Mackinnon Mackenzie & Co. Pvt.
Ltd. Vs. Ibrahim Mahommed Issak  INSC 183 (14 August 1969)
14/08/1969 RAMASWAMI, V.
SHAH, J.C. (CJ) GROVER, A.N.
CITATION: 1970 AIR 1906 1970 SCR (1) 869 1969
SCC (2) 607
RF 1991 SC1771 (26)
Workmen's Compensation Act 18 of 1923, s.
3--"In the course employment"--"Arising out of employment",
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
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,  A.C. 352, Lancaster v. Blackwell Colliery Co. Ltd. 1918 W.C.
Rep. 345, Kerr or Lendrum v. Ayr Steam Shipping Ca. Ltd.  A.C. 217,
Bender v. Owners of S.S. "Zeni"  '2 K.B. 41, Marshall v. Owners
of S.S. "Wild Rose",  2 K.B. 46, Rice v. Owners of Ship
"Swansea Vale",  A.C. 238, Gatton v. Limerick Steamship Co.
 2 I.R. 561, Rourke v. Hold & Co.  2 Ir. Rep. 318 at 321 and
Simpson v. L.M. & S. Railway Co.  A.C. 351, referred
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
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 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 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, 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)  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 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
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)  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 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)  2 K.B. 41. (2)  2
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
"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 employment." (1)  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
" ...... from these passages to which I
have referred I think this rule may be deduced for application to (1)  2
(2)  2 It. Rep. 318 at 321.
(3)  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 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)  2 K.B. 46.
(2)  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
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
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.