Judgment

RAMASWAMI, J.: This appeal is brought by special leave from the judgment of the Bombay High Court, D/-5-3-1965 in Appeal No. 415 of 1963*

* Reported in (1965) 1 Lab LJ 554 (Bom).

2. Shaikh Hassan Ibrahim (hereinafter referred to as the missing seaman ) 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 Limited of which the appellant is the Agent. The Medical Log Book of the ship shows that on December 13, 1961 the missing seaman 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 the missing seaman and he reported fit for work on the next day. On December 15 ,1961, 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 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 lookout". The ship arrived alongside Ashar Jetty at 8. A.m. when a representative of Messrs. Gray Mackenzie and Co. Ltd., who are the agents for the British India Steam 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 Counsel-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 February 20, 1962, the respondent filed an application under Section 3 of the Workmen s Compensation Act (Central Act 18 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. The appellant 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 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.

3. But the appellant 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 was dead and there was in any event no evidence 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 the present case what is the evidence before me? It is argued on behalf of applicant that I must presume that the man fell down accidentally. From which place did he fall down? How did he fall down? At what time he fell down? Why was he at the time at the place from which he fell down? All these questions, 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 opinion there is absolutely no material before me to come to a conclus