Kulwant Sahay, J.:— This is an appeal by the claimants against the order of the Commissioner under the Workmen's Compensation Act, 1923, dismissing their claim for compensation against the respondent company. The appeal is under section 30 of the Act which allows an appeal to the High Court from an order of the Commissioner disallowing a claim in full, or in part for a lump sum, provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. The wording of the section is not happy. It leaves a loophole for argument that if a substantial question of law is involved in the appeal an appeal would of lie not only on a question of law but also on facts the learned Counsel for the appellants has not taken advantage of this loophole and has argued that the order of the Commissioner is bad on substantial questions of law. He has accepted the position that the findings of fact arrived at by the Commissioner are final and binding upon him. The facts found are shortly these:—

Hari, the husband of one of the claimants and the son of the other, was an employee of the company and he was killed by being run over by an engine in the works. The deceased was employed in a paint-shop which, was situated towards the north of a railway track. It was the duty of the deceased to start work at 6 a.m, but before starting work he had to change his check and for that purpose he had to go to the check house which was also situated to the north of the railway track a little to the east of the paint-shop. The case of the claimants was that the deceased was actually crossing the track from south to north to go to the check house when he was run over. The defendant company, however, alleged that he was going in the opposite direction although he had not changed his check. The learned Commissioner has found that the defendant's version was correct and that the deceased was actually going from north to south. There was a dispute between the parties as regards the speed of the engine, the claimants' case being that the engine was going very fast, while the defendant's case was that it was going very slow. The learned Commissioner found that the engine was going faster than the prescribed limit.

The Commissioner then considered the question whether the accident was one arising out of and in the course of the employment of the deceased as required by section 3(1) of the Act in order to enable the claimants to obtain compensation, and he came to the finding that the accident arose out of and in the course of the employment.

The learned Commissioner then proceeded to consider whether the case was covered by one of the exceptions contained in section 3 of the Act. The exception relied upon by the respondent company was the one contained in sub-section (1), clause (b), sub-clause (ii), of section 3 which provides that the employee shall not be liable in respect of any injury to a workman resulting from an accident which is directly attributable to the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen. It was alleged by the respondent company that the deceased had wilfully disobeyed certain rules framed for the safety of workmen and those rules were contained in two printed books, one called the “Working Rules and General Safety Rules of the Traffic Department and Department of Labour and Transportation of the Tata Iron and Steel Company, Limited, Jamshedpur” and the other called the “Safety Rules of the Tata Iron and Steel Company, Limited, Jamshedpur.” The books are marked Exhibits 1 and 2 respectively. One of the rules relied upon by the respondent company was rule no. 56 printed at page 16 of Exhibit 1 which runs thus:

“56. Persons running across in front of trains, sitting or lying under the vehicles are warned that they do so at their own risk.”

Reliance was also placed on the Special Safety First Cautions printed on page 38 of Exhibit 1, item no. 2 whereof runs thus:

“Do not take shelter under, pass under or run across vehicles.”

In Exhibit 2 which contained the safety rules, rule no. 6, printed at page 9 runs thus:

“When crossing railway tracks, use great care. Before crossing any track—‘STOP, LOOK AND LISTEN’.”

and rule 7 says:

“Employees are forbidden to take short cuts over dangerous places and are forbidden to leave work to go to other parts of the plant except upon the Company's business.”

These are the rules relied upon by the respondent company the disobedience whereof they alleged resulted in the accident.

The learned Commissioner found that the deceased was not guilty of disobedience of rule no. 7 which forbids employees to take short cuts over dangerous places inasmuch as he found that in spite of there being safety gates close to the place where the deceased met with the accident, the place was used all along by employees without prevention and they were in the habit of crossing the railway track as a short cut without any objection on the part of the company or their agents. The Commissioner, however, was of opinion that the disobedience on the part of the deceased workman which could defeat the claim was his disregard of the other rules which forbid running across in front of trains and he found that the deceased actually disregarded those rules and cautions and very recklessly dashed across in front of the engine. He then observed that this disobedience was sufficient to defeat the claim provided that the accident was directly attributable to the disobedience and that the disobedience was wilful. As regards the accident being directly attributable to the disobedience the learned Commissioner found in favour of the respondent company and he observed that the accident was in fact directly attributable to the rash action of Hari. He remarked that the accident obviously would not have happened but for the carelessness of the deceased. There may have been contributory causes and the speed of the engine was according to him a contributory cause; but the learned Commissioner remarked that as the rashness of the deceased was the most immediate cause the claimants could not take advantage of the other contributory causes. He also found that the deceased disobeyed the rules wilfully and that he was well aware of them, and as he deliberately disregarded them and this disregard resulted in his death, the claim could not be allowed.

The above synopsis of the findings of the learned Commissioner will show that the ground upon which he disallowed the claim was that the deceased was guilty of wilful disobedience of certain rules framed by the respondent company and that the accident was directly attributable to such disobedience and that, therefore, the respondent company was not liable to pay compensation.

The learned Counsel for the appellants who has argued this appeal very ably, has taken the following points of law:

(1) That the Commissioner was wrong in relying upon the proviso contained in section 3(2)(b)(ii) of the Act when it was not pleaded in the written statement filed by the respondent company;

(2) that the rules relied upon were not such as would amount to valid rules, the disobedience whereof would exonerate the respondent company from any liability to compensation;

(3) that there was no wilful disobedience of the rules and that the accident was not directly attributable to such disobedience.

As regards the first point, it appears that in the written statement filed by the respondent company no specific ground was taken of the deceased workman being guilty of disobedience of any rule expressly framed. What was alleged was that the accident did not arise out of or in course of employment of the deceased and that it arose by reason of unauthorised entry of the deceased on to the railway track at a time when he was not supposed to be there and that the accident was due to his own rash and negligent conduct inasmuch as he ran on to a track when a locomotive engine was near in sight and when he should have known that his act was extremely dangerous and would lead to fatal injury and that the deceased crossed the rail line in spite of warning and in spite of his being cautioned by other men on the spot against this act. The Commissioner, however, framed certain issues and issue no. 2 framed by him runs thus:

“Whether the accident was due to the rashness or negligence of the deceased or was due to any wilful disobedience of any safety rule.”

It is contended on behalf of the appellants that inasmuch as the exception contained in section 3(2)(b)(ii) of the Act was not pleaded it was not open to the Commissioner to go into the question of wilful disobedience of any rule expressly framed and to consider the question whether the accident was directly attributable to such disobedience. I am of opinion that there is no substance in this contention. The proceedings under the Workmen's Compensation Act cannot be treated as proceedings in a regular civil action in which the parties are held to be limited to the allegations contained in the pleadings. The rules framed under the Workmen's Compensation Act by the Government of India contain rules of procedure to be followed by Commissioners in the disposal of cases under the Act Rule 25 provides:

“(1) The opposite party may, on appearing before the Commissioner, file a written statement dealing with the claim raised in the application, and any such written statement shall form part of the record.

(2) If the opposite party contests the claim made but does not file a written statement the Commissioner shall proceed to examine him upon the claim, and shall reduce the result of the examination to writing.”

Rule 26 then provides:

(1) After considering any written statement and the result of any examination of the parties present, the Commissioner shall ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to him to depend.

(2) In recording the issues, the Commissioner shall distinguish between those issues which in his opinion concern points of fact and those which concern points of law.”

Reliance is placed by the learned Counsel for the appellants upon these rules, and it is contended that when a written statement is filed, the party filing the written statement must be confined to the allegations contained therein and no extraneous circumstance can be allowed to be taken into consideration in defeating the claim for compensation. I am, however, of opinion that these rules do not preclude the Commissioner from framing issues which legitimately arise in the case, even if the written statement does not specifically raise the issue. The Commissioner in the present case framed the issue whether the accident was due to the rashness or negligence of the deceased as pleaded in the written statement and also whether it was due to any wilful disobedience of any safety rule, which issue arose on a consideration of the circumstances of the case. The fact therefore that the respondent company did not take the plea expressly in the written statement does not render illegal the decision of the learned Commissioner to the effect that the accident was attributable to the wilful disobedience of the workman of a rule expressly framed.

The next point taken by the learned Counsel for the appellants related to the validity of the rules and to the question whether there was a wilful disobedience thereof. The rules relied upon have been set out above. It is contended that the rules contained in Exhibit were rules of the Traffic Department and, therefore, not rules which the deceased, who was not employed in the Traffic Department, was bound to obey. The rules, however, purport to be not only rules of the Traffic Department, but also of the department of Labour and the rules must be held to be binding on all employees in the department of Labour, and the deceased was an employee in such a department. It is next contended that the rules merely amount to cautions and to advice rather than express rules of conduct the disobedience whereof would disentitle the claimants to compensation. Some of these rules are no doubt in the nature of cautions and advice, others, however, are direct injunctions upon workmen to act in a particular way. Rule no. 56 although worded as a warning that persons or running across in front of trains do so at their own risk, must be taken as a direction upon the workmen not to run across in front of trains; and rule no. 2, under the heading ‘Special Safety First Cautions’ on page 38 of Exhibit 1 directly enjoins the workmen not to take shelter under, pass under or run across vehicles. Rule 6 of the Safety Rules (Exhibit 2) cannot be said to be a rule directing a particular mode of conduct. It merely enjoins on the workmen to use great care when crossing railway tracks and to stop, look and listen before crossing any track. The question, however, is whether the disregard of rule 56 prohibiting the workmen from running across in front of trains, and rule no. 2 of the ‘Special Safety First Caution Rules’ forbidding workmen to pass under, or run across vehicles does in the present case amount to wilful disobedience within the meaning of section 3 of the Act? The learned Commissioner has found that it does. Learned Counsel for the appellants has argued that the learned Commissioner has committed an error of law in coming to that finding. What the learned Commissioner actually found was that the deceased was guilty of reckless and rash conduct in dashing across in front of the engine. This finding, to my mind, is not a finding of fact which would disentitle the claimants to compensation. A reckless or a rash act is not an act which exempts the employer from liability to compensation. What is necessary is a wilful disobedience of a rule expressly framed. The question is, whether upon the facts found it can be held that the deceased was guilty of wilful disobedience of rule no. 56. It is contended that the rule was not an operative rule, and there was no wilful disobedience, even if the rule was operative, that the finding of the learned Commissioner is, and the evidence shows, that the workmen were in the habit of taking short cuts across the railway tracks, and the directions as regards the speed of the engine were such that ordinarily there was no chance of an accident even if workmen ran across the tracks in front of the engine, and, therefore, the accident cannot be attributable to any disobedience on the part of the deceased workman to a rule which was operative. There is a good deal of force in this argument, and having regard to the finding of the learned. Commissioner that the speed of the engine was faster than that prescribed by the rules and to the evidence that workmen were crossing in the ordinary course at that spot, I am of opinion that there was no wilful disobedience of any rule.

In Johnson v. Marshall, Sons and Company, Limited, a workman was found fatally injured in a lift on his employers' premises without a load. Upon the lift was a notice that no one was allowed to use it except in charge of a load. There was no evidence as to the circumstances under which the workman entered the lift. In an application for compensation by the widow it was held that the burden of proving that the workman was guilty of serious and wilful misconduct within the meaning of the Workmen's Compensation Act of 1897 lay upon the employers, that, there was no evidence of serious and wilful misconduct within the meaning of the Act and the applicant was entitled to compensation. The meaning of “serious wilful misconduct” was discussed by Lord Loreburn, L.C and in the course of his address his Lordship observed as follows: “No doubt it was misconduct to enter the lift when not in charge of a load, for that was a disobedience of orders lawfully given. It was ‘wilful’ in the sense that the man presumably entered of his accord, but the word ‘wilful,’ I think, imports that the misconduct was deliberate, not merely a thoughtless act on the spur of the moment.”

The act of the deceased in running across the track cannot be said to be a wilful act of disobedience of a rule. It was an act of impulse, a thoughtless act done on the spur of the moment, and I am of or opinion that the learned Commissioner was wrong in law in holding that there was a wilful disobedience of the rule by the deceased workman. As was pointed out in the case cited above, the onus to prove wilful disobedience lay on the respondent company, and the evidence produced on behalf of the respondent falls short of discharging this onus.

It has next to be seen whether, if there was a wilful disobedience of a rule, the accident was directly attributable to such disobedience. The finding of the learned Commissioner on this point is in these words:—

“The words ‘directly attributable’ must be taken in their ordinary sense and I do not think it can be doubted that the accident was in fact directly attributable to the rash action of Hari. The accident obviously would not have happened but for the carelessness of the deceased. There may have been contributory causes, and in my opinion the speed of the engine was a contributory cause. But as the rashness of the deceased was the most immediate cause, the claimants cannot take advantage of these contributory causes. To hold otherwise would be to disregard the plain wording of the section.”

It is to be noticed that the learned Commissioner calls the action of Hari, rash and says that the accident happened on account of his carelessness and not that it was attributable to any disobedience of any rule. However, he has found that there were contributory causes and the speed of the engine was, according to him, a contributory cause, but the rashness of the deceased was the most immediate cause. I am of opinion that upon the facts found and upon the evidence in the case it cannot be said that the accident was directly attributable to any disobedience of the rules. I have already dealt with the evidence which goes to show that the workmen were in the habit of taking short cuts across the track without any objection or prohibition on the part of the company. Had it not been for the speed at which the engine was running there would probably have been no accident I cannot agree with the learned Commissioner that the rashness of the deceased was the immediate cause and not the speed of the engine. The evidence is that the jamadar has to walk with the engine at that place to caution people and that a jamadar was actually walking along with the engine, that a coupling porter was sitting on the buffer of the tender in front and he was shouting out to warn the people crossing the track, and that the whistle of the engine was blowing and the bell was being rung. Assuming all this evidence to be true, it is extremely unlikely that the deceased would have run across the track in front of the engine if he had time to hear and see. The porter who says that he was sitting on the buffer of the tender deposes that the engine was going very fast as it was time for going off duty, and it is likely that all these precautions taken for the safety of the workmen proved unavailing on account of the speed at which the engine was coming, and the accident was directly attributable to the speed of the engine and not to the rashness or wilful disobedience of any rule on the part of the deceased. It was the duty of the driver of the engine to stop it when there was danger of running over a man as he himself says in his deposition, and had he been driving the engine at the prescribed rate he would, surely have noticed the man in front of the engine and would have had time to stop it. If, therefore, the accident could have been avoided if the rules had been observed in respect of the speed of the engine, and such rules were not observed, the company must be held liable for the action of its servants in the Traffic Department. In Radley v. London and North-Western Railway Company, the House of Lords held that though a plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident which is the subject of the action, yet, if the defendant could, in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him. In this case the defence of contributory negligence was set up; but it was held that, although the plaintiff may have been guilty of contributory negligence, yet, the accident could have been avoided if the defendant had exercised ordinary care and diligence, and the defendant was held liable in spite of the contributory negligence of the plaintiff.

In Davies v. Mann, a donkey belonging to the plaintiff had been left in the highway fettered in the forefeet and unable to go out of the way of the defendant's waggon which was going at a smartish pace along the road and was run over and killed, and it was held that the jury were properly directed, that although it was an illegal act on the part of the plaintiff so to put the animal on the highway, the plaintiff was entitled to recover, the general rule of law respecting negligence being, that although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover. In the present case it was the negligence on the part of the respondent company's servants in driving the engine very fast which prevented the deceased from avoiding the consequence of the negligence of the respondent's servants.

In this view of the case it is not necessary to consider the argument of the learned Counsel for the appellants that the rules which the deceased is alleged to have disobeyed were not rules which were binding on the workmen inasmuch as they were not positive injunctions to act in a particular way but only contained advice or cautions, and that a rule enjoining people not to be negligent is not a rule contemplated by or consistent with the Act, inasmuch as negligence or rashness is not amongst the exceptions provided for in the Act, and an employer cannot by making rules inconsistent with the spirit of the Act avoid the responsibilities cast upon him by the Act.

I am of opinion that the claimants were entitled to the compensation claimed, and I would set aside the order of the Commissioner and decree the appeal with costs. The amount claimed was Rs. 900 which represented thirty months' wages of the deceased at the rate of Rs. 1 a day, and under section 4 of the Act the claimants were entitled to the amount claimed. The decree will, therefore, be for the sum of Rs. 900 as claimed.

Macpherson, J.:— I agree to the order proposed.

It is a substantial question of law whether on the facts found by the Commissioner in this case the employer has brought himself within the exception set out in section 3(1)(b)(ii) on which he relies. Accordingly an appeal lies.

The material facts found by the Commissioner succinctly are in his own words that the workman deceased “very recklessly dashed across in front” of the engine “which act was” the most immediate cause of his death “and that there may have been contributory causes and in my opinion the speed of the engine was a contributory cause” of his death but that “the accident obviously would not have happened but for the carelessness of the deceased.”

The question on which the right to compensation now hinges is whether the accident to deceased was

“directly attributable to the wilful disobedience of the workman to an order expressly given or to a rule expressly framed for the purpose of securing the safety of workmen,” [3(1)(b)(ii)]:

if the employer has failed to establish that it was, he is liable.

We are not referred to any relevant ‘order’ and the only rules on which the employer relies before us, are rule 50 of the General Safety Rules which is,

“Persons running across in front of trains are warned that they do so at their own risk;”

and Special Safety First Caution no. 2 which runs,

“Do not take shelter under, pass under or run across vehicles.”

It cannot be held that the caution comes at all within the description of a ‘rule’ as contemplated by section 3(1) (b) (ii): the form of it and the nature and form of other cautions leave no room for doubt on the point. Again the language of rule 56 leaves no room for doubt that running across in front of trains is not forbidden. The rule is merely a disclaimer of responsibility for the consequences. It certainly cannot be said to be “expressly framed for the purpose of securing the safety of workmen;” its object is to secure the financial safety of the employer. On this view section 3(1) (b) (ii) does not apply and the appeal must succeed.

But assuming that rule 56 comes within the expression “rule expressly framed for the purpose of securing the safety of workmen” and also that in running across recklessly the workman wilfully disobeyed such a rule, it has still to be established by the employer that the accident was “directly attributable” to such wilful disobedience. In my opinion that is not sufficiently established by a finding that “the rashness of the deceased was the most immediate cause” or that “the accident would obviously not have happened but for the carelessness of the deceased.” I am indeed disinclined to hold that a rash and impulsive act cannot be ‘wilful disobedience’ within the meaning of the enactment. But it is reasonably clear that an accident cannot be said to be “directly attributable” to wilful disobedience of a rule, where the natural operation of the rule is disturbed by abnormal considerations beyond the control of the workman involved in the accident. In the present instance the workman (we are assuming) ran across in front of the engine at his own risk (rule 56). But the risk contemplated could be no more than that the engine was running at the speed prescribed as a maximum. As the workman was almost safely across when caught by the engine, it is a reasonably safe inference that if the engine (which admittedly was running very fast, and in excess of the maximum speed prescribed as it was coming off duty very late and the engine staff were impatient) had not been exceeding the speed limit at this danger spot where workmen habitually crossed, he would have crossed uninjured. In short the accident would not have occurred. It seems therefore impossible to hold it to be established by the employer (even on the assumptions made) that the accident was “directly attributable” to the wilful disobedience by the workman of the rule rather than to the excessive speed of the engine or even to a combination of the two. It is also difficult to see how the employer can escape liability where the accident is attributable to several important causes in combination of which one only, even if it is the most important, comes within section 3(1)(b)(ii).

It may be suggested to the respondent company that their Safety Rules if it is intended to rely upon them in defence against claims under the Workmen's Compensation Act, urgently require redrafting by an expert who will have regard to the new conditions which have arisen under that enactment, and that the point should never be left obscure whether rules affecting him have been clearly brought to the knowledge of the individual workman.

Appeal allowed.