C.B. Bhargava, J.
1. This is an appeal by the employer against the order of Workmen's Compensation Commissioner, Bikaner, dated 9-10-1967, allowing compensation Rs. 5040/- to the respondent.
2. The appellants were running a saw mill in the city of Bikaner and the respondent was employed as a workman at that mill. The respondent's case before the Workmen's Compensation Commissioner was that on 17-8-65 while he was performing his duty at the saw mill his left hand at the wrist joint was cut and amputated on account of which he suffered permanent partial disability causing reduction of his income.
3. The appellants contested the application and the learned Commissioner framed the following issues:
1.Whether the applicant received personal injuries during the course of andout employment? (Applicant)2.Whether the injuries sustained by the applicant resulted in the amputationof his left hand below the elbow? (Applicant)3.Whether the notice of accident was served to the non-applicant within theprescribed time or not? (Applicant)4.Whether the applicant is a workman as defined in the Workmen's Compensation Act or not? (Non-applicant)5.Whether the accident arose due to the negligence of the applicant?(Non-applicant)
4. In support of the above issues the respondent examined himself while appellant Ramdeo gave his own statement and produced Maggaram as his witness. The learned Commissioner after considering the evidence produced by the parties found all the issues in favour of the respondent and allowed his prayer. The appellants have now come up in appeal to this court against the said order.
5. Learned counsel for the appellants has substantially raised two contentions, Firstly that the injury was not sustained by the respondent out of his employment in as much as on his own showing he attempted to perform the duty of the cutter at the time of the accident, which was beyond the scope of his employment. Secondly there was no proof on record that the respondent's left hand was fully amputated at the wrist joint. It is pointed out that the medical officer, who amputated the hand or examined the respondent subsequently, were not produced in evidence before the Commissioner. That being so it is contended that the amount of compensation awarded to the respondent cannot be said to have been correctly determined.
6. Learned Counsel took me through the evidence of the respondent to show that his duty was only to remove the wood after it had been cut, but at the time of the accident he attempted to do the job of the cutter and while pushing the wood he sustained the injury, because he had not the experience of a cutter. He has also pointed out that reliance cannot be placed on the statement of respondent, because he had made a contradictory statement. It has been pointed out that at one place he admitted that his duty was only to remove the wood after it had been cut at another place in cross-examination he resiled from that statement and said that it was Maggaram's duty and his own duty was to push the wood for cutting.
There can be no doubt that an employer can be held liable to pay compensation to the workman only if injury is caused to him by accident arising out of and in the course 01 his employment. The question for determination, therefore, is whether the respondent sustained the injury out of his employment. The learned Commissioner in his finding for issue No. 1 did not precisely say as to what the respondent's duty was, as to how the accident happened and whether the accident arose out of the employment. While deciding the application under the Workmen's Compensation Act it is incumbent upon the Commissioner to be clear in his finding in respect of the above question, because under Section 3 of the Act it is only upon the basis of that finding that the compensation can be awarded to the workman. The question that the accident arose out of the employment depends upon the facts of each particular case, as observed by Lord Summer in the case of Lancashire and Yorkshire Railway v. Highly 8967 A.C. 325,-
I doubt if any universal test can be found. Analogies, not always so close as they seem to be at first, are often resorted to, but in the last analysis each case is decided on its own facts. There is however in my opinion one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea the accident arose out of his employment: if nay, it did not because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment or was one of the ordinary risks of the employment, or conversely was an added peril and outside the sphere of employment are all different ways of asking whether it was a part of his employment that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury.
In Kondisetti Anjaiah T. Lakshmaiah : (1960)IILLJ434AP Sanjeeva Row Nayudu, J., on a review of English decision on the subject summed up the legal principles involved in determining whether the accident had arisen out of and in the course of person's employment thus:
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.
With respect I agree with the principles stated above. So far as the first two tests are concerned, there is no controversy between the parties. It is only with regard to the third test that there is a dispute. Assuming that the respondent's duty was only to remove the wood after it had been cut, it has to be seen whether at the time of the accident he was doing such work as was foreign to sphere of his duty. From the evidence of the respondent it appears that at the time of the accident three persons were working on the saw mill. One of them Bholaram was the cutter whose duty was to push the log for being cut and to adjust the saw; Maggaram, whose duty was to bring the wood for the purpose of being cut and the respondent's duty was to remove the cut wood from the other end and to help the cutter in the adjustment of the wood so that it might be cut in a proper manner, The respondent has stated that a heavy log of wood was being cut at the time of the accident and while it was being so done he tried to adjust the log by pushing it with his left hand and in that process he sustained the injury. This fact also finds support from the evidence of Ramdeo, appellant, himself that the respondent sustained injury while he was standing at the other end of the platform. He has stated with reference to the diagram on the record that the injury was sustained by the respondent while he was standing at point 'C, which is on the other end of the platform and opposite to the place where the cutter stands. From the above statement it cannot be inferred that the respondent had left his duty and was attempting to do the job of the cutter. There can be no doubt that it is the part of the duty of a helper to adjust the log so that it might be properly cut and if in doing so he sustained an injury, it cannot be regarded as something foreign to his duty. I am therefore, of the view that the accident arose directly out of the respondent's employment and the appellants are liable to pay compensation unless the case falls within exception mentioned in Section 3, which is not the case here.
8. As regards the second contention it is true that the respondent did not examine the medical officer, who amputated his hand or examined his afterwards and if there had been no other material on the record to decide this point I would have much hesitation in coming to the conclusion that the respondent's hand was completely severed at the wrist joint. In cases falling under the Workmen's Compensation Act, it is very essential that the evidence of the medical officer should be recorded, because it is only the medical officer, who can prove the nature of the injury and the extent of the workman's disability. But in the present case the respondent has stated that due to the accident his hand was almost cut at the wrist joint and on the same day it was amputated at the hospital and was completely severed. This shows that as a result of amputation part of the hand was completely cut off and severed and it was not a case of partial amputation. This fact further finds support from the para 10 of the appellant's reply submitted before the Commissioner wherein it has been stated 'that the hand was amputated from the place of the wrist. The amputated does not happen to be at the place of olecranon or just about 41/2' below it.' It further appears that during enquiry before the Commissioner it was never suggested on behalf of the appellants that respondent's hand had not been fully severed at the wrist joint.
9. Thus there is no force in the contentions raised on behalf of the appellants. The quantum of compensation has not been disputed if it is found that the respondent's hand was amputated at the wrist joint.
The appeal has, therefore, no force and it is hereby rejected with costs.