John Beaumont, C.J.
1. This is an appeal by the father of a deceased workman; against a decision of the Commissioner for Workmen's Compensation, Bombay, dismissing his claim.
2. This is one of those cases in which the circumstances in which the accident occurred are not known. The applicant's son was one of six khalasis employed on a barge which was tied up alongside a steamer in the dock. The finding is that the khalasis had to prepare and take their meals on the barge and also to sleep there either in the rooms allotted to them by the employer when there was no work at night, or on the hatches when there was work at night. On the day in question, which was the night of October 22/23, 1940, meals were taken at half-past eight and the khalasis slept on the hatches. The work of loading goods into the ship was to begin at 3 a.m. on the 23rd. The deceased went to sleep on one of the hatches at about 9 p.m. and when his companions woke up, he was found to be missing, and a considerable time afterwards his body was discovered in the dock where the barge had been. Owing to the amount of decomposition which had taken place, it was not possible to say what was the cause of his death. It is in evidence that on the night in question there was a storm. It is also in evidence that the hatches are on a higher level than the deck, and, as I understand from the careful argument of Mr. Mehta who has said all that can be said for his client, the khalasis sleep with their feet pointing towards the deck, and the deck is about one and a half feet wide.
3. The Commissioner held that the deceased was acting in the course of his employment at the moment he was last seen on the barge, that is, at the time when he went to sleep, and no doubt how the accident happened is a matter of inference. The Commissioner considered rightly that the burden is upon the workman to prove; that the accident arose out of the employment as well as in the course of the employment, and he was of opinion that the workman had not discharged the burden. The Commissioner did not find as a fact that the accident did not occur out of and in the course of the employment, but he found that there was no evidence on which he could base a finding that the accident occurred out of the employment. Whether this finding is right is, I think, a question of law which this Court can determine.
4. Now, there have been many cases about unexplained accidents. In Simpson v. L. M. & S. Ry, Co.  A.C. 351 a rule was stated by both Lord Tomlin and Lord Thankerton, and the Commissioner quotes the passage from the judgment of Lord Tomlin in which he states the principle to be derived from the authorities in these words (p, 369) :. 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.
5. The learned Commissioner considered that he must apply that principle ; and, applying it, he held that there was no evidence from which he could find that the accident arose out of the employment. Lord Thankerton stated the principle rather more favourably to the workmen. Lord Thankerton says (p. 371) :.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.
6. In a later case in the House of Lords, Rosen v. SS. ' Quercus' (Owners)1, Lord Buckmaster explained that in that passage 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 travelling, and in the later case in the House of Lords the ship on which the workman was employed. In this case the place would be the barge.
7. Now, it is clear, on the evidence that the workman was sleeping on the barge in the course of his employment, and there must necessarily be a risk inherent in the discharge of his duty in so sleeping that he may fall off the barge into the water. The most natural inference to draw is that the accident occurred because for some reason or other in the middle of the night the workman fell off the barge either in his sleep or when half awake and struck his head in the process. I say that because the evidence is that he was a good swimmer. So he must have lost consciousness before he got into the water. No doubt there are other possible inferences. It is conceivable, though highly improbable, that the man committed suicide. It is conceivable, and rather less improbable, that he was murdered and his body was thrown into the water. But there is absolutely no evidence to suggest suicide or homicide and the most natural inference from the evidence is that he met with an accident which arose out of his duty in sleeping on the barge.
8. I think, therefore, that the learned Commissioner misdirected himself in saying that the evidence did not justify a finding that the accident arose out of the employment. The case will have to go back to the Commissioner for assessing compensation.
9. The respondent to pay the costs of the appeal.