Full Judgment Text
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PETITIONER:
MACKINNON MACKENZIE & CO. PVT. LTD.
Vs.
RESPONDENT:
IBRAHIM MAHOMMED ISSAK
DATE OF JUDGMENT:
14/08/1969
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C. (CJ)
GROVER, A.N.
CITATION:
1970 AIR 1906 1970 SCR (1) 869
1969 SCC (2) 607
CITATOR INFO :
RF 1991 SC1771 (26)
ACT:
Workmen’s Compensation Act 18 of 1923, s. 3--"In the
course employment"--"Arising out of employment", meaning of.
HEADNOTE:
S who was employed as a deck-hand on a ship was found
missing on board. The respondent filed an application under
s. 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
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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. v. Highley, [1917]
A.C. 352, Lancaster v. Blackwell Colliery Co. Ltd. 1918 W.C.
Rep. 345, Kerr or Lendrum v. Ayr Steam Shipping Ca. Ltd.
[1915] A.C. 217, Bender v. Owners of S.S. "Zeni" [1909] ’2
K.B. 41, Marshall v. Owners of S.S. "Wild Rose", [1909] 2
K.B. 46, Rice v. Owners of Ship "Swansea Vale", [1912] A.C.
238, Gatton v. Limerick Steamship Co. [1910] 2 I.R. 561,
Rourke v. Hold & Co. [1917] 2 Ir. Rep. 318 at 321 and
Simpson v. L.M. & S. Railway Co. [1931] A.C. 351, referred
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil 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.
S. Sorabli, Bhuvanesh Kumari and J.B. 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
fro.m 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 ss. "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 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 look out". The ship
arrived alongside Ashar Jetty at 8 a.m. 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 p.m. 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 s. 3 of
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the Workmen’s Compensation Act (Central Act 18 of 1923)
(hereinafter referred to as the Act) claiming compensation
of Rs. 4,810/- 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 31/2 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 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. 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
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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’s.
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. v. Highley(1) 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,
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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) [1917] A.C. 352.
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 L.C. in
Lancaster v. 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 v. Ayr
Steam Shipping Co. Ltd.(a) in which the steward of a ship,
which was in harbour, was lying in his bunk, when he was
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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 W.C. Rep. 345. (2) [1195]
A.C. 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 v. Owners of S.S. "Zent"(1) the
chief cook on board a steamship fell overboard and was
drowned while the ship was on the high seas. He was seen at
5.25 a.m. looking over the side; 5.30 a.m. was his usual
time for turning out; and he was last seen at 5.35 a.m.
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, M.R. 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 case(1) was
followed in Marshall v. Owners of S.S. "Wild Rose(2) where
an engineer came on board his vessel, which was laying in a
harbour basin, shortly after 10 p.m. 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
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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, L.J. 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) [1909] 2 K.B. 41. (2) [1909] 2 K.B.
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, L.C. 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 v. 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, L.J. 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, L.C. 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
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employment."
(1) [1912] A.C. 238.
877
In Gatton v. Limerick Steamship Co.(1) a night watchman
on board a vessel, whose hours of duty were from 7 p.m. to
7 a.m. when he awoke the crew, was last seen on board at 6
a.m. 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, L.J., however, stated that the
County Court Judge might have arrived at a different
conclusion of fact, whilst Cherry, L.J., 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 v. 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, L.C. 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 V.L.M. & S. Railway Co.(3) 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) [1902] 2 I.R. 56f.
(2) [1917] 2 It. Rep. 318 at 321.
(3) [1931] A.C. 351.
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
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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
v. Owners of S.S. Wild Rose(1) 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 v.S.S.
"Querous" :(Owners) Lord Buckmaster explained that in
that passage in Lord Thankerton’s speech in Simpson’s
case(2) 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 s. 3 of the Indian Act is identical
with s. 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) [1909] 2 K.B. 46. (2) [1931] A.C. 351.
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 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. 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
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bulwark more than 31/2 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. 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.
R.K.P.S. Appeal allowed.
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880