1. This appeal arises from a proceeding under the Workmen's Compensation Act, 1923. The facts giving rise to the application out of which the appeal arises are shortly these:
2. The appellant is one Ramprasad Mahavlr Pandye who was employed as a watchman by the respondents on 3-10-1950. On 11-11-1953, he was on the first shift i.e. from 8-30 a.m. to 4-30 p.m. On the day in question he went to work at 8-30 a.m. Before he joined duty, the watchman in the previous shift took him round the factory premises in order to show that everything was in order and he took charge from one Navalsingh who gave the appellant a key of the 'Railway Gate.'
The appellant then took a round of the fac-tory premises and, while taking the round, he noticed a G. I. pipe lying in the compound. He lifted the pipe in order to keep it in a safe place and while he was doing so he sustained very severe injuries. The distal third of the appellant's left forearm had to be amputated and he lost his thumb, index and middle fingers of his right hand. He was then taken to a hospital where he was an indoor patient for six months.
3. On 24-5-1054, he sent a letter to the respondents along with a medical certificate and as the respondents did not reply to the letter, the appellant gave a notice on 21-6-1954. In the end, he filed the application on 2-7-1954 claiming compensation in the sum of Rs. 4.900/-. (4) The respondents did not file a written statement, but on their behalf the Commercial Union Assurance Co. Ltd. filed a written statement which is Ex. 3 in the case. It was admitted that the appellant was a watchman employed by the respondents. But the insurance company disputed that the injuries sustained by the appellant were due to accident arising out and in the course of his employment.
It was also contended that the appellant's duties commenced at 8-30 a.m. but that the accident took place at 8-25 a.m. suggesting that the accident took place before the appellant joined his duty. The principal defence which has found favour with the Commissioner was that the appellant engaged himself in felling mangoes with a galvanised iron pipe and, white doing so, the pipe made contact with the overhead H. T. cable which resulted in the injuries received by him,
5. The Commissioner dismissed the appellant's application, holding that the appellant did not prove that he sustained injuries by accident arising out and in the course of his employment and that accordingly no compensation was payable to the appellant. Peeling aggrieved by this order, the original applicant, that is the workman, has come up in appeal.
6. Upon this appeal Mr. Keshavdas for the appellant contends that the decision of the Commissioner cannot be supported. At the outset, it may be observed that Mr. Deshpande, who appears for the respondents, has not now contested the finding of the learned Commissioner that the accident arose in the course of his employment. The only question, therefore, for decision is whether the injuries sustained by the appellant were by accident arising out of his employment.
In order to determine the question, it would be first necessary to look at the evidence in the case. The appellant himself has given evidence and he stated that, while he was taking a round of the factory premises he noticed a G. I. pipe lying in the compound and so he lifted the G. I. pipe !n order to keep it in a safe place. He says that he did not know what happened thereafter. He says that when he recovered consciousness, he found himself in a hospital in which he was an indoor patient for six months.
In cross-examination he stated that the G. I. pipe was about 20 feet in length and that he caught the G. I. pipe at one end and raised it in order to take it & keep it in a safe place. He was ask. ed as to whether there were any mangoes on the trees which were in the compound; and while he admitted that there were mango trees in the factory compound, he said he could hot say that there were any mangoes upon the trees.
He further stated that it was not true that he attempted to knock tender mangoes from a tree in the factory compound with the G. I. pipeand while doing so the G. I. pipe came into contact with the H. T. cables.
7. One Philip D'Abreo, a mechanic in the respondent company, has been examined and his evidence was that on 11-11-1953 he attended the factory as usual at 8-30 a.m. and while going to his work he saw a flash from the H. T. electric wire and when he ran towards the place, he saw the appellant lying on the ground.
Now, the evidence of Philip D'Abreo is not, therefore, helpful in considering -the question whether the appellant received injuries while he was lifting the G. I. pipe in order to take it to a safe place or whether the appellant received injuries while he was lifting up the G. I. pipe, in order to knock the mangoes. The next evidence is of witness Pyare Singh and the Commissioner has relied upon this evidence.
Pyare Singh stated that he was a watchman in the respondent company's service since June 1950. He says that on 11-11-1953 he went to work at 8-35 a.m. and while he was there he saw the appellant going towards the watchman by the name of Dudhanath who was standing under a mango tree.
He saw a pipe about 25 feet long lying under the mango trees and he says that Dudhanath asked the appellant to knock down some mangoes and the appellant lifted the pipe to knock down the mangoes and, while doing so, the pipe came in contact with the electric wires overhead and the appellant fell on the ground. In cross-examination, Pyara Singh stated that the appellant knocked down two mangoes before the G. I. pipe struck the electric wires.
In cross-examination, Pyara Singh stated that there were about 15 mango trees in the factory compound and the mango tree from which the appellant knocked down the mangoes bore fruit twice a year. Now, one comment upon the evidence of pyara Singh is that, that if Dudhnath wanted to knock down the mangoes, it was easy for Dudhnath himself to take the pipe and to knock down the mangoes and that it was not necessary for Dudhnath to ask the appellant to knock down the mangoes.
The evidence of Pyara Singh is not supported by Dudhnath upon this point. His evidence was that there were mango trees near his room and also in the compound of the factory and that on 11-11-1953 his duty was from 4-30 p.m. to 12-30 a.m. and he was off duty at the time of the accident to the appellant. He says that it was not true that he had asked the appellant to knock down mangoes from a tree in the compound and that when the appellant was knocking down the mangoes, the pipe with which he was knocking down the mangoes struck the overhead electric wires.
Dudhnath stated that he was not on good terms with Pyara Singli and that Pyara Singh threatened Dudhnath to get him into trouble as soon as he got an opportunity. Taking, therefore, the evidence of these three witnesses, that is, Philip D'Abreo, Pyara Singh and Dudhnath, while the evidence of Philip D'Abreo is not helpful on the question at issue, the evidence of Pyara Singh no doubt supports the case of the respondent Company. But when one turns to the evidence of Dudhnath, the story which Pyara Singh gives in his evidence is not supported by the evidence of Dudhnath.
8. One Hardd Ernest Walters, a Plant Engineer, and a Security Officer in the respondent Company, has been examined in the case and his evidence was that on 11-11-1953 & worker by thename of Santaram came to his flat and told him that a watchman had met with an accident by electricity. It is to be noted that this Shantaram has not been examined in this case.
When he got this information, he made enquiries from the workmen, as to how the accident occurred and the enquiries revealed that the appellant knocked down mangoes from a tree in the compound with a galvanised iron pipe. He says that he made enquiries from workmen and when one turns to his cross examination, the two workmen with whom he made enquiries are Philip D'Abreo and Pyara Singh.
Now, according to Walters, he submitted a report to the Works Manager by the name of Warren and he says that the original report which was made by him was not to be found. In cross-examination, he admitted that he himself did not personally see the accident, that he recorded in writing what Philip D'Abreo and Pyara Singh told him, but he said that he did not take down the signatures below the writing.
On behalf of the respondent company, an entry has been produced by witness Babu Sidhu Dhende. He said that he searched for the accident report which was made by Warren to the Chief Inspector of Factories, but the report was not to be found and instead he produced the entry. The remaining witness is one N. Subharain Rajan.
This witness was a typist in the respondent company. He said that Walters dictated to him a report of the injury by electric shock caused to the appellant Pandye and he typed out the report. He says that Walters then signed the report and he handed it over to Warren, the Works Manager. He also stated when shown a copy of the report of 11-11-1953, that the copy shown to him was a copy of the report he typed.
In cross-examination he admitted that the copy which was shown to him was not a carbon copy of the report which he had typed and he stated that he took out one copy of the report and he gave the original report to Warren and the copy to Walters. This evidence, therefore, shows that the original report went to Warren and the copy of the report was given to Walters. (9) The learned Commissioner in coming to the conclusion he did, relied upon the evidence of Pyara Singh and the report made by Walters and also upon a local inspection which the Commissioner made in the presence of the appellant's Advocate and also in the presence of the Advocate for the Insurance Company.
The Commissioner stated that Pyara Singh impressed him as an honest and truthful witness and he accepted the evidence of Pyara Singh because his evidence received corroboration from the report. The report made by Walters stated that he had a bag of two mangoes which had been broken from the tree.
Now, this statement is not to be found in the evidence of Walters. But what is more important is this: the Original Report is not forthcoming. If the original report is lost, that is if the primary evidence is not available, secondary evidence may be given. But when the typist was asked this question, he stated that the copy which was shown to him was not a carbon copy of the report which he had typed.
Mr. Deshpande argues that the typist had made a copy of the report and it was that copy which was produced by witness Walters. If one turns however to the evidence of the typist N. Subharam, it would be clear that the copy which was shown to him was not the copy which he himself made or a copy which he himself typed.
What he Etated was that the copy which wasshown to him was the copy of the report which he typed. This suggests that the witness' evidence was that he typed the report and a copy which was shown to him was a copy of that report. Now, this copy has gone upon the record as admissible evidence. But in the face of the evidence of N. Subharam, this report cannot be received in evidence, firstly because this is not the original report and secondly because it is not secondary evidence since it is not a carbon copy of the report which was dictated by Walters and typed by witness N. Subharam.
Apart from this infirmity, the report stated, according to the judgment of the learned Commissioner, that Walters had a bag of two mangoes. To this, however, Walters does not refer in his evidence. In our view, therefore, this report is not admissible in evidence and if the report is not admissible in evidence, the report cannot corroborate the testimony of Pyara Singh.
Apart from this, as I have already pointed out, the evidence of Pyara Singh is in conflict with the evidence of Dudhnath. While Pyara Singh stated that Dudhnath asked the appellant to knock down the mangoes, the evidence which Dudhnath himself gave was that he did not tell the appellant to knock down the mangoes.
Further, the Commissioner appears to have relied upon what he called a local inspection. The date of this local inspection is not apparent from the record. But it is clear the inspection took place in the course of the proceedings which were initiated on 2-7-1954. Now, as a result of the local inspection, the learned Commissioner has observed as follows
'The overhead high-tension electric wires run through the factory's compound at a height of about 25 feet from the ground, and there was a large mango tree short distance away from the overhead high-tension electric wires, and a large branch of the mango tree near the overhead high-tension electric wires had been cut off, and was lying on the ground.'
Now, if the local inspection took place in 1954, it is difficult to see why the local inspection should have a bearing with reference to the point at issue between the parties. That there were mango trees in the compound of the factory cannot be disputed because that is the evidence in the case.
The question however remains whether it was the appellant who lifted the G. I. pipe in order to knock down the mangoes or whether, as the appellant stated he lifted the G. I. pipe in order to take it and keep it in a safe place. Now, the learned Commissioner with reference to the G. I. pipe stated that it was almost impossible to hold a G. I. pipe about 25 feet long at one end and raise it up.
This observation was made by him with reference to the story of the appellant that the appellant wanted to keep it at a safe place. Now, if it is not possible for a person to hold a G. I. pipe 25 feet long at one end to raise it up in order to take it to a safe place, we think it would be equally impossible for a person to hold a G. I. pipe 25 feet long in order to raise it for knocking down mangoes from a mango tree.
There is no evidence to show as to what the weight of that G. I. pipe is, nor is there any evidence to show as to what was the width of the G. I. pipe. But it is clear that it was a galvanised iron pipe as long as 25 feet. It is not easy to lift a G. I. pipe of that magnitude in order to knock down mangoes from a mango tree.
10. The result therefore, is that there la no evidence in support of the contention raised by the respondents in the written statement of the Insurance Company. The evidence of Pyara Singh is contradicted by the evidence of Dudhnath and if the report is not admissible in evidence, the evidence of Pyara Singh is not corroborated by the report made by Walters.
This leaves the story of the appellant in the field and we accept it for the reason that the appellant was a watchman, that he had to take a round of the factory compound and if he noticed a G. I. pipe in the compound, it would be his duty to lift it up and to take it to a safe place.
It is noteworthy that in the written statement filed by the company it was not suggested that it was not the duty of the appellant to lift the G. I. pipe in order to take it to a safe place. That being so, we hold that the learned Commissioner was wrong in coming to the conclusion that it was the appellant who was responsible for the accident and that it was not an injury received by the appellant as a result of an accident arising out of his employment.
11. The appellant was on duty at 8-30 a.m. on 11-11-1953. It was the time when he ought to be on duty. It was also the place where he ought to be on duty and if his duty was, which is not contradicted, that he should take the G. I. pipe to a safe place, then it is clear that the appellant received injury as a result of an accident arising out of the employment.
There is a causal connection between the accident and the employment. In this case, the compensation claimed by the appellant is not disputed. That being so, we must allow the application made by the appellant. The view we take is supported by a decision of this Court reported in -- 'Bhagubhai v. General Manager, Central Rly.', (S) : AIR1955Bom105 (A).
12. The result is that this appeal must succeed. The appeal will therefore be allowed andthe order made by the Commissioner refusing theapplication for compensation will be set aside. It is directed that ihe appellant will be entitled torecover from the respondent company the amountclaimed by him which is a sum of Rs. 4,900/-. Theappellant will be entitled to recover from the respondent company the costs of this appeal as wellas the costs before the Commissioner.