S. Mohan, J.
1. The appeal is against an award of the Additional Commissioner for Workmen's Compensation. The respondent was working as a watchman in the mills of the appellant. On 30th of November, 1978, he was attacked by four persons who entered the mill premises and assaulted him with la this. He claimed a lumpsum payment of compensation of Rs. 17,640, half monthly payment of Rs. 580 from 30th November, 1978 to 22nd April, 1979 and medical expenses of Rs. 905.50. His case was that he was working as a watchman and his wages were Rs. 470.60 per month. On 30th of November, 1978, when his shiftwork was between 2 p.m. and 10 p.m., he came to the mill at 1.50 p.m. placed the cycle inside the cycle stand and came straight to the watchman's shed. The duty watchman was allowed to go away and the applicant was wearing his uniform. While so wearing one Genesan came and pulled his legs. Ganesan and four others began to beat him with lathis. The bones in two hands and the ankles of the legs were broken and the knees also received heavy blows. At that time his brother and other watchman came shouting and immediately the culprits bolted away. The General Manager of the mill and the sub-Inspector of Police came to the spot. He was carried to the police station in a car and from there he was taken to the Government Hospital, Trichy. He was an inpatient in the hospital for 68 days. According to the respondent, the cause for the assault was that he scolded Ganesan's wife When she wanted to graze cattle inside the mill premises on 29th November, 1978. It was part of his duty to enforce the company rules which prohibits grazing of cattle inside the premises. Therefore, the respondent had prevented the cattle from grazing inside the premises. On account of this quarrel between him and Ganesan's wife, enmity arose and the very next day, he was attacked. As a result of the injuries sustained, the respondent was unable to lift any weight with his right hand and he is not able to stand properly as the knees are not functioning properly. In spite of the claim for compensation for the disablement suffered, the same has not been forthcoming and, therefore, the application was filed before the Additional Commissioner for Workmen's Compensation, Tiruchirapalli, claiming compensation as stated above.
2. The appellant-mill took the stand that it is true that on 30th November, 1978, the respondent was beaten. But it was not due to the quarrel that was supposed to have taken place on 29th November, 1978 between the wife of Ganesan and the workman. On the contrary, the workman tried to misbehave with the wife of Ganesan and, therefore, there was enmity between the two. The entire family of Ganesan wanted to seek vengeance on the workman. Therefore, on 30th November, 1978, they beat the workman as a result of which the injuries had been sustained. Where, therefore, the injuries were not suffered either out of or In the course of employ-ment, there can be no Hablity whatever as far as the appellant is concerned.
3. The Additional Commissioner for Workmen's Compensation, Tiruchirapalli, on trial, accepted the evidence of the workman (PW 1) and came to the conclusion that his version of the incident was true. Therefore, he was of the view that the accident took place as a result of enforcing the rules of the mills prohibiting grazing within the premises. That being a part of his duty he would be entitled to compensation. It was further found that the salary was in the range of Rs. 400 to 500 and as per schedule IV, it worked out to Rs. 29,400 and 60 per cent of the same would come to Rs. 17,640. He accordingly awarded a compensation of Rs. 17,640 to the workman. Hence, the appeal.
4. Mr. Rangarajan, learned Counsel for the appellant, strenuously argued that first of all this is not an accident. It is a quarrel between the parties resulting in criminal assault. May be. But for that the management cannot be made liable. Assuming that it is an accident, in order that the liability may be fastened on management, it must be one arising in the course of employment. Where there is evidence on record to show as spoken to by the Factory Manager, Subramanian, that Kandaswami has been dismissed because of this incident and further suggestions have been made to PW No. 1 himself about his misbehaving with Genesan's wife that version ought to have been accepted. As a matter of fact, a request was made by the appellant management to reopen the case in order to determine whether the version as spoken to by PW 1 was correct or not. The records relating to the domestic enquiry against Kandaswami had in fact been summoned by the Labour Union and for reasons best known, the Union did not produce the record. Those records were sought to be relied on by the management and that request had been unjustifiably turned down. An opportunity ought to have been afforded to the management to have Kandaswami examined on their side. Lastly, on the quantum it is submitted there is no total disablement, but only partial disablement. There- fore, the award of 60 per cent, is not supported.
5. In opposition, Mr. Rajan, learned Counsel for the respondent-work-man urges, an accident merely means an unexpected event happening without design. The workmen here was a watchman. His duty was to guard the premises of the mills and the factory. When an attempt was made as spoken to by him as PW 1 by Ganesan's wife to graze cattle within the premises of the mill, by enforcing his duties as a watchman if enmity arose and on account of that enmity injuries have been sustained, undoubtedly the management will be liable. This is because the injuries so sustained have a close nexus to the duties of watchman or to the nature of his employment. That would be enough in law to hold that the management is liable for this unexpected event happening without any design in the course of employment as a watchman. As regards the contrary version, as stated by the management, excepting a suggestion to PW 1 no evidence worth the name was ever produced. Assuming the records relating to domestic enquiry against Kandaswami ought to have been looked into, they cannot have any bearing on the issue in question. To that, the workman (present respondent) was not a party. If that be so, the failure to reopen the case to enable the management to produce the records relating to domestic enquiry against Kandaswami will not be material. Even otherwise, nothing prevented the management from examining Kandaswami on their side. The factory manager who spoke on behalf of the management has stated Kandaswami had been dismissed. Therefore, that version ought not to be accepted.
6. Turning to the quantum, inasmuch as the workman has spoken to the fact that he cannot lift any weight by his right hand, it would be considered to be a total disablement and the award of 60 per cent is correct and no interference is warranted.
7. I have got to first decide as to which of the versions in relation to the incident that took place on 30th November, 1978, is to be accepted. I deliberately use the word 'incident' because still whether that incident could be an accident within the meaning of the Act requires to be decided, which I will do so in the latter part of my judgment. The version of the workman as spoken to by PW 1 is that on 29th November, 1978, Ganesan's wife wanted to graze cattle within the premises of the mills. Therefore, as watchman he objected to this and there was exchange of words between them. Because he prevented her from grazing the cattle, on the next day all the family members of Gansean came and beat him. This is what is spoken to in the chief-examination. In cross examination, it is true, suggestions were made that it was due to the misbehaving of the watchman with the wife of Ganesan. These suggestions have been stoutly denied. Barring this, no attempt whatever was made on behalf of the appellant-management to substantiate this version, namely, that because the workman (present-respondent) misbehaved with the wife of Ganesan, there was enmity between the watchman on the one side and Ganesan's family on the other. This incident which took place on 30th November, 1978, was nothing more than settling the score on account of this enmity. I find from the records an application was made before the Commissioner to reopen the case and to have the proceedings in relation to the domestic enquiry against Kandaswami to be gone into. To my mind it appears that the belated attempt on the part of the management was only to improve its case. Whatever it may be, in so far as the respondent (workman) was not a party to the disciplinary proceedings against Kandaswami and the domestic enquiry against the said Kandaswami, they cannot be used unless Kandaswami himself was examined and made available for cross-examination. I do not find from the records any attempt whatever was made seeking permission to examine Kandaswami or to reopen the case for examining the said Kandaswami. This is because in the affidavit filed by the appellant-management (which is found at page 11 of the file) in paragraph 3 it is stated thus:
The petitioner's authorised representative gave us a notice to produce disciplinary proceedings against one Kandaswami. This was produced and for reasons best known to the petitioner the petitioner did not make use of the same. Subsequently the file was sent away as the papers have been summoned for our defence in an action against Kandaswami in another forum. Therefore, we could not make use of the same or file the same during the enquiry on 29th September, 1979.
If really the management was anxious to establish its version, nothing could have been easier than to examine Kandaswami. For reasons best known, the same was not done by the appellant. Therefore, I have no hesitation in rejecting this version of the management. The result is, I hold that the incident on 30th November, 1978, took place because enmity arose between respondent watch-man and Ganesan's wife when the latter attempted to graze cattle within the premises of the appellant-mill. Now, on to the question, whether this would be an accident within the meaning of the Act. The word 'accident' has not been defined in the Act. However, Law Lexicon states the word 'accident' generally means some unexpected event happening without design even though there may be negligence on the part of the workman. It is used in the popular and ordinary sense and means a mishap or an untoward event not expected or designed. What the Workmen's Compensation Act, 1923, really intends to convey is what might be expressed as an accidental injury. It includes not only such occurrences such as collisions, tripping floor obstacles, falls of roof but also less obvious ones causing injury, e.g., strain which causes rupture, exposure to a draught causing chill, exertion in a stock-hold causing apolexy and shock causing neurasthenia. But the common factor in all these cases, is some concrete happening at a definite point of time and incapacity resulting from the happening, Lord Atkin in Harris v. Associated Portland Cement Manufactures Limited (1939) AC 71, states:
Once you have found the work which he is seeking to do to be within his employment, the question of negligence, great or small, is irrelevant and no amount of negligence in doing an employment job can change the workman's action into non-employment job...If a workman is doing an act which is within the scope of his employment in a way which is negligent in any degree and is injured by a risk incurred only by that way of doing it he is entitled to compensation.
8. The same principle has been followed in India in several decisions reported in Jaffar Hiptullah Bhoy Ginning and Press Factory v. Sheikh Ismail , Dhanpal v. Superintendent of Collieries : AIR1934Pat630 , Lee Shi v. Consolidated Tin Mines of Burma Limited AIR 1939 Rang 428, Padam Debi v. Raghunath Roy : AIR1950Ori207 .
9. The phrase arising out of and in the course of the employment is taken from the English Act, originally appearing in the Act of 1897. It has been adopted in the American and Dominion Acts. It also occurs in New-Zealand Act and has the same meaning as that of the English Act. There is hardly any general principle which can be evolved to explain and define the phrase 'arising out of employment' but attempts have been made to explain it by classification, viz., to the nature, condition, obligations and incidents of the employment. Whether in a given case, an accident arises on the one hand out of the injured person's employment, although' he has conducted himself in carelessly or improperly or, on the other hand, arises not out of his employment but out of the fact that he was outside the scope of it, or has added to it some extraneous peril of his own making, or has temporarily suspended it while he pursues some incursion of his own, or has quitted it altogether, are all questions which, often as they arise, are susceptible of different answers by different minds as explained by several well-known Judges and Jurists and are always questions of nicety. No universal test can be found. Analogies, not always so close as they seem to be at first sight, are often resorted to, but in the last analysis each case is decided on its own facts.
10. There is, however, in the opinion of Lord Suntner in the case of Lancashire and Yorkshire Railway Company v. Heighly 1917 AC 352 one test which is always at any rate applicable, which is this 'was it part of the injured person's employment to hazard, to suffer or to do which caused his injury? If yes, the accident arose out of his employment, if any, if No. did not.' The word 'employment' again is not to be defined in a narrow manner by reference only to the duties of the workman, but the character, conditions, incidents and special risks involved in employment, would have to be taken into consideration in order to find out whether the accident 'arose out of and in course of the workman's employment.
11. On the question of the type of accident, the well-known definition of accident, by Lord Macnaghten in Fenton v. F. Thorley and Company Limited (1903) AC 443, is 'an unlooked for mishap or an untoward event which is not expected or designed.' There is no difference between the English and the Indian statue as to the type of accident which gives the workman a claim to compensation (see Workmen's Compensation Act, 1923, Section 3). Golden Soap Factory (P). Limited v. Nakul Chandra Mandal : (1963)IILLJ580Cal , see also Mackinnon Mackenzie and Company Limited v. Velma Williams : (1965)ILLJ632Cal . Therefore, in the instant case, it is undoubtedly an accident because it was an unexpected event happening without design. The beating, therefore, was certainly an accident within the meaning of the law.
12. Section 3(1) of the Act throws the liability on the employer for compensation stating only 'if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of the Chapter.' As to what is the meaning of this can be gathered from a reading of Bai Shakri v. New Manekchowk Mills Company 1958 ACJ 53 :
Since Section 3 provides that the accident must arise out of and in the course of the workman's employment, the accident in order to give rise to a claim for compensation must have some casual relation to the workman's employment and must be due to risk incidental to that employment. But although, an accident must be a particular occurrence which happens at a particular time, in order that it may constitute an accident within the meaning of Section 3, it is not necessary that the workman should be able to locate it in order to succeed in his claim. There would be cases where a series of tiny accidents, each producing some unidentifiable result and operating cumulatively to produce the final condition of injury, would constitute together an accident within the meaning of this Section.
In view of the decision of the Gujarat High Court, the point that requires to be decided is whether it is an accident arising out of and in the course of his employment. This is all the more so because of the language of Section 3(1) already extracted. Concerning this the law is 'arising out of and in the course of respondent-workman as a watchman.' The rules of the appellant-mills prohibit grazing the cattle inside the premises. Therefore, as a dutiful watchman, if he prevented Ganesan's wife from grazing the cattle inside the mills, it is part of his duty as watchman. The accident in this case took place on 30th November, 1978, consequent to the beating of the workman was one arising out of employment as watchman and in the course of enforcing the rules of appellant-mills. Therefore, I agree with the Commissioner for Workmen's Compensation on this point.
13. Turning to the quantum, I find as per schedule IV where the pay range is from Rs. 400 to 500, the amount of compensation for permanent disablement will amount Rs. 9,400. This is not a total disablement since the workman is under the employment of the appellant-mills. I think the interests of justice would be met by awarding a compensation of Rs. 10,000 in full quit of the claims of the respondent.
14. The appeal will stand allowed in part. There will be no order as to costs. The said amount of Rs. 10,000 can be withdrawn by the workman from out of the deposit made to the credit of W.C. No. 16 of 1979 on the file of the Additional Commissioner for Workmen's Compensation, Tiruchirapalli, without furnishing any security.