MACKINNON MACKENZIE & CO. PVT. LTD. versus IBRAHIM MAHOMMED ISSAK

MACKINNON MACKENZIE & CO. PVT. LTD.

IBRAHIM MAHOl\'IMED ISSAK

August 14, 1969

[J.C. SHAH, ACTING C.J., V. RAMASWAW AKD A. N. GRO'TF, JJ.]

JVurk1nen's Compensation Act 18 of 1923, s, 3-"ln 11'1e ( ~-u:·.-:e of c1np!oy1nent"-"Arising out of e1np!oyn1ent", nienning of.

S \Vho was cn1ploycd as deck-hmid on ~~ ~bip was found n~j~.'-ing on boc.rd. The respondent filed an application under s. 3 of the \'1'orkmen's Con1pcnsation Act claiming compens~tion for t?i~ death of S which accord-ing: to him occurred on account of personal injury caused hy an accident arising out of and irf the course of c1np:oymcnt. The Additivn;:il C0n1-missioner held that there was no evidence to .,now that the ~c8_n1an was C:cad and there was in any event no evidence to justify the infe;cnce that tbc death of the sea,man was caused by an accident which <1ro~e out of employment. The }{igh Court reversed the judgment of the :\Jditional Commissioner. In appeal to, this Cou11,

HELD : The Additional Commis'iioner di<l not commit nn-.· error of htw in reaching his findings and the High Court was not justifictl jn revers-ing them.

To come within the Act the injury by accident must arise hoth out of and in the course. of employn1ent. The words "in the course of employ-ment" mean in tlJe course of work which the \VOrkman is employed to do and which is incidenta:l to it. The words "arising out of the employment" are understood to mean that during the course of the employment, injury h<•S resulted from ·SOJlle risk incidental to the duties of the service, which, unless engaged in the duty O\\'ing to the ma~tcr, it is reasonable to believe the workman would.,Jlot otherwise have suffered. The expres:;ion is not confined to the mete: liature of the employment but applies to the employ· ment as such-to its:nature, its conditions, its ob1igations and it<; incidents. f872 HJ

Although the On1,1s of proving t'hat the injury by accident arose both out of and in the course of employment rests upon the app1icant these essentials may be inferred when the facts proved justify the inference. l1n the one hand the Commissioner must not surmise, conjecture or guess~ on the other band he may draw an infe'rence from the proved facts so long as it is Jegitim.ate inference. The evidence must be such ;,, would induce reasonable tnan to draw the inference. [873 HJ

Lancashire and Yorkshire Railway Co. v. lliRhley, [1917) /\.C. 352, Lancaster v. Blackwell Colliery Co. Ltd. 1918 W.C. Rep. 345. Kerr nr Lendrun1 v. Ayr Steam Shipping Co. Ltd. [1915] A.C. 217, R1•11der v. Owners of S. S. "Zeni" [1909] 2 K.B. 41, Marshall v. Own,•rs uj S. S. "Wild Rose", [19091 2 K.B. 46, Rice v. Owners of Ship '·swanst•a Vall' .. , [1912] A.C. 238, Ga/Jon v. Limerick Steamship Co. [1910] 2 J.R. 5(·1, Rourke v. Hold & Co. [1917] 2 Ir. Rep. 'HS at 321 and Simrson v. L.M. & S. Roi/way Co. [1931] A.C. 351, referred to.

CIVIL APPELLATE JURISD!CT!O.\l'; Civil Appeal No. 850 of 1966.

Appeal by special leave from the judgment and decree dated

March 5, 1965 of the Bombay High Court in First Appeal No. 415 of 1963.

S. Sorabji, Bl111va11esh Kumari and J. B. Dadachanji, for the appdlaut.

The respondent did not appear.

The Judgment of the Court was delivered by

Ramaswaml, 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.

Shaikh Hassan Ibrahim (hereinafter refcrrea to as the misswg seaman) was employed as deck-baud" seaman of category II on the ship ss. "Dwarka" which is owr.ed 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 Decem-ber 13, 1961 the missing seaman complained of pain in the ctest and wa<, 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 tit 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 Per-sian 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 seaman on duty that he was going to bed. At 6.15 a.m. he was found missing and search was undertaken. At 7.35 a.m. radio message was sent by the Master of the ship saying ; "One seaman missing between Khoram-shahr 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 representative of Messrs Gray, Mackenzie & 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 mis-sing. The representative in turn passed on the information to the local police an<l 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 13r.itish Consul-General. On suggestion made by.the Jatter, the £Crsonal effects of the mis~i!'1g seaman were checke,c.1 and ,~.akll .1>Y the Consulate authont1es for being deposited with ~t~C', %'ipP.lilg Master: Bombay. On February 20, 1 962 the i'espon~~. filed an application under s. 3 of the Workmen's Compensation Ac.t (Central Act 18 of 1923) (hereinafter referred to as the .Act) claiming compensation of Rs. 4,810/- for the de:ith oi his Son, tbe missing seaman, which

according io him, occurred on account of personal injury caused by an accident arising out of and in the course of his employment. The appe1lant put in 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. deat11 could not be said to have been caused by an accident which arose out of employment and that the probabilities were more consistent with suicidal death than with an accidental death.

But the nppellant 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 \\:ts dead and there was in any event no evide:nce to justify the in-ference 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 i the present case what is the evidence before me ? I It is argued on behalf of applicant that I must presu1)1e that the man fell down accidentally. From which jplace did he fall down ? How did he fall down ? At what time he fell down ? Why was he at the time at ie place from which he fell down ? All these questi s, 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 opinioh there is absolutely no material before me to come to conclusion and connect the man's disappear-ance with. an accident. There are too many missing Jinks. Evidence does not show that it was stormy night. I had visited the ship, seen the position of the Bridge and deck and there was bulwark more than 3! feet. The man was not on duty. Nobody saw him at the so-call~ place of accident. In !hese circumstan.ces 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 con-clusion, presumption or inference would be only specu-lative and unwarranted by any principle of judicial ass~ssment of evidence o(· permissible presumptions."

The Additicnal Commissioner, however, negatived the con-tention of appellatit that the death, if any, was caused by the seaman's voluntary act. The respondmt preferred an appeal on April 17, 1963 tq the High Court from the judgment of the Additional Comrtussioner dated February 6, 1963. At the hearing of the appeal it w:is agreed that the appellant would pay to the·

respondent sum of Rs. 2,000/ - as and by way of compensation iri any event and irrespective of the result of the appeal. The res-pondent agreed to accept the sum of Rs. 2,000/-. But in view of the serious and important nature of the i\>ucs the High Court proceeded to decide the questions of law ;irising in the appeal. By his judgment dated March 5, 1965 Chandrachud J., allowed the appeal and reversed the judgment of the Additional Cnmmis-sioner and granted the application for compensation. The view taken by Cl1andrachud J ., was that the death of the seaman in this case must be held to have occurred on account of an acci-dent which arose out of his employment.

The principal question that arises in th\s appeal is whether the accid~nt arose in the course of employment and whether it arose out of employment within the meaning of s. 3 of the Act which states :

whether it

"(I) If personal injury is caused to workman by

accident arising out of and in the course of his emp-loyment, his employer shall be liable to pay compcnsa· lion in accordance with the provisions of this Chapter :

Provided that the employer shall not be so liablc-(a) in respect of any injury which does not result in the total or partial disablement of the workman for period exceeding three days;

(b) in respect of any injury, not resulting in death,

caused by an accident which is directly attributable to--

(i) the workman having been at the time thereof under the influence of drink or drugs, or

Iii) the wilful disobedience of the \rnrkman to an order expressly given, or to rule expressly framed, for the purpose of securing the safety of workmen, or

(iii) the wilful 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 ·ooth 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 ii." The words •·;irising out of employment" are under-;tood to mean that '"during the cours.: of the emplo) men!, injury has re-sulted from some risk incidental to the duties of the service, which anless engaged in the duty owing to the master, it is rcasm1able

to belie·:e the workman would not otherwise have suffered." In other words there must be causal relationship between the acci-dent and the employment. The expression "arising out of em-ployment" is agam not co,.'liined to the mere nature of the em-ployment. 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 risk which is an incident of the em-ployment, 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(') Lord Sumner laid down the following test for determining whether an accider.t "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 [0]uffor, or to do that which caus~ his)njucy/t If yea, tilt 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 aris-ing out of the employment. To ask if the cause of the was within the sphere of the employm~t, or was one of the ordinary risks of the employment, or reason-ably incidental to the employment, or conversely, was an added peril and outside the sphere of the employ-ment, are all different ways of asking whether it was part of his employment, that the workman should have acted as he was acting or should have been in the posi-tion in which he wa~, whereby in the course of that em-ployment 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 workman who comes to court for relief must necessarily prove it by direct evidence. Athough 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 in-ference. 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 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 th~ evidence must be such as would induce reasonable man to draw it. Lord Birkenhead L.C. in l,ancaster v. Blackwell Colliery Co. Ltd., ( [1 ]) observed :

'·If the facts which arc proved give rise to conflict-ing inferences of equal degrees of probability so that the choice between them is mere mailer of conjecture. then, of cour>e, the applicant faib to prove his case because it is plain that the onus in thcs~ 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 reasonable man might hold that the more probable conclusion is that for which tile applicant C'Jn-tends, then the Arbitrator is justified drawing an in-ference in his favour."In cases of (he 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. (2) in which the steward of ship, which was in harbour, was lying in his bunk, when he was told by the ca plain to prepare tea for the crew. He was shortly afterwards mbsing, and the next day his dead body, dressed in his underclothes only, was found in the sea near the ship. The bulwarks were 3 feel 5 inches above the deck. The steward was sober man. but was subject to nausea. Murder and suicide were negatived by the Arbitrator, who drew the in-ference that the deceased left his bunk, went on deck, and acci-dentally 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 Hvuse of Lords (Earl Loreburn, Lord Shaw of Dunfermline and Lord Parmoor, Lord Dunedin and Lord Atkinson dissenting), how-ever, upheld the decision of the Arbitrator on the ground that, although upon the evidence it was open lo him to have taken different view, his conclusion was such as reasonable man could reach.

"I sl1ould state my main proposition 1hus," said Lord Shaw of Dunfermline, "that we in thi.s House are :10t considering whether we would have come to the same conclusion~ upon the facts stated as that at which the

(I) 1918 W.C. Rep. 345. (2) [11951 A.C. 217.

learned Arbitrator has arrived. Our duty is very different, 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 conclusion which could not have been reached by reasonable man." Lord Par-B moor 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 reasonable man," whilst Earl Loreburn obs¢rved that they should regard these awards in very bro~d way and constantly remember that they were not the tribunal to decide." In the case of unexplained cirowning of seamen, the English Court of Appeal have drawn some very fine distinctions. In Bemler v. Owners of S.S. "Zent" (1) the chief cook on board 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 turnir.g out; and he was last seen at 5.35 a.m. going aft. The \•ca'<her was fine at the time, it was daylight, the ship was steady, and there was no sug-gestion that the duties of the deceased would lead him into any danger. There was 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 ~nference 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(') was fol!owed in Marshall v. Owners of S.S. "Wild Rose(') where an engineet came on board his vessel, which was laying in harbour basin, shortly after 1l1 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 very hot night, and he subsequently came out of his berth, saying that he was going on deck for 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 11:\ference that the engineer died from an accident arising out of his employment. Farwell, L.J. said:

"If 8t1l Otdinary sailor is member of the watch and is on duty during the night and disappears, the in-ference might fairly be drawn that be died from an acci-0) [1909] 2 K.B. 41. (1) [1909]2 K.B. 46.

dent au,ing out of his employment. But if, on the other hand, he was not 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."

But if, on the

This decision was upheld by the House of Lords by majority of one (Lord Loreburn, L.C. and Lord James of Hereford dis-senting) Lord Shaw of Dunfermline saying :

"The facts in every case may leave here and there hiatus which only inference can fill. But in the pre-sent 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 un-happily meet his fate? ...... There can be, in my view, nothing dignified with the name of an inference on this subject, but again only cOjlljecture."But in Rice v. Owner of Ship "Swansea Vale"(') where the deceased was "seaman" in the strict sense of the term-that is to say, one whose duty it was to work on deck-and not ship's cook, as in Bender's case, nor an engineer as in Marshall's case, different conclusion was arrived at. In that case the chief officer of 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 over-board from an accident arising out of and in the course of his employment. The cases of Bender and Marshall were distin-guished, 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 Lore burn, L.C. having discussed the various things that might have hap-pened, said : "The other alternatives were suicide or murder. If you weigh the probabilities one way or the other, the probabi-lities are distinctly greater that this man perished through an acci-dent arising out of and in the course of his employment."

In Gatton v. Limerick Steamship Co. ( [1 ]) night watchman on board 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 four:! 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 finding of fact with evidence to supµort it, refused to interfere. Holmes, L.J., however, stated that the County Court Judge might have arrived at different conclusion of fact, whilst Cherry, L.J., said that, if he had been the Arbitrator, he would have found that the deceased h:id met with his death by accident arising out of and in the course of his employment. In another similar case Rourke v. Mold & Co.(') 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 rail. There was no evidence as to how the man met his death and in spite of the presumption .;igainst 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 de-ceased was at the wheel and to steer certain course until ordered to change it, but nobody kmbws 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 com-F pensation on the ground that his death was due to an accident arising out of and in the course of the employ-ment; 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.(') Lord Tomlin review-· ed all the previous authorities and stated the principle as follows: ". . . . . . from these passages to which I have refer-H red I think this rule may be deduced for application to (1) [1902] 2 l.R. 561. (2) [1917] 2 Ir. Rep. 318 at 321. (3) [1931) A.C. 351.

that class of case which may be called unexplained ac-ddent cases--namcly, that where tile evidence estab-lishes that in the course o[ his employment the work-man properly in place to which some ri<:k particular thereto attaches and an accident occurs capable of ex-planation solely by reference to that rbk, ii is legiti-mate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attri-bute the accident to that risk, and to hold that the acci-dent arose out of the employment; but the inference as to the origin of the accident may be displaced by evi-dence tending to show that the accident was due to some action of the workman outside the scope of the employ-ment.

Such rule so slated 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 whdJ it could be inferred that the seaman who foll overboard had by action of his own outside his employment added peril to his position."

Jn the same case Lord Thankerton expressed the principle in similar language. Lord Thankerton said at p. 3 71 of the Rcriort :

" 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 place where he was discharginJ! the duties of his em-ployment, and the accident is capable of heing attributed to 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 wn-F clusion, that the accident arose out of the employment."

In later case in the House of Lords, Rosen v. S.S. "Qt1cr<>11;" (Owners) Lord Buckmaster explained that in that passage in Lord Thankerlon's speech in Simpson's case(') 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 work-man was travelling and in the later case m the House of Lords the ship on which the workman was employed. The sam~ princi-ple applies in Indian law as the lan)!uagc of s. 3 of the Indian Act is identical with s. I of the English Workmen's Compensation Act of 1925.

What are the facts found in the present case [0 ]Shaikh Hassan Ibrahim was employed as deck-hand, seaman of category JI on the ship. The medical log book of the ship showed that cm (I) (1909] 2 K.B. 46. (2) [19.11] A.C J.<l.

December 13, 1961 Shaikh Hassan complained of pain in the chest ~nd was, therefore, examined, but nothing abnormal was. detected clinically. The Medical Officer on board the ship pres-cribed some tablets for Shaikh Hassan and he reported fit for work on the ne)[t 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 wh~n; 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 seaman on duty that he was going to bed. At 6.15 a.m. he was found missing and search was undertaken. ·Tite 4ead body, however, was not found either on that day or later 0)1. The evidence does not show that it was stormy night. 'Th.e Commissioner made local inspection of the ship and saw tjte position of the bridge and deck and found that there was bulwark more than 3! feet. Nobody saw the missing seaman at ,the ·so-called place of accident. The Addi-tion.al Commissioner held that there was no material for holding that the death of the seainan took place on account of an acci-dent which arose l)Ut of his employment. In our opinion the Additional Commis~ioner did ·not commit any error of law in reaching his finding and the High Court was not justified in revers~ ing it. For these i:easons we hold that this appeal must be 'al-lowed and the judgment of the Bombay High Court dated March 5, 1965 must set be aside.

R.K.P.S.

Appeal allowed_