P.B. Chakravartti, C.J.
1. The appellant whose claim for compensation has been dismissed by the Commissioner for Workmen's Compensation was employed under the respondents, Bird & Co., Ltd., as a spinning shifter and suffered an injury in his right arm as the arm got entangled in a spinning frame when it was in motion. The case made by him in his application for compensation was vague to a degree and all that was said was that he had met with the accident when he was on duty. That bare case was subsequently developed in the course of the evidence into a case of an accident suffered while the appellant was cleaning the machine, although it was in motion, which it was one of his duties to do. The respondent-company admitted that the appellant was a workman under them and also admitted that he had suffered the injury in his right arm by reason of the arm having got entangled in a spinning frame. What they contended by way of setting up a plea in bar was that the accident had not arisen out of and in the course of the appellant's employment, because (a) it was not one of the duties of his employment to clean spinning frames while they were in motion and (b) that in actual fact he had arrived at the mill some time before the hour when the mill usually starts and had put his hand inside the slack pulley in order to steal oil by means of some cotton waste, but before he had finished the operation, the mill had started and his arm had got jammed by the machine.
2. The only witness which the appellant examined was himself. He named two fellow-workmen, but those two were examined by the respondent-company. A third witness examined on behalf of the respondent-company was an assistant of the spinning department.
3. The learned Commissioner has accepted the case of the respondent-company in toto. He has held that it was not the duty of the appellant to clean the spinning frames while in motion and further that the accident had occurred to him in the manner alleged by the respondents. In that view, he necessarily held that the injury in the right arm had not been caused to the appellant by an accident arising out of or in the course of his employment and that consequently he was not entitled to any compensation. In arriving at that conclusion the learned Commissioner appears to have been very largely Influenced by the accident report submitted by the respondent-company to the various authorities prescribed by law.
4. In support of the appeal it was contended by Mr. Mukherjee that the evidence led by the respondent-company was self-contradictory and if that evidence was eliminated, nothing was left except the appellant's own evidence, according to which he was entitled to succeed. It was contended further that the learned Commissioner had been entirely in error in relying upon the accident report, inasmuch as it had not been legally proved and, secondly, that at best the evidence furnished by it was only hearsay evidence. It was contended further that the two fellow-workmen who had deposed against the appellant and supported the respondent's case of attempted theft of oil had, on their own admission, not seen the beginning of the accident and therefore they were not witnesses competent to say why and in what circumstances the appellant had inserted his hand in the machine. Mr. Mukherjee's contention was that the respondents' case had not been proved and therefore his client's case remained.
5. I may say at once that it is not possible to accept the respondent-company's case as true. In the first place, no value whatever can be attached to the evidence of the two workmen because, as contended on behalf of the appellant, they were not on their own showing present when the appellant bad inserted his hand inside the machine. How then they could have said that the appellant had inserted his hand inside the machine for a particular purpose and that purpose was theft of oil, it is impossible to see. Neither of them said that when the appellant's hand was extricated, he found it dripping with oil or that they found some cotton waste. I have no hesitation in holding that the evidence of the two workmen is no legal evidence at all of the alleged attempt at a theft of oil.
6. There is then a further infirmity in the evidence on the respondents' side and that infirmity clearly shows the case made by the company to be untrue. According to all the defence witnesses the mill starts at 6 a m. and it was at that hour that it started on the day in question. It is nobody's case that the appellant suffered the injury when the machine was stationary. It is the common case of both the parties that the machine was in motion at the time the injury was caused and indeed the accident could not have happened and the injury could not have been caused, if the machine had not been in motion. If it is usual for the mill to start at 6 a.m. and if it was at that hour that the mill started on the relevant date, the accident could not possibly have taken place before 6 a.m.. Yet one finds that the accident report, upon which the Commissioner has almost wholly relied, deliberately gives the hour of the accident at 5.55 a.m. On the respondents' own showing at 5.55 a.m. the mill could not have started and, in fact, one of the respondents' own witnesses, namely, witness 3, stated categorically that after the appellant had inserted his hand into the machine and while his hand was still there, the mill was started and it was then that his hand was injured. It is impossible to see how, if the accident was caused after the mill had started--and it could not have been caused earlier because in order to cause the injury the machine would have to be in motion--it could have taken place, as I have already pointed out, earlier than 6 a.m.. It does not take much intelligence to see that the hour of 5.55 a.m. was mentioned in the accident report in order to place the time of the accident outside the danger period which would commence at 6 a.m. Unfortunately, when that hour was chosen, it was forgotten that in order that the accident could at all take place, the machine would have to be in motion and if the machine had to be in motion, the mill would have to be started and that it did not start before 6 a.m.. In my opinion the case set up by the respondents is palpably false. In that view, I need not discuss the appellant's objections to the accident report.
7. I can only express my regret that a company of the status of the respondents should have considered it proper or found it necessary to put up a false case in order to defeat the claim of a bumble workman.
8. The weakness or falsity of the respondents' claim, however, does not relieve the appellant to prove his own. He has to prove that the injury was caused by an accident arising in and out of his employment and in order to prove that he has to prove that it was within the usual or reasonable duties of his employment to clean the machine while it was in motion. On that subject the evidence given by the appellant himself is clearly negatived by the evidence led by the respondents and by the obvious probabilities of the case. The assistant of the spinning department and the two fellow workmen of the appellant have all said that it was not the duty of the appellant to clean the machine while it was in motion and they have also spoken to the existence of a notice properly exhibited, saying that the machine was not to be cleansed while it was in motion. No one having a personal knowledge of a spinning mill would require any argument to be convinced that it could not possibly be the duty of any workman to clean any of the spinning frames while the mill was working and the machines were in motion. Mr. Mukherjee contended that since the appellant was admittedly an employee under the respondent-company and since he was a spinning shifter, the accident which had occurred to him must in law be taken to be an accident arising in and out of his employment, unless the respondent-company could bring the case within the exception contained in proviso (b)(ii), attached to Section 3(1) of the Workmen's Compensation Act. I am not able to accept that contention. Section 3(1) begins by saying that the provisions of that section would apply.
if personal injury is caused to a workman by accident arising out of and in the course of his employment.
It is thus clear that the section presupposes that an injury has been caused by an accident arising out of and in the course of the workman's employment and the provisions can have no application unless the preliminary condition contained in the assumption is satisfied. If, for example, it had been the duty of the appellant in the present case to clean the machine while it was in motion, but in order to avert danger, the employer had laid down certain precautions to be taken and those precautions were disregarded, there would be a case to consider whether proviso (b)(ii) would or would not apply. But where the fundamental condition is Itself not satisfied, no question of considering any of the provisos can be relevant.
9. In my view, although the respondents, case must be pronounced to be false, it must, at the same time, be held that the appellant has not been able to prove his own. That being so, the order of dismissal passed by the learned Commissioner must be upheld, though not for the reasons given by him.
10. There will be no order for costs in the appeal.
Surjit Chandra Lahari, J.