk incidental to the duties of the service which unless engaged in the duty owing to the master it is reasonable 873 to believe the workman would not otherwise have suffered In other words there must be a causal relationship between the accident and the employment
The expression arising out of employment is again not confined to the mere nature of the employment
The expression applies to employment as such to its nature its conditions its obligations and its incidents
If by reason of any of these factors the workman is brought within the scene of special danger the injury would be one which arises out of employment 
To put it differently if the accident had occurred on account of a risk which is an incident of the employment the claim for compensation must succeed unless of course the workman has exposed himself to an added peril by his own imprudent act
In Lancashire and Yorkshire Railway Co vs Highley1 Lord Sumner laid down the following test for determining whether an accident arose out of the employment There is however in my opinion one test which is always at any rate applicable because it arises upon the very words of the statute and it is generally of some real assistance
It is this Was it part of the injured person s employment to hazard to suffer or to do that which caused his injury  If yea the accident arose out of his employment
If nay it did not because what it was not part of the employment to hazard to suffer or to do cannot well be the cause of an accident arising out of the employment
To ask if the cause of the was within the sphere of the employment or was one of the ordinary risks of the employment or reasonably incidental to the employment or conversely was an added peril and outside the sphere of the employment are all different ways of asking whether it was a part of his
employment that the workman should have acted as he was
acting or should have been in the position in which he was whereby in the course of that employment he sustained injury
 In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment
But this does not mean that a workman who comes to court for relief must necessarily prove it by direct evidence
Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference
On the one hand the Commissioner must not surmise conjecture or guess on the other hand he may draw an inference from the proved facts so long as it is a legitimate inference
It is of course impossible to
lay down any rule as to the degree of 1 874 proof which is sufficient to justify an inference being drawn but  the evidence must be such as would induce a reasonable man to draw it
Lord Birkenhead LC in Lancaster vs Blackwell Colliery Co Ltd  1  observed If the facts which are proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture then of course the applicant fails to prove his case because it is plain that the onus in these matters is upon the applicant
But where the known facts are not equally consistent where there is ground for comparing and balancing probabilities as to their respective value and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends then the Arbitrator is justified in drawing an inference in his favour In cases of the unexplained drowning of seamen the question has often arisen as to whether or not there was evidence to justify the inference drawn by the Arbitrator that the seaman met his death through accident arising out of and in the course of his employment
The question was considered by the House of Lords in Kerr or Lendrum vs Ayr Steam Shipping Co Ltda in which the steward of a ship which was in harbour was lying in his bunk when he was told by the captain to prepare tea for the crew
He was shortly afterwards missing and the next day his dead body dressed  in his underclothes only was found in the sea near the ship
The bulwarks were 3 feet 5 inches above the deck
The steward was a sober man but was subject to nausea
Murder and suicide were negatived by the Arbitrator who drew the inference that the deceased left his bunk went on deck and accidentally fell overboard and was drowned
He accordingly held that the accident arose out of and in the course of his employment as steward
The Court of Sessions reversed his decision on the ground that there was no evidence to support it
The House of Lords Earl Lorebum Lord Shaw of Dunfermline and Lord Parmoor Lord Dunedin and Lord Atkinson dissenting however upheld the decision of the Arbitrator on the ground that although upon the evidence it was open to him to have taken a different view his conclusion was such as a reasonable man could reach
I should state my main proposition thus said Lord Shaw of Dunfermline that we in this House are not considering whether we would have come to the same conclusion upon the facts stated as that at which the 1 1918 WC Rep 345
2 1195 AC 217
875 learned Arbitrator has arrived
Our duty is a very different a strikingly different one
It is to consider whether the Arbitrator appointed to be the judge of the facts and having the advantage of hearing and seeing the witnesses has come to a conclusion which could not have been reached by a reasonable man Lord Parmoor said I wish to express no opinion either way on the reasonableness of the finding in itself as long as it is possible finding for a reasonable man whilst Earl Loreburn observed that they should regard these awards in a very broad way and constantly remember that they were not the tribunal to decide In the case of unexplained drowning of seamen the English Court of Appeal have drawn some very fine distinctions
In Bender vs Owners of SS Zent1 the chief cook on board a steamship fell overboard and was drowned while the ship was on the high seas
He was seen at 525 am looking over the side 530 am was his usual time for turning out and he was last seen at 535 am going aft
The weather was line at the time it was daylight the ship was steady and there was no suggestion that the duties of the deceased would lead him into any danger
There was a 4 ft rail and bulwark all round the ship and there was no evidence to show how the deceased had fallen overboard
The County Court Judge drew the inference that his death was caused by an accident arising out of and in the course of his employment but the Court of Appeal held that there was no evidence to warrant such inference Cozens Hardy MR pointing out that although it was conceivable that he might have been engaged on some ship s work it was equally conceivable that he had been larking or had committed suicide
Bender s case1 was followed in Marshall vs Owners of SS Wild Rose2 where an engineer came on board his vessel which was laying in a harbour basin shortly after 10 pm Steam had to be got up by midnight
He went below and took off his clothes except his trousers shirt and socks
It was a very hot night and he subsequently came out of his berth saying that he was going on deck for a breath of fresh air
Next morning his dead body was found at the side of the vessel just under the place where the men usually sat
It was held by the Court of Appeal reversing the County Court Judge that there was no legitimate ground for drawing the inference that the engineer died from an accident arising out of his employment
Farwell LJ said If an ordinary sailor is a member of the watch and is on duty during the night and disappears the in ference might fairly be drawn that he died from an acci 1 2 1909 2 KB 46
876 dent arising out of his employment
But if on the other hand he was not a member of the watch and was down below and came up on deck when he was not required for the purpose of any duty to be performed on deck and disappeared without our knowing anything else it seems to me that there is absolutely nothing from which any Court could draw the inference that he died from an accident arising out of his employment This decision was upheld by the House of Lords by a majority of one Lord Loreburn LC and Lord James of Hereford dissenting Lord Shaw of Dunfermline saying The facts in every case may leave here and there a hiatus which only inference can fill
But in the present case my Lords the name of inference may be apt to be given to what is pure conjecture
What did the sailor Marshall do when he left his berth and went on deck  Nobody knows
All is conjecture
Did he jump overboard walk overboard or fall overboard  One can infer nothing all is conjecture
Was there an accident at all or how and why did the deceased unhappily meet his fate 
There can be in my view nothing dignified with the name of an inference on this subject but again only conjecture
 But in Rice vs Owner of Ship Swansea Vale 1 where the deceased was a seaman in the strict sense of the term that is to say one whose duty it was to work on deck and not a ship is cook as in Bender s case nor an engineer as in Marshall s case a different conclusion was arrived at
In that case the chief officer of a vessel who was on duty on deck disappeared from the ship in broad daylight
No one saw him fall overboard but there was evidence that not long before he had complained of headache and giddiness
It was held Buckley LJ dissenting that there was evidence from which the Court might infer that he fell overboard from an accident arising out of and in the course of his employment
The cases of Bender and Marshall were distinguished as in those cases the men s duties were below deck and at the time they lost their lives they had certainly no duties which called them on the deck
In the House of Lords Lord Lorebum LC having discussed the various things that might have happened said The other alternatives were suicide or murder
If you weigh the probabilities one way or the other the probabilities are distinctly greater that this man perished through an accident arising out of and in the course of his employment
 1 877 In Gatton vs Limerick Steamship Co1 a night watchman on board a vessel whose hours of duty were from 7 pm to 7 am when he awoke the crew was last seen on board at 6 am but on that morning he did not awake the crew
His cap was
found on the deck and his body was found in the harbour some months afterwards
The County Judge held that it was not proved that the accident arose out of  his employment and the Court of Appeal on the ground that this was a finding of fact with evidence to support it refused to interfere
Holmes LJ however stated that the County Court Judge might have arrived at a different conclusion of fact whilst Cherry LJ said that if he had been the Arbitrator he would have found that the deceased had met with his death by accident arising out of and in the course  of his employment
In another similar case Rourke vs Mold  Co 2 a seaman disappeared during his spell of duty at the wheel in the wheel house in the centre of the flying deck and was not afterwards seen
The night was rough the sea choppy but the vessel was steady
The flying deck was
protected by a rail
There was no evidence as to how the man met his death and in spite of the presumption against suicide the County Court Judge was unable to draw the inference that the death was due to accident
It was held by the Court of Appeal that in the circumstances the conclusion of the County Court Judge was right
At p 321 of the Report O Brien LC said In this case we cannot interfere with the finding of the County Court Judge
The post of duty of the deceased was at the wheel and to steer a certain course until ordered to change it but nobody knows how the man disappeared or how he came to leave his post
It is conceivable that he may have fallen overboard in such circumstances as to entitle his widow to claim compensation on the ground that his death was due to an accident arising out of and in the course of the employment but the onus of proof is on the applicant
That onus is not discharged by asserting that we must assume that the deceased was at his allotted employment when he fell overboard although the natural inference would be that he was not and that we should then draw the conclusion that the accident arose out of and in the course of the employment
 In Simpson VLM  section Railway Co3 Lord Tomlin reviewed all the previous authorities and stated the principle as follows   from these passages to which I have referred I think this rule may be deduced for application to 1 2 1917 2 It
Rep 318 at 321
3 878 that class of case which may be called unexplained accident cases namely that where me evidence establishes that in the course of his employment the workman properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk it is legitimate notwithstanding the absence of evidence as to the immediate circumstances of the accident to attribute the accident to that risk and to hold that the accident arose out of the employment but the inference as to the origin of the accident may be displaced by evidence tending to show that the accident was due to some action of the workman outside the scope of the employment
Such a rule so stated seems to me to be consistent with all the previous decisions of your Lordships  House including Marshall vs Owners of SS Wild Rose1 where there was some evidence from Which it could be inferred that the seaman who fell overboard had by action of his own outside his employment added a peril to his position
 In the same case Lord Thankerton expressed the principle in similar language
Lord Thankerton said at p 371 of the Report   the principle to be applied in such cases is that if the accident is shown to have happened while the deceased was in the course of his employment and at a place where he was discharging the duties of his employment and the accident is capable of being attributed to a risk which is ordinarily inherent in the discharge of such duties the arbitrator is entitled to infer in the absence of any evidence tending to an opposite conclusion that the accident arose out of the employment In a later case in the House of Lords Rosen vs
SS Querous Owners Lord Buckmaster explained that in that passage in Lord Thankerton s speech in Simpson s case2 the place referred to was not the exact spot at which the accident may have occurred but meant in that case the train on which the workman was traveling and in the later case in the House of Lords the ship on which the workman was employed
The same principle applies in Indian law as the language of section 3 of the Indian Act is identical with section 1 of the English Workmen s Compensation Act of 1925
What are the facts found in the present case  Shaikh Hassan Ibrahim was employed as a deck hand a seaman of category II on the ship
The medical log book of the ship showed that on 1 2 879 December 13 1961 Shaikh Hassan complained of pain in the chest and was therefore examined but nothing abnormal was detected clinically
The Medical Officer on board the ship prescribed some tablets for Shaikh Hassan and he reported fit for work on the next day
On the 15th however he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets
The official log book of the ship shows that on the 16th when the ship was in the Persian Gulf Shaikh Hassan was seen near the bridge of the ship at about 230 am
He was sent back but at 3 am he was seen on the Tween Deck when he told a seaman on duty that he was going to bed
At 615 am he was found missing and a search was undertaken
The dead body however was not found either on that day or later on
The evidence does not show that it was a stormy night
The Commissioner made a local inspection of the ship and saw the position of the bridge and deck and found that there was a bulwark more than 312 feet
Nobody saw the missing seaman at the so called place of accident
The Additional Commissioner held that there was no material for holding that the death of the seaman took place on account of an accident which arose out of his
employment
In our opinion the Additional Commissioner did not commit any error of law in reaching his finding and the High Court was not justified in reversing it
For these reasons we hold that this appeal must be allowed and the judgment of the Bombay High Court dated March 5 1965 must set be aside
RKPS Appeal allowed


Summary:
S who was employed as a deck hand on a ship was found missing on board
The respondent filed an application under section 3 of the Workmen s Compensation Act claiming compensation for the death of S which according to him occurred on account of a personal injury caused by an accident arising out of and in the course of employment
The Additional Commissioner held that there was no evidence to show that the seaman was dead and there was in any event no evidence to justify the inference that the death of the seaman was caused by an accident which arose out of employment
The High Court reversed the judgment of the Additional Commissioner
In appeal to this Court HELD The Additional Commissioner did not commit any error of law in reaching his findings and the High Court was not justified in reversing them
To come within the Act the injury by accident must arise both out of and in the course of employment
The words in the course of employment mean in the course of work which the workman is employed to do and which is incidental to it
The words arising out of the employment are understood to mean that during the course of the employment injury has resulted from some risk incidental to the duties of the service which unless engaged in the duty owing to the master it is reasonable to believe the workman would not otherwise have suffered
The expression is not confined to the mere nature of the employment but applies to the employment as such to its nature its conditions its obligations and its incidents
872 H Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference
On the one hand the Commissioner must not surmise conjecture or guess on the other hand he may draw an inference from the proved facts so long as it is a legitimate inference
The evidence must be such as would induce a reasonable man to draw the inference
873 H Lancashire and Yorkshire Railway Co vs Highley  Lancaster vs Blackwell Colliery Co Ltd 1918 WC Rep 345 Kerr or Lendrum vs Ayr Steam Shipping Ca
Ltd  Bender vs Owners of SS Zeni 1909 2 KB 41 Marshall vs Owners of SS Wild Rose  Rice vs Owners of Ship Swansea Vale 1912 AC 238 Gatton vs Limerick Steamship Co  Rourke vs Hold  Co 1917 2 Ir
Rep 318 at 321 and Simpson vs LM  section Railway Co  referred