Sanjeeva Rao Nayudu, J.
1. This appeal is filed under Section 30 of the Workmen's Compensation Act, hereinafter referred to as 'the Act' by the Manager, Shree Krishna Rice and Flour Mills, Samalkot, hereinafter referred to as 'the appellant' questioning the judgment and order of the Additional Commissioner, Workmen's Compensation, Andhra Pradesh, Hyderabad, dated 12 June 1958 in Workmen's Compensation Case No. 85 of 1956 on the file of the said Additional Commissioner, questioning the validity of the award of compensation made to favour of the respondent in this appeal and the applicant before the Additional Commissioner.
2. The facts out of which this appeal has arisen may be briefly stated: The respondent is the widow of one Challapalli Gangaraju, hereinafter referred to as 'the deceased,' and she applied to the Additional Commissioner, Workmen's Compensation, for awarding compensation in a sum of Rs. 1,500 consequent on the death of her husband, the deceased, on 7 July 1956 due to electric shock while he was cleaning the bore-well pipe in the factory premises of the appellant. The deceased was working on the day of the accident, viz., 7 July 1956, and at the time of the accident, on the premises of the appellant's factory which was a rice and flour mill. His work consisted in carrying paddy bags, Weighing them at the weighing balance and Stacking the rice bags. The deceased was one of a group of workers called muttah of which Kuntelu Venkataraju, examined as P.W. 4, was the maistri. During the course of his work on the premises of the appellant's mill, the supply of water to the labourers for drinking and washing purposes which was ensured from a bore-well, had apparently ceased on account of the choking of the bore-well pipe. The engine-driver of the factory took the deceased and one Achantal Chandra Rao, examined as P.W. 3, and deputed them to remove the bore-well tube for the purpose of cleaning and fixing so that the supply of water may be resumed. Accordingly, the two persons including the deceased got into the well and were lifting the tube for the purpose of dismantling. In doing so, the top portion of the tube came into contact with overhead electric wires, as a result of which the deceased was electrocuted and died. Hence the claim by the widow of the deceased for compensation. The learned Additional Commissioner, after considering the entire evidence in the case adduced on either side, came to the conclusion that the deceased was a workman employed on the premises at the time of the accident. He further held that the accident occurred in the course of and out of the employment of the deceased by the appellant. He fixed the average monthly wages of the decessed on the basis of the figures collected from the account book produced by the appellant (Ex. A. 5) at Rs. 35-12-0 per month and accordingly directed the appellant to pay a compensation of Rs. 1,200 calculated at the rates given in Sch. IV of the Act.
3. Two main points have been urged by Sri K.B. Krishnamurthi, the learned Counsel for the appellant. The first one is that the deceased was at best a casual labourer not employed by the appellant but employed by the maistri (P.W. 4) and hence he did not satisfy the definition of a 'workman' as set out in Section 2, Sub-section (n), of the Act. The second point contended for by Sri K.B. Krishnamurthi is that the accident did not arise in the course of and out of the employment of the deceased by the appellant, even if it is assumed that the deceased was a workman in the employment of the appellant at the time of the accident.
4. On the first point, Sri K.B. Krishnamurthi pointed out that there was no privity of contract between the deceased and the appellant, inasmuch as it was not the appellant that engaged the deceased but it was the maistri (P.W. 4) to whom a lump-sum payment was made to cover the labour charges of his entire muttah for and on the basis of the quantum of work turned out. As against this,. Sri Gangadhara Rao, the learned Counsel for the respondent, contended that P.W. 4, the maistri, was by no means an independant contractor within the meaning of Section 12 of the Act, that ho was as much a worker and a workman as the deceased and the other members of the muttah, that it is common practice for a group of labourers to work as a muttah with one of them being designated as a maistri for purposes of collecting and distributing the wages equally among them, that the maistri did not receive any commission or extra compensation or remuneration for holding the office of maistri and that he too had to do the same work as the other labourers and receive the same remuneration. He points out that, in the circumstances, there is no Question of the maistri, P.W. 4, being regarded as an independent contractor where the contract is between the independent contractor and the management, and the persons employed by the independent contractor not having anything to do whatsoever with the management. In support of his contention; he placed reliance on a number of decisions of the Madras High Court in Jeethalal Mankji v. Saradambal Ammal A.I.R. 1936 Mad. 941, Arumugham v. Nagammal A.I.R. 1949 Mad. 462, Varadarajulu v. Masaya Boyan 1954--II L.L.J. 426 and Sambasiva Chetti v. Mannankatti 1959-II L.L.J. 630.
5. In Jeethalal Mankji v. Saradambal Ammal A.I.R. 1936 Mad. 941 (supra), the deceased was employed as a bricklayer by a maistri who was himself employed by the appellant. While engaged upon a scaffolding, he fell and sustained fatal injuries. His widow claimed compensation. The appellant's contention was that the deceased was employed on work of a casual nature and otherwise than for the purpose of his trade or business. It was therein held on the facts of that case that there was nothing to prevent a person being engaged In more than one line of business, that the appellant had hotel-keeping as the main line of his business and purchasing of houses and letting them out as a side line, and hence repairing such buildings was a necessary part of that business and as such he was liable to pay compensation.
6. In Arumugham v. Nagammal A.I.R. 1949 Mad. 462 (supra), A had a contract to unload wagons. S was his maistri who worked under him and engaged coolies. A was generally at the workspot and S used to supervise the work of the coolies. The deceased cooly was working for about eight months when he died by accident during the course of employment. It was not of a casual nature and that he was not employed otherwise than for the purpose of the employer's trade or business and that therefore the deceased was a 'workman' within the meaning of Section 2(n) of the Act and A was liable under Section 12 thereof to pay compensation. Dealing with the contention that the deceased was not a workman, it was therein observed that the definition of 'workman' did not Import in the contract of employment powers of dismissal or powers of direct superintendence or control, and that a cooly employed by a maistri for a specified remuneration on behalf of the principal to do the work of the principal is a 'workman' and that the employment of the cooly by the maistri is a contract of service within the meaning of the definition.
7. Again, in Varadarajulu v. Masaya Boyan 1954--II L.L.J. 426 the employer was a contractor for the formation of a road and the deceased was employed as a cooly-maistri under him on Rs. 2-8-0 per day. The deceased brought four coolies with him, and along with them was engaged in breaking stones. The deceased was being paid a lump sum of money every fortnight and he was a regular and continuous worker and not a casual labourer. It was therein held that the deceased was a workman within the meaning of the Act, In that case, the workmen had to reach the workspot, which was about seven miles away from their village, in a lorry provided by the employer at a nominal charge and had also to use the same form of conveyance for the purpose of returning to the village after the work was finished. During one of those trips, the workman was injured by the capsizing of the lorry. It was held that the case fell within the scope of the exception to the general rule laid down in St. Helens Colliery Co. Ltd. v. Hewitson 1924 A.C. 59 and that in the circumstances it might be implied that there was an obligation on the part of the employer to provide the transport, and that there was equally an obligation on the part of the workman to make use of it and that the injury occurred out of and in the course of employment. It must be noticed in this case that the accident did not occur when the workman was in the process of carrying out his actual duties, viz., the daily work for which he was paid wages.
8. In St. Helens Colliery Co. Ltd. v. Hewitson 1924 A.C. 59 at 70, the following observations occur, which are relevant to the determination of the question whether, even when a workman is not actually doing the work which he ought to do in the course of his employment, but was undertaking a Journey for the purpose of returning from the place of work to the place of living, and an accident occurs, he would be entitled to compensation. A consideration of this decision has also a material bearing on the next point to be decided in the case:
The difficulty of reconciling all the authorities on this question as to the course of a workman's employment arises, I think, from the omission on the part of some of the Courts to frame some test which must be satisfied in order to bring an accident within the course of a workman's employment, leaving the county court Judge in each case to decide whether the evidence establishes that the test is satisfied. I myself have been rash enough to suggest a test, namely, that a workman is acting in the course of his employment when he is engaged in doing something he was employed to do, or what is, in other and I think better words, in effect the same thing, namely, when he is doing something in discharge of a duty to his employer, directly or indirectly, imposed upon him by his contract of service. The true ground upon which the test should be based is a duty to the employer arising out of the contract of employment, but it is to be borne in mind that the word 'employment' as here used covers and includes things belonging to or arising out of it.
For instance, haymakers in a meadow on a very hoc day, are, I think, doing a thing in the course of their employment if they go for a short time to get some cool water to drink to enable them to continue the work they are bound to do, and without which they could not do that work, and workmen are doing something in the course of their employment when they cease working for the moment and sit down on their employer's premises to eat food to enable them to continue their labours.
Sambasiva Chetti v. Mannankatti 1959--II L.L.J. 630 is an authority for the position that even though an employer may employ a, workman through the agency of a maistri, the employee would be a workman within the meaning of Section 2(n) of the Act. It is unnecessary to multiply authorities. Suffice it to say that in the present case the mere fact that the deceased was one of the four or five coolies constituting a muttah In charge of the maistri (P.W. 4) by itself did not have the effect of the deceased not being a workman within the meaning of the Act. I respectfully follow the observations of their lordships of the Madras High Court in the decisions quoted above, viz., Arumugham v. Nagammal A.I.R. 1949 Mad. 462 and Varada rajulu v. Masaya Boyan 1954--II L.L.J. 426 (supra).
9. Another objection taken by Sri Gangadhara Rao is that the test as to whether a particular person in employment is a workman or not is a question of fact. That being so, it could not be agitated in this appeal, which, according to Section 30 of the Act, could only be entertained on a substantial question of law. In Ramaswami v. Poongavanam 1953--I L.L.J. 735 it was held that whether a person is a workman or not is a question of fact. It is true that the decision has to be reached by drawing an inference from proved facts. But nevertheless it does not cease to be a question of fact, and in this appeal the decision has to proceed on the footing that the finding of fact reached by the Additional Commissioner is correct. Apart from this point raised by Sri Gangadhara Rao, I experience no difficulty on the merits of the case, and I agree with the Additional Commissioner in the finding reached by him that the deceased was a workman-within the meaning of Section 2(n) of the Act.
10. The next question to be considered is whether the accident occurred in the course of or arose out of the employment of the deceased. A number of decisions have been cited in support of the proposition that all that is required in reaching a decision on this point is by showing that there is some form of relation between the nature of work on which the workman was engaged at the time of the accident and actual employment. Sri Krishnamurthi, the learned Counsel for the appellant, contended that it was not part of the duty of the deceased to clean the pipes or to lift the pipe from the well and that if at all he was regarded as employed by the appellant, it must be only for the purpose of carrying paddy bags, weighing them and stacking them, and that the workman went out of his way to do this work of cleaning the pipe which did not really form part of his legitimate work or duty, and, therefore, the accident could not be said to have arisen out of his employment or happened in the course of the employment. But the facts of the case have to be regarded in this connexion. At the time of the accident in question, the deceased was carrying out his normal duty of weighing bags, carrying them and stacking them. The engine-driver of the mill called him out and another cooly, to help in removing the bore-well pipe and cleaning it, as it was essential that the water-supply to the labourers for drinking and washing purposes had to be maintained. It was at being so called that the deceased went over to help the driver in removing the pipe for the purpose of cleaning. It was in the course of doing this job or work entrusted to him by the engine-driver that the accident occurred. Sri Krishnamurthi contends that the appellant did not entrust the work to the engine-driver nor was the engine-driver instructed or ordered to take the services of any of the coolies working there. On this point, he relies on the evidence of the only witness examined as R.W. 1, one of the partners of the mill. His evidence is of very little assistance. As correctly pointed out by Sri Gangadhara Rao, this witness did not state in his evidence that the driver was not authorized by the management to attend to the cleaning of the' pipe in question. It was open to the appellant to have adduced evidence to show in what circumstances the driver came to attend to this cleaning of the pipe, which was also not the normal function of an engine-driver. The driver or the manager of the appellant's mill could have been examined to depose to the circumstances under which the work came to be executed. Hence, we are left with practically no evidence on the side of the appellant. But a reasonable inference could be drawn from the admitted circumstances. That the bore-pump was installed to have water for workers for drinking and washing purposes is admitted by R.W. 1. The necessity for cleaning the pipe arose because the flow of water stopped. Obviously, it was an essential task to undertake to clear the choking of the pipe so that the supply of water may be restored, which is most essential for the workers to carry on doing their duty entrusted to them on the premises. Obviously, in such circumstances, a technical man like the engine-driver must have been detailed to attend to the stoppage and it is equally obvious that an engine-driver by himself would not be in a position to remove or lift the pipe for which labour was essential, and it was in those circumstances that the deceased and another cooly were asked by the driver to attend to the work of the removal of the pipe. Hence, there is a casual connexion between the new work entrusted to the deceased and his normal employment. The accident occurred in the premises. It occurred during the working hours, at a time when the deceased was at work, and from the mere fact that it occurred at a time when he was doing some other work at the instance of the engine-driver, who was obviously working for and on behalf of the management, it cannot be said that the deceased ceased to be in employment at the time of the accident.
11. In Trustees, Port, Bombay v. Yamunabai 1952--I L.L.J. 1 the test propounded was whether the accident occurred during the working hours and at the time he was on work and at the place where he was working. The expression 'arising out of his employment,' it was held therein, suggested both the time as well as the place of the employment and that the expression 'out of' conveyed the idea that there must be some sort of connexion between the employment and the injury caused to a workman as a result of the accident, Sri Gangadhara Rao correctly points out that the expression 'employment' is wider than the actual work or duty which the workman had to do. It is, for this reason, as indicated above, in St. Helens Colliery Co. Ltd. v. Hewitson 1924 A.C. 59 and the decision in Varadarajulu v. Masaya Boyan 1954--II L.L.J. 426 (supra), it is enough if at the time of the accident the workman was in actual employment although he may net be actually turning out the work which it was his duty to carry out. It is for this reason that even when a workman is resting, or having his food, or taking his tea, or coffee, or proceeding from the place of employment to his residence, and an accident occurs, the accident is regarded as arising out of and in the course of the employment.
12. In the entire circumstances of the case, I experience no difficulty in coming to the conclusion in this case that the accident occurred in the course of employment and arose out of and in the course of the employment of the workman. The exceptions to the payment of compensation are set out in Section 3 of the Act and it is not contended before me that any of those exceptions contained in the proviso to Section 3 apply to the present case. Hence the judgment and order of the learned Additional Commissioner is, in my opinion, correct and calls for no interference. The amount of compensation and the correctness of the calculation are not questioned before me.
13. The appeal therefore fails and it is dismissed with costs.