P L D 1952 Lahore 84 (PLP)

M. R. KAYANI, J.‑Inayat Ali Shah, a workman employed in a woollen mill belonging to Chaudhri Muhammad Iqbal res pondent, had his clothes caught in the engine while he was oiling it and received injuries on the 27th of December 1949, causing the fracture of his spine and leading to his death on the 30th of December. He used to receive Rs. 80 per mensem as wages, and his widow Mst. Sardar Begum made an application to the Commissioner for Workmen's Compensation, claiming Rs. 3,000 as compensation. The proprietor of the mill replied that the injuries caused to Inayat Ali Shah did not result from an accident arising out of and in the course of his employment, that the deceased, being an engineer, was not supposed to meddle with the oiling of the machinery, for which purpose a separate oilman had been provided, and that he had no business to oil the machinery in a loose dress which got entangled in the shaft. The questions before the Commissioner were :‑ (1) Will the death of Inayat Ali Shah while working on the machine not be death in the course of duties of employ ment? and (2) What is the amount of compensation to which the petitioner in entitled? He answered the first question in the affirmative and fixed the amount of compensation at Rs. 2,

400. The first issue, although not framed in the language of section 3 of the Workmen's Compensation Act, was under stood to convey the meaning of that section, viz., that the accident took place in the course of employment and that it arose out of the employment. In appeal by the proprietor the amount of compensation was accepted. It was also not denied that the accident took place while the deceased was in the course of his employment. The only question left for, decision, therefore, was whether it had arisen out of his employment, and here it was contended that the burden of proof and had been wrongly placed on the respondent, Evidence had been produced only by the respondent, and as the Commissioner had rejected that evidence and there was no evidence for the petitioner, it should be held 'that the petitioner had not discharged the burden. The learned Commissioner has held, on the strength of the evidence produced by the respondent himself, that it was a part of the deceased's duty to oil the engine and disbelieved the evidence of Fazal Muhammad (R. W. 3) who stated that he was employed as oilman and that at the time of the accident he had been sent by the deceased to get milk. Apart from Fazal Muhammad, the respondent produced two other witnesses, Din Muhammad (R. W. 1) and Muhammad Yusaf (R. W. 2), and it is to be noted that all three of them are employees of the respondent their evidence should, consequently, be examined with some caution. Din Muhammad states that the deceased was in charge of the engine and the boiler as an engineer and that Fazal Muhammad was the oilman. He had seen the deceased shortly before the accident carrying an oil can, and upon being questioned had told the witness that he was going to oil the engine since Fazal Muhammad had gone to bring milk for tea. Soon thereafter the witness heard him moaning under the machine, his clothes wrapped over the shaft. There was apparently no cross -examination of any single witness. But Din Muhammad has stated in the last sentence of his examination that Fazal Muhammad had gone to bring milk for himself. This is contrary to the contention of the learned counsel for the respondent that it was the deceased who had sent him to fetch milk. Muhammad Yusaf (R. W. 2) stated that the deceased was in the habit of wrapping his head with a piece of cloth which dropped down to his chin and that the witness and other workmen had often asked him not to wrap himself in that manner while oiling the engine. This is an unconscious ad mission of the fact that the deceased used to employ himself in the oiling of the engine and that it was not on this particular occasion alone that he was oiling it because he had sent away the oilman on a personal errand. This considerably detracts from the witness's subsequent statement that the deceased after the accident had informed him that he had sent the oilman away to bring milk for tea. For the petitioner, the only witness to appear was her Mukhtar, Mahboob Ali, who denied that the respondent had employed any separate oilman. As he was‑ not cross‑examined, we cannot say whether he had any opportunity of seeing the deceased at his work. I am inclined to hold, however, that from the evidence produced by the respondent himself it is indicated that the deceased often oiled the engine as a part of duty, whether or not he was provided with a separate oilman. Further, if he was in charge of the engine and the boiler as an engineer, he would not be exceeding his duties if he occasion ally oiled the engine even in the presence of the oilman. For the more efficient working of the engine he might sometimes find it necessary to oil the engine himself by way of instructing the oilman. The cases of "added peril", therefore, upon one of which Sheikh Muhammad Shafi relied for the respondent, will have no application to the present circumstances. Although the case‑law produced on both sides was not entirely relevant to the case in point, it will be instructive to examine it with a view to forming an idea of the requirements of the law on various aspects of the matter, particularly because there seems to be dearth of literature on this subject in our own High Court. The first case is Gouri Kinkar Bhakat v. Messrs. Radha Kissen Cotton, Mills (142 I. C 472). The workman in that case was employed in the spinning department of a ‑cotton mill as piecer, to tie broken ends of cotton threads. He tried to remove a torn spindle banding from the tin rollers while they were in motion, got entangled in the machinery and was seriously injured. It wag held that the injury was occasioned by added peril which the workman had brought about by interfering un necessarily with a fenced‑off part of the machine while it was working. This is a vastly different case on facts; but the fol lowing citation from Plumb v. Cobden Flour Mills Co. ((1914) A C 62), which occurs in the judgment will be instructive. "Nor can you deny him compensation on the ground only that he was injured through breaking rules But if the thing he does imprudently or disobediently is different in kind from anything he was required or expected to do and also is put outside the range of his service by a genuine prohibi tion, then I should say that the accidental injury did not arise out of his employment". In the present case there was nothing that was done even imprudently or disobediently, far less in defence of a genuine prohibition. In U Yan Shin v. Ma E Sein (A I R 1940 Rang. 18) the workman was employed in jungle cutting and similar opera tions at the employer's mine. After his work was over he was going back to camp to deposit tools when a dead tree fell over his head and killed him. It was held that the risk must be incidental to employment as distinguished from a risk common to all mankind. There must be something in the nature of causal relation between the accident and an order, express or implied, of, the employer. Here the tree which fell was not one of those which he had to cut and would have fallen on any other person who had happened to pass that way. This clearly is not an apt case, for it is not everybody who goes to oil an engine in another man's factory. In Central Glass Industries Ltd. v. Abdul Hossain (A I R 1948 Cal. 12) the workman while waiting within the factory premises to be employed at a certain hour, received an injury in play. It was held that the injury did not arise out of his employment. It was observed, however, that the term employment should not be confined to the duties of a workman and that the character, conditions and incidents of the employment and the special risks involved therein should also be taken into consideration. I think it could not be argued that it was not an incident of the deceased's employment in the present case that he should occasionally oil the engine. For the petitioner reliance was placed on the following cases: (1) Ahmedabad Cotton & Co. v. Bai Budhian Hajaram (A I R 1927 Born. 223). The workman in this case was a jobber in the weaving department where corrugated iron sheets on the roof, were being replaced by wooden planks, anti in order to protect cloth that was being manufactured here, a temporary hessian cover had been put over the weaving shed. The workman went to cut a portion of the cover to admit more light, when he got entangled in the machinery and was killed. It was observed that even if the Act were literally interpreted, although the work of removing the hessian cover belonged to the engineering department, the workman was not meddling, for what he did was "reasonable, necessary and incidental to the work which was entrusted to him, namely efficient weaving, and it was his duty to remove an impediment in the way of efficiency, that impediment being the want of light. Reliance was placed on the following quotation from Willis's Workmen's Compensation:‑ "An act, though strictly not one which the workman is required by his employment to perform, may still be regarded as within the sphere of his employment if it is reasonable or necessary thing to do under all the circumstances unless it has been expressly

or impliedly

excluded from his employment, or is such as to constitute an added peril". This, I think, is a very apt case, for, even if the duty of oiling the engine had been entrusted to another man, if the engineer who is in general charge of the engine does something that is "reasonable, necessary and incidental" to his work, he would not be creating an unnecessarily perilous situation for himself. (2) Mst. Champi v. Messrs. Shaw Wallace d Co. (A I R 1937 Nag. 397). It was observed in this case that even if the doing of certain acts is forbidden, a workman may succeed in his claim for compensation if the act accords with a recognized practice. An act is not excluded from the employment merely because of a safety regulation provided by Government to secure the well‑being of the employed. (3) Vishram Yesu Haldanka v. Dadabhoy Hormasji & Co. (A I R 1942 Bom. 175). Here the workman was a Khalasi employed on a barge tied up alongside a steamer in the dock and his duty was to sleep in the barge. His dead body was recovered from water in the morning, and it was believed that he had fallen down in sleep. It was held that if the accident takes place in the course of employment and at a place where the workman discharges his duty, and it is capable of being attributed to a risk which is ordinarily inherent in the discharge of such duties, it can be inferred, in the absence of evidence tending to an opposite conclusion, that the incident arose out of the employment. This ruling will be applicable if we did not know how the accident had taken place. We do know, however, that it happened while the workman was oiling the engine. (4) In K. Ramahrahman v. Traffic Manager, Vizagapatam Port (A I R 1943 Mad. 353) two workmen in Vizagapatam harbour working from 2 to 10 p.m. were allowed to take re freshments in turns. At 7‑30 p.m. they went to drink coffee and were returning to the harbour when, crossing the railway lilies they were run down and killed. It was held that this was a risk incidental to their employment, for it would be impossible to work up to 10 o'clock without break and in crossing the railway line, which was in theory forbidden, they followed the usual practice of the workmen. The result may be summed up thus :

1. If the injury is occasioned by doing something which has no relation to the workman's assigned work it does not arise out of his employ ment.

2. But if what he does is reasonable, necessary and incidental to the work entrusted to him, although belonging to another department, it arises out of his employment, unless it is excluded by an express or implied prohibition.

3. A mere prohibition does not, by itself, disentitle him to compensation/ if he receives an injury by disobeying it, provided that in his disobedience he follows a recognized practices.

4. There must be something in the nature of a. causal relation between the accident and the duty assigned to the workman.

5. The term "employment" should not be confined to the duties of a workman, but should extend to the character, conditions arid incidents of the employment and the special risks involved therein. The list should not be assumed to be exhaustive, but I do not think that the present case can on any test be regarded as falling out of section

3. It was not a case of "added peril" What Inayat Ali Shah did was reasonable, necessary and incidental to his employment and there was no rule forbidding him from oiling the engine. On the contrary, he should have been expected to look after the engine and generally supervise its functioning whether the oilman (assuming that there was one) was or was not present. The appeal is dismissed with costs. A. H. Appeal dismissed.