B.B. Ghose, J.
1. This is an appeal against an order of the learned Commissioner under the Workmen's Compensation Act dismissing the application made by a workman who had been injured by his arm being torn off by a machine while in the service of the respondent. His ease was that he was cleaning jams by putting his arm into the machine when another, a boy named Panchu who was employed under the respondent, put the machinery in motion and the result was that his hand was torn off above the arm. He asked for compensation of a lump sum of Rs. 882. The learned Commissioner dismissed his claim. Two witnesses were examined on behalf of the appellant before the learned Commissioner and one witness was examined on behalf of the respondent. Two issues were framed by the learned Commissioner. One refers to the fact whether the accident arose out of the employment. There is no question that that issue should be decided in favour of the appellant and the learned Commissioner has apparently done so. Issue 2 was:
Was the accident directly attributable to the wilful disobedience of the workman of rule expressly framed for the purpose of securing the safety of the workman namely not to work on the machine while it is in motion.
2. The petitioner stated that he was cutting away the tangled thread with a knife putting his hand through the pinion. His case was that the machine was at rest at the time and not in motion and that the boy Panchu who was either a spinner or a shifter started the machine without warning, with the result that the accident happened. There is no doubt that this man was cleaning the machine. The question really is whether the machine was in motion or not when this man actually began the work of cleaning the machine. The learned Commissioner visited the locality; but he visited it not for the purpose of understanding the evidence that was-given before him, but he went there after the examination-in-chief of two witnesses for the applicant but before they were cross-examined. The learned Commissioner seems to have asked the parties to re-enact the scene just before the accident happened. It seems to us that it is not a desirable thing to do on a local inspection. It is common knowledge that when an accident has happened it is very difficult to recall every little incident that happened just before the accident. The parties were not working anticipating an accident. The use, therefore, made of the local inspection does not commend itself to us.
3. It appears next that a suggestion was made at the time of the cross-examination of the applicant that Mr. Mahong, the Spinning Superintendent of the machinery, came and warned the appellant as he was cleaning the machinery when in motion. The appellant repudiated that suggestion and he said that it would be dangerous to do so. It seems to us that a man must be demented to put his arm through a moving machine. How can that be done it is difficult to imagine. Mr. Mahong does not say that he saw the applicant cleaning the machinery when it was in motion. He only says that he spoke to the applicant about the guard being unfastened and away from machine. That rather supports the story of the applicant. that the machinery was not then in motion. The next thing is that Panchu who was brought into Court by the opposite party and exhibited before the Commissioner was not examined. The learned advocate for the opposite party says that it was the duty of the applicant to examine him. It is difficult to say that it is so, because Panchu is accused of having done the thing which caused injury to the applicant and certainly the applicant would not expect that Panchu would support his story, if that was a true story. The learned Commissioner dismissed the claim on the ground, first, that Panchu must have been so close to the applicant as practically to touch him at the time of starting the machinery. Assuming that to be so, there is nothing in the evidence that Panchu could not have started the machinery through inadvertence. The learned Judge really disposed of the case in two sentences, where he says that the evidence subsequently taken on oath confirmed his view that the story of the claimant is incredible.
4. We do not find anything in the record of the evidence taken to support this finding. The Commissioner again finds that there can be no doubt that the machine was in motion when he (the applicant) tried to clean the jam. There is no evidence to support this finding. As the finding is based upon no evidence, that is a substantial question of law which entitles the applicant to maintain this appeal. We, therefore, set aside the decision of the learned Commissioner and decree the appeal. As there is no question raised in the Court below or in this Court as to the reasonableness of the damage claimed, we decree that the appellant should get Rs. 882 as compensation for the loss of his hand with costs in this Court as well as in the Court below. We assess the hearing-fee in this Court at three gold mohurs.
S.K. Ghose, J.
5. I agree.