Case: Mackinnon Mackenzie &amp; Co. Pvt. Ltd Vs. Ibrahim Mahommed Issak

321 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 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 Country 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 Country Court Judge was right. At p. 321 of the Report OBrien, L. C. said."In this case we cannot interfere with the finding of the Country 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."10. In Simpson v. L. M. and S. Rly. Co., 1931 AC 351 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 deducted for application to that class of case which may be called unexplained accident cases-namely, that where the evidence establishes that in the course of his employment the workman was 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 1909-2 KB 46 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."11. In a later case in the House of Lords, Rosen v. S. S. "Quercus" (Owners) (1933 AC 494) Lord Buckmaster explained that in that passage in Lord Thankertons speech in Simpons case, 1931AC 351 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 travelling 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 S. 3 of the Indian Act is identical with Section 1 of the English Workmens Compensation Act of 1935.12. 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 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 2.20 a.m. He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed. At 6.15 a.m. 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 3 1/2 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. 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 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 those factors the workman is brought within the zone 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 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 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.In cases of the unexplained drowning of seaman, 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 Kerror Lendrum v. Ayr Steam Shipping Co., 1915 ACIn a later case in the House of Lords, Rosenv. S. S. "Quercus" (Owners) (1933 AC 494)Lord Buckmaster explained that in that passage in Lord Thankertons speech in Simpons case, 1931AC 351 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 travelling 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 S. 3 of the Indian Act is identical with Section 1 of the English Workmens Compensation Act of 1935.What are the facts found in the present case? Shaikh Hassan Ibrahim was employed as aa seaman of category II on the ship. The medical log book of the ship showed that on 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 2.20 a.m. He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed. At 6.15 a.m. 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 3 1/2 feet. Nobody saw the missing seaman at theplace 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.