Sanjeeva Row Nayudu, J.
1. This appeal is directed against the judgment and Order of the Employees' Insurance Court, Hyderabad dated 3-11-1958 in Case No. 12 of 1957 on the ma of the said Court, allowing a claim for Rs. 4,802-8-0 being the arrears of Employees' contribution payable by the present appellant to the Employees' State Insurance Corporation, Hyderabad, on account of the accident which occurred on 27-6-1956 in which one Sri Gowla Mallayya, an employee of the employment sustained injuries and death.
2. Two points have been urged before me by Mr. B. C. Jain, the learned counsel for the appellant in support of the appeal viz., (1) that there was no negligence on the part of the appellant, and that the accident in question did not result by reason of the appellant's negligence to observe any of the safety rules laid down or any enactment applicable to a factory or establishment, or by reason of any wrongful act of the employer or his agent, so as la tender the application of Section 66 of the Employees' State Insurance Act, 1948, making the appellant liable to the Employment State Insurance Corporation (hereinafter referred to as the Corporation) to reimburse the Corporation, the contributions paid by them under the Act;
(2) that the accident in question did not arise out of and in the course of the employment of the deceased victim, and therefore, there was no employment injury as such which would render the application of Section 66 of the Act possible.
3. Before I deal with the above contentions, it is necessary to refer to the relevant provisions of Employees' State Insurance Act, Section 2(8) of that Act defines the expression 'employment injury' in the following terms:
'Employment injury' means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment in a factory or establishment to which this Act applies, which injury or occupational disease would entitle such employee to compensation under the Workmen's Compensation Act, 1923 (VIII of 1923) if he were a workman within ths meaning of the said Act.'
It is necessary, therefore, to refer to the corresponding provisions in the Workmen's Compensation Act in Order to appreciate the scope of the definition in the Employee's State Insurance Act. Under the Workmen's Compensation Act, Section 3(1) is as follows:
3. 'Employer's liability for compensation:
(1) 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.' It is interesting to note that same expressions occur both in Section 2(8) of the Employees' State Insurance Act as well as the corresponding provision in the Workmen's Compensation Act namely, that the accident Should arise out of and in the course of the employment of the victim. Reference need also be made to Section 24 of the Factories Act. This Section is as follows:
24(1) 'In every factory-
(a) suitable striking gear or other efficient machanical appliance shall be provided and maintained and used to move driving belts to and from fast and loose pulleys which form part of the transmission machinery, and such gear or appliances shall be so constructed, placed and aintained as to prevent the belt from creeping back on to the fast pulley.'
Reference may be made also to Section 66 of the Employees' State Insurance Act which is as follows:
66(1) 'Where any employment injury is sustained by an insured person as an employee under this Act by reason of the negligence of the employer to observe any of the safety rules laid down by or under any enactment applicable to a factory or establishment or by reason of any wrongful act of the employer or his agent, the corporation shall notwithstanding the fact that the employer has paid the weekly contribution due under this Act in respect of such insured person, be entitled to be reimbursed by the employer or the principal who is liable to pay compensation under Section 12 of the Workmen's Compensation Act, 1923 (VIII of 1923) the actuarial present value of the periodical payments which the Corporation is liable to make under this Act:'
The facts out of which this appeal has arisen may be briefly noticed: The appellant is a company running an oil mill in Hyderabad, known as the Jayanthilal Dhanji and Company Oil Mills. In their employment was one Gowla Mallayya, an unskilled worker, whose duty was to feed the oil mill by pouring groundnut seeds into the crushing machine. This crushing machine is worked apparently by a belt, moved by the power driven shaft, the belt being mounted on to a pulley fixed to it as usual. On 2/-6-1956 the date of the incident with which we are concerned in this case and sometime before the accident the stock of groundnut seeds supplied to Gowla Mallaiah was finished and the crushing machine had therefore to keep moving without being fed by any seeds. Hence arose the question of stopping the crushing machine, which continued naturally to run along with the general machinery operating on the premises. The mechanic and fitter whose duty it was to take necessary action to disconnect the crushing machine from the rest of the moving machinery so that it may stop, was absent from the premises, it is not necessary to notice the cause for his absence, although it was stated that he had gone home to help himself to a drink of water.
This Gowla Mallaiah, finding that the crushing machine was running unnecessarily with the possible consequence of serious damage to it, went down from the place where he was working, to shift the belt off the moving pulley connected to the crushing machine, and as the factory did not contain the necessary equipment by way of a fast and loose pulley arrangement in Order to safely facilitate such disconnection, the said Gowla Mallaiah tried to kick the belt of the moving pulley, so that it may slip and get lose and the crushing machine may thus be stopped. In doing so, by accident, his leg got caught between the pulley and the belt and he was pulled up to a height of about six feet from where he fell down and died instantaneously.
4. Apparently, there is no dispute as regards the reimbursement payable to the Corporation by the employment, so that the only question that remains to Se determined in this appeal is whether the employment (appellant) is liable to reimburse the Corporation in respect of the amounts payable by the Corporation to the heirs of the deceased employee viz., Gowla Mallaiah. This takes us to the consideration of the two points that have been raised by Mr. Jain, the learned counsel for the appellant.
Taking up the first point, first, I experience no difficulty in finding this point against the appellant, because there is admittedly, in this case a clear non-compliance with the statutory requirements contained in Section 24 of the Factories Act namely, that of providing, maintaining and using of suitable striking gear or other efficient mechanical appliance to move qriving belts to and from fast and loose pulleys which form part of the transmission machinery. It is admitted that instead of complying with the Section and providing the equipment indicated therein, it had been the practice in this factory to effect the movement of the belt with some rod, or other crude, contrivance, which was obviously unsafe. Hence, there is no doubt that the appellant is guilty of negligence in not complying with the safety rules laid down in Section 24 of the Factories Act applicable to the factory in question. Hence, if the injury could be characterised as an employment injury, there is no doubt that the liability under Section 66 directly arose and Mr. Jain fairly conceded that that was so.
5. That next and the only question, therefore, that requires to be considered in this appeal is whether the injury sustained by Gowla Mallaiah can be characterised as an employment injury within the meaning of Section 2(8) of the Employees' State Insurance Act.
6. It is contended by Mr. Jain that the accident in this case did not arise 'out of and in the course of' the employment of Gowla Mallaiah and therefore the injury sustained by him could not be regarded as an employment injury within the meaning of the definition given in the Act. The point sought to be made out by him may be briefly stated as follows:
The deceased Mallaiah was an unskilled worker, He was not qualified to do the job of a fitter or a mechanic. It is the duty of the mechanic or the fitter employed in the factory to do the work of moving the machinery or shifting belts from moving pulley and not that of the deceased Mallaiah. Hence, he contends that the deceased exposed himself to a peril which was on account of his own action unconnected with his employment, as it was not part of the duty of the deceased to attend to the shifting of the belt from the moving pulley. He did this on his own responsibility and without any direction or Order from the employment, and hence the accident must be regarded as a result of something which the deceased did and which he need not have done as a result of his employment.
On this basis, Mr. Jain contended that the accident could not be regarded as arising out of or in the course of the employment of the deceased, and hence the injury sustained by him could not be regarded as an employment injury within the meaning of the Act. He places reliance on a decision reported in Gouri Kinker v. Radha Kissen Cotton Mills, AIR 1933 Cal 220, in support of the proposition that where the accident is the direct consequence of added peril for which the victim alone is responsible, there is no question of the employment being liable to pay the compensation under the workmen's Compensation; Act.
In that case, as found by the learned Judges who decided that case, the accident had occurred because of an added peril produced by the workman himself by interfering with the tin rollers in motion which had been 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 in the course of his employment, as he was only a piecer whose duty it was to connect the two ends of the cotton threads when they got apart. On the facts in that case, the story of the workman who did not die but only was injured, was disbelieved namely, that his Dhoti was caught between the rollers when he was actually standing at the table and carrying out his duties. It was, in fact, found in that case that the accident could not have happened except by the workman sitting down on the ground and carelessly allowing his Dhoti to get mixed up Between the rollers. In this case, no propostion of law as such has been laid down, and whatever observations have been made must he regarded in the light of the particular facts with which the learned Judges in that case were dealing.
7. My attention has been drawn to a decision of this Court reported in Anjaiah v. Lakstimaiah, : (1960)IILLJ434AP , wherein the legal principles involved in determining whether the accident had arisen within and in the course of a person's employment were summed up as follows:
'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 it 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 of his duties as to be regarded as something foreign to them. Applying these tests to the instant case, there is no doubt that at the time the accident occurred the deceased was in fact employed on the duty of his employment which was at and in connection with the crushing machine. It is also clear that the accident occurred on the premises or the mill and close to the place where he was normally employed, and although the immediate act which led to the accident was no doubt foolish and a risky one, It cannot be said that that act is so remote from the sphere of his duties as to be regarded as something entirely unconnected with his employment. It may be true that it is not part of the duties of the deceased to kick the belt from the moving pulley which normally form part ot the duties of the mechanic and the fitter. But obviously, the deceased was interested in the course of his employment to see that the crushing machine did not keep on working when there was no groundnut to feed it. Apart from the fact that it involved waste of power, there was apparently the added risk of the machine getting damaged.
So, whatever the deceased did, must be regarded as having been done by him in the best interests of his employer, and in Order to prevent the machine from getting damaged, thereby resulting in loss to the employment. He would not have had to stop the machine had he not been working at the crushing machine; he would not have had to stop the machine had not the supply of the groundnut finished; he would not have had to Stop the machine had the mechanic been present; and he would not have had to kick the belt off the moving pulley, had the employment complied with the statutory requirements of Section 24 of the Factories Act. Hence it is clear that there is direct, intimate and casual connection between the accident, the act which resulted in the death of Gowla Mallaiah and his employment, so as to eliminate any possible conclusion that the accident was something which had no relation whatsoever to the sphere of the duties of the deceased. I experience no difficulty on the fact of the instant case to come to the conclusion that the accident in this case did arise out of and in the course of the employment of the deceased, so that the injury sustained by him which resulted in his instantaneous death, was undoubtedly an employment injury within the meaning of See. 2(8) of the Employee's State Insurance Act.
9. In the result, this appeal fails and is dismissed. I make no Order as to costs.