(Prayer: Appeal (disposed of on 7-1-1943) against the order of the Court of the Commissioner for Workmens Compensation, Madras, dated 6th October 1941 and made in Case No. 271 of 1940.)

Somayya, J.

This is an appeal by the employer against the award of compensation to a relation of a deceased workman who met with his death, while returning from the harbour, the place where he was working. The deceased workman was employed for the purpose of bunkering coal in wharf No.

3. There were two routes which were usually taken by the workmen while getting out of the harbour, one marked F and the other marked G in the sketch Ex. I. In this case the deceased wanted to go along the passage G and in order to ge t to that passage from the place where he was actually working, one has to go near the point marked E in the sketch. While the deceased was near that point, some rice bags fell from a crane. It appears that certain rice bags were being unloaded from a ship by a crane and that the rice bags fell upon the deceased and he was crushed to death. The question is whether this accident occurred to the workman by accident arising out of and in the course of his employment. On the evidence adduced on behalf of both the parties, it is clear that the bunkering was completed only at about 7-45 P.M. The accident occurred at about 8 oclock. One has necessarily to take some rest before returning home after the hard work of bunkering coal and one cannot say that in this case an interval of 10 or 15 minutes was unnecessary or unreasonable as contended by the employer.

The next defence put up by the employer was that the route along which the deceased workman was passing was a prohibited route, that a notice had been put up that people should take care while passing along the route, that a watch was kept to warn people from going near the moving cranes and that therefore the route taken by the deceased was a prohibited route. As the Commissioner has pointed out accepting the evidence of Mr. Dring, Persons are free to go along the harbor The labourers are free to go anywhere they like. The labourers can go either through passage For GThere is a watch kept near the place where bags are landed to warn people of the danger. There is a notice that people should take care of themselves when they go near moving cranes or trains. The bunkering labourers have no work to go to ETo go through the passage the deceased would have to go near the place marked E. It is usual for the labourers to take rest near the goods storage shed before going home.

From this evidence, which there is no reason to distrust, it is clear that the coolies were free to go wherever they like in the harbour, that there were two passages marked F and G either of which the labourers were entitled to take and that in order to go along the passage G, one has to go near E. The mere fact that there was a notice put up warning people against going near moving cranes is not, in our opinion, a prohibition, nor can it be said that the workmen were prohibited from going near E.

In Gane v. Norton Hill Colliery Co. (1902 2 K.B. 539) a collier left his work, after coming up from the pit, by a route which crossed on the level ground some lines of rail belonging to and under the control of his employers. At the time the workman tried to cross there were some trucks standing on the line, and he tried to get under them; as he was doing so the trucks moved, and he was seriously injured. The County Court Judge found on the facts that there were three ways by which the workman might have gone home, but the way he went by was the shortest, was always used by all the workmen who lived in the same direction as the applicant, and was so used with the knowledge and consent of the employers. It was held that the accident arose out of and in the course of the applicants employment within the meaning of the Workmens Compensation Act.

In that case there were three routes. One of them lay across the railway line on which there were trucks. The workman saw the trucks and was getting underneath one of them. As he did so, the trucks moved, and he was seriously injured. Notwithstanding all this, it was held that the Act applied and that the workman was entitled to compensation.

We are of opinion that the principle of this decision applies to this case and that the order of the Commissioner is right. The appeal is dismissed with costs.