(1) This appeal arises out of an order passed by the First Assistant Judge, City Civil Court Madras, on an application filed by the Appellant, Employees State Insurance Corporation, for reimbursement of a sum of Rs. 1061-62 by the respondent herein, Messrs. Mysore Premier Metal Factory. The learned Assistant Judge, dismissed the application on the ground that it was due to the negligence on the part of the employee that the accident occurred and that as such the employer, respondent, was not liable to pay any sum or to contribute any amount paid by the appellant herein. Hence this appeal.
(2) The respondent is carrying on business as manufacturer of aluminium sheets and circles, and aluminium brass and stainless steel and utensils. One Murugesan was involved in an accident while operating a machine which is used to cut aluminium spoons. As a result of the accident, the said Murugesan's left index-finger was jammed. He was an insured person. The Medical Board certified that he has been permanently disabled and awarded compensation as per rules. The appellant herein paid compensation to the injured employee Murugesan and called upon the respondent herein, the employer, to pay the same. But the respondent disputed their liability on the ground that it was only due to his own negligence that the worker sustained the injury. Now the question to be considered by me is whether the respondent is liable to pay the amount claimed by the appellant herein.
(3) The relevant provision in the Factories Act is S. 21(1)(c) which is as follows:
'In every factory the following, namely--
.................... (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'.
A similar question I had to consider in Employees State Insurance Corporation v. Sri Karumthi Thyagaraja Chettiar Principal Employer Sri Meenakshi Mills Ltd., Madura-respondent, A. A. O. No. 133 of 1963: : (1966)ILLJ705Mad wherein I have held that it is the duty of the employer who is running a factory to make every sort of protection for the safety of the employees. The machinery must be so fenced as to give security from such dangers as may be reasonably expected, as observed in Carroll v. Andrew Barcley and Sons Ltd., 1948 2 All ER 386. 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 even substitutes for fencing will not enable the employer to evade his liability. Cases in Court of appeal e.g., Chastney v. Nairn (Michael) and Co. Ltd., 1937 1 All ER 376 have gone to the extent of holding that even though an 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 is injured when he is operating the machine, the employer is liable to pay contribution.
(4) The respondent further relied on the evidence of P.W. 1, who admitted in cross-examination that he had no report of any particular defect in the machinery in the prior inspection. Even then the employer is liable as has been held in John Summers and Sons Ltd. v. Frost, 1955 AC 740 wherein the following passage from Mitchell v. North British Rubber Co. Ltd., 1945 SC 69 has been extracted:
'The question is not whether the occupier of the factory knew that it was dangerous; nor whether a factory inspector had so reported; nor whether previous accidents had occurred; nor whether the victims of these accidents had, or had not, been contributorily negligent. The test is objective and impersonal............'
Therefore, I am of the view that the respondent herein did not safeguard the machinery properly and therefore he is liable to pay the contribution as claimed by the appellant, viz., Rs. 1061-62 paise.
(5) In the result, the appeal is allowed but there will be no order as to costs.
(6) Appeal allowed.