Authored By : Arthur Trevor Harries, P.B. Chakravartti

Arthur Trevor Harries, C.J.

1. This is an appeal by the employees from an order of theCommissioner for Workmens Compensation, awarding the respondent a sum of Rs.1008, less Rs. 8, already received as compensation, with costs.

2. The workman was a mistri employed by the appellants,Bhutnath Dal Mills On 1st July 1947, while he was trying to put back somebelting on a moving machine his right hand was dragged into a pulley andseriously injured. As a result of the accident he lost the index finger of hisright hand and lost the use and movement of his middle, ring and little fingersof the same hand. He applied for compensation, but his claim was resisted bythe appellants on the ground that the accident was the result of an act of therespondent in wilful disobedience of orders given to him. It was the case forthe respondent that each workman, when he was employed, was warned that he wasnot to effect any repairs while any of the machines in the factory was inmotion and further that there was a notice printed in English and Hindi to thesame effect. There was also evidence of a durwan that the respondent had been seenreplacing the belt when the machine was in motion on previous occasions and hadbeen told that he should not do so.

3. On a consideration of the whole of the evidence, theCommissioner came to the conclusion that the act of the workman was an act donein the course of his employment and that the accident arose out of and in thecourse of the employment. He held that the respondents wages were Rs. 80 permonth and that the percentage of incapacity was 30 per cent. Upon those figuresbe awarded the respondent Rs. 1008.

4. It has been urged by the appellants that they were notliable by reason of the provisions of S. 3(1)(b)(ii) , Workmens CompensationAct which provides that the employer shall not be liable in the case of anaccident which is the result of wilful disobedience of the workman to an orderexpressly given, or to a rule expressly framed, for the purpose of securing thesafety of the workman, where the injury does not result in death.

5. It is to be observed that to come within this provisionof the Act, the workman must be in wilful disobedience of an order; meredisobedience is not sufficient. Disobedience may be the result of forgetfulnessor the result of the impulse of the moment. Such would not be sufficient, asthe statute only exempts the employer from liability when the disobedience iswilful, that is, deliberate and intended.

6. The learned Commissioner does not appear to have beensatisfied that there was a notice posted up in the factory prohibiting workmenfrom effecting repairs whilst the machinery was in motion. It is said that thenotice, if there was one, was printed in English and Hindi. But what use anEnglish notice would be to an ignorant and illiterate workman, I cannotimagine. Further, if he did not read Hindi, it would also be of no use.Possibly, if the notice had been in Bengali literate workmen would have beenable to read it. But it is very doubtful whether an average literate workmancould read a notice in English or Hindi for that matter. In any event thelearned Commissioner finds that the workman was illiterate. So a notice in anylanguage was perfectly useless as far as he was concerned unless its contentswere expressly brought to his notice. The learned Commissioner was notsatisfied that this notice or its contents were ever brought to the notice ofthe workman in such a manner as to make him understand that effecting repairswhilst machinery was in motion was prohibited. A durwan was called who saidthat he had seen the respondent effecting repairs whilst the machinery was inmotion and that he had instructed him not to do so on those occasions. Had thiswitness been a foreman or someone whose duty it was to supervise the work theevidence would have been of greater weight. Why the durwan should see what washappening and notice breaches of regulations, I do not know and further, evenif he had seen them why should a durwan who is a mere door keeper, or at most akind of chowkidar, take it upon himself to reprove the workman, I am notsurprised that the Commissioner was not satisfied that it had ever been madeclearly known to the workman that he was not to effect repairs whilst themachinery was in motion. That being so, no question of disobedience of orderscould arise and certainly no question of wilful disobedience of orders.

7. Even if there was a notice exhibited in a prominent placewhich was not proved, it would still be open to the Commissioner to hold thatthe act of the workman was not an act in wilful disobedience of orders. This isclear from an English decision of Whitehead v. Reader, (1901) 2 K.B. 48 : (70L.J.K.B. 546). It is true that the words of the English statute are somewhatdifferent. Where the act of the workman in England amounts to serious andwilful misconduct, the employers will not be liable in certain cases. Seriousand wilful misconduct may be wilful disobedience of an order. So the Englishcases are in point. In Whitehead v. Reader, (1902) 2 K.B. 48 : (70 L.J.K.B 546)a workman was employed as a carpenter and part of his duty was to sharpen histools on a grindstone rotated by machinery. He had received orders not to touchthe machinery. The band that rotated the grindstone having slipped heendeavoured to replace it, and in doing so was injured. On a claim forcompensation under the Workmens Compensation Act, 1897, the County Court Judgefound that the accident arose out of and in the course of the employment of theworkman, and negatived serious and wilful misconduct on his part, and made anaward in his favour. This award was upheld by the Court of Appeal. At p. 52Romer L.J. observed:

To make the grindstone work, and so to be able to sharpenhis tools, the carpenter may well be said to have been about his mastersbusiness when he tried to replace the band, and that on the impulse of themoment he should have forgotten the order as to not touching the machinery isnot unnatural and may well he regarded as a venial act and not as being wilfulmisconduct on his part. I am not able to gather from the facts of the case thatthe replacing of the band was an act on the workmans part so remote from hisordinary duties that it could not be fairly said to be one arising out of andin the course of his employment.

8. The case before us is a stronger case, because in theEnglish case it was no part of the carpenters duty to replace the belting. Hemerely used the grindstone and as the grindstone had stopped and the beltinghad come off the pulley, he tried to replace the belting. In the present caseit was the mistris duty to replace the belting, though he ought not to havedone so whilst the machine was in motion. It appears to me that theCommissioner might well in the words of Lord Romer find that on the impulse ofthe moment the workman should have forgotten the order if ever given as to nottouching the machinery and that the act of the workman may well be regarded asa venial act and not as being wilful misconduct or act of wilful disobedienceon his part.

9. The learned Commissioner also relied on another Englishcase, namely, Estler Bros. v. Phillips, (1922) 15 B.W.C.C. 291, and that caseis also very much in point. The workman was employed on a machine which it waspart of his duty to clean. He had seen other men cleaning the machine whilestationary only. A notice which the man had seen, prohibited him from cleaninga machine while it was in motion. He was standing at the back of the machine ona platform only used when cleaning the machine, and was cleaning the machinewhile in motion when his coat sleeve was caught and twisted round the shaft.His right leg was drawn into the machine and severely lacerated, and he becamewholly incapacitated. The County Court Judge found that the workman was actingwithin the scope of his employment, though disobediently, and awardedcompensation on the ground that the accident arose out of and in the course ofthe workmans employment. The House of fjords held that there was evidence tosupport the finding and that there was no misdirection and upheld the award.

10. These English cases which in my view apply to therelevant provision of the Indian Act strongly support the workmans case andthe view taken by the Commissioner.

11. It is to be observed that though great reliance wasplaced by the employers on this notice alleged to have been exhibited, thenotice was not produced, and secondary evidence was given of its contents. Evenfrom that evidence it is by no means clear what was said in the notice. Whatthe witness Rash Behari Tewari, the manager of the mill, says is that there wasa notice in English and Hindi to the effect that a running machine was not tobe handled in case of disorder. Whether there was prohibition or not it isutterly impossible to say, even if that evidence is accepted. However, as Ihave said the learned Commissioner was not satisfied that it had ever been madeclear to the workman that he should never attempt to do anything to themachinery when it was in motion.

12. Further, it appears to me that this appeal in so far asit relates to this matter is a pure appeal on facts and that is not permittedby S. 30, Workmens Compensation Act, which provides that an appeal shall liefrom an order of a Commissioner awarding compensation, but it is provided thatno appeal shall lie against any order unless a substantial question of law isinvolved in the appeal. It has always been held in England that whether the actof the workman amounts to serious and wilful misconduct is a pure question offact and it appears to me whether a workman acts in wilful disobedience of anorder in India is a pure question of fact. There can be no question of law atall involved and as the finding is that the act of the workman was not inwilful disobedience of an order, it appears to me that no appeal would lie onthis ground if it was the only ground.

13. It was also contended on behalf of the employers thatthe amount of compensation awarded was too much. The learned Commissioner hasfound that the degree of incapacity was thirty per cent. It is urged that becould not have found that the degree of incapacity was more than twenty-fiveper cent. Reliance was placed on the provisions of Sch. I to the Act. Thatprovides that the loss of an index finger represents a loss of 10 per cent ofearning capacity and that the loss of any finger other than the thumb and indexfinger represents a loss of 5 per cent of earning capacity. The argument isthat even if he lost three fingers of the right hand other than the indexfinger it would only cause a loss of 15 per cent of the earning capacity and asthe loss of the index finger only causes 10 per cent the total loss would onlyamount to 25 per cent of the earning capacity. It appears to me that theseprovisions of Sch. I are singularly inappropriate. How can it possibly be saidwith accuracy what percentage of loss of earning capacity a man suffers by theloss of any limb A sedentary worker would in many cases be able to do hispre-accident work after losing a foot whereas a man trained only for heavymanual work would find it practically impossible to get any work which he coulddo. The loss of earning capacity must vary according to circumstances.

14. However, in the case of permanent partial incapacity itis expressly provided by S. 4 Para. C that where permanent partial disablementresults from an injury specified in Sch. 1, such percentage of the compensationwhich would have been payable in the case of permanent total disablement as isspecified therein as being the percentage of the loss of earning capacitycaused by that injury. There is an explanation to this clause in these terms:

Where more injuries than one are caused by the sameaccident, the amount of compensation payable under this head shall beaggregated but not so in any case as to exceed the amount which would have beenpayable if permanent total disablement had resulted from the injuries.

15. Applying this illustration it is clear that where aworkman lost both arms above the elbow, if the two items in Sch. 1 areaggregated it would show a percentage of loss of earning capacity of 130 percent. The explanation says that in such a case the amount of compensation mustnot exceed the amount payable if the disablement was total and permanent; inother words the loss of earning capacity must be taken as 100 per cent that is,total permanent disablement and clearly such a workman is totally disabled andnot partially.

16. It will be seen from the explanation that the amount ofcompensation in the case of permanent partial incapacity shall be aggregated.Where an index finger is lost, the percentage of the loss of earning capacityis 10 per cent and the amount of compensation payable in such a case is thatpercentage of what would be payable in the case of total permanent disablement,and those amounts are set out in Sch. IV. A man earning between Rs. 70 and Rs.90 a month would receive Rs. 3360 if he was permanently totally disabled. Wherehe has lost an index finger the provision is that he would receive 10 per cent,of this sum of Rs. 3360 namely Rs. 336.

17. Similarly, if he had lost one finger other than theindex finger, he would receive 5 per cent of this figure, namely Rs. 163 and asthe explanation provides, where more injuries than one are caused by the sameaccident, the amount of compensation payable shall be aggregated. It followsthat in this case we must take the amount of compensation which will be payableif the index finger only had been lost and add to it the amount of compensationpayable for each other finger, because the damage to the other fingers hascaused total loss of use and movement and by the note to Sch. I it is clearthat complete and permanent loss of the use of any limb or member is equivalentto the loss of that limb or member. Therefore the three fingers other than theindex finger can be regarded as lost.

18. If these amounts are aggregated, namely, Rs. 336 for theloss of the index finger and Rs. 168 for the loss of each of the other threefingers, this would bring the total to Rs. 840 and that appears to be themaximum sum which can be awarded to this workman.

19. It appears to me that this method of arriving at theamount of compensation payable is most unsatisfactory. But it is the methodprescribed by the statute and must be followed. That being so, the amount ofcompensation in this case must be reduced from Rs. 1008 to a sum of Rs. 840less the sum of Rs. 8 which had apparently been received by the workman beforethese proceedings.

20. In the result therefore this appeal is allowed in partand amount awarded to the workman is reduced to Rs. 840 less the Rs. 8 alreadypaid.

21. The respondent will be entitled to three-fourths of thecosts in this Court and the costs incurred by him in the Court below thehearing fee in this Court being assessed at four gold mohurs.

22. The injunction is dissolved and the amount awarded bythis Court may now be taken out by the workman.

P.B. Chakravartti, J.

23. I agree.

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Bhut Nath Dal Millsvs. Tirat Mistry (11.08.1948 -CALHC)