VISHRAM YESU HALDANKAR Vs. DADABHOY HORMASJI AND CO

JUDGEMENT

(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 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.