V.P. Tyagi, J.
1 .The Employees' State Insurance Corpotion has filed this appeal against the judgment of the Additional District Judge, Ganganagar. dated 15-11-1972 dismissing the claim of the appellant for the reimbursement of the permanent disablement benefit given to Surjan Singh, who was a workman of the Sadul Textiles Ltd., Sri Ganganagar.
2. Surjan Singh was working on loom No. 354 in the mill owned by the respondent No. 3 Shri Sadul Textiles Ltd. Sri Ganganagar on 24-2-1967. It is alleged that the iron bangle of Surjan Singh got entangled with the screw of the shaft when he was trying to lift the weft pin resulting in an accident which caused compound fracture in the forearm of Surjan Singh. A report of the accident was immediately made by Shri N.K. Sondhi, Factory Manager.
3. The plaintiff-Corporation convened a medical board to examine Surjan Singh and it was discovered that Surjan Singh had sustained 45% loss in his working capacity under Section 51 of the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the Act').
4. The Corporation on the basis of the medical report awarded permanent disablement benefits at the rate of 24/3/4 annas per day.
5. The plaintiff-Employees' State Insurance Corporation filed a suit against the Sadul Textiles Limited and Its Factory Manager N. K. Sondhi and Managing Agent Mr. J.F. Srivastava and Sons (Bikaner) Private Limited for the reimbursement of periodical payment made to the workman. The grounds taken by the plaintiff were that it was on account of the negligence of the respondents that the accident had taken place and that under Section 66 of the Act the defendant-respondents were under obligation to reimburse the payment which is periodically made by the plaintiff-Corporation to the insured workmen.
6. The suit was contested by all the defendants and the defendant No. 1 Shri N.K. Sondhi took a plea that he was not the principal employer and, therefore, he could not be sued in that capacity. Defendant No. 2 Shri J.P. Srivastava and Sons (Bikaner) Private Limited pleaded that since 13-12-1969 the defendants No. 2 were not the Managing Agents and, therefore, they could not be impleaded as defendants in the suit. The defendant No. 3, however, joined issues with the plaintiff and pleaded that there was no negligence on the part of defendant No. 3 which was responsible for this accident. It was also urged that even if the defendant No. 3 was found negligent the plaintiff could not claim reimbursement because the provisions of Section 66 of the Act had been repealed when the permanent disablement benefits became due to the insured workman.
7. Both the parties examined their witnesses to prove their case. The learned trial Judge after carefully scrutinising the evidence of the parties held that Shri Sadul Textiles Limited cannot be held responsible for the accident as there was no negligence on the part of the defendant No. 3. It was also held that in view of the repeal of Section 66 of the Act the plaintiff was not entitled to claim reimbursement.
8. Learned Counsel for the plaintiff-Corporation urged that the case of the Corporation has been established by the statements of the plaintiffs' witnesses P.W. 1, P.W. 2 and the insured P.W. 4 which go to prove that it was due to the negligence on the part of defendant No. 3 that the accident had taken place. Learned Counsel appearing on behalf of the respondents Nos. 1 and 3 has, on the other hand, urged that the plaintiff has miserably failed to establish negligence on the part of the respondent No. 3 and, therefore, no liability could be fastened on respondent No. 3 for the reimbursement of permanent disablement benefits given by the plaintiff to Surjan Singh.
9. Evidence led by both the parties was read over by me.
10. P.W. 1 L.R. Wadhnaan, who was posted as Assistant Regional Director of Insurance Corporation, Jaipur passed the claim of Surjan Singh on the basis of medical report. P.W. 2 Shri O.P. Chaddha, who was an employee of the Corporation and posted at Sri Ganganagar, investigated the cause of accident and inspected the site after three days of the accident. He found that the screw of the shaft was out by ' to 1'. This length has been given by him without actually measuring the protruding portion of the screw. He was also of the opinion that the screw was not properly sinked according to the requirement of law. P.W. 4 Surjan Singh is the insured person. According to his version bobbin fell down from his hand when he was working on the loom and when he tried to lift that bobbin from the ground without putting off the machine his iron bangle entangled with a nut and that was, according to him, the reason for the accident. In cross examination this witness has admitted that he did not close the machine before he attempted to lift the bobbin from the ground, because it would have affected his earning.
11. The defendants produced 6 witnesses to prove that there was no negligence on the part of the management. DW. 1 Shri N.N. Gupta who has been produced as an expert was called from Fagwara where he has been working as weaving superintendent in the Jagatjit Cotton Textiles Mills. He was trained at Kanpur for his diploma in textiles. According to him, if any thing falls on the floor then it is not the duty of weaver to lift that thing even if it is necessary that such a thing must be lifted from the ground. Such a thing according to the witness should be lifted only after the machines are put off. He has given the size of the screw which is fitted at the bottom shaft, and according to him the length of that screw is ' and thickness is 3/8'. He has testified that the head of the screw always remains out of the root. DW. 2 Pyarelal, who was the co-worker of the injured workman, has come in the witness box and stated that the screw of the shaft was not loose and only the head of the screw was out of the nut. Screws in all the shafts are of the same size. Similarly, Mahender Singh DW. 3, who was working on the adjoining loom, has testified that the screw of the shaft was tight and its head was out. The size of the head was about ' and he further stated that in all the looms the size of the screw is the same. DW. 4 K.C. Sharma, who was working as weaving superintendent in the mills at the relevant time, stated that no guard or cover is put on the screw because the hand of the weaver does not reach this screw. According to him the normal size of the screw was fitted with the nut. He also proved the notices Exts. A. 1 and A. 2 which were issued by the management giving warning to the workers in the factory that they should not touch the machine when it is working., D.W. 5 Bharatpal, who was maintenance in-charge in the factory has given the details about the length of the screw and has stated that after it is fitted with the bolt ' part of this screw always remains out of the bolt and it is the same position in all the bolts. Learned Counsel for the appellant could not show any provisions prescribing the length of the screw used in the shaft or the looms. From the evidence of the defendants it is therefore, apparent that normal size of the screw was used in the shaft and head measuring ' was out of the root in the opinion of the witnesses was not (sic). Even Surjan Singh categorically stated that if he had not tried to lift the bolt the accident could not have taken place. This shows that the cause of accident not the position of the screw but the negligence of the workman himself. From the evidence produced by the parties it cannot safely be inferred that the accident had taken place because of the negligence on the part of the workman who tried to lift the bobbin much against the safety directions issued by the management.
12. The appellant-Corporation has claimed the reimbursement on the basis of the provisions of Section 66 of the Act which provides that where any employment injury is sustained by an insured person 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 a reason of any wrongful act of the employer or his agent the Corporation shall 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, the acturial present value of the periodical payments which the Corporation is liable to make under this Act. It is clear that in order to get reimbursement under this provision of the law it is incumbent for the Corporation to establish that the accident had taken place because of the negligence on the part of the employer or his agent. As discussed above the Corporation has failed to prove the negligence of the employer or his agent and hence it cannot claim reimbursement.
13. It has been argued by the respondents that even if negligence could be attributed to the employer, the appellant could not claim reimbursement because Section 66 of the Act was repealed when the Corporation became liable to pay damages to the injured workman. This argument raises a question as to when the liability to pay permanent disablement benefits starts. Section 66 of the Act was repealed by an amending Act No. 44 of 1966 on 17-6-1967 and the same was deleted from the Act. The argument of the learned Counsel for the appellant is that since the accident took place before the said amendment was passed by Parliament the employer can be made liable for reimbursement of the permanent disablement benefits as the liability of the Corporation started from the date of the accident. This fact is admitted that the accident had taken place on 24-2-1967 before the repeal of Section 66 of the Act but the insured workman was examined by Medical Board appointed by the appellant on February 28, 1968 when he was for the first time declared entitled to the permanent disablement benefits.
14. The plaintiff sanctioned the benefit to the workman on March 30, 1968. It may be mentioned that on the day when the Medical Board found the workman entitled to get the permanent disablement benefits and also on the day when the plaintiff sanctioned the periodical payment to be made to Surjan Singh Section 66 of the Act was not on the statutes book. Even if the defendants were found to be responsible for the accident the plaintiff could not claim any reimbursement from the defendants because on the day when the permanent disablement benefits became due to the plaintiff under the Act on the day when the injured workman was declared entitled there was no such provision in the Act according to which the plaintiff could claim for the reimbursement from the employer.
15. The Central Government framed Employees' State Insurance Regulation, 1950. Regulation 45 deals with the question as to when the claim of the injured workman becomes due. Clause (c) of this Regulation lays down that the claim for any benefit under the Act shall for the first payment of disablement benefits become due on the date on which an insured person is declared as permanently disabled in accordance with these regulations. It is not disputed that for the first time the Medical Board declared the insured workman permanently disabled on February 28, 1968. Therefore, the disablement benefit became due to payment on February 28, 1968. On that day there was no provision on the statute book to claim reimbursement under the Act. The question of reimbursement can arise only when the Corporation is found liable to pay the benefits under the Act to the injured workman. If on the date when the cause of action arose to the plaintiff to claim the reimbursement Section 66 of the Act was repealed then the Corporation cannot ask the employer even if he were held to be guilty for the accident for the reimbursement of permanent disablement benefit which the Corporation was required to pay to the insured workman who sustained employment injury.
16. In this view of the matter I find that the judgment of the Court below is correct and does not require any interference by this Court. The appeal, therefore, fails and is hereby dismissed. No order as to costs.