1. This is an appeal from a decision of Mr. Lethbridge, Commissioner Workmen's Compensation, Bengal, refusing compensation to the appellant. The appellant who was the applicant for compensation was a viceman of the Fitter Roving Department employed by the respondent in the Mills in the month of Kartick 1335 B.S.; and in that month he received personal injury by accident which he alleges arose out of and in the course of his employment. The case put forward by the applicant was that the cause of the injury was the petitioner's tightening one slack ring in a wheel in the Roving Department No. 1. The applicant sustained several injuries which are noticed in para. 2 of his petition. The result of the injuries was that three fingers of the applicant had to be amputated in the Howrah General Hospital. The applicant accordingly claimed that he was entitled to receive as compensation a lump sum of Rs. 500 as the applicant, over and above the injuries spoken of had been suffering, from time to time from eruptions over his body. A written statement was put in on behalf of the respondent Sri Hanuman Jute Mill in which they admitted that the applicant, the appellant before us, received injuries by accident in the course of his employment as a Roving viceman. But they denied that the accident arose out of the employment as stated by the workman.
2. The respondents also denied that the injuries were due to the applicant's attempting to tighten a slack ring in a wheel and the respondents definitely stated in the written statement that the applicant received these injuries owing to putting his hand inside the gearing box of the said Roving machine with the object of removing tools therefrom, and that in so doing his hand was caught in the wheels of the machine which was in motion at the time. It is also stated by the respondents that in attempting to put his hand inside the gearing box of the said machine while in motion the applicant took upon himself an added and unnecessary risk which it was no part of his normal employment to take. On these pleadings several issues were framed and the learned Commissioner, after taking evidence on those points, came to the conclusion that the appellant's case as to the reason of the accident has not been established. On the other hand he accepted the case of the respondents that the accident was due to the cause as alleged in the written statement. Before the Commissioner, it appears, it was not argued that on the facts the accident could arise out of the employment. Against this decision of the Commissioner the present appeal has been brought and it has been argued for the appellant that the learned Commissioner has taken an erroneous view of the law in coming to the conclusion that the accident did not arise out of the employment. It has just been observed that as a matter of fact that this question was abandoned before the learned Commissioner. But the appellant has been permitted to argue this question by his pleader as it may be that the admission may not be binding on his client, as it is an admission on the point of law and we therefore allow the appellant to take this point before us. The question as to whether the accident arose out of the employment cannot be determined on any general view of facts. It is dependent, as has been pointed out by Lord Sumner in a recent case on the facts of each particular case. In the case of Lancashire and Yorkshire Railway v. Highly (1917) AC 352, Lord Sumner in delivering the judgment, said this (at p. 372):
I doubt if any universal test can be found .... Analogies, not always so close as they seem to be at first, are often resorted to, but in the last analysis each case is decided on its own facts. There is however in my opinion one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury If yea, the accident arose out of his employment; if nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely was an added peril and outside the sphere of employment, are all different ways of asking whether it was a part of his employment that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury.
3. These words furnish a test to guide us on the present occasion. It appears clear that the applicant for compensation was a viceman whose duty was, as he himself states in his evidence, to mend the machine when it goes out of order. For this purpose he had to be, as he says in his deposition, in possession of a screw-driver. The screw-driver is so long that he could not hold it in his pocket and there is a fair amount of use for a big screw-driver and Mistris frequently walk up and down the lines with a screw-driver in their hands. It appears clear from the evidence on behalf of the opposite party that he had nothing to do with the moving machine and that his business was to mend the machine while it was not working. It was argued for the appellant that the test in such cases as this case is as to whether the workman negligently did his duty or not. A distinction has been drawn between the cases where there has been negligence by the workman in the performance of his duty and where the workman had been doing some work which he was not employed to do and met with the accident in the course of such outside work. That distinction seems to be a good distinction. It appears to us that in the present case there was no justification for the workman to interfere with the moving machine for the purpose of finding out a screw-driver which he required for the purpose of his work. In doing so we do not think that he was within the sphere of his employment as a viceman. The accident could not have occurred in the course of his employment and we think that the view taken by the Commissioner is right. The result is that this appeal must be dismissed. There will however be no order as to costs.
4. I agree.