Sanjeeva Row Nayudu, J.
1. This appeal is directed against the judgment and order of the Addl. Commissioner for Workmen's Compensation, Andhra, D/- 30-5-1958. awarding compensation to the respondent in a sum of Rs. 1260/- for the loss of his lett fore-arm below the joint.
The circumstances in which the claim for compensation arose are briefly as follows:
The appellant was the owner of the Saw Mill at Vijayavada, in which the respondent, Lakshmayya, was employed as a worker. On 1-7-1955 as usual, the respondent was working at the Saw Mill. His duties, according to the appellant, were those of a helper. It is pointed out that usually four persons are employed to work at the Saw Mill in question --one is the cutter, whose duty it is to teed the saw mill and push the logs to be cut by pressing the wine against the saw in motion. There are two workers, who stand on either-side ot the saw to ensure that the cut logs are collected and returned to the cutter to enable him to do a second or further cutting of the logs in question.
The helper i.e., the respondent is supposed to help the cutter as well as the workers. Primarily, his duty is to stand on the opposite side of the saw and receive the cut pieces and return them to the workers for the purpose of being taken back to the cutting end of the saw for enabling the cutter to start re-cutting of those logs whenever necessary. It is the case of the appellant that the centre cut ot the log was made on the day previous to the day of the accident, that is, on 1-7-1955 and that on that day a second cut was made in the log. At or about the time of the accident, every one in the mill appears to have left, except the cutter and the respondent.
The worker had left his place of duty on the side of the saw, in order to place cut log, on a table towards the back of the saw. Apparently during the period he was temporarily absent from his place, the respondent, seeing that the log was moving away from the guide channel in which the log had to remain so that the cutting by the saw may be correctly effected, came on to the side of the saw, and as there was no worker there, he tried to push the log, which was getting out of the guide, into position, with his left hand. In doing so, Ms left hand was caught in the saw and was cut away at a point slightly below the left elbow; with the result that the hand had to be amputated.
2. The evidence in the case disclosed that at the time when the respondent was pushing the log; which was getting out of the guide, into position, the cutter alsb happened to exert pressure on the log and pushed it forward, which resulted in the accident, as seen from page 8 of the printed record in the case. The cutter Nookaraju pushed the log inthe opposite direction very quickly with the resultthat the respondent's hand was under the saw andwas cut. According to the evidence in the case, theaccident was due to the quick push of the log bythe cutter Nookaraju, who was apparently not experienced.
3. In any case, the following facts are beyond dispute according to the evidence:
1. That the accident occurred on account of the hand of the respondent coming into contact with the saw, which was in motion;
2. that this occurred when the respondent was attempting to ensure that the log was cut along the proper line and did not go out of the guide, which would not be possible if the log got out of the guide, and he was only trying to bring the log into proper position;
3. that at this very time, the cutter, who was not quite experienced, quickly also pushed the log and it was this that has resulted in the hand of the respondent getting caught under the saw.
4. On the above facts, there can be no doubt that the accident occurred on account of the saw cutting the left arm in the course ot the cutting of the log. It is contended by the learned counsel for the appellant that it was not one of the duties oi the helper to push the log into position and that he was actually doing the work ot the worker and therefore the accident could not be held to have occurred in the course of the employment of the helper. In the first place, nothing has been produced to show that there were any written instructions hung up on the premises showing the respective duties of the helper, the worker, and the cutter. In fact, as the learned Commissioner found, there was no such division of employment or duties.
There were apparently no cut and dry division of duties in such a small mill of the kind concerned in this case. It would have been entirely a different matter, had the duties of each work been specified and there was also a prohibition or a warning, against each person undertaking any duty which did not strictly fall within the scope of duties allotted to him.
5. The simple point to consider is whether the accident occurred in the course of the employment or the claimant and was incidental to such employment.
6. The learned counsel for the appellant relies on two decisions reported in Gouri Kinka Bhakat v. Messrs. Radha Kissen Cottou Mills, AIR 1933 Gal. 220 and Nawab All v. Hanuman Jute Mill, AIR 1933 Cal 513. These cases are distinguishable on the facts because in those cases, the accident occurred not in the course of the employment of the workman, nor within the sphere of his duties.
In the one case i.e., in AIR 1933 Cal. 220 the accident occurred because of an added peril produced by the workman himself by interfering with the tin rollers in motion placed underneath the table at which he had to work, in spite of the fact that the tin rollers had been screened off and the workman had nothing to do with them, as he was only a piecer whose duty it was to connect the two ends of cotton threads when they get apart. On the facts also, the story of the workman was disbelieved that his dhoti got caught between the rollers. This decision had therefore no application to the tacts of the present case. AIR X933 Cal. 513 is again another case where the workman sutfered an accident, when he was tightening one slack ring in a wheel.
It was not at all part of his duty to attend to any such work, particularly when the machines were in motion, which was obviously a dangerous tiling to do. It was also contended in the case that the applicant received injuries owing to putting his hand inside the gearing box with the object of removing tools therefrom when his hand got caught in the wheels of the machine, which was in motion. It was found by the commissioner in that case that the appellant's case as to the reason of the accident has not been established, and on the other hand the Commissioner found that the accident was due to the cause as alleged in the written statement of the employer and it was apparently also not argued before the Commissioner thai, on the facts, the accident arose out of the employment. In such cases, the decisions must be confined to the facts on which they are based.
7. Section 3(1) of the Workmen's Compensation Act is as follows:
'If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be so liable--
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding seven days;
(b) in respect of any injury not resulting in death, caused by an accident which is directly attributable to
(i) the workman having been at the time thereof under the influence of drink or drugs Or
(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed for the purpose of securing the safety of workmen, or
(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen; x x x x x '
8. It is not seriously disputed that the provisions of Section 3 of the Act do not apply, in the instant case.
9. The only point, therefore, that requires to bo considered in determining whether the workman is entitled to the compensation for the personal injuries sustained by him, is, whether the accident had arisen out of and in the course of the employment.
10. In order to appreciate the scope and operation of this clause, it may be useful to notice some English decisions bearing on this subject, In Barnes v. Nunnery Colliery Co. Ltd., 1912 AC 44, a boy employed at a colliery, noticing that an endless rope having a number of empty tubs attached to it was about to start for a level where his work was, jumped into the front tub with three other boys, in order to ride to his work, instead of walking as he ought to have done, and in the course of the journey his hand came in contact with the roof of the mine and he was killed.
It was also established in that case that it was a common practice for the boys to ride to their work in the tubs, but it was expressly forbidden and the prohibition was enforced as tar as possible. Upon a claim by the father for compensation under the Workmen's Compensation Act, 1966 the county court judge found that the accident arose out of the deceased's employment, which order was set aside by the court of appeal and on appeal against the decision of the Court of Appeal, the House of Lords held that there was no evidence to justify this finding, and that the death was caused by an added peril to which the deceased by his own conduct expressed himself, and not by any peril involved by his contract of service.
11. In Plumb v. Cobben Flour Mills Co. Ltd., 1914 AC 62, the appellant was employed with two others in a room in the respondent's mill to stack bundles of sacks. The bundles were always stacked by hand. After the men had raised the bundles as high as they could by hand the appellant resolved to utilize for this purpose a revolving shaft which ran along with the room near the ceiling but was not used in connection with any machinery in that room. A rope was thrown over the shall and one did was made fast to a bundle which was then handled by means of the shaft to the top of the stack.
The appellant, who was Standing on the stack, while endeavouring to extricate a bundle which had been hauled too high and had stuck between the shaft and the ceiling, got his arm entangled in the rope and was carried round the shaft and injured. It was held that there was no evidence to support a finding by the county court judge, that the accident arose out of the workman's employment, within the Workmen's Compensation Act. The following observations at page 68 are illustrative;
'Was the risk one reasonably incidental to the employment? And the question may be further amplified according as we consider what the woman must prove to show that a risk was an employment risk, or what the employer must prove to show it was not an employment risk.
As regards the first branch, I think the point is very accurately expressed by the Master of the Rolls in the case of Craske v. Wigan, (1909) 2 KB 635 where he says:
'It is not enough for the applicant to say 'The accident would not have happened if I had not been engaged in that employment or if I had not been in that particular place' . He must go further and must say 'The accident arose because of something I was doing in the course of my employment or because I was exposed by the nature of my employment to some particular danger.' ' As regards the second branch, a risk is not incidental to the employment when either it is ndt due to the nature of the employment or when it is an added peril due to the conduct of the servant himself. Illustrations of the first proposition wilt be found in all the cases where the risk has been found to be a risk common to all mankind, and not accentuated by the incidents of the employment. In application to facts the dividing line is sometimes very nearly approached, but I think that in all the cases the principle to be applied has been rightly stated.
x x x x x An Illustration of the second proposition will be found in the case already cited of (1912) AC 44 where Lord Atkinson said: 'The unfortunate deceased ir. this case lost his life through the new and added peril to which by his own conduct he exposed himself, not through any peril which his contract of service, directly or indirectly, involved or at all obliged him to encounter'. Lord Atkinson added the words 'It was not, therefore, reasonably incidental to his employment. That is the crucial test' '.
In Mrs. Margaret Thom or Simpson v. Sinclair, 1917 AC 127, a woman employed by a fish curer, while working in a shed belonging to her employer, was injured by the fall of a wall which was being built on the property of an adjoining proprietor, with the result that the roof of the shed collapsed and the woman was buried under the wreckage. It was held in that case that the accident arose out oi her employment within the meaning of the Workmen's Compensation Act, 1906. Viscount Haldane approved the observations of the Master of the Rolls extracted earlier in the judgment, namely, that the claimant should be able to say that 'the accident would not have happened if I had not been engaged in that employment or if I had not been in that particular place, and the accident arose because of something I was doing in the course of my employment, or because I was exposed by the nature of my employment to some peculiar danger'. It is further observed by Lord Parmoor, in the case, at page 146 as follows:
'In my opinion, if the conditions of the workman's employment oblige him to work in a particularbuilding and thereby expose him to the risk of theaccident which has happened, this may be describedas a peculiar danger to which, from the nature ofthe employment, the workman is exposed.
x x x x A risk may be accentuated by the incidents of the employment when the conditions of the employment oblige the work to be carried on in a particular building which exposes the workman to the risk of the accident which in fact has occurred. An example of the application of this principle is found in the case of Andrew v. Failsworth Industrial Society, (1904) 2 K. B. 32 at p. 34, which is approved in the opinion of Lord Dunedin.
Collins M. R. says: 'Though it' (the accident) 'may not be connected with, or have any relation to, the work the man was doing, yet, if in point of fact the position in which the man was doing the work, and the place he must necessarily occupy while doing the work are a position and a place of danger which caused the accident, it may fairly be said that it arose out of the employment, not because of the work, but because of the position',
To sum up, the legal principles involved in determining whether the accident had arisen out of and in the course of a person's employment, it is enough if jt is established that (1) at the time of the accident he was in fact employed on the duties of his employment; (2) that it occurred at the place where he was performing those duties; and (3) that the immediate act which led to the accident is not so remote from the sphere ot his duties as to be regarded as some-thing foreign to them.
12. Applying these tests to the present case, it is clear that the workman was doing his work as the helper at the time of the accident. His work was to attend a saw in the mill, and it was while he was in the act of helping in the course of his employment as helper in the working of the saw, by helping in the cutting of the logs in the correct and proper manner by keeping the log which was being cut, in the groove or guided area, which he attempted to do by pushing the log into position, that he sustained the accident. Therefore, not only did the accident occur in the course of the fulfilment of his duties, but it directly arose out of his employment. The three conditions required to be fulfilled to entitle a workman for compensation indicated above, are thus satisfied in this case, and consequently the workman is entitled to compensation under the Act.
13. As regards the quantum of compensation, there is no serious dispute, as the calculation has been correctly made in accordance with the provisions of the Act and Schedule II thereof.
14. This appeal, therefore, fails and is dismissed with costs.