R.C. Mitter Ag. C.J.
1. The respondent Abdul Hossein was a guage boy in the appellant's factory whose duty was to carry glassware from, one place to another. On 11-7-19-15, at about 5 P.M. he fell down within the premises of the factory as a result of which he broke his left arm. On that day he was to have worked in the second shift. The first shift usually begins at 8 O'clock in the morning and ends at 2 O'clock in the afternoon and then the second shift begins. These facts are admitted by both parties.
2. The case of The respondent is that he was bringing The gauge from a room with which he was to pick up the glassware, when on the way the wooden slippers which he was wearing slipped, and he fell down on the ground inside the factory and under a mango tree and injured his arm. In support of that case he examined himself arid another witness, Sheikh Yakub, who corroborated him.
3. The appellant company in its written statement admitted that the respondent was a guage boy in the factory but did not state how and when The accident occurred. It simply stated 'that either on that date or at any other date the respondent did not receive any personal injury arising out of and in the course of his employment', and that he 'received the injury at a time other than the hours of is work and at a place other than the usual place of his work.'
4. At the trial the company examined two witnesses, Abdul Moula and Akhoy Kumar De. The last mentioned witness was the time keeper of the appellant's factory. He stated that the respondent met with the accident at 4-30 or 5. P.M. When the first shift was still working, as on that day the first shift began to work as late as 1 P.M. instead of 8 A.M. in the morning, which was the usual hour for the work to begin, and the first shift went On till 6 P.M., that the respondent was an employee for the second shift, that he had to come and actually came at 1 P.M. and had to wait in the factory compound, that he was playing in front of the office with other boys, who also had to wait till the first shift ended and in the course of the play he stumbled at a hole in the ground and injured his arm. The learned Commissioner did not decide which version was true, but stated that even assuming the version given by Akhoy Kumar De 'to be true the accident, according to him, would have to be regarded as one which had occurred in the course of his employment and had arisen out of it. He accordingly awarded B3, 720 as compensation to the respondent.
5. We do not think that this case can be disposed of in that way. The statement of Akhoy Kumar De is that the respondent was not at the time of the accident engaged at his work; his work was to begin later. His statement is that the accident occurred in the compound of the factory but when he was at play. The statement which could be regarded as a damaging admission, if at all, is that the workmen who were to work in the second shift had to attend at about 1 P.M. and had to remain in waiting till they began work. We take that statement to mean that they could not leave the factory from the time they entered the compound and till they actually began to work in the second shift. The statement so understood can at most be relevant on the question as to whether the accident occurred in the course of his employment, but in our judgment would have no bearing upon the question as to whether it arose out of his employment. In order to succeed the workman must prove two things for fastening the liability on his employer, namely (1) that the accident occurred in the course of his employment and (2) that it arose out of his employment: Pomfret v. Lancashire and Yorkshire Ry. Corporetion (1903) a K.B. 718.
6. The phrase 'arising out of his employment' has been interpreted in a number of decisions in England, of which the decision of the House of Lords in Mrs. Margaret Thorn v. Sinclair (1917) 1917 A.C. 127 is the moat important. That decision has been followed in this Court in Gouri Kinkar Bhagat v. Radha Kissen Cotton Mills : AIR1933Cal220 .
7. One thing is established by the reported decisions, namely that the personal injury must have some relation to the employment. If it, has no relation to the employment the workman cannot claim compensation. It is also established by the reported decisions that the phrase 'arising out of the employment' occurring in Section 3 of the Act indicates that the workman's employment must be the distinctive and proximate cause of his personal injury and that the phrase does not mean only that the personal injury must have resulted from the mere nature of his employment and is not limited to cases where the personal injury is referable to the nature of his employment, that is to say the duties he has to discharge. If the personal injury can be attributed to the duties which he has to discharge, the workman would certainly be entitled to compensation but he may also be entitled to compensation in cases where this personal injury is not directly connected with the duties of this office. In Gouri Kinkar Bhagat v. Radha Kissen Cotton Mills : AIR1933Cal220 . Lord Shaw after discussing this matter in some detail observed as follows:
In short my view of the statute is that the expression 'arising out of the employment' is not confined to the mere 'nature of the employment.' The expression, in my opinion applies to the employment as such-to its nature, its conditions, its obligations and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute, 'arising out of thee mployment' apply.
The words 'conditions' and 'incidents' in this observation would cover the cases of risks peculiar to the employment-not added perils produced by the workman himself for peculiar risks would generally arise from the character of the employment and the surrounding circumstances. If the personal injury resulted from the peculiar risks of the employment the workman would also bring his case within the statute: Clayton v. Harwick Colliery Corporetion (1916) 114 L.T. 241. In our opinion the workman who is injured in the course of his employment would be entitled to compensation only if this employment had given rise to the circumstance of injury by accident, and in testing the case from that point of view the word 'employment' 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 risk involved would have to be taken into consideration. Judged from these principles we cannot hold that the personal injury would be taken to have arisen out of his employment which a workman received while playing in the ground of the factory where he was obliged to remain in idleness while another shift was working and before his turn of beginning work had arrived. We therefore hold that the Commissioner has misdirected himself on a substantial question of law.
8. In these circumstances the further question is whether we should remit the case to the Commissioner or we ourselves should decide the question of fact relating to the accident. Section 30 of the Act gives an appeal to this Court if a substantial question of law is involved, but once that condition is satisfied we are entitled to consider the whole case, and for that purpose to review the evidence on the record and to decide questions of fact. This is the view taken by a Division Bench of this Court which we respectfully follow: Gouri Kinkar Bhagat v. Radha Kissen Cotton Mills : AIR1933Cal220 . In this case we propose to decide the question of fact ourselves.
9. His Lordship then discussed the evidence in the case and observed. We believe the respondent's version of how, when and in what circumstances he sustained the personal injury. On this finding we hold that he sustained the personal injury in the course of his employment and that it arose out of his employment.
10. The result is that the appeal is dismissed with costs,-hearing fee two gold mohurs.
Amiruddin Ahmad, J.
11. I agree.