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TMI Blog1969 (8) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 seama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 respondent a sum of ₹ 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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([1917] A.C. 352.) 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 workm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 learned Arbitrator has arrived. Our duty is a very different, a strikingly different one. It is to consider whether the Arbitrator appointed to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accident 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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