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SUPREME COURT OF INDIA
J.C. Shah, V. Ramaswami, A.N. Grover, JJ.
Messrs Mackinnon Mackenzie and Co. Pvt. Ltd. - Appellants
Versus
Ritta Farnandes - Respondent
Civil Appeal No. 1693 of 1966
Decided On : 14-08-1969
Workmens Compensation Act, 1923 – Section 3 – Merchant Shipping Act, 1894 – Respondent filed an application before Commissioner for Workmens Compensation Bombay claiming a sum of Rs. 4,500/- as compensation and contending that deceased was working as a general servant and had to perform his duties standing up, that this caused an undue strain on his heart and that cause of his death was cardiac failure and hopatomagali which he had contracted "as a result of disease in the course of employment". – Commissioner held that deceased died of an injury due to an accident arising out of and in course of employment – He took view that very fact that deceased had to be hospitalised showed that he must be suffering from disease sometime prior to that and strain of work he had to do must have accelerated illness and the consequent death Against judgment of Commissioner appellant preferred an appeal to Bombay High Court contending that finding of Commissioner was contrary to evidence and was based upon surmises and speculation – By his judgment dismissed appeal Judge held that under provisions of Merchant Shipping Act, 1894 it was incumbent upon Master of ship to enter into official log book medical treatment given to an ailing seaman, that there was no entry in Log Book or any of her evidence on record to show that deceased remained in hospital from December 3 to 10, 1961, that these facts were within special knowledge of appellant, that failure to lead such evidence would result in an adverse inference being drawn against appellant and that adverse inference to be drawn was that deceased worked between 3rd and 10th December, 1961 and "that may have" aggravated his illness – Held, There is no entry to that effect in Log Book, nor does Log Book indicate what treatment he was given during said period – It was said that appellant produced a special medical report of surgeon of ship before Commissioner but it was objected on behalf of respondent presumably on ground of want of necessary proof – There was, however, no attempt on part of appellant to prove that report in a legal manner – Result, therefore, is that there is no evidence to establish that workman was lying in ships hospital as an indoor patient from December 2 to 10 – High Court has taken view that appellant had special knowledge as to whether workman was an indoor patient lying in ships hospital during above mentioned period or whether he was asked to carry out his duties and since appellant produced no evidence an adverse inference should be drawn against appellant – High Court observed that there was no evidence to establish that after December 2, 1961 the workman was not asked to work but was in hospital right up to date of his death – In absence of necessary evidence which appellant could and should have led in case High Court drew inference that death of workman arose out of and in course of his employment – High Court was right in holding that in circumstances of this case a duty was imposed on appellant to lead evidence which was within its special knowledge and in absence of such evidence an adverse inference should be drawn against appellant – Court hold that appeal fails and must be dismissed – Appeal Dismissed
JUDGMENT :
Ramaswami, J.
This appeal is brought from the judgement of the Bombay High Court dated March 2, 1966 dismissing the appeal brought by the appellant against the order of the Commissioner of Workmen's Compensation awarding a sum of Rs. 4,500/- to the respondent.
2. The respondent is the widow of one Baptista Mascrenbas (hereinafter referred to as the deceased). The deceased was employed on board the s.s. "Iberia" a ship, belonging to the P. & O. Steam Navigation Co. Limited, of which the appellants are the agents. On December 2, 1961 at about 4 p.m. the deceased was admitted to the ship's hospital suffering from "hapatomagaly" and "basal pulmonary congestion". The deceased died on December 10, 1961 at about 6.20 p.m. and the cause of death according to post mortem examination was found to be cardiac failure with pulmonary collapse and abscess of the liver. On December 4, 1962 the respondent filed an application before the Commissioner for Workmen's Compensation Bombay claiming a sum of Rs. 4,500/- as compensation and contending that the deceased was working as a general servant and had to perform his duties standing up, that this caused an undue strain on his heart and that the cause of his death was cardiac failure and hopatomagali which he had contracted "as a result of disease in the course of employment". The claim was resisted by the appellant on the ground that the illness which resulted in the death of Baptista had nothing to do with the employment and that the deceased did not die of any injury by accident arising out of and in the course of employment. By his judgement dated March 29, 1965 the Commissioner allowed the application of the respondent and awarded a sum of Rs. 4,500/- to the respondent .The commissioner held that the deceased died of an injury due to an accident arising out of and in the course of employment. He took the view that the very fact that the deceased had to be hospitalised on December 2, 1961 showed that he must be suffering from the disease sometime prior to that and the strain of the work he had to do must have accelerated the illness and the consequent death Against the judgement of the Commissioner the appellant preferred an appeal to the Bombay High Court contending that the finding of the Commissioner was contrary to evidence and was based upon surmises and speculation. By his judgement dated March 2, 1966 Chitale J., dismissed the appeal The learned Judge held that under the provisions of the Merchant Shipping Act, 1894 it was incumbent upon the Master of the ship to enter into the official log book the medical treatment given to an ailing seaman, that there was no entry in the Log Book or any of her evidence on record to show that the deceased remained in hospital from December 3 to 10, 1961, that these facts were within the special knowledge of the appellant, that the failure to lead such evidence would result in an adverse inference being drawn against the appellant and that the adverse inference to be drawn was that the deceased worked between the 3rd and 10th December, 1961 and "that may have" aggravated his illness.
3. Section 3 of the Workmen's Compensation Act, 1923 reads as follows:
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 thereof 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
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