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

2. Shaikh Hassan Ibrahim (hereinafter referred to as the missing seaman) employed as a deck-hand, a seaman of category II on the ship s. s. "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 ship 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 2-30 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. At 7-35 a.m. 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 lookout". The ship arrived alongside Ashar Jetty at 8. A.m. when a representative of Messrs. Gray Mackenzie and Co. Ltd., who are the agents for the British India Steam 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. p.m. an inquiry was held on board the ship by the local police and the British Counsel-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 Workmens Compensation Act (Central Act 18 of 1923) (hereinafter referred to as the Act) claiming compensation of Rs. 4,000 for the death of his son, the missing seaman, which 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 respondents 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.3. 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 asin 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 mans 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 3 1/2 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 conclusive presumption or inference would be only speculative and unwarranted by any principle of judicial assessment of evidence or permissibleAdditional Commissioner, however, negatived the contention of the appellant that the death, if any, was caused by the seamans 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 respondent a sum of Rs. 2,000 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. 2,000. 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.

Reasoning: 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.