1. The application filed by the appellant for compensation for the death of his son, a seaman, has been dismissed by the learned Additional Commissioner for Workmen's Compensation, Bombay, on the ground mainly that neither the fact of death nor that it occurred on account of an accident arising out of employment, is proved. The facts leading to the application are few, and indeed it is a matter of common experience in cases of 'unexplained accidents,' that the paucity of material is due partly to the fact that in the very nature of things the heirs of a deceased seaman can have no personal knowledge of the circumstances in which the death of the seaman was caused and partly due to the apathy of the shippers to lead oral evidence of the relevant facts and circumstances.
2. Shaikh Hassan Ibrahim was employed as a deck-hand, 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 respondents Mackinnoon Mackenzie & Co. (Private), Ltd., are the agents. The medical log-book of the ship shows that on 13 December, 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 15 instant, 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 16 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 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 7-15 a.m. A radio message was sent by the Master of the ship saying :
'One seaman missing between Khorramshahr and Ashar Stop May be in river Stop All ships please keep look-out.'
3. The ship arrived alongside Asher Jetty at 8 a.m. when a representative of the respondents was informed that Shaikh Hassan 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 20 February, 1962, the appellant filed an application under S. 3 of the Workmen's Compensation Act (Central Act 18 of 1923), claiming compensation of Rs. 4,000 for the death of his son, which according to him occurred on account of a personal injury caused by an accident arising out and in the course of his employment.
4. The respondents disputed the appellant's claim on the ground, amongst others, 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.
5. The parties did not lead oral evidence at the trial of the claim. The learned Additional Commissioner has held on such facts and circumstances as appeared to him undisputed and indisputable, that there was no evidence to show that the seaman was dead and there was in any view no evidence to justify the inference that the death of the seaman was caused by an accident which arose out of employment. The learned Additional Commissioner has, however, negatived the contention of the respondents that the death, if any, was caused by the seaman's voluntary act.
6. Before I deal with the main issue arising on this appeal, it is necessary to refer to the first proviso of S. 30(1) of the Workmen's Compensation Act under which no appeal can lie to the High Court against an order passed by the Commissioner unless a substantial question of law is involved in the appeal. If the questions raised in the appeal are pure questions of fact, or even if the appeal raises but a settled question of law, the High Court has no jurisdiction to interfere with the decision of the Commissioner. In my opinion, however, the judgment of the learned Additional Commissioner suffers from errors of law so serious, so substantial, that interference with the view expressed by him seems inevitable.
7. The learned Additional Commissioner has held that the death of the seaman is not proved, because, firstly, there is no evidence that he fell overboard or was drowned and secondly because, the period for which the seaman was not heard of was much too short to raise a presumption under S. 108 of the Indian Evidence Act. This approach, in my opinion, is erroneous, because in order to find that the seaman is dead, it is not necessary that there should be direct or positive evidence that he was seen falling overboard or being drowned, nor indeed is S. 108 of the Evidence Act exhaustive of the circumstances in which death cannot be presumed under S. 108, as for example, cases in which a person has not been heard of for less than seven years and yet the fact of death can be inferred from the circumstances of the case. As the learned Additional Commissioner, in dealing with the fact of death, restricted himself to a consideration of the presumption arising under S. 108 of the Evidence Act and as he wrongly assumed that without that presumption and without direct evidence of death, one cannot hold that the death is proved, it would be necessary to consider, whether on the record as it stands, the death of the seaman can be held proved.
8. On my part, I see no difficulty in inferring that the seaman is in fact dead. That he was on board the ship on 16 December, 1961 is admitted. The medical lot-book maintained on the ship shows that he was indisposed on 13 and 15 instants and that certain medicines were prescribed for him. The ship's log-book, which is signed by the Mate and the Master shows that in the early hours of the morning of 16 instant the seaman was seen first near the bridge and then on the Tween Deck of the ship. The log-book further shows that at 6-15 a.m. a desk sarang informed the chief officer of the ship that the seaman was missing, whereupon an immediate search was made to find him. As soon as it appeared that he was not on board, a radio message was sent saying that the seaman was missing between Khorramshahr and Ashar, that he might be in the river and that the ships round about should be on the look-out for him. As the seaman could not be traced, intimation was given to the respondents' representative at 8 a.m. and an official inquiry was held on board the ship by the local police and the British Consul-General at 4 p.m. The last entry in the log-book shows that the 'personal effects' of the seaman were checked and sealed by the Consulate authorities for being deposited with the Shipping Master, Bombay.
9. These facts, in my opinion, must raise an inference that the seaman died by being drowned on or about 16 December, 1961. The faint suggestion made by Sri Sorabjee, who appears on behalf of the respondents, that the seaman may have swam to safety seems to me too brave to be true. The physical condition of the seaman on the eve of his being found missing as reflected in the medical log-book, would in any event render such a possibility too far beyond his endurance.
10. The next question for decision is whether the seaman died an accidental death. The approach of the learned Additional Commissioner to this question also is erroneous. In Para. 9 of his judgment the learned Additional Commissioner has indicated the reason why it was difficult to presume that the death of the seaman was caused accidentally. The difficulty which was felt was that there was no evidence to show how, when and from which place the seaman fell into the sea. In my opinion, the absence of direct evidence showing that the seaman was doing a particular type of work at a particular time at a particular place or that he fell into the sea in a particular manner cannot conclude the question whether he died an accidental death. The view taken by the learned Additional Commissioner can more frankly be expressed by saying that you cannot hold a death to be accidental unless there is an eye-witness to the accident. In my opinion, such a rigorous view of the rules of evidence will defeat the protection afforded to the workers in a large number of cases, especially in cases of seaman, and I see no reason why a Court of facts should not draw an inference, if the facts and circumstances of the case justify it, that the death of the workman occurred on account of an accident. I do not suggest that in every case in which a seaman is found missing he must be presumed to be dead, nor that in every case in which a seaman dies a death by drowning must be presumed to have died an accidental death. Whether an inference of accidental death can properly arise must necessarily depend upon the circumstances of each individual case, but I do not agree that the death of a workman cannot be held to have been caused by an accident unless there is direct evidence to establish the accident.
11. From such facts as appear on the record, it would, in my opinion, be legitimate to infer that the seaman died an accidental death. There is no dispute that at about 6-15 a.m. He was found missing from the ship when the ship was in the deep waters of a navigable river. The death of the seaman, which I have already held proved, could be caused either by his own act or by the act of some other person or by accident. The learned Additional Commissioner has negatived the possibility of a suicidal death, after taking into account the circumstances that the seaman was suffering from insomnia and was seen on the Tween Deck at an odd hour of the night I agree with that view. As regards the possibility of a homicidal death, if the choice is between death by accident and death by design, there must be a presumption in favour of an accidental death, for, as observed in Harvey v. Ocean Accident and Guarantee Corporation [1905 Irish Reports 1 at 37], which was a case of death by drowning.
'the death can only be reasonably accounted for in one of the two ways, immersion in the water by accident or design, and an innocent cause ought to be presumed as against what would be prima facie a crime. There is ample authority that the presumption against crime is applicable in a civil action.'
12. In Bender v. Owners of Steamship Zent (1909) 2 K.B.D. 41, in which a chief cook was lost overboard on high seas, the possibility of suicide was excluded by Farewell, L.J., on the ground
'... Suicide being a crime, the presumption is against it.'
13. Finally in Ranjanibai Jamnadas Champsey v. New India Assurance Company, Ltd. : AIR1956Bom633 , it was held by a learned single Judge of this Court in the case of a death by fall from the fourth floor of a building, that though there is presumption in law of an accidental death in the abstract, where it is proved that a person died of a cause such as drowning or a fall, presumption against violence or suicide must be raised and in the absence of evidence in rebuttal, the presumption must be allowed to prevail. In the case before us, suicide has been negatived on facts by the learned Additional Commissioner, and very rightly. Even otherwise, the possibility that the death of the seaman was caused by design, that is to say, by the commission or attempted commission of a crime must be excluded, for if there is a balance of probabilities and if there is no clear evidence as to the cause of death, death shall have to be presumed to be accidental. An innocent cause of death must be preferred to cause which, if accepted, would lead to an inference of crime. As regards the possibility of homicidal death, in addition to there being a presumption against it, Sri Sorabjee has very fairly conceded that it is not possible in this case to suggest that the seaman was murdered. As death by suicide or murder has thus to be excluded. I am of the opinion that the seaman must be held to have died an accidental death. This conclusion emerges not only out of a process of elimination - a process, by which the only two other possibilities in which death may have been caused can be reasonably excluded - but the conclusion would seem to accord best with the broad probabilities of the case.
14. Having cleared the initial ground as regards the fact of death and whether the death was caused by accident or by design, it is necessary now to consider the two main questions which arise under S. 3 of the Workmen's Compensation Act : whether the accident arose in the course of employment and whether it arose out of employment. As stated in Halsbury's Laws of England, 2nd Edn., p. 823, Para. 1161,
'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'.'
15. It is unnecessary to cite other authorities on what is the true connotation of the phrase 'in the course of employment,' for the correct exposition of law. The question whether the death arose in this case in the course of employment does not present any difficulty, because it is inherent in the very nature of a seaman's employment that to be able to discharge the duties assigned to him, he must be on board the ship during a voyage, at all hours of the day and night. Seamen, therefore, sign for the whole voyage and are deemed under the terms of their employment to be on duty at all times during the voyage. Section 101 of the Merchant Shipping Act (Central Act 44 of 1958) provides that an agreement with the crew shall be in the prescribed form and the statutory form of contract would show that under the contract of his employment a seaman is on duty all through the voyage for which he has signed, though, for convenience, the timing of his actual duty may be limited to specified hours of the day and night. It is interesting, though it cannot by itself decide the point, that amongst the several authorities cited at the bar, there is none in which it was suggested that the death of a seaman, which occurred during the course of a voyage when the seaman was on board the ship, did not occur in the course of employment. As observed by Fletcher Moulton, L.J., in Marshall v. Owners of Steamship Wild Rose (1909) 2 K.B.D. 46 ,
'Seamen in their employment are necessarily on board continuously, by which I mean that not only when they are employed in active work about the ship but also in the intervals between their active employment, they must be upon the ship. Therefore, I have no doubt that the leisure of sailor on board the vessel is as much in the course of his employment as the time which he spends in active work.'
16. In my opinion, it being clear in this case that the seaman died during the course of voyage, his death must be held to have occurred during the course of his employment.
17. The decision of the second question whether the death of the seaman occurred on account of an accident which arose out of his employment is rendered somewhat difficult by a marked conflict of views expressed by the English Judges. Counsel for either side contends that the conflict is resolved by the House of Lords, but the respective submissions as to how the conflict is resolved are widely divergent. Ultimately, after a discussion of the authorities, it may be necessary to remind oneself of the warning uttered by Viscount Dunedin in Fisher v. London, Midland and Scottish Railway Company 1931 A.C. 351 , that decided cases are only useful so far as they lay down principles, but it is no use trying to decide a case simply by looking at other cases and then inquiring which case most resembles the present on the facts.
18. As regards the second requirement that the death must be caused by an accident arising out of employment, it is not always possible to keep this and the first requirement entirely separate. The words 'arising out of employment' are understood to mean, as stated in Halsbury, that
'during the course of the employment, injury has resulted from some risk incident 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.'
19. The same thought has been variously expressed by different authorities, the choice of language being influenced by subjective considerations. It is, for example, said that there must be a causal relationship between the accident and the employment; or that the accident must arise directly out of the fulfillment of the conditions of service; or that the nature, conditions, obligations and incidents of employment must all be considered and if by reason of any of these factors, the workman is brought within the zone of special danger, the injury would be one which arises 'out of employment.' Phrases apart, the essence of the matter seems to be that there should be a direct connexion between the accident and the employment. If the accident has 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.
20. The question to consider therefore is whether the seaman died in this case on account of an accident which is directly connected with his employment, an accident which occurred on account of a risk incidental to his employment. Having held that the died an accidental death by drowning during the course of his employment, the question for consideration is whether the accidental death by drowning is due to a risk which is an incident of the seaman's employment.
21. It is contended by Sri Sorabjee for the respondents that there is no inherent risk of drowning in a sailor's profession, that there is not even a general risk of drowning incidental to a sailor's employment and therefore the death in this case cannot be said to have occurred on account of an accidental 'arising out of employment.' It is urged that in the absence of such general risk, it is obligatory on the appellant to establish the precise circumstance in which the death of his son was caused, for every death, which occurs in the course of employment, dose not necessarily occur out of employment. On the other hand, it is contended by Sri Mehta, who appears on behalf of the appellant, that the risk of drawing is incidental to a sailor's employment and if a sailor is proved to have died accidentally by drowning during the course of his employment, the burden is on the employer to establish that the accident did not arise out of employment. In support of these rival contentions, my attention has been drawn by the learned counsel to several decisions dealing with cases of unexplained deaths, the more important or which are noticed below.
22. In Bender v. Owners of Steamship Zent (1909) 2 K.B.D. 41 (vide supra) no one knew how the chief cook of the ship was lost overboard when the ship was in mid-ocean. The chief cook was seen at 5-25 a.m. standing in the port alley way and he was last seen at 5-35 a.m. going towards the water closet. His absence was discovered at 6-20 a.m. when he was wanted by the chief steward. The County Court Judge made an award in favour of the dependants holding that the death of the cook was caused by an accident arising out of and in the course of his employment. In an appeal by the employers, it was held that it was open to a Court to find on an inference that an accident arose out of employment though no human being was present who could give direct evidence how and when the accident happened. On the facts, however, it was concluded that the circumstances of the case did not justify the inference that the accident arose out of employment.
23. In the same volume is reported another case at p. 46 : Marshall v. Owners of Steamship wild Rose 1910 A.C. 486 (vide supra) which was decided by the same three learned Judges, namely, Cozens-Hardy, M.R., Fletcher-Moulton, L.J., and Farewell, L.J., who had decided the Zent case (1909) 2 K.B.D. 41 (vide supra). The Wild Rose case is one of an unexplained accident which occurred while the ship was in the harbour. The second engineer of a steam trawler 'Wild Rose' was seen on board the ship at about 9 p.m. He came out of his berth, went on deck, and, as he passed the first engineer, said that he was going on deck for a breath of fresh air. He was found missing at midnight and his body was discovered next morning just under the place where the staff of the ship usually sat. The decision of the County Court Judge that the accident arose out of employment was reversed in appeal on the view that the unexplained drowning of a sailor by a fall from his ship, when at sea, is not by itself sufficient to justify the inference that the accident arose out of employment. The learned Judges followed their earlier decision in the Zent case (1909) 2 K.B.D. 41 (vide supra) observing that they were bound by it as there was no distinction between the facts of the two cases. In his concurring judgment Fletcher Moulton, L.J., expressed the hope that the point involved in the case would go to the highest tribunal so that one may have directions upon the question whether because a seaman's employment puts him in a dangerous position, that is to say, on board the ship surrounded by water as opposed to being on land, the mere fact that he is drowned while the ship is at sea is sufficient to raise a prima facie presumption that the death by drowning arose out of employment.
24. The decision of the Court of Appeal was taken to the House of Lords and is reported in Marshall v. Owners of S. S. Wild Rose 1910 A.C. 486 (vide supra). The House of Lords affirmed the decision by a majority of 2 : 2 on the view that there was no evidence to show that the engineer's death was caused by an accident arising out of employment. Lord Atkinson, Lord Shaw and Lord Mersey delivered three separate but concurring judgments and the minority view was expressed by Lord Loreburn, L.C., and Lord James. In his dissenting judgment Lord Loreburn, L.C., expressed the view that the employment of the engineer, by the very nature of it, exposed him to certain dangers whether at work or not, one of which was falling or being washed off his ship and if in the course of that employment the man being on the ship accidentally perished by one of those dangers, the accident arose out of employment. Lord James, who concurred with Lord Loreburn, L.C., observes in his judgment that the accident had occurred during the employment under circumstances which showed that the injured person had not at the time of the injury departed from the controlling incidents of the employment and it was for the employers to establish that the accident did not arise out of employment. Since the employer failed to discharge that burden, the death, according to Lord James, occurred out of employment. Lord Atkinson, who delivered the leading judgment of the majority, took the view that it could not be held that the risk of falling into the water was a risk incident to or connected with the employment of the engineer while his ship was in port,
'though it may well be that the risk of being blown or swept overboard or of falling overboard while his ship was at sea was such a risk.'
25. Lord Shaw also observed in his majority judgment that
'had the ship been at sea, one could have understood the answer better, because the sailor might have been pitched overboard by the rolling of the vessel or blown overboard by the wind. These would have been the perils surrounding the seaman's life and duty, and injuries or accidents through them might well enough be held to fall within the category of things arising out of and in the course of the employment. But in the present case such a question does not arise, for the ship was lying quietly in port.'
26. Lord Mersey, who delivered a separate judgment concurring with the view of Lord Atkinson and Lord Shaw, has made an observation while concluding his judgment that he did not regard the case as laying down any general principle and that it turned entirely on its particular facts.
27. It seems to me clear from the majority judgment of the House of Lords that though the decision of the Court of Appeal affirmed, it was not affirmed for the reason that no risk attaches to a sailor's employment. The judgments of Lord Atkinson and Lord Shaw show that a distinction was drawn between the ship being at port and the ship being at sea, and the conclusion that the death of the engineer did not arise out of his employment was influenced largely by the consideration that the ship was at port. In the case before me the death of the seaman occurred when the ship was in the deep waters of a navigable river and Sri Mehta seems to me right in his contention that the majority decision, far from being against him, would support his contention that the death must in this case be held to have arisen out of employment.
28. In Owners of Ship Swansea Vale v. Jessie Mary Rice and Millicent 912 A.C. 238, William Rice, the first mate of the ship, died an explained death when he was on the steamship Swansea. On 28 June, 1909, the ship sailed for Algiers on her maiden voyage. On 30 June at 4 a.m. Rice complained to the captain of giddiness and took a dose of castor oil. He then went on deck for the purpose of keeping his watch. He would haves been on duty from 4 a.m. to 8 a.m. and in the performance of his duty he would be sometimes on the bridge and sometimes of deck superintending the work of the watch. The western (sic) was fair but hazy and the sea was calm. Rice was seen on the bridge at about 7 a.m. but nothing was known of him afterwards. The County Court made an award in favour of the dependents of Rice, which was upheld by the Court of Appeal by a majority of 2 : 1. Cozens Hardy, M.R., and Fletcher Moulton, L.J., constituted the majority, and Buckley, L.J., expressed the dissenting opinion. The House of Lords upheld the view of the majority of the Court of Appeal, holding the there was sufficient ground for inferring that the first mate accidentally fell overboard and met his death by accident out of his employment. The decision of the Court of Appeal in Bender v. Owners of Steamship Zent (1909) 2 K.B.D. 41 (vide supra) and of the House of Lords in Marshall v. Owners of S. S. Wild Rose 1910 A.C. 486 (vide supra) were cited before the learned Law Lords, but these decisions were held peculiar to their facts. Lord Loreburn, L.C., who delivered the leading opinion, observes in his judgment :
'In the present case employment on board ship necessarily exposed this unfortunate man to the danger of falling overboard'
29. and that
'if you weigh the probabilities one way or the other, the probabilities are far greater that this man perished through an accident arising out of and in the course of his employment.'
30. Lord Shaw, who was a party to the majority judgment in Marshall v. Owners of S. S. Wild Rose 1909 A.C. 486 (vide supra), observes in his judgment in this case that few cases rise in ordinary life, or in the law Courts, in which analogy is complete and that in his judgment in Wild Rose case (vide supra) he had especially reserved the incidents of a sailor whose life was sacrificed under circumstances of mystery. The unanimous judgment of the House of Lords in Swansea Vale case 1912 A.C. 238 (vide supra) shows, in my opinion, a distinct swing of the pendulum in favour of the view that the risk of falling overboard is an incident of the sailor's employment and that if the death of a sailor occurs by drowning in mysterious circumstances, the death can be justifiably held to arise out of employment.
31. In Kerr or Lendrum v. Ayr Steam Shipping Company, Ltd. 1915 A.C. 217, Lendrum was employed on the steamship Turn berry as a cook and steward. On the morning of 16 December, 1911 the ship was lying in the harbour of Larne, and was to sail at 6 p.m. At about 4 p.m. The captain of the ship told Lendrum, who was resting in his bunk, to prepare and serve tea to the crew before the ship sailed. The captain afterwards asked the chief officer to see if Lendrum was getting the tea ready but the chief officer reported to the captain that no one could find Lendrum in the ship. Lendrum's disappearance from the ship was at once reported to the Police and his dead body dressed in his day underclothes was found next day in the sea. The dead body bore no marks of violence. The evidence showed that Lendrum was a good-tempered and sociable man who was subjected to attacks of nausea and sickness. It was held by the House of Lords by a majority of 3 : 2 that there was evidence to support the finding of the arbitrator that Lendrum had met his death by accident arising out of his employment. Earl Lorebur, Lord Shaw and Lord Parmoor have delivered separate but concurring speeches of the majority, whereas Lord Dunedin and Lord Atkinson have expressed the dissenting opinion. Sri Sorabjee may perhaps be right that this decision would not help the appellant, because the majority view largely rests on the circumstance that the arbitrator having taken a particular view, which was supportable on evidence, it was not open to the House of Lords to take a contrary view of facts. It is, however, important that the evidence on which the arbitrator took the view that the death of the cook arose out of employment was not the direct or positive evidence of any witness who had seen how the death had occurred but was merely evidence of circumstances from which a fair inference could be drawn that the death arose out of employment. It would be useful in this regard to refer to a part of the speech of Earl Loreburn, which reads thus;
'This man was in his bed, and a few minutes afterwards he was in the water. Murder is negatived. Suicide is negatived. There is absolutely nothing that points to either. No suggestion was made either of the one or the other and the arbiter has negatived both. The man was on the ship, a place of some danger if you are careless, in pursuance of his duty. It was not found that he had withdrawn himself from his duty. I really do not know whether he fell overboard, because he was trying to vomit over the ship's side. I conclude that he must have died on account of an accident while on board as his duty required.'
32. Lord Shaw emphasizes like Earl Loreburn that the question whether the death of the cook arose out of employment was for the tribunal of facts to decide and since there was evidence to justify the view taken by that tribunal, it was not for the House of Lords to take a different view of the evidence. Lord Shaw, however, observes in his speech that were it not that two of his colleagues had expressed a different view, he would say that it was difficult to conceive of a fairer case for the inference that the death had occurred out of employment. Lord Atkinson, who delivered the dissenting speech, has distinguished the Swansea Vale case 1912 A.C. 238 (vide supra) on the ground that there an officer in a sick and giddy condition was sent to perform duties which would necessitate his being sometimes on the bridge of the ship and sometimes on the deck of the ship. His lordship took the view that there was no evidence to justify the finding of the arbiter that the death of the cook arose out of his employment and therefore the award was liable to be set aside.
33. Mrs. Margaret Thom or Simpson v. Sinclair 1917 A.C. 127 is the case of a woman employed by a fish-curer, who while working in a shed belonging to her employer, was injured by the fall of a wall which was being built on the property of an adjoining proprietor. As a result of the wall falling, the roof of the shed collapsed and the woman was buried under the wreckage. It was held by the House of Lords that the accident arose out of the employment of the woman. It would be useful to draw attention to a passage in the speech of Lord Shaw which is to the following effect :-
'There may be causes of danger arising to all employees, which causes are not confined to the individual situation, but are general and applicable to the employment as a whole. It may be that that employment is underground, with all the risks attached to underground work. It may be in the air or on the sea, with a special exposure to the dangers relative to such elements; or it may be on the surface of the earth, in surroundings which are those of peril. In all such cases it is quite possible to figure injuries by accident in the course of and arising out of the employment, which are totally disconnected with the nature of the employment upon which the workman was generally or for the moment engaged, but which, without any doubt, sprang from the employment in the sense that it was an account of the obligations or conditions thereof, and on that account alone, that he incurred the danger. In short, my view of the statute is that the expression 'arising out of the employment' is not confined to the mere 'nature of the employment.' The expression, in my opinion applies to the employment as such, to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment' apply.'
34. The decisions which I have discussed above and many others have bee considered by the House of Lords in Fisher or Simpson v. London, Midland and Scottish Railway Company 1931 A.C. 351 (vide supra). In that case, a railway guard, who was asked to travel from Glasgow to Gourock in order to take charge of a train at Gourock, entered a railway compartment at Glasgow. When the train arrived at Gourock, the guard was found missing and his articles were found in the compartment. The compartment had its left door shut, but the window was open. The guard was subsequently discovered lying unconscious in a tunnel between Glasgow and Gourock and he soon died from a fractured skull, without recovering consciousness. In a claim flied by his dependents for compensation, the arbitrator negatived violence and suicide and found that the man had met his death by falling accidentally from the window of the compartment. The arbitrator concluded from this circumstance that the accident had arisen out of employment. The arbitrator stated a special case to the first Division of the Court of Session in Scotland, which took a contrary view and held that there was nothing to show that the accident had arisen out of employment. In appeal, the House of Lords upheld, by a unanimous judgment, the view of the arbitrator. Viscount Dunedin has examined in his speech an array of cases bearing on the subject, including the Zent case (1909) 2 K.B.D. 41 (vide supra), the Wild Rose case 1910 A.C. 486 (vide supra), the Swansea Vale case 1912 A.C. 238 (vide supra), Simpson case 1931 A.C. 351 (vide supra) and Lendrum case 1915 A.C. 217 (vide supra). He has expressed his conclusion at p. 365 by saying that if the deceased was in the course of his employment and if there are facts from which it may be deduced that his employment brought him within, or allowed him to be within proximity of the peril to which his death could properly be ascribed, and the arbitrator comes to the conclusion that the accident which causes death arises out of, as well as in the course of, his employment, his judgment should not be disturbed. In the concluding portion of his speech Viscount Dunedin says at p. 366 that the presence of the guard in the compartment was due to the orders which he had received, that the door and the window of a railway compartment are dangerous places in the same sense as the bulwark of a ship is a dangerous place and that these circumstances justified the finding of the arbitrator that the accident arose out of employment. Lord Tomlin deduces in his concurring judgment the ratio of the cases which he has discussed thus :
'Now, my lords, from these passages to which I have referred, I think this rule may be deduced for application to that class of cases which may be called unexplained accident cases, namely, that where the evidence establishes that in the course of his employment the workman was 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 1910 A.C. 486 (vide supra) 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.'
35. On the factual aspect of the case, Lord Tomlin took the view that the findings of the arbitrator would justify the inference that at the time of the accident the deceased was traveling in the railway carriage in the course of his employment,
'subject to the inherent risks, slight though they may ordinarily be, of falling from the carriage through insecurely fastened doors or open windows.'
36. Lord Thankerton has also discussed, in his concurring judgment, leading cases on the subject of unexplained deaths and expresses his view by saying 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.'
37. On the facts of the particular case, Lord Thankerton expressed the opinion that the deceased met with the accident while he was on duty, that it was possible for a railway passenger without any abnormal conduct on his part to fall through an open window or through an insecurely fastened door of a train by pure accident and that the arbitrator was justified on consideration of these circumstances in taking the view that the accident arose out of employment.
38. This case, in my opinion, is important from more than one point of view. In the first place, it facilitates a clearer understanding of earlier decisions and it shows that some of the decisions, in which the unexplained accidents were held not to arise out of employment, were confined to their own peculiar facts. Secondly, even a railway compartment was held to be a place which was subject to some inherent risk, slight though it may ordinarily be. Then again, it is not the particular seat near the door nor the window which was held to be a place to which some risk was incidental but the entire compartment was held to be such a place. Thirdly, the decision contains the formulation of a unanimous ratio that if the workman was properly in a place to which some risk attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as regards the immediate circumstances of the accident, to attribute the accident to that risk and hold that the accident arose out of employment.
39. The last of the decisions cited at the bar is Rosen and another v. Owners of the Steamship 'Quercus' 1933 A.C. 494. In that case a fireman who was employed on a steamship was permitted to sleep on the deck, when the ship was moored to a quay in the port. On the night of 7 February, 1931 he slept on the deck, and on the following day his dead body was found in the water. There was no evidence whatsoever showing that he was on duty during the night. There was also no suggestion of suicide or murder or of the man being drunk. The application filed by the dependents for compensation was dismissed by the County Court Judge on the view that the could not infer from the facts that the accident arose out of the man's employment. This view was upheld by the Court of Appeal. The house of Lords, however, set aside the decision by a unanimous judgment and remitted the matter to the County Court Judge for a fresh decision in the light of the observations made by it. Lord Buckmaster, with whom Lord Warrington, Lord Tomlin, Lord Russel and Lord Wright concurred, observes in his speech that if the County Court Judge were to hold, on a consideration of the evidence, that the accident did not arise out of the employment of the deceased, it would have been impossible for the House to interfere with that decision. The County Court Judge, however, had held that he was bound to come to the conclusion to which he came as there was no evidence to show that the deceased was no evidence to show that the deceased was at the spot where he fell overboard in the discharge of some duty which he owed the owners of the ship. Commenting on this view, Lord Buckmaster observes in his speech :
'If that once be accepted as the true meaning of his award, I do not think that even counsel for the respondents would urge that the award could stand.'
40. The County Court Judge seems to have been largely influenced in his decision by the observations of Lord Thankerton in Simpson v. London, Midland and Scottish Railway Company 9131 A.C. 351 (vide supra) that the accident can be held to have arisen out of employment if the deceased was '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. In rejecting the view of the learned Judge of the County Court that by 'place' was meant the actual spot where the deceased was working, Lord Buckmaster says :
'That is, of course, perfectly true if the word 'place' be regarded in this case as the ship, and in the case of the railway as the train, but if it is meant that when a man is on a train or on a shop and an accident occurs, it is necessary to establish some particular duty in the discharge of which he was at the particular spot where the accident happened. I think that is a misinterpretation of what the learned lord meant, and is not in accordance with the decision.'
41. At p. 499, Lord Buckmaster deals with the decision of the Court of Appeal which, while affirming the decision of the County Court Judge, had observed that the deceased.
'must have been doing something which was not involved in or necessary to his sleeping on the deck and not involved in the duty, for at the time he was not operating in any duty.'
42. This according to Lord Buckmaster, was a clear misunderstanding of the true position. He observes :
'... the true position ... I think, is laid down in clear terms in the opinion expressed by Lord Tomlin in the case of Simpson v. London, Midland and Scottish Railway Company 1931 A.C. 351 where he says thus :
'Where the evidence establishes that in the course of his employment the workman was properly in a place to which some risk particular thereto attaches let me pause there to say that it is quite plain from the context that the learned lord meant by 'place' the railway train and not a particular spot in the railway train as in this case it would mean the ship and not a particular spot on the ship - '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 ...'
43. These then are the most important of the decisions to which my attention has been drawn by the learned counsel. On a consideration of these decisions it would, I think be possible to deduce the following propositions :
(1) It is open to a Court to find on an inference that the accident arose out of employment though no human being was present who could give direct evidence how and when the accident happened.
(2) The expression 'out of employment' is not confined to the nature of the employment, but applies to employment as such to its natures, its conditions, its obligations and its incidents. It by reason of any of these the workman is brought within the zone of special danger or is injured or killed, the accident would be one arising out of employment. In other words if the employment brings the workman within or allows him to be within proximity of the peril to which the injury or death can properly be ascribed the accident can be said to have arisen out of employment.
(3) If the workman is properly in a place to which some risk attaches and an accident occurs which is capable of being attributed to a risk which is ordinarily inherent in the discharge of his duties it is legitimate notwithstanding the absence of evidence as regards the immediate circumstances of the accident to attribute the accident to the risk and to hold that it arose out of employment.
(4) It is not necessary to prove that the workman was engaged in a particular duty in the discharge of which he was at a particular spot where the accident happened. By the place of danger of danger is meant not a particular spot of danger but the entire place as for example, the ship or the train.
(5) A seaman's employment puts him in a dangerous position, the ship on high seas or in deep waters being a place to which some risk is incidental. There are perils, surrounding the seaman's life and duty which are inherent in his employment.
(6) As the employment of a seamen by the very nature of it, exposes him to certain dangers, whether at work or not as for example, the danger of falling overboard or being swept overboard there is a prima facie presumption if death by drowning be proved that the death was caused by an accident which arose out of employment.
(7) The presumption thus arising can be rebutted by the employer by leading evidence of facts and circumstances showing that the workman had at or about the time of his death departed from the controlling incidents of his employment or that he had added to the peril by his own imprudent act.
44. Applying these tests, I am of the opinion 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. If one weighs the probabilities one way or the other the probabilities are far greater that he perished through an accident arising out of his employment than that his death occurred without regard or reference to the risk inherent in his employment.
45. In the result the appeal succeeds and the application for compensation is granted Though the appellant had claimed a sum of Rs. 4,000 by way of compensation he had agreed to accept a smaller amount from the respondents which the latter had expressed their willingness to pay irrespective of the result of the appeal. Since the parties have arrived at an agreement on costs it is unnecessary to pass a separate order in that behalf.