Harries, C.J:— This is an appeal by the employees from an order of the Commissioner for Workmen's Compensation, awarding the respondent a sum of Rs. 1003, less Rs. 8, already received as compensation, with costs.

2. The workman was a mistri employed by the appellants, Bhutnath Dal Mills. On 1st July 1947, while he was trying to put back some belting on a moving machine his right hand was dragged into a pulley and seriously injured. As a result of the accident he lost the index finger of his right hand and lost the use and movement of his middle, ring and little fingers of the same hand. He applied for compensation, but his claim was resisted by the appellants on the ground that the accident was the result of an act of the respondent in wilful disobedience of orders given to him. It was the case for the respondent that each workman, when he was employed, was warned that he was not to effect any repairs while any of the machines in the factory was in motion and further that there was a notice printed in English and Hindi to the same effect. There was also evidence of a durwan that the respondent had been seen replacing the belt when the machine was in motion on previous occasions and had been told that he should not do so.

3. On a consideration of the whole of the evidence, the Commissioner came to the conclusion that the act of the workman was an act done in the course of his employment and that the accident arose out of and in the course of the employment. He held that the respondent's wages were Rs. 60 per month and that the percentage of incapacity was 30 per cent. Upon those figures he awarded the respondent Rs. 1008. It has been urged by the appellants that they were not liable by reason of the provisions of Section 3(1)(b)(ii) of the Workmen's Compensation Act which provides that the employer shall not be liable in the case of an accident which is the result of wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of the workman, where the injury does not result in death.

4. It is to be observed that to come within this provision of the Act, the workman must be in wilful disobedience of an order; mere disobedience is not sufficient. Disobedience may be the result of forgetfulness or the result of the impulse of the moment. Such would not be sufficient, as the statute only exempts the employer from liability when the disobedience is wilful, that is, deliberate and intended.

5. The learned Commissioner does not appear to have been satisfied that there was a notice posted up in the factory prohibiting workmen from effecting repairs whilst the machinery was in motion. It is said that the notice, if there was one, was printed in English and Hindi. But what use an English notice would be to an ignorant and illiterate workman, I cannot imagine. Further, if he did not read Hindi, it would also be of no use. Possibly, if the notice had been in Bengali literate workmen would have been able to read it. But it is very doubtful whether an average literate workman could read a notice in English or Hindi for that matter. In any event the learned Commissioner finds that the workman was illiterate. So a notice in any language was perfectly useless as far an he was concerned unless its contents were expressly brought to his notice. The learned Commissioner was not satis, filed that this notice or its contents were ever brought to the notice of the workman in such a manner as to make him understand that effecting repairs whilst machinery was in motion was prohibited. A durwan was called who said that he had seen the respondent effecting repairs whilst the machinery was in motion and that he had instructed him not to do so on those occasions. Had this witness been a foreman or someone whose duty it was to supervise the work the evidence would have been of greater weight. Why the durwan should see what was happening and notice breaches of regulations, I do not know and further, even if he had seen them why should a durwan who is a mere door keeper, or at most a kind of chowkidar, take it upon himself to reprove the workman. I am not surprised that the Commissioner was not satisfied that it had ever been made clearly known to the workman that be was not to effect repairs whilst the machinery was in motion. That being so, no question of disobedience of orders could arise and certainly no question of wilful disobedience of orders.

6. Even if there was a notice exhibited in a prominent place which was not proved, it would still be open to the Commissioner to hold that the act of the workman was nob an act in wilful disobedience of orders. This is clear from an English decision of Whitehead v. Reader, (1901) 2 K.B 48 : (70 L.J.K.B 646). It is true that the words of the English statute are somewhat different. Where the act of the workman in England amounts to serious and wilful misconduct, the employers will not be liable in certain cases. Serious and wilful misconduct may be wilful disobedience of an order. So the English cases are in point. In Whitehead v. Reader, (1902) 2 K.B 48 : (70 L.J.K.B 646) a workman was employed as a carpenter and part of his duty was to sharpen his tools on a grindstone rotated by machinery. He had received orders not to touch the machinery. The band that rotated the grindstone having slipped he endeavoured to replace it, and in doing so was injured. On a claim for compensation under the Workmen's Compensation Act, 1897, the County Court Judge found that the accident arose out of and in the course of the employment of the workman, and negatived serious and wilful misconduct on his part, and made an award in his favour. This award was upheld by the Court of Appeal. At p. 52 Romer L.J observed:

“To make the grindstone work, and so to be able to sharpen his tools, the carpenter may well be said to have been about his master's business when he tried to replace the band, and that on the impulse of the moment he should have forgotten the order as to not touching the machinery is not unnatural and may well be regarded as a venial act and not as being wilful misconduct on his part. I am not able to gather from the facts of the case that the replacing of the band was an act on the workman's part so remote from his ordinary duties that it could not be fairly said to be one arising out of and in the course of his employment.”

7. The case before us is a stronger case, because in the English case it was no part of the carpenter's duty to replace the belting. He merely used the grindstone and as the grindstone had stopped and the belting had come off the pulley, he tried to replace the belting. In the-present case it was the mistri's duty to replace-the belting, though he ought not to have done so whilst the machine was in motion. It appears to me that the Commissioner might well in the words of Lord Romer find that on the impulse of the moment the workman should have for gotten the order if ever given as to not touching the machinery and that the act of the workman] may well be regarded as a venial act and not as being wilful misconduct or act of wilful disobedience on his part.

8. The learned Commissioner also relied ob another English case, namely, Estler Bros. v. Phillips, (1922) 15 B.W.C.C 291, and that case is also very much in point. The workman was employed on a machine which it was part of his duty to clean. He had seen other men cleaning the machine while stationary only. A notice which the man had seen, prohibited him from, cleaning a machine while it was in motion. He was standing at the back of the machine on a platform only used when cleaning the machine, and was cleaning the machine while in motion when his court sleeve was caught and twisted round the shaft. His right leg was drawn into the machine and severely lacerated, and he became wholly incapacitated. The County Court Judge found that the workman was acting within, the scope of his employment, though disobediently, and awarded compensation on the ground that the accident arose out of and in the course of the workman's employment. The House of Lords held that there was evidence to support the finding and that there was no misdirection, and upheld the award.

9. These English cases which in my view apply to the relevant provision of the Indian Act strongly support the workman's case and the view taken by the Commissioner.

10. It is to be observed that though great reliance was placed by the employers on this-notice alleged to have been exhibited, the notice was not produced, and secondary evidence was given of its contents. Even from that evidence it is by no means clear what was said in the notice. What the witness Rash Behari Tewari, the manager of the mill, says is that there was a notice in English and Hindi to the effect that a running machine was not to be handled in case of disorder. Whether there was prohibition or not it is utterly impossible to say, even if that evidence is accepted. However, as I have said the learned Commissioner was not satisfied that it had ever been made clear to the workman that he should never attempt to do anything to the machinery when it was in motion.

11. Further, it appears to me that this appeal in so far as it relates to this matter is a pure appeal on facts and that is not permitted by Section 30 of the Workmen's Compensation Act, which provides that as appeal shall lie from an order of a Commissioner awarding compensation, but it is provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. It has always been held in England that whether the act of the workman amounts to serious and wilful misconduct is a pure question of fact and it appears to me whether a workman acts in wilful disobedience of an order in India is a pure question of fact. There can be no question of law at all involved and as the finding is that the act of the workman was not in wilful disobedience of an order, it appears to me that no appeal would lie on this ground if it was the only ground.

12. It was also contended on behalf of the employers that the amount of compensation awarded was: too much. The learned Commissioner has found that the degree of incapacity was thirty per cent. It is urged that he could not have found that the degree of incapacity was more than twenty-five per cent. Reliance was placed on the provisions of such. I to the Act. That provides that the loss of an index finger represents a loss of 10 per cent, of earning capacity and that the loss of any finger other than the thumb and index finger represents a loss of 5 per cent, of earning capacity. The argument is that even if he lost three fingers of the right hand other than the index finger it would only cause a loss of 15 per cent, of the earning capacity and as the loss of the index finger only causes 10 per cent, the total loss would only amount to 25 per cent, of the earning capacity. It appears to me that these provisions of Sch. I are singularly inappropriate. How can it possibly be said with accuracy what percentage of loss of earning capacity a man suffers by the loss of any limb? A sedentary worker would in many cases be able to do his pre-accident work after losing a foot whereas a man trained only for heavy manual work would find it practically impossible to get any work which he could do. The loss of earning capacity must vary according to circumstances.

13. However, in the case of permanent partial incapacity it is expressly provided by S. 4 Para. C that where permanent partial disablement results from an injury specified in sch. 1 such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury. There is an explanation to this clause in these terms:

“Where more injuries than one are earned by the-same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.”

14. Applying this illustration it is clear that where a workman lost both arms above the elbow, if the two items in Sch. 1 are aggregated it would show a percentage of loss of earning capacity of 130 per cent. The explanation says that in such a case the amount of compensation must not exceed the amount payable if the disablement was total and permanent; in other words the loss of earning capacity must be taken, as 100 percent that is, total permanent disablement and clearly such a workman is totally disabled and not partially.

15. It will be seen from the explanation that the amount of compensation in the case of permanent partial incapacity shall be aggregated. Where an index finger is lost, the percentage of the loss of earning capacity is 10 per cent, and the amount of compensation payable in such a case is that percentage of what would be payable in the case of total permanent disablement, and those amounts are set out in Sch. IV. A man earning between Rs. 70 and Rs. 90 a month would receive Rs. 3360 if he was permanently totally disabled. Where he has lost an index, finger the provision is that he would receive 10 per cent, of this sum of Rs. 3360 namely Rs. 336.

16. Similarly, if he had lost one finger other than the index finger, he would receive 5 per cent, of this figure, namely Rs. 163 and an the explanation provides, where more injuries than one are caused by the same accident, the amount of compensation payable shall be aggregated. It follows that in this case we must take the amount of compensation which will be payable if the index finger only had been lost and add to it the amount of compensation payable for each other finger, because the damage to the other fingers has caused total loss of use and movement and by the note to Sch. I it is clear that complete and permanent loss of the use of any limb or member is equivalent to the loss of that limb or member. Therefore the three fingers other than the index finger can be regarded as lost.

17. If these amounts are aggregated, namely, Rs. 336 for the loss of the index finger and Rs. 168 for the loss of each of the other three fingers, this would bring the total to Rs. 840 and that appears to be the maximum sum which can be awarded to this workman.

18. It appears to me that this method of arriving at the amount of compensation payable is most unsatisfactory. But it is the method prescribed by the statute and must be followed. That being so, the amount of compensation in this case must be reduced from Rs. 1008 to a sum of Rs. 810 less the sum of Rs. 8 which had apparently been received by the workman before these proceedings. In the result therefore this appeal is allowed in part and amount awarded to the workman is reduced to Rs. 810 less the Rs. 8 already paid.

19. The respondent will be entitled to three-fourths of the costs in this Court and the costs incurred by him in the Court below the hearing fee in this Court being assessed at four gold mohurs.

20. The injunction is dissolved and the amount awarded by this Court may now be taken out by the workman.

Chakravartti, J.:— I agree.

K.S

21. Appeal partly allowed.