(1) This appeal arises out of an order passed on an application filed by the appellant under S. 75(2)(c) of the Employees State Insurance Act, to direct the respondent to pay a sum of Rs. 483-44 being the actual capitalised value of permanent disablement benefit of Rs. 420 and Rs. 63-44 being the temporary disablement benefit due to one Muhammad employed as a worker in the factory of the respondent. The said Muhammad who is employed in the factory of the respondent met with an accident and sustained an injury, while he was operating the star-handle wheel in the drilling machine, when his right hand slipped and his right index finger was caught in between the belt and the pulley. The accident was due to the fact that there was no safeguard provided by the factory owner (respondent) in the drilling machine, in spite of his statutory liability to do so, under S. 21(1) of the Factories Act, 1948, which requires that the pulley and the V belt should be securely fenced by safeguards of substantial nature to prevent accidents.
(2) This application was resisted by the respondent, on the ground that there were three annual inspections by the Factory Inspector, who, in the course of his inspection had pointed out certain defects which had been rectified, and the Inspector did not mention that there should be a safeguard provided in between the pulley and the V belt in the drilling machine. The learned District Judge gave a finding that the respondent was not liable to pay the amount, as the Factories Inspector who is a technical expert did not mention that there was anything wrong in the drilling machine which should be construed as a dangerous part within the meaning of Section 21(1)(c). He, therefore, dismissed the application. The Employees State Insurance Corporation has, therefore, come to this court in appeal.
(3) In this appeal, I have to consider what is the interpretation to be given to the words in S. 21(1)(c) of the Factories Act, 1948. The relevant part of the section runs as follows :-
'In every factory the following, namely:-
(i) ... ... ... ... ... ... ...
(ii) ... ... ... ... ... ... ...
(iii) ... ... ... ... ... ... ...
(iv) ... ... ... ... ... ... ...
(a) ... ... ... ... ... ... ...
(b) ... ... ... ... ... ... ...
(c) every dangerous part of any other machinery, shall be securely fenced by safeguards of substantial construction which shall be kept in position while the parts of machinery they are fencing are in motion or in use'.
The corresponding section in the English Act is Section 14. The words 'every dangerous part of any machinery' were often the subject matter of judicial attention and interpretation both in the House of Lords and the Court of Appeal. As early as 1897, Wills J. in Hindle v. Britwistle, 1897 1 QB 192 , said:-
'It seems to me that machinery or parts of machinery is and are dangerous if in the ordinary course of human affairs danger may be reasonably anticipated from the use of them without protection.'
These observations made by Wills J. were extracted by Du Parcq J. in Walker v. Bletchley Fettons 1937 1 All ER 170 , where an employee, while driving a mechanical excavator in a firm of brickmakers slipped, and his leg was caught and severely injured by a wheel of the machine which was not cased or fenced. The employee claimed that the absence of fencing made the machine a dangerous machine and claimed damages for breach of statutory duty. The learned Judge observed:-
'In considering whether machinery is dangerous you must not assume that everybody will always be careful; you ought to assume that somebody will some times be careless....................................... that A part of machinery is dangerous if it is a possible cause of injury to anybody acting in a way in which a human being may be reasonably expected to act in circumstances which may be reasonably expected to occur.'
(4) From a reading of the section, protection to make the machinery safe would seem to be absolute. The duty to fence should be complied with. The machinery must be so fenced as to give security from such dangers as may be reasonably expected. As observed in Carroll v. Andrew Barclay and Sons Ltd. 1948 2 All ER 386. In Dickson v. Flack, 1953 2 All ER 840, the plaintiff was working on a machine fitted with a guard which the judge at the trial found to be effective to prevent the workmen coming in contact with the machine but not so good as a cage guard to protect him from broken places. It was held that the danger was a recognised danger and the employer was liable. Thus the obligation is not merely to fence but in fence securely. The purpose of legislation is to provide absolute safety as far as fencing can provide it. The words 'securely fenced' are not to be interpreted as little securely fenced, or reasonably fenced or moderately fenced. The employer will not be able to defend himself by saying that it is impossible for commercial or mechanical reasons to fence the machine or part of a machine. If a machine is dangerous, the obligation is to fence, and substitutes for fencing will not enable the employer to evade his liability. For instance, in Chasteney v. Nairn (Michael) and Co. Ltd. 1937 1 All ER 376, the employer displayed a notice which said:
'Do not put your hands in the machinery while it is in motion. Persons disregard this notice at their own risk.'
Still, when a workman was injured when greasing pinion wheels which were in motion, the employers were held liable.
(5) Learned counsel for the respondent would, however, contend that the Factory Inspector, who is a technical expert, made periodical visits to the factory and pointed out various defects which were all subsequently rectified, and in none of those reports he has ever said that the machinery in question has not been properly fenced. The answer to this contention is provided in an apt case cited by learned counsel appearing for the appellant, viz., John Summers and Sons Ltd. v. Frost, 1955 AC 740 , where a passage from the judgment in Mitchell v. North British Rubber Co. Ltd., 1945 SC 69 has been extracted:-
'The question is not whether the occupiers of the factory knew that it was dangerous; nor whether a factory inspector had so reported; nor whether previous accident had occurred; nor whether the victims of these accidents had, or had not, been contributorily negligent. The test is objective and impersonal. Is the part such in its character, and so circumstanced in its position, exposure, method of operation and the like, that in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled operative intent upon his task, but also to the careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk or injury or death from the unguarded part?'
(6) I am thus convinced that, whether the Factory Inspector brought the defect to the notice of the employer or not, it is the duty of the employer to fence the machinery which is considered to be dangerous, wherever it is situate, in the premises of the factory. The order of the Court below cannot be sustained.
(7) In the result the appeal is allowed; but, in the circumstances, there will be no order as to costs.
(8) Appeal allowed.