J.N. Kaushal, J.
1. An application was made by Madho Ram under Sections 3, 19 and 22 of the Workmen's Compensation Act, 1923 The application was dismissed and he has come to this Court in appeal.
2. Madho Ram was an employee of Brij Lal Sharma, proprietor, Sharman Steel Works, Ambala City, On 4 July 1961, be was working on a belt-pulley fixed on a lathe in the 'factory of the respondent which is known as Sharman Steel Works, Ambala City.' While on duty his half left-thumb was chopped off from met pharyngeal joint on account of non-provision of safety guards and lever on the loose pulley on the lathe. On account of that injury, the appellant remained in hospital from 4 to 13 July 1961. He claimed Rs. 840 by way of compensation for the injury and Rs, 12.60 on account of interest. Rupees 420 were also claimed on account of 50 per cent penalty on the amount of compensation. The total amount claimed thus came to Rs. 1,272.60.
3. On behalf of the respondent, it was admitted that Madho Ram was his employee, but it was pleaded that the injury resulted due to the negligence of the appellant. It was pleaded that the alleged accident took place because of Madho Ram's wilful disobedience to the rules and instructions applicable to the workers on the lathes, for example, that whenever any article is being measured on the lathe, the lathe should in no case be kept in motion. It was also stated that the appellant violated the role of safety and tried to measure the depth of the groove without stopping the lathe whenever the outing tool was not fixed on the tool-holder.
4. The Commissioner framed the following issues:
(1) What amount of compensation is the claimant entitled to ?
(2) Did the accident occur owing to the negligence of the claimant during the course of employment ?
(3) Has the respondent paid any amount to the petitioner or towards his treatment after accident as pleaded in Para. 6 of the written statement If so, its effect ?
(4) Whether the claim can be filed against the respondent ?
Issue (3) was found against the respondent and since costs had been paid, issue (4) did not require any discussion. Issues (1) and (2) were discussed together. It was found that the amount of compensation was rightly calculated at Rs. 840. The other amounts were not pressed before him on behalf of the appellant. It was, however, held that the amount of compensation was not payable since the accident took place because of negligence on the part of the appellant. Issues (1) and (2) were, therefore, decided against the appellant.
5. Sri S.L. Ahluwalia, who appears for the appellant, urges that on the finding recorded by the Commissioner the claim for compensation could not be disallowed. The precise argument is that in order to debar a work-man from the compensation it was necessary to find that there was a wilful disobedience on the part of the workman to an order expressly given or to a rule expressly framed for the purpose of securing the safety of the workmen. The contention seems to be well-founded.
6. All that has been found by the Commissioner against the appellant is that he did not obey the instructions which were issued by the employer for the safety of the work-men working at the lathes. There is no finding of wilful disobedience. According to proviso (6) (11) to Section 3(1) of the Workmen's Compensation Act, the disobedience to an order given by the employer for the purpose of securing the safety of the workman has to be wilful before an employer can escape his liability to pay compensation. This view is supported by Bhut Nath Dal Mills v. Tirat Mistry A.I.R. 1949 Cal. 295. According to this authority
to bring a case within Section 3(1)(b)(ii) of the Act, the workman must be in wilful disobedience of an order; mere disobedience is not sufficient. Disobedience may be the result of forgetfulness or the result of the impulse of the moment. Such would not be sufficient, as the statute only exempts the employer from liability when the disobedience is wilful, that is, deliberate and intended.
7. Sri R.C. Dogra, who appears for respondent, tried to place reliance on Bhurangya Coal Company, Ltd. v. Sahebjan Mian and Anr. 1957-II L.L.J. 522. But in my view this case does not help him. It lays down the same proposition as was laid in Bhut Nath Dal Mills case A.I.R. 1949 Cal. 295 (vide supra). It has been held by their lordships of the Patna High Court that
a man does a thing wilfully when he does it intentionally because he expects some benefit to himself, either some convenience or an easy way of doing a piece of work and so forth. Mere negligence of the worker cannot be regarded as wilful disobedience by the workman to an order expressly given. Contributory negligence on the part of the employee does not exonerate the employer from liability to compensate the employee if the accident could not have been avoided by the exercise of ordinary care and diligence.
In Tiku Kahar v. Equitable Coil Company, Ltd. A.I.R. 1930 Cal. 68, the same view has been taken while defining as to when a thing can be said to have been done wilfully.
8. There is no finding given by the learned Commissioner that the appellant disobeyed the instructions intentionally and deliberately. The evidence is completely lacking on the point that Madho Ram expected some benefit to himself, either some convenience or an easy way of doing a piece of work and so forth, by disobeying the instructions, which were issued by the employer. There is not even a suggestion to that effect in the statements of any of the witnesses.
9. The facts of State of Madras (by Superintending Engineer, Manimuthar Headworks Division) T.K. Sankiah Thevar 1959-I L.L.J. 390 relied upon by the counsel for the respondent were totally different. I am, therefore, of the opinion that the order under appeal cannot be sustained. The finding of negligence cannot be equated with the finding of wilful disobedience. It is essentially a finding of fact and since the finding is not there, the Commissioner was not justified in not awarding the compensation to the appellant.
10. Sri Dogra in the end prayed that the case be remanded for fresh evidence, since according to him, proper issues were not framed in the case. There seems to be no ground for acceding to this request. The parties knew as to what was the case they were fighting. Both the parties led evidence and knew the pleadings of each other. The issues framed have to be read in the light of the pleadings of the parties. The amount of compensation fixed by the Com-missioner comes to Rs. 840. I would, therefore, accept this appeal and hold that the appellant is entitled to receive Rs. 840 as compensation for the injury received by him from the respondent. He will also get his costs of both the Courts.