1979 PLP 264 (PLC)

11. In the meantime, on 20‑11‑1975, the Opposite‑Party presented an Application praying for summoning the evidence recorded in the course of an enquiry conducted by the Mercantile Marine Department which, according to them, was essential for cross‑examination of the Principal Officer aforesaid. The evidence aforesaid, being in possession of the Shipping Master, could not be procured before 17‑4‑1976. The Principal Officer was cross‑examined thereafter on 5‑5‑1976 and the applicants closed their side.

12. The matter was fixed for defence on 2‑6‑1976. It had, however, to be postponed again and again, either for non‑appearance of defence witness or because the Opposite Parties sought adjournment on one pretext or the other. Evidence produced in defence was, however, completed on 3‑1‑1977.

13. The Parties filed written Arguments which have been placed on record.

14. In view of their relative importance and bearing on the case, I propose to deal with the Issues in the following sequence :‑‑ (1) Whether this Court has jurisdiction to entertain the Application ? (No. 5). (2) What is the relationship between the Opposite‑Parties Nos. 1 and 2 ; who is the actual owner of the ship? (No. 2). (3) Whether the deceased workman was in employment of Opposite‑Party No. 1 or No. 2? (No. 1). (4) Whether the deceased died as a result of personal injuries sustained in an accident arising out and in the course of his employment? (No. 3) (5) To what relief the applicants are entitled? (No. 4). Issue No. 5:

15. It is admitted that Opposite Party No. 1 are the Local Agents of Opposite Party No.

2. That the deceased, Mohammad Fazil, was recruited by them and issued a "No Objection Certificate", for appointment as Electrician on m. v. "Shaheen" by the Principal Officer, Mercantile Marine Department, at the request of Opposite Party No. 1, is established by the document Exh. A‑2, which was never challenged by Opposite‑Party No.

1. And, then, there is the categoric statement of the solitary defence witness, who stated that : "It is correct to suggest that the entire transactions and dealings in Pakistan on behalf of Ocean Trade WIL are conducted by Messrs Karachi Steam Navigation Company, Limited." The witness further confirmed the fact that the deceased was signed on 10‑2‑1974 from Karachi Port at the request of, was employed as a Junior Electrician on board m.v. "Shaheen" by, and was, at the time of his death, in the employment of Opposite Party No. 1.

16. The facts aforesaid, in general, and that of the Opposite Party No. 1, being Agents of Opposite Party No. 2, residing and carrying on business within the territorial jurisdiction of this Commissionery, in particular, lead to the decision of the Issue in the affirmative. By virtue, therefore, of the Proviso to subsection (1) of section 21 of the Act, this Commissionery is competent to entertain and determine the instant Application. The conclusion aforesaid is fully supported by the decision of the Labour Appellate Tribunal Sind, in Gokal Slapping & Trading Corporation Limited, Karachi v. Azhar Khan. (1975BLC710) Issue No. 2:

17. Although, in view of the above finding, it remained of little importance as to who owned the ship, yet the Opposite‑Party No. 1 did not make any effort whatsoever, to prove that the ship m.v. Shaheen was owned by opposite‑Party No. 2, while the latter never entered appearance to contest the claim. For the purpose of determination of the instant Application, however, it is immaterial as to who owned the ship. It is established that opposite Party No. 2 were the Principals and Opposite Party No. 1 were their Agents residing and carrying on business at Karachi. The Issue of relationship is decided accordingly. Issue No. 1:

18. The findings recorded hereinbefore under Issues No. 5 and No. 2, considered with the definition of "employer" contained in clause (e) of subsection (1) of section 2 of the Act, dispose of Issue No.

1. It is, therefore, held that Opposite‑Party No. 1 was the "employer" of the deceased. Issue No. 3:

19. As it appears from the document Exh. A‑3, it was Opposite Party No. 1 who informed the parents of Mohammad Fazil regarding the latter's death. The parents, thereafter, moved the Government of Pakistan to conduct an inquiry regarding the death of their son. Accordingly, an enquiry was instituted by the Principal Officer, Mercantile Marine Department. The Engineer and Ship Surveyor, conducting the enquiry, after examining at least 20 of the Crew on board the Ship and making a thorough investigation, held that the deceased died as a result of a severe electric shock received by his person in an accident arising out of and in the course of his employment from which he never recovered. There is absolutely nothing on record to show that either of the Opposite Parties ever challenged either the enquiry, or the findings of the Inquiry Officer, in appeal or otherwise.

20. In their pleadings before this Commissionery, however, the Opposite Party No. 1 challenged the Inquiry Proceedings aforesaid and their proporiety. To support their contention, they have brought on record the statements of 20 members of the Crew recorded during the said inquiry ; they have been marked as Exh. A‑

31. Besides the fact that the said statements support the applicants rather than the party aforesaid, it is well settled law that it is not for this court to probe into an inquiry as the one aforesaid.

21. One of the Crew on board the ship, examined as a witness by Opposite Party No. 1, failed to establish that he had due knowledge of the cause of death of the deceased. On the contrary, he deposed that : "It is correct to suggest that we had not obtained the Fitness Certificate from the Hospital at Sudan, where the deceased was treated After release from the Hospital, the deceased was not put to any job He was advised rest by the Captain of the ship. He was so advised because his hands bad been burnt .The deceased was not working under my supervision and also that he did not live with me in the same cabin. He was working under the supervision of Zareef Ahmad, Electrical Engineer. He was putting up with Abdul Hakim Baig in his cabin. It is correct to suggest that after the death, the deceased was not examined by the Doctor on duty to ascertain the cause of his death. I do not know if any Post‑Mortem Report was prepared or not.

22. Opposite Party No. 1 had filed Exh. D‑2, which is report made by the Doctor of the Hospital at Port of Sudan where the deceased was treated for about 15 days. It establishes beyond all doubts that the deceased, in the performance of his duties, did receive an electric shock on 7‑3‑1974, which, besides the shock, caused burns on both the hands.

23. The last word on the subject is the Inquiry Report. Relevant extracts therefrom, are reproduced below :‑ "According to the evidence available, Mohammad Fazil had become physically very weak when he returned from the Hospital. He is reported to have mentioned that he felt pain in his chest and acute weakness. The instruction given to the Master to keep him on rest were neither properly communicated, nor followed. He was put on duty although he had not fully recovered. Strangely enough, the Master did not think it necessary to ask for the Medical Report or Fitness Certificate from the Hospital. Although Mohammad Fazil died about 3 weeks after he received the electric shock at Port of Sudan, yet this seems to be the main cause of his death, because he had not fully recovered, when he was put on duty and when the vessel sailed from Port of Sudan. Due to the electric shock his heart was affected and he had become physically very weak."

24. Concluding the Report, the Inquiry Officer recorded his finding as under :‑ "Since it is certain that Mohammad Fazil lost his life because of the Electric Shock he received on duty and that he could have been saved if he would have been given proper Medical Treatment particularly during the last 3 days of life. It is recommended that the owners should be instructed to pay compensation as admissible under the Workmen's Compensation Act, 1923 and as per Articles of Agreement."

25. Before closing the discussion of the Issue, it may be of interest and advantage to cite the following observations made by their Lordships of the Bombay High Court in Trustees of the Port of Bombay v. Yanunabai;

"The expression "in the course of his employment" appearing in sub section (1) of section 3 of the Act, suggests the point of time ; that is to say, the injury must be caused by accident taking place in the course of the employment, that is, during the currency of the employ ment. The expression "arising out of his employment" suggests both the time as well as the place of employment. The expression "out of" conveys the idea that there must be some sort of connection between the employment and the injury caused to a workman as a result of the accident." (54 Bom. L R 421, A I R 1952 Bom. 382).

26. The High Court at Nagpur made the following observation in Mangalchand Gobardhan v. Mumtaz Begum :‑

"When the death or incapacity of a workman is caused by acceleration of disease, already existing, due to an accident, the death or incapacity will be deemed to have resulted from accident." 1951 Nag. L J 607, A I R 1952 Nag. 20.

27. Keeping in view the provisions of the Act, the observations cited above, the circumstances of the case and the evidence on record discussed hereinbefore, the only conclusion one is led to arrive at is that the deceased, while on board the ship m.v. Shabeen on March 7, 1974, did meet an accident arising out of and in the course of his employment, resulting in a severe electric shock to his person and causing burns on both the hand of his and, finally, causing his death on April 8, 1974. The Issue is, therefore, settled in the affirmative. Issue No. 4:

28. As a result of the above findings, I hold that the applicants are entitled to an amount of Rs. 15,000 on account of Death Compensation for the deceased Mohammad Fazil. They are allowed an amount of Rs. 50 on account of Pleader's Fee, and another of Rs. 30 as Costs. The total amount of compensation due to the applicants thus comes to Rs. 15,080 Opposite Party No. 1 is hereby directed to pay the said amount to the applicants within 15 days of the date of this order.