Bombay High Court dated 5 March 1965

Facts:

 Shaikh Hassan Ibrahim (missing seaman) was employed as a deck band, a seaman of
category II on the ship S.S. "Dwarka "which is owned by the British India Steam
Navigation Company, Ltd., of which the appellant is the agent.
 On 13 December 1961 the missing seaman complained of pain in the cheat 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 15 December 1981, however, he complained of insomnia and pain in the chest for
which the medical officer prescribed sedative tablets. The official logbook of the ship
shows that on 16 December 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 8 a.m. he was seen on the Tween Deek 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 representatives of Mackenzie & Co., Ltd., who are the agents for the British India
Steam Navigation Company, Ltd. in turn passed on the Information to the local police
and the port authorities.

Arguments:

 Respondent filed an application under Section 3 of the Workmen's Compensation Act

(Central Act 8 of 1923) (hereinafter referred to as the Act) claiming compensation of
Rs. 4.000 for the death of his son, the missing seaman, which, according to him,
occurred on account of a personal injury caused by an accident arising out of and in
the course of his employment.
 Appellant, put in a written statement 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.

Issues:

Whether the accident arose is the course of employment and whether it arose out of
employment within the meaning of Section 3 of the, Act.

Section 3 of the Workmen's Compensation Act, 1923 states that:

(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 to

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

(ii) The wilful 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 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.

Discussion:

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, when, unless engaged in the
duty owing to the master. 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 those
factors the workman is brought within the zone of special danger, the injury would be one
which arises "out of employment."

In the case of Simpson v. L.M. & Railway Company, 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 the case of Rice v. Owners of ship, the chief officer of a vessel, who was on duty on deck,
disappeared from the ship broad day-light. No one saw him fall overboard, but there was
evidence that not long before he had complained of headache and giddiness. It was held 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.

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 13 December 1961
Shaikh Hassan complained of pain in the cheat 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 16th instant
however, he complained of insomnia and pain in the cheat for which the medical officer
prescribed sedative tablets. The official log-book of the ship shows that on the 16th instant
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 Dock when he told
a seaman on duly 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
bulwark more than 3i feet. Nobody saw the missing seaman at the so-called place of accident.
The Additional Commissioner hold 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 5 March 1965
mast be set aside.