http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

             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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

             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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

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. LS15 SupCl/69--12 880