Panchapakesa Ayyar, J.
1. These are three appeals filed by the State of Madras, represented by the Superintending Engineer, Manimuthar Head Works Division, Manimuthar Dam, against the orders of the Additional Commissioner for Workmen's Compensation, Madras, in I.A. Nos. 221 to 223 of 1955, rejecting the prayer to make Sankiah Thevar, the contractor in charge of the works at the spot where the accident occurred, indemnify the Government and return to them three sums of Rs. 720, Rs. 720 and Rs. 200 paid by them in respect of the death of Mythar Bathi, Mytheen Bathi and Subramaniam, killed by a landslide, under the Workmen's Compensation Act.
2. The facts are briefly these. Mythar Bathi, Mytheen Bathi and Subramaniam were daily coolies engaged under the contractor, Sankiah Thevar, the respondent, in the Manimuthar Dam Works. When the work was in progress, blasting had to be resorted to between 12 noon and 1 P.M. and, as it was a dangerous process involving considerable risk to life, workmen were prohibited from remaining at the work-spot. The three deceased persons as well as other workmen were expected to work from 7. 30 A.M. to 12 noon and again from 2 P.M. to 5-30 P.M. There was a break of two hours from 12 noon to 2 P.M. when the workers were not only not expected to remain at the work-spot but were not given an option to do so and were expressly directed to go away from the work-spot, according to the contractor. The reason for this was of course the dangerous blasting operations between 12-30 P.M. and 1 P.M. Because of this at 12 noon a siren was sounded asking the workers to disperse and go away from the work-spot. At 12-30 P.M. just before the blasting began, a warning siren was again sounded asking the workers to clear out of the work-spot as blasting was about to begin. Despite all this, the three deceased workers did not leave the work-spot on 29th May, 1954 at 12 noon, when the siren sounded, or even at 12-30 P.M. when the warning siren sounded. At 12-30 P.M.-the blasting began, and at 12-45 P.M. as a result of the blasting, there was a side-slip or landslide at an excavated spot. Unfortunately for the three deceased, they were then taking their lunch at that very spot with the consequence that when the land-slip occurred all the three were buried by it and they died. Claims were put on their behalf for compensation under the Workmen's Compensation Act, against the State, the principal employer. The Workmen's Compensation Act allows such claims to be preferred either against the principal employer or against the contractor directly employing the workmen as the claimants chose. The State of Madras did not contest the claims for compensation and did not also give any notice to the contractor, Sankiah Thevar, regarding the claims and allow him to contest the claims if he so chose, before the deposit of the amounts. The Additional Commissioner for Workmen's Compensation awarded Mythar Bathi Rs. 720, Mytheen Bathi Rs. 720 and Subramaniam Rs. 200 as compensation under the Act. These sums are pitifully small for loss of human lives, but are the amounts directed by the Act. It is not disputed by the contractor's counsel that if the claims are sustainable the compensation paid was reasonable and proper. After paying-these amounts, the State of Madras, through the Superintending Engineer, applied to he Commissioner for Workmen's Compensation to make the contractor Sankiah Thevar, in whose section the accident had occurred, to indemnify the Government under the following clause in the contract between the Government and the contractor.
It shall be the contractor's sole responsiblity to protect the public and his employees against accident from any cause and he shall indemnify Government against any claims for damages for injury to person or property, resulting from any such accidents and shall, where the provisions of the Workmen's Compensation Act apply, take steps to properly insure against any claim thereunder.
It was alleged that the contractor had neglected to effect any such insurance.
3. The Additional Commissioner for Workmen's Compensation, held that the accident to the three workmen did not arise out of and in the course of their employment, as the accident occurred during the break between 12 noon and 2 P.M. for lunch, and work was suspended, and workmen were not expected to remain at the spot during the break. So, he dismissed the application of the State for indemnity. Hence these three appeals by the State.
4. I have perused the records, and heard the learned Government Pleader for the State and Mr. V.S. Ramakrishnan, the learned Counsel for the contractor, Sankiah Thevar, the respondent in all the three appeals.
5. The learned Government Pleader raised three main contentions. The first was that the lower Court was wrong in holding that the claims would not be sustainable because the accidents occurred during the lunch break and not during the hours of work. He said that taking lunch and answering calls of nature were incidental to the employment and that accidents occurring during such activities would be accidents arising in the course of the employment, though perhaps strictly not out of the employment, and, relied on the Bench ruling of this Court in Ramabrahman v. Traffic Manager, Vizagapatam Port : AIR1943Mad353 , where the accidents occurred during the hours of work, though not at the spot of work and not arising strictly out of the work.
6. That is so Mr. Ramakrishnan did not dispute this point, but urged that in this case the accident occurred not during the work hours but during the lunch break.
7. The learned Government Pleader then urged that even if the accidents occurred outside the work hours and during the lunch break, they have been held to arise in the course of the employment when they are proved to be incidental to the work and ancillary to it and not out of something done for the worker's own sole benefit unconnected with the work on hand, like a worker going from the work-spot to a swimming pool outside the premises to have a swim and getting drowned in that pool, or, buying a sausage from a restaurant outside the work-spot during the lunch break and dying of some poison contained in it. The learned Government Pleader relied on the rulings in Vishram Yesu v. Dahaboy Hormasji & Co I.L.R. (1942) Bom. 225, Blovelt v. Sawyer L.R. (1904) 1 K.B. 271, Armstrong Withworth & Co. v. Redforf L.R. (1920) A.C. 757, Simson v. L.M.S. Ry L.R. (1931) A.C. 351, Rosen v. S.S. 'Quercus' L.R. (1933) A.C. 494 for this position, and cited Charles R. Davidson and Co. v. Robb, Ord. Officer L.R. (1918) A.C. 304, to show the limitations of this principle and the refusal of compensation where the person killed by the accident had undertaken an expedition for his own benefit and brought the accident on himself instead of sustaining it in the course of his employment.
8. Mr. Ramakrishnan wanted to contest this position by saying that the contractor had no control over the workmen during the lunch break and could not be held liable for whatever accident that occurred during that break. According to him, at 12 noon the contractor must be deemed to have handed over the premises to the State of Madras and the Superintending Engineer, his employer, and, to have taken over the premises from the State of Madras and the Superintending Engineer at 2 P.M. This is artificial and unconvincing. It was not Mr. Ramakrishnan's contention that there was any formal handing over of charge and ' taking over of charge. Nor is it reasonable to expect such handing over of charge and taking over of charge. The weighty rulings of the House of Lords, cited by the learned Government Pleader, fully proves his point, viz., that if the workmen even during the lunch interval, sustain accidents in the course of the employment or incidental or ancillary thereto and not because of their own independent and unconnected private adventure or activity, they are normally entitled to get compensation under the Workmen's Compansation Act. But, there is one limitation to this, viz., where the workmen are specifically forbidden to be on the work-spot during the interval, owing to dangerous operations like blasting taking place, and sirens are blown to warn them to leave, and they persist in remaining there foolishly and get involved in accidents like this. Though there was no evidence let in on either side, the contractor had specifically stated that the workmen were forbidden from being on the premises from 12 noon to 2 P.M. as there were blasting operations, and, that the siren was blown at 12 noon asking them to disperse and a warning siren was blown at 12-30 P.M. warning them that blasting was about to begin and they should clear out if they had not cleared out already and, yet these workmen remained eating their lunch in an excavation subject to the influence of blasting and met their end and so they could not get any compensation, and though the Government paid them compensation, they could not recover it from him. This point was not met by the Government. Nor can the learned Government Pleader's request for a remand to let in belated evidence to the contrary be now granted. It is well known that every case must be decided on its own facts. Though the Government Pleader quoted many authoritative decisions in support of the legal position referred to above, he was unable to meet the position arising out of the peculiar facts of this case.
9. In this connection Mr. Ramakrishnan rightly relied on the observations of Willis at page 112 of his treatise on Workmen's Compensation Act, 1942 edition, which run as follows:
If, during meal times or other intervals, the workman remains on the employer's premises under such circumstances that he continues in the course of his employment the risks of so doing for example, locality risks, or risks arising from reasonable acts, are risks incidental to his employment...
But he will not be entitled to recover compensation for accidents caused by his acting unreasonably or unlawfully, or by incurring unnecessary risks, as where the workman took his meals seated on a tank in a pump room, where he had no right to go, although there was no express prohibition against his going there.
10. In the present case there was an express prohibition also to the workmen to remain at the spot, and those three foolish workers did not obey the order to clear out at 12 noon or at 12-30 P.M., when the sirens were blown, but remained, in that dangerous excavation subject to the effects of blastings, eating their lunch, with the inevitable consequences that when the blasting commenced the excavation area was affected and they were buried and killed. So, the case is one where there would have been no liability on the part of the State or the Contractor to pay compensation for their deaths under the Workmen's Compensation Act. The State paid the compensation evidently out of mere pity as it cannot be said to be so ingorant of the law as to pay despite lack of liability. But, it is obvious that, though the act of the State in paying compensation is praiseworthy in this case, like the recent act of a Government in giving compensation to the dependents of each person killed by shooting in the course of rioting, there is no legal liability to give compensation, and, therefore, no legal right to claim idemnity from the Contractor under the idemnity clause referred to above.
11. Persons cannot be charitable at other people's expense. That is the first principle of ethics as also of law. If the Government had felt any doubt regarding their liability for these accidents, they should have given notice of the claims to the contractor and allowed him to fight out the claims, if he chose, just as motor car owners involved in accidents leave it to the insurance companies to fight it out. The State in this case did not give notice to the contractor. As I have held, on the facts of this case, that there was no liability on the part of the State to pay compensation to the victims of this accident under the Workmen's Compensation Act, as these victims had brought the accident on themselves by their own folly in exposing themselves to unnecessary risks despite the express provision, it follows that the State cannot recover anything from the contractor. The contractor's laches in not insuring against risks, and his relying on false positions in law likenon-liability for accidents during lunch break, will not alter this position, but only, disentitle him to costs when these appeals are dismissed, as they deserve to be.
12. I may add here, that this is not a case where the accident took place during the hours of work or during the lunch break where the workmen had an option to remain on the premises, but, took place during a break from 12 noon to 2 P.M., when the workmen were expressly forbidden to be at the permises owing to the dangerous blasting, and, two sirens were also sounded to reinforce this prohibition and to make the stragglers clear out. In my opinion, it will be quite unreasonable to make the employer or the contractor pay compensation in such cases. I have no hesitation in agreeing with Willis' opinion on this point. When the employer was not 'liable to pay compensation, and, if he pays compensation out of pity, special grace, magnanimity or liberality, he has no right to recover it from the contractor, under any clause for indemnity in the contract. Indemnity will extend only as far as-legal liability extends, and not further. It will not cover acts of charity, magnanimity, special grace, pity, or liberality.
13. In this view, though I agree with the learned Government Pleader that such, clauses of indemnity included in contracts with contractors are perfectly legal and can be enforced in all cases where Government, as employer, is bound to pay compensation for accidents under the Workmen's Compensation Act, the facts of this case make the indemnity clause inapplicable as there was no legal liability on the part of the Government to pay compensation.
14. These three appeals, therefore, deserve to be, and, are hereby, dismissed, but, in the peculiar circumstances, without costs.