# MACKINNON MACKENZIE & CO. PVT. LTD v. IBRAHIM MAHOl\'IMED ISSAK - **Citation:** [1970] 1 S.C.R. 869 - **Court:** Supreme Court of India - **Decided:** 1969-08-14 - **Case number:** CIVIL APPELLATE JURISD!CT!O.\l'; Civil Appeal No. 850 of 1966 - **Bench:** J.C. Shah, Acting C.J, V. Ramaswaw Akd A. N. Gro'Tf - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mackinnon-mackenzie-co-pvt-ltd-v-ibrahim-mahol-imed-issak-4718 - **Pages:** 11 ## Headnote JVurk1nen's Compensation Act 18 of 1923, s, 3-"ln 11'1e ( ~-u:·.-:e of c1np!oy1nent"-"Arising out of e1np!oyn1ent", nienning of. S \Vho was cn1ploycd as a deck-hmid on ~~ ~bip was found n~j~.'-ing on boc.rd. The respondent filed an application under s. 3 of the \'1'orkmen's Con1pcnsation Act claiming compens~tion for t?i~ death of S which according: to him occurred on account of a personal injury caused hy an accident arising out of and irf the course of c1np:oymcnt. The Additivn;:il C0n1missioner held that there was no evidence to .,now that the ~c8_n1an was C:cad and there was in any event no evidence to justify the infe;cnce that tbc death of the sea,man was caused by an accident which <1ro~e out of employment. The }{igh Court reversed the judgment of the :\Jditional Commissioner. In appeal to, this Cou11, HELD : The Additional Commis'iioner diY the Consulate authont1es for being deposited with ~t~C', %'ipP.lilg Master: Bombay. On February 20, 1 962 the i'espon~~. filed an application under s. 3 of the Workmen's Compensation Ac.t (Central Act 18 of 1923) (hereinafter referred to as the .Act) claiming compensation of Rs. 4,810/- for the de:ith oi his Son, tbe missing seaman, which B c D K F G H " A B c D E F G H MACKBNZIB & co. v. IBRAHIM (Ramaswami, J.) 871 according io him, occurred on account of a personal injury caused by an accident arising out of and in the course of his employment. The appe1lant 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. deat11 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 nppellant 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 \\:ts dead and there was in any event no evide:nce 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 i the present case what is the evidence before me ? I It is argued on behalf of applicant that I must presu1)1e that the man fell down accidentally. From which jplace did he fall down ? How did he fall down ? At what time he fell down ? Why was he at the time at ie place from which he fell down ? All these questi s, 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 opinioh 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 Jinks. 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 3! feet. The man was not on duty. Nobody saw him at the so-call~ place of accident. In !hese circumstan.ces 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 ass~ssment of evidence o(· permissible presumptions." The Additicnal Commissioner, however, negatived the contention of appellatit that the death, if any, was caused by the seaman's voluntary act. The respondmt preferred an appeal on April 17, 1963 tq the High Court from the judgment of the Additional Comrtussioner dated February 6, 1963. At the hearing of the appeal it w:is agreed that the appellant would pay to the· SUPREME COURT REPORTS [1970] l S CR. respondent a sum of Rs. 2,000/ - as and by way of compensation iri 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 the i\>ucs the High Court proceeded to decide the questions of law ;irising in the appeal. By his judgment dated March 5, 1965 Chandrachud J., allowed the appeal and reversed the judgment of the Additional Cnmmissioner and granted the application for compensation. The view taken by Cl1andrachud 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 th\s appeal is whether the accid~nt arose in the course of employment and whether it arose out of employment within the meaning of s. 3 of the Act which states : "(I) 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 compcnsa· lion in accordance with the provisions of this Chapter : Provided that the employer shall not be so liablc- (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 thereof under the influence of drink or drugs, or Iii) the wilful disobedience of the \rnrkman 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. To come within the Act the injury by accident must arise ·ooth 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 ii." The words •·;irising out of employment" are under-;tood to mean that '"during the cours.: of the emplo) men!, injury has resulted from some risk incidental to the duties of the service, which anless engaged in the duty owing to the master, it is rcasm1able A R c D E F c 11 A B c D E F G H MACKENZIE .t: co . .Y. IBRAHIM (Ramaswami, l.) 873 to belie·:e 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 agam not co,.'liined 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(') Lord Sumner laid down the following test for determining whether an accider.t "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 0 uffor, or to do that which caus~ his)njucy/t If yea, tilt 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 employm~t, 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 wa~, 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. Athough 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 (!) [1917] AC. 352. 874 SL"PREMF. COURT RF.PORTS fl 970] I S.C.R proof which is sufficient to justify an inference being drawn, but th~ evidence must be such as would induce a reasonable man to draw it. Lord Birkenhead L.C. in l,ancaster v. Blackwell Colliery Co. Ltd., ( 1 ) observed : '·If the facts which arc proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere mailer of conjecture. then, of cour>e, the applicant faib to prove his case because it is plain that the onus in thcs~ 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 tile applicant C'Jntends, then the Arbitrator is justified h drawing an inference in his favour." In cases of (he 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. (2) in which the steward of a ship, which was in harbour, was lying in his bunk, when he was told by the ca plain to prepare tea for the crew. He was shortly afterwards mbsing, and the next day his dead body, dressed in his underclothes only, was found in the sea near the ship. The bulwarks were 3 feel 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 Hvuse of Lords (Earl Loreburn, 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 lo him to have taken a different view, his conclusion was such as a reasonable man could reach. "I sl1ould state my main proposition 1hus," said Lord Shaw of Dunfermline, "that we in thi.s House are :10t considering whether we would have come to the same conclusion~ upon the facts stated as that at which the (I) 1918 W.C. Rep. 345. (2) [11951 A.C. 217. A B c D E F - G H - A :; B c D E F G H MACKENZII! & co. v. IBRAHIM (Ramaswami, J.) 87 5 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 obs¢rved that they should regard these awards in a very bro~d way and constantly remember that they were not the tribunal to decide." In the case of unexplained cirowning of seamen, the English Court of Appeal have drawn some very fine distinctions. In Bemler 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 turnir.g out; and he was last seen at 5.35 a.m. going aft. The \•ca'11;" (Owners) Lord Buckmaster explained that in that passage in Lord Thankerlon's speech in Simpson's case(') 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 m the House of Lords the ship on which the workman was employed. The sam~ principle applies in Indian law as the lan)!uagc of s. 3 of the Indian Act is identical with s. I of the English Workmen's Compensation Act of 1925. What are the facts found in the present case 0 Shaikh Hassan Ibrahim was employed as a deck-hand, a seaman of category JI on the ship. The medical log book of the ship showed that cm (I) (1909] 2 K.B. 46. (2) [19.11] A.C J.